G.R. No. 126968.

April 9, 2003] Servando,[8] the brother of Senando, threw an axe at him but Reynaldo picked it up and
smashed Senando with it.
Ricardo Balunueco, petitioner, vs. Court of Appeals and the People of the
Philippines, respondents. Manuel Flores, another witness for the defense, gave a substantially similar version
of the story. He testified that on the fateful day of the incident, while doing some carpentry
DECISION work in front of his mothers house, he saw Senando Iguico, [9] a.k.a. Bulldog, with a bolo on
hand trailing brothers Reynaldo alias Sayas and Ramon while walking towards Bagong
BELLOSILLO, J.: Bantay.Suddenly, Senando confronted the two (2) brothers and started hacking Reynaldo,
hitting him on the head, arm and stomach. Seeing that his brother was absorbing fatal
blows, Ramon embraced Senando but the latter shoved him (Ramon) and directed his fury
On appeal by certiorari is the Decision[1] of the Court of Appeals affirming with
at him instead. Ricardo went to the rescue of his brothers but he too was hacked by
modifications the decision[2] of the Regional Trial Court of Pasig City, Branch 68, convicting
Senando.
accused RICARDO BALUNUECO of homicide for the death of Senando Iguico and
frustrated homicide for injuries inflicted upon his wife Amelia Iguico. The trial court disbelieved the version of accused Ricardo, thus he was found guilty of
[3] homicide in Crim. Case No. 49576 and frustrated homicide in Crim. Case No. 49577. It
Of the five (5) original accused, only petitioner Ricardo, accused Reynaldo, Juanito,
reasoned that the testimony of Amelia Iguico was clear, positive, straightforward, truthful
all surnamed Balunueco, and Armando Flores were indicted in two (2) Informations, the
and convincing. On the other hand, according to the trial court, the denial of Ricardo was
first for homicide[4] and the second for frustrated homicide.[5] Again, of the four (4) indictees,
self-serving and calculated to extricate himself from the predicament he was in. Further,
only Ricardo and Reynaldo were brought to the jurisdiction of the court a quo, while
the trial court added that the wounds allegedly received by Ricardo in the hands of the
Juanito and Armando have remained at large. Accused Reynaldo died on 17 November
victim, Senando Iguico, if at all there were any, did not prove that Senando was the
1986. Accordingly, as against him, the criminal cases were dismissed. Thus, only the
aggressor for the wounds were inflicted while Senando was in the act of defending himself
criminal cases against petitioner Ricardo Balunueco are subject of this appeal.
from the aggression of Ricardo and his co-conspirators.[10]
As principal witness for the prosecution, Amelia Iguico narrated that on 2 May 1982 at
The Court of Appeals sustained the conviction of accused Ricardo, giving full faith to
around 6:00 oclock in the evening she was coddling her youngest child in front of her
the direct and positive testimony of Amelia Iguico who pointed to him as the one who
house at Bagong Tanyag, Taguig, when she saw accused Reynaldo, his father Juanito and
initially axed her husband Senando on the head, shoulder and hand.[11] While the appellate
brothers Ricardo and Ramon, all surnamed Balunueco, and one Armando Flores chasing
court upheld the conviction of Ricardo of homicide for the death of Senando Iguico, it
her brother-in-law Servando Iguico. With the five (5) individuals in hot pursuit, Servando
however ruled that his conviction for the wounding of Amelia Iguico, although likewise
scampered into the safety of Amelias house.
upheld, should be for attempted homicide only. On the wounding of Amelia, the appellate
Meanwhile, according to private complainant Amelia, her husband Senando, who court had this to say - [12]
was then cooking supper, went out of the house fully unaware of the commotion going on
outside.Upon seeing Senando, Reynaldo turned his attention on him and gave For while intent to kill was proven, Amelias hack wound in her left leg was not proven to be
chase. Senando instinctively fled towards the fields but he was met by Armando who hit fatal or that it could have produced her death had there been no timely medical attention
him with a stone, causing Senando to feel dizzy. Reynaldo, Ricardo, and Armando provided her, hence, the stage of execution of the felony committed would only be
cornered their quarry near a canal and ganged up on him. Armando placed a can on top of attempted.
Senandos head and Ricardo repeatedly struck Senando with an ax on the head, shoulder,
and hand. At one point, Ricardo lost his hold on the ax, but somebody tossed him
Petitioner now imputes errors to the Court of Appeals: (a) in not taking into
a bolo and then he continued hacking the victim who fell on his knees. To shield him from
consideration the fact that petitioner, if indeed he participated, had acted in defense of
further violence, Amelia put her arms around her husband but it was not enough to detract
relatives; (b) in giving due credence to the self-serving and baseless testimony of Amelia
Ricardo from his murderous frenzy. Amelia was also hit on the leg.[6]
Iguico, the lone and biased witness for the prosecution; and, (c) in failing to consider the
Dr. Maximo Reyes, NBI Senior Medico-legal officer, declared that on 3 May 1982 he several serious physical injuries sustained by petitioner and his brother Reynaldo
conducted a post mortem examination on the body of the deceased Senando Iguico and Balunueco.
issued an Autopsy Report, which contained the following findings: [7] (a) two (2) stab
In a reprise of his stance at the trial, petitioner argues that assuming he participated
wounds and nine (9) gaping hack wounds; and, (b) cause of death was hemorrhage,
in the killing of Senando, he acted in defense of his full-blood relatives: Reynaldo whom he
acute, profuse, secondary to multiple stab and hack wounds.
personally witnessed being boloed by the deceased in the arms, head and stomach; and
In his defense, accused Ricardo narrated a different version of the incident. He Ramon who also became a victim of the deceaseds fury after he was pushed by the
testified that at that time he was fetching water when he heard somebody shouting: Saya, deceased and had fallen to the ground. Under such circumstances, the act of Senando in
saya, tinataga, referring to his brother Reynaldo. When he hurried to the place, he saw his hacking him after he tried to rescue his brothers, gave rise to a reasonable necessity for
brother Ramon embracing Senando who was continuously hacking Reynaldo. Thereafter, him to use a means to prevent or repel the unlawful aggression. Considering further that
Senando shoved Ramon to the ground and as if further enraged by the intrusion, he turned there was lack of sufficient provocation on his part, his acts were therefore justified under
his bolo on the fallen Ramon. Ricardo screamed, tama na yan, mga kapatid ko yan. But Art. 11, par. (2), of The Revised Penal Code.
the assailant would not be pacified as he hacked Ramon on the chest. At this point,
 In effect, petitioner invokes the justifying circumstance of defense of relatives under
Art. 11, par. (2), of The Revised Penal Code. The essential elements of this justifying
circumstance are the following: (a) unlawful aggression; (b) reasonable necessity of the
means employed to prevent or repel it; and, (c) in case the provocation was given by the
person attacked, the one making the defense had no part therein.
Of the three (3) requisites of defense of relatives, unlawful aggression is a
condition sine qua non, for without it any defense is not possible or justified. In order to
consider that an unlawful aggression was actually committed, it is necessary that an attack
or material aggression, an offensive act positively determining the intent of the aggressor
to cause an injury shall have been made; a mere threatening or intimidating attitude is not
sufficient to justify the commission of an act which is punishable per se, and allow a claim
of exemption from liability on the ground that it was committed in self-defense or defense
of a relative. It has always been so recognized in the decisions of the courts, in
accordance with the provisions of the Penal Code.[13]
Having admitted the killing of the victim, petitioner has the burden of proving these
elements by clear and convincing evidence. He must rely on the strength of his own
evidence and not on the weakness of that of the prosecution, for even if the prosecution
evidence is weak it cannot be disbelieved if the accused has admitted the killing.[14]
In the case at bar, petitioner Ricardo utterly failed to adduce sufficient proof of the
existence of a positively strong act of real aggression on the part of the deceased
Senando. With the exception of his self-serving allegations, there is nothing on record that
would justify his killing of Senando.
First, Ricardos theory that when he reached the crime scene he found Senando
repeatedly hacking his brother Reynaldo who thereafter retaliated by smashing an axe on
the victims head is implausible in light of the seriousness of the wounds sustained by the
deceased as compared to the minor injuries inflicted upon petitioner and his two (2)
brothers. The fact that three (3) of the assailants suffered non-fatal injuries bolsters the fact
that Senando tried vainly to ward off the assaults of his assailants.
Second, Ricardo failed to present himself to the authorities. He may have
accompanied the injured Reynaldo to the hospital after the encounter but still he failed to
present himself to the authorities and report the matter to them. The natural impulse of any
person who has killed someone in defense of his person or relative is to bring himself to
the authorities and try to dispel any suspicion of guilt that the authorities might have
against him. This fact assumes a more special significance considering that his co-
accused, Juanito and Armando, have remained at large.
Third, petitioner had a rather erratic recollection of people and events. He vividly
remembered how Reynaldo was injured by Senando but conveniently failed to recall the
events leading to the fatal wounding of the deceased. At another point, he testified that
Reynaldo axed Senando but later retracted his statement by declaring that it was in fact
Senando who hacked Reynaldo.[15] We observe that the killing occurred within or near the
premises of the deceased. This proves per adventure the falsity of petitioners claim that it
was Senando, rather than he and his kin, who had initiated the unlawful aggression.
On the other hand, private complainant pointed to petitioner as one of the principal
actors in the slaying of her husband Senando and the court a quo found her testimony
worthy of belief. The unbending jurisprudence is that findings of trial courts on the matter of
credibility of witnesses are entitled to the highest degree of respect and will not be
disturbed on appeal.[16]The lower court also declared, and we agree, that private
complainants relationship with the deceased does not disqualify her from testifying in the
criminal case involving her relative or automatically sully her testimony with the stain of
bias.
On the injuries sustained by Amelia, we are of the opinion that, contrary to the finding
of the lower court as affirmed by the appellate court, petitioners homicidal intent has not
been indubitably established. As held in People v. Villanueva,[17] the intent to kill being an
essential element of the offense of frustrated or attempted homicide, said element must be
proved by clear and convincing evidence, and with the same degree of certainty as
required of the other elements of the crime. The inference of intent to kill should not be
drawn in the absence of circumstances sufficient to prove such intent beyond reasonable
doubt.
The facts as borne out by the records do not warrant a finding that petitioner intended
to kill Amelia. Contrarily, the circumstances of the instant case indicate the opposite: (a)
that while petitioner was repeatedly assaulting the deceased, Amelia embraced her
husband in an attempt to avert further infliction of pain upon him; and, (b) when he hit
Amelia once on the left leg, a wound of slight nature, he did not do anything more to
pursue his homicidal urge[18] but instead allowed her to scurry away. This set of details
reinforces this Courts belief that petitioner had no intention of killing Amelia but
nonetheless wounded her either because she unwittingly exposed herself in the so-called
line-of-fire when she embraced her husband, or that it was intended more to deter her from
further interfering. Had killing Amelia actually crossed petitioners mind, he would have
opted to hit his quarry on the vital portions of her body or strike her several times more to
attain his objective. But these he never did.
Considering that the injuries suffered by Amelia were not necessarily fatal and
required a medical attendance of four (4) days,[19] we hold that the offense committed by
petitioner is only that of slight physical injuries. Under Art. 266, par. (1), of The Revised
Penal Code, this is punishable by arresto menor the duration of which is from one (1) to
thirty (30) days.[20]
WHEREFORE, the assailed Decision of the Court of Appeals in Crim. Case No.
49576 finding petitioner Ricardo Balunueco guilty of Homicide is AFFIRMED, and there
being no mitigating nor aggravating circumstance, petitioner is sentenced to an
indeterminate penalty of six (6) years, two (2) months and ten (10) days of prision
mayor minimum, as minimum, to fourteen (14) years, eight (8) months and twenty (20)
days of reclusion temporal medium, as maximum. Consistent with prevailing jurisprudence,
his civil liability to the heirs of Senando Iguico is fixed at P50,000.00. The assailed
Decision in Crim. Case No. 49577 for Attempted Homicide, on the other hand, is
MODIFIED. Petitioner Ricardo Balunueco is found guilty only of Slight Physical Injuries for
the wounding of Amelia Iguico, and is accordingly sentenced to suffer a straight prison
term of ten (10) days of arresto menor, and to pay the costs.
SO ORDERED.
G.R. No. 142682. June 5, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CRISPULO DIJAN
MACAJIYA, accused-appellant.
DECISION
VITUG, J.:
Accused Crispulo Dijan y Macajiya was indicted on 15 April 1998, along with Romualdo
Paglinawan and Oliver Lizardo, for the crime of murder before the Regional Trial Court,
Branch 272, of Marikina. The information read:
That on or about the 11 th day of April, 1998 in the City of Marikina, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping and aiding one another, while armed with a
knife and an ice-pick with intent to kill and by means of treachery and abuse of superior
strength, did then and there willfully, unlawfully and feloniously attack, assault and stab one
ALVARO HILARIO, thereby inflicting upon the latter moral wounds which directly caused
his death.[1]
Upon arraignment, the three accused separately and independently entered a plea of not
guilty to the offense charged; trial ensued.
Evidence for the Prosecution
On the evening of 11 April 1998, about ten oclock, Roderick Silvestre and Alvaro Hilario
were at a store located around the corner of Paraiso and Sumulong Streets in Parang,
Marikina City, to buy some cigarettes when they saw the group of Crispulo Dijan,
Romualdo Paglinawan and Oliver Lizardo, passing by the store. The two groups came to
an encounter when Romualdo Paglinawan suddenly confronted Alvaro Hilario for
purportedly giving him a bad stare. Silvestre apologized to the group and, offering them
some cigarettes, explained that it was the natural way Hilario gazed at people. Dijan,
Paglinawan and Lizardo then left the place while Silvestre and Hilario who lived in the
same house proceeded home. While Silvestre and Hilario were walking, the three
accused, who apparently were waiting for the duo, suddenly ganged up on, and took turns
in stabbing, Hilario. At that point, Hilario, who was walking slightly ahead of Silvestre, cried
out and told the latter to flee. Silvestre ran away until he was able to cling to a passing
passenger jeepney.
Responding policemen, soon informed of the stabbing incident through radio
communication, proceeded to the crime scene and there found the lifeless body of Hilario
sprawled on the ground. After receiving a report on the identity and the whereabouts of the
assailants, the policemen proceeded to a place about 200 meters away from the site of the
stabbing incident. Barangay tanods assisted the police in arresting the suspected
assailants. The following day, 12 April 1998, Dr. Ma. Cristina B. Freyra, Medico-Legal
Officer of the Philippine National Police (PNP), conducted an autopsy on the victims
cadaver.Hilario was found to have sustained several stab wounds, punctured and incised
wounds, and abrasion in various parts of the body which caused his death. The medico-
legal officer concluded that the wounds could have been inflicted by two assailants with the
use of two single-bladed weapons and an icepick.
y
The version of the Defense -
The defense claimed that on the night of the incident, Crispulo Dijan and his two
companions, Romualdo Paglinawan and Oliver Lizardo, were walking on their way home
when they dropped by a store to buy some cigarettes. There, they met two persons, later
identified to be Alvaro Hilario and Roderick Silvestre. who were partaking of
drinks. Paglinawan accosted one of the duo for allegedly sharply staring at him but the
other apologized to their group and explained that his companion was already
drunk. Paglinawan himself then also made an apology, and everybody shook hands. Dijan
and his friends started to walk along Paraiso Street. When Dijan happened to look behind,
he was surprised to see Paglinawan being stabbed with a knife by Alvaro Hilario. He saw
that when Paglinawan was hit on the left arm, the two grappled for the knifes
possession. Seeing Roderick Silvestre to have pulled out an icepick himself, Dijan
promptly held his hand. After disarming Silvestre, Dijan saw Paglinawan still grappling with
Hilario for the knifes possession. Realizing that Paglinawan was no match for Hilario, the
latter being much taller than Paglinawan, Dijan helped his friend and stabbed Hilario with
the icepick he wrestled away from Silvestre. He assisted Paglinawan in getting home
which was only about 20 meters away from the scene of the crime.
Dijans two co-accused, Oliver Morales Lizardo and Romualdo Paglinawan, gave a similar
account. Lizardo claimed that he ran away when Silvestre, holding an icepick, rushed
towards them. Romualdo Paglinawan said that, when their group was already at the corner
of Paraiso and Sumulong streets, he heard rushing steps of slippers and, turning his head
around, Hilario suddenly stabbed him with a knife.He was able to evade the thrust directed
on his chest, wounding him instead on his left forearm. The two grappled for the knifes
possession for about five minutes until he was weakened by the bleeding of his
wound. Dijan was able to timely pull away Hilario. Dijan then stabbed Hilario. Paglinawan
stood up and walked home followed by Dijan. He requested Dijan to bring him to the
hospital for treatment but it was the policemen, who meanwhile arrived, who brought him
to the hospital. After his wounds were treated, he was taken to the police headquarters.
The defense also presented Lani Sarmiento and Dr. Alfredo Garcia to the stand. Sarmiento
claimed that when she and a companion passed by Lindas Bakery on the night of the
incident, they noticed two male persons, a tall fellow and the other of average height,
overtake them causing her to exclaim Fe, tingnan mo yan, parang nagmamadali, parang
galit sa mundo.[2] Nearing Sumulong Street, they saw the two men approach three other
male persons who were walking towards Paraiso Street. Suddenly, the tall guy pulled out a
knife and gave a stabbing thrust to one of the three men. When they reached home, they
learned that it was their Kuya Jojo or Romualdo Paglinawan who had been stabbed. Dr.
Garcia testified having treated Romualdo Paglinawan on 11 April 1998 at the Amang
Rodriguez Medical Centre for a stab wound at the right forearm.
The Judgment of the Trial Court. -
The trial court saw the case for the prosecution insofar as accused-appellant Crispulo M.
Dijan was concerned whom the court found guilty of the crime of murder, acquitting
thereby Dijans two co-accused, Romualdo Paglinawan and Oliver Lizardo, based on of wounds inflicted by an accused on the victim should be significant indicia in determining
reasonable doubt; viz: the plausibility of the defense plea.[10]

WHEREFORE, foregoing premises considered, accused CRISPULO DIJAN y The Court, however, finds the evidence of the prosecution to be wanting in respect to the
MACAJIYA is hereby found GUILTY beyond reasonable doubt of the crime of Murder qualifying circumstance of treachery. The essence of treachery is the sudden and
qualified by treachery as charged against him and is ordered to suffer the penalty of unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any
RECLUSION PERPETUA, to indemnify the heirs of the victim Alvaro Hilario the amount of real chance to defense himself and thereby ensuring its commission with no risk to the
Fifty Thousand (P50,000.00) Pesos; to pay the said heirs the amount of Thirty Four aggressor.[11] The conditions that must concur in order that treachery may be appreciated
Thousand Two Hundred (P34,200.00) Pesos as funeral expenses; and the amount of Fifty are: (a) the employment of means of execution that gives the person attacked no
Thousand (P50,000.00) Pesos as moral and exemplary damages. The accused opportunity to defend himself or to retaliate; and (b) that the means of execution are
ROMUALDO PAGLINAWAN y RICAMORA and OLIVER LIZARDO y MORALES are deliberately and consciously adopted.[12] These elements must be proven as indubitably as
hereby ACQUITTED of the crime charged against them for failure of the prosecution to the killing itself and cannot be deduced from conjecture.[13]
prove their guilt beyond reasonable doubt.The Jail Warden of the Marikina City Jail is
ordered to immediately release the persons of Romualdo Paglinawan and Oliver Lizardo Here, it was not satisfactorily established that the victim was unarmed at the time of the
unless validly held for some other offense.[3] stabbing incident. On the contrary, the stab wound on the person of Romualdo
Paglinawan, a companion and co-accused of herein appellant, could indicate that the
Appealing his conviction to this Court, accused-appellant would argue that - victim might have also been armed. Neither was it made clear that there was no
provocation on the part of the victim.
I. The trial court erred in finding accused-appellant Crispulo Dijan guilty beyond
reasonable doubt of the crime of murder. Accused-appellant can thus only be convicted of the crime of homicide, the penalty for
which, under Article 249 of the Revised Penal Code, is reclusion temporal that, absent any
II. Assuming for the sake of argument that accused-appellant is guilty, the trial court mitigating nor aggravating circumstance, shall be imposed in its medium period. Applying
erred in appreciating the qualifying circumstance of treachery.[4] the Indeterminate Sentence Law, accused-appellant should thus be penalized by an
indeterminate sentence of anywhere within the range of prision mayor, or from six years
A party who invokes the justifying circumstance of defense of a stranger has the burden of and one day to 12 years, by way of minimum, and anywhere within the range of reclusion
proving by clear and convincing evidence the exculpatory cause that can save him from temporal in its medium period of from fourteen years, eight months and one day to
conviction.[5] In order to successfully put up this defense an accused must show (1) the seventeen years and four months, by way of maximum.[14]
existence of unlawful aggression on the part of the victim; (2) the reasonable necessity of
the means employed to prevent or repel it; and (3) that the accused has not been induced The award of damages made by the court a quo should be affirmed insofar as the civil
by revenge, resentment, or other evil motive.[6] The unlawful aggression must be a indemnity of P50,000.00 and actual damages of P34,200.00 are concerned, the latter
continuing circumstance or must have been existing at the time the defense is made.Once being amply supported by receipts.[15] The additional award of moral and exemplary
unlawful aggression is found to have ceased, the one making the defense of a stranger damages should be deleted for lack of factual and legal grounds.
would likewise cease to have any justification for killing, or even just wounding, the former
aggressor.[7]
WHEREFORE, the appealed decision of the Regional Trial Court is AFFIRMED with
MODIFICATION in that accused-appellant is only found GUILTY of HOMICIDE and
From the defense account, it would appear that Hilario was already disarmed and the sentenced to an indeterminate penalty of nine (9) years and one (1) day of prision mayor,
unlawful aggression by Hilario (if indeed he was the aggressor) to have by then been as minimum, to fifteen (15) years and eleven (11) months and three (3) days of reclusion
abated, when accused-appellant still delivered the fatal thrusts on the victim. Paglinawan temporal, as maximum, and is ordered to pay the heirs of the victim Alvaro Hilario civil
himself testified: indemnity of Fifty Thousand (P50,000.00) pesos and actual damages of Thirty-
four Thousand Two Hundred (P34,200.00) Pesos. The award by the trial court of moral
Q. And because Crispulo Dijan was already able to take possession of the weapon and exemplary damages are deleted. Costs against appellant.
from Roderick Silvestre, you yourself was able to take possession of the weapon from
Hilario there was no more danger to you as well as to Crispulo Dijan? SO ORDERED.

A. Yes, sir.[8]

The number of wounds sustained by the victim would itself likewise negate accused-
appellants claim of defense of a stranger. The autopsy conducted on the corpse would
show that the deceased sustained fourteen injuries consisting of nine stab wounds, three
punctured wounds, an incised wound and an abrasion.[9] Certainly, the nature and number
G.R. No. L-56358 October 26, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUIS B. TORING DIOSDADO BERDON and CARMELO B. BERDIN, accused-appellants.
The Solicitor General for plaintiff-appellee.
Fil C. Veloso counsel de oficio for Luis B. Toring.
Joel P. Alino for Berdon and Berdin.
FERNAN, C.J.:
The appellants herein seek the reversal of the October 28, 1980 decision of the Circuit
Criminal Court in Cebu City in Criminal Case No. CCC-XIV-2170, the dispositive portion of
which reads:
WHEREFORE, the Court finds the accused Luis B. Toring guilty beyond reasonable doubt
of the crime of MURDER by direct participation as principal; Diosdado Berdon as
accomplice thereto; and Carmelo Berdin as accessory after the fact.
Appreciating in favor of the accused Luis B. Toring the mitigating circumstance of voluntary
surrender, the said circumstance having been offset by the aggravating circumstance of
nighttime, the accused Luis Toring should be, as he is, hereby sentenced to the penalty of
RECLUSION PERPETUA, with the accessory penalties of law.
There being neither mitigating nor aggravating circumstances on the part of the accused
Diosdado Berdon, the said accused should as he is hereby sentenced to the indeterminate
penalty of from SIX (6) YEARS of Prision Correccional, as minimum, to TWELVE (12) and
ONE (1) DAY of ReclusionTemporal, as maximum, with the accessory penalties of the law.
Appreciating in favor of the accused Carmelo Berdin, the privileged mitigating
circumstance of minority, the said accused being only 17 years of age, the accused
Carmelo Berdin should be, as he is, sentenced to the penalty of SIX (6) MONTHS and
ONE (1) DAY of Prision Correccional, with the accessory penalties of the law.
The defendants shall jointly and solidarily indemnify the heirs of the deceased Samuel
Augusto for actual and compensatory damages in the sum of P15,000.00 and for moral
damages in the sum of P50,000.00, without subsidiary imprisonment in case of insolvency.
The instrument of the crime, the knife, Exhibit "B", is confiscated in favor of the
government.
Proportionate costs.
SO ORDERED. 1
According to the prosecution, the antecedent facts are as follows:
In the evening of May 25, 1980, a benefit dance was held at sitio Naga, Babag II, Lapu-
lapu City for the last canvassing of votes for the candidates for princesses who would reign
at the sitio fiesta. As one of the candidates was the daughter of Samuel Augusto, he and
the members of his family attended the affair.
Also present were members of the kwaknit gang, a group which was noted for their bird-
like way of dancing and their propensity for drunkenness and provoking trouble. Its
president, called the "alas" king, was Luis Toring. The group was then outside the dancing
area which was ringed by benches.
At around 10:45 p.m., Samuel's daughter was proclaimed the winner in the contest. Beer
and softdrinks having been served the parents of the candidates by the officers of the
Naga Chapel Association which took charge of the affair, Samuel was tipsy when, after his
daughter's proclamation, he stepped out of the dancing area to answer the call of nature.
At that moment, barangay tanod Felix Berdin saw Luis Toring, Carmelo Berdin and
Diosdado Berdon proceed to a dark area while whispering to each other. Diosdado Berdon
handed a knife to Luis Toring, 2 who then approached Samuel from behind, held Samuel's
left hand with his left hand, and with his right hand, stabbed with the knife the right side of
Samuel's abdomen. 3 Upon seeing Felix running towards them, Luis Toring pulled out the
knife and, together with Carmelo Berdin and Diosdado Berdon, ran towards the dark. Felix
tried to chase the three but he was not able to catch them. He returned to where Samuel
had slumped and helped others in taking Samuel to the hospital.
According to Maria Catalina Sorono, who was six (6) meters away from Samuel and Luis
when the assault occurred, Diosdado Berdon and Carmelo Berdin were poised to deliver
fist blows on Samuel just before Luis Toring stabbed him. Diosdado gave the knife to Luis
Toring. 4
As soon as she saw the stabbing of Samuel, Maria Catalina shouted for help. The three
assailants ran towards the direction of the fields. Jacinto Lobas and Mario Andog
responded to her shouts and brought Samuel to the Opon Emergency Hospital where he
died on arrival. According to the necropsy report, 5 Samuel, who was thirty years old, died
due to massive hemorrhage secondary to the stab wound on the abdomen. Said wound is
described in the report as follows:
Stab wound, with herniation of omental issues; elliptical, 3.5 cms. long, running vertically
downward, edges clean-cut, superior extremity rounded, inferior extremity sharp, located
at the abdominal region, right anterior aspect, 7.5 cms. to the right of anterior median line
and 107.0 cms. above right heel, directed backward, upward and medially, involving skin
and the underlying soft tissues, penetrating right peritoneal cavity, incising inferior vena
cava, attaining an approximate depth of 15.0 cms.
The death weapon, a kitchen knife made of stainless steel and with a red-colored handle,
was recovered from the house of Luis Toring. According to Patrolman Pantaleon P.
Amodia, the police found out during the investigation that Luis Toring had left the weapon
with "Camilo" Berdin. When the police confronted Berdin, the latter led them to the house
of Toring which Berdin entered. When he emerged from the house, Berdin handed the
weapon to the police. 6
An information for murder was filed against Toring. Subsequently, however, the information
was amended to include Diosdado Berdon and Carmelo Berdin as defendants. The three
were charged therein with conspiracy in killing Samuel Augusto in a treacherous manner.
Berdon, it was alleged, "conveniently supplied the death weapon" which Toring used in
stabbing Samuel while Berdin allegedly concealed the weapon to prevent its discovery by
the police. 7 The crime was purportedly committed with the attendance of the generic
aggravating circumstances of evident premeditation and nighttime.
All three accused pleaded not guilty to the offense charged. At the trial, Luis Toring, alias
"Lowe," testified that he was not the president of the kwaknit gang. He went to the benefit
dance in the company of Venir Ybaez, Joel Escobia, Ely Amion, Abel Pongase, Abe
Berdon, Genio Berdin and Alex Augusta. Toring and his group were standing outside the
dancing area when, at around eleven o'clock in the evening, Samuel, a known tough guy
("maldito"), approached them and held Venir Ybanez by his collar. Then Samuel thrust the
butt of his shotgun on the chin of Joel Escobia, 8 proceeded to another group who were
also gangmates of Toring, and again, with the barrel of his shotgun, hit Eli Amion's chest
several times. 9
Reacting to what he saw, Toring got his kitchen knife which was tucked in his waist,
approached Samuel from the latter's right side and stabbed him once as he did not intend
to kill Samuel. Toring then ran towards the dark portion of the area and went home. There,
he left the knife and proceeded to the hut by the fishpond of one Roman. 10
Toring was sleeping in the hut with his older brother, Arsenio, when, at around 4:00 o'clock
in the morning of May 26, 1980, Edgar Augusto, the younger brother of Samuel, shot them.
Arsenio was hit on the left leg and he stayed two months in the hospital for the treatment of
his wound. 11
At 2:00 o'clock in the afternoon of May 26, 1980, Toring surrendered to two Philippine
Constabulary soldiers. 12 They brought him to the police of Lapu-lapu City on May 28,
1980. 13 When the police asked him about the knife he used in stabbing Samuel, Toring told
them to go to Carmelo Berdin because he was the only person who knew where Toring hid
it. 14Asserting that he was the one who returned the knife to his own house, Toring testified
that Carmelo Berdin used to see him hide his weapons upstairs because Berdin was a
frequent visitor of his. 15
For his part, Carmelo, a 5 feet tall, asthmatic 17-year-old whom the court described as
"lilliputian," admitted that he witnessed the stabbing incident but he ran away with his
group immediately after because he was afraid he might be shot by Samuel. He was with
Toring when the latter hid the still bloodied knife under a trunk in Toring's house. He was
familiar with the hiding place of the knife because Toring showed it to him and there were
times when he would get the knife there upon Toring's request. Carmelo corroborated
Toring's testimony that on that fateful night, Toring carried the knife tucked at the back of
his waistline. 16
In court, Toring testified that he never saw Diosdado at the dance. 17 However, in his sworn
statement dated May 28, 1980 and marked as Exhibit D, Toring stated that he took the
knife from Diosdado to stab Samuel. Confronted with said statement, Diosdado said that
when he asked Toring why he implicated him, Toring allegedly replied that he "included"
Diosdado because of the case the barangay brigade had filed against Toring. 18
According to Diosdado, he did not attend the May 25 dance because of the trouble which
erupted during the dance the night before. He did not have anything to do with the
stabbing of Samuel. He admitted, however, that a week after the incident, his family went
to barrio Andaliw Ronda, Cebu, for their yearly visit to his father-in-law. He stayed there for
fifteen days and would have stayed longer had not his mother informed him of the
subpoena addressed to him. 19
On October 28, 1980, a day after the last day of hearing, the lower court 20 rendered a
decision discrediting Toring's claim that the killing of Samuel was justified because it was
done in defense of a stranger pursuant to Article 11 (3) of the Revised Penal Code. The
lower court found that Toring was the "aggressor acting in retaliation or revenge by reason
of a running feud or long-standing grudge" between the kwaknit gang and the group of
Samuel, who, being the son of the barangay captain, was a "power to be reckoned with." It
mentioned the fact that a year before the incident in question, Toring was shot by Edgar
Augusto (Samuel's brother) and hence, in his desire to avenge himself, Toring, "needed
but a little excuse to do away with the object of his hatred. 21
The lower court could not believe that Samuel brought along his shotgun to the dance
because he was "not reputed to be a public official or functionary entitled to possess a
firearm." Otherwise, the police and the barangay tanod would have arrested him. The court
surmised that if Samuel really carried a shotgun, he certainly must have had a permit or
license to possess the same.
It noted that while Toring testified that Samuel was aiming his shotgun at the chest of Ely
Amyon (Amion), prosecution witness Joel Escobia claimed that he was at the receiving
end of Samuel's thrusts with the butt of his shotgun. To the court, such discrepancy is fatal
to the defense because in appreciating the justifying circumstance of defense of a
stranger, the court must know "with definiteness the identity of the stranger defended by
the accused." 22
The lower court, however, ruled out the existence of conspiracy among the three accused
on the ground that there was no proof on what they were whispering about when Felix saw
them. Accordingly, it held that the accused have individual or separate liabilities for the
killing of Samuel: Toring, as a principal, Diosdado Berdon as an accomplice by his act of
giving Toring the knife, and Carmelo Berdin as an accessory for concealing the weapon. It
considered treachery as the qualifying circumstance to the killing, found no proof as to
allegation of evident premeditation but appreciated nighttime as an aggravating
circumstance. It meted the accused the penalties mentioned above.
All three accused appealed.
Toring seeks his exoneration by contending that his assault on Samuel was justified
because he acted in defense of his first cousin, Joel Escobia. Article 11 (3) of the Revised
Penal Code provides that no criminal liability is incurred by anyone "who acts in defense of
... his relatives ... by consanguinity within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding circumstance are present, and the
further requisite, in case the provocation was given by the person attacked, that the one
making defense had no part therein." The first and second requisites referred to are
enumerated in paragraph (b) in the same article on selfdefense as: (a) unlawful
aggression, and (b) lack of sufficient provocation on the part of the person defending
himself.
Joel Escobia, whose chin was hit with the butt of Samuel's shotgun, is the first cousin of
Toring their fathers being brothers, 23 although no explanation appears on record why they
have different surnames. At any rate, this allegation on relationship was not rebutted by the
prosecution.
The appreciation of the justifying circumstance of defense of a relative, however, hinges in
this case on the presence of unlawful aggression on the part of the victim. Corollarily, the
claim of Toring that Samuel was, at the time of the assault, carrying a shotgun to intimidate
Toring's group must be proven.
Understandably, no prosecution witness attested that they saw Samuel with a firearm. The
prosecution even recalled to the witness stand Samuel's widow who asserted that her
husband did not own any firearm. 24 Going along with the prosecution's evidence, the lower
court arrived at the rather gratuitous conjecture that Samuel could not have had a shotgun
with him because no one without a permit would carry a firearm without risking arrest by
the police or the barangay tanod. At the same time, however, the lower court described
Samuel as the son of the barangay captain who "had the run of the place and had his
compelling presence felt by all and " sundry." 25
While matters dealing with the credibility of witnesses and appreciation of evidence are
primarily the lower court's province, this Court has the power to determine whether in the
performance of its functions, the lower court overlooked certain matters which may have a
substantial effect in the resolution of a case. 26 Defense witness Joel Escobia was, besides
Toring, the only witness whose sworn statement was taken by the police on May 26, 1980,
the day after the fatal assault on Samuel.
In his sworn statement, 27 Escobia attested that as he was about to dance with a girl,
Samuel stopped him, pointed his shotgun at him, took a bullet from his jacket pocket,
showed it to Escobia and asked him, "Do you like this, Dong?" to which Escobia replied,
"No, Noy I do not like that." Samuel then placed the bullet in the shotgun and was thus
pointing it at Escobia when Toring came from behind Samuel and stabbed the latter. Even
on cross-examination at the trial, Escobia did not depart from his statement. In fact he
added that Samuel pointed the shotgun at his chin and told him to eat the bullet. 28
There is no reason to doubt Joel Escobia's assertion of Samuel's unlawful aggression
inasmuch as his sworn statement 29 and testimony in court had not been successfully
discredited by the prosecution which also failed to prove that Joel had reason to
prevaricate to favor Toring.
The presence of unlawful aggression on the part of the victim and the lack of proof of
provocation on the part of Toring notwithstanding, full credence cannot be given, to Toring's
claim of defense of a relative. Toring himself admitted in court 30 as well as in his sworn
statement 31 that in 1979, he was shot with a .22 caliber revolver by Edgar Augusto,
Samuel's brother. It cannot be said, therefore, that in attacking Samuel, Toring was
impelled by pure compassion or beneficence or the lawful desire to avenge the immediate
wrong inflicted on his cousin. Rather, he was motivated by revenge, resentment or evil
motive 32 because of a "running feud" between the Augusto and the Toring brothers. As the
defense itself claims, after the incident subject of the instant case occurred, Toring's
brother, Arsenio, was shot on the leg by Edgar Augusto. Indeed, vendetta appears to have
driven both camps to commit unlawful acts against each other. Hence, under the
circumstances, to justify Toring's act of assaulting Samuel Augusto would give free rein to
lawlessness.
The lower court correctly considered the killing as murder in view of the presence of the
qualifying circumstance of treachery. The suddenness of the assault rendered Samuel
helpless even to use his shotgun. We also agree with the lower court that conspiracy and
evident premeditation were not proven beyond reasonable doubt. Moreover, nighttime
cannot be considered as an aggravating circumstance. There is no proof that it was
purposely sought to insure the commission of the crime or prevent its
discovery. 33 However, Toring should be credited with the privileged mitigating circumstance
of incomplete defense of relative and the generic mitigating circumstance of voluntary
surrender.
The penalty for murder under Article 248 of the Revised Penal Code being reclusion
temporal maximum to death, the imposable penalty is prision mayor maximum to reclusion
temporal medium in view of the presence of the mitigating circumstances of incomplete
defense of relative and voluntary surrender (Art. 64 [5]). Applying the Indeterminate
Sentence Law, the proper penalty to be meted on Toring is prision correctional maximum
as minimum to prision mayor maximum as maximum penalty.
On the culpability of Diosdado Berdon, the Court holds that his defense of alibi cannot be
sustained in the absence of proof that it was physically impossible for him to be at the
scene of the crime when it was committed. 34 His house was only a kilometer away from
the place where he supplied the knife to Toring. 35 That distance does not preclude the
possibility that Diosdado aided Toring in the perpetration of the crime as it could be
negotiated in just a few minutes by merely walking. 36 Moreover, his alibi was
uncorroborated as it was founded only on his own testimony and what appears as a self-
exonerating affidavit. 37
But what pins culpability on Diosdado were the testimonies of at least two prosecution
witnesses who positively identified him as the one who gave Toring the knife. Motive,
therefore, has become immaterial in the face of such positive identification 38 and hence,
even if it were true that he was not a member of the kwaknit gang, his participation in the
killing has been proven beyond reasonable doubt. Added to this is the fact that Toring
himself in his sworn statement before the police pointed to him as the source of the
knife. 39 Verily, Toting could not have implicated him because of the incomprehensible
reason that a case had been filed against Toring before the barangay brigade.
Pursuant to Article 52 of the Revised Penal Code, as an accomplice by his previous act of
supplying Toring the death weapon, Diosdado Berdon should be meted the penalty
of prision mayor maximum to reclusion temporalmedium which is the penalty next lower in
degree to reclusion temporal maximum to death, the penalty prescribed for murder by
Article 248 (Article 6 [3]). There being no mitigating or aggravating circumstances, the
penalty should be in its medium period or reclusion temporal minimum (Article 64 [1]).
Applying the Indeterminate Sentence Law, the minimum penalty should be taken from
prision mayor minimum while the maximum penalty should be within the period of
reclusion temporal minimum.
With regards to Carmelo Berdin, his culpability as an accessory to the murder has not
been proven beyond reasonable doubt. The fact that he knew where Toring hid the knife
does not imply that he concealed it to prevent its discovery (Article 19 [2]). There simply is
no proof to that effect. On the contrary, Luis Toring in his sworn statement and testimony
during the trial testified that after stabbing the victim, he ran away and went to his house to
hide the murder weapon. Being a close friend of Toring and a frequent visitor to the latter's
house, it is not impossible for Carmelo Berdin to know where Toring hid his knives.
Significantly, Carmelo readily acceded to the request of police officers to lead them to the
place where Toring kept the knife. He willingly retrieved it and surrendered it to the police,
a behavior we find inconsistent with guilt.

WHEREFORE, the decision of the lower court is hereby affirmed insofar as it convicts Luis
Toring as principal in the murder of Samuel Augusto and Diosdado Berdon as an
accomplice thereto.

The lower court's decision is modified as follows:

(a) Luis Toring shall be imposed the indeterminate penalty of six (6) years of prision
correccional maximum as minimum to twelve (12) years of prision mayor maximum as
maximum;

(b) Diosdado Berdon shall suffer the indeterminate penalty of six (6) years and one (1) day
of prision mayorminimum as minimum to twelve (12) years and one (1) day of reclusion
temporal minimum as maximum;

(c) Carmelo Berdin is acquitted as an accessory to the murder of Samuel Augusto, and

(d) Luis Toring and Diosdado Berdon shall jointly and severally pay the heirs of Samuel
Augusto an indemnity of thirty thousand pesos (P30,000.00). Costs against appellants
Toring and Berdon.

SO ORDERED.
G.R. No. 149275. September 27, 2004]
VICKY C. TY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
TINGA, J.:
Petitioner Vicky C. Ty (Ty) filed the instant Petition for Review under Rule 45, seeking to
set aside the Decision[1] of the Court of Appeals Eighth Division in CA-G.R. CR No. 20995,
promulgated on 31 July 2001. The Decision affirmed with modification the judgment of the
Regional Trial Court (RTC) of Manila, Branch 19, dated 21 April 1997, finding her guilty of
seven (7) counts of violation of Batas Pambansa Blg. 22[2] (B.P. 22), otherwise known as
the Bouncing Checks Law.
This case stemmed from the filing of seven (7) Informations for violation of B.P. 22 against
Ty before the RTC of Manila. The Informations were docketed as Criminal Cases No. 93-
130459 to No. 93-130465. The accusatory portion of the Information in Criminal Case No.
93-130465 reads as follows:
That on or about May 30, 1993, in the City of Manila, Philippines, the said accused did
then and there willfully, unlawfully and feloniously make or draw and issue to Manila
Doctors Hospital to apply on account or for value to Editha L. Vecino Check No. Metrobank
487712 dated May 30, 1993 payable to Manila Doctors Hospital in the amount
of P30,000.00, said accused well knowing that at the time of issue she did not have
sufficient funds in or credit with the drawee bank for payment of such check in full upon its
presentment, which check when presented for payment within ninety (90) days from the
date hereof, was subsequently dishonored by the drawee bank for Account Closed and
despite receipt of notice of such dishonor, said accused failed to pay said Manila Doctors
Hospital the amount of the check or to make arrangement for full payment of the same
within five (5) banking days after receiving said notice.
Contrary to law.[3]
The other Informations are similarly worded except for the number of the checks and dates
of issue. The data are hereunder itemized as follows:
Criminal Case No. Check No. Postdated Amount
93-130459 487710 30 March 1993 30,000.00
93-130460 487711 30 April 1993 P30,000.00
93-130461 487709 01 March 1993 P30,000.00
93-130462 487707 30 December 1992 P30,000.00
93-130463 487706 30 November 1992 P30,000.00
93-130464 487708 30 January 1993 P30,000.00
93-130465 487712 30 May 1993 P30,000.00[4]
The cases were consolidated and jointly tried. At her arraignment, Ty pleaded not guilty.[5]
The evidence for the prosecution shows that Tys mother Chua Lao So Un was confined at
the Manila Doctors Hospital (hospital) from 30 October 1990 until 4 June 1992. Being the
patients daughter, Ty signed the Acknowledgment of Responsibility for Payment in the
Contract of Admission dated 30 October 1990.[6] As of 4 June 1992, the Statement of
Account[7]shows the total liability of the mother in the amount of P657,182.40. Tys sister,
Judy Chua, was also confined at the hospital from 13 May 1991 until 2 May 1992, incurring
hospital bills in the amount of P418,410.55.[8] The total hospital bills of the two patients
amounted to P1,075,592.95. On 5 June 1992, Ty executed a promissory note wherein she
assumed payment of the obligation in installments. [9] To assure payment of the obligation,
she drew several postdated checks against Metrobank payable to the hospital. The seven
(7) checks, each covering the amount of P30,000.00, were all deposited on their due
dates. But they were all dishonored by the drawee bank and returned unpaid to the
hospital due to insufficiency of funds, with the Account Closed advice. Soon thereafter, the
complainant hospital sent demand letters to Ty by registered mail. As the demand letters
were not heeded, complainant filed the seven (7) Informations subject of the instant case.
[10]
For her defense, Ty claimed that she issued the checks because of an uncontrollable fear
of a greater injury. She averred that she was forced to issue the checks to obtain release
for her mother whom the hospital inhumanely and harshly treated and would not discharge
unless the hospital bills are paid. She alleged that her mother was deprived of room
facilities, such as the air-condition unit, refrigerator and television set, and subject to
inconveniences such as the cutting off of the telephone line, late delivery of her mothers
food and refusal to change the latters gown and bedsheets. She also bewailed the
hospitals suspending medical treatment of her mother. The debasing treatment, she
pointed out, so affected her mothers mental, psychological and physical health that the
latter contemplated suicide if she would not be discharged from the hospital. Fearing the
worst for her mother, and to comply with the demands of the hospital, Ty was compelled to
sign a promissory note, open an account with Metrobank and issue the checks to effect her
mothers immediate discharge.[11]
Giving full faith and credence to the evidence offered by the prosecution, the trial court
found that Ty issued the checks subject of the case in payment of the hospital bills of her
mother and rejected the theory of the defense. [12] Thus, on 21 April 1997, the trial court
rendered a Decision finding Ty guilty of seven (7) counts of violation of B.P. 22 and
sentencing her to a prison term. The dispositive part of the Decision reads:
CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7) checks in
payment of a valid obligation, which turned unfounded on their respective dates of maturity,
is found guilty of seven (7) counts of violations of Batas Pambansa Blg. 22, and is hereby
sentenced to suffer the penalty of imprisonment of SIX MONTHS per count or a total of
forty-two (42) months.
SO ORDERED.[13]
Ty interposed an appeal from the Decision of the trial court. Before the Court of Appeals,
Ty reiterated her defense that she issued the checks under the impulse of an
uncontrollable fear of a greater injury or in avoidance of a greater evil or injury. She also
argued that the trial court erred in finding her guilty when evidence showed there was
absence of valuable consideration for the issuance of the checks and the payee had
knowledge of the insufficiency of funds in the account. She protested that the trial court
should not have applied the law mechanically, without due regard to the principles of
justice and equity.[14]
In its Decision dated 31 July 2001, the appellate court affirmed the judgment of the trial
court with modification. It set aside the penalty of imprisonment and instead sentenced Ty
to pay a fine of sixty thousand pesos (P60,000.00) equivalent to double the amount of the
check, in each case.[15]
In its assailed Decision, the Court of Appeals rejected Tys defenses of involuntariness in
the issuance of the checks and the hospitals knowledge of her checking accounts lack of
funds.It held that B.P. 22 makes the mere act of issuing a worthless check punishable as a
special offense, it being a malum prohibitum. What the law punishes is the issuance of a
bouncing check and not the purpose for which it was issued nor the terms and conditions
relating to its issuance.[16]
Neither was the Court of Appeals convinced that there was no valuable consideration for
the issuance of the checks as they were issued in payment of the hospital bills of Tys
mother.[17]
In sentencing Ty to pay a fine instead of a prison term, the appellate court applied the case
of Vaca v. Court of Appeals[18] wherein this Court declared that in determining the penalty
imposed for violation of B.P. 22, the philosophy underlying the Indeterminate Sentence
Law should be observed, i.e., redeeming valuable human material and preventing
unnecessary deprivation of personal liberty and economic usefulness, with due regard to
the protection of the social order.[19]
Petitioner now comes to this Court basically alleging the same issues raised before the
Court of Appeals. More specifically, she ascribed errors to the appellate court based on the
following grounds:
A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER WAS FORCED
TO OR COMPELLED IN THE OPENING OF THE ACCOUNT AND THE ISSUANCE OF
THE SUBJECT CHECKS.
B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF AN UNCONTROLLABLE
FEAR OF A GREATER INJURY OR IN AVOIDANCE OF A GREATER EVIL OR INJURY.
C. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE OF VALUABLE
CONSIDERATION IN THE ISSUANCE OFTHE SUBJECT CHECKS.
D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE CHECKS WAS FULLY
AWARE OF THE LACK OF FUNDS IN THE ACCOUNT.
E. THE HONORABLE COURT OF APPEALS, AS WELL AS THE HONORABLE TRIAL
COURT [,] SHOULD NOT HAVE APPLIED CRIMINAL LAW MECHANICALLY, WITHOUT
DUE REGARD TO THE PRINCIPLES OF JUSTICE AND EQUITY.
In its Memorandum,[20] the Office of the Solicitor General (OSG), citing jurisprudence,
contends that a check issued as an evidence of debt, though not intended to be presented
for payment, has the same effect as an ordinary check; hence, it falls within the ambit of
B.P. 22. And when a check is presented for payment, the drawee bank will generally
accept the same, regardless of whether it was issued in payment of an obligation or merely
to guarantee said obligation. What the law punishes is the issuance of a bouncing check,
not the purpose for which it was issued nor the terms and conditions relating to its
issuance. The mere act of issuing a worthless check is malum prohibitum.[21]
We find the petition to be without merit and accordingly sustain Tys conviction.
Well-settled is the rule that the factual findings and conclusions of the trial court and the
Court of Appeals are entitled to great weight and respect, and will not be disturbed on
appeal in the absence of any clear showing that the trial court overlooked certain facts or
circumstances which would substantially affect the disposition of the case.[22] Jurisdiction of
this Court over cases elevated from the Court of Appeals is limited to reviewing or revising
errors of law ascribed to the Court of Appeals whose factual findings are conclusive, and
carry even more weight when said court affirms the findings of the trial court, absent any
showing that the findings are totally devoid of support in the record or that they are so
glaringly erroneous as to constitute serious abuse of discretion.[23]
In the instant case, the Court discerns no compelling reason to reverse the factual findings
arrived at by the trial court and affirmed by the Court of Appeals.
Ty does not deny having issued the seven (7) checks subject of this case. She, however,
claims that the issuance of the checks was under the impulse of an uncontrollable fear of a
greater injury or in avoidance of a greater evil or injury. She would also have the Court
believe that there was no valuable consideration in the issuance of the checks.
However, except for the defenses claim of uncontrollable fear of a greater injury or
avoidance of a greater evil or injury, all the grounds raised involve factual issues which are
best determined by the trial court. And, as previously intimated, the trial court had in fact
discarded the theory of the defense and rendered judgment accordingly.
Moreover, these arguments are a mere rehash of arguments unsuccessfully raised before
the trial court and the Court of Appeals. They likewise put to issue factual questions
already passed upon twice below, rather than questions of law appropriate for review
under a Rule 45 petition.
The only question of law raisedwhether the defense of uncontrollable fear is tenable to
warrant her exemption from criminal liabilityhas to be resolved in the negative. For this
exempting circumstance to be invoked successfully, the following requisites must concur:
(1) existence of an uncontrollable fear; (2) the fear must be real and imminent; and (3) the
fear of an injury is greater than or at least equal to that committed.[24]
It must appear that the threat that caused the uncontrollable fear is of such gravity and
imminence that the ordinary man would have succumbed to it. [25] It should be based on a
real, imminent or reasonable fear for ones life or limb. [26] A mere threat of a future injury is
not enough. It should not be speculative, fanciful, or remote. [27] A person invoking
uncontrollable fear must show therefore that the compulsion was such that it reduced him
to a mere instrument acting not only without will but against his will as well. [28] It must be of
such character as to leave no opportunity to the accused for escape.[29]
In this case, far from it, the fear, if any, harbored by Ty was not real and imminent. Ty
claims that she was compelled to issue the checksa condition the hospital allegedly
demanded of her before her mother could be dischargedfor fear that her mothers health
might deteriorate further due to the inhumane treatment of the hospital or worse, her
mother might commit suicide. This is speculative fear; it is not the uncontrollable fear
contemplated by law.
To begin with, there was no showing that the mothers illness was so life-threatening such
that her continued stay in the hospital suffering all its alleged unethical treatment would
induce a well-grounded apprehension of her death. Secondly, it is not the laws intent to say
that any fear exempts one from criminal liability much less petitioners flimsy fear that her
mother might commit suicide. In other words, the fear she invokes was not impending or
insuperable as to deprive her of all volition and to make her a mere instrument without will,
moved exclusively by the hospitals threats or demands.
Ty has also failed to convince the Court that she was left with no choice but to commit a
crime. She did not take advantage of the many opportunities available to her to avoid
committing one. By her very own words, she admitted that the collateral or security the
hospital required prior to the discharge of her mother may be in the form of postdated
checks or jewelry.[30] And if indeed she was coerced to open an account with the bank and
issue the checks, she had all the opportunity to leave the scene to avoid involvement.
Moreover, petitioner had sufficient knowledge that the issuance of checks without funds
may result in a violation of B.P. 22. She even testified that her counsel advised her not to
open a current account nor issue postdated checks because the moment I will not have
funds it will be a big problem.[31] Besides, apart from petitioners bare assertion, the record
is bereft of any evidence to corroborate and bolster her claim that she was compelled or
coerced to cooperate with and give in to the hospitals demands.
Ty likewise suggests in the prefatory statement of her Petition and Memorandum that the
justifying circumstance of state of necessity under par. 4, Art. 11 of the Revised Penal
Code may find application in this case.
We do not agree. The law prescribes the presence of three requisites to exempt the actor
from liability under this paragraph: (1) that the evil sought to be avoided actually exists; (2)
that the injury feared be greater than the one done to avoid it; (3) that there be no other
practical and less harmful means of preventing it.[32]
In the instant case, the evil sought to be avoided is merely expected or anticipated. If the
evil sought to be avoided is merely expected or anticipated or may happen in the future,
this defense is not applicable.[33] Ty could have taken advantage of an available option to
avoid committing a crime. By her own admission, she had the choice to give jewelry or
other forms of security instead of postdated checks to secure her obligation.
Moreover, for the defense of state of necessity to be availing, the greater injury feared
should not have been brought about by the negligence or imprudence, more so, the willful
inaction of the actor.[34] In this case, the issuance of the bounced checks was brought about
by Tys own failure to pay her mothers hospital bills.
The Court also thinks it rather odd that Ty has chosen the exempting circumstance of
uncontrollable fear and the justifying circumstance of state of necessity to absolve her of
liability. It would not have been half as bizarre had Ty been able to prove that the issuance
of the bounced checks was done without her full volition. Under the circumstances,
however, it is quite clear that neither uncontrollable fear nor avoidance of a greater evil or
injury prompted the issuance of the bounced checks.
Parenthetically, the findings of fact in the Decision of the trial court in the Civil Case[35] for
damages filed by Tys mother against the hospital is wholly irrelevant for purposes of
disposing the case at bench. While the findings therein may establish a claim for damages
which, we may add, need only be supported by a preponderance of evidence, it does not
necessarily engender reasonable doubt as to free Ty from liability.
As to the issue of consideration, it is presumed, upon issuance of the checks, in the
absence of evidence to the contrary, that the same was issued for valuable consideration.
[36]
Section 24[37] of the Negotiable Instruments Law creates a presumption that every party
to an instrument acquired the same for a consideration [38] or for value.[39] In alleging
otherwise, Ty has the onus to prove that the checks were issued without
consideration. She must present convincing evidence to overthrow the presumption.
A scrutiny of the records reveals that petitioner failed to discharge her burden of
proof. Valuable consideration may in general terms, be said to consist either in some right,
interest, profit, or benefit accruing to the party who makes the contract, or some
forbearance, detriment, loss or some responsibility, to act, or labor, or service given,
suffered or undertaken by the other aide. Simply defined, valuable consideration means an
obligation to give, to do, or not to do in favor of the party who makes the contract, such as
the maker or indorser.[40]
In this case, Tys mother and sister availed of the services and the facilities of the
hospital. For the care given to her kin, Ty had a legitimate obligation to pay the hospital by
virtue of her relationship with them and by force of her signature on her mothers Contract
of Admission acknowledging responsibility for payment, and on the promissory note she
executed in favor of the hospital.
Anent Tys claim that the obligation to pay the hospital bills was not her personal obligation
because she was not the patient, and therefore there was no consideration for the checks,
the case of Bridges v. Vann, et al.[41] tells us that it is no defense to an action on a
promissory note for the maker to say that there was no consideration which was beneficial
to him personally; it is sufficient if the consideration was a benefit conferred upon a third
person, or a detriment suffered by the promisee, at the instance of the promissor. It is
enough if the obligee foregoes some right or privilege or suffers some detriment and the
release and extinguishment of the original obligation of George Vann, Sr., for that of
appellants meets the requirement.Appellee accepted one debtor in place of another and
gave up a valid, subsisting obligation for the note executed by the appellants. This, of
itself, is sufficient consideration for the new notes.
At any rate, the law punishes the mere act of issuing a bouncing check, not the purpose for
which it was issued nor the terms and conditions relating to its issuance. [42] B.P. 22 does
not make any distinction as to whether the checks within its contemplation are issued in
payment of an obligation or to merely guarantee the obligation.[43] The thrust of the law is to
prohibit the making of worthless checks and putting them into circulation. [44] As this Court
held in Lim v. People of the Philippines,[45] what is primordial is that such issued checks
were worthless and the fact of its worthlessness is known to the appellant at the time of
their issuance, a required element under B.P. Blg. 22.
The law itself creates a prima facie presumption of knowledge of insufficiency of
funds. Section 2 of B.P. 22 provides:
Section 2. Evidence of knowledge of insufficient funds. - The making, drawing and
issuance of a check payment of which is refused by the drawee bank because of
insufficient funds in or credit with such bank, when presented within ninety (90) days from
the date of the check, shall be prima facie evidence of knowledge of such insufficiency of
funds or credit unless such maker or drawer pays the holder thereof the amount due
thereon, or makes arrangements for payment in full by the drawee of such check within
five (5) banking days after receiving notice that such check has not been paid by the
drawee.
Such knowledge is legally presumed from the dishonor of the checks for insufficiency of
funds.[46] If not rebutted, it suffices to sustain a conviction.[47]
Petitioner likewise opines that the payee was aware of the fact that she did not have
sufficient funds with the drawee bank and such knowledge necessarily exonerates her
liability.
The knowledge of the payee of the insufficiency or lack of funds of the drawer with the
drawee bank is immaterial as deceit is not an essential element of an offense penalized by
B.P. 22. The gravamen of the offense is the issuance of a bad check, hence, malice and
intent in the issuance thereof is inconsequential.[48]
In addition, Ty invokes our ruling in Magno v. Court of Appeals[49] wherein this Court
inquired into the true nature of transaction between the drawer and the payee and finally
acquitted the accused, to persuade the Court that the circumstances surrounding her case
deserve special attention and do not warrant a strict and mechanical application of the law.
Petitioners reliance on the case is misplaced. The material operative facts therein
obtaining are different from those established in the instant petition. In the 1992 case, the
bounced checks were issued to cover a warranty deposit in a lease contract, where the
lessor-supplier was also the financier of the deposit. It was a modus operandi whereby the
supplier was able to sell or lease the goods while privately financing those in desperate
need so they may be accommodated. The maker of the check thus became an unwilling
victim of a lease agreement under the guise of a lease-purchase agreement. The maker
did not benefit at all from the deposit, since the checks were used as collateral for an
accommodation and not to cover the receipt of an actual account or credit for value.
In the case at bar, the checks were issued to cover the receipt of an actual account or for
value. Substantial evidence, as found by the trial court and Court of Appeals, has
established that the checks were issued in payment of the hospital bills of Tys mother.
Finally, we agree with the Court of Appeals in deleting the penalty of imprisonment, absent
any proof that petitioner was not a first-time offender nor that she acted in bad
faith.Administrative Circular 12-2000,[50] adopting the rulings in Vaca v. Court of
Appeals[51] and Lim v. People,[52] authorizes the non-imposition of the penalty of
imprisonment in B.P. 22 cases subject to certain conditions. However, the Court resolves to
modify the penalty in view of Administrative Circular 13-2001 [53] which clarified
Administrative 12-2000. It is stated therein:
The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove
imprisonment as an alternative penalty, but to lay down a rule of preference in the
application of the penalties provided for in B.P. Blg. 22.
Thus, Administrative Circular 12-2000 establishes a rule of preference in the application of
the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense
and the offender clearly indicate good faith or a clear mistake of fact without taint of
negligence, the imposition of a fine alone should be considered as the more appropriate
penalty. Needless to say, the determination of whether circumstances warrant the
imposition of a fine alone rests solely upon the Judge. Should the judge decide that
imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought
not be deemed a hindrance.
It is therefore understood that: (1) Administrative Circular 12-2000 does not remove
imprisonment as an alternative penalty for violations of B.P. 22; (2) the judges concerned
may, in the exercise of sound discretion, and taking into consideration the peculiar
circumstances of each case, determine whether the imposition of a fine alone would best
serve the interests of justice, or whether forbearing to impose imprisonment would
depreciate the seriousness of the offense, work violence on the social order, or otherwise
be contrary to the imperatives of justice; (3) should only a fine be imposed and the
accused unable to pay the fine, there is no legal obstacle to the application of the Revised
Penal Code provisions on subsidiary imprisonment.[54]
WHEREFORE, the instant Petition is DENIED and the assailed Decision of the Court of
Appeals, dated 31 July 2001, finding petitioner Vicky C. Ty GUILTY of violating Batas
Pambansa Bilang 22 is AFFIRMED with MODIFICATIONS. Petitioner Vicky C. Ty is
ORDERED to pay a FINE equivalent to double the amount of each dishonored check
subject of the seven cases at bar with subsidiary imprisonment in case of insolvency in
accordance with Article 39 of the Revised Penal Code. She is also ordered to pay private
complainant, Manila Doctors Hospital, the amount of Two Hundred Ten Thousand Pesos
(P210,000.00) representing the total amount of the dishonored checks. Costs against the
petitioner.
SO ORDERED.
G.R. Nos. 120744-46 June 25, 2012
SALVADOR YAPYUCO y ENRIQUEZ, Petitioner,
vs.
HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE
PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 122677
MARIO D. REYES, ANDRES S. REYES and VIRGILIO A. MANGUERRA, Petitioners,
vs.
HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE
PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 122776
GERVACIO B. CUNANAN, JR. and ERNESTO PUNO, Petitioners,
vs.
HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
PERALTA, J.:
Law enforcers thrust their lives in unimaginable zones of peril. Yet resort to wanton
violence is never justified when their duty could be performed otherwise. A "shoot first,
think later" disposition occupies no decent place in a civilized society. Never has homicide
or murder been a function of law enforcement. The public peace is never predicated on the
cost of human life.
These are petitions for review on certiorari under Rule 45 of the Rules of Court assailing
the June 30, 1995 Decision1 of the Sandiganbayan in Criminal Case Nos. 16612, 16613
and 16614 cases for murder, frustrated murder and multiple counts of attempted murder,
respectively. The cases are predicated on a shooting incident on April 5, 1988 in Barangay
Quebiawan, San Fernando, Pampanga which caused the death of Leodevince Licup
(Licup) and injured Noel Villanueva (Villanueva). Accused were petitioners Salvador
Yapyuco, Jr. (Yapyuco) and Generoso Cunanan, Jr. (Cunanan) and Ernesto Puno (Puno)
who were members of the Integrated National Police (INP) 2 stationed at the Sindalan
Substation in San Fernando, Pampanga; Jose Pamintuan (Pamintuan) and Mario Reyes,
who were barangay captains of Quebiawan and Del Carmen, respectively; Ernesto Puno,
Andres Reyes and Virgilio Manguerra (Manguerra), Carlos David, Ruben Lugtu, Moises
Lacson (Lacson), Renato Yu, Jaime Pabalan (Pabalan) and Carlos David (David), who
were either members of the Civil Home Defense Force (CHDF) or civilian volunteer officers
in Barangays Quebiawan, Del Carmen and Telebastagan. They were all charged with
murder, multiple attempted murder and frustrated murder in three Informations, the
inculpatory portions of which read:
Criminal Case No. 16612:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando,
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod and
members of the Civil Home Defense Force (CHDF), respectively, confederating and
mutually helping one another, and while responding to information about the presence of
armed men in said barangay and conducting surveillance thereof, thus committing the
offense in relation to their office, did then and there, with treachery and evident
premeditation, willfully, unlawfully and feloniously, and with deliberate intent to take the life
of Leodevince S. Licup, attack the latter with automatic weapons by firing directly at the
green Toyota Tamaraw jitney ridden by Leodevince S. Licup and inflicting multiple gunshot
wounds which are necessarily mortal on the different parts of the body, thereby causing the
direct and immediate death of the latter.
CONTRARY TO LAW.3
Criminal Case No. 16613:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando,
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod and
members of the Civil Home Defense Force (CHDF), respectively, confederating and
mutually helping one another, and while responding to information about the presence of
armed men in said barangay and conducting surveillance thereof, thus committing the
offense in relation to their office, did then and there, with treachery and evident
premeditation, willfully, unlawfully and feloniously, and with intent to kill, attack Eduardo S.
Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V. Panlican with automatic
weapons by firing directly at the green Toyota Tamaraw jitney ridden by said Eduardo S.
Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V. Panlican, having
commenced the commission of murder directly by overt acts of execution which should
produce the murder by reason of some cause or accident other than their own
spontaneous desistance.
CONTRARY TO LAW.4
Criminal Case No. 16614:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando,
Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, all public officers, being then policemen, Brgy. Captains, Brgy. Tanod and
members of the Civil Home Defense Force (CHDF), respectively, confederating and
mutually helping one another, and while responding to information about the presence of
armed men in said barangay and conducting surveillance thereof, thus committing the
offense in relation to their office, did then and there, with treachery and evident
premeditation, willfully, unlawfully and feloniously, and with intent of taking the life of Noel
C. Villanueva, attack the latter with automatic weapons by firing directly at the green
Toyota Tamaraw jitney driven by said Noel C. Villanueva and inflicting multiple gunshot
wounds which are necessarily mortal and having performed all the acts which would have
produced the crime of murder, but which did not, by reason of causes independent of the
defendants will, namely, the able and timely medical assistance given to said Noel C.
Villanueva, which prevented his death.
CONTRARY TO LAW.5
Hailed to court on April 30, 1991 after having voluntarily surrendered to the authorities, 6 the
accused except Pabalan who died earlier on June 12, 1990,7 and Yapyuco who was then
allegedly indisposed8 entered individual pleas of not guilty.9 A month later, Yapyuco
voluntarily surrendered to the authorities, and at his arraignment likewise entered a
negative plea.10 In the meantime, Mario Reyes, Andres Reyes, David, Lugtu, Lacson, Yu
and Manguerra jointly filed a Motion for Bail relative to Criminal Case No. 16612. 11 Said
motion was heard on the premise, as previously agreed upon by both the prosecution and
the defense, that these cases would be jointly tried and that the evidence adduced at said
hearing would automatically constitute evidence at the trial on the merits. 12 On May 10,
1991, the Sandiganbayan granted bail in Criminal Case No. 16612. 13Yapyuco likewise
applied for bail on May 15, 1991 and the same was also granted on May 21,
1991.14 Pamintuan died on November 21, 1992,15 and accordingly, the charges against him
were dismissed.
At the July 4, 1991 pre-trial conference, the remaining accused waived the pre-trial
inquest. 16 Hence, joint trial on the merits ensued and picked up from where the
presentation of evidence left off at the hearing on the bail applications.
The prosecution established that in the evening of April 5, 1988, Villanueva, Flores, Calma,
De Vera, Panlican and Licup were at the residence of Salangsang as guests at the barrio
fiesta celebrations between 5:00 and 7:30 p.m.. The company decided to leave at around
7:30 p.m., shortly after the religious procession had passed. As they were all inebriated,
Salangsang reminded Villanueva, who was on the wheel, to drive carefully and watch out
for potholes and open canals on the road. With Licup in the passenger seat and the rest of
his companions at the back of his Tamaraw jeepney, Villanueva allegedly proceeded at 5-
10 kph with headlights dimmed. Suddenly, as they were approaching a curve on the road,
they met a burst of gunfire and instantly, Villanueva and Licup were both wounded and
bleeding profusely.17
Both Flores and Villanueva, contrary to what the defense would claim, allegedly did not
see any one on the road flag them down. 18 In open court, Flores executed a
sketch19 depicting the relative location of the Tamaraw jeepney on the road, the residence
of Salangsang where they had come from and the house situated on the right side of the
road right after the curve where the jeepney had taken a left turn; he identified said house
to be that of a certain Lenlen Naron where the gunmen allegedly took post and opened fire
at him and his companions. He could not tell how many firearms were used. He recounted
that after the shooting, he, unaware that Licup and Villanueva were wounded, jumped out
of the jeepney when he saw from behind them Pamintuan emerging from the yard of
Narons house. Frantic and shaken, he instantaneously introduced himself and his
companions to be employees of San Miguel Corporation but instead, Pamintuan reproved
them for not stopping when flagged. At this point, he was distracted when Villanueva cried
out and told him to summon Salangsang for help as he (Villanueva) and Licup were
wounded. He dashed back to Salangsangs house as instructed and, returning to the
scene, he observed that petitioner Yu was also there, and Villanueva and Licup were being
loaded into a Sarao jeepney to be taken to the hospital. 20 This was corroborated by
Villanueva who stated that as soon as the firing had ceased, two armed men, together with
Pamintuan, approached them and transferred him and Licup to another jeepney and taken
to the nearby St. Francis Hospital.21
Flores remembered that there were two sudden bursts of gunfire which very rapidly
succeeded each other, and that they were given no warning shot at all contrary to what the
defense would say.22 He professed that he, together with his co-passengers, were also
aboard the Sarao jeepney on its way to the hospital and inside it he observed two men,
each holding long firearms, seated beside the driver. He continued that as soon as he and
his companions had been dropped off at the hospital, the driver of the Sarao jeepney
immediately drove off together with his two armed companions.23 He further narrated that
the day after the shooting, he brought Licup to the Makati Medical Center where the latter
expired on April 7, 1988.24 He claimed that all the accused in the case had not been known
to him prior to the incident, except for Pamintuan whom he identified to be his wifes uncle
and with whom he denied having had any rift nor with the other accused for that matter,
which would have otherwise inspired ill motives. 25 He claimed the bullet holes on the
Tamaraw jeepney were on the passenger side and that there were no other bullet holes at
the back or in any other portion of the vehicle.26
Salangsang, also an electrician at the San Miguel Corporation plant, affirmed the presence
of his companions at his residence on the subject date and time, and corroborated
Villanuevas and Flores narration of the events immediately preceding the shooting. He
recounted that after seeing off his guests shortly after the procession had passed his
house and reminding them to proceed carefully on the pothole-studded roads, he was
alarmed when moments later, he heard a volley of gunfire from a distance which was
shortly followed by Flores frantic call for help. He immediately proceeded to the scene on
his bicycle and saw Pamintuan by the lamppost just outside the gate of Narons house
where, inside, he noticed a congregation of more or less six people whom he could not
recognize. 27 At this point, he witnessed Licup and Villanueva being loaded into another
jeepney occupied by three men who appeared to be in uniform. He then retrieved the keys
of the Tamaraw jeepney from Villanueva and decided to deliver it to his mothers house,
but before driving off, he allegedly caught a glance of Mario Reyes on the wheel of an
owner-type jeepney idling in front of the ill-fated Tamaraw; it was the same jeepney which
he remembered to be that frequently used by Yapyuco in patrolling the barangay. He
claimed he spent the night at his mothers house and in the morning, a policeman came
looking for him with whom, however, he was not able to talk.28
Salangsang observed that the scene of the incident was dark because the electric post in
front of Narons house was strangely not lit when he arrived, and that none of the
neighboring houses was illuminated. He admitted his uncertainty as to whether it was
Yapyucos group or the group of Pamintuan that brought his injured companions to the
hospital, but he could tell with certainty that it was the Sarao jeepney previously identified
by Villanueva and Flores that brought his injured companions to the hospital.29
Daisy Dabor, forensic chemist at the Philippine National Police Crime Laboratory in Camp
Olivas, affirmed that she had previously examined the firearms suspected to have been
used by petitioners in the shooting and found them positive for gunpowder residue. She
could not, however, determine exactly when the firearms were discharged; neither could
she tell how many firearms were discharged that night nor the relative positions of the
gunmen. She admitted having declined to administer paraffin test on petitioners and on the
other accused because the opportunity therefor came only 72 hours after the incident. She
affirmed having also examined the Tamaraw jeepney and found eleven (11) bullet holes on
it, most of which had punctured the door at the passenger side of the vehicle at oblique
and perpendicular directions. She explained, rather inconclusively, that the bullets that hit
at an angle might have been fired while the jeepney was either at a standstill or moving
forward in a straight line, or gradually making a turn at the curve on the road. 30 Additionally,
Silvestre Lapitan, administrative and supply officer of the INP-Pampanga Provincial
Command tasked with the issuance of firearms and ammunitions to members of the local
police force and CHDF and CVO members, identified in court the memorandum receipts
for the firearms he had issued to Mario Reyes, Andres Reyes, Manguerra, Pabalan and
Yapyuco.31
Dr. Pedro Solis, Jr., medico-legal consultant at the Makati Medical Center, examined the
injuries of Villanueva and Licup on April 6, 1988. He recovered multiple metal shrapnel
from the occipital region of Villanuevas head as well as from the posterior aspect of his
chest; he noted nothing serious in these wounds in that the incapacity would last between
10 and 30 days only. He also located a bullet wound on the front lateral portion of the right
thigh, and he theorized that this wound would be caused by a firearm discharged in front of
the victim, assuming the assailant and the victim were both standing upright on the ground
and the firearm was fired from the level of the assailants waist; but if the victim was
seated, the position of his thigh must be horizontal so that with the shot coming from his
front, the trajectory of the bullet would be upward. He hypothesized that if the shot would
come behind Villanueva, the bullet would enter the thigh of the seated victim and exit at a
lower level.32
With respect to Licup, Dr. Solis declared he was still alive when examined. On the patient,
he noted a lacerated wound at the right temporal region of the head one consistent with
being hit by a hard and blunt object and not a bullet. He noted three (3) gunshot wounds
the locations of which suggested that Licup was upright when fired upon from the front:
one is a through-and-through wound in the middle lateral aspect of the middle portion of
the right leg; another, through-and-through wound at the middle portion of the right
forearm; and third one, a wound in the abdomen which critically and fatally involved the
stomach and the intestines. He hypothesized that if Licup was seated in the passenger
seat as claimed, his right leg must have been exposed and the assailant must have been
in front of him holding the gun slightly higher than the level of the bullet entry in the leg. He
found that the wound in the abdomen had entered from the left side and crossed over to
and exited at the right, which suggested that the gunman must have been positioned at
Licups left side. He explained that if this wound had been inflicted ahead of that in the
forearm, then the former must have been fired after Licup had changed his position as a
reaction to the first bullet that hit him. He said that the wound on the leg must have been
caused by a bullet fired at the victims back and hit the jeepney at a downward angle
without hitting any hard surface prior.33
Dr. Solis believed that the wound on Licups right forearm must have been caused by a
bullet fired from the front but slightly obliquely to the right of the victim. Hypothesizing, he
held the improbability of Licup being hit on the abdomen, considering that he might have
changed position following the infliction of the other wounds, unless there was more than
one assailant who fired multiple shots from either side of the Tamaraw jeepney; however,
he proceeded to rule out the possibility of Licup having changed position especially if the
gunfire was delivered very rapidly. He could not tell which of Licups three wounds was first
inflicted, yet it could be that the bullet to the abdomen was delivered ahead of the others
because it would have caused Licup to lean forward and stoop down with his head lying
low and steady.34
Finally, Atty. Victor Bartolome, hearing officer at the National Police Commission
(NAPOLCOM) affirmed that the accused police officers Yapyuco, Cunanan and Puno had
been administratively charged with and tried for gross misconduct as a consequence of the
subject shooting incident and that he had in fact conducted investigations thereon
sometime in 1989 and 1990 which culminated in their dismissal from service. 35 Dolly
Porquerio, stenographer at the NAPOLCOM, testified that at the hearing of the
administrative case, Yapyuco authenticated the report on the shooting incident dated April
5, 1988 which he had previously prepared at his office. This, according to her, together
with the sketch showing the relative position of the responding law enforcers and the
Tamaraw jeepney at the scene of the incident, had been forwarded to the NAPOLCOM
Central Office for consideration.36 The Sandiganbayan, in fact, subpoenaed these
documents together with the joint counter-affidavits which had been submitted in that case
by Yapyuco, Cunanan and Puno.
Of all the accused, only Yapyuco took the stand for the defense. He identified himself as
the commander of the Sindalan Police Substation in San Fernando, Pampanga and the
superior officer of petitioners Cunanan and Puno and of the accused Yu whose jurisdiction
included Barangays Quebiawan and Telebastagan. He narrated that in the afternoon of
April 5, 1988, he and his men were investigating a physical injuries case when Yu suddenly
received a summon for police assistance from David, who supposedly was instructed by
Pamintuan, concerning a reported presence of armed NPA members in Quebiawan.
Yapyuco allegedly called on their main station in San Fernando for reinforcement but at the
time no additional men could be dispatched. Hence, he decided to respond and instructed
his men to put on their uniforms and bring their M-16 rifles with them.37
Yapyuco continued that at the place appointed, he and his group met with Pamintuan who
told him that he had earlier spotted four (4) men carrying long firearms. As if sizing up their
collective strength, Pamintuan allegedly intimated that he and barangay captain Mario
Reyes of nearby Del Carmen had also brought in a number of armed men and that there
were likewise Cafgu members convened at the residence of Naron. Moments later,
Pamintuan announced the approach of his suspects, hence Yapyuco, Cunanan and Puno
took post in the middle of the road at the curve where the Tamaraw jeepney conveying the
victims would make an inevitable turn. As the jeepney came much closer, Pamintuan
announced that it was the target vehicle, so he, with Cunanan and Puno behind him,
allegedly flagged it down and signaled for it to stop. He claimed that instead of stopping,
the jeepney accelerated and swerved to its left. This allegedly inspired him, and his fellow
police officers Cunanan and Puno,38 to fire warning shots but the jeepney continued pacing
forward, hence they were impelled to fire at the tires thereof and instantaneously, gunshots
allegedly came bursting from the direction of Narons house directly at the subject
jeepney.39
Yapyuco recalled that one of the occupants of the jeepney then alighted and exclaimed at
Pamintuan that they were San Miguel Corporation employees. Holding their fire, Yapyuco
and his men then immediately searched the vehicle but found no firearms but instead, two
injured passengers whom they loaded into his jeepney and delivered to nearby St. Francis
Hospital. From there he and his men returned to the scene supposedly to investigate and
look for the people who fired directly at the jeepney. They found no one; the Tamaraw
jeepney was likewise gone.40
Yapyuco explained that the peace and order situation in Barangay Quebiawan at the time
was in bad shape, as in fact there were several law enforcement officers in the area who
had been ambushed supposedly by rebel elements,41 and that he frequently patrolled the
barangay on account of reported sightings of unidentified armed men therein. 42 That night,
he said, his group which responded to the scene were twelve (12) in all, comprised of
Cunanan and Puno from the Sindalan Police Substation, 43 the team composed of
Pamintuan and his men, as well as the team headed by Captain Mario Reyes. He admitted
that all of them, including himself, were armed. 44He denied that they had committed an
ambuscade because otherwise, all the occupants of the Tamaraw jeepney would have
been killed. 45 He said that the shots which directly hit the passenger door of the jeepney
did not come from him or from his fellow police officers but rather from Cafgu members
assembled in the residence of Naron, inasmuch as said shots were fired only when the
jeepney had gone past the spot on the road where they were assembled.46
Furthermore, Yapyuco professed that he had not communicated with any one of the
accused after the incident because he was at the time very confused; yet he did know that
his co-accused had already been investigated by the main police station in San Fernando,
but the inquiries did not include himself, Cunanan and Puno. 47 He admitted an
administrative case against him, Cunanan and Puno at the close of which they had been
ordered dismissed from service; yet on appeal, the decision was reversed and they were
exonerated. He likewise alluded to an investigation independently conducted by their
station commander, S/Supt. Rolando Cinco. 48
S/Supt Rolando Cinco, then Station Commander of the INP in San Fernando, Pampanga
acknowledged the volatility of the peace and order situation in his jurisdiction, where
members of the police force had fallen victims of ambuscade by lawless elements. He said
that he himself has actually conducted investigations on the Pamintuan report that rebel
elements had been trying to infiltrate the employment force of San Miguel Corporation
plant, and that he has accordingly conducted "clearing operations" in sugarcane
plantations in the barangay. He intimated that days prior to the incident, Yapyucos team
had already been alerted of the presence of NPA members in the area. Corroborating
Yapyucos declaration, he confessed having investigated the shooting incident and making
a report on it in which, curiously, was supposedly attached Pamintuans statement referring
to Flores as being "married to a resident of Barangay Quebiawan" and found after
surveillance to be "frequently visited by NPA members." He affirmed having found that
guns were indeed fired that night and that the chief investigator was able to gather bullet
shells from the scene. 49
Cunanan and Puno did not take the witness stand but adopted the testimony of Yapyuco
as well as the latters documentary evidence.50 Mario Reyes, Andres Reyes, Lugtu,
Lacson, Yu and Manguera, waived their right to present evidence and submitted their
memorandum as told.51
The Sandiganbayan reduced the basic issue to whether the accused had acted in the
regular and lawful performance of their duties in the maintenance of peace and order
either as barangay officials and as members of the police and the CHDF, and hence, could
take shelter in the justifying circumstance provided in Article 11 (5) of the Revised Penal
Code; or whether they had deliberately ambushed the victims with the intent of killing
them.52 With the evidence in hand, it found Yapyuco, Cunanan, Puno, Manguera and Mario
and Andres Reyes guilty as co-principals in the separate offense of homicide for the
eventual death of Licup (instead of murder as charged in Criminal Case No. 16612) and of
attempted homicide for the injury sustained by Villanueva (instead of frustrated murder as
charged in Criminal Case No. 16614), and acquitted the rest in those cases. It acquitted all
of them of attempted murder charged in Criminal Case No. 16613 in respect of Flores,
Panlican, De Vera and Calma. The dispositive portion of the June 30, 1995 Joint Decision
reads:
WHEREFORE, judgment is hereby rendered as follows:
I. In Crim. Case No. 16612, accused Salvador Yapyuco y Enriquez, Generoso Cunanan,
Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Andres Reyes y Salangsang
and Virgilio Manguerra y Adona are hereby found GUILTY beyond reasonable doubt as co-
principals in the offense of Homicide, as defined and penalized under Article 249 of the
Revised Penal Code, and crediting all of them with the mitigating circumstance of voluntary
surrender, without any aggravating circumstance present or proven, each of said accused
is hereby sentenced to suffer an indeterminate penalty ranging from SIX (6) YEARS and
ONE (1) DAY of prision correccional, as the minimum, to TWELVE (12) YEARS and ONE
(1) DAY of reclusion temporal, as the maximum; to indemnify, jointly and severally, the
heirs of the deceased victim Leodevince Licup in the amounts of P77,000.00 as actual
damages and P600,000.00 as moral/exemplary damages, and to pay their proportionate
shares of the costs of said action.
II. In Crim. Case No. 16613, for insufficiency of evidence, all the accused charged in the
information, namely, Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y Basco,
Ernesto Puno y Tungol, Mario Reyes y David, Carlos David y Baez, Ruben Lugtu y
Lacson, Moises Lacson y Adona, Renato Yu y Barrera, Andres Reyes y Salangsang and
Virgilio Manguerra y Adona are hereby acquitted of the offense of Multiple Attempted
Murder charged therein, with costs de oficio.
III. In Crim. Case No. 16614, accused Salvador Yapyuco y Enriquez, Generoso Cunanan,
Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Andres Reyes y Salangsang
and Virgilio Manguerra y Adona are hereby found GUILTY beyond reasonable doubt as co-
principals in the offense Attempted Homicide, as defined and penalized under Article 249,
in relation to Article 6, paragraph 3, both of the Revised Penal Code, and crediting them
with the mitigating circumstance of voluntary surrender, without any aggravating
circumstance present or proven, each of said accused is hereby sentenced to suffer an
indeterminate penalty ranging from SIX (6) MONTHS and ONE (1) DAY of prision
correccional as the minimum, to SIX (6) YEARS and ONE (1) DAY of prision mayor as the
maximum; to indemnify, jointly and severally, the offended party Noel Villanueva in the
amount of P51,700.00 as actual and compensatory damages, plus P120,000.00 as
moral/exemplary damages, and to pay their proportionate share of the costs of said action.
SO ORDERED.53
The Sandiganbayan declared that the shootout which caused injuries to Villanueva and
which brought the eventual death of Licup has been committed by petitioners herein
willfully under the guise of maintaining peace and order;54 that the acts performed by them
preparatory to the shooting, which ensured the execution of their evil plan without risk to
themselves, demonstrate a clear intent to kill the occupants of the subject vehicle; that the
fact they had by collective action deliberately and consciously intended to inflict harm and
injury and had voluntarily performed those acts negates their defense of lawful
performance of official duty;55 that the theory of mistaken belief could not likewise benefit
petitioners because there was supposedly no showing that they had sufficient basis or
probable cause to rely fully on Pamintuans report that the victims were armed NPA
members, and they have not been able by evidence to preclude ulterior motives or gross
inexcusable negligence when they acted as they did; 56 that there was insufficient or total
absence of factual basis to assume that the occupants of the jeepney were members of
the NPA or criminals for that matter; and that the shooting incident could not have been the
product of a well-planned and well-coordinated police operation but was the result of either
a hidden agenda concocted by Barangay Captains Mario Reyes and Pamintuan, or a
hasty and amateurish attempt to gain commendation.57
These findings obtain context principally from the open court statements of prosecution
witnesses Villanueva, Flores and Salangsang, particularly on the circumstances prior to
the subject incident. The Sandiganbayan pointed out that the Tamaraw jeepney would
have indeed stopped if it had truly been flagged down as claimed by Yapyuco especially
since as it turned out after the search of the vehicle they had no firearms with them,
and hence, they had nothing to be scared of. 58 It observed that while Salangsang and
Flores had been bona fide residents of Barangay Quebiawan, then it would be impossible
for Pamintuan, barangay captain no less, not to have known them and the location of their
houses which were not far from the scene of the incident; so much so that the presence of
the victims and of the Tamaraw jeepney in Salangsangs house that evening could not
have possibly escaped his notice. In this regard, it noted that Pamintuans Sworn
Statement dated April 11, 1988 did not sufficiently explain his suspicions as to the identities
of the victims as well as his apparent certainty on the identity and whereabouts of the
subject Tamaraw jeepney. 59 It surmised how the defense, especially Yapyuco in his
testimony, could have failed to explain why a large group of armed men which allegedly
included Cafgu members from neighboring barangays were assembled at the house of
Naron that night, and how petitioners were able to identify the Tamaraw jeepney to be the
target vehicle. From this, it inferred that petitioners had already known that their suspect
vehicle would be coming from the direction of Salangsangs house such knowledge is
supposedly evident first, in the manner by which they advantageously positioned
themselves at the scene to afford a direct line of fire at the target vehicle, and second, in
the fact that the house of Naron, the neighboring houses and the electric post referred to
by prosecution witnesses were deliberately not lit that night.60
The Sandiganbayan also drew information from Flores sketch depicting the position of the
Tamaraw jeepney and the assailants on the road, and concluded that judging by the bullet
holes on the right side of the jeepney and by the declarations of Dr. Solis respecting the
trajectory of the bullets that hit Villanueva and Licup, the assailants were inside the yard of
Narons residence and the shots were fired at the jeepney while it was slowly moving past
them. It also gave weight to the testimony and the report of Dabor telling that the service
firearms of petitioners had been tested and found to be positive of gunpowder residue,
therefore indicating that they had indeed been discharged.61
The Sandiganbayan summed up what it found to be overwhelming circumstantial evidence
pointing to the culpability of petitioners: the nature and location of the bullet holes on the
jeepney and the gunshot wounds on the victims, as well as the trajectory of the bullets that
caused such damage and injuries; particularly, the number, location and trajectory of the
bullets that hit the front passenger side of the jeepney; the strategic placement of the
accused on the right side of the street and inside the front yard of Narons house; the
deliberate shutting off of the lights in the nearby houses and the lamp post; and the
positive ballistic findings on the firearms of petitioners. 62
This evidentiary resum, according to the Sandiganbayan, not only fortified petitioners
admission that they did discharge their firearms, but also provided a predicate to its
conclusion that petitioners conspired with one another to achieve a common purpose,
design and objective to harm the unarmed and innocent victims. Thus, since there was no
conclusive proof of who among the several accused had actually fired the gunshots that
injured Villanueva and fatally wounded Licup, the Sandiganbayan imposed collective
responsibility on all those who were shown to have discharged their firearms that night
petitioners herein.63 Interestingly, it was speculated that the manner by which the accused
collectively and individually acted prior or subsequent to or contemporaneously with the
shooting indicated that they were either drunk or that some, if not all of them, had a grudge
against the employees of San Miguel Corporation;64 and that on the basis of the self-
serving evidence adduced by the defense, there could possibly have been a massive
cover-up of the incident by Philippine Constabulary and INP authorities in Pampanga as
well as by the NAPOLCOM.65 It likewise found very consequential the fact that the other
accused had chosen not to take the witness stand; this, supposedly because it was
incumbent upon them to individually explain their participation in the shooting in view of the
weight of the prosecution evidence, their invocation of the justifying circumstance of lawful
performance of official duty and the declaration of some of them in their affidavits to the
effect that they had been deployed that evening in the front yard of Narons residence from
which the volley of gunfire was discharged as admitted by Yapyuco himself.66
As to the nature of the offenses committed, the Sandiganbayan found that the qualifying
circumstance of treachery has not been proved because first, it was supposedly not shown
how the aggression commenced and how the acts causing injury to Villanueva and fatally
injuring Licup began and developed, and second, this circumstance must be supported by
proof of a deliberate and conscious adoption of the mode of attack and cannot be drawn
from mere suppositions or from circumstances immediately preceding the aggression. The
same finding holds true for evident premeditation because between the time Yapyuco
received the summons for assistance from Pamintuan through David and the time he and
his men responded at the scene, there was found to be no sufficient time to allow for the
materialization of all the elements of that circumstance.67
Finally as to damages, Villanueva had testified that his injury required leave from work for
60 days which were all charged against his accumulated leave credits;68 that he was
earning P8,350.00 monthly;69 and that he had spent P35,000.00 for the repair of his
Tamaraw jeepney.70 Also, Teodoro Licup had stated that his family had spent P18,000.00
for the funeral of his son, P28,000.00 during the wake, P11,000.00 for the funeral plot
and P20,000.00 in attorneys fees for the prosecution of these cases. 71 He also submitted a
certification from San Miguel Corporation reflecting the income of his deceased son. 72 On
these bases, the Sandiganbayan ordered petitioners, jointly and severally, to indemnify (a)
Villanueva P51,700.00 as actual and compensatory damages and P120,000.00 as
moral/exemplary damages, plus the proportionate costs of the action, and (b) the heirs of
deceased Licup in the amount of P77,000.00 as actual damages and P600,000.00 as
moral/exemplary damages, plus the proportionate costs of the action.
Petitioners motion for reconsideration was denied; hence, the present recourse.
In G.R. Nos. 120744-46, Yapyuco disputes the Sandiganbayans finding of conspiracy and
labels the same to be conjectural. He points out that the court a quo has not clearly
established that he had by positive acts intended to participate in any criminal object in
common with the other accused, and that his participation in a supposed common criminal
object has not been proved beyond reasonable doubt. He believes the finding is belied by
Flores and Villanueva, who saw him at the scene only after the shooting incident when the
wounded passengers were taken to the hospital on his jeepney.73 He also points out the
uncertainty in the Sandiganbayans declaration that the incident could not have been the
product of a well-planned police operation, but rather was the result of either a hidden
agenda concocted against the victims by the barangay officials involved or an amateurish
attempt on their part to earn commendation. He theorizes that, if it were the latter
alternative, then he could hardly be found guilty of homicide or frustrated homicide but
rather of reckless imprudence resulting in homicide and frustrated homicide. 74 He laments
that, assuming arguendo that the injuries sustained by the victims were caused by his
warning shots, he must nevertheless be exonerated because he responded to the scene of
the incident as a bona fide member of the police force and, hence, his presence at the
scene of the incident was in line with the fulfillment of his duty as he was in fact in the
lawful performance thereof a fact which has been affirmed by the NAPOLCOM en banc
when it dismissed on appeal the complaint for gross misconduct against him, Cunanan
and Puno.75 He also invokes the concept of mistake of fact and attributes to Pamintuan the
responsibility why he, as well as the other accused in these cases, had entertained the
belief that the suspects were armed rebel elements.76
In G.R. No. 122677, petitioners Manguerra, Mario Reyes and Andres Reyes claim that the
Sandiganbayan has not proved their guilt beyond reasonable doubt, and the assailed
decision was based on acts the evidence for which has been adduced at a separate trial
but erroneously attributed to them. They explain that there were two sets of accused, in the
case: one, the police officers comprised of Yapyuco, Cunanan and Puno and, two, the
barangay officials and CHDFs comprised of David, Lugtu, Lacson, Yu and themselves who
had waived the presentation of evidence. They question their conviction of the charges vis-
a-vis the acquittal of David, Lugtu, Lacson and Yu who, like them, were barangay officials
and had waived their right to present evidence in their behalf. They emphasize in this
regard that all accused barangay officials and CHDFs did not participate in the
presentation of the evidence by the accused police officers and, hence, the finding that
they too had fired upon the Tamaraw jeepney is hardly based on an established
fact.77 Also, they believe that the findings of fact by the Sandiganbayan were based on
inadmissible evidence, specifically on evidence rejected by the court itself and those
presented in a separate trial. They label the assailed decision to be speculative,
conjectural and suspicious and, hence, antithetical to the quantum of evidence required in
a criminal prosecution.78 Finally, they lament that the finding of conspiracy has no basis in
evidence and that the prosecution has not even shown that they were with the other
accused at the scene of the incident or that they were among those who fired at the
victims, and neither were they identified as among the perpetrators of the crime.79
In G.R. No. 122776, Cunanan and Puno likewise dispute the finding of conspiracy. They
claim that judging by the uncertainty in the conclusion of the Sandiganbayan as to whether
the incident was the result of a legitimate police operation or a careless plot designed by
the accused to obtain commendation, conspiracy has not been proved beyond reasonable
doubt. This, because they believe the prosecution has not, as far as both of them are
concerned, shown that they had ever been part of such malicious design to commit an
ambuscade as that alluded to in the assailed decision. They advance that as police
officers, they merely followed orders from their commander, Yapyuco, but were not privy to
the conversation among the latter, David and Pamintuan, moments before the shooting.
They posit they could hardly be assumed to have had community of criminal design with
the rest of the accused.80 They affirm Yapyucos statement that they fired warning shots at
the subject jeepney,81 but only after it had passed the place where they were posted and
only after it failed to stop when flagged down as it then became apparent that it was going
to speed away as supposedly shown by bullet holes on the chassis and not on the rear
portion of the jeepney. They also harp on the absence of proof of ill motives that would
have otherwise urged them to commit the crimes charged, especially since none of the
victims had been personally or even remotely known to either of them. That they were not
intending to commit a crime is, they believe, shown by the fact that they did not directly aim
their rifles at the passengers of the jeepney and that in fact, they immediately held their fire
when Flores identified themselves as employees of San Miguel Corporation. They
conceded that if killing was their intent, then they could have easily fired at the victims
directly.82
Commenting on these petitions, the Office of the Special Prosecutor stands by the finding
of conspiracy as established by the fact that all accused, some of them armed, had
assembled themselves and awaited the suspect vehicle as though having previously
known that it would be coming from Salangsangs residence. It posits that the manner by
which the jeepney was fired upon demonstrates a community of purpose and design to
commit the crimes charged.83 It believes that criminal intent is discernible from the posts
the accused had chosen to take on the road that would give them a direct line of fire at the
target as shown by the trajectories of the bullets that hit the Tamaraw jeepney. 84 This
intent was supposedly realized when after the volley of gunfire, both Flores and Licup were
wounded and the latter died as a supervening consequence. 85 It refutes the invocation of
lawful performance of duty, mainly because there was no factual basis to support the belief
of the accused that the occupants were members of the NPA, as indeed they have not
shown that they had previously verified the whereabouts of the suspect vehicle. But while it
recognizes that the accused had merely responded to the call of duty when summoned by
Pamintuan through David, it is convinced that they had exceeded the performance thereof
when they fired upon the Tamaraw jeepney occupied, as it turned out, by innocent
individuals instead.86
As to the contention of Mario Reyes, Andres Reyes and Manguerra that the evidence
adduced before the Sandiganbayan as well the findings based thereon should not be
binding on them, the OSP explains that said petitioners, together with Pamintuan, David,
Lugtu, Lacson and Yu, had previously withdrawn their motion for separate trial and as
directed later on submitted the case for decision as to them with the filing of their
memorandum. It asserts there was no denial of due process to said petitioners in view of
their agreement for the reproduction of the evidence on the motion for bail at the trial
proper as well as by their manifestation to forego with the presentation of their own
evidence. The right to present witnesses is waivable. Also, where an accused is jointly tried
and testifies in court, the testimony binds the other accused, especially where the latter
has failed to register his objection thereto.87
The decision on review apparently is laden with conclusions and inferences that seem to
rest on loose predicates. Yet we have pored over the records of the case and found that
evidence nonetheless exists to support the penultimate finding of guilt beyond reasonable
doubt.
I.
It is as much undisputed as it is borne by the records that petitioners were at the situs of
the incident on the date and time alleged in the Informations. Yapyuco, in his testimony
which was adopted by Cunanan and Puno as well as Manguerra, Mario Reyes and
Andres Reyes in their affidavits which had been offered in evidence by the
prosecution,88 explained that their presence at the scene was in response to the
information relayed by Pamintuan through David that armed rebel elements on board a
vehicle described to be that occupied by the victims were reportedly spotted in Barangay
Quebiawan. It is on the basis of this suspicion that petitioners now appeal to justification
under Article 11 (5) of the Revised Penal Code and under the concept of mistake of fact. Indeed, the extrajudicial confession or admission of one accused is admissible only
Petitioners admit that it was not by accident or mistake but by deliberation that the against said accused, but is inadmissible against the other accused. But if the declarant or
shooting transpired when it became apparent that the suspect vehicle was attempting to admitter repeats in court his extrajudicial admission, as Yapyuco did in this case, during
flee, yet contention arises as to whether or not there was intention to harm or even kill the the trial and the other accused is accorded the opportunity to cross-examine the admitter,
passengers aboard, and who among them had discharged the bullets that caused the the admission is admissible against both accused because then, it is transposed into a
eventual death of Licup and injured Villanueva. judicial admission.105 It is thus perplexing why, despite the extrajudicial statements of
Cunanan, Puno and Yapyuco, as well as the latters testimony implicating them in the
The first duty of the prosecution is not to present the crime but to identify the criminal. To incident, they still had chosen to waive their right to present evidence when, in fact, they
89

this end, the prosecution in these cases offered in evidence the joint counter-affidavit 90 of could have shown detailed proof of their participation or non-participation in the offenses
Andres Reyes and Manguerra; the counter-affidavit91 of Mario Reyes; the joint counter- charged. We, therefore, reject their claim that they had been denied due process in this
affidavit92 of Cunanan and Puno; the counter-affidavit93 of Yapyuco; and the joint counter- regard, as they opted not to testify and be cross-examined by the prosecution as to the
affidavit94 of Yapyuco, Cunanan and Puno executed immediately after the incident in truthfulness in their affidavits and, accordingly, disprove the inculpatory admissions of their
question. In brief, Cunanan and Puno stated therein that "[their] team was forced to fire at co-accused.
the said vehicle" when it accelerated after warning shots were fired in air and when it
ignored Yapyucos signal for it to stop;95 in their earlier affidavit they, together with Yapyuco, II.
declared that they were "constrained x x x to fire directly to (sic) the said fleeing
vehicle."96 Yapyucos open court declaration, which was adopted by Cunanan and Puno, is The availability of the justifying circumstance of fulfillment of duty or lawful exercise of a
that he twice discharged his firearm: first, to give warning to the subject jeepney after it right or office under Article 11 (5) of the Revised Penal Code rests on proof that (a) the
allegedly failed to stop when flagged down and second, at the tires thereof when it came accused acted in the performance of his duty or in the lawful exercise of his right or office,
clear that it was trying to escape.97 He suggested substantiating the implication in his and (b) the injury caused or the offense committed is the necessary consequence of the
affidavit that it was "the whole team [which fired] at the fleeing vehicle" 98 that the bullets due performance of such duty or the lawful exercise of such right or office.106 The
which hit the passenger side of the ill-fated jeepney could have come only from the CHDFs justification is based on the complete absence of intent and negligence on the part of the
posted inside the yard of Naron where Manguerra, Mario Reyes and Andres Reyes accused, inasmuch as guilt of a felony connotes that it was committed with criminal intent
admitted having taken post while awaiting the arrival of the suspect vehicle.99 or with fault or negligence.107 Where invoked, this ground for non-liability amounts to an
acknowledgment that the accused has caused the injury or has committed the offense
Mario Reyes and Andres Reyes, relying on their affidavits, declared that it was only charged for which, however, he may not be penalized because the resulting injury or
Manguerra from their group who discharged a firearm but only into the air to give warning offense is a necessary consequence of the due performance of his duty or the lawful
shots,100 and that it was the "policemen [who] directly fired upon" the jeepney. 101 Manguerra exercise of his right or office. Thus, it must be shown that the acts of the accused relative
himself shared this statement.102 Yet these accounts do not sit well with the physical to the crime charged were indeed lawfully or duly performed; the burden necessarily shifts
evidence found in the bullet holes on the passenger door of the jeepney which Dabor, in on him to prove such hypothesis.
both her report and testimony, described to have come from bullets sprayed from
perpendicular and oblique directions. This evidence in fact supports Yapyucos claim that We find that the requisites for justification under Article 11 (5) of the Revised Penal Code
he, Cunanan and Puno did fire directly at the jeepney after it had made a right turn and do not obtain in this case.
had already moved past them such that the line of fire to the passengers thereof would be
at an oblique angle from behind. It also bolsters his claim that, almost simultaneously,
gunshots came bursting after the jeepney has passed the spot where he, Cunanan and The undisputed presence of all the accused at the situs of the incident is a legitimate law
Puno had taken post, and when the vehicle was already right in front of the yard of Narons enforcement operation. No objection is strong enough to defeat the claim that all of them
house sitting on the right side of the road after the curve and where Manguerra, Mario who were either police and barangay officers or CHDF members tasked with the
Reyes and Andres Reyes were positioned, such that the line of fire would be direct and maintenance of peace and order were bound to, as they did, respond to information of a
perpendicular to it.103 suspected rebel infiltration in the locality. Theirs, therefore, is the specific duty to identify
the occupants of their suspect vehicle and search for firearms inside it to validate the
information they had received; they may even effect a bloodless arrest should they find
While Dabors ballistics findings are open to challenge for being inconclusive as to who cause to believe that their suspects had just committed, were committing or were bound to
among the accused actually discharged their firearms that night, her report pertaining to commit a crime. While, it may certainly be argued that rebellion is a continuing offense, it is
the examination of the ill-fated Tamaraw jeepney affirms the irreducible fact that the interesting that nothing in the evidence suggests that the accused were acting under an
CHDFs posted within the yard of Narons house had indeed sprayed bullets at the said official order to open fire at or kill the suspects under any and all circumstances. Even
vehicle. Manguerra, Mario Reyes and Andres Reyes seek to insulate themselves by more telling is the absence of reference to the victims having launched such aggression as
arguing that such finding cannot be applied to them as it is evidence adduced in a would threaten the safety of any one of the accused, or having exhibited such defiance of
separate trial. But as the OSP noted, they may not evade the effect of their having authority that would have instigated the accused, particularly those armed, to embark on a
withdrawn their motion for separate trial, their agreement to a joint trial of the cases, and violent attack with their firearms in self-defense. In fact, no material evidence was
the binding effect on them of the testimony of their co-accused, Yapyuco.104 presented at the trial to show that the accused were placed in real mortal danger in the
presence of the victims, except maybe their bare suspicion that the suspects were armed
and were probably prepared to conduct hostilities.
But whether or not the passengers of the subject jeepney were NPA members and whether
or not they were at the time armed, are immaterial in the present inquiry inasmuch as they
do not stand as accused in the prosecution at hand. Besides, even assuming that they
were as the accused believed them to be, the actuations of these responding law
enforcers must inevitably be ranged against reasonable expectations that arise in the
legitimate course of performance of policing duties. The rules of engagement, of which
every law enforcer must be thoroughly knowledgeable and for which he must always
exercise the highest caution, do not require that he should immediately draw or fire his
weapon if the person to be accosted does not heed his call. Pursuit without danger should
be his next move, and not vengeance for personal feelings or a damaged pride. Police
work requires nothing more than the lawful apprehension of suspects, since the completion
of the process pertains to other government officers or agencies.108
A law enforcer in the performance of duty is justified in using such force as is reasonably
necessary to secure and detain the offender, overcome his resistance, prevent his escape,
recapture him if he escapes, and protect himself from bodily harm. 109 United States v.
Campo110 has laid down the rule that in the performance of his duty, an agent of the
authorities is not authorized to use force, except in an extreme case when he is attacked
or is the subject of resistance, and finds no other means to comply with his duty or cause
himself to be respected and obeyed by the offender. In case injury or death results from
the exercise of such force, the same could be justified in inflicting the injury or causing the
death of the offender if the officer had used necessary force.111 He is, however, never
justified in using unnecessary force or in treating the offender with wanton violence, or in
resorting to dangerous means when the arrest could be effected otherwise.112 People v.
Ulep113 teaches that
The right to kill an offender is not absolute, and may be used only as a last resort, and
under circumstances indicating that the offender cannot otherwise be taken without
bloodshed. The law does not clothe police officers with authority to arbitrarily judge the
necessity to kill. It may be true that police officers sometimes find themselves in a dilemma
when pressured by a situation where an immediate and decisive, but legal, action is
needed. However, it must be stressed that the judgment and discretion of police officers in
the performance of their duties must be exercised neither capriciously nor oppressively, but
within reasonable limits. In the absence of a clear and legal provision to the contrary, they
must act in conformity with the dictates of a sound discretion, and within the spirit and
purpose of the law. We cannot countenance trigger-happy law enforcement officers who
indiscriminately employ force and violence upon the persons they are apprehending. They
must always bear in mind that although they are dealing with criminal elements against
whom society must be protected, these criminals are also human beings with human
rights.114
Thus, in People v. Tabag,115 where members of the Davao CHDF had killed four members
of a family in their home because of suspicions that they were NPA members, and the
accused sought exoneration by invoking among others the justifying circumstance in
Article 11 (5) of the Revised Penal Code, the Court in dismissing the claim and holding
them liable for murder said, thus:
In no way can Sarenas claim the privileges under paragraphs 5 and 6, Article 11 of the
Revised Penal Code, for the massacre of the Magdasals can by no means be considered
as done in the fulfillment of a duty or in the lawful exercise of an office or in obedience to
an order issued by a superior for some lawful purpose. Other than "suspicion," there is no
evidence that Welbino Magdasal, Sr., his wife Wendelyn, and their children were members
of the NPA. And even if they were members of the NPA, they were entitled to due process
of law. On that fateful night, they were peacefully resting in their humble home expecting
for the dawn of another uncertain day. Clearly, therefore, nothing justified the sudden and
unprovoked attack, at nighttime, on the Magdasals. The massacre was nothing but a
merciless vigilante-style execution.116
Petitioners rationalize their election to aim their fire directly at the jeepney by claiming that
it failed to heed the first round of warning shots as well as the signal for it to stop and
instead tried to flee. While it is possible that the jeepney had been flagged down but
because it was pacing the dark road with its headlights dimmed missed petitioners signal
to stop, and compound to it the admitted fact that the passengers thereof were drunk from
the party they had just been to, 117 still, we find incomprehensible petitioners quick resolve
to use their firearms when in fact there was at least one other vehicle at the scene the
Sarao jeepney owned by Yapyuco which they could actually have used to pursue their
suspects whom they supposedly perceived to be in flight.
Lawlessness is to be dealt with according to the law. Only absolute necessity justifies the
use of force, and it is incumbent on herein petitioners to prove such necessity. We find,
however, that petitioners failed in that respect. Although the employment of powerful
firearms does not necessarily connote unnecessary force, petitioners in this case do not
seem to have been confronted with the rational necessity to open fire at the moving
jeepney occupied by the victims. No explanation is offered why they, in that instant, were
inclined for a violent attack at their suspects except perhaps their over-anxiety or
impatience or simply their careless disposition to take no chances. Clearly, they exceeded
the fulfillment of police duties the moment they actualized such resolve, thereby inflicting
Licup with a mortal bullet wound, causing injury to Villanueva and exposing the rest of the
passengers of the jeepney to grave danger to life and limb all of which could not have
been the necessary consequence of the fulfillment of their duties.
III.
At this juncture, we find that the invocation of the concept of mistake of fact faces certain
failure. In the context of criminal law, a "mistake of fact" is a misapprehension of a fact
which, if true, would have justified the act or omission which is the subject of the
prosecution.118 Generally, a reasonable mistake of fact is a defense to a charge of crime
where it negates the intent component of the crime. 119 It may be a defense even if the
offense charged requires proof of only general intent.120 The inquiry is into the mistaken
belief of the defendant,121 and it does not look at all to the belief or state of mind of any
other person.122 A proper invocation of this defense requires (a) that the mistake be honest
and reasonable;123 (b) that it be a matter of fact;124 and (c) that it negate the culpability
required to commit the crime125 or the existence of the mental state which the statute
prescribes with respect to an element of the offense.126
The leading authority in mistake of fact as ground for non-liability is found in United States
v. Ah Chong,127 but in that setting, the principle was treated as a function of self-defense
where the physical circumstances of the case had mentally manifested to the accused an
aggression which it was his instinct to repel. There, the accused, fearful of bad elements,
was woken by the sound of his bedroom door being broken open and, receiving no
response from the intruder after having demanded identification, believed that a robber
had broken in. He threatened to kill the intruder but at that moment he was struck by a
chair which he had placed against the door and, perceiving that he was under attack,
seized a knife and fatally stabbed the intruder who turned out to be his roommate.
Charged with homicide, he was acquitted because of his honest mistake of fact. Finding
that the accused had no evil intent to commit the charge, the Court explained:
x x x The maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is,
in all cases of supposed offense, a sufficient excuse").
Since evil intent is in general an inseparable element in every crime, any such mistake of
fact as shows the act committed to have proceeded from no sort of evil in the mind
necessarily relieves the actor from criminal liability, provided always there is no fault or
negligence on his part and as laid down by Baron Parke, "The guilt of the accused must
depend on the circumstances as they appear to him." x x x
If, in language not uncommon in the cases, one has reasonable cause to believe the
existence of facts which will justify a killing or, in terms more nicely in accord with the
principles on which the rule is founded, if without fault or carelessness he does not believe
them he is legally guiltless of homicide; though he mistook the facts, and so the life of
an innocent person is unfortunately extinguished. In other words, and with reference to the
right of self-defense and the not quite harmonious authorities, it is the doctrine of reason,
and sufficiently sustained in adjudication, that notwithstanding some decisions apparently
adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as
they appear to him. If, without fault or carelessness, he is misled concerning them, and
defends himself correctly according to what he thus supposes the facts to be, the law will
not punish him though they are in truth otherwise, and he has really no occasion for the
extreme measure. x x x 128
Besides, as held in People v. Oanis129 and Baxinela v. People,130 the justification of an act,
which is otherwise criminal on the basis of a mistake of fact, must preclude negligence or
bad faith on the part of the accused.131Thus, Ah Chong further explained that
The question then squarely presents itself, whether in this jurisdiction one can be held
criminally responsible who, by reason of a mistake as to the facts, does an act for which he
would be exempt from criminal liability if the facts were as he supposed them to be, but
which would constitute the crime of homicide or assassination if the actor had known the
true state of the facts at the time when he committed the act. To this question we think
there can be but one answer, and we hold that under such circumstances there is no
criminal liability, provided always that the alleged ignorance or mistake of fact was not due
to negligence or bad faith.132
IV.
This brings us to whether the guilt of petitioners for homicide and frustrated homicide has
been established beyond cavil of doubt. The precept in all criminal cases is that the
prosecution is bound by the invariable requisite of establishing the guilt of the accused
beyond reasonable doubt. The prosecution must rely on the strength of its own evidence
and not on the evidence of the accused. The weakness of the defense of the accused
does not relieve the prosecution of its responsibility of proving guilt beyond reasonable
doubt.133 By reasonable doubt is meant that doubt engendered by an investigation of the
whole proof and an inability, after such investigation, to let the mind rest easy upon the
certainty of guilt.134 The overriding consideration is not whether the court doubts the
innocence of the accused, but whether it entertains reasonable doubt as to his guilt.135
The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by
direct evidence or by circumstantial or presumptive evidence. 136 Corpus delicti consists of
two things: first, the criminal act and second, defendant's agency in the commission of the
act.137 In homicide (by dolo) as well as in murder cases, the prosecution must prove: (a)
the death of the party alleged to be dead; (b) that the death was produced by the criminal
act of some other than the deceased and was not the result of accident, natural cause or
suicide; and (c) that defendant committed the criminal act or was in some way criminally
responsible for the act which produced the death. In other words, proof of homicide or
murder requires incontrovertible evidence, direct or circumstantial, that the victim was
deliberately killed (with malice), that is, with intent to kill. Such evidence may consist in the
use of weapons by the malefactors, the nature, location and number of wounds sustained
by the victim and the words uttered by the malefactors before, at the time or immediately
after the killing of the victim. If the victim dies because of a deliberate act of the
malefactors, intent to kill is conclusively presumed.138 In such case, even if there is no
intent to kill, the crime is homicide because with respect to crimes of personal violence, the
penal law looks particularly to the material results following the unlawful act and holds the
aggressor responsible for all the consequences thereof. 139 Evidence of intent to kill is
crucial only to a finding of frustrated and attempted homicide, as the same is an essential
element of these offenses, and thus must be proved with the same degree of certainty as
that required of the other elements of said offenses.140
The records disclose no ill motives attributed to petitioners by the prosecution. It is
interesting that, in negating the allegation that they had by their acts intended to kill the
occupants of the jeepney, petitioners turn to their co-accused Pamintuan, whose picture
depicted in the defense evidence is certainly an ugly one: petitioners affidavits as well as
Yapyucos testimony are replete with suggestions that it was Pamintuan alone who
harbored the motive to ambush the suspects as it was he who their (petitioners) minds
that which they later on conceded to be a mistaken belief as to the identity of the suspects.
Cinco, for one, stated in court that Pamintuan had once reported to him that Flores, a
relative of his (Pamintuan), was frequently meeting with NPA members and that the San
Miguel Corporation plant where the victims were employed was being penetrated by NPA
members. He also affirmed Yapyucos claim that there had been a number of ambuscades
launched against members of law enforcement in Quebiawan and in the neighboring areas
supposedly by NPA members at around the time of the incident. But as the Sandiganbayan
pointed out, it is unfortunate that Pamintuan had died during the pendency of these cases
even before his opportunity to testify in court emerged.141
Yet whether such claims suffice to demonstrate ill motives evades relevance and
materiality. Motive is generally held to be immaterial inasmuch as it is not an element of a
crime. It gains significance when the commission of a crime is established by evidence
purely circumstantial or otherwise inconclusive.142 The question of motive is important in
cases where there is doubt as to whether the defendant is or is not the person who
committed the act, but when there is no doubt that the defendant was the one who caused
the death of the deceased, it is not so important to know the reason for the deed.143
In the instant case, petitioners, without abandoning their claim that they did not intend to
kill anyone of the victims, admit having willfully discharged their service firearms; and the
manner by which the bullets concentrated on the passenger side of the jeepney permits no
other conclusion than that the shots were intended for the persons lying along the line of
fire. We do not doubt that instances abound where the discharge of a firearm at another is
not in itself sufficient to sustain a finding of intention to kill, and that there are instances
where the attendant circumstances conclusively establish that the discharge was not in
fact animated by intent to kill. Yet the rule is that in ascertaining the intention with which a
specific act is committed, it is always proper and necessary to look not merely to the act
itself but to all the attendant circumstances so far as they develop in the evidence.144
The firearms used by petitioners were either M16 rifle, .30 caliber garand rifle and .30
caliber carbine.145 While the use of these weapons does not always amount to
unnecessary force, they are nevertheless inherently lethal in nature. At the level the bullets
were fired and hit the jeepney, it is not difficult to imagine the possibility of the passengers
thereof being hit and even killed. It must be stressed that the subject jeepney was fired
upon while it was pacing the road and at that moment, it is not as much too difficult to aim
and target the tires thereof as it is to imagine the peril to which its passengers would be
exposed even assuming that the gunfire was aimed at the tires especially considering
that petitioners do not appear to be mere rookie law enforcers or unskilled neophytes in
encounters with lawless elements in the streets.
Thus, judging by the location of the bullet holes on the subject jeepney and the firearms
employed, the likelihood of the passenger next to the driver and in fact even the driver
himself of being hit and injured or even killed is great to say the least, certain to be
precise. This, we find to be consistent with the uniform claim of petitioners that the impulse
to fire directly at the jeepney came when it occurred to them that it was proceeding to
evade their authority. And in instances like this, their natural and logical impulse was to
debilitate the vehicle by firing upon the tires thereof, or to debilitate the driver and hence
put the vehicle to a halt. The evidence we found on the jeepney suggests that petitioners
actuations leaned towards the latter.
This demonstrates the clear intent of petitioners to bring forth death on Licup who was
seated on the passenger side and to Villanueva who was occupying the wheel, together
with all the consequences arising from their deed. The circumstances of the shooting
breed no other inference than that the firing was deliberate and not attributable to sheer
accident or mere lack of skill. Thus, Cupps v. State146 tells that:
This rule that every person is presumed to contemplate the ordinary and natural
consequences of his own acts, is applied even in capital cases. Because men generally
act deliberately and by the determination of their own will, and not from the impulse of blind
passion, the law presumes that every man always thus acts, until the contrary appears.
Therefore, when one man is found to have killed another, if the circumstances of the
homicide do not of themselves show that it was not intended, but was accidental, it is
presumed that the death of the deceased was designed by the slayer; and the burden of
proof is on him to show that it was otherwise.
V.
Verily, the shooting incident subject of these petitions was actualized with the deliberate
intent of killing Licup and Villanueva, hence we dismiss Yapyucos alternative claim in G.R.
No. 120744 that he and his co-petitioners must be found guilty merely of reckless
imprudence resulting in homicide and frustrated homicide. Here is why:
First, the crimes committed in these cases are not merely criminal negligence, the killing
being intentional and not accidental. In criminal negligence, the injury caused to another
should be unintentional, it being the incident of another act performed without
malice.147 People v. Guillen148 and People v. Nanquil 149 declare that a deliberate intent to
do an unlawful act is essentially inconsistent with the idea of reckless imprudence. And in
People v. Castillo,150 we held that that there can be no frustrated homicide through reckless
negligence inasmuch as reckless negligence implies lack of intent to kill, and without intent
to kill the crime of frustrated homicide cannot exist.
Second, that petitioners by their acts exhibited conspiracy, as correctly found by the
Sandiganbayan, likewise militates against their claim of reckless imprudence.
Article 8 of the Revised Penal Code provides that there is conspiracy when two or more
persons agree to commit a felony and decide to commit it. Conspiracy need not be proven
by direct evidence. It may be inferred from the conduct of the accused before, during and
after the commission of the crime, showing that they had acted with a common purpose
and design. Conspiracy may be implied if it is proved that two or more persons aimed by
their acts towards the accomplishment of the same unlawful object, each doing a part so
that their combined acts, though apparently independent of each other were, in fact,
connected and cooperative, indicating a closeness of personal association and a
concurrence of sentiment. Conspiracy once found, continues until the object of it has been
accomplished and unless abandoned or broken up. To hold an accused guilty as a co-
principal by reason of conspiracy, he must be shown to have performed an overt act in
pursuance or furtherance of the complicity. There must be intentional participation in the
transaction with a view to the furtherance of the common design and purpose.151
Conspiracy to exist does not require an agreement for an appreciable period prior to the
occurrence.1a\^/phi1 From the legal viewpoint, conspiracy exists if, at the time of the
commission of the offense, the accused had the same purpose and were united in its
execution.152 The instant case requires no proof of any previous agreement among
petitioners that they were really bent on a violent attack upon their suspects. While it is far-
fetched to conclude that conspiracy arose from the moment petitioners, or all of the
accused for that matter, had converged and strategically posted themselves at the place
appointed by Pamintuan, we nevertheless find that petitioners had been ignited by the
common impulse not to let their suspect jeepney flee and evade their authority when it
suddenly occurred to them that the vehicle was attempting to escape as it supposedly
accelerated despite the signal for it to stop and submit to them. As aforesaid, at that point,
petitioners were confronted with the convenient yet irrational option to take no chances by
preventing the jeepneys supposed escape even if it meant killing the driver thereof. It
appears that such was their common purpose. And by their concerted action of almost
simultaneously opening fire at the jeepney from the posts they had deliberately taken
around the immediate environment of the suspects, conveniently affording an opportunity
to target the driver, they did achieve their object as shown by the concentration of bullet
entries on the passenger side of the jeepney at angular and perpendicular trajectories.
Indeed, there is no definitive proof that tells which of all the accused had discharged their
weapons that night and which directly caused the injuries sustained by Villanueva and
fatally wounded Licup, yet we adopt the Sandiganbayans conclusion that since only herein
petitioners were shown to have been in possession of their service firearms that night and
had fired the same, they should be held collectively responsible for the consequences of
the subject law enforcement operation which had gone terribly wrong.153
VI.
(a) In Criminal Case No. 16612, petitioners are sentenced to suffer the indeterminate
penalty of six (6) years and one (1) day of prision mayor, as the minimum, to twelve (12)
years and one (1) day of reclusion temporal, as the maximum; in Criminal Case No.
16614, the indeterminate sentence is hereby modified to Two (2) years and four (4) months
of prision correccional, as the maximum, and Six (6) months of arresto mayor, as the
minimum.

The Sandiganbayan correctly found that petitioners are guilty as co-principals in the crimes (b) Petitioners are DIRECTED to indemnify, jointly and severally, the heirs of Leodevince
of homicide and attempted homicide only, respectively for the death of Licup and for the Licup in the amount of P77,000.00 as actual damages, P50,000.00 in moral damages, as
non-fatal injuries sustained by Villanueva, and that they deserve an acquittal together with well as Noel Villanueva, in the amount of P51,700.00 as actual and compensatory
the other accused, of the charge of attempted murder with respect to the unharmed damages, and P20,000.00 as moral damages.
victims.154 The allegation of evident premeditation has not been proved beyond reasonable
doubt because the evidence is consistent with the fact that the urge to kill had materialized SO ORDERED.
in the minds of petitioners as instantaneously as they perceived their suspects to be
attempting flight and evading arrest. The same is true with treachery, inasmuch as there is
no clear and indubitable proof that the mode of attack was consciously and deliberately
adopted by petitioners.

Homicide, under Article 249 of the Revised Penal Code, is punished by reclusion temporal
whereas an attempt thereof, under Article 250 in relation to Article 51, warrants a penalty
lower by two degrees than that prescribed for principals in a consummated homicide.
Petitioners in these cases are entitled to the ordinary mitigating circumstance of voluntary
surrender, and there being no aggravating circumstance proved and applying the
Indeterminate Sentence Law, the Sandiganbayan has properly fixed in Criminal Case No.
16612 the range of the penalty from six (6) years and one (1) day, but should have
denominated the same as prision mayor, not prision correccional, to twelve (12) years and
one (1) day of reclusion temporal.

However, upon the finding that petitioners in Criminal Case No. 16614 had committed
attempted homicide, a modification of the penalty is in order. The penalty of attempted
homicide is two (2) degrees lower to that of a consummated homicide, which is prision
correccional. Taking into account the mitigating circumstance of voluntary surrender, the
maximum of the indeterminate sentence to be meted out on petitioners is within the
minimum period of prision correccional, which is six (6) months and one (1) day to two (2)
years and four (4) months of prision correccional, whereas the minimum of the sentence,
which under the Indeterminate Sentence Law must be within the range of the penalty next
lower to that prescribed for the offense, which is one (1) month and one (1) day to six (6)
months of arresto mayor.

We likewise modify the award of damages in these cases, in accordance with prevailing
jurisprudence, and order herein petitioners, jointly and severally, to indemnify the heirs of
Leodevince Licup in the amount of P77,000.00 as actual damages and P50,000.00 in
moral damages. With respect to Noel Villanueva, petitioners are likewise bound to pay,
jointly and severally, the amount of P51,700.00 as actual and compensatory damages
and P20,000.00 as moral damages. The award of exemplary damages should be deleted,
there being no aggravating circumstance that attended the commission of the crimes.

WHEREFORE, the instant petitions are DENIED. The joint decision of the Sandiganbayan
in Criminal Case Nos. 16612, 16613 and 16614, dated June 27, 1995, are
hereby AFFIRMED with the following MODIFICATIONS:
G.R. No. 149652 March 24, 2006
EDUARDO L. BAXINELA, Petitioner-Appellant,
vs.
THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee.
DECISION
AZCUNA, J.:
Petitioner SPO2 Eduardo L. Baxinela assails his conviction for the crime of homicide by
the Regional Trial Court of Kalibo, Aklan1 (RTC) in Criminal Case No. 4877, as affirmed
with modification by the Court of Appeals (CA) in CA-G.R. CR No. 23348.
On February 19, 1997, an Information charging Baxinela with the crime of homicide was
filed as follows:2
That on or about the 19th day of October , 1996, early in the morning, at Poblacion,
Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, while armed with a
handgun, without justifiable cause and with intent to kill, did then and there wi[l]lfully,
unlawfully and feloniously attack, assault and shoot one RUPERTO F. LAJO, thereby
inflicting upon the latter mortal wounds, to wit:
"A. EXTERNAL FINDINGS:
= .56 cm entrance gunshot wound proximal third lateral aspect left arm with fracture of the
left humerus.
= 1 cm exit wound proximal third medial aspect left arm.
= 1 cm entrance gunshot wound anterior axillary line 5th intercostals space left chest.
B. INTERNAL FINDINGS
= One liter of flood left thoracic cavity
= Perforated left diaphragm.
= One two liters of blood in the abdominal cavity.
= 2 point perforation stomach
= Multiple perforation small, and large intestines and mesenteries.
= (+) Retroperitonial hematoma
DIAGNOSIS: Gunshot wound left of arm with fracture of the humerus, penetrating the (L)
thoracic cavity perforating the diaphragm, abdomen, stomach and, intestines and
retroperitoneum with slugs lodging the vertebral colum[n].
CAUSE OF DEATH: Cardiopulmonary arrest
Secondary to severe bleeding
Secondary to gunshot wound."
as per Autopsy Report issued by Dr. Roel A. Escanillas, Medical Officer III, Dr. Rafael S.
Tumbokon Memorial Hospital, Kalibo, Aklan, which wounds directly caused the death of
RUPERTO F. LAJO, as per Certificate of Death, hereto attached as Annexes "A" and "B"
and forming part of this Information.
That as a result of the criminal acts of the accused the heirs of the deceased suffered
actual and compensatory damages in the amount of FIFTY THOUSAND PESOS
(P50,000.00).
CONTRARY TO LAW.
On April 30, 1997, Baxinela was arraigned and pleaded NOT GUILTY.3 During pre-trial,
Baxinela informed the RTC that he would be claiming the justifying circumstance of self-
defense.4 In accordance with the Rules of Criminal Procedure, the defense was the first to
present evidence.5
The first witness for the defense was Insp. Joel Regimen.6 He testified that on October
19, 1996, at about 12:35 a.m., he and Baxinela were walking along Toting Reyes Street in
Kalibo, Aklan when they were approached by a civilian named Romy Manuba who
informed them of a drunken person drawing a gun and creating trouble inside the Playboy
Disco Pub located on the second floor of the Kingsmen building. 7 They immediately
proceeded to the reported place and, upon arrival, recognized a former colleague, SPO4
Legarda, who was with a companion. Legarda invited them to his table and the two
obliged. Later, while seated at the table, they saw someone with a handgun visibly tucked
at the back of his waist about 4 meters away. Regimen then instructed Baxinela to take a
closer look at this person while he makes a call to the Kalibo police station but before
Regimen could stand up, the man with a gun started to walk towards the door. As he
passed by their table, Baxinela stood up, introduced himself as a policeman and asked the
man why he had a gun with him. The man did not respond and, instead, suddenly drew out
his gun. Baxinela then drew his sidearm and was able to fire first, hitting the man on his
upper left arm. When the man fell down, Baxinela took his gun and wallet and handed
them over to Regimen. Regimen then stated that he enlisted the services of the pubs
security guard to bring the wounded man to the hospital while he and Baxinela proceeded
to the Kalibo Police Station and reported the matter to SPO4 Salvador Advincula. They
also went to Camp Pastor Martelino to report the matter to the Officer-in-Charge, Col.
Bianson.
The second witness for the defense was Romy Manuba,8 who testified that on October 19,
1996, at around 12:30 a.m., he was on the second floor of the Kingsmen building drinking
liquor. While inside, he saw a drunken man wearing a white polo shirt accosting several
persons with a gun. Fearing the man with the gun, he left the place to go home. On his
way home he saw Regimen and Baxinela and he reported to them what he had seen
earlier.
The third witness for the defense was SPO4 Nepomuceno Legarda (Ret.).9 He testified
that on October 18, 1996, at about 11:00 p.m., he was inside the Superstar Disco Pub
drinking beer with a companion named Toto Dalida. At about 12:40 a.m., Legarda saw
Regimen and Baxinela enter the pub and he invited them over to his table. Later, as they
were seating on the table, he noticed Regimen whisper something to Baxinela and, at the
same time, pointing to a man with a handgun visibly tucked at the back of his waist. He
then observed the armed person heading for the door. But as he passed by their table
Baxinela stood up, approached the man from behind and said "Why do you have a gun. I
am a policeman." The man did not reply and, instead, turned around and drew his gun. As
the man was turning, Baxinela also drew his gun and was able to fire first, hitting the man
on his left arm. After the man fell on the floor, Baxinela grabbed the other mans firearm
and handed it over to Regimen. Regimen then requested one of the security guards to
transport the wounded man to the hospital. Regimen and Baxinela then proceeded to the
Kalibo Police Station while Legarda and Dalida went home.
Baxinela took the witness stand as the last witness for the defense. 10 He testified that he
and Regimen were walking along Toting Reyes Street, looking for a tricycle to take them
home, when they were met by Manuba. Manuba reported to them that there was an armed
person, drunk inside the Superstar Disco Pub and creating trouble. They then proceeded
to the pub to verify the report. Once there, they saw Legarda occupying a table near the
entrance with a companion named Toto Dalida. Legarda invited them to sit at his table. As
they were sitting down, Regimen whispered to him that there was a man with a gun tucked
at the back of his waist and told him to watch that person while he tries to look for a
telephone to call the Kalibo Police Station. As Regimen was about to stand, the armed
man started to walk towards the entrance. When he passed their table, Baxinela stood up,
introduced himself as a policeman and asked why he had a gun. The man did not respond
but turned to face Baxinela, drawing his gun. Baxinela immediately drew his firearm and
beat him to the draw, hitting the man on his left arm. When the man fell to the floor,
Baxinela picked up the mans gun and handed it over to Regimen. Baxinela also took his
wallet for identification. Regimen then told one of the security guards to bring the wounded
man to the hospital. Thereafter, Baxinela and Regimen went to the Kalibo Police Station to
report the incident and turned over the wallet. Next, they proceeded to Camp Pastor
Martelino and also reported the incident to Col. Bianson.
To rebut the claim of self-defense, the prosecution presented as its first witness, Abelardo
Alvarez.11 Alvarez was a security guard assigned to the Kingsmen building during the
incident in question. He testified that he was already acquainted with Baxinela and that he
saw him, together with Legarda and Regimen, already in the Superstar Disco Pub as early
as 11:00 p.m. of October 18, 1996 drinking. At around 12:00 a.m. to 12:30 a.m. there was
a minor altercation between the deceased Sgt. Lajo and another customer at the pub but
eventually the two were able to patch things up. Lajo was then on his way out when
Baxinela followed Lajo with a gun already drawn out. Then, from behind, Baxinela held
Lajos left arm and said "Ano ka hay? Mam-an may baril ka?" 12 He then heard Lajo
respond "I am a MIG, Pare" after that Alvarez heard an explosion coming from Baxinelas
gun. Baxinela then got a gun from Lajos waist and handed it over to Regimen. Afterwards
Baxinela held both of Lajos arms, who was still standing, and pushed him against the wall
and repeated his question. Lajo answered "Why did you shoot me? I am also a military." At
this point Lajo got out his wallet and gave it to Baxinela. Baxinela opened the wallet and
looked at an ID. Afterwards Baxinela and Regimen just left and did nothing to aid Lajo.
Alvarez and his fellow security guard, Rolando Gabriel, then picked up Lajo and boarded
him on a tricycle. Gabriel brought him to the hospital, while Alvarez remained at his post.
The second witness of the prosecution was Rolando Gabriel.13 Gabriel substantially
corroborated the testimony of Alvarez on what occurred on the night in question. He
testified that he noticed the presence of Lajo inside the pub at around 10:30 p.m. of
October 18, 1996 while he first saw Baxinela, Regimen and Legarda there as early as
11:00 p.m. At around 12:45 a.m., he witnessed Lajo going towards the entrance of the pub
where Baxinela was already standing and holding a .45 caliber pistol. Baxinela
approached Lajo from behind and held his left shoulder asking "Who are you?" Lajo
responded "I am MIG." Afterwards he was shot by Baxinela. Baxinela then got Lajos gun
from his waist and gave it to Regimen. Thereafter, Baxinela, with both hands, pushed Lajo
against the wall and again asked "What are you?" Lajo got his wallet from his back pocket
and handed it over to Baxinela. After opening the wallet Baxinela and Regimen left the
disco pub. Lajo, still standing, took two steps and then fell down. Gabriel and Alvarez then
picked Lajo up and carried him to a tricycle which took him to the hospital. Gabriel also
stated that ten minutes before the shooting incident there was another incident where Lajo
accosted some customer but afterwards he saw that the two shook hands and embraced
each other.
The third witness for the prosecution was Salvador Advincula, the PNP Desk Officer who
entered in the police blotter the incident that occurred in Superstar Disco Pub. He also
testified on the events that occurred inside the precinct wherein the gun of Lajo
accidentally fell on the table and fired.
The last witness for the prosecution was the wife of Lajo, Janet O. Lajo, who testified as to
damages.14
As a sur-rebuttal witness, the defense presented Ronald Nahil who testified that he was
on the ground floor of Kingsmen building with Alvarez and Gabriel when they heard a shot
ring out from the second floor.15
After receiving all of the evidence, the RTC found the version of the prosecution, that
Baxinela shot Lajo as the latter was turning around and without having drawn his gun,
more convincing, and rendered a decision convicting Baxinela. The RTC, however,
considered in favor of Baxinela the mitigating circumstances of voluntary surrender and
provocation. The dispositive portion of the decision is as follows:16
WHEREFORE, the court finds the accused SPO2 EDUARDO BAXINELA guilty beyond
reasonable doubt of the crime of Homicide, and considering the mitigating circumstances
of voluntary surrender and provocation, and applying the Indeterminate Sentence Law, he
is hereby sentenced to suffer the penalty of imprisonment of 4 years of prision
correccional medium as minimum, to 8 years and 1 day of prision mayor medium as
maximum.
The accused is further ordered to pay a) the sum of P50,000.00 as civil indemnity for the
death of Sgt. Ruperto F. Lajo; b) then sum of P81,000.00 as actual and compensatory
damages; and c) the sum of P30,000.00 as moral damages; plus costs of suit.
SO ORDERED.
On appeal, the CA modified Baxinelas conviction by disallowing the mitigating
circumstance of sufficient provocation. Accordingly, the dispositive portion of the appellate
courts decision reads as follows:17
IN LIGHT OF ALL THE FOREGOING, the Decision appealed from finding the Appellant
guilty beyond reasonable doubt of the crime charged is AFFIRMED, with
the MODIFICATION, that the Appellant is hereby meted an indeterminate penalty of from
EIGHT (8) YEARS and ONE (1) DAY OF Prision Mayor, as Minimum, to TWELVE (12)
YEARS, TEN (10) MONTHS and TWENTY ONE (21) DAYS of Reclusion Temporal, as
Maximum.
SO ORDERED.
Baxinela filed the present petition for review on certiorari citing the following grounds:
A. THAT THE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ERRED IN
GIVING CREDENCE TO THE VERSION OF THE PROSECUTION.
B. THAT THE COURT OF APPEALS ERRED IN DENYING THE JUSTIFYING
CIRCUMSTANCES OF SELF DEFENSE OR IN THE ALTERNATIVE THE LAWFUL
PERFORMANCE OF OFFICIAL DUTY UNDER ARTICLE 11 PARAGRAPHS 1 AND 5,
RESPECTIVELY, OF THE REVISED PENAL CODE.
C. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN
CONVICTING THE ACCUSED.
D. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN NOT
CONSIDERING THE QUALIFIED MITIGATING CIRCUMSTANCES IN FAVOR OF THE
ACCUSED.
Resolution of the petition will entail an initial determination of which version of the incident
will be accepted. The defense alleges that Baxinela proceeded to the Superstar Disco Pub
in response to the information given by Manuba that there was an armed drunken man
accosting several people inside the pub. Once they arrived, they saw Lajo with a handgun
visibly tucked behind his waist. When Baxinela introduced himself as a policeman and
asked why he had a handgun, Lajo suddenly drew on him prompting Baxinela to pull out
his gun and fire upon Lajo, critically wounding him. Thereafter, the defense claims that
Regimen ordered the security guards to bring Lajo to the hospital while they proceed to the
police station to report the incident.
The prosecution, on the other hand, contends that Baxinela was already in the pub
drinking with Regimen and Legarda for more than a couple of hours prior to the shooting
incident. After witnessing an altercation between Lajo and another customer, Baxinela
decided to confront Lajo on why he had a gun with him. Baxinela approached Lajo from
behind and held the latter on the left shoulder with one hand while holding on to his .45
caliber service firearm with the other. As Lajo was turning around, to see who was
confronting him, Baxinela shot him. Baxinela then got Lajos wallet and fled the scene with
Regimen.
As mentioned, the RTC and CA accepted the prosecutions version. The Court finds no
reason to disturb such findings. Factual findings of the trial court, when adopted and
confirmed by the CA, are final and conclusive unless circumstances are present that would
show that the lower courts have overlooked, misunderstood or misconstrued cogent facts
that may alter the outcome of the case.18 It does not appear that the conclusions that led to
the conviction of Baxinela were arbitrarily reached by the lower courts and Baxinela has
failed to point out any relevant circumstance that would convince the Court that a re-
examination of the facts is warranted. On the contrary, Baxinelas version is challenged by
his own contradicting testimony and other documentary evidence. Early in his testimony,
Baxinela maintained that Lajo had already pulled his handgun and was aiming at him when
he fired:
Q. What else did you do after identifying yourself as a policeman and ask[ing] why he has
a gun?
A. He did not respond.
Q. What else happened if anything happened?
A. He immediately drew his gun turning towards me and aimed it at me.19
Subsequently, when the trial court propounded clarificatory questions, Baxinelas new
assertion was that the firearm was still at the back of Lajo:
Q. At the moment that you fired, was he already able to dr[a]w his firearm or not yet?
A. Yes sir, already pulled out but still at the back.20
Furthermore, the follow-up investigation conducted by the police yielded a different picture
of what happened. This was entered into the police records as Entry No. 3359 and it reads
in part: 21
x x x SPO2 Eduardo Baxinela accosted the victim why he ha[d] in his possession a firearm
and when the victim SGT Ruperto Lajo PA was about to get his wallet on his back pocket
for his ID, SPO2 Eduardo Baxinela anticipated that the victim was drawing his firearm on
his waist prompting said policeman to shoot the victim. x x x
The Court now proceeds to determine if, following the prosecutions version of what
happened, Baxinela can claim the justifying circumstances of self-defense and fulfillment
of a duty or lawful exercise of a right or office.
The requisites for self-defense are: 1) unlawful aggression on the part of the victim; 2) lack
of sufficient provocation on the part of the accused; and 3) employment of reasonable
means to prevent and repel and aggression.22 By invoking self-defense, Baxinela, in effect,
admits killing Lajo, thus shifting upon him the burden of the evidence on these elements.
The first requisite is an indispensable requirement of self-defense. It is a condition sine
qua non, without which there can be no self-defense, whether complete or
incomplete.23 On this requisite alone, Baxinelas defense fails. Unlawful aggression
contemplates an actual, sudden and unexpected attack on the life and limb of a person or
an imminent danger thereof, and not merely a threatening or intimidating attitude. 24 The
attack must be real, or at least imminent. Mere belief by a person of an impending attack
would not be sufficient. As the evidence shows, there was no imminent threat that
necessitated shooting Lajo at that moment. Just before Baxinela shot Lajo, the former was
safely behind the victim and holding his arm. It was Lajo who was at a disadvantage. In
fact, it was Baxinela who was the aggressor when he grabbed Lajos shoulder and started
questioning him. And when Lajo was shot, it appears that he was just turning around to
face Baxinela and, quite possibly, reaching for his wallet. None of these acts could
conceivably be deemed as unlawful aggression on the part of Lajo.
Next, we consider the alternative defense of fulfillment of a duty. In order to avail of this
justifying circumstance it must be shown that: 1) the accused acted in the performance of a
duty or in the lawful exercise of a right or office; and 2) the injury caused or the offense
committed is the necessary consequence of the due performance of duty or the lawful
exercise of a right or office.25 While the first condition is present, the second is clearly
lacking. Baxinelas duty was to investigate the reason why Lajo had a gun tucked behind
his waist in a public place. This was what Baxinela was doing when he confronted Lajo at
the entrance, but perhaps through anxiety, edginess or the desire to take no chances,
Baxinela exceeded his duty by firing upon Lajo who was not at all resisting. The shooting
of Lajo cannot be considered due performance of a duty if at that time Lajo posed no
serious threat or harm to Baxinela or to the civilians in the pub.
Essentially, Baxinela is trying to convince the Court that he should be absolved of criminal
liability by reason of a mistake of fact, a doctrine first enunciated in United States v. Ah
Chong.26 It was held in that case that a mistake of fact will exempt a person from criminal
liability so long as the alleged ignorance or mistake of fact was not due to negligence or
bad faith. In examining the circumstances attendant in the present case, the Court finds
that there was negligence on the part of Baxinela. Lajo, when he was shot, was simply
turning around to see who was accosting him. Moreover, he identified himself saying "I am
MIG." These circumstances alone would not lead a reasonable and prudent person to
believe that Baxinelas life was in peril. Thus, his act of shooting Lajo, to the mind of this
Court, constitutes clear negligence. But even if the Court assumes that Lajos actions were
aggressive enough to appear that he was going for his gun, there were a number of
procedures that could have been followed in order to avoid a confrontation and take
control of the situation. Baxinela, whom the Court assumes not to be a rookie policeman,
could have taken precautionary measures by simply maintaining his hold on to Lajos
shoulders, keeping Lajo facing away from him, forcing Lajo to raise his hands and then
take Lajos weapon. There was also Regimen who should have assisted Baxinela in
disabling and disarming Lajo. The events inside the disco pub that unnecessarily cost the
life of Lajo did not have to happen had Baxinela not been negligent in performing his duty
as a police officer.
The Court will, however, attribute to Baxinela the incomplete defense of fulfillment of a duty
as a privileged mitigating circumstance. In Lacanilao v. Court of Appeals,27 it was held that
if the first condition is fulfilled but the second is wanting, Article 69 of the Revised Penal
Code is applicable so that the penalty lower than one or two degrees than that prescribed
by law shall be imposed.28 Accordingly, the Court grants in favor of Baxinela a privileged
mitigating circumstance and lower his penalty by one degree. His entitlement to the
ordinary mitigating circumstance of voluntary surrender is also recognized, thereby further
reducing his penalty to its minimum.
The Court commiserates with our policemen who regularly thrust their lives in zones of
danger in order to maintain peace and order and acknowledges the apprehensions faced
by their families whenever they go on duty. But the use of unnecessary force or wanton
violence is not justified when the fulfillment of their duty as law enforcers can be effected
otherwise. A "shoot first, think later" attitude can never be countenanced in a civilized
society.
WHEREFORE, the decision of the Court of Appeals is MODIFIED. The conviction of
appellant Eduardo Baxinela for the crime of homicide is AFFIRMED but his sentence is
reduced to an indeterminate penalty of four (4) years and two (2) months of prision
correccional medium, as minimum, to eight (8) years of prision mayor minimum, as
maximum. The awards of damages are affirmed. No costs.
SO ORDERED.
_________________________________________________________
G.R. No. 150647. September 29, 2004]
ROWENO POMOY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
PANGANIBAN, J.:
Well-established is the principle that the factual findings of the trial court, when affirmed by
the Court of Appeals, are binding on the highest court of the land. However, when facts are
misinterpreted and the innocence of the accused depends on a proper appreciation of the
factual conclusions, the Supreme Court may conduct a review thereof. In the present case,
a careful reexamination convinces this Court that an accident caused the victims death. At
the very least, the testimonies of the credible witnesses create a reasonable doubt on
appellants guilt. Hence, the Court must uphold the constitutional presumption of
innocence.
The Case
Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, seeking to set
aside the February 28, 2001 Decision[2] and the October 30, 2001 Resolution[3] of the Court
of Appeals (CA) in CAGR CR No. 18759. The CA affirmed, with modifications, the March 8,
1995 judgment[4] of the Regional Trial Court (RTC)[5] of Iloilo City (Branch 25) in Criminal
Case No. 36921, finding Roweno Pomoy guilty of the crime of homicide. The assailed CA
Decision disposed as follows:
WHEREFORE, premises considered, MODIFIED as to penalty in the sense that the
[Petitioner] ROWENO POMOY is sentenced to suffer an indeterminate prison term of six
(6) years, four (4) months and ten (10) days of prision mayor minimum, as minimum, to
fourteen (14) years eight (8) months and twenty (20) days of reclusion temporal medium,
as maximum, the decision appealed from is hereby AFFIRMED in all other respects.[6]
The challenged CA Resolution denied petitioners Motion for Reconsideration.
Petitioner was charged in an Information worded thus:
That on or about the 4th day of January 1990, in the Municipality of Sara, Province of Iloilo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
armed with his .45 service pistol, with deliberate intent and decided purpose to kill, and
without any justifiable cause or motive, did then and there willfully, unlawfully and
feloniously assault, attack and shoot one TOMAS BALBOA with the service pistol he was
then provided, inflicting upon the latter gunshot wounds on the vital parts of his body, which
directly caused the death of said victim thereafter.[7]
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) presented respondents version of the facts as
follows:
Tomas Balboa was a master teacher of the Concepcion College of Science and Fisheries
in Concepcion, Iloilo.
On January 4, 1990, about 7:30 in the morning, some policemen arrived at
the Concepcion College to arrest Balboa, allegedly in connection with a robbery which took
place in the municipality in December 1989. With the arrest effected, Balboa and the
policemen passed by the Concepcion Elementary School where his wife, Jessica, was in a
get-together party with other School Administrators. When his wife asked him, Why will you
be arrested? [H]e answered [Even I] do not know why I am arrested. That is why I am even
going there in order to find out the reason for my arrest.
Balboa was taken to the Headquarters of the already defunct 321 st Philippine Constabulary
Company at Camp Jalandoni, Sara, Iloilo. He was detained in the jail thereat, along with
Edgar Samudio, another suspect in the robbery case.
Later that day, about a little past 2 oclock in the afternoon, petitioner, who is a police
sergeant, went near the door of the jail where Balboa was detained and directed the latter
to come out, purportedly for tactical interrogation at the investigation room, as he told
Balboa: Lets go to the investigation room. The investigation room is at the main building of
the compound where the jail is located. The jail guard on duty, Nicostrado Estepar, opened
the jail door and walked towards the investigation room.
At that time, petitioner had a gun, a .45 caliber pistol, tucked in a holster which was
hanging by the side of his belt. The gun was fully embedded in its holster, with only the
handle of the gun protruding from the holster.
When petitioner and Balboa reached the main building and were near the investigation
room, two (2) gunshots were heard. When the source of the shots was verified, petitioner
was seen still holding a .45 caliber pistol, facing Balboa, who was lying in a pool of blood,
about two (2) feet away. When the Commanding Officer of the Headquarters arrived, he
disarmed petitioner and directed that Balboa be brought to the hospital. Dr. Palma (first
name not provided) happened to be at the crime scene as he was visiting his brother in the
Philippine Constabulary. When Dr. Palma examined Balboa, he (Dr. Palma) said that it was
unnecessary to bring Balboa to the hospital for he was dead.
Upon the request of Mrs. Jessica Balboa, the wife of the deceased, Dr. Ricardo Jabonete,
the medico-legal officer of the National Bureau of Investigation, Region VI, Iloilo City,
conducted an autopsy on the remains of Tomas Balboa. The following were his findings:
Pallor, integumens and nailbeds.
Wound, gunshot: (1) ENTRANCE, downwards and medially, edges, modified by sutures,
surrounded by abrasion collar, 0.6 cm. In its chest, left side, 10.0 cms. from anterior
midline, 121.0 cms. From left heel, directed medially backwards from left to right,
penetrating chest wall thru 5th intercostals space into thoracic cavity, perforating thru and
thru, upper lobe, left lung, lacerating left ventricular wall causing punched out fracture,
8th thoracic vertebra and make an EXIT, stallate in shape, 1.0 x 0.8 cm. Edges, modified by
sutures, back, right side, 8.0 cms. From posterior midline, 117.0 cms. From right heel (2)
ENTRANCE, ovaloid, oriented medially downwards, edges sutured, 0.7 cm. on its widest
portion, at infero-medial border, hypochondriac region, left side, 4.0 cms. From anterior
midline, 105.0 cms. From left heel, directed backwards, laterally wall into penetrating
abdominal cavity, perforating thru and thru, stomach, head of the pancreas and mesentery,
make an exit, ovalid, 1.0 x 0.8 cm., oriented medially upwards, edges, sutured, back, left
side, level of 9th intercostal space, 4.5 cms. From posterior midline, 110.0 cms. From left
heel. x x x.
CAUSE OF DEATH: Hemorrhage, massive secondary to gunshot wounds on chest and
abdomen.
REMARKS: Body previously embalmed and autopsied.
Dr. Jaboneta testified that the two (2) wounds he found on x x x Balboas body were
gunshot wounds. The entrance of [W]ound No. 1 was to the left side of the chest about the
left nipple and exited to the right side of the back. Its trajectory was backwards then
downwards from left to right. As to the possible position of the assailant, Dr. Jaboneta
opined that the nozzle of the gun was probably in front of the victim and was more to the
left side, and the gun must have been a little bit higher than the entrance wound. Wound
No. 2 was located immediately below the arch of the ribs, left side. Its direction was
backwards and laterally upwards. Dr. Jaboneta estimated that when it was inflicted, the
assailant must have pointed the guns nozzle to the right side front of the victim. The
distance between the entrance points of wounds No. 1 and No. 2 was found to be about
16.0 centimeters.[8]
Version of the Defense
The Petition adopted the narration of facts in the assailed CA Decision, which in turn culled
them from the trial court. The RTC summarized the testimonies of Defense Witnesses
Erna Basa, the lone eyewitness to the incident; Eden Legaspi; Dr. Salvador Mallo Jr.; and
petitioner himself, as follows:
Erna Basa:
x x x [O]n January 4, 1990, she was working in their office in the camp up to the afternoon;
at about past 2 oclock that afternoon while working on the backlogs, she heard some noise
and exchange of words which were not clear, but it seemed there was growing trouble; she
opened the door to verify and saw Roweno Pomoy and Tomas Balboa grappling for the
possession of the gun; she was inside the room and one meter away from the door;
Pomoy and Balboa while grappling were two to three meters away from the door; the
grappling happened so fast and the gun of Pomoy was suddenly pulled out from its holster
and then there was explosion; she was not certain who pulled the gun. x x x.
Eden Legaspi:
x x x [A]s early as 1:30 oclock in the afternoon of January 4, 1990 she was inside the
investigation room of the PC at Camp Jalandoni, Sara, Iloilo; at about 2 oclock that same
afternoon while there inside, she heard a commotion outside and she remained seated on
the bench; when the commotion started they were seated on the bench and after the
commotion that woman soldier (referring to Erna Basa) stood up and opened the door and
she saw two persons grappling for the possession of a gun and immediately two
successive shots rang out; she did not leave the place where she was seated but she just
stood up; after the shots, one of the two men fall down x x x.
Accused-petitioner Roweno Pomoy:
He is 30 years old and a PNP member of the Iloilo Provincial Mobile Force Company then
attached to the defunct 321st PC Company; he was one of the investigators of their outfit;
about 2 oclock or past that time of January 4, 1990 he got Tomas Balboa from their
stockade for tactical interrogation; as he was already holding the door knob of their
investigation room and about to open and enter it, all of a sudden he saw Tomas Balboa
approach him and take hold or grab the handle of his gun; Tomas Balboa was a suspect in
a robbery case who was apprehended by the police of Concepcion and then turned over to
them (PC) and placed in their stockade; he asked the sergeant of the guard to let Balboa
out of the stockade for interrogation; from the stockade with Balboa walking with him, he
had his .45 caliber pistol placed in his holster attached to his belt on his waist; then as he
was holding the doorknob with his right hand to open the door, the victim, who was two
meters away from him, suddenly approached him and grabbed his gun, but all of a sudden
he held the handle of his gun with his left hand; he released his right hand from the
doorknob and, with that right hand, he held the handle of his gun; Tomas Balboa was not
able to take actual hold of the gun because of his efforts in preventing him (Balboa) from
holding the handle of his gun; he used his left hand to parry the move of Balboa; after he
held the handle of his gun with his right hand, in a matter of seconds, he felt somebody
was holding his right hand; he and Balboa grappled and in two or three seconds the gun
was drawn from its holster as both of them held the gun; more grappling followed and five
seconds after the gun was taken from its holster it fired, the victim was to his right side
when the attempt to grab his gun began and was still to his right when the gun was drawn
from its holster until it fired, as they were still grappling or wrestling; his gun was already
loaded in its chamber and cocked when he left his house, and it was locked when it fired;
during the grappling he used his left hand to prevent Balboa from holding his gun, while
the victim used his right hand in trying to reach the gun; after the gun fired, they were
separated from each other and Balboa fell; he is taller than Balboa though the latter was
bigger in build; he cannot say nor determine who of them was stronger; after Balboa fell,
Sgt. Alag shouted saying stop that and he saw Sgt. Alag approaching; sometime after,
Capt. Rolando Maclang, their commanding officer, came, got his gun, and said that the
case be investigated as to what really happened. He said that when his gun was put in its
holster only its handle protrudes or comes out from it.
Upon cross-examination, he said that Balboa was a suspect in a robbery case that
happened during the first week of December, 1989; he was the one who filed that case in
the town of San Dionisio and that case involves other persons who were also detained;
before January 4, 1990 he had also the chance to invite and interrogate Balboa but who
denied any robbery case; x x x [I]t was after he took his lunch that day when Capt.
Maclang called him to conduct the interrogation; when he took Balboa from the stockade
he did not tell him that he (Balboa) was to be investigated in the investigation room which
was housed in the main building which is fifty meters, more or less, from the stockade,
likewise houses the administrative office, the office of the commanding officer, officer of the
operations division and that of the signal division; his gun was in its holster when the victim
tried to grab it (gun); from the time he sensed that the victim tried to grab his gun, he
locked the victim; the hand of the victim was on top of his hand and he felt the victim was
attempting to get his gun; that the entire handle of his gun was exposed when placed
inside its holster; he cannot tell whether the victim, while struggling with him, was able to
hold any portion of his gun from the tip of its barrel to the point where its hammer is
located; during the incident his gun was fully loaded and cocked; Sgt. Alag did not
approach, but just viewed them and probably reported the incident to their commanding
officer; he was not able to talk to Sgt. Alag as he (Pomoy) was not in his right sense; when
his commanding officer came some five to ten minutes later and took away his gun he did
not tell him anything.
Dr. Salvador Mallo Jr.
He is the Rural Health Physician of Sara who conducted the autopsy on the cadaver of
Tomas Balboa that afternoon of January 4, 1990; in his autopsy findings respecting which
he made an autopsy report he said he found two entrance wounds on the victim, the first
on the left chest with trajectory medially downward, while the second one is on the left side
of the stomach with trajectory somewhat going upward; at the same time of his
examination he saw this victim to be wearing a light-colored T-shirt and a jacket; other than
the T-shirt worn by the victim, he did not see or find any powder burns and marks and that
those dotted marks in the T-shirt were believed by him to be powder burns as they look like
one; he also found a deformed slug in the pocket of the jacket of the victim.[9]
Ruling of the Court of Appeals
The CA anchored its Decision on the following factual findings: 1) the victim was not
successful in his attempts to grab the gun, since petitioner had been in control of the
weapon when the shots were fired; 2) the gun had been locked prior to the alleged
grabbing incident and immediately before it went off; it was petitioner who released the
safety lock before he deliberately fired the fatal shots; and 3) the location of the wounds
found on the body of the deceased did not support the assertion of petitioner that there
had been a grappling for the gun.
To the appellate court, all the foregoing facts discredited the claim of petitioner that the
death of Balboa resulted from an accident. Citing People v. Reyes,[10] the CA maintained
that a revolver is not prone to accidental firing if it were simply handed over to the
deceased as appellant claims because of the nature of its mechanism, unless it was
already first cocked and pressure was exerted on the trigger in the process of allegedly
handing it over. If it were uncocked, then considerable pressure had to be applied on the
trigger to fire the revolver. Either way, the shooting of the deceased must have been
intentional because pressure on the trigger was necessary to make the gun fire.[11]
Moreover, the appellate court obviously concurred with this observation of the OSG:
[Petitioners] theory of accident would have been easier to believe had the victim been shot
only once. In this case, however, [petitioner] shot the victim not only once but twice,
thereby establishing [petitioners] determined effort to kill the victim. By any stretch of the
imagination, even assuming without admitting that the first shot was accidental, then it
should not have been followed by another shot on another vital part of the body. The fact
that [petitioner] shot the victim two (2) times and was hit on two different and distant parts
of the body, inflicted from two different locations or angles, means that there was an intent
to cause the victims death, contrary to [petitioners] pretensions of the
alleged accidental firing. It is an oft-repeated principle that the location, number and gravity
of the wounds inflicted on the victim have a more revealing tale of what actually happened
during the incident. x x x.[12]
Furthermore, the CA debunked the alternative plea of self-defense. It held that petitioner
had miserably failed to prove the attendance of unlawful aggression, an indispensable
element of this justifying circumstance.
While substantially affirming the factual findings of the RTC, the CA disagreed with the
conclusion of the trial court that the aggravating circumstance of abuse of public position
had attended the commission of the crime. Accordingly, the penalty imposed by the RTC
was modified by the appellate court in this manner:
x x x [F]or public position to be appreciated as an aggravating circumstance, the public
official must use his influence, prestige and ascendancy which his office gives him in
realizing his purpose. If the accused could have perpetrated the crime without occupying
his position, then there is no abuse of public position. (People vs. Joyno, 304 SCRA 655,
670). In the instant case, there is no showing that the [petitioner] had a premeditated plan
to kill the victim when the former fetched the latter from the stockade, thus, it cannot be
concluded that the public position of the [petitioner] facilitated the commission of the crime.
Therefore, the trial courts finding that the said aggravating circumstance that [petitioner]
took advantage of his public position to commit the crime cannot be sustained. Hence,
there being no aggravating and no mitigating circumstance proved, the maximum of the
penalty shall be taken from the medium period of reclusion temporal, a penalty imposable
for the crime of homicide. x x x.[13]
Hence, this Petition.[14]
Issues
In his Memorandum, petitioner submitted the following issues for the Courts consideration:
I. The Court of Appeals committed serious and reversible error in affirming petitioners
conviction despite the insufficiency of the prosecutions evidence to convict the petitioner, in
contrast to petitioners overwhelming evidence to support his theory/defense of accident.
II. The Court of Appeals committed grave and reversible error in affirming the conviction of
the petitioner on a manifestly mistaken inference that when the gun fired, the petitioner
was in full control of the handle of the gun, because what the testimonies of disinterested
witnesses and the petitioner reveal was that the gun fired while petitioner and Balboa were
both holding the gun in forceful efforts to wrest the gun from each other.
III. The Court of Appeals gravely erred in affirming the solicitor generals observation that
the fact that petitioner shot the victim twice establishes petitioners determined effort to kill
the victim.
IV. The appellate court committed serious misapprehension of the evidence presented
when it ruled that the trajectory of the wounds was front-to-back belying the allegation of
petitioner that he and the victim were side-by-side each other when the grappling ensued.
V. The Court of Appeals failed to discern the real import of petitioners reaction to the
incident when it stated that the dumbfounded reaction of petitioner after the incident
strongly argues against his claim of accidental shooting.
VI. The appellate court committed grave error when it disregarded motive or lack of it in
determining the existence of voluntariness and intent on the part of petitioner to shoot at
the victim when the same was put in serious doubt by the evidence presented.
VII. The Court of Appeals was mistaken in ruling that the defense of accident and self-
defense are inconsistent.
VIII. The Court of Appeals obviously erred in the imposition of the penalties and damages.
[15]
In sum, the foregoing issues can be narrowed down to two: First, whether the shooting of
Tomas Balboa was the result of an accident; and second, whether petitioner was able to
prove self-defense.
The Courts Ruling
The Petition is meritorious.
First Issue: Accidental Shooting
Timeless is the legal adage that the factual findings of the trial court, when affirmed by the
appellate court, are conclusive.[16] Both courts possess time-honored expertise in the field
of fact finding. But where some facts are misinterpreted or some details overlooked, the
Supreme Court may overturn the erroneous conclusions drawn by the courts a
quo. Where, as in this case, the facts in dispute are crucial to the question of innocence or
guilt of the accused, a careful factual reexamination is imperative.
Accident is an exempting circumstance under Article 12 of the Revised Penal Code: Q. When you demonstrated you were according to you saw the hands holding the gun. It
was Sgt. Pomoy who was holding the gun with his right hand?
Article 12. Circumstances which exempt from criminal liability. The following are exempt A. I saw two hands on the handle of the gun in its holster, the hand of Sir Balboa and
from criminal liability: Sgt. Pomoy.

COURT:
xxxxxxxxx Q. At that precise moment the gun was still in its holster?
A. When I took a look the gun was still in its holster with both hands grappling for the
4. Any person who, while performing a lawful act with due care, causes an injury by mere possession of the gun.
accident without fault or intent of causing it. Q. How many hands did you see?
A. Two.
Exemption from criminal liability proceeds from a finding that the harm to the victim was Q. One hand of Sgt. Pomoy and one hand is that of the victim?
not due to the fault or negligence of the accused, but to circumstances that could not have A. Yes, sir.
been foreseen or controlled.[17] Thus, in determining whether an accident attended the
incident, courts must take into account the dual standards of lack of intent to kill and COURT:
absence of fault or negligence. This determination inevitably brings to the fore the main
question in the present case: was petitioner in control of the .45 caliber pistol at the very Proceed.
moment the shots were fired?
ATTY TEODOSIO:
Petitioner Not in Control of the Gun When It Fired Q. Which hand of Sgt. Pomoy did you see holding the gun?
A. Right hand of Sgt. Pomoy.
The records show that, other than petitioner himself, it was Erna Basa who witnessed the Q. And when you see that right hand of Sgt. Pomoy, was it holding the gun?
incident firsthand. Her account, narrated during cross-examination, detailed the events of A. The right hand of Sgt. Pomoy was here on the gun and Sir Balboas hand was also
that fateful afternoon of January 4, 1990 as follows: there. Both of them were holding the gun.
Q. Which part of the gun was the right hand of Sgt. Pomoy holding?
ATTY. TEODOSIO: A. The handle.
Q. You said that while you were inside the investigation room you heard a commotion. That Q. And was he facing Tomas Balboa when he was holding the gun with his right hand?
commotion which you heard, did you hear any shouting as part of that commotion which A. At first they were not directly facing each other.
you heard? Q. So later, they were facing each other?
A. Moderately there was shouting and their dialogue was not clear. It could not be A. They were not directly facing each other. Their position did not remain steady as
understood. they were grappling for the possession of the gun force against force.
Q. Did you hear any voices as part of that commotion?
A. No, sir. COURT:
Q. From the time you entered the investigation room you did not hear any voice while you Q. What was the position of the victim when the shots were fired?
were inside the investigation room as part of that commotion? A. When I saw them they were already facing each other.
A. There was no loud voice and their conversation could not be clarified. They were talking Q. What was the distance?
somewhat like murmuring or in a low voice but there was a sort of trouble in their talks. A. Very close to each other.
Q. How close?
COURT: A. Very near each other.
Q. Was there a sort of an exchange of words in their conversation? Q. Could it be a distance of within one (1) foot?
A. Yes, sir. A. Not exactly. They were close to each other in such a manner that their bodies would
xxxxxxxxx touch each other.
Q. When you opened the door, you saw Sgt. Pomoy and Mr. Balboa the deceased in this Q. So the distance is less than one (1) foot when the gun fired?
case? Am I correct? A. One (1) foot or less when the explosions were heard.
A. Yes, sir. Q. And they were directly facing each other?
Q. And when you saw Sgt. Pomoy was he holding a gun? A. Yes, sir.
A. Not yet, the gun was still here. (Witness illustrating by pointing to her side) and I saw
both of them grappling for that gun. COURT:
Q. Where was the gun at that time?
A. The gun was in its holster. (Witness illustrating by pointing to [her] side.) Proceed.
Q. Were you able to see how the gun was taken out from its holster?
A. While they were grappling for the possession of the gun, gradually the gun was
released from its holster and then there was an explosion.
Q. And when the gun fired the gun was on Tomas Balboa?
A. I could not see towards whom the nozzle of the gun was when it fired
because they were grappling for the possession of the gun.
Q. Did you see when the gun fired when they were grappling for its possession?
A. Yes sir, I actually saw the explosion. It came from that very gun.
Q. Did you see the gun fired when it fired for two times?
A. Yes, sir.
Q. Did you see the barrel of the gun when the gun fired?
A. I could not really conclude towards whom the barrel of the gun was pointed to
because the gun was turning.
xxxxxxxxx
Q. Could you tell the court who was holding the gun when the gun fired?
A. When the gun exploded, the gun was already in the possession of Sgt. Pomoy. He was
the one holding the gun.
Q. After the gun went off, you saw the gun was already in the hand of Sgt. Pomoy?
A. Yes, sir.
Q. How soon after the gun went off when you saw the gun in the hand of Sgt. Pomoy?
A. After Balboa had fallen and after they had separated themselves with each other, it was
then that I saw Sgt. Pomoy holding the gun.
COURT:
Proceed.
ATTY. TEODOSIO:
Q. When the gun was taken out from its holster, Sgt. Pomoy was the one holding the
handle of the gun? Am I correct?
A. Both of them were holding the handle of the gun.
Q. So when the gun was still in its holster, two of them were holding the gun?
A. Yes sir, they were actually holding the gun, Sgt. Pomoy and Sir Balboa.
Q. It was the right hand of Sgt. Pomoy who was holding the handle of the gun as you
testified?
A. Yes, sir.
Q. Which hand of Balboa was holding the handle of the gun?
A. Left hand.
Q. At the time Balboa was holding the handle of the gun with his left hand, was he in front
of Sgt. Pomoy?
A. They had a sort of having their sides towards each other. Pomoys right and Balboas left
sides [were] towards each other. They were side by side at a closer distance towards each
other.
xxxxxxxxx
Q. It was actually Sgt. Pomoy who was holding the handle of the gun during that time?
A. When I looked out it was when they were grappling for the possession of the gun
and the right hand of Sgt. Pomoy was holding the handle of the gun.
Q. When you saw them did you see what position of the handle of the gun was being held
by Tomas Balboa? The rear portion of the handle of the gun or the portion near the trigger?
A. When I looked at them it was the hand of Sgt. Pomoy holding the handle of the
gun with his right hand with the hand of Sir Balboa over the hand of Pomoy, the
same hand holding the gun.
Q. It was in that position when the gun was removed from its holster?
A. When the gun pulled out from its holster, I was not able to notice clearly anymore
whose hand was holding the gun when I saw both their hands were holding the gun.
Q. When you said this in [the] vernacular, Daw duha na sila nagakapot, what you really
mean?
A. Both of them were holding the gun.
Q. But Sgt. Pomoy still holding the handle of the gun?
A. Still both of them were holding the handle of the gun.
Q. With the hand of Balboa still on the top of the hand of Sgt. Pomoy as what you have
previously said when the gun was in the holster of Sgt. Pomoy?
A. When the gun was pulled from its holster, I saw that Sgt. Pomoys right hand was
still on the handle of the gun with the left hand of Sir Balboa over his right hand of
Sgt. Pomoy, like this (witness illustrating by showing his right hand with her left hand over
her right hand as if holding something. The thumb of the left hand is somewhat over the
index finger of the right hand.)
COURT:
Which hand of the victim was used by him when the gun was already pulled out form its
holster and while the accused was holding the handle of the gun?
A. Left hand.
Q. So, he was still using the same left hand in holding a portion of the handle of the gun up
to the time when the gun was pulled out from its holster?
A. Yes sir, the same left hand and that of Pomoy his right hand because the left hand of
Pomoy was used by him in parrying the right hand of Sir Balboa which is about to grab the
handle of the gun.
COURT:
Q. So in the process of grappling he was using his left hand in pushing the victim away
from him?
A. Yes, sir.
Q. What about the right hand of the victim, what was he doing with his right hand?
A. The victim was trying to reach the gun with his right hand and Pomoy was using
his left hand to protect the victim from reaching the gun with his right hand.
COURT:
Proceed.
ATTY. TEODOSIO:
Q. Did you say a while ago that Mr. Balboa was able to hold the barrel of the gun of
Sgt. Pomoy?
A. Yes, sir.
Q. And that was at the time before the shots were fired?
A. Yes, he was able to hold the tip of the barrel of the gun using his right hand.
COURT:
Q. That was before the gun fired?
A. Yes, sir.[18]
The foregoing account demonstrates that petitioner did not have control of the gun during
the scuffle. The deceased persistently attempted to wrest the weapon from him, while he

resolutely tried to thwart those attempts. That the hands of both petitioner and the victim
were all over the weapon was categorically asserted by the eyewitness. In the course of
grappling for the gun, both hands of petitioner were fully engaged -- his right hand was
trying to maintain possession of the weapon, while his left was warding off the victim. It
would be difficult to imagine how, under such circumstances, petitioner would coolly and
effectively be able to release the safety lock of the gun and deliberately aim and fire it at
the victim.
It would therefore appear that there was no firm factual basis for the following declaration
of the appellate court: [Petitioner] admitted that his right hand was holding the handle of
the gun while the left hand of the victim was over his right hand when the gun was
fired. This declaration would safely lead us to the conclusion that when the gun went off
herein [petitioner] was in full control of the gun.[19]
Release of the Guns Safety Lock and Firing of the Gun Both Accidental
Petitioner testified that the .45 caliber service pistol was equipped with a safety lock that,
unless released, would prevent the firing of the gun. Despite this safety feature, however,
the evidence showed that the weapon fired and hit the victim -- not just once, but twice. To
the appellate court, this fact could only mean that petitioner had deliberately unlocked the
gun and shot at the victim. This conclusion appears to be non sequitur.
It is undisputed that both petitioner and the victim grappled for possession of the gun. This
frenzied grappling for the weapon -- though brief, having been finished in a matter of
seconds -- was fierce and vicious. The eyewitness account amply illustrated the logical
conclusion that could not be dismissed: that in the course of the scuffle, the safety lock
could have been accidentally released and the shots accidentally fired.
That there was not just one but two shots fired does not necessarily and conclusively
negate the claim that the shooting was accidental, as the same circumstance can easily be
attributed to the mechanism of the .45 caliber service gun. Petitioner, in his technical
description of the weapon in question, explained how the disputed second shot may have
been brought about:
x x x Petitioner also testified on cross-examination that a caliber .45 semi-automatic pistol,
when fired, immediately slides backward throwing away the empty shell and returns
immediately carrying again a live bullet in its chamber. Thus, the gun can, as it did, fire in
succession. Verily, the location of, and distance between the wounds and the trajectories of
the bullets jibe perfectly with the claim of the petitioner: the trajectory of the first shot going
downward from left to right thus pushing Balboas upper body, tilting it to the left while
Balboa was still clutching petitioners hand over the gun; the second shot hitting him in the
stomach with the bullet going upward of Balboas body as he was falling down and
releasing his hold on petitioners hand x x x.[20]
Thus, the appellate courts reliance on People v. Reyes[21] was misplaced. In that case, the grappling for the possession of the gun when it fired, as what exactly transpired in this
Court disbelieved the accused who described how his gun had exploded while he was case. x x x.
simply handing it over to the victim. Here, no similar claim is being made; petitioner has
consistently maintained that the gun accidentally fired in the course of his struggle with the [The] testimony clearly demonstrates that the petitioner was on the left side of the victim
victim. More significantly, the present case involves a semi-automatic pistol, the during the grappling when the gun fired. The second wound was thus inflicted this wise:
mechanism of which is very different from that of a revolver, the gun used in Reyes. when the first shot hit Balboa, his upper body was pushed downward owing to the
[22]
Unlike a revolver, a semi-automatic pistol, as sufficiently described by petitioner, is
prone to accidental firing when possession thereof becomes the object of a struggle.
Alleged Grappling Not Negated by Frontal Location of Wounds
On the basis of the findings of Dr. Jaboneta showing that the wounds of the deceased
were all frontal, the appellate court rejected petitioners claim that a grappling for the
weapon ever occurred. It held that if there was indeed a grappling between the two, and
that they had been side [by] side x x x each other, the wounds thus inflicted could not have
had a front-to-back trajectory which would lead to an inference that the victim was shot
frontally, as observed by Dr. Jaboneta.[23]
Ordinarily, the location of gunshot wounds is indicative of the positions of the parties at the
precise moment when the gun was fired. Their positions would in turn be relevant to a
determination of the existence of variables such as treachery, aggression and so on.
In the factual context of the present case, however, the location of the wounds becomes
inconsequential. Where, as in this case, both the victim and the accused were grappling
for possession of a gun, the direction of its nozzle may continuously change in the
process, such that the trajectory of the bullet when the weapon fires becomes
unpredictable and erratic. In this case, the eyewitness account of that aspect of the tragic
scuffle shows that the parties positions were unsteady, and that the nozzle of the gun was
neither definitely aimed nor pointed at any particular target. We quote the eyewitness
testimony as follows:
Q. And when the gun fired the gun was on Tomas Balboa?
A. I could not see towards whom the nozzle of the gun was when it fired
because they were grappling for the possession of the gun.
xxxxxxxxx
Q. Did you see the barrel of the gun when the gun fired?
A. I could not really conclude towards whom the barrel of the gun was pointed to
because the gun was turning.[24]
xxxxxxxxx
Q And was he facing Tomas Balboa when he was holding the gun with his right hand?
A At first, they were not directly facing each other.
Q So later, they were facing each other?
A They were not directly facing each other. Their position did not remain steady as they
were grappling for the possession of the gun force against force.[25]
In his Petition, this explanation is given by petitioner:
x x x. The Court of Appeals erred in concluding that Balboa was shot frontally. First,
because the position of the gun does not necessarily indicate the position of the person
or persons holding the gun when it fired. This is especially true when two persons were
knocking power of the caliber .45 pistol. But he did not let go of his grip of the hand of
petitioner and the gun, Balboa pulling the gun down as he was going down. When the gun
went off the second time hitting Balboa, the trajectory of the bullet in Balboas body was
going upward because his upper body was pushed downward twisting to the left. It was
then that Balboa let go of his grip. On cross-examination, petitioner testified, what I
noticed was that after successive shots we separated from each other. This
sequence of events is logical because the protagonists were grappling over the gun and
were moving very fast. x x x. [26]
Presence of All the Elements of Accident
The elements of accident are as follows: 1) the accused was at the time performing a
lawful act with due care; 2) the resulting injury was caused by mere accident; and 3) on the
part of the accused, there was no fault or no intent to cause the injury. [27] From the facts, it
is clear that all these elements were present. At the time of the incident, petitioner was a
member -- specifically, one of the investigators -- of the Philippine National Police (PNP)
stationed at the Iloilo Provincial Mobile Force Company. Thus, it was in the lawful
performance of his duties as investigating officer that, under the instructions of his superior,
he fetched the victim from the latters cell for a routine interrogation.
Again, it was in the lawful performance of his duty as a law enforcer that petitioner tried to
defend his possession of the weapon when the victim suddenly tried to remove it from his
holster. As an enforcer of the law, petitioner was duty-bound to prevent the snatching of his
service weapon by anyone, especially by a detained person in his custody. Such weapon
was likely to be used to facilitate escape and to kill or maim persons in the vicinity,
including petitioner himself.
Petitioner cannot be faulted for negligence. He exercised all the necessary precautions to
prevent his service weapon from causing accidental harm to others. As he so assiduously
maintained, he had kept his service gun locked when he left his house; he kept it inside its
holster at all times, especially within the premises of his working area.
At no instance during his testimony did the accused admit to any intent to cause injury to
the deceased, much less kill him. Furthermore, Nicostrato Estepar, the guard in charge of
the detention of Balboa, did not testify to any behavior on the part of petitioner that would
indicate the intent to harm the victim while being fetched from the detention cell.
The participation of petitioner, if any, in the victims death was limited only to acts
committed in the course of the lawful performance of his duties as an enforcer of the
law. The removal of the gun from its holster, the release of the safety lock, and the firing of
the two successive shots -- all of which led to the death of the victim -- were sufficiently
demonstrated to have been consequences of circumstances beyond the control of
petitioner. At the very least, these factual circumstances create serious doubt on the latters
culpability.
Petitioners Subsequent Conduct Not Conclusive of Guilt
To both the trial and the appellate courts, the conduct of petitioner immediately after the
incident was indicative of remorse. Allegedly, his guilt was evident from the fact that he
was dumbfounded, according to the CA; was mum, pale and trembling, according to the
trial court. These behavioral reactions supposedly point to his guilt. Not necessarily so. His
behavior was understandable. After all, a minute earlier he had been calmly escorting a
person from the detention cell to the investigating room; and, in the next breath, he was
looking at his companions bloodied body. His reaction was to be expected of one in a state
of shock at events that had transpired so swiftly and ended so regrettably.
Second Issue: Self-Defense
Petitioner advanced self-defense as an alternative. Granting arguendo that he intentionally
shot Balboa, he claims he did so to protect his life and limb from real and immediate
danger.
Self-defense is inconsistent with the exempting circumstance of accident, in which there is
no intent to kill. On the other hand, self-defense necessarily contemplates a premeditated
intent to kill in order to defend oneself from imminent danger.[28] Apparently, the fatal shots
in the instant case did not occur out of any conscious or premeditated effort to overpower,
maim or kill the victim for the purpose of self-defense against any aggression; rather, they
appeared to be the spontaneous and accidental result of both parties attempts to possess
the firearm.
Since the death of the victim was the result of an accidental firing of the service gun of
petitioner -- an exempting circumstance as defined in Article 12 of the Revised Penal Code
-- a further discussion of whether the assailed acts of the latter constituted lawful self-
defense is unnecessary.
WHEREFORE, the Petition is GRANTED and the assailed
Decision REVERSED. Petitioner is ACQUITTED.
No costs.
SO ORDERED.
______________________________________________________
G.R. No. 146664. February 28, 2002]
JOHN ANGCACO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the decision,[1] dated November 29, 2000, of the
Court of Appeals, which affirmed with modification the decision, [2] dated January 31, 1996,
of the Regional Trial Court, Branch 1, Puerto Princesa City, finding petitioner
John Angcaco guilty of murder and sentencing him accordingly.
Petitioner John Angcaco and his co-accused in the trial court, namely,
Ramon Decosto, Protacio Edep, Lydio Lota, and Mario Felizarte, were members of the
Integrated National Police of Taytay, Palawan. At the time of the incident, they were
serving a warrant of arrest issued by the Municipal Trial Court
of Taytay on Restituto Bergante, who was wanted in connection with a robbery
case. Edep was acting station commander, while Restituto Bergante was
the barangay captain of Bato, Taytay, Palawan. The information against petitioner and his
co-accused alleged
That on or about the 25th day of September, 1980, more or less 4:00 oclock in the morning
in barangay Bato, municipality of Taytay, province of Palawan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping one another, armed with guns, and with
treachery and evident premeditation and with intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault, fire at and shoot FREDDIE GANANCIAL, hitting
the latter with gunshots on vital parts of his body and inflicting upon him multiple gunshot
wounds which were the direct and immediate cause of his instant death.[3]
When arraigned on June 3, 1981, all of the accused, with the exception of
Ramon Decosto, entered a plea of not guilty to the crime charged.[4] Decosto, who failed to
attend the hearing on that date, was later arraigned on June 23, 1981, during which he
entered a plea of not guilty. Thereafter trial ensued.
The prosecution presented seven witnesses: Noe Bergante,[5] Noel Bergante, Dr. Alberto
Lim, Honorato Flores, Henry Pulga, Antonio Arosio, and Adolfo Jagmis. The gist of their
testimonies is as follows:
At around 4 oclock in the morning of September 25, 1980, Noe Bergante and his brother
Noel Bergante and his cousin Freddie Ganancial were awakened by the sound of gunfire
while they were asleep in their house in Bato, Taytay, Palawan. Their mother, who was
frightened, fainted and had to be helped by Noe. Noel went to the kitchen and, from there,
saw ProtacioEdep fire his carbine, as he shouted, Kapitan, you come down, this is [a]
peace officer. He was apparently referring to Restituto Bergante. Noel answered that his
father was not in the house, having gone to Puerto Princesa. Edep then ordered the men
in the house to come out. Noel accordingly went to the gate and later called Noe to also
come out of the house. Noeand his cousin, Freddie Ganancial, did as bidden.
Once they were outside the house, Noe and Freddie were flanked by
petitioner Angcaco on the right side and accused Ramon Decosto on the left
side. Decosto pointed an armalite at the two and warned them not to run. Noe and Freddie
joined Noel Bergante. Protacio Edep approached Freddie saying, You are tough, and
pushed him. Then, shots rang out from the armalite and short firearm
of Decosto and Edep, as a result of which Freddie Ganancial turned around and dropped
to the ground face down. Decosto was around three meters away from Freddie.
In fright, Noe and Noel ran inside the house. After a few seconds, Noe saw, through the
window, Lota and Angcaco turning over the body of Freddie Ganancial. After briefly leaving
the body, both came back 15 minutes later. Noe said Lota brought with him an object
wrapped in a newspaper, which Noe surmised was a knife. Lota placed the object in the
right hand of Freddie Ganancial. Noel, on the other hand, said that he returned to the
crime scene and recovered two empty shells which he gave to a certain Major
Silos. Noe reported the matter to Barangay Tanods Sabino Mahinay and a certain Ramon.
[6]
Antonio Arosio, a neighbor of the Bergantes, corroborated the testimonies of Noe and
Noel Bergante. According to Arosio, at around 4:30 a.m. of September 25, 1980, while he
was asleep in his house in Bato, Taytay, Palawan, he was awakened by the sound of
gunfire. He said he heard a commotion outside, followed by another volley of shots. He
claimed he recognized by their voices some of the persons involved,
namely, Protacio Edep, Noel Bergante, and Freddie Ganancial.
Arosio claimed that accused Decosto and Felizarte fetched him from his house a short
time later and took him to Edep, who was then in the house of
the barangay captain. Arosio was asked about the whereabouts of
the barangay captain. He told Edep that Restituto Bergante, the barangay captain, had
gone to Puerto Princesa two days earlier.
Arosio testified that on his way home he saw a person lying on the ground in a prone
position. He later learned it was Freddie Ganancial. Arosio identified in court the policemen
whom he saw that morning, that is, Edep, Decosto, Felizarte, Lota, and Angcaco.
On cross-examination, Arosio claimed that he was investigated by a police officer, whose
name he could not remember, three years after the incident. The investigation was held in
the house of Barangay Captain Restituto Bergante, who told him that he would testify in
this case. Although he was reluctant to testify because of fear, Arosio said he finally
agreed to do so in 1984. Prior to the incident, he had not heard Edeps voice but only
assumed that the voice he heard that morning was that of Edep as the latter was the
highest-ranking policeman he later saw.[7]
Although Dr. Romeo D. Valino conducted the postmortem examination on the body of
Freddie Ganancial, it fell to Dr. Alberto H. Lim, Assistant Provincial Health Officer
in Palawan, to identify the medico-legal report of Dr. Valino and to explain its contents in
view of Dr. Valinos death pending the trial of the case.
Dr. Valinos report stated in pertinent parts:
Physical Examination:
1. Gunshot wound lateral aspect D/3 rd arm right (entrance) with contusion collar thru and
thru passing thru the medial aspect arm right, entering to the lateral aspect mid axillary line
at the level of the 9th rib hitting ascending colon and small intestine.
2. Gunshot wound at the level of the 7th rib at anterior axillary line right with contusion collar
(entrance) to the epigastric region (exit) 10 cm[s]. x 3 cm[s]. hitting the liver (mascerated).
3. Gunshot wound subcostal region right at the level of mid clavicular line (entrance) right
side to the subcostal region left side (exit at the level of mid mammary line).
4. Stomach with alcoholic smell.
5. Clotted blood at abdominal cavity, about 500 cc.
Cause of Death:
- Shock secondary to internal and external hemorrhage due to gunshot wounds - body and
abdomen.[8]
Dr. Lim identified the medical report signed by Dr. Valino because he was familiar with the
handwriting of the latter. As regards the contents of the medical certificate, Dr. Lim stated
that Freddie Ganancial, alias Edgar Gallego, 25 years of age, died as a result of shock
secondary to internal and external hemorrhage due to gunshot wounds on the body and
abdomen, which means that the victim died because of loss of blood resulting in shock due
to a gunshot wound in the abdomen. He testified that the victim sustained three gunshot
wounds. The first gunshot entered the body at the lateral aspect distal third arm with
contusion collar, the bullet entering the lateral aspect midaxillary line at the level of the
ninth rib and hitting the colon and small intestine. The second gunshot wound was located
at the right side of the body at the seventh rib at right anterior axillary line with contusion
collar (entrance), the bullet passing through the epigastric region and hitting the liver,
which was mascerated. The third gunshot wound was in the right subcostal region at the
level of the midclavicular line (entrance) right side to the left side of the subcostal region,
the bullet exiting below the nipple.
On cross-examination, Dr. Lim said that based on the findings of the medical report, the
victim had been taking liquor prior to his death. He also admitted that he had not
undertaken studies on the identification of handwriting. Dr. Lim claimed that he identified
the signature of Dr. Valino in the medical report on the basis of the other reports the latter
had submitted to their office.[9]
Honorato Flores, senior ballistician of the National Bureau of Investigation (NBI) in Manila,
identified the ballistics report he had prepared and the shell fragments presented to him for
examination. He said that the fragments could have possibly been caused by the impact of
the bullet on a human being.
When cross-examined, Flores said that no armalite rifle was given to him but only shell
fragments were presented to him for examination. He said that the gun and the lead would
have to be examined by using the bullet comparison microscope to determine whether the
lead was fired from the same gun. A bone or a cement flooring could have caused the shell
fragments to break, according to Flores. Upon inquiry by the trial court, he said it was
possible that a piece of copper and the lead formed part of one bullet, but it was also
possible that they did not.[10]
Sgt. Henry Pulga, acting station commander of Taytay, Palawan, testified that on October
6, 1980, he investigated the complaint filed by Barangay Captain Bergante regarding the
killing of the latters nephew, Freddie Ganancial. He identified the affidavits of
Mario Felizarte (Exh. H) and Ramon Decosto (Exh. I), which he himself
prepared. According to Pulga, he informed Felizarte and Decosto of their rights to counsel
and to remain silent and explained to them the import of these rights. He said
that Felizarte and Decosto voluntarily gave their statements before him,
although Pulga also admitted that the two did not have counsel to assist them during the
investigation.[11]
The last witness for the prosecution was Adolfo D. Jagmis, the chief investigator of
the Palawan Constabulary based in Tiniguiban. He testified that on October 6, 1980 he
investigated Edep, Lota, and Angcaco. He said that after Angcaco was apprised of his
constitutional rights, the latter executed a statement (Exh. J), [12] which Jagmis identified in
court. But Jagmisadmitted that the statement was made without the assistance of counsel.
[13]
On cross-examination by counsel for accused Decosto, Jagmis was confronted with the
affidavit of Angcaco, in which the latter identified an armalite which he allegedly used at the
time of the incident. Jagmis said the armalite and the lead recovered from the scene were
both given to the Provincial Fiscals Office.
The defense presented as its witnesses Protacio Edep, Ramon Decosto, John Angcaco,
and Lydio Lota, whose testimonies are as follows:
In the early morning of September 25, 1980, petitioner and his co-accused, led by Edep,
went to the house of Restituto Bergante in Bato, Taytay, Palawan to serve a warrant for the
latters arrest. When they reached the house, Edep and his men took positions as they had
been warned that Restituto Bergante might resist arrest. Decosto and Angcaco were each
armed with armalites, Lota had a carbine, Felizarte a revolver, and Edep a carbine and a
revolver. Decosto was on the left side of Edep, around seven to 10 meters from the
latter. Angcaco, on the other hand, was on right side of Edep, around four to seven meters
from the latter. Edep called Restituto Bergante to come out of the house as he (Edep) had
a warrant for his arrest. Restitutos wife replied that her husband was not in the house,
having gone to Puerto Princesa. A commotion then took place inside the house and,
shortly after, petitioner saw a man coming down the house. They fired warning shots to
stop the man, but petitioner saw another person with a bolo near Edep. He
shouted, Sarge, this is the man who tried to hack you!, and shot the unidentified man, who
fell to the ground face up. At the time of the incident, Decosto was on the left side of Edep,
while petitioner, Felizarte, and Lota were on the right side of Edep. They later learned that
the person killed was Freddie Ganancial.
Edep conducted an investigation and recovered from the scene of the crime empty shells
from armalite bullets, which he turned over to the provincial fiscal. Edep and his men were
then taken to Taytay and investigated by P/Sgt. Adolfo Jagmis. Thereafter, Edep and his
men learned that they were charged with murder. An administrative complaint for grave
misconduct was likewise filed against them in the National Police Commission, but the
case was dismissed.[14]
On January 31, 1996, the trial court rendered a decision, the dispositive portion of which
reads:
WHEREFORE, after a careful evaluation of the evidence on record, this court is of the
considered opinion, and so holds, that accused John Angcaco, is GUILTY beyond
reasonable doubt of the crime of Murder defined and penalized in Article 248 of the
Revised Penal Code. With the presence of the mitigating circumstance of lack of intention
to commit so grave a wrong and with the application of the Indeterminate Sentence Law,
this Court hereby imposes upon him the penalty of imprisonment ranging from seventeen
(17) years and four (4) months of reclusion temporal as minimum, to twenty (20) years
of reclusion temporal, as maximum, and to pay the heirs of Freddie Ganancial the amount
of fifty thousand pesos (P50,000.00) as death indemnity.
Co-accused Protacio Edep, Ramon Decosto, Lydio Lota and Mario Felizarte are ordered
ACQUITTED for insufficiency of evidence.[15]
Petitioner Angcaco filed an appeal with the Court of Appeals, which affirmed with
modification the trial courts decision. The dispositive portion of the Court of Appeals
decision reads:
WHEREFORE, with the modification only that the mitigating circumstance of incomplete
fulfillment of a lawful duty should be appreciated in determining the imposable penalty, not
lack of intention to commit so grave a wrong, the trial court had correctly imposed the
penalty of imprisonment ranging from seventeen (17) years and four (4) months
of reclusion temporal as minimum, to twenty (20) years of reclusion temporal as maximum
the questioned decision is affirmed in all other respects.
Costs against the accused.
SO ORDERED.[16]
Hence this appeal. Petitioner raises the following issues
I. WHETHER OR NOT THE COURT OF APPEALS OVERLOOKED AND/OR
MISCONSTRUED THE EVIDENCE FOR THE DEFENSE THAT ALL THE ELEMENTS OF
DEFENSE OF [THE] PERSON OR RIGHTS OF A STRANGER ARE PRESENT.
II. WHETHER OR NOT DUE PROCESS OR THE RIGHTS OF PETITIONER-ACCUSED
HAS BEEN VIOLATED WHEN THE HONORABLE COURT OF APPEALS OVERLOOKED
OR FAILED TO APPRECIATE THE WEAKNESS OF THE PROSECUTIONS EVIDENCE
AND ITS FAILURE TO ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.
III. WHETHER OR NOT THE APPELLATE COURT ERRED IN NOT ACQUITTING
[PETITIONER] APPELLANT.[17]
First. Petitioner Angcaco argues that the prosecution evidence failed to prove his guilt
beyond reasonable doubt. He points out inconsistencies and contradictions in the
testimonies and affidavits of prosecution witnesses Noel and Noe Bergante.
We agree with accused-appellants contention. Generally, contradictions between the
contents of the witness affidavit and his testimony in court do not impair his credibility
because affidavits are usually taken ex parte and, for that reason, often incomplete and
inaccurate.[18] An affidavit will not always disclose all the facts and will even at times,
without being noticed by the witness, inaccurately describe the occurrences related
therein. Thus, we have time and again held that affidavits are generally inferior to
testimonies in court. Affidavits are often prepared only by the investigator without the
affiant or witness having a fair opportunity to narrate in full the incident which took place,
whereas in open court, the latter is subjected to cross-examination by counsel for the
accused.[19]
However, where the discrepancies between the affidavit and the witness testimony on the
stand are irreconcilable and unexplained and they refer to material issues, such
inconsistencies may well reflect on the witness candor and even honesty and thus impair
his credibility.[20] Hence, we have recognized as exceptions to the general rule instances
where the narration in the sworn statement substantially contradicts the testimony in court
or where the omission in the affidavit refers to a substantial detail which an eyewitness,
had he been present at the scene at the time of the commission of the crime, could not
have failed to mention.[21] The case at bar is such an instance.
Noe Bergante pointed to Decosto and Edep as the ones who shot Freddie Ganancial.
[22]
However, in his affidavit, dated November 24, 1980, Noe pointed to Decosto as the lone
assailant. Noe also failed to mention the presence of Angcaco at the scene at the time of
the commission of the crime.[23] Noe tried to explain these material omissions in his affidavit
by claiming that he mentioned these details to the fiscal but the latter must have forgotten
to include them in the affidavit because he (the fiscal) was in a hurry to leave that day.
[24]
This explanation is too pat to be accepted. To begin with, Noe admitted that the
investigating fiscal, Fiscal Vergara, explained to him the contents of the affidavit before he
(Noe) signed it.[25] Noe, therefore, could have noticed the omission of such vital matters
which concerned the identification of the persons responsible for his cousins death and
called attention to such omission.The identity of the malefactors is too important a detail for
anyone who allegedly witnessed the incident to overlook its omission in the very statement
of the incident one is giving. The omissions suggest Noes ignorance of the details of the
incident as well as his readiness to perjure himself in order to implicate all of the accused
in this case.
Noel Bergante fared no better than his brother on the witness stand. On direct
examination, Noel, like his brother, identified Edep and Decosto as the assailants of
Freddie Ganancial.[26]However, Noels affidavit, dated November 24, 1980, only
mentioned Decosto as the person responsible for the killing of Freddie Ganancial.
[27]
Worse, Noel executed an affidavit earlier on September 26, 1980, in which he
identified Jardiolin,[28] Mario Toledo, Lydio Lota, and Mario Gonzales as the companions
of Decosto at the time of the commission of the crime. [29] But, in his testimony, Noel said
that Decostos companions were Edep, Angcaco, Felizarte, and Lota.[30] When confronted
with the discrepancy, Noel said that he really meant to refer to Angcaco, instead
of Jardiolin, and to Ramon Decosto instead of Toledo. When further questioned, Noel said
that he was referring to Lota when he mentioned the name of Toledo,[31] thus creating more
confusion with his answers. These contradictions, when taken together with Noels claim
that he had known Jardiolin, Felizarte, and Angcaco for a long time, cast serious doubts on
his credibility.
Thus, prosecution witnesses Noel and Noe Bergante failed to give a credible and
consistent account of the identity of the person or persons responsible for the killing of
Freddie Ganancial. There is apparent from a reading of their testimonies a manifest
tendency to improvise, modify, and even contradict themselves in order to implicate each
of the accused. It is in fact doubtful whether Noe and Noel saw what they testified
about. Even the trial court disregarded the testimonies of Noe and Noel Bergante and
acquitted Edep and Decosto in spite of their identification by these witnesses.
We are thus left with no clear picture of the events that transpired on September 25,
1980 and of the identity of the shooter or shooters. It cannot be overemphasized that the
constitutional presumption of innocence demands not only that the prosecution prove that
a crime has been committed but, more importantly, the identity of the person or persons
who committed the crime.[32] But in the case at bar, what passed for the prosecution
evidence was a befuddling amalgamation of half-truths and lies obviously fabricated by
these supposed eyewitnesses to hold responsible each of the accused in this case for the
killing of their cousin. For this reason, we hold that the prosecution evidence failed to meet
the quantum of proof beyond reasonable doubt necessary for conviction in a criminal case.
Second. The conviction of petitioner Angcaco must, however, be upheld in view of his
admission that he shot Freddie Ganancial. The rule is that while the prosecution has the
burden of establishing the guilt of the accused, once the defendant admits commission of
the act charged, although he invokes a justification for its commission, the burden of proof
is shifted to him to prove the said justifying circumstance. [33] Petitioner Angcaco cannot rely
on the weakness of the evidence for the prosecution, for even if it is weak, it cannot be
disbelieved after he has admitted the killing itself.[34] This is because a judicial confession
constitutes evidence of a high order. It is presumed that no sane person would deliberately
confess to the commission of an act unless moved by the desire to reveal the truth.[35]
Petitioner claims that he acted in defense of Sgt. Protacio Edep, whom
Freddie Ganancial was about to strike with a bolo. We do not agree. For petitioner to
successfully claim the benefit of Art. 11, par. 3 of the Revised Penal Code, there must be
proof of the following elements: (1) unlawful aggression; (2) reasonable necessity of the
means employed to prevent or repel it; and (3) the person defending be not induced by
revenge, resentment, or other evil motive.
Unlawful aggression on the part of the victim, which must be sufficiently proven by the
defense,[36] is present when there is actual or imminent peril to ones life, limb, or right.
There must be actual physical force or actual use of a weapon by the victim himself. [37] In
this case, it is contended that the victim, who was armed with a bolo,
approached Edep menacingly. But, there is no other competent evidence to corroborate
this self-serving claim. Edep testified that he heard petitioners warning that an armed man
was behind him.[38] However, when asked about the weapon allegedly held by the
victim, Edep replied that he did not see any as he turned around to face his supposed
assailant.[39] It was only later that Edep claimed seeing a knife in the area where the victim
fell.[40] One is thus led to suspect that Edeps claim that he saw a knife was a mere
afterthought designed to exculpate his fellow officer from the charges against him.
Petitioners own testimony suffers from inconsistencies and improbabilities on material
points.
First, there was no reason for the victim, Freddie Ganancial, to attack Sgt. Edep, who was
looking for Restituto, because the latter was not there in his house, having earlier gone to
Puerto Princesa. In fact, Edep admitted he was about to order his men to leave the
premises when they found that their quarry was not there. The victim himself was not
wanted by the police. Dr. Lim said Ganancial was drunk. In that condition, he could have
easily have been overpowered by any member of the arresting team, if he made any
aggressive move, without shooting him to prevent him from doing harm to the latter.
Second, when cross-examined about the bolo, petitioner said he could not remember who
took it away.[41] However, at a later hearing, petitioner stated that it was he who picked up
the bolo and turned it over to Edep, his superior officer.[42] But how could he not remember
who took the bolo if he was the one who did so? Once again, petitioner was prevaricating.
Third, petitioner said that he merely intended to fire a warning shot when he
saw Ganancial. This claim is belied by the fact that the victim sustained three gunshot
wounds on the chest and abdomen. It is apparent that petitioner intended to kill the victim
and not merely to warn him.
Indeed, even assuming that the victim was charging at Sgt. Edep, it would have been
sufficient for petitioner to warn Sgt. Edep of the danger. Not that petitioner was not
expected to pause for a moment while his colleague was in danger. [43] However, the rules
of engagement do not, on the other hand, require that he should immediately draw or fire
his weapon if the person accosted did not heed his call. [44] But rather than confront the
victim as to his intended purpose, petitioner immediately shot the former without further
thought.
Petitioner claims the victim was armed with a bolo. The circumstances, however, indicate
otherwise. Petitioner was questioned by the prosecutor on the existence of the bolo during
the hearing held on October 7, 1986. The bolo was presented in court only on October 17,
1986. At the hearing on that date, petitioner and Lydio Lota both claimed that they could
identify the bolo by the markings placed on it by Sgt. Edep.[45] But Sgt. Edep made no
mention of having recovered a bolo, much less of marking it. In fact, Edep at one point
testified that he did not see any weapon near the victim. It is doubtful, therefore, that the
bolo offered in evidence by the defense was the one actually recovered from the scene of
the crime.[46] It is more likely that the idea to offer the bolo in question was a mere
afterthought by the defense brought about by the fiscals own reminder that the
presentation of the weapon was crucial to petitioners plea of defense of stranger.[47]
Nor can petitioners claim that the killing was done in fulfillment of a lawful duty be
sustained, as the Court of Appeals ruled. For this justifying circumstance to be
appreciated, the following must be established: (1) that the offender acted in the lawful
exercise of a right or a duty; and (b) that the injury or offense committed be the necessary
consequence of the due performance of such right or office.[48]
In this case, the mission of petitioner and his colleagues was to effect the arrest
of Restituto Bergante. As Edep himself explained, the standard procedure in making an
arrest was, first, to identify themselves as police officers and to show the warrant to the
arrestee and to inform him of the charge against him, and, second, to take the arrestee
under custody.[49] But, it was not shown here that the killing of Ganancial was in furtherance
of such duty. No evidence was presented by the defense to prove
that Ganancial attempted to prevent petitioner and his fellow officers from
arresting Restituto Bergante. There was in fact no clear evidence as to how
Freddie Ganancial was shot. Indeed, as already stated, any attempt by the victim to arrest
the wanted person was pointless as Restituto Bergante was not in his house. As regards
the second requisite, there can be no question that the killing of Freddie Ganancial was not
a necessary consequence of the arrest to be made on Restituto Bergante.
Reliance by the Court of Appeals on the case of People v. Oanis[50] is misplaced. In Oanis,
the accused, who were police officers, shot and killed the victim under the erroneous
notion that the latter was the person they were charged to arrest. The Court held that the
first requisite that the offenders acted in performance of a lawful duty was present because temporal, as maximum, and to pay the heirs of the victim, Freddie Ganancial, P50,000.00
the offenders, though overzealous in the performance of their duty, thought that they were as civil indemnity and P50,000.00 as moral damages.
in fact killing the man they have been ordered to take into custody dead or alive. In this
case, petitioner did not present evidence that he mistook SO ORDERED.
Freddie Ganancial for Restituto Bergante and, therefore, killed him (Ganancial) perhaps
because he placed the lives of the arresting officers in danger.

Third. On the other hand, we think the Court of Appeals erred in appreciating the qualifying
circumstance of treachery against petitioner. There is treachery when the offender commits
any of the crimes against the person, employing means, methods, or forms in the
execution thereof which tend directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might take. [51] For treachery to
exist, two conditions must be present: (1) there must be employment of means of
execution that gives the person attacked no opportunity to defend himself or to retaliate;
and (2) the means of execution were deliberately or consciously adopted. [52] As has been
discussed, the testimonies of prosecution witnesses Noe and Noel Bergante cannot be
given credence. As we already stated, even the trial court acquitted
accused Decosto and Edep, both of whom were implicated as the assailants. Without
evidence of the manner the aggression was made or how the act resulting in the death of
the victim began and developed, it is not possible to appreciate the qualifying circumstance
of treachery.[53]

Nor can evident premeditation be appreciated in this case. Evident premeditation requires
proof of the following elements: (1) the time when the accused decided to commit the
crime; (2) an overt act manifestly indicating that he has clung to his determination; and (3)
a sufficient lapse of time between decision and execution to allow the accused to reflect
upon the consequences of his act.[54] None of these elements has been shown in this case.

For the foregoing reasons, petitioner is liable only for homicide, for which the penalty under
Art. 249 of the Revised Penal Code is reclusion temporal. As neither mitigating nor
aggravating circumstances attended the commission of the crime, the penalty must be
imposed in its medium period, pursuant to Art. 64(1) of the Revised Penal Code. Applying
the Indeterminate Sentence Law, the minimum imposable penalty on accused-appellant
falls within the range of the penalty next lower in degree, i.e., prision mayor, or from six (6)
years and one (1) day to twelve (12) years. Accordingly, the penalty to be imposed on
accused-appellant must be fixed within the range of prision mayor, or from six (6) years
and one (1) day to twelve years (12) years, as minimum, to reclusion temporal medium, or
from fourteen (14) years, eight (8) months, and one (1) day to seventeen (17) years and
four (4) months, as maximum.

Petitioner should also be made to pay the heirs of the victim, Freddie Ganancial, the
amount of P50,000.00 as moral damages,[55] in addition to the amount of P50,000.00
awarded by the trial court and the Court of Appeals as indemnity.[56] The purpose of making
such an award of moral damages is not to enrich the heirs of the victim but to compensate
them for injuries to their feelings.[57]

WHEREFORE, the decision of the Court of Appeals, dated November 29, 2000, is
AFFIRMED with the MODIFICATION that petitioner is found guilty of the crime of homicide
and is sentenced to suffer the penalty of eight (8) years and one (1) day of prision mayor,
as minimum, to fourteen (14) years, eight (8) months, and one (1) day of reclusion
G.R. No. 103501-03. February 17, 1997] In addition, they shall both suffer the penalty of perpetual special disqualification from
LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE public office.
PEOPLE OF THE PHILIPPINES, respondents.
[G.R. No. 103507. February 17, 1997] A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General
ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and Manager of MIAA, has remained at large.
THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIAL
PROSECUTOR, respondents.
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total
amount of P55 Million was taken on three (3) separate dates of January, 1986. Tabuena
DECISION appears as the principal accused - he being charged in all three (3) cases. The amended
informations in criminal case nos. 11758, 11759 and 11760 respectively read:
FRANCISCO, J.:
That on or about the 10th day of January, 1986, and for sometime subsequent thereto, in
Through their separate petitions for review,[1] Luis A. Tabuena and Adolfo M. Peralta the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused
(Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated October 12, Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General
1990,[2] as well as the Resolution dated December 20, 1991 [3] denying reconsideration, Manager and Assistant General Manager, respectively, of the Manila International Airport
convicting them of malversation under Article 217 of the Revised Penal Code. Tabuena Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the
and Peralta were found guilty beyond reasonable doubt of having malversed the total only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to
amount of P55 Million of the Manila International Airport Authority (MIAA) funds during their
its board resolutions, conspiring, confederating and confabulating with each other, did then
incumbency as General Manager and Acting Finance Services Manager, respectively, of and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take
MIAA, and were thus meted the following sentence: and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from
MIAA funds by applying for the issuance of a managers check for said amount in the name
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the of accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as 3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly
minimum to twenty (20) years of reclusion temporal as maximum, and to pay a fine of as partial payment to the Philippine National Construction Corporation (PNCC), the
TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also mechanics of which said accused Tabuena would personally take care of, when both
reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and
PESOS (P25,000,000.00). after the issuance of the above-mentioned managers check, accused Luis A. Tabuena
encashed the same and thereafter both accused misappropriated and converted the
proceeds thereof to their personal use and benefit, to the damage and prejudice of the
In addition, he shall suffer the penalty of perpetual special disqualification from public government in the aforesaid amount.
office.
CONTRARY TO LAW.
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as
minimum, and twenty (20) years of reclusion temporal as maximum, and to pay a fine of x x x
TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also
reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in
PESOS (P25,000,000.00). the City of Pasay, Philippines and within the jurisdiction of this Honorable Court, accused
Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General
In addition, he shall suffer the penalty of perpetual special disqualification from public Manager and Assistant General Manager, respectively, of the Manila International Airport
office. Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the
only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to
its board resolutions, conspiring, confederating and confabulating with each other, did then
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take
sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from
of reclusion temporal as minimum and twenty (20) years of reclusion temporal as MIAA funds by applying for the issuance of a managers check for said amount in the name
maximum and for each of them to pay separately a fine of FIVE MILLION PESOS of accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-
(P5,000,000.00) the amount malversed. They shall also reimburse jointly and severally the 3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly
Manila International Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00). as partial payment to the Philippine National Construction Corporation (PNCC), the
mechanics of which said accused Tabuena would personally take care of, when both
accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and
after the issuance of the above-mentioned managers check, accused Luis A. Tabuena MEMO TO: The General Manager
encashed the same and thereafter both accused misappropriated and converted the
proceeds thereof to their personal use and benefit, to the damage and prejudice of the Manila International Airport Authority
government in the aforesaid amount.
You are hereby directed to pay immediately the Philippine National Construction
CONTRARY TO LAW. Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in
cash as partial payment of MIAAs account with said Company mentioned in a
xxx Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly
approved by this Office on February 4, 1985.
That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in
the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Your immediate compliance is appreciated.
Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the General
Manager and Acting Manager, Financial Services Department, respectively, of the Manila (Sgd.) FERDINAND MARCOS.[4]
International Airport Authority (MIAA), and accountable for public funds belonging to the
MIAA, they being the only ones authorized to make withdrawals against the cash accounts
of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin
each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the referred to in the MARCOS Memorandum, reads in full:
government, take and misappropriate the amount of FIVE MILLION PESOS
(P5,000,000.00) from MIAA funds by applying for the issuance of a managers check for MEMORANDUM
said amount in the name of accused Luis A. Tabuena chargeable against MIAAs Savings
Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport F o r : The President
in Pasay City, purportedly as partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena would personally take
care of, when both accused well knew that there was no outstanding obligation of MIAA in F r o m : Minister Roberto V. Ongpin
favor of PNCC, and after the issuance of the above-mentioned managers check, accused
Luis A. Tabuena encashed the same and thereafter both accused misappropriated and D a t e : 7 January 1985
converted the proceeds thereof to their personal use and benefit, to the damage and
prejudice of the government in the aforesaid amount.
Subject : Approval of Supplemental Contracts and

CONTRARY TO LAW.
Request for Partial Deferment of Repayment of PNCCs Advances for MIA Development
Project
Gathered from the documentary and testimonial evidence are the following essential
antecedents:
May I request your approval of the attached recommendations of Minister Jesus S. Hipolito
for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP)
Then President Marcos instructed Tabuena over the phone to pay directly to the presidents between the Bureau of Air Transport (BAT) and Philippine National Construction
office and in cash what the MIAA owes the Philippine National Construction Corporation Corporation (PNCC), formerly CDCP, as follows:
(PNCC), to which Tabuena replied, Yes, sir, I will do it. About a week later, Tabuena
received from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a Presidential
Memorandum dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum)
reiterating in black and white such verbal instruction, to wit: 1. Supplemental Contract No. 12

Office of the President Package Contract No. 2 P11,106,600.95

of the Philippines
2. Supplemental Contract No. 13 5,758,961.52
Malacaang

January 8, 1986 3. Supplemental Contract No. 14

Package Contract No. 2 lack of funds

4,586,610.80
Endorsed by project consultants and currently being evaluated 30.7 million
by PEC
4. Supplemental Contract No. 15 1,699,862.69

Submitted by PNCC directly to PEC and currently under66.5 million

5. Supplemental Contract No. 16 evaluation

Package Contract No. 2 233,561.22

Total P99.1 million

6. Supplemental Contract No. 17

There has been no funding allocation for any of the above escalation claims due to
Package Contract No. 2 8,821,731.08 budgetary constraints.

The MIA Project has been completed and operational as far back as 1982 and yet residual
amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to
7. Supplemental Contract No. 18 additional cost of money to service its obligations for this contract.

Package Contract No. 2 6,110,115.75 To allow PNCC to collect partially its billings, and in consideration of its pending escalation
billings, may we request for His Excellencys approval for a deferment of the repayment of
PNCCs advances to the extent of P30 million corresponding to about 30% of P99.1 million
8. Supplemental Contract No. 3 in escalation claims of PNCC, of which P32.5 million has been officially recognized by
MIADP consultants but could not be paid due to lack of funding.Korte

Package Contract No. II 16,617,655.49

(xerox copies only; original memo was submitted to the Office of the President on May 28,
1984)
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA
Project funds. This amount represents the excess of the gross billings of PNCC of P98.4
million over the undeferred portion of the repayment of advances of P63.9 million.
(Sgd.) ROBERTO V. ONGPIN

In this connection, please be informed that Philippine National Construction Corporation
(PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project
aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In
accordance with contract provisions, outstanding advances totalling P93.9 million are to be
deducted from said billings which will leave a net amount due to PNCC of only P4.5
million.
Minister[5]
In obedience to President Marcos verbal instruction and memorandum, Tabuena, with the
help of Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of
three (3) withdrawals.

At the same time, PNCC has potential escalation claims amounting to P99 million in the
following stages of approval/evaluation:
Approved by Price Escalation Committee (PEC) but pended forP 1.9 million
The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of
even date signed by Tabuena and Dabao requesting the PNB extension office at the MIAA
- the depository branch of MIAA funds, to issue a managers check for said amount payable
to Tabuena. The check was encashed, however, at the PNB Villamor Branch. Dabao and
the cashier of the PNB Villamor branch counted the money after which, Tabuena took
delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle
bags, loaded on a PNB armored car and delivered on the same day to the office of Mrs.
Gimenez located at Aguado Street fronting Malacaang. Mrs. Gimenez did not issue any
receipt for the money received.
Similar circumstances surrounded the second withdrawal/encashment and delivery of
another P25 Million, made on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was
Tabuenas co-signatory to the letter- request for a managers check for this amount. Peralta
accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the
counting of the P5 Million. After the counting, the money was placed in two (2) peerless
boxes which were loaded in the trunk of Tabuenas car. Peralta did not go with Tabuena to
deliver the money to Mrs. Gimenez office at Aguado Street. It was only upon delivery of
the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received from
Tabuena. The receipt, dated January 30, 1986, reads:
Malacaang
Manila
January 30, 1986
RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION
PESOS (P55,000,000.00) as of the following dates:
Jan. 10 - P25,000,000.00
Jan. 16 - 25,000,000.00
Jan. 30 - 5,000,000.00
(Sgd.) Fe Roa-Gimenez
The disbursement of the P55 Million was, as described by Tabuena and Peralta
themselves, out of the ordinary and not based on the normal procedure. Not only were
there no vouchers prepared to support the disbursement, the P55 Million was paid in cold
cash. Also, no PNCC receipt for the P55 Million was presented. Defense witness Francis
Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, even
affirmed in court that there were no payments made to PNCC by MIAA for the months of
January to June of 1986.
The position of the prosecution was that there were no outstanding obligations in favor of
PNCC at the time of the disbursement of the P55 Million. On the other hand, the defense
of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena claimed that
he was merely complying with the MARCOS Memorandum which ordered him to forward
immediately to the Office of the President P55 Million in cash as partial payment of MIAAs
obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed had
liabilities to PNCC. Peralta for his part shared the same belief and so he heeded the
request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to
their conviction, Tabuena and Peralta now set forth a total of ten (10) errors [6] committed by
the Sandiganbayan for this Courts consideration. It appears, however, that at the core of
their plea that we acquit them are the following:
1) the Sandiganbayan convicted them of a crime not charged in the amended informations,
and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress that they were being charged with
intentional malversation, as the amended informations commonly allege that:
x x x accused x x x conspiring, confederating and confabulating with each other, did then
and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take
and misappropriated the amount of x x x.
But it would appear that they were convicted of malversation by negligence. In this
connection, the Courts attention is directed to p. 17 of the December 20, 1991 Resolution
(denying Tabuenas and Peraltas motion for reconsideration) wherein the Sandiganbayan
said:
xxxxxxxxx
On the contrary, what the evidence shows is that accused Tabuena delivered the P55
Million to people who were not entitled thereto, either as representatives of MIAA or of the
PNCC.Sclaw
It proves that Tabuena had deliberately consented or permitted through negligence or
abandonment, some other person to take such public funds. Having done so, Tabuena, by
his own narration, has categorically demonstrated that he is guilty of the misappropriation
or malversation of P55 Million of public funds. (Underscoring supplied.)
To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue
that:
1) While malversation may be committed intentionally or by negligence, both modes
cannot be committed at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of
negligence where the amended informations charged them with intentional malversation.[7]
3) Their conviction of a crime different from that charged violated their constitutional right to
be informed of the accusation.[8]
We do not agree with Tabuena and Peralta on this point. Illuminative and controlling
is Cabello v. Sandiganbayan[9] where the Court passed upon similar protestations raised by
therein accused-petitioner Cabello whose conviction for the same crime of malversation
was affirmed, in this wise:
x x x even on the putative assumption that the evidence against petitioner yielded a case
of malversation by negligence but the information was for intentional malversation, under
the circumstances of this case his conviction under the first mode of misappropriation
would still be in order. Malversation is committed either intentionally or by
negligence. The dolo or the culpa present in the offense is only a modality in the
perpetration of the felony. Even if the mode charged differs from the mode proved, the
same offense of malversation is involved and conviction thereof is proper. x x x.
In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or
intentional falsification can validly be convicted of falsification through negligence, thus:
While a criminal negligent act is not a simple modality of a willful crime, as we held in
Quizon vs. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a distinct
crime in our Penal Code, designated as a quasi offense in our Penal Code, it may however
be said that a conviction for the former can be had under an information exclusively
charging the commission of a willful offense, upon the theory that the greater includes the
lesser offense. This is the situation that obtains in the present case. Appellant was charged
with willful falsification but from the evidence submitted by the parties, the Court of Appeals
found that in effecting the falsification which made possible the cashing of the checks in
question, appellant did not act with criminal intent but merely failed to take proper and
adequate means to assure himself of the identity of the real claimants as an ordinary
prudent man would do. In other words, the information alleges acts which charge willful
falsification but which turned out to be not willful but negligent. This is a case covered by
the rule when there is a variance between the allegation and proof, and is similar to some
of the cases decided by this Tribunal.
xxx
Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the essential
elements of the offense charged in the information be proved, it being sufficient that some
of said essential elements or ingredients thereof be established to constitute the crime
proved. x x x.
The fact that the information does not allege that the falsification was committed with
imprudence is of no moment for here this deficiency appears supplied by the evidence
submitted by appellant himself and the
result has proven beneficial to him. Certainly, having alleged that the falsification has been
willful, it would be incongruous to allege at the same time that it was committed with
imprudence for a charge of criminal intent is incompatible with the concept of negligence.
Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and
arguments also apply to the felony of malversation, that is, that an accused charged with
willful malversation, in an information containing allegations similar to those involved in the
present case, can be validly convicted of the same offense of malversation through
negligence where the evidence sustains the latter mode of perpetrating the offense.
Going now to the defense of good faith, it is settled that this is a valid defense in a
prosecution for malversation for it would negate criminal intent on the part of the
accused. Thus, in the two (2) vintage, but significant malversation cases of US v.
Catolico[10] and US v. Elvia,[11] the Court stressed that:
To constitute a crime, the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent, or by such negligence or indifference to duty or to
consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit
reum, nisi mens sit rea - a crime is not committed if the mind of the person performing the
act complained of is innocent.
The rule was reiterated in People v. Pacana,[12] although this case involved falsification of
public documents and estafa:
Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit
reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting.
American jurisprudence echoes the same principle. It adheres to the view that criminal
intent in embezzlement is not based on technical mistakes as to the legal effect of a
transaction honestly entered into, and there can be no embezzlement if the mind of the
person doing the act is innocent or if there is no wrongful purpose.[13] The accused may
thus always introduce evidence to show he acted in good faith and that he had no intention
to convert.[14] And this, to our mind, Tabuena and Peralta had meritoriously shown.
In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS
Memorandum, we are swayed to give credit to his claim of having caused the
disbursement of the P55 Million solely by reason of such memorandum. From this premise
flows the following reasons and/or considerations that would buttress his innocence of the
crime of malversation.
First. Tabuena had no other choice but to make the withdrawals, for that was what the
MARCOS Memorandum required him to do. He could not be faulted if he had to obey and
strictly comply with the presidential directive, and to argue otherwise is something easier
said than done. Marcos was undeniably Tabuenas superior the former being then the
President of the Republic who unquestionably exercised control over government agencies
such as the MIAA and PNCC.[15] In other words, Marcos had a say in matters involving
inter-government agency affairs and transactions, such as for instance, directing payment
of liability of one entity to another and the manner in which it should be carried out. And as
a recipient of such kind of a directive coming from the highest official of the land no less,
good faith should be read on Tabuenas compliance, without hesitation nor any question,
with the MARCOS Memorandum.Tabuena therefore is entitled to the justifying
circumstance of Any person who acts in obedience to an order issued by a superior for
some lawful purpose.[16] The subordinate-superior relationship between Tabuena and
Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS
Memorandum, as it has for its purpose partial payment of the liability of one government
agency (MIAA) to another (PNCC). However, the unlawfulness of the MARCOS
Memorandum was being argued, on the observation, for instance, that the Ongpin Memo
referred to in the presidential directive reveals a liability of only about P34.5 Million. The
Sandiganbayan in this connection said:
Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to the President
dated January 7, 1985) were mainly:
a.) for the approval of eight Supplemental Contracts; and
b.) a request for partial deferment of payment by PNCC for advances made for the MIAA
Development Project, while at the same time recognizing some of the PNCCs escalation
billings which would result in making payable to PNCC the amount of P34.5 million out of
existing MIAA Project funds.
Thus:
xxx
To allow PNCC to collect partially its billings, and in consideration of its pending escalation
billings, may we request for His Excellencys approval for a deferment of repayment of
PNCCs advances to the extent of P30 million corresponding to about 30% of P99.1 million
in escalation claims of PNCC, of which P32.6 million has been officially recognized by
MIADP consultants but could not be paid due to lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA
Project funds. This amount represents the excess of the gross billings of PNCC of P98.4
million over the undeferred portion of the repayment of advances of P63.9 million.
While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to
MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the
stages of evaluation and approval, with only P32.6 million having been officially recognized
by the MIADP consultants.
If any payments were, therefore, due under this memo for Min. Ongpin (upon which
President Marcos Memo was based) they would only be for a sum of up to P34.5 million.[17]
xxxxxxxxx
V. Pres. Marcos order to Tabuena dated January 8, 1986 baseless.
Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55 million irrelevant, but
it was actually baseless.
This is easy to see.
Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, 2-a); Exhibit 1,
however, speaks of P55 million to be paid to the PNCC while Exhibit 2 authorized
only P34.5 million. The order to withdraw the amount of P55 million exceeded the
approved payment of P34.5 million by P20.5 million. Min. Ongpins Memo of January 7,
1985 could not therefore serve as a basis for the Presidents order to withdraw P55 million.
[18]
Granting this to be true, it will not nevertheless affect Tabuenas good faith so as to make
him criminally liable. What is more significant to consider is that the MARCOS
Memorandum is patently legal (for on its face it directs payment of an outstanding liability)
and that Tabuena acted under the honest belief that the P55 million was a due and
demandable debt and that it was just a portion of a bigger liability to PNCC. This belief is
supported by defense witness Francis Monera who, on direct examination, testified that:
ATTY ANDRES
Q Can you please show us in this Exhibit 7 and 7-a where it is indicated the receivables
from MIA as of December 31, 1985?
A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as
Exhibit 7-a, sir, P102,475,392.35.
x x x x x x x x x.[19]
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these obligations represent?
WITNESS
A These obligations represent receivables on the basis of our billings to MIA as contract-
owner of the project that the Philippine National Construction Corporation
constructed. These are billings for escalation mostly, sir.
Q What do you mean by escalation?
A Escalation is the component of our revenue billings to the contract-owner that are
supposed to take care of price increases, sir.
x x x x x x x x x.[20]
ATTY ANDRES
Q When you said these are accounts receivable, do I understand from you that these are
due and demandable?
A Yes, sir.[21]
Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its
illegality, the subordinate is not liable, for then there would only be a mistake of fact
committed in good faith. [22] Such is the ruling in Nassif v. People[23] the facts of which, in
brief, are as follows:
Accused was charged with falsification of commercial document. A mere employee of R.J.
Campos, he inserted in the commercial document alleged to have been falsified the word
sold by order of his principal. Had he known or suspected that his principal was committing
an improper act of falsification, he would be liable either as a co-principal or as an
accomplice. However, there being no malice on his part, he was exempted from criminal
liability as he was a mere employee following the orders of his principal.[24]
Second. There is no denying that the disbursement, which Tabuena admitted as out of the
ordinary, did not comply with certain auditing rules and regulations such as those pointed
out by the Sandiganbayan, to wit:
a) [except for salaries and wages and for commutation of leaves] all disbursements
above P1,000.00 should be made by check (Basic Guidelines for Internal Control dated
January 31, 1977 issued by COA)
b) payment of all claims against the government had to be supported with complete
documentation (Sec. 4, P.D. 1445, State Auditing Code of the Philippines). In this
connection, the Sandiganbayan observed that:
There were no vouchers to authorize the disbursements in question. There were no bills to
support the disbursement. There were no certifications as to the availability of funds for an
unquestionably staggering sum of P55 Million.[25]
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the circumstances Tabuena was in. He did not have
the luxury of time to observe all auditing procedures of disbursement considering the fact
that the MARCOS Memorandum enjoined his immediate compliance with the directive that
he forward to the Presidents Office the P55 Million in cash. Be that as it may, Tabuena
surely cannot escape responsibility for such omission. But since he was acting in good
faith, his liability should only be administrative or civil in nature, and not criminal. This
follows the decision in Villacorta v. People[26] where the Court, in acquitting therein accused
municipal treasurer of Pandan, Catanduanes of malversation after finding that he incurred
a shortage in his cash accountability by reason of his payment in good faith to certain
government personnel of their legitimate wages, leave allowances, etc., held that:
Nor can negligence approximating malice or fraud be attributed to petitioner. If he made
wrong payments, they were in good faith mainly to government personnel, some of them
working at the provincial auditors and the provincial treasurers offices. And if those
payments ran counter to auditing rules and regulations, they did not amount to a criminal
offense and he should only be held administratively or civilly liable.
Likewise controlling is US v. Elvia[27] where it was held that payments in good faith do not
amount to criminal appropriation, although they were made with insufficient vouchers or
improper evidence. In fact, the Dissenting Opinions reference to certain provisions in the
revised Manual on Certificate of Settlement and Balances - apparently made to underscore
Tabuenas personal accountability, as agency head, for MIAA funds - would all the more
support the view that Tabuena is vulnerable to civil sanctions only. Sections 29.2 and 29.5
expressly and solely speak of civilly liable to describe the kind of sanction imposable on a
superior officer who performs his duties with bad faith, malice or gross negligence and on a
subordinate officer or employee who commits willful or negligent acts x x x which are
contrary to law, morals, public policy and good customs even if he acted under order or
instructions of his superiors.
Third. The Sandiganbayan made the finding that Tabuena had already converted and
misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to
the PNCC, proceeding from the following definitions/concepts of conversion:
Conversion, as necessary element of offense of embezzlement, being the fraudulent
appropriation to ones own use of anothers property which does not necessarily mean to
ones personal advantage but every attempt by one person to dispose of the goods of
another without right as if they were his own is conversion to his own use. (Terry v. Water
Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906, 179 Okl. 106)
- At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference subversive of the right of the owner of personal property to
enjoy and control it. The gist of conversion is the usurpation of the owners right of property,
and not the actual damages inflicted. Honesty of purpose is not a defense. (Ferrera v.
Parks, 23 p. 883, 885 19 Or. 141)
- At page 168, id.
xxxxxxxxx
The words convert and misappropriate connote an act of using or disposing of anothers
property as if it were ones own. They presuppose that the thing has been devoted to a
purpose or use different from that agreed upon. To appropriate to ones own use includes
not only conversion to ones personal advantage but every attempt to dispose of the
property of another without right.
People vs. Webber, 57 O.G.
p. 2933, 2937
By placing them at the disposal of private persons without due authorization or legal
justification, he became as guilty of malversation as if he had personally taken them and
converted them to his own use.
People vs. Luntao, 50 O.G.
p. 1182, 1183[28]
We do not agree. It must be stressed that the MARCOS Memorandum directed
Tabuena to pay immediately the Philippine National Construction Corporation, thru this
office, the sum of FIFTY FIVE MILLION...., and that was what Tabuena precisely did when
he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to
the Office of the President inasmuch as Mrs. Gimenez was Marcos secretary
then. Furthermore, Tabuena had reasonable ground to believe that the President was
entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief
Executive, exercised supervision and control over government agencies. And the good
faith of Tabuena in having delivered the money to the Presidents office (thru Mrs.
Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected
even if it later turned out that PNCC never received the money. Thus, it has been said that:
Good faith in the payment of public funds relieves a public officer from the crime of
malversation.
xxxxxxxxx The principles underlying all that has been said above in exculpation of Tabuena equally
apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he
Not every unauthorized payment of public funds is malversation. There is malversation acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal
only if the public officer who has custody of public funds should appropriate the same, or of P5 Million of the P55 Million of the MIAA funds.
shall take or misappropriate or shall consent, or through abandonment or negligence shall
permit any other person to take such public funds. Where the payment of public funds has This is not a sheer case of blind and misguided obedience, but obedience in good faith of
been made in good faith, and there is reasonable ground to believe that the public officer a duly executed order. Indeed, compliance to a patently lawful order is rectitude far better
to whom the fund had been paid was entitled thereto, he is deemed to have acted in good than contumacious disobedience. In the case at bench, the order emanated from
faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized, the Office of the President and bears the signature of the President himself, the highest
renders him only civilly but not criminally liable.[29] official of the land. It carries with it the presumption that it was regularly issued. And on its
face, the memorandum is patently lawful for no law makes the payment of an obligation
Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly
was to siphon-out public money for the personal benefit of those then in power, still, no without question. Obedientia est legis essentia. Besides, the case could not be detached
criminal liability can be imputed to Tabuena. There is no showing that Tabuena had from the realities then prevailing. As aptly observed by Mr. Justice Cruz in his dissenting
anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is there opinion:
proof that he profited from the felonious scheme. In short, no conspiracy was established
between Tabuena and the real embezzler/s of the P55 Million. In the cases of US v. We reject history in arbitrarily assuming that the people were free during the era and that
Acebedo[30] and Ang v. Sandiganbayan,[31] both also involving the crime of malversation, the judiciary was independent and fearless. We know it was not; even the Supreme Court
the accused therein were acquitted after the Court arrived at a similar finding of non-proof at that time was not free.This is an undeniable fact that we can not just blink
of conspiracy. In Acebedo, therein accused, as municipal president of Palo, Leyte, was away. Insisting on the contrary would only make our sincerity suspect and even provoke
prosecuted for and found guilty by the lower court of malversation after being unable to scorn for what can only be described as our incredible credulity.[34]
turn over certain amounts to the then justice of the peace. It appeared, however, that said
amounts were actually collected by his secretary Crisanto Urbina. The Court reversed But what appears to be a more compelling reason for their acquittal is the violation of the
Acebedos conviction after finding that the sums were converted by his secretary Urbina accuseds basic constitutional right to due process. Respect for the Constitution, to borrow
without the knowledge and participation of Acebedo. The Court said, which we herein once again Mr. Justice Cruzs words, is more important than securing a conviction based
adopt: on a violation of the rights of the accused.[35] While going over the records, we were struck
by the way the Sandiganbayan actively took part in the questioning of a defense witness
No conspiracy between the appellant and his secretary has been shown in this case, nor and of the accused themselves. Tabuena and Peralta may not have raised this as an error,
did such conspiracy appear in the case against Urbina. No guilty knowledge of the theft there is nevertheless no impediment for us to consider such matter as additional basis for
committed by the secretary was shown on the part of the appellant in this case, nor does it a reversal since the settled doctrine is that an appeal throws the whole case open to
appear that he in any way participated in the fruits of the crime. If the secretary stole the review, and it becomes the duty of the appellate court to correct such errors as may be
money in question without the knowledge or consent of the appellant and without found in the judgment appealed from whether they are made the subject of assignments of
negligence on his part, then certainly the latter can not be convicted of embezzling the error or not.[36]
same money or any part thereof.[32]
Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the
In Ang, accused-petitioner, as MWSS bill collector, allowed part of his collection to be testimony of Francis Monera, then Senior Assistant Vice President and Corporate
converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct
but the checks were subsequently dishonored. Ang was acquitted by this Court after giving examination. Prosecutor Viernes only asked six (6) questions on cross-examination in the
credence to his assertion that the conversion of his collections into checks were thru the course of which the court interjected a total of twenty-seven (27) questions (more than four
machinations of one Lazaro Guinto, another MWSS collector more senior to him. And we times Prosecutor Viernes questions and even more than the combined total of direct and
also adopt the Courts observation therein, that: cross-examination questions asked by the counsels). After the defense opted not to
conduct any re-direct examination, the court further asked a total of ten (10) questions.
[37]
The petitioners alleged negligence in allowing the senior collector to convert cash The trend intensified during Tabuenas turn on the witness stand. Questions from the
[38]
collections into checks may be proof of poor judgment or too trusting a nature insofar as a court after Tabuenas cross-examination totalled sixty-seven (67). This is more than five
superior officer is concerned but there must be stronger evidence to show fraud, malice, or times Prosecutor Viernes questions on cross-examination (14), and more than double the
other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The total of direct examination and cross-examination questions which is thirty-one (31) [17
prosecution failed to show that the petitioner was privy to the conspirational scheme. Much direct examination questions by Atty. Andres plus 14 cross-examination questions by
less is there any proof that he profited from the questioned acts. Any suspicions of Prosecutor Viernes]. In Peraltas case, the [39]
Justices, after his cross-examination,
conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into propounded a total of forty-one (41) questions.
evidence before conviction beyond reasonable doubt may be imposed.[33]
But more importantly, we note that the questions of the court were in the nature of cross A The payments were made after December 31, 1985 but I think the payments were made
examinations characteristic of confrontation, probing and insinuation.[40] (The insinuating before the entry of our President, your Honor. Actually, the payment was in the form
type was best exemplified in one question addressed to Peralta, which will be of: assignments to State Investment of about P23 million; and then there was P17.8 million
underscored.) Thus we beg to quote in length from the transcripts pertaining to witness application against advances made or formerly given; and there were payments to PNCC
Monera, Tabuena and Peralta. (Questions from the Court are marked with asterisks and of about P2.6 million and there was a payment for application on withholding and
italicized for emphasis.) contractual stock of about P1 million; that summed up to P44.4 million all in all. And you
deduct that from the P102 million, the remaining balance would be about P57 million.
(MONERA)
*PJ GARCHITORENA
(As a background, what was elicited from his direct examination is that the PNCC had
receivables from MIAA totalling P102,475,392.35, and although such receivables were *Q What you are saying is that, for all the payments made on this P102 million,
largely billings for escalation, they were nonetheless all due and demandable. What only P2 million had been payments in cash?
follows are the cross-examination of Prosecutor Viernes and the court questions).
A Yes, your Honor.
CROSS-EXAMINATION BY PROS. VIERNES
*Q The rest had been adjustments of accounts, assignments of accounts, or
Q You admit that as shown by these Exhibits 7 and 7-a, the items here represent mostly offsetting of accounts?
escalation billings. Were those escalation billings properly transmitted to MIA authorities?
A I dont have the documents right now to show that they were transmitted, but I have a A Yes, your Honor.
letter by our President, Mr. Olaguer, dated July 6, 1988, following up for payment of the
balance of our receivables from MIA, sir.
*AJ AMORES *Q This is as of December 31, 1985?
*Q This matter of escalation costs, is it not a matter for a conference between the
MIA and the PNCC for the determination as to the correct amount? A The P102 million was as of December 31, 1985, your Honor, but the balances is as of
A I agree, your Honor. As far as we are concerned, our billings are what we deemed are August 1987.
valid receivables. And, in fact, we have been following up for payment.
*Q This determination of the escalation costs was it accepted as the correct figure *Q We are talking now about the P44 million, more or less, by which the basic
by MIA? account has been reduced. These reductions, whether by adjustment or assignment
A I dont have any document as to the acceptance by MIA, your Honor, but our company or actual delivery of cash, were made after December 31, 1985?
was able to get a document or a letter by Minister Ongpin to President Marcos, dated
January 7, 1985, with a marginal note or approval by former President Marcos.
*PJ GARCHITORENA WITNESS
*Q Basically, the letter of Mr. Ongpin is to what effect?
A The subject matter is approval of the supplementary contract and request for partial A Yes, your Honor.
deferment of payment for MIA Development Project, your Honor.
*Q It has nothing to do with the implementation of the escalation costs?
*Q And your records indicate when these adjustments and payments were made?
A The details show that most of the accounts refer to our escalations, your Honor.
*Q Does that indicate the computation for escalations were already billed or you do
not have any proof of that? A Yes, your Honor.
A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin
appears to have confirmed our billings to MIA, your Honor. *AJ AMORES
*AJ AMORES
*Q Were there partial payments made by MIA on these escalation billings?
*Q You said there were partial payments before of these escalation billings. Do we
A Based on records available as of today, the P102 million was reduced to about P56.7
get it from you that there was an admission of these escalation costs as computed
million, if my recollection is correct, your Honor.
by you by MIA, since there was already partial payments?
*PJ GARCHITORENA
*Q Were the payments made before or after February 1986, since Mr. Olaguer is a
new entrant to your company? A Yes, your Honor.

WITNESS *Q How were these payments made before February 1986, in case or check, if there
were payments made?
A The P44 million payments was in the form of assignments, your Honor. A Yes, your Honor.

*PJ GARCHITORENA *Q And they have liquidated that, as you described it, by way of assignments,
adjustments, by offsets and by P2 million of cash payment?
*Q The question of the Court is, before December 31, 1985, were there any
liquidations made by MIA against these escalation billings? A Yes, your Honor.

A I have not reviewed the details of the record, your Honor. But the ledger card indicates *AJ AMORES
that there were collections on page 2 of the Exhibit earlier presented. It will indicate that
there were collections shown by credits indicated on the credit side of the ledger. *Q Your standard operating procedure before December 31, 1985 in connection with
or in case of cash payment, was the payment in cash or check?
*AJ AMORES
A I would venture to say it was by check, your Honor.
*Q Your ledger does not indicate the manner of giving credit to the MIA with respect
to the escalation billings. Was the payment in cash or just credit of some sort before *Q Which is the safest way to do it?
December 31, 1985?
A Yes, your Honor.
A Before December 31, 1985, the reference of the ledger are official receipts and I
suppose these were payments in cash, your Honor.
*PJ GARCHITORENA
*Q Do you know how the manner of this payment in cash was made by MIA?
*Q And the business way?
A I do not know, your Honor.
A Yes, your Honor.
*PJ GARCHITORENA
PJ GARCHITORENA
*Q But your records will indicate that?
Continue.
A The records will indicate that, your Honor.
PROS VIERNES
*Q Except that you were not asked to bring them?
Q You mentioned earlier about the letter of former Minister Ongpin to the former President
Marcos, did you say that that letter concurs with the escalation billings reflected in Exhibits
A Yes, your Honor. 7 and 7-a?

*Q At all events, we are talking of settlement or partial liquidation prior to December WITNESS
31, 1985?
A The Company or the management is of the opinion that this letter, a copy of which we
A Yes, your Honor. were able to get, is a confirmation of the acceptance of our billings, sir.

*PJ GARCHITORENA Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of
escalation billings as appearing in Exhibit 7 are dated June 30, 1985, would you still insist
*Q Subsequent thereto, we are talking merely of about P44 million? that the letter of January 1985 confirms the escalation billings as of June 1985?

A Yes, your Honor, as subsequent settlements. A The entries started June 30 in the ledger card. And as of December 31, 1985, it stood
at P102 million after payments were made as shown on the credit side of the ledger. I
*Q After December 31, 1985? suppose hat the earlier amount, before the payment was made, was bigger and therefore I
would venture to say that the letter of January 7, 1985 contains an amount that is part of No redirect, your Honor.
the original contract account.What are indicated in the ledger are escalation billings.
*PJ GARCHITORENA
*PJ GARCHITORENA
Questions from the Court.
*Q We are talking about the letter of Minister Ongpin?
*AJ AMORES
A The letter of Minister Ongpin refers to escalation billings, sir.
*Q From your records, for the month of January 1986, there was no payment of this
*Q As of what date? escalation account by MIA?

A The letter is dated January 7, 1985, your Honor. WITNESS

PJ GARCHITORENA A Yes, your Honor. But on page 2 of Exhibit 7 there appears an assignment of P23 million,
that was on September 25, 1986.
Continue.
*Q But that is already under the present administration?
PROS. VIERNES
A After February 1986, your Honor.
Q In accordance with this letter marked Exhibit 7 and 7-a, there were credits made in favor
of MIA in July and November until December 1985. These were properly credited to the *Q But before February, in January 1986, there was no payment whatsoever by MIA
account of MIA? to PNCC?

WITNESS A Per record there is none appearing, your Honor.

A Yes, sir. *PJ GARCHITORENA

Q In 1986, from your records as appearing in Exhibit 7-a, there were no payments made to *Q The earliest payment, whether by delivery of cash equivalent or of adjustment of
PNCC by MIA for the months of January to June 1986? account, or by assignment, or by offsets, when did these payments begin?

A Yes, sir. A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor.

Q And neither was the amount of P22 million remitted to PNCC by MIA? *Q After December 31, 1985?

A Yes, sir. A There appears also P23 million as credit, that is a form of settlement, your Honor.

PROS VIERNES *Q This is as of September 25?

That will be all, your Honor. A Yes, your Honor. There were subsequent settlements. P23 million is just part of the P44
million.
PJ GARCHITORENA
*Q And what you are saying is that, PNCC passed the account to State
Redirect? Investment. In other words, State Investment bought the credit of MIA?

ATTY ANDRES A Yes, your Honor.

*Q And the amount of credit or receivables sold by PNCC to State Investment is P23 Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were
million? delivered on how many occasions?

A Yes, your Honor. A Three times, sir.

*Q Is there a payback agreement? Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?

A I have a copy of the assignment to State Investment but I have not yet reviewed the A Yes, sir.
same, your Honor.
Q It was only on January 30, 1986 that this receipt Exhibit 3 was issued by Mrs. Gimenez?
*AJ AMORES
A Yes, sir.
*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?
*PJ GARCHITORENA
A There is still a balance of receivables from MIA as evidenced by a collection letter by our
President dated July 6, 1988, your Honor. The amount indicated in the letter is P55 million. *Q So January 30 is the date of the last delivery?

PJ GARCHITORENA A I remember it was on the 31st of January, your Honor. What happened is that, I did not
notice the date placed by Mrs. Gimenez.
Any clarifications you would like to make Mr. Estebal?
*Q Are you telling us that this Exhibit 3 was incorrectly dated?
ATTY ESTEBAL
A Yes, your Honor.
None, your Honor.
*Q Because the third delivery was on January 31st and yet the receipt was dated
PJ GARCHITORENA January 30?

Mr. Viernes? A Yes, your Honor.

PROS VIERNES *Q When was Exhibit 3 delivered actually by Mrs. Gimenez?

No more, your Honor. A January 31st, your Honor.

PJ GARCHITORENA PJ GARCHITORENA

The witness is excused. Thank you very much Mr. Monera. x x x.[41] Continue.

(TABUENA) PROS VIERNES

(In his direct examination, he testified that he caused the preparation of the checks Q You did not go to Malacaang on January 30, 1986?
totalling P55 Million pursuant to the MARCOS Memorandum and that he thereafter
delivered said amount in cash on the three (3) dates as alleged in the information to A Yes, sir, I did not.
Marcos private secretary Mrs. Jimenez at her office at Aguado Street, who thereafter
issued a receipt. Tabuena also denied having used the money for his own personal use.)
Q Do you know at whose instance this Exhibit 3 was prepared?
CROSS-EXAMINATION BY PROS. VIERNES
A I asked for it, sir. Q Did you actually see Mrs. Gimenez signing this receipt Exhibit 3?

Q You asked for it on January 31, 1986 when you made the last delivery? A No, sir, I did not. She was inside her room.

A Yes, sir. Q So, she was in her room and when she came out of the room, she handed this receipt to
you already typed and signed?
Q Did you see this Exhibit 3 prepared in the Office of Mrs. Gimenez?
A Yes, sir.
A Yes, sir.
*AJ HERMOSISIMA
Q This receipt was typewritten in Malacaang stationery. Did you see who typed this
receipt? *Q So, how did you know this was the signature of Mrs. Gimenez?

A No, sir. What happened is that, she went to her room and when she came out she gave WITNESS
me that receipt.
A Because I know her signature, your Honor. I have been receiving letters from her also
*PJ GARCHITORENA and when she requests for something from me. Her writing is familiar to me.

*Q What you are saying is, you do not know who typed that receipt? *Q So, when the Presiding Justice asked you as to how you knew that this was the
signature of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it, you
WITNESS were not exactly truthful?

A Yes, your Honor.
*Q Are you making an assumption that she typed that receipt?
A Yes, your Honor, because she knows how to type.
*Q Your assumption is that she typed it herself?
A What I mean is, I did not see her sign because she went to her room and when she
came out, she gave me that receipt, your Honor.
PJ GARCHITORENA
That is why you have to wait for the question to be finished and listen to it
carefully. Because when I asked you, you said you saw her signed it. Be careful Mr.
Tabuena.

A Yes, your Honor. WITNESS

PJ GARCHITORENA Yes, your Honor.

Proceed. PJ GARCHITORENA

PROS. VIERNES Continue.

Q This receipt was prepared on January 31, although it is dated January 30? PROS VIERNES

A Yes, sir, because I was there on January 31st. Q Was there another person inside the office of Mrs. Gimenez when she gave you this
receipt Exhibit 3?
Q In what particular place did Mrs. Gimenez sign this Exhibit 3?
A Nobody, sir.
A In her office at Aguado, sir.
Q I noticed in this receipt that the last delivery of the sum of P55 million was made on *Q From whom did you receive the Presidents memorandum marked Exhibit 1? Or more
January 30. Do we understand from you that this date January 30 is erroneous? precisely, who handed you this memorandum?

A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be A Mrs. Fe Roa Gimenez, your Honor.
January 31st, sir.
*Q Did you ask Mrs. Fe Gimenez for what purpose the money was being asked?
PROS VIERNES
A The money was in payment for the debt of the MIA Authority to PNCC, your Honor.
That will be all, your Honor.
*Q If it was for the payment of such obligation why was there no voucher prepared to cover
PJ GARCHITORENA such payment? In other words, why was the delivery of the money not covered by any
voucher?Calrky
Redirect?
A The instruction to me was to give it to the Office of the President, your Honor.
ATTY. ANDRES
*PJ GARCHITORENA
No redirect, your Honor.
*Q Be that as it may, why was there no voucher to cover this particular disbursement?
*PJ GARCHITORENA
A I was just told to bring it to the Office of the President, your Honor.
Questions from the Court.
*AJ DEL ROSARIO
*AJ HERMOSISIMA
*Q Was that normal procedure for you to pay in cash to the Office of the President for
*Q Why did you not ask for a receipt on the first and second deliveries? obligations of the MIAA in payment of its obligation to another entity?

A Because I know that the delivery was not complete yet, your Honor. WITNESS

*PJ GARCHITORENA A No, your Honor, I was just following the Order to me of the President.

*Q So you know that the total amount to be delivered was P55 million? *PJ GARCHITORENA

A Yes, your Honor. *Q So the Order was out of the ordinary?

PJ GARCHITORENA A Yes, your Honor.

Response by Mr. Peralta to the testimony of Mr. Tabuena. *AJ DEL ROSARIO

ATTY. ESTEBAL *Q Did you file any written protest with the manner with which such payment was being
ordered?
We are adopting the testimony of Mr. Tabuena and we will also present the accused, your
Honor. A No, your Honor.

*AJ DEL ROSARIO *Q Why not?

A Because with that instruction of the President to me, I followed, your Honor. *Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this
procedure has to be followed instead of the regular procedure?
*Q Before receiving this memorandum Exhibit 1, did the former President Marcos discuss
this matter with you? A: No, sir.

A Yes, your Honor. *AJ DEL ROSARIO

*Q When was that? *Q Why did you not ask?

A He called me up earlier, a week before that, that he wants to me pay what I owe the A I was just ordered to do this thing, your Honor.
PNCC directly to his office in cash, your Honor.
*AJ HERMOSISIMA
*PJ GARCHITORENA
*Q You said there was an I OWE YOU?
*Q By I OWE, you mean the MIAA?
A Yes, your Honor.
WITNESS
*Q Where is that I OWE YOU now?
A Yes, your Honor.
A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes
*AJ DEL ROSARIO PNCC that amount.

*Q And what did you say in this discussion you had with him? *Q Was this payment covered by receipt from the PNCC?

A I just said, Yes, sir, I will do it/ A It was not covered, your Honor.

*Q Were you the one who asked for a memorandum to be signed by him?
A No, your Honor.
*Q After receiving that verbal instruction for you to pay MIAAs obligation with PNCC, did
you not on your own accord already prepare the necessary papers and documents for the
payment of that obligation?
*Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that
payment?
A Based on the order to me by the former President Marcos ordering me to pay that
amount to his office and then the mechanics will come after, your Honor.
*Q Is the PNCC a private corporation or government entity?

A He told me verbally in the telephone that the Order for the payment of that obligation is A I think it is partly government, your Honor.
forthcoming, your Honor. I will receive it.
*PJ GARCHITORENA
*Q Is this the first time you received such a memorandum from the President?
*Q That is the former CDCP?
A Yes, your Honor.
A Yes, your Honor.
*Q And was that the last time also that you received such a memorandum?
*AJ HERMOSISIMA
A Yes, your Honor.
*Q Why were you not made to pay directly to the PNCC considering that you are the *Q Prior to 1986?
Manager of MIA at that time and the PNCC is a separate corporation, not an adjunct of
Malacaang? A Yes, your Honor.

WITNESS *Q Can you tell us when you became the Manager of MIA?

A I was just basing it from the Order of Malacaang to pay PNCC through the Office of the A I became Manager of MIA way back, late 1968, your Honor.
President, your Honor.
*Q Long before the MIA was constituted as an independent authority?
*Q Do you know the President or Chairman of the Board of PNCC?
A Yes, your Honor.
A Yes, your Honor.
*PJ GARCHITORENA
*Q How was the obligation of MIAA to PNCC incurred. Was it through the President or
Chairman of the Board?
*Q And by 1986, you have been running the MIA for 18 years?
A PNCC was the one that constructed the MIA, your Honor.
WITNESS
*Q Was the obligation incurred through the President or Chairman of the Board or
President of the PNCC? In other words, who signed the contract between PNCC and A Yes, your Honor.
MIAA?
*Q And prior to your joining the MIA, did you ever work for the government?
A Actually, we inherited this obligation, your Honor. The one who signed for this was the
former Director of BAT which is General Singzon. Then when the MIA Authority was A No, your Honor.
formed, all the obligations of BAT were transferred to MIAA. So the accountabilities of BAT
were transferred to MIAA and we are the ones that are going to pay, your Honor. *Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your
first employment with the government?
*Q Why did you agree to pay to Malacaang when your obligation was with the PNCC?
A Yes, your Honor.
A I was ordered by the President to do that, your Honor.
*Q While you were Manager of MIA, did you have other subsequent concurrent positions in
*Q You agreed to the order of the President notwithstanding the fact that this was not the the government also?
regular course or Malacaang was not the creditor?
A I was also the Chairman of the Games and Amusement Board, your Honor.
A I saw nothing wrong with that because that is coming from the President, your Honor.
*Q But you were not the executive or operating officer of the Games and Amusement
*Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money Board?
in this amount through a mere receipt from the private secretary?
A I was, your Honor.
A I was ordered by the President, your Honor.
*Q As Chairman you were running the Games and Amusement Board?
*PJ GARCHITORENA
A Yes, your Honor.
*Q There is no question and it can be a matter of judicial knowledge that you have been
with the MIA for sometime? *Q What else, what other government positions did you occupy that time?

A Yes, your Honor.

A I was also Commissioner of the Game Fowl Commission, your Honor. *Q And one of our unfortunate experience (sic) is when the COA Representative comes to
us and says: Chairman or Manager, this cannot be. And we learn later on that COA has
*PJ GARCHITORENA reasons for its procedure and we learn to adopt to them?

*Q That is the cockfighting? WITNESS

WITNESS A Yes, your Honor.

A Yes, your Honor. *Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it
foolish, but we know there is reason in this apparent madness of the COA and so we
comply?
*Q Here, you were just a member of the Board?
A Yes, your Honor.
A Yes, your Honor.
*Q And more than anything else the COA is ever anxious for proper documentation and
*Q So you were not running the commission? proper supporting papers?

A Yes, your Honor. A Yes, your Honor.

*Q Any other entity? *Q Sometimes, regardless of the amount?

A No more, your Honor. A Yes, your Honor.

*Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for
approximately 18 years, you also ran the Games and Amusement Board as its executive
officer?
A Yes, your Honor.
*Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor
of the particular credit, and to be delivered in armored cars to be acknowledged only by a
receipt of a personal secretary. After almost 18 years in the government service and
having had that much time in dealing with COA people, did it not occur to you to call a COA
representative and say, What will I do here?

*Q And you were a commissioner only of the Game Fowl Commission? A I did not, your Honor.

A Yes, your Honor. *PJ GARCHITORENA

*Q Who was running the commission at that time? *Q Did you not think that at least out of prudence, you should have asked the COA for
some guidance on this matter so that you will do it properly?
A I forgot his name, but he retired already, your Honor.
WITNESS
*Q All of us who joined the government, sooner or later, meet with our Resident COA
representative? A What I was going to do is, after those things I was going to tell that delivery ordered by
the President to the COA, your Honor.
A Yes, your Honor.
*Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta
*PJ GARCHITORENA signed requests for issuance of Managers checks and you were accommodated by the
PNB Office at Nichols without any internal documentation to justify your request for
Managers checks?

A Yes, your Honor.

*Q Of course we had no intimation at that time that Mr. Marcos will win the elections but
even then, the Daily Express, which was considered to be a newspaper friendly to the
Marcoses at that time, would occasionally come with so-called expose, is that not so?
A Yes, your Honor.
*Q And worst, you had the so-called mosquito press that would always come out with the
real or imagined scandal in the government and place it in the headline, do you recall that?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Under these circumstances, did you not entertain some apprehension that some
disloyal employees might leak you out and banner headline it in some mosquito
publications like the Malaya at that time?
WITNESS
A No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to find out different areas of fear. We are in the
government and we in the government fear the COA and we also fear the press. We might
get dragged into press releases on the most innocent thing. You believe that?
A Yes, your Honor.
*Q And usually our best defense is that these activities are properly documented?
A Yes, your Honor.
*Q In this particular instance, your witnesses have told us about three (3) different trips
from Nichols to Aguado usually late in the day almost in movie style fashion. I mean, the
money being loaded in the trunk of your official car and then you had a back-up truck
following your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience to you?
A I did not think of that at that time, your Honor.
*PJ GARCHITORENA
*Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the
trunk of your car?
WITNESS
A We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his
car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How much more with P5 million inside
the trunk of your car, was that not a nervous experience?
A As I have said, your Honor, I never thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused. x x x.[42]
(PERALTA)
(He testified on direct examination that he co-signed with Tabuena a memorandum request
for the issuance of the Managers Check for P5 Million upon order of Tabuena and that he
[Peralta] was aware that MIAA had an existing obligation with PNCC in the amount of
around P27 Million. He affirmed having accompanied Tabuena at the PNB Villamor Branch
to withdraw the P5 Million, but denied having misappropriated for his own benefit said
amount or any portion thereof.)
CROSS-EXAMINATION BY PROS VIERNES
Q Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr.
Tabuena the request for issuance of Managers check in the amount of P5 million?
A At that time I was the Acting Financial Services Manager of MIAA, sir, and all
withdrawals of funds should have my signature because I was one of the signatories at
that time.
Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in
similar requests for the issuance of Managers checks by the PNB?
A That is the only occasion I signed, sir.
Q Did you say you were ordered by Mr. Tabuena to sign the request?
A Yes, sir, and I think the order is part of the exhibits. And based on that order, I co-signed A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or
in the request for the issuance of Managers check in favor of Mr. Luis Tabuena. before the 4th Friday of the month because there will be a Board of Directors Meeting and
the Financial Statement of the prior month will be presented and discussed during the
PROS VIERNES meeting.

Q Was there a separate written order for you to co-sign with Mr. Tabuena? *PJ GARCHITORENA

WITNESS *Q This matter of preparing Financial Statement was not an annual activity but a monthly
activity?
A Yes, sir, an order was given to me by Mr. Tabuena.
A Yes, your Honor.
*PJ GARCHITORENA
*Q This Financial Statement you prepared in January of 1986 recapitulated the financial
condition as of the end of the year?
Was that marked in evidence?
A Yes, your Honor.
WITNESS
PJ GARCHITORENA
Yes, your Honor.
Continue.
*PJ GARCHITORENA
PROS VIERNES
What exhibit?
Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did
WITNESS you personally see that request?

I have here a copy, your Honor. This was the order and it was marked as exhibit N. A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I
have no file because I just read it.

Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?
PROS VIERNES
A Yes, sir.
It was marked as Exhibit M, your Honor.
*PJ GARCHITORENA
Q How did you know there was an existing liability of MIAA in favor of PNCC at that time?
And that will be Exhibit?
A Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement
of MIAA as of December 31, 1985 and it came to my attention that there was an existing ATTY. ANDRES
liability of around P27,999,000.00, your Honor.
Exhibit 2 and 2-A, your Honor.
Q When was that Financial Statement prepared?
PROS VIERNES
A I prepared it around January 22 or 24, something like that, of 1986, sir.
Q You also stated that you were with Mr. Tabuena when you withdrew the amount of P5
Q Is it your usual practice to prepare the Financial Statement after the end of the year million from the PNB Extension Office at Villamor?
within three (3) weeks after the end of the year?
A Yes, sir. A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr.
Tabuena left for Malacaang.
Q Why was it necessary for you to go with him on that occasion?
PROS VIERNES
A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle
count the P5 million and it was placed in two (2) peerless boxes. Q And you yourself, returned to your office at MIA?

Q Did you actually participate in the counting of the money by bundles? WITNESS

A Yes, sir. A Yes, sir.

Q Bundles of how much per bundle? Q Until what time do you hold office at the MIA?

A If I remember right, the bundles consisted of P100s and P50s, sir. A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the
office, sir.
Q No P20s and P10s?
Q So, even if it was already after 5:00 oclock in the afternoon, you still went back to your
A Yes, sir, I think it was only P100s and P50s. office at MIA?

*PJ GARCHITORENA A Yes, sir.

*Q If there were other denominations, you can not recall? PROS VIERNES

A Yes, your Honor. That will be all, your Honor.

PROS VIERNES PJ GARCHITORENA

Q In how many boxes were those bills placed? Redirect?

A The P5 million were placed in two (2) peerless boxes, sir. ATTY. ESTEBAL

Q And you also went with Mr. Tabuena to Aguado? No redirect, your Honor.

A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. *PJ GARCHITORENA
Tabuena, I was left behind and I went back to my office at MIA.
Questions from the Court.
Q But the fact is that, this P5 million was withdrawn at passed 5:00 oclock in the
afternoon? *AJ DEL ROSARIO

A I started counting it I think at around 4:30, sir. It was after office hours. But then I was *Q Did you not consider it as odd that your obligation with the PNCC had to be paid in
there at around 4:00 oclock and we started counting at around 4:30 p.m. because they cash?
have to place it in a room, which is the office of the Manager at that time.
WITNESS
Q And Mr. Tabuena left for Malacaang after 5:00 oclock in the afternoon of that date?
A Based on the order of President Marcos that we should pay in cash, it was not based on
the normal procedure, your Honor.
*Q And, as Acting Financial Services Manager, you were aware that all disbursements
should be covered by vouchers?
A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as
what we did was to prepare a request to the PNB, then this can be covered by Journal
Voucher also.
*Q Was such payment of P5 million covered by a Journal Voucher?
A Yes, your Honor.
A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your
Honor. Inasmuch as the payment should be made through the Office of the president, I
accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena.
*Q After receiving that receipt, did you prepare the necessary supporting documents,
vouchers, and use that receipt as a supporting document to the voucher?
A Your Honor, a Journal Voucher was prepared for that.
*Q How about a disbursement voucher?
A Inasmuch as this was a request for Managers check, no disbursement voucher was
prepared, your Honor.

*Q Did you present that Journal Voucher here in Court? *AJ DEL ROSARIO

A We have a copy, your Honor. *Q Since the payment was made on January 31, 1986, and that was very close to the
election held in that year, did you not entertain any doubt that the amounts were being
*Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show used for some other purpose?
that payment?
ATTY. ESTEBAL
A We have a copy of the Journal Voucher, your Honor.
With due respect to the Honorable Justice, we are objecting to the question on the ground
*Q Was this payment of P5 million ever recorded in a cashbook or other accounting books that it is improper.
of MIAA?
*AJ DEL ROSARIO
A The payment of P5 million was recorded in a Journal Voucher, your Honor.
I will withdraw the question.
*PJ GARCHITORENA
*PJ GARCHITORENA
*Q In other words, the recording was made directly to the Journal?
What is the ground for impropriety?
WITNESS
ATTY. ESTEBAL
A Yes, your Honor.
This is not covered in the direct examination, and secondly, I dont think there was any
*Q There are no other separate documents as part of the application for Managers Check? basis, your Honor.

A Yes, your Honor, there was none. *PJ GARCHITORENA

*AJ DEL ROSARIO Considering the withdrawal of the question, just make the objection on record.

*Q After the payment was made, did your office receive any receipt from PNCC? *AJ HERMOSISIMA
*Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not
consider it proper that a check be issued only after it is covered by a disbursement
voucher duly approved by the proper authorities?
A Your Honor, what we did was to send a request for a Managers check to the PNB based
on the request of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of
President Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper
to have this transaction covered by a disbursement voucher?
WITNESS
A Based on my experience, payments out of cash can be made through cash vouchers, or
even though Journal Vouchers, or even through credit memo, your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by
means of check in favor of Mr. Luis Tabuena, your own manager?
A We based the payment on the order of Mr. Tabuena because that was the order of
President Marcos to pay PNCC through the Office of the President and it should be paid in
cash, your Honor.
*Q You are supposed to pay only on legal orders. Did you consider that legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question calls for a conclusion of the
witness.
*PJ GARCHITORENA
Considering that the witness is an expert, witness may answer.
WITNESS
A The order of president Marcos was legal at that time because the order was to pay
PNCC the amount of P5 million through the Office of the President and it should be paid in
cash, your Honor.And at that time, I know for a fact also that there was an existing P.D.
wherein the President of the Republic of the Philippines can transfer funds from one office
to another and the PNCC is a quasi government entity at that time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction was made on the basis of that P.D. which you
referred to?
A I am not aware of the motive of the President, but then since he is the President of the
Philippines, his order was to pay the PNCC through the Office of the President, your
Honor.
*Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of
an obligation of MIAA is supposed to be paid in check?
A I caused the payment through the name of Mr. Tabuena because that was the order of
Mr. Tabuena and also he received an order coming from the President of the Philippines at
that time, your Honor.
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain
statements of accounts earlier made in the same journal?
In other words, really what you are telling us is that, a Journal Voucher is to explain a
transaction was otherwise not recorded.
WITNESS
A Yes, your Honor.
*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is
proper only because of the exceptional nature of the transactions?
A Yes, your Honor.
*Q In other words, as an Accountant, you would not normally authorize such a movement
of money unless it is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading
because what the witness stated is...
*PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are
speaking, and therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that...
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the
Journal Voucher in this particular case was supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented since we have the order of the General Manager
at that time and the order of President Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate basis for the
movement of money?
A Yes, your Honor, because at that time we have also a recorded liability of P27 million.
*Q We are not talking of whether or not there was a liability. What we are saying is, is the
order of the General Manager by itself adequate with no other supporting papers, to justify
the movement of funds?
A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability
of P27,931,000.00, inasmuch as we have that liability and I was shown the order of
President Marcos to pay P5 million through the Office of the President, I considered the
order of Mr. Luis Tabuena, the order of President Marcos and also the existing liability
of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is also an
escalation clause of P99.1 million, the payment of P5 million is fully covered by those
existing documents.
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking you whether or
not there was valid obligation. We are not asking you about the escalation clause. We are
asking you whether or not this particular order of Mr. Tabuena is an adequate basis to
justify the movement of funds?
WITNESS
When we pay, your Honor, we always look for the necessary documents and at that time I
know for a fact that there was this existing liability.
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question being
asked and not to whatever you wanted to say. I know you are trying to protect yourself. We
are aware of your statement that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by
itself is adequate?
WITNESS
A As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown
the Order of President Marcos to pay PNCC through his office, I feel that the order of the
General Manager, the order of President Marcos, and also the memorandum of Minister
Ongpin are sufficient to cause the payment of P5 million.
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to transfer funds from one
department to another, is this not the one that refers to the realignment of funds insofar as
the Appropriation Act is concerned?
WITNESS
A Because at that time, your Honor, I have knowledge that the President is authorized
through a Presidential Decree to transfer government funds from one office to another.
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the
Appropriation Act?
A I think the liability was duly recorded and appropriations to pay the amount is.....
(interrupted)
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or are you just throwing
words at us in the hope that we will forget what the question is?
A No, your Honor.
*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations
Act so that the payment of this debt would be in the same level as the realignment of funds
authorized the President? Or are you telling as you did not read the Decree?
A I was aware of that Decree, your Honor. *Q In your case, you would be the counter check for Mr. Tabuena?

*PJ GARCHITORENA A Yes, your Honor.

Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this *Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager
movement of funds? and as counter signatory are in a position to tell Mr. Tabuena, I am sorry, you are my
superior but this disbursement is not proper and, therefore, I will not sign it., if in your
ATTY. ESTEBAL opinion the disbursement is not proper?

Yes, your Honor. A Yes, your Honor.

*PJ GARCHITORENA *Q Therefore, as co-signatory, you are expected to exercise your judgment as to the
propriety of a particular transaction?
*Q It is true that President Marcos was the President, but he was not an officer of the
MIAA, was he? A Yes, your Honor.

A No, your Honor. *Q And this is something you know by the nature of your position and because you are a
Certified Public Accountant?
*Q In fact, for purposes of internal control, you have different officers and different officials
in any company either government or private, which are supposed to check and balance A Yes, your Honor.
each other, is it not?
*AJ DEL ROSARIO
A Yes, your Honor.
*Q You admit that the payment of P5 million and P50 million were unusual in the manner
*Q So that when disbursements of funds are made, they are made by authority of not only with which they were disposed?
one person alone so that nobody will restrain him?
A Yes, your Honor.
A Yes, your Honor.
*Q Did you submit a written protest to the manner in which such amount was being
*Q These checks and balances exist in an entity so that no one person can dispose of disposed of?
funds in any way he likes?
A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that
A Yes, your Honor. since this payment was upon the order of President Marcos, then I think as President he
can do things which are not ordinary.
*Q And in fact, the purpose for having two (2) signatories to documents and negotiable
documents is for the same purpose? *Q If you did not prepare a written protest, did you at least prepare a memorandum for the
record that this was an extra-ordinary transaction?
A Yes, your Honor.
A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no
written note, your Honor.
*PJ GARCHITORENA
PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
Thank you very much Mr. Peralta, you are excused. x x x.[43]
WITNESS
This Court has acknowledged the right of a trial judge to question witnesses with a view to
A Yes, your Honor. satisfying his mind upon any material point which presents itself during the trial of a case
over which he presides.[44] But not only should his examination be limited to With due respect to the Honorable Justice, We are objecting to the question on the ground
asking clarificatory questions,[45] the right should be sparingly and judiciously used; for the that it is
rule is that the court should stay out of it as much as possible, neither interfering nor
intervening in the conduct of the trial.[46] Here, these limitations were not observed. Hardly improper.
in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be
more precise, had taken the cudgels for the prosecution in proving the case against
Tabuena and Peralta when the Justices cross-examined the witnesses, their cross- AJ DEL ROSARIO
examinations supplementing those made by Prosecutor Viernes and far exceeding the
latters questions in length. The cold neutrality of an impartial judge requirement of due I will withdraw the question.
process was certainly denied Tabuena and Peralta when the court, with its
overzealousness, assumed the dual role of magistrate and advocate. In this connection, PJ GARCHITORENA
the observation made in the Dissenting Opinion to the effect that the majority of this Court
was unduly disturbed with the number of court questions alone, is quite inaccurate. A
substantial portion of the TSN was incorporated in the majority opinion not to focus on What is the ground for impropriety?
numbers alone, but more importantly to show that the court questions were in the interest
of the prosecution and which thus depart from that common standard of fairness and ATTY. ESTEBAL
impartiality. In fact, it is very difficult to be, upon review of the records, confronted with
numbers without necessarily realizing the partiality of the Court. In US v. De Sisto (2 Cir.,
This is not covered in the direct examination, and secondly, I dont think there was
1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in
any basis, Your Honor.
this case, indulged in extensive questioning of defendant and his witnesses, and the
reviewing court also had to amplify on numbers to bolster this. It was pointed out in the De
Sisto case that the judge asked 3,115 questions of all witnesses, the prosecutor asked but PJ GARCHITORENA
1,381, defense counsel 3,330. The judges questions to the defendant De Sisto totalled
306, the prosecutors 347, and the defense counsels, 201. After referring to these figures, Considering the withdrawal of the question, just make the objection on record.
the court stated:
Nothing from the preceding questions of counsels or of the court would serve as basis for
. . . It is indeed an impressive proportion, but no such mathematical computation is of itself this question. How then, can this be considered even relevant? What is the connection
determinative. However, taking all this in conjunction with the long and vigorous between the payment made to the Presidents office and the then forthcoming
examination of the defendant himself by the judge, and the repeated belittling by the judge presidential snap election? In another instance, consider the following questions of
of defendants efforts to establish the time that Fine left the pier, we fear that in its zeal for Presiding Justice Garchitorena:
arriving at the facts the court here conveyed to the jury too strong an impression of the
courts belief in the defendants probable guilt to permit the jury freely to perform its own
*PJ GARCHITORENA
function of independent determination of the facts. x x x

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain
The majority believes that the interference by the Sandiganbayan Justices was just too
statements of accounts earlier made in the same journal?
excessive that it cannot be justified under the norm applied to a jury trial, or even under the
standard employed in a non-jury trial where the judge is admittedly given more leeway in
propounding questions to clarify points and to elicit additional relevant evidence. At the risk xxx
of being repetitious, we will amplify on this via some specific examples. Based on the
evidence on record, and on the admission of Tabuena himself, the P55 million was *Q In other words, really what you are telling us is that, a Journal Voucher is to explain a
delivered to the Presidents Office thru Mrs. Gimenez, in obedience to the Presidential transaction was otherwise not recorded.
directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta:
xxx
AJ DEL ROSARIO
*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is
Q: Since the payment was made on January 31, 1986, and that was very close to the proper only because of the exceptional nature of the transactions?
election held in that year, did you not entertain any doubt that the amounts
were being used for some other purposes?
xxx

ATTY. ESTEBAL
*Q In other words, as an Accountant, you would not normally authorize such a movement asking you whether or not this particular order of Mr. Tabuena is an adequate basis to
of money unless it is properly documented? justify the movement of funds?

ATTY. ESTEBAL *PJ GARCHITORENA

With due respect to the Honorable Presiding Justice, I think the question is misleading When we ask questions and when we answer them, we must listen to the question being
because what the witness stated is... asked and not to whatever you wanted to say. I know you are trying to protect yourself. We
are aware of your statement that there are all of these memoranda.
*PJ GARCHITORENA
*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by
Be careful in your objection because the witness understands the language you are itself is adequate?
speaking, and therefore, you might be coaching him.
*PJ GARCHITORENA
ATTY. ESTEBAL
*Q This Presidential Decree which authorizes the President to transfer funds from one
No, your Honor. I am also an accountant that is why I could say that... department to another, is this not the one that refers to the realignment of funds insofar as
the Appropriation Act is concerned?
*PJ GARCHITORENA
*PJ GARCHITORENA
Please be simple in your objection.
*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the
Appropriation Act?
ATTY. ESTEBAL
*PJ GARCHITORENA
The question is misleading on the ground that what the witness stated earlier is that the
Journal Voucher in this particular case was supported, your Honor.
*Q Tell me honestly, is your answer responsive to the question or are you just throwing
words at us in the hope that we will forget what the question is?
*PJ GARCHITORENA
xxx
Overruled, may answer.
*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations
WITNESS Act so that the payment of this debt would be in the same level as the realignment of funds
authorized the President? Or are you telling as you did not read the Decree?
A The transaction was fully documented since we have the order of the General Manager
at that time and the order of President Marcos, your Honor. *PJ GARCHITORENA

*Q Are you saying the Order of the General Manager is an adequate basis for the Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this
movement of money? movement of funds?

*Q We are not talking of whether or not there was a liability. What we are saying is, is the ATTY. ESTEBAL
order of the General Manager by itself adequate with no other supporting papers, to justify
the movement of funds?
Yes, your Honor.
*PJ GARCHITORENA
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking you whether or
not there was valid obligation. We are not asking you about the escalation clause. We are *Q It is true that President Marcos was the President, but he was not an officer of the
MIAA, was he?
*Q In fact, for purposes of internal control, you have different officers and different officials
in any company either government or private, which are supposed to check and balance
each other, is it not?
*Q So that when disbursements of funds are made, they are made by authority of not only
one person alone so that nobody will restrain him?
*Q These checks and balances exist in an entity so that no one person can dispose of
funds in any way he likes?
*Q And in fact, the purpose for having two (2) signatories to documents and negotiable
documents is for the same purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
*Q In your case, you would be the counter check for Mr. Tabuena?
*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager
and as counter signatory are in a position to tell Mr. Tabuena, I am sorry, you are my
superior but this disbursement is not proper and, therefore, I will not sign it., if in your
opinion the disbursement is not proper?
*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the
propriety of a particular transaction?
*Q And this is something you know by the nature of your position and because you are a
Certified Public Accountant?[47]
How can these questions be considered clarificatory when they clearly border more on
cross-examination questions? Thus, the Dissenting Opinions focus on the distinction
between the two kinds of trial to justify the Sandiganbayans active participation in the
examination of petitioners Tabuena and Peralta and witness Monera, with due respect,
appears insignificant to this case. Let it, therefore, be emphasized anew that:
A trial judge should not participate in the examination of witnesses as to create the
impression that he is allied with the prosecution.[48]
We doubt not that the sole motive of the learned judge was to ascertain the truth of the
transaction, but it is never proper for a judge to discharge the duties of a prosecuting
attorney. However anxious a judge may be for the enforcement of the law, he should
always remember that he is as much judge in behalf of the defendant accused of crime,
and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of
safeguarding the interests of society.[49]
Ordinarily it is not good practice for the presiding judge himself to examine witnesses at
length. The circumstances may be such in a given case as to justify the court in so
doing....This court, however, has more than once said that the examination of witnesses is
the more appropriate function of counsel, and the instances are rare and the conditions
exceptional which will justify the presiding judge in conducting an extensive examination. It
is always embarrassing for counsel to object to what he may deem improper questions by
the court. Then, in conducting a lengthy examination, it would be almost impossible for the
judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial,
and it is his duty to see that justice is done, he will usually not find it necessary to conduct
such examinations.The extent to which this shall be done must largely be a matter of
discretion, to be determined by the circumstances of each particular case, but in so doing
he must not forget the function of the judge and assume that of an advocate....[50]
While it is true that the manner in which a witness shall be examined is largely in the
discretion of the trial judge, it must be understood that we have not adopted in this country
the practice of making the presiding judge the chief inquisitor. It is better to observe our
time-honored custom of orderly judicial procedure, even at the expense of occasional
delays....The judge is an important figure in the trial of a cause, and while he has the right,
and it is often his duty, to question witnesses to the end that justice shall prevail, we can
conceive of no other reason, for him to take the trial of the cause out of the hands of
counsel.[51]
The examination of witnesses is the more appropriate function of counsel, and it is
believed the instances are rare and the conditions exceptional in a high degree which will
justify the presiding judge in entering upon and conducting an extended examination of a
witness, and that the exercise of a sound discretion will seldom deem such action
necessary or advisable.[52]
He [the judge] may properly intervene in a trial of a case to promote expedition, and
prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in
mind that his undue interference, impatience, or participation in the examination of
witnesses, or a severe attitude on his part toward witnesses, especially those who are
excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper
presentation of the cause, or the ascertainment of the truth in respect thereto.[53]
The impartiality of the judge his avoidance of the appearance of becoming the advocate of
either one side or the other of the pending controversy is a fundamental and essential rule
of special importance in criminal cases....[54]
Our courts, while never unmindful of their primary duty to administer justice, without fear or
favor, and to dispose of these cases speedily and in as inexpensive a manner as is
possible for the court and the parties, should refrain from showing any semblance of one-
sided or more or less partial attitude in order not to create any false impression in
the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the
preservation of the peoples faith in our courts.[55]
Time and again this Court has declared that due process requires no less than the cold
neutrality of an impartial judge. Bolstering this requirement, we have added that the judge
must not only be impartial but must also appear to be impartial, to give added assurance to
the parties that his decision will be just. The parties are entitled to no less than this, as a
minimum guaranty of due process.[56]
We are well aware of the fear entertained by some that this decision may set a dangerous
precedent in that those guilty of enriching themselves at the expense of the public would
be able to escape criminal liability by the mere expedient of invoking good faith. It must
never be forgotten, however, that we render justice on a case to case basis, always in
consideration of the evidence that is presented. Thus, where the evidence warrants an
acquittal, as in this case, we are mandated not only by the dictates of law but likewise of
conscience to grant the same. On the other hand, it does not follow that all those similarly
accused will necessarily be acquitted upon reliance on this case as a precedent. For the
decision in this case to be a precedent, the peculiar circumstances and the evidence that
led to the petitioners acquittal must also be present in subsequent cases.

Furthermore, as between a mere apprehension of a dangerous precedent and an actual

violation of constitutionally enshrined rights, it is definitely the latter that merits our
immediate attention. For the most dangerous precedent arises when we allow ourselves to
be carried away by such fears so that it becomes lawful to sacrifice the rights of an
accused to calm the fearful. In our eagerness to bring to justice the malefactors of the
Marcos regime, we must not succumb to the temptation to commit the greatest injustice of
visiting the sins of the wrongdoers upon an innocent.

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M.
Peralta are hereby ACQUITTED of the crime of malversation as defined and penalized
under Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October 12,
1990 and the Resolution dated December 20, 1991 are REVERSED and SET ASIDE.

SO ORDERED.