Republic of the Philippines SUPREME COURT Manila EN BANC Adm. Case No.

3086 February 23, 1988 ALEXANDER PADILLA, complainant, vs. THE HON. BALTAZAR R. DIZON, Presiding Judge of the Regional Trial Court of Pasay City Branch 113, respondent. RESOLUTION

PER CURIAM: This is an administrative complaint, dated August 6, 1987, filed by the then Commissioner of Customs, Alexander Padilla, against respondent Baltazar R. Dizon, RTC Judge, Branch 115, Pasay City, for rendering a manifestly erroneous decision due, at the very least, to gross incompetence and gross ignorance of the law, in Criminal Case No. 86- 10126-P, entitled "People of the Philippines vs. Lo Chi Fai", acquitting said accused of the offense charged, i.e., smuggling of foreign currency out of the country. Required by the Court to answer the complaint, the respondent judge filed an Answer, dated October 6, 1987, reciting his "commendable record as a fearless prosecutor" since his appointment as Assistant City Fiscal of Manila on December 4, 1962, until his appointment eventually as RTC Judge on February 18, 1983; that at in the reorganization of the judiciary after the February 26, 1986 revolution, he was reappointed to his present position; that his length of service as prosecutor and judge is "tangible proof that would negate the allegations of the petitioner" (should be complainant), whereas the latter did not last long in the service for reasons only known to him; that the decision involved in the complaint was promulgated by respondent on September 29, 1986, but the complaint against him was filed only on August 6, 1987, a clear indication of malice and illwill of the complainant to subject respondent to harassment, humiliation and vindictiveness; that his decision, of which he submits a copy (Annex A) as part of his Answer, is based on "fundamental principles and the foundation of rights and justice" and that if there are mistakes or errors in the questioned decision, they are committed in good faith. Accordingly, respondent prays for the dismissal of the petition (should be complaint).

The issue before the Court is whether or not the respondent judge is guilty of gross incompetence or gross ignorance of the law in rendering the decision in question. A judge can not be held to account or answer, criminally, civilly or administratively, for an erroneous decision rendered by him in good faith. The case in which the respondent rendered a decision of acquittal involved a tourist, Lo Chi Fai, who was caught by a Customs guard at the Manila International Airport while attempting to smuggle foreign currency and foreign exchange instruments out of the country. Lo Chi Fai, was apprehended by a customs guard and two PAFSECOM officers on July 9, 1986, while on board Flight PR 300 of the Philippine Air Lines bound for Hongkong. At the time of his apprehension, he was found carrying with him foreign currency and foreign exchange instruments (380 pieces) amounting to US$ 355,349.57, in various currency denominations, to wit: Japanese Yen, Swiss Franc, Australian Dollar, Singapore Dollar, HFL Guilder, French Franc, U.S. Dollar, English Pound, Malaysian Dollar, Deutsche Mark, Canadian Dollar and Hongkong Dollar, without any authority as provided by law. At the time the accused was apprehended, he was able to exhibit two currency declarations which he was supposed to have accomplished upon his arrival in Manila in previous trips, namely, CB Currency Declaration No. 05048, dated May 4, 1986 for US$39,600.00 and Japanese Yen 4,000,000.00, and CB Currency Declaration No. 06346, dated June 29, 1986 for Japanese Yen 6,600,000.00. An information was filed against Lo Chi Fai, with the RTC of Pasay City for violation of Sec. 6, Central Bank Circular No. 960, as follows:
That on or about the 9th day of July, 1986, in the City of Pasay, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Mr. LO CHI FAI, did then and there wilfully, unlawfully and feloniously attempt to take out of the Philippines through the Manila International Airport the following foreign currencies in cash and in checks:

Japanese Yen Swiss Franc Australian Dollar Singapore Dollar Deutsche Marck Canadian Dollar

Y 32,800,000.00 SW. FR 6,9000.00 A$ 17,425.00 S$ 9,945.00 DM 18,595.00 CS 13,330.00

Hongkong Dollar HFL Guilder French Franc US Dollar English Pound Malaysian Dollar (in checks) Australian Dollar British Pound US Dollar Canadian Dollar

HK$ 15,630.00 HFL 430.00 F/6,860.00 US$ 73,950.00 5,318.00 M$. 14,760.00

A$ 7,750.00 700.00 US$ 17,630.00 C$ 990.00 without authority from the Central Bank.

Contrary to Law.

The case, which was docketed as Criminal Case No. 86-10126-P, was subsequently raffled to Branch 113, presided by herein respondent Judge Baltazar A. Dizon. Section 6 of Circular No. 960 of the Central Bank provides as follows:
Sec. 6. Export, import of foreign exchange; exceptions. No person shall take out or transmit or attempt to take out or transmit foreign exchange in any form, out of the Philippines directly, through other persons, through the mails or through international carriers except when specifically authorized by the Central Bank or allowed under existing international agreements or Central Bank regulations.

Tourists and non-resident visitors may take out or send out from the Philippine foreign exchange in amounts not exceeding such amounts of foreign exchange brought in by them. For purposes of establishing the amount of foreign exchange brought in or out of the Philippines, tourists and non-resident temporary visitors bringing with them more than US$3,000.00 or its equivalent in other foreign currencies shall declare their foreign exchange in the form prescribed by the Central Bank at points of entries upon arrival in the Philippines.

The penal sanction is provided by Section 1, P.D. No. 1883, which reads as follows:
Section 1. Blackmarketing of Foreign Exchange . That any person who shall engage in the trading or purchase and sale of foreign currency in violation of existing laws or rules and regulations of the Central Bank shall be guilty of the crime of blackmarketing of foreign exchange and shall suffer the penalty of reclusion temporal, (minimum of 12 years and I day and maximum of 20 years) and a fine of no less than fifty thousand (P50,000.00) Pesos.

At the trial, the accused tried to establish that he was a businessman from Kowloon, Hongkong, engaged in the garment business, in which he had invested 4 to 5 million Hongkong Dollars; that he had come to the Philippines 9 to 1 0 times, although the only dates he could remember were April 2, 1986, May 4, 1986, June 28,1986, and July 8, 1986; that the reason for his coming to the Philippines was to invest in business in the Philippines and also to play in the casino; that he had a group of business associates who decided to invest in business with him, namely: Wakita Noboyuki, Kobayashi Nabuo, Lee Shiang Pin, Lee Chin and Cze Kai Kwan, who had their own businesses in Japan and Hongkong; that when he came to the Philippines on April 2,1986, he brought US$50,000.00 and 8,500,000.00 Japanese Yen which he tried to declare but the Central Bank representative refused to accept his declaration, until he could get a confirmation as to the source of the money, for which reason he contacted his bank in Hongkong and a telex was sent to him on April 3,1986 (Exh. 4). He also brought in with him US$39,000.00 and 4,000,000.00 Japanese Yen when he arrived on May 4,1986 which he declared (Exh. 1). Again, he declared 8,600,000.00 Japanese Yen when he arrived on June 28, 1986 (Exh. 2). He also testified that his business associates, as per their agreement to invest in some business with him in the Philippines, started putting their money for this purpose in a common fund, hence, every time anyone of them came to the Philippines, they would declare the money they were bringing in, and all declarations were handed to and kept by him; these currency declarations were presented at the trial as exhibits for the defense. When asked by the court why he did not present all of these declarations when he was apprehended at the airport, his answer was that he was not asked to present the declaration papers of his associates, and besides, he does not understand English and he was not told to do so. He also testified on cross-examination that the reason he was going back to Hongkong bringing with him all the money intended to be invested in the Philippines was because of the fear of his group that the "revolution" taking place in Manila might become widespread. It was because of this fear that he was

urged by his associates to come to Manila on July 8, 1986 to bring the money out of the Philippines. The respondent judge, in his decision acquitting the accused, stated:
The factual issue for this Court to determine is whether or not the accused wilfully violated Section 6 of Circular No. 960. The fact that the accused had in his possession the foreign currencies when he was about to depart from the Philippines did not by that act alone make him liable for Violation of Section 6. What is imperative is the purpose for which the act of bringing foreign currencies out of the country was done the very intention. It is that which qualifies the act as criminal or not. There must be that clear intention to violate and benefit from the act done. Intent is a mental state, the existence of which is shown by overt acts of a person.

The respondent proceeded to analyze the evidence which, according to him, tended to show that the accused had no wilfull intention to violate the law. According to the respondent in his decision:
... this Court is persuaded to accept the explanation of the defense that the currencies confiscated and/or seized from the accused belong to him and his business associates abovenamed. And from the unwavering and unequivocal testimonies of Mr. Templo and all of currencies in question came from abroad and not from the local source which is what is being prohibited by the government. Yes, simply reading the provisions of said circular will, readily show that the currency declaration is required for the purpose of establishing the amount of currency being brought by tourist or temporary non-resident visitors into the country. The currency declarations, therefore, is already (sic) intended to serve as a guideline for the Customs authorities to determine the amounts actually brought in by them to correspond to the amounts that could be allowed to be taken out. Indeed, this Court is amazed and really has its misgivings in the manner currency declarations were made as testified to by the Central Bank employees. Why the Bureau of Customs representative never took part in all these declarations testified to by no less than five (5) Central Bank employees? Seemingly, these employees are the favorites of these travellers. It is the hope of this Court that the authorities must do something to remedy the evident flaw in the system for effective implementation of the questioned Central Bank Circular No. 960. But even with a doubtful mind this Court would not be able to pin criminal responsibility on the accused. This is due to its steadfast adherence and devotion to the rule of law-a factor in restoring the almost lost faith and erosion of confidence of the people in the administration of justice. Courts of Justice are guided only by the rule of evidence.

The respondent-judge has shown gross incompetence or gross ignorance of the law in holding that to convict the accused for violation of Central Bank Circular No. 960, the prosecution must establish that the accused had the criminal intent to violate the law. The respondent ought to know that proof of malice or deliberate intent (mens rea) is not essential in offenses punished by special laws, which are mala prohibita. In requiring proof of malice, the respondent has by his

gross ignorance allowed the accused to go scot free. The accused at the time of his apprehension at the Manila International Airport had in his possession the amount of US$355,349.57 in assorted foreign currencies and foreign exchange instruments (380 pieces), without any specific authority from the Central Bank as required by law. At the time of his apprehension, he was able to exhibit only two foreign currency declarations in his possession. These were old declarations made by him on the occasion of his previous trips to the Philippines. Although lack of malice or wilfull intent is not a valid defense in a case for violation of Central Bank Circular No. 960, the respondent nonetheless chose to exonerate the accused based on his defense that the foreign currency he was bringing out of the country at the time he was apprehended by the customs authorities were brought into the Philippines by him and his alleged business associates on several previous occasions when they came to the Philippines, supposedly to be used for the purpose of investing in some unspecified or undetermined business ventures; that this money was kept in the Philippines and he precisely came to the Philippines to take the money out as he and his alleged business associates were afraid that the "attempted revolution" which occurred on July 6,1986 might spread. Such fantastic tale, although totally irrelevant to the matter of the criminal liability of the accused under the information, was swallowed by the respondent-judge "hook, line and sinker." It did not matter to the respondent that the foreign currency and foreign currency instruments found in the possession of the accused when he was apprehended at the airport-380 pieces in all-and the amounts of such foreign exchange did not correspond to the foreign currency declarations presented by the accused at the trial. It did not matter to the respondent that the accused by his own story admitted, in effect, that he was a carrier" of foreign currency for other people. The respondent closed his eyes to the fact that the very substantial amounts of foreign exchange found in the possession of the accused at the time of his apprehension consisted of personal checks of other people, as well as cash in various currency denominations (12 kinds of currency in all), which clearly belied the claim of the accused that they were part of the funds which he and his supposed associates had brought in and kept in the Philippines for the purpose of investing in some business ventures. The respondent ignored the fact that most of the CB Currency declarations presented by the defense at the trial were declarations belonging to other people which could not be utilized by the accused to justify his having the foreign exchange in his possession. Although contrary to ordinary human experience and behavior, the respondent judge chose to give credence to the fantastic tale of the accused that he and his alleged business associates had brought in from time to time and accumulated and kept in the Philippines foreign exchange (of very substantial amounts in cash and checks in various foreign currency denominations) for the purpose of investing in business even before they knew and had come to an agreement as to the specific business venture in which they were going to invest. These and other circumstances which make the story concocted by the accused so palpably unbelievable as to render the findings of the respondent judge obviously contrived to favor the acquittal of the

accused, thereby clearly negating his claim that he rendered the decision "in good faith." His actuations in this case amount to grave misconduct prejudicial to the interest of sound and fair administration of justice. He not only acquitted the accused Lo Chi Fai, but directed in his decision the release to the accused of at least the amount of US$3,000.00, allowed, according to respondent, under Central Bank Circular No. 960. This, in spite of the fact that forfeiture proceedings had already been instituted by the Bureau of Customs over the currency listed in the information, which according to the respondent should be respected since the Bureau of Customs "has the exclusive jurisdiction in the matter of seizure and forfeiture of the property involved in the alleged infringements of the aforesaid Central Bank Circular." In invoking the provisions of CB Circular No. 960 to justify the release of US$ 3,000.00 to the accused, the respondent judge again displayed gross incompetence and gross ignorance of the law. There is nothing in the said CB Circular which could be taken as authority for the trial court to release the said amount of U.S. Currency to the accused. According to the above-cited CB Circular, tourists may take out or send out from the Philippines foreign exchange in amounts not exceeding such amounts of foreign exchange brought in by them; for the purpose of establishing such amount, tourists or non-resident temporary visitors bringing with them more than US$3,000.00 or its equivalent in other foreign currencies must declare their foreign exchange at points of entries upon arrival in the Philippines. In other words, CB Circular No. 960 merely provides that for the purpose of establishing the amount of foreign currency brought in or out of the Philippines, a tourist upon arrival is required to declare any foreign exchange he is bringing in at the time of his arrival, if the same exceeds the amount of US$3,000.00 or its equivalent in other foreign currencies. There is nothing in said circular that would justify returning to him the amount of at least US$3,000.00, if he is caught attempting to bring out foreign exchange in excess of said amount without specific authority from the Central Bank. Accordingly, the Court finds the respondent Regional Trial Court Judge, Baltazar R. Dizon, guilty of gross incompetence, gross ignorance of the law and grave and serious misconduct affecting his integrity and efficiency, and consistent with the responsibility of this Court for the just and proper administration of justice and for the attainment of the objective of maintaining the people's faith in the judiciary (People vs. Valenzuela, 135 SCRA 712), it is hereby ordered that the Respondent Judge be DISMISSED from the service. All leave and retirement benefits and privileges to which he may be entitled are hereby forfeited with prejudice to his being reinstated in any branch of government service, including government-owned and/or controlled agencies or corporations. This resolution is immediately executory. SO ORDERED.

Teehankee, C.J., Yap, Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento Cortes, and Grio-Aquino, JJ., concur. Padilla, Narvasa, JJ., took no part.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 72964 January 7, 1988 FILOMENO URBANO, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.: This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the decision of the then Circuit Criminal Court of Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable doubt of the crime of homicide. The records disclose the following facts of the case. At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the tobacco seedbed of Marcelo Javier. He found the place where he stored his palay flooded with water coming from the irrigation canal nearby which had overflowed. Urbano went to the elevated portion of the canal to see what happened and there he saw Marcelo Javier and Emilio Erfe cutting grass. He asked them who was responsible for the opening of

the irrigation canal and Javier admitted that he was the one. Urbano then got angry and demanded that Javier pay for his soaked palay. A quarrel between them ensued. Urbano unsheathed his bolo (about 2 feet long, including the handle, by 2 inches wide) and hacked Javier hitting him on the right palm of his hand, which was used in parrying the bolo hack. Javier who was then unarmed ran away from Urbano but was overtaken by Urbano who hacked him again hitting Javier on the left leg with the back portion of said bolo, causing a swelling on said leg. When Urbano tried to hack and inflict further injury, his daughter embraced and prevented him from hacking Javier. Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about 50 meters away from where the incident happened. Emilio then went to the house of Barangay Captain Menardo Soliven but not finding him there, Emilio looked for barrio councilman Felipe Solis instead. Upon the advice of Solis, the Erfes together with Javier went to the police station of San Fabian to report the incident. As suggested by Corporal Torio, Javier was brought to a physician. The group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did not attend to Javier but instead suggested that they go to Dr. Mario Meneses because Padilla had no available medicine. After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla who conducted a medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C" dated September 28, 1981) which reads:
TO WHOM IT MAY CONCERN: This is to certify that I have examined the wound of Marcelo Javier, 20 years of age, married, residing at Barangay Anonang, San Fabian, Pangasinan on October 23, 1980 and found the following: 1 -Incised wound 2 inches in length at the upper portion of the lesser palmar prominence, right. As to my observation the incapacitation is from (7-9) days period. This wound was presented to me only for medico-legal examination, as it was already treated by the other doctor. (p. 88, Original Records)

Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences. Urbano promised to pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980, the two accompanied by Solis appeared before the San Fabian Police to formalize their amicable settlement. Patrolman Torio recorded the event in the police blotter (Exhibit A), to wit:
xxx xxx xxx Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared before this Station accompanied by brgy. councilman Felipe Solis and settled their case amicably, for they are neighbors and close relatives to each other. Marcelo Javier accepted and granted forgiveness to Filomeno Urbano who

shoulder (sic) all the expenses in his medical treatment, and promising to him and to this Office that this will never be repeated anymore and not to harbour any grudge against each other. (p. 87, Original Records.)

Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional P300.00 was given to Javier at Urbano's house in the presence of barangay captain Soliven. At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a very serious condition. When admitted to the hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo Exconde who personally attended to Javier found that the latter's serious condition was caused by tetanus toxin. He noticed the presence of a healing wound in Javier's palm which could have been infected by tetanus. On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr. Exconde are as follows:
Date Diagnosis 11-14-80 ADMITTED due to trismus adm. at DX TETANUS 1:30 AM Still having frequent muscle spasm. With diffi#35, 421 culty opening his mouth. Restless at times. Febrile 11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessation of respiration and HR after muscular spasm. 02 inhalation administered. Ambo bag resuscitation and cardiac massage done but to no avail. Pronounced dead by Dra. Cabugao at 4:18 P.M. PMC done and cadaver brought home by relatives. (p. 100, Original Records)

In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide before the then Circuit Criminal Court of Dagupan City, Third Judicial District.

Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as charged. He was sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, together with the accessories of the law, to indemnify the heirs of the victim, Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. He was ordered confined at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the decision, in view of the nature of his penalty. The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the award of indemnity to the heirs of the deceased to P30,000.00 with costs against the appellant. The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based on an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states:
That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to the present having been re-elected to such position in the last barangay elections on May 17, 1982; That sometime in the first week of November, 1980, there was a typhoon that swept Pangasinan and other places of Central Luzon including San Fabian, a town of said province; That during the typhoon, the sluice or control gates of the Bued irrigation dam which irrigates the ricefields of San Fabian were closed and/or controlled so much so that water and its flow to the canals and ditches were regulated and reduced; That due to the locking of the sluice or control gates of the dam leading to the canals and ditches which will bring water to the ricefields, the water in said canals and ditches became shallow which was suitable for catching mudfishes; That after the storm, I conducted a personal survey in the area affected, with my secretary Perfecto Jaravata; That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier catching fish in the shallow irrigation canals with some companions; That few days there after,or on November l5, l980, I came to know that said Marcelo Javier died of tetanus. (p. 33, Rollo)

The motion was denied. Hence, this petition. In a resolution dated July 16, 1986, we gave due course to the petition.

The case involves the application of Article 4 of the Revised Penal Code which provides that "Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the wrongful act done be different from that which he intended ..." Pursuant to this provision "an accused is criminally responsible for acts committed by him in violation of law and for all the natural and logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631). The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of which Javier suffered a 2-inch incised wound on his right palm; that on November 14, 1981 which was the 22nd day after the incident, Javier was rushed to the hospital in a very serious condition and that on the following day, November 15, 1981, he died from tetanus. Under these circumstances, the lower courts ruled that Javier's death was the natural and logical consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus, the appellate court said:
The claim of appellant that there was an efficient cause which supervened from the time the deceased was wounded to the time of his death, which covers a period of 23 days does not deserve serious consideration. True, that the deceased did not die right away from his wound, but the cause of his death was due to said wound which was inflicted by the appellant. Said wound which was in the process of healing got infected with tetanus which ultimately caused his death. Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered lockjaw because of the infection of the wound with tetanus. And there is no other way by which he could be infected with tetanus except through the wound in his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the proximate cause of the victim's death was the wound which got infected with tetanus. And the settled rule in this jurisdiction is that an accused is liable for all the consequences of his unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil. 418). Appellant's allegation that the proximate cause of the victim's death was due to his own negligence in going back to work without his wound being properly healed, and lately, that he went to catch fish in dirty irrigation canals in the first week of November, 1980, is an afterthought, and a desperate attempt by appellant to wiggle out of the predicament he found himself in. If the wound had not yet healed, it is impossible to conceive that the deceased would be reckless enough to work with a disabled hand. (pp. 20-21, Rollo)

The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected with tetanus when after two weeks he returned to his farm and tended his tobacco plants with his bare hands exposing the wound to harmful elements like tetanus germs. The evidence on record does not clearly show that the wound inflicted by Urbano was infected with tetanus at the time of the infliction of the wound. The evidence

merely confirms that the wound, which was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow got infected with tetanus However, as to when the wound was infected is not clear from the record. In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of proximate cause:
xxx xxx xxx ... A satisfactory definition of proximate cause is found in Volume 38, pages 695696 of American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows: ... "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred."And more comprehensively, "the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom." (at pp. 185-186)

The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time Javier was wounded until his death which would exculpate Urbano from any liability for Javier's death. We look into the nature of tetanusThe incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become symptomatic within 14 days. A short incubation period indicates severe disease, and when symptoms occur within 2 or 3 days of injury the mortality rate approaches 100 percent . Non-specific premonitory symptoms such as restlessness, irritability, and headache are encountered occasionally, but the commonest presenting complaints are pain and stiffness in the jaw, abdomen, or back and difficulty swallowing. As the progresses, stiffness gives way to rigidity, and patients often complain of difficulty opening their mouths. In fact, trismus in the commonest manifestation of tetanus and is responsible for the familiar descriptive name of lockjaw. As more muscles are involved, rigidity becomes generalized, and sustained contractions called risus sardonicus. The intensity and sequence of muscle involvement is quite variable. In a small proportion of patients, only local signs and symptoms develop in the region of the injury. In the vast majority, however, most muscles are involved to some degree, and the signs and symptoms encountered depend upon the major muscle groups affected. Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval referred to as the onset time. As in the case of the incubation period, a short

onset time is associated with a poor prognosis. Spasms are caused by sudden intensification of afferent stimuli arising in the periphery, which increases rigidity and causes simultaneous and excessive contraction of muscles and their antagonists. Spasms may be both painful and dangerous. As the disease progresses, minimal or inapparent stimuli produce more intense and longer lasting spasms with increasing frequency. Respiration may be impaired by laryngospasm or tonic contraction of respiratory muscles which prevent adequate ventilation. Hypoxia may then lead to irreversible central nervous system damage and death. Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more than 6 days. Trismus is usually present, but dysphagia is absent and generalized spasms are brief and mild. Moderately severe tetanus has a somewhat shorter incubation period and onset time; trismus is marked, dysphagia and generalized rigidity are present, but ventilation remains adequate even during spasms. The criteria for severe tetanus include a short incubation time, and an onset time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged, generalized convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied)

Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the incubation period of the disease. In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The following day, November 15, 1980, he died. If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the time, it is more medically probable that Javier should have been infected with only a mild cause of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident or more than 14 days after the infliction of the wound. Therefore, the onset time should have been more than six days. Javier, however, died on the second day from the onset time. The more credible conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected with tetanus after the hacking incident. Considering the circumstance surrounding Javier's death, his wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died. The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted upon him by the accused . (People v. Cardenas, supra) And since we are dealing with a criminal conviction, the proof that the accused caused the victim's death must convince a rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct possibility that the infection of the wound by tetanus was an efficient intervening cause later

or between the time Javier was wounded to the time of his death. The infection was, therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038). Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent infection, for failure to take necessary precautions, with tetanus may have been the proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the be of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent act or defective condition sets into operation the instances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause." (45 C.J. pp. 931-932). (at p. 125)

It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least, the records show he is guilty of inflicting slight physical injuries. However, the petitioner's criminal liability in this respect was wiped out by the victim's own act. After the hacking incident, Urbano and Javier used the facilities of barangay mediators to effect a compromise agreement where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier. This settlement of minor offenses is allowed under the express provisions of Presidential Decree G.R. No. 1508, Section 2(3). (See also People v. Caruncho, 127 SCRA 16). We must stress, however, that our discussion of proximate cause and remote cause is limited to the criminal aspects of this rather unusual case. It does not necessarily follow that the petitioner is also free of civil liability. The well-settled doctrine is that a person, while not criminally liable, may still be civilly liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), we said:
xxx xxx xxx ... While the guilt of the accused in a criminal prosecution must be established beyond reasonable doubt, only a preponderance of evidence is required in a civil action for damages. (Article 29, Civil Code). The judgment of acquittal extinguishes the civil liability of the accused only when it includes a declaration that the facts from which the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559). The reason for the provisions of article 29 of the Civil Code, which provides that the acquittal of the accused on the ground that his guilt has not been proved beyond reasonable doubt does not necessarily exempt him from civil liability for

the same act or omission, has been explained by the Code Commission as follows: The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of the most serious flaws in the Philippine legal system. It has given use to numberless instances of miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind of the court as to the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is derived from the criminal offense, when the latter is not proved, civil liability cannot be demanded. This is one of those causes where confused thinking leads to unfortunate and deplorable consequences. Such reasoning fails to draw a clear line of demarcation between criminal liability and civil responsibility, and to determine the logical result of the distinction. The two liabilities are separate and distinct from each other. One affects the social order and the other, private rights. One is for the punishment or correction of the offender while the other is for reparation of damages suffered by the aggrieved party. The two responsibilities are so different from each other that article 1813 of the present (Spanish) Civil Code reads thus: "There may be a compromise upon the civil action arising from a crime; but the public action for the imposition of the legal penalty shall not thereby be extinguished." It is just and proper that, for the purposes of the imprisonment of or fine upon the accused, the offense should be proved beyond reasonable doubt. But for the purpose of indemnity the complaining party, why should the offense also be proved beyond reasonable doubt? Is not the invasion or violation of every private right to be proved only by a preponderance of evidence? Is the right of the aggrieved person any less private because the wrongful act is also punishable by the criminal law? "For these reasons, the Commission recommends the adoption of the reform under discussion. It will correct a serious defect in our law. It will close up an inexhaustible source of injustice-a cause for disillusionment on the part of the innumerable persons injured or wronged."

The respondent court increased the P12,000.00 indemnification imposed by the trial court to P30,000.00. However, since the indemnification was based solely on the finding of guilt beyond reasonable doubt in the homicide case, the civil liability of the petitioner was not thoroughly examined. This aspect of the case calls for fuller development if the heirs of the victim are so minded. WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of homicide. Costs de oficio. SO ORDERED.

Fernan, (Chairman), Feliciano, Bidin and,Cortes, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-16486 March 22, 1921

THE UNITED STATES, plaintiff-appelle, vs. CALIXTO VALDEZ Y QUIRI, defendant-appellant. Angel Roco for appellant. Acting Attorney-General Feria for appellee. STREET, J.: The rather singular circumstances attending the commission of the offense of homicide which is under discussion in the present appeal are these: At about noon, on November 29, 1919, while the interisland steamer Vigan was anchored in the Pasig River a short distance from the lighthouse and not far from where the river debouches into the Manila Bay, a small boat was sent out to raise the anchor. The crew of this boat consisted of the accused, Calixto Valdez y Quiri, and six others among whom was the deceased, Venancio Gargantel. The accused was in charge of the men and stood at the stern of the boat, acting as helmsman, while Venancio Gargantel was at the bow. The work raising the anchor seems to have proceeded too slowly to satisfy the accused, and he accordingly began to abuse the men with offensive epithets. Upon this Venancio Gargantel remonstrated, saying that it would be better, and they would work better, if he would not insult them. The accused took this remonstrance as a display of insubordination; and rising in rage he moved towards Venancio, with a big knife in hand,

threatening to stab him. At the instant when the accused had attained to within a few feet of Venancio, the latter, evidently believing himself in great and immediate peril, threw himself into the water and disappeared beneath its surface to be seen no more. The boat in which this incident took place was at the time possibly 30 or 40 yards from shore and was distant, say, 10 paces from the Vigan. Two scows were moored to the shore, but between these and the boat intervened a space which may be estimated at 18 or 20 yards. At it was full midday, and there was nothing to obstruct the view of persons upon the scene, the failure of Venancio Gargantel to rise to the surface conclusively shows that, owing to his possible inability to swim or the strength of the current, he was borne down into the water and was drowned. Two witnesses who were on the boat state that, immediately after Venancio leaped into the water, the accused told the remaining members of the crew to keep quiet or he would kill them. For this reason they made no movement looking to rescue; but inasmuch as there witnesses are sure that Venancio did not again come to the surface, efforts at rescue would have been fruitless. The fact that the accused at his juncture threatened the crew with violence is, therefore, of no moment except tho show the temporary excitement under which he was laboring. On the next day one of the friends of Venancio Gargantel posted himself near the lighthouse to watch for the body, in the hope that it might come to the surface and could thus be recovered. Though his friendly vigil lasted three days nothing came of it. It may be added that Venancio has not returned to his lodging in Manila, where he lived as a bachelor in the house of an acquaintance; and his personal belongings have been delivered to a representative of his mother who lives in the Province of Iloilo. His friends and relatives, it is needless to say, take it for granted that he is dead. The circumstances narrated above are such in our opinion as to exclude all reasonable possibility that Venancio Gargantel may have survived; and we think that the trial judge did not err in holding that he is dead and that he came to his death by drowning under the circumstances stated. The proof is direct that he never rose to the surface after jumping into the river, so far as the observers could see; and this circumstance, coupled with the known fact that human life must inevitably be extinguished by asphyxiation under water, is conclusive of his death. The possibility that he might have swum ashore, after rising in a spot hidden from the view of his companions, we consider too remote to be entertained for a moment. As to the criminal responsibility of the accused for the death thus occasioned the likewise can be no doubt; for it is obvious that the deceased, in throwing himself in the river, acted solely in obedience to the instinct of self-preservation and was in no sense legally responsible for his own death. As to him it was but the exercise of a choice between two evils, and any reasonable person under the same circumstances might have done the same. As was once said by a British court, "If a man creates in another man's mind an immediate sense of dander which causes such person to try to escape, and in so doing he

injuries himself, the person who creates such a state of mind is responsible for the injuries which result." (Reg. vs. Halliday, 61 L. T. Rep. [N.S.], 701. In this connection a pertinent decision from the Supreme Court of Spain, of July 13, 1882, is cited in the brief of The Attorney-General, as follows: It appeared that upon a certain occasion an individual, after having inflicted sundry injuries upon another with a cutting weapon, pointed a shotgun at the injured person and to escape the discharge the latter had to jump into a river where he perished by drowning. The medical authorities charged with conducting the autopsy found that only one of the wounds caused by a cut could have resulted in the death of the injured person, supposing that he had received no succour, and that by throwing himself in the river he in fact died of asphyxia from submersion. Having been convicted as the author of the homicide, the accused alleged upon appeal that he was only guilty of the offense of inflicting serious physical injuries, or at most of frustrated homicide. The Supreme Court, disallowing the appeal, enunciated the following doctrine: "That even though the death of the injured person should not be considered as the exclusive and necessary effect of the very grave wound which almost completely severed his axillary artery, occasioning a hemorrhage impossible to stanch under the circumstances in which that person was placed, nevertheless as the persistence of the aggression of the accused compelled his adversary, in order to escape the attack, to leap into the river, an act which the accused forcibly compelled the injured person to do after having inflicted, among others, a mortal wound upon him and as the aggressor by said attack manifested a determined resolution to cause the death of the deceased, by depriving him of all possible help and putting him in the very serious situation narrated in the decision appealed from, the trial court, in qualifying the act prosecuted as consummated homicide, did not commit any error of law, as the death of the injured person was due to the act of the accused." (II Hidalgo, Codigo Penal, p. 183.) The accused must, therefore, be considered the responsible author of the death of Venancio Gargantel, and he was properly convicted of the offense of homicide. The trial judge appreciated as an attenuating circumstance the fact that the offender had no intention to commit so great a wrong as that committed. (Par. 3, art. 9 Penal Code.) In accordance with this finding the judge sentenced the accused to undergo imprisonment for twelve years and one day, reclusion temporal, to suffer the corresponding accessories, to indemnify the family of the deceased in the sum of P500, and to pay the costs. Said sentenced is in accordance with law; and it being understood that the accessories appropriate to the case are those specified in article 59 of the Penal Code, the same is affirmed, with costs against the appellant. So ordered. Mapa, C.J., Malcolm, Avancea and Villamor, JJ., concur.

Separate Opinions ARAULLO, J., dissenting:

I dissent from the majority opinion in this case. The only fact that the evidence shows in that Venancio Gargantel, one of those who were in a boat of the steamer Vigan subject to the orders of the accused Calixto Valdez and who at the time was engaged in the work of raising the anchor of that vessel, which was then lying at the Pasig River, a short distance from the lighthouse and not far from its mouth at the Manila Bay, upon seeing that the accused was approaching him, armed with a big knife, and in the attitude of attacking him, threw himself into the water and disappeared from the surface and had not been seen again. This event took place at noon on November 29, 1919, the boat being then about 30 or 40 yards from land and about 10 steps from the Vigan, there being two lighters moored to the shore and at a distance of about 18 or 20 yards from the boat. All of these facts are stated in the decision itself. The original information in the present case, charging Calixto Valdez y Quiri with the crime of homicide and alleging that as a result of his having thrown himself into the river under the circumstances mentioned, Venancio Gargantel was drowned, was presented on December 8, 1919, that is, nine days afterwards. There is no evidence whatever that the corpse of Venancio Gargantel had been found or, what is the same thing, that he had died. From November 28, the day when the event occurred, until December 8, when the information was filed, it cannot in any manner be maintained that the necessary time had passed for us to properly conclude, as is alleged in the information, that said Gargantel had died by drowning, as a consequence of his having thrown himself into the water upon seeing himself threatened and attacked by the accused. Neither does it appear in the evidence that all the precaution necessary for us to assure ourselves, as a sure and proven fact, that Venancio Gargantel then died by drowning, were taken; nor is there any evidence that it would have been impossible for him, by swimming or by any other means to rise to the surface at a place other than the Pasig River or that where the boat was, from which he threw himself into the river, and in that manner save himself from death. From the evidence of the witnesses for the prosecution which is the only evidence in the record, for the accused di not take the stand, it only appears that Venancio Gargantel, after having jumped from the boat, did not rise again to the surface. Such was the statement of two of those witnesses who were members of the boat's crew at the time. Another witness also declared that Gargantel was afterwards not again seen at the house where he lived in this city, No. 711 San Nicolas Street, where he kept his trunks and some effects, a fact which caused his mother, who lived in the municipality of Guimbal, in the Province of Iloilo, upon being informed of it and upon the failure of Venancio to appear in said place, to give special power on the 28th of that month of December, that is, one month afterwards, to a student, Ignacio Garzon, to get the trunks and effects of Venancio from said house. Sid Garzon himself testified, upon being asked whether Venancio Gargantel had returned to the house of his parents since November 29, 1919, that he had no information about it, and another witness, Pedro Garcia, of the prosecution, stated that he had probably died, because he had not seen Venancio Gargantel.

Therefore, in short, the only fact proved is that since Venancio Gargantel threw himself into the river, upon being threatened with a knife by the accused, his whereabouts has remained unknown even at the moment of rendering judgment in this case, or, February 9, 1920, that is, two and one-half months after the occurrence of the event. It is stated in the decision that the friend and parents of Gargantel give him up for dead. There is nevertheless in the record no statement of any parent of Gargantel to that effect; for his mother Maria Gatpolitan, a resident of the municipality of Guimbal, merely stated in the power of attorney executed in favor of Ignacio Garzon that the latter should take steps in order that the city fiscal might investigate the death of her son which, according to information, was caused by another members, of the crew of the steamer Vigan; and none of his friends, that is, none of the two members of the party in the boat at that time and of the crew of the steamer Vigan, nor Maximo Gumbog, the owner of the house in which Gargantel lived in this city, nor Pedro Garcia, another member of the crew of that steamer, and finally, nor Ignacio Garzon himself has stated that he gave up Gargantel for dead, for the simple reason that this was not possible, for they only knew that he did not again rise to the surface and was not seen again after having thrown himself into the river from the boat. For this reason it is stated in the decision that the circumstances therein stated are such that they exclude all reasonable possibility that Venancio Gargantel could have survived and that the circumstance that never rose to the surface after having jumped into the river, as witnessed by the persons present, together with the admitted fact that human life is necessarily asphyxiated under the water, is conclusive that he died. Then, there is nothing more than a deduction that Gargantel had died based upon those facts and circumstances. In my opinion this is not sufficient to convict the accused as guilty of homicide, because there is the possibility that Gargantel had risen to the surface at some place away from the where he threw himself into the river and had embarked on some other vessel in the same river or out of it in the bay and had gone abroad, or to some province of these Islands and is found in some municipality thereof, cannot be denied. And this is very probable inasmuch as it does not appear in the record that the necessary investigation has been made in order to determined even with only some measure of certainty, not to say beyond all reasonable doubt, that it was and is impossible to find said person or determined his whereabouts. Furthermore, there is not even a presumption juris tantum that he had died, for in order that this presumption may exist, according to section 334 of the Code of Civil Procedure, it is necessary that no information about him should have been received for seven years from his disappearance upon his throwing himself into the river, which occurred on November 29, 1919, that is, only about one year and four months ago. And if, in order that a finding of a civil character in favor of or against some person, may be made, by virtue of that presumption, it is necessary that seven years should have elapsed without any notice being received of the person whose whereabouts is unknown, it is not just, reasonable, or legal that the period of one year and four months from his disappearance or since Venancio Gargantel threw himself into the water should suffice for us to impose

upon the accused Calixto Valdez such a grave penalty as that of twelve years and one day of reclusion temporal, merely assuming without declaring it, as a proven fact, that Gargantel has died and at the same time finding said accused to be the author of that death. Lastly, the decision of the English Supreme Court or that of the Spanish Supreme Court dated July 13, 1882, cited by the majority opinion is not applicable. The first, is not applicable because in the present case it is not proved, beyond reasonable doubt, that some damage resulted to Gargantel, just as it cannot be considered as proved that he had died, or that he had been injured or that he had suffered some injury after having thrown himself into the river as a result of the threat of the accused. The second is not applicable because the decision of the Supreme Court of Spain refers to a case, in which the injured party had already been wounded with a cutting instrument by the accused before throwing himself into the river upon the latter aiming at him with his gun, it having afterwards been proved upon his being taken out of the river that the wound inflicted upon him by the accused was mortal; and, consequently, it was declared by said court that, even if the death of the deceased be considered as not having resulted exclusively and necessarily from that most grave wound, the persistence of the aggression of the accused compelled his adversary to escape it and threw himself into the river, by depriving him of all possible help and placing him in the serious situation related in the judgment appealed from -a case which, as is seen, is very different from that which took place in the present case. For the reasons above stated, I am of the opinion, with due respect to the opinion of the majority, that the accused Calixto Valdez y Quiri cannot be found guilty of homicide and should be acquitted.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 74433 September 14, 1987 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO ABARCA, accused-appellant.

SARMIENTO, J.: This is an appeal from the decision of the Regional Trial Court of Palo, Leyte, sentencing the accused-appellant Francisco Abarca to death for the complex crime of murder with double frustrated murder. The case was elevated to this Court in view of the death sentence imposed. With the approval of the new Constitution, abolishing the penalty of death and commuting all existing death sentences to life imprisonment, we required the accused-appellant to inform us whether or not he wished to pursue the case as an appealed case. In compliance therewith, he filed a statement informing us that he wished to continue with the case by way of an appeal. The information (amended) in this case reads as follows:
xxx xxx xxx The undersigned City Fiscal of the City of Tacloban accuses Francisco Abarca of the crime of Murder with Double Frustrated Murder, committed as follows:

That on or about the 15th day of July, 1984, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill and with evident premeditation, and with treachery, armed with an unlicensed firearm (armalite), M-16 rifle, did then and there wilfully, unlawfully and feloniously attack and shot several times KHINGSLEY PAUL KOH on the different parts of his body, thereby inflicting upon said KHINGSLEY PAUL KOH gunshot wounds which caused his instantaneous death and as a consequence of which also caused gunshot wounds to LINA AMPARADO and ARNOLD AMPARADO on the different parts of their bodies thereby inflicting gunshot wounds which otherwise would have caused the death of said Lina Amparado and Arnold Amparado, thus performing all the acts of execution which should have produced the crimes of murders as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is by the timely and able medical assistance rendered to Lina Amparado and Arnold Amparado which prevented their death. 1 xxx xxx xxx

On arraignment, the accused-appellant pleaded not guilty. The Solicitor General states accurately the facts as follows:
Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit relationship. The illicit relationship apparently began while the accused was in Manila reviewing for the 1983 Bar examinations. His wife was left behind in their residence in Tacloban, Leyte (pp. 45-47, 65, tsn, Sept. 24, 1984). On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On the morning of that date he went to the bus station to go to Dolores, Eastern Samar, to fetch his daughter. However, he was not able to catch the first trip (in the morning). He went back to the station in the afternoon to take the 2:00 o'clock trip but the bus had engine trouble and could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused, then proceeded to the residence of his father after which he went home. He arrived at his residence at the V & G Subdivision in Tacloban City at around 6:00 o'clock in the afternoon (pp. 8-9, tsn, Id.). Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the act of sexual intercourse. When the wife and Koh noticed the accused, the wife pushed her paramour who got his revolver. The accused who was then peeping above the built-in cabinet in their room jumped and ran away (pp. 9-13, tsn, Id.). The accused went to look for a firearm at Tacloban City. He went to the house of a PC soldier, C2C Arturo Talbo, arriving there at around 6:30 p.m. He got Talbo's firearm, an M-16 rifle, and went back to his house at V & G Subdivision. He was not able to find his wife and Koh there. He proceeded to the "mahjong session" as it was the "hangout" of Kingsley Koh. The accused found Koh playing mahjong. He fired at Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and Lina Amparado who were occupying a room adjacent to the room where Koh was playing mahjong were also hit by the shots fired by the accused (pp. 34-49, tsn, Sept. 24, 1984). Kingsley Koh died instantaneously of cardiorespiratory arrest due to shock and hemorrhage as a result of multiple gunshot wounds on the head, trunk and abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado was hospitalized and operated on in the kidney to remove a bullet (pp. 17-23, tsn, Oct. 17, 1984; see also exh. C). His

wife, Lina Amparado, was also treated in the hospital as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold Amparado who received a salary of nearly P1,000.00 a month was not able to work for 1-1/2 months because of his wounds. He spent P15,000.00 for medical expenses while his wife spent Pl,000.00 for the same purpose (pp. 24-25, tsn, Id. ). 2

On March 17, 1986, the trial court rendered the appealed judgment, the dispositive portion whereof reads as follows:
xxx xxx xxx WHEREFORE, finding the accused, Francisco Abarca guilty beyond reasonable doubt of the complex crime of murder with double frustrated murder as charged in the amended information, and pursuant to Art. 63 of the Revised Penal Code which does not consider the effect of mitigating or aggravating circumstances when the law prescribes a single indivisible penalty in relation to Art. 48, he is hereby sentenced to death, to indemnify the heirs of Khingsley Paul Koh in the sum of P30,000, complainant spouses Arnold and Lina Amparado in the sum of Twenty Thousand Pesos (P20,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs. It appears from the evidence that the deceased Khingsley Paul Koh and defendant's wife had illicit relationship while he was away in Manila; that the accused had been deceived, betrayed, disgraced and ruined by his wife's infidelity which disturbed his reasoning faculties and deprived him of the capacity to reflect upon his acts. Considering all these circumstances this court believes the accused Francisco Abarca is deserving of executive clemency, not of full pardon but of a substantial if not a radical reduction or commutation of his death sentence. Let a copy of this decision be furnished her Excellency, the President of the Philippines, thru the Ministry of Justice, Manila. SO ORDERED. 3 xxx xxx xxx

The accused-appellant assigns the following errors committed by the court a quo: I. IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE REVISED PENAL CODE; II. IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING CIRCUMSTANCE OF TREACHERY. 4

The Solicitor General recommends that we apply Article 247 of the Revised Penal Code defining death inflicted under exceptional circumstances, complexed with double frustrated murder. Article 247 reads in full:
ART. 247. Death or physical injuries inflicted under exceptional circumstances . Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducers, while the daughters are living with their parents. Any person who shall promote or facilitate prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article.

We agree with the Solicitor General that the aforequoted provision applies in the instant case. There is no question that the accused surprised his wife and her paramour, the victim in this case, in the act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of passionate outburst. Article 247 prescribes the following elements: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; and (2) that he kills any of them or both of them in the act or immediately thereafter. These elements are present in this case. The trial court, in convicting the accused-appellant of murder, therefore erred. Though quite a length of time, about one hour, had passed between the time the accused-appellant discovered his wife having sexual intercourse with the victim and the time the latter was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by the accused-appellant. The Revised Penal Code, in requiring that the accused "shall kill any of them or both of them . . . immediately" after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity. But the killing should have been actually motivated by the same blind impulse, and must not have been influenced by external factors. The killing must be the direct byproduct of the accused's rage. It must be stressed furthermore that Article 247, supra, does not define an offense. 5 In People v. Araque, 6 we said:
xxx xxx xxx

As may readily be seen from its provisions and its place in the Code, the abovequoted article, far from defining a felony, merely provides or grants a privilege or benefit amounting practically to an exemption from an adequate punishment to a legally married person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may be is punished only with destierro. This penalty is mere banishment and, as held in a case, is intended more for the protection of the accused than a punishment. (People vs. Coricor, 79 Phil., 672.) And where physical injuries other than serious are inflicted, the offender is exempted from punishment. In effect, therefore, Article 247, or the exceptional circumstances mentioned therein, amount to an exempting circumstance, for even where death or serious physical injuries is inflicted, the penalty is so greatly lowered as to result to no punishment at all. A different interpretation, i.e., that it defines and penalizes a distinct crime, would make the exceptional circumstances which practically exempt the accused from criminal liability integral elements of the offense, and thereby compel the prosecuting officer to plead, and, incidentally, admit them, in the information. Such an interpretation would be illogical if not absurd, since a mitigating and much less an exempting circumstance cannot be an integral element of the crime charged. Only "acts or omissons . . . constituting the offense" should be pleaded in a complaint or information, and a circumstance which mitigates criminal liability or exempts the accused therefrom, not being an essential element of the offense charged-but a matter of defense that must be proved to the satisfaction of the court-need not be pleaded. (Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, 23 Phil., 368.) That the article in question defines no crime is made more manifest when we consider that its counterpart in the old Penal Code (Article 423) was found under the General Provisions (Chapter VIII) of Title VIII covering crimes against persons. There can, we think, hardly be any dispute that as part of the general provisions, it could not have possibly provided for a distinct and separate crime. xxx xxx xxx We, therefore, conclude that Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circumstances therein mentioned. ... 7 xxx xxx xxx

Punishment, consequently, is not inflicted upon the accused. He is banished, but that is intended for his protection. 8 It shall likewise be noted that inflicting death under exceptional circumstances, not being a punishable act, cannot be qualified by either aggravating or mitigating or other qualifying circumstances, We cannot accordingly appreciate treachery in this case.

The next question refers to the liability of the accused-appellant for the physical injuries suffered by Lina Amparado and Arnold Amparado who were caught in the crossfire as the accused-appellant shot the victim. The Solicitor General recommends a finding of double frustrated murder against the accusedappellant, and being the more severe offense, proposes the imposition of reclusion temporal in its maximum period pursuant to Article 48 of the Revised Penal Code. This is where we disagree. The accused-appellant did not have the intent to kill the Amparado couple. Although as a rule, one committing an offense is liable for all the consequences of his act, that rule presupposes that the act done amounts to a felony. 9 But the case at bar requires distinctions. Here, the accused-appellant was not committing murder when he discharged his rifle upon the deceased. Inflicting death under exceptional circumstances is not murder. We cannot therefore hold the appellant liable for frustrated murder for the injuries suffered by the Amparados. This does not mean, however, that the accused-appellant is totally free from any responsibility. Granting the fact that he was not performing an illegal act when he fired shots at the victim, he cannot be said to be entirely without fault. While it appears that before firing at the deceased, he uttered warning words ("an waray labot kagawas,") 10 that is not enough a precaution to absolve him for the injuries sustained by the Amparados. We nonetheless find negligence on his part. Accordingly, we hold him liable under the first part, second paragraph, of Article 365, that is, less serious physical injuries through simple imprudence or negligence. (The records show that Arnold Amparado was incapacitated for one and one-half months; 11 there is no showing, with respect to Lina Amparado, as to the extent of her injuries. We presume that she was placed in confinement for only ten to fourteen days based on the medical certificate estimating her recovery period.) 12 For the separate injuries suffered by the Amparado spouses, we therefore impose upon the accused-appellant arresto mayor (in its medium and maximum periods) in its maximum period, arresto to being the graver penalty (than destierro). 13 WHEREFORE, the decision appealed from is hereby MODIFIED. The accusedappellant is sentenced to four months and 21 days to six months of arresto mayor. The period within which he has been in confinement shall be credited in the service of these penalties. He is furthermore ordered to indemnify Arnold and Lina Amparado in the sum of P16,000.00 as and for hospitalization expense and the sum of P1,500.00 as and for Arnold Amparado's loss of earning capacity. No special pronouncement as to costs. IT IS SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras, and Padilla JJ., concur.

Footnotes
1 Rollo, 10-11. 2 Id., 88-89. 3 Id., 23-24; penned by Regional Trial Court Judge Auxencio C. Dacuycuy. 4 Brief for Accused-Appellant, rollo, 45. 5 People v. Araquel, 106 Phil. 677 (1959). 6 Supra. 7 Supra, 681-683. 8 Supra. 9 Article 4 of the Code provides as follows: Art. 4. Criminal liability.-Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. 10 Brief for the Accused-Appellant. The statement is translated as follows: "Those not concerned, get out." See T.S.N., session of November 28, 1985, 17-18. 11 T.S.N., session of October 17, 1984, 24. 12 Record, 29. 13 REV. PEN. CODE, supra, art, 71; see supra, art. 48.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-36858 June 20, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MACARIO A. ULEP, accused-appellant. The Solicitor General for plaintiff-appellee. Castor Naval for accused-appellant.

GANCAYCO, J.: A man must love his wife. He must not lift a finger to hurt her. Indeed he must be her protector. When against this unwritten rule he beats her, he ceases to be a man. He becomes a beast. And the law imposes the supreme penalty when in the process he kills her. It is parricide pure and simple. This is what Macario A. Ulep, was convicted of by the Court of First Instance of Ilocos Norte, Second Judicial District. He was sentenced to suffer the penalty of reclusion perpetua, and to indemnify the heirs of the deceased in the amount of P12,000.00 and to pay the costs in a decision of March 20, 1973.

The facts are undisputed. On May 21, 1970, at nine o'clock in the evening, in San Nicolas, Ilocos Norte, one Asuncion Pablo Ulep died as a result of physical injuries inflicted upon her on that very day by her husband, accused Macario Ulep. The following day, the Chief of Police of San Nicolas, Ilocos Norte received a report of the said death of Asuncion Pablo who allegedly died of a heart attack. The Chief of Police and the Rural Health Officer went to the house of the deceased and there they saw the body on a bamboo bed surrounded by relatives, friends, and the husband of the deceased, Macario. The Chief of Police suggested that an autopsy be conducted but the husband refused to allow the same. However, the daughter of the deceased by a previous marriage asked for a day or two to decide on her preference. At the behest of the daughter, the request for an autopsy was made shortly before the burial. Accordingly, the police chief and Dr. Eliseo Bonoan, a physician, caught up with the funeral Procession at the Catholic cemetery and thereupon conducted an autopsy on the deceased. The autopsy reports read as follows:
POSTMORTEM EXAMINATION Name: ASUNCION PABLO ULEP Age: 42 Nationality: Filipino Address: No. 24, San Nicolas, Ilocos Norte Date: May 25, 1970 PATHOLOGICAL DIAGNOSIS SKIN: A rectangular area of about 1" x 3" bluish black in color was noted on the upper half, anterior aspect of the arm, left. SKELETAL SYSTEM: Complete fracture of the 4th, 5th, 6th and 7th ribs, left. The 4th and 5th ribs fractured along the midolavicular line, left. The 6th and 7th ribs fractured along the anterior auxillary line, left. Presence of extravascated blood and injuries of the surrounding tissues of the broken ribs areas, left. Complete fracture of the 3rd and 4th ribs at the juncture of the rib and external cartillages with concomitant injury to its sounding tissues and extravascated blood, right side.

THORACIC CAVITY: Presence of about 200 cc. of a serous fluid found within the cavity. Pleura lacerated at the points of fractures. CARDIOVASCULAR SYSTEM: Heart with small amount of clotted blood. Coronary vessels congested. The big blood vessels contained small amount of clotted blood. ABDOMINAL CAVITY: Presence of about 500 cc. of serous fluid within the cavity. DIGESTIVE SYSTEM: Apparently normal CENTRAL NERVOUS SYSTEM: The meningeal vessels were congested. CAUSE OF DEATH: CARDIAC ARREST PRIMARY SHOCK. (Exh. D, p. 16, rec.). 1

Two weeks after the burial, two (2) constabulary sergeants investigated Macario Ulep. A statement was prepared and signed by the accused and was subsequently sworn to before Fiscal Cesar Abaya of Ilocos Norte. In this statement, marked as Exhibit "A", he admitted that he caused the death of his wife by elbowing her because his wife was then drunk and was uttering indecent words. The following day, PC sergeant Damian Bautista of Camp Juan, Laoag City conducted another investigation of accused Macario Ulep. His statement was reduced to writing and then subscribed to before Fiscal Abaya. He reiterated that the cause of death of his wife, Asuncion Pablo, was his elbowing her on her breast. This statement was marked Exhibit "B". Ulep narrated that this elbowing and attack took place at their home at 5:30 in the afternoon. She vomitted and then went to bed, The accused then left for the fields and returned at around 9:00 in the evening and found his wife dead on her bed. He reported this death to their barrio captain.

Despite these statements, (Exhibits "A" and "B") admitting his guilt, Ulep retracted his statement in court by narrating that more than a year before that, and while his wife went to have their palay milled, their bullcart loaded with sacks of rice turned upside down and pinned his wife on her breast. With the pain in her chest, she was treated by a country quack doctor or "arbularyo." The accused took exception to his conviction when he raised the following errors:
I THE LOWER COURT ERRED IN HOLDING THAT THE CAUSE OF DEATH OF ASUNCION PABLO WAS DUE TO THE ELBOW BLOWS BY THE ACCUSEDAPPELLANT ON HER BREAST, AS ADMIRED BY HIM IN HIS AFFIDAVITS, EXHIBIT "A" AND EXHIBIT "A-1," ENGLISH TRANSLATION, WHEN SUCH ADMISSION IS BUT A MERE BELIEF ON HIS PART. II THE LOWER COURT ERRED IN NOT HOLDING THAT THE CAUSE OF DEATH OF SAID ASUNCION PABLO WAS DUE TO A LONG STANDING PROCESS OR CONDITION IN HER BODY SYSTEM, AS TESTIFIED TO BY DR. PEDRO BLANCO FOR THE DEFENSE. III THE LOWER COURT ERRED CONSEQUENTLY IN NOT ACQUITTING HIM OF THE CRIME OF PARRICIDE.

Our primary concern is to determine the cause of death of Asuncion Pablo, the wife, of the accused. Was her death a result of cardiac arrest and primary shock due to fractured ribs? The appellant alleges that the gradual weakening of the heart due to a long standing illness of the body system caused the cardiac arrest which claimed the life of Asuncion Pablo. The post-mortem report on the deceased was prepared by Dr. Eliseo V. Bonoan who conducted an autopsy at the behest of a daughter of tile deceased by a previous marriage. The husband who previously denied permission to conduct an autopsy was present when the autopsy was performed shortly before the body was buried at the cemetery of San Nicolas, Ilocos Norte. In the necropsy report of Dr. Bonoan, the cause of death was manifestly due to cardiac arrest and primary shock. We agree and see no fault in this finding made in the necropsy report of Dr. Bonoan. The defense took exception to Dr. Bonoan's testimony that the fractures in the chest could have been caused by blows or physical pressure. Could such injuries not have been inflicted by elbow blows when the victim was standing or by knee or feet blows when the victim was lying on her back or was sitting with her back against the wall?

While the accused admitted that he delivered several elbow blows on the chest of his wife immediately before her death and the prosecution attributed these blows as the proximate cause of the cardiac arrest and primary shock which resulted in the wife's death, the defense assails this theory of the prosecution in the following manner:
First, there were no contusions on the chest of the victim. This indicates that the elbow blows were not of sufficient force to fracture the ribs. This is so because a fracture necessarily results in the extravasation of blood in the fractured area and it is the extravasated blood that causes the swelling or contusion. 2 Dr. Blanco attributes the absence of swelling or contusion on the chest, where the fractures were found, to the fact that the fracture conditions Were of long standing; that is, some repairs has happened and that sufficient time have elapsed for the swelling to disappear (t.s.n., p. 180). Second, even on the theory that fractures of the ribs as that found by Dr. Bonoan were present, the same could have not caused cardiac arrest and primary shock. This is so because only extravasated blood was present around the immediate area of the fractures, This means that the fractures were not depressed or that the fractured ends did not cave-in, so as to injure the heart and impede its functions to cause cardiac arrest. The claim of Dr. Bonoan that the chest is pliant and is like an accordion which can be compressed is puerile to say the least. Even so, the elbow blows of the accused could not have caused a compression of the chest wall, no matter how pliant it could be. And even on the theory that the fractures were caused by stamping the foot on a piece of wood placed on the chest, while the victim was lying on her back, still the fractures could not have injured the heart or impede its functions to cause cardiac arrest, because the fractures, were not depressed fractures or cave-in fractures. The fractures merely caused the extravasation of blood within the fractured areas. And neither would the fractures cause primary shock because they were merely complete fractures; which means a mere breakage that would not cause the stoppage of the heart, because it does not tend to compress the heart. 3 And third, although the pleura or thoracic cavity was lacerated at the points of fracture, the same could not have caused cardiac arrest or primary shock because the lacerations were limited to the pleura. The points of fracture did not cave-in or were not depressed and they did not injure or impede the heart to cause cardiac arrest. Neither did the lacerations of the pleura cause primary shock because blood did not spill into the pleura, which indicates that the hemorrhage was nil. This is so because the serous fluid in the pleura -as not reddish. On the contrary, the evidence of the prosecution shows that the deceased died of cardiac arrest because of the weakening of the heart due to a long standing process or condition in her body system. Thus the theory of the defense is strengthened by the very evidence of the prosecution. 4

Furthermore, both sides in this case took issue to the presence of 200 cc. of serous fluid in the pleura. The appellant claims that it is not normal whereas the prosecution says that the pleura normally contains 100 to 200 cc. of serous fluid and that this is normal. Anyway both agree that there should be enough serous fluid to lubricate the tissues.

The presence of 500 cc. of serous fluid in the abdominal cavity which, according to Dr. Blanco, the physician, witness for the appellant, may be due to the chronic condition of the kidney like nephritis and edema or the hardening of the liver or a long progressively weakening of the heart. 5 Dr. Bonoan did not concur in this view when he said that the fluid was rather increased as a result of the diffusion of the medicine used in the embalming. 6 We find cogent basis in the explanation given by Dr. Bonoan. Another point raised in the necropsy report pertains to the presence of clotted blood in the heart and blood vessels as well as the congestion of the meningeal vessels. The appellant bares that this is a sign of the hardening of the heart. Dr. Bonoan of the prosecution disclosed that there were no signs of circulatory weakening and that blood clots were not found adherent to the heart and such being the condition there could be no abnormality and thus he further declares that such clots are normally found in the heart of a dead person or in any part of the circulatory system. 7 There is an admission by Dr. Blanco, the appellant's witness, that he has not "attended a case of fractured ribs" 8 and that he explains cardiac failure as a "failing of the heart" and his further concept is that it is "the stopping of the heart." He says that such stoppage could be due to trauma, such as a fracture of the ribs. 9 A resume of the evidence presented by the parties establishes the fact of death of Asuncion Pablo on May 21, 1970. She was legally married to Macario Ulep, the appellant herein. The death, established in two affidavits, Exhibits "A" and "B," was caused by said accused. In these affidavits, the appellant admitted that he elbowed and attacked his wife. This attack caused the complete fracture of the 4th, 5th, 6th and 7th ribs on her left chest and the 3rd, and 4th ribs, right chest of Asuncion Pablo on the same evening of May 21, 1970. The trial judge observed: "There was never any attempt on the part of the accused to repudiate the sworn statements wherein he admitted that the cause of death of his wife was his having elbowed her many times on her breast." 10 Having realized the gravity of his act, the appellant presented a witness to prove that sometime in February or March, 1969 his wife was pinned down by a sack of rice and the side portion of a bullcart and was attended to by a town quack doctor called an arbularyo. This witness said that two (2) ribs on each side of the chest were fractured, without stating which particular ribs were so affected. From all these observations, findings, and an incisive study of the necropsy report, the cause of death of the wife-victim in this case is cardiac arrest and primary shock caused by the strong pressure applied on the upper front chest bone. This happens when one steps, kneels or presses the body of a victim against a wall. The man-size blows coming from the elbow of the aggressor upon a thin-framed woman can only bring about fatal results.

We find relevance in Wharton and Stilles' findings in their book, Medical Jurisprudence under the title of "SHOCK," to wit:
Sec. 225. Shock. Death may also be due to the shock associated with the injury. The possibility of a person dying from the shock attendant upon an injury which, by itself appears to be unimportant is attested by experience. No satisfactory explanation of the cause of the shock seems to have been found, though it is due in some way to the upsetting of the nervous equilibrium of the body. Shock from an injury may be fatal even when the blow leaves no trace behind it; as, for instance, when a person receives a violent blow upon the pit of the stomach, or behind the ear, or to the larynx. ... In the case of Reg. v. Slane, et al., 11 the deceased had received injuries to the abdomen by kick and blows, but there were no marks of bruises present, or anything to show the cause of death. Death however, had followed twenty minutes after the maltreatment and was evidently due to the shock. The prisoners were convicted of murder. 12

We have previously stated that:

Even if the victim is suffering from an internal ailment, liver or heart disease, or tuberculosis, if the blow delivered by the accused (a) is the efficient cause of death; or (b) accelerated his death; or (c) is the proximate cause of death; then there is criminal liability.
13

Apropos to all these is that time-respected doctrine: "He who is the cause of the cause is the cause of the evil caused." This is the rationale in Article 4 of the Revised Penal Code which provides that "criminal liability shall be incurred by a person committing a felony (delito) although the wrongful act done be different from that which he intended." Again, We elucidated that: even though a blow with the fist or a kick does not cause any external wound, it may easily produce inflammation of the spleen and peritonitis and cause death, and even though the victim may have been previously affected by some internal malady, yet if the blow with the fist or foot accelerated death, he who caused such acceleration is responsible for the death as the result of an injury willfully and unlawfully inflicted. 14 We are, therefore, convinced that there is no fundamental disagreement between the two medical witnesses as to the cause of the victim's death and that cardiac arrest and primary shock took away the life of the victim, Asuncion Pablo. There is that clear and categorical showing that on the appellant fell the blame for these in human acts on his wife. He should answer for her tragic death. The indemnity to the heirs of his deceased wife should be increased to P30,000.00.

WHEREFORE, with the above modification as to indemnity, the judgment appealed from is hereby AFFIRMED in all other respects. SO ORDERED. Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

Footnotes
1 Page 56, Rollo. 2 Page 36, Rollo; page 7, Appellant's Brief. 3 Page 36, Rollo; page 8, Appellant's Brief. 4 Page 36, Rollo; page 9, Appellant's Brief. 5 Page 36, Rollo; page 11, Appellant's Brief. 6 Page 56, Rollo; page 15, Appellee's Brief. 7 Page 56, Rollo; page 16, Appellee's Brief. 8 Ibid. 9 Page 56, Rollo: page 16, Appellee's Brief. 10 Page 13, Rollo; page 13, Decision of the Court of First Instance. 11 Citing Derham Wint. Ass. 1872. 12 Wharton & Stille's Medical Jurisprudence, 5th Ed. 13 People vs. Ilustre, 54 Phil. 594. 14 United States v. Rosalinda Rodriguez, 23 Phil. 22.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-34665 August 28, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. DONATO BINDOY, defendant-appellant. Florentino Saguin for appellant. Attorney-General Jaranilla for appellee. VILLAMOR, J.: The appellant was sentenced by the Court of First Instance of Occidental Misamis to the penalty of twelve years and one day of reclusion temporal, with the accessories of law, to indemnify the heirs of the deceased in the amount of P1,000, and to pay the costs. The crime charged against the accused is homicide, according to the following information: That on or about the 6th of May, 1930, in the barrio of Calunod, municipality of Baliangao, Province of Occidental Misamis, the accused Donato Bindoy willfully, unlawfully, and feloniously attacked and with his bolo wounded Emigdio Omamdam, inflicting upon the latter a serious wound in the chest which caused his instant death, in violation of article 404 of the Penal Code.

The accused appealed from the judgment of the trial court, and his counsel in this instance contends that the court erred in finding him guilty beyond a reasonable doubt, and in convicting him of the crime of homicide. The record shows that in the afternoon of May 6, 1930, a disturbance arose in a tuba wineshop in the barrio market of Calunod, municipality of Baliangao, Province of Occidental Misamis, started by some of the tuba drinkers. There were Faustino Pacas (alias Agaton), and his wife called Tibay. One Donato Bindoy, who was also there, offered some tuba to Pacas' wife; and as she refused to drink having already done so, Bindoy threatened to injure her if she did not accept. There ensued an interchange of words between Tibay and Bindoy, and Pacas stepped in to defend his wife, attempting to take away from Bindoy the bolo he carried. This occasioned a disturbance which attracted the attention of Emigdio Omamdam, who, with his family, lived near the market. Emigdio left his house to see what was happening, while Bindoy and Pacas were struggling for the bolo. In the course of this struggle, Bindoy succeeded in disengaging himself from Pacas, wrenching the bolo from the latter's hand towards the left behind the accused, with such violence that the point of the bolo reached Emigdio Omamdam's chest, who was then behind Bindoy. There is no evidence that Emigdio took part in the fight between Bindoy and Pacas. Neither is there any indication that the accused was aware of Emigdio Omamdam's presence in the place, for, according to the testimony of the witnesses, the latter passed behind the combatants when he left his house to satisfy his curiosity. There was no disagreement or ill feeling between Bindoy and Omamdam, on the contrary, it appears they were nephew and uncle, respectively, and were on good terms with each other. Bindoy did not try to wound Pacas, and instead of wounding him, he hit Omamdam; he was only defending his possession of the bolo, which Pacas was trying to wrench away from him, and his conduct was perfectly lawful. The wound which Omamdam received in the chest, judging by the description given by the sanitary inspector who attended him as he lay dying, tallies with the size of the point of Bindoy's bolo. There is no doubt that the latter caused the wound which produced Emigdio Omamdam's death, but the defendant alleges that it was caused accidentally and without malicious intent. Pacas and the widow of the deceased, Carmen Angot, testified having seen the accused stab Omamdam with his bolo. Such testimony is not incompatible with that of the accused, to the effect that he wounded Omamdam by accident. The widow testified that she knew of her husband's wound being caused by Bindoy from his statement to her before his death. The testimony of the witnesses for the prosecution tends to show that the accused stabbed Omamdam in the chest with his bolo on that occasion. The defendant, indeed, in his effort to free himself of Pacas, who was endeavoring to wrench his bolo from him, hit

Omamdam in the chest; but, as we have stated, there is no evidence to show that he did so deliberately and with the intention of committing a crime. If, in his struggle with Pacas, the defendant had attempted to wound his opponent, and instead of doing so, had wounded Omamdam, he would have had to answer for his act, since whoever willfully commits a felony or a misdemeanor incurs criminal liability, although the wrongful act done be different from that which he intended. (Art. 1 of the Penal Code.) But, as we have said, this is not the case. The witness for the defense, Gaudencio Cenas, corroborates the defendant to the effect that Pacas and Bindoy were actually struggling for the possession of the bolo, and that when the latter let go, the former had pulled so violently that it flew towards his left side, at the very moment when Emigdio Omamdam came up, who was therefore hit in the chest, without Donato's seeing him, because Emigdio had passed behind him. The same witness adds that he went to see Omamdam at his home later, and asked him about his wound when he replied: "I think I shall die of this wound." And then continued: "Please look after my wife when I die: See that she doesn't starve," adding further: "This wound was an accident. Donato did not aim at me, nor I at him: It was a mishap." The testimony of this witness was not contradicted by any rebuttal evidence adduced by the fiscal. We have searched the record in vain for the motive of this kind, which, had it existed, would have greatly facilitated the solution of this case. And we deem it well to repeat what this court said in United States vs. Carlos (15 Phil., 47), to wit: The attention of prosecuting officers, and especially of provincial fiscals, directed to the importance of definitely ascertaining and proving, when possible, the motives which actuated the commission of a crime under investigation. In many criminal cases one of the most important aids in completing the proof of the commission of the crime by the accused is the introduction of evidence disclosing the motives which tempted the mind of the guilty person to indulge the criminal act. In view of the evidence before us, we are of opinion and so hold, that the appellant is entitled to acquittal according to article 8, No. 8, Penal Code. Wherefore, the judgment appealed from is reversed, and the accused Donato Bindoy is hereby acquitted with costs de oficio. So ordered. Avancea, C.J., Johnson, Street, Malcolm, Romualdez, Villa-Real, and Imperial, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-32066 March 15, 1903

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and appellee, vs. GONA (Mansaca), defendant and appellant. Jose Ma. Capili for appellant. Attorney-General Jaranilla for appellee. OSTRAND, J.: The defendant was charged before the Court of First Instance of the Province of Davao with the crime of homicide, the information reading as follows: That on or about October 26, 1928, in the municipal district of Pantukan, Province of Davao, Philippine Islands, as within the jurisdiction of the court, the said accused voluntarily, illegally, and criminally and with a bolo which he then carried, assaulted the Mansaca Mapudul, causing him a mortal wound on the left side of the neck and that as a consequence of said wound, the said Mapudul died.

Upon trial the court below found the defendant guilty as charged in the information and taking into consideration the extenuating circumstance of non-habitual intoxication, sentenced him to suffer twelve years and one of reclusion temporal with the accessory penalties prosecuted by law to indemnity the heirs of the deceased in the sum of P1,000, and to the costs. From this sentenced the defendant appealed. It appears from the evidence that on the evening of October 26, 1928, a number of Mansacas celebrated a reunion in the house of the Mansaca Gabriel. There seems to have been liberal supply of alcoholic drinks and some of the men present became intoxicated, with the result that a quarrel took the place between the Mansaca Dunca and the defendant. Dunca and his son Aguipo eventually left the house and were followed by Mapudul and one Award. The defendant left the house about the same time with intention of assaulting Dunca, but in the darkness of the evening and in the intoxicated condition of the defendant, the mistook Mapudul for Dunca and inflicated on him a mortal wound with a bolo. There can no doubt that the defendant killed Mapudul and that he is guilty of the crime charged, but his attorney argues that in view of the fact that said defendant had no intention to kill the deceased and committed the crime by mistake, he should have been found guilty of homicide through negligence under paragraph 1 of article 568 of the Penal Code and not of the graver crime of intentional homicide. This contention is contrary to earlier decisions of this court. In these case of United State vs. Mendieta(34 Phil., 242), the court said: Even admitting that the defendant intended to injure Hilario Lauigan instead of Pedro Acierto, even that, in view of the mortal wound which inflicted upon the latter, in no way could be considered as a relief from his criminal act. That he made a mistake in killing one man instead of another, when it is proved that he acted maliciously and willfully, cannot relieve him from criminal responsibility. Neither do we believe that the fact that he made a mistake in killing the wrong man should be considered as a mitigating circumstances. The appealed sentence is affirmed with the costs against the defendant. So ordered. Johnson, Malcolm, Villamor, Johns, Romualdez and Villa-Real, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-25459 August 10, 1926

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. RAMON MABUG-AT, defendant-appellant. Vicente Sotto for appellant. Attorney-General Jaranilla for appellee. ROMUALDEZ, J.: The Court of First Instance of Oriental Negros imposed upon Ramon Mabug-at the penalty of twelve years and one day cadena temporal, with the accessories of the law, to indemnify the offended party in the sum of P700 and to pay the costs, for the crime of frustrated murder. The appellant appealed from this judgment, making two assignments of error as committed by the trial court, to wit: 1. In holding that the crime committed is frustrated murder, and

2. In not giving any credit to the evidence presented by the defense, finding the defendant guilty beyond a reasonable doubt. The evidence of the prosecution shows that the accused and Juana Buralo was sweethearts. Juana had been jealous of the accused on account of the latter having frequently visited the house of one Carmen. Their relations were such that the accused invited Juana to take a walk on the afternoon of August 9, 1925. Juana refused him, later sending him a note of excuse. On the third day, or the night of August 11th, the accused went to the threshold of Cirilo Banyan's house where Juana Buralo had gone to take part in some devotion. There the accused, revolver in hand, requested Francisco Abellon to ask Juana to come downstairs and as Abellon refused to do so, the accused said: "If you do not want to go upstairs, I will get Juana and if anyone tries to defend her I will kill him." The accused waited until Juana and her niece Perfecta Buralo came downstairs, when they went in the direction of their house. The accused, who was seen by the two girls, followed them without saying a word. It is only a short distance from the house where the devotion took place to that of the offended party, the houses being adjacent. As the two girls were going upstairs, the accused, while standing at the foot of the stairway, fired a shot from his revolver which wounded Perfecta Buralo, the bullet passing through a part of her neck, having entered the posterior region thereof and coming out through the left eye, which was completely destroyed. Due to proper medical attention, Perfecta Buralo did not die and is on e of the witnesses who testified at the trial of this case. The defense, without abandoning its allegation that the accused is not responsible for the crime, contends that the crime proven is not frustrated murder but the discharge of a firearm, with injuries, it not having been proven that it was the accused's intention to kill. The relations existing between the accused and Juana Buralo, his disappointment at her not accepting his invitation to take a walk, the fact that the accused, revolver in hand, went to look for Juana Buralo at the house where the devotion was being held, later following her to her house, and especially having aimed at her person--the head--are facts which, in our opinion, permit of no other conclusion than that, in firing the shot, it was the accused's intention to kill. In the decision of this court in the case of United States vs. Montenegro (15 Phil., 1), it was held: We do not doubt that there may be cases wherein the discharge of a firearm at another is not in itself sufficient to sustain a finding of the intention to kill, and there are many cases in the books wherein the attendant circumstances conclusively establish that on discharging a firearm at another the actor was not in fact animated by the intent to kill. But, in seeking to ascertain 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 are developed by the evidence; and where, as in the case at bar, a revolver is twice

discharged point-blank at the body of another, and the shots directed at the most vital parts of the body, it needs but little additional evidence to establish the intent to kill beyond a reasonable doubt. The fact that a person received the shot which was intended for another, does not alter his criminal liability. (Art. 1, par. 3, Penal Code.) The circumstances qualifying the murder alleged in the complaint are evidence premeditation and treachery. Even when there is sufficient proof of premeditation (which we do not believe has been sufficiently established), yet, it cannot be considered as a qualifying circumstance in the present case, because the person whom the accused intended to kill was not Perfecta Buralo, who was hit by the bullet, but her aunt Juana Buralo. Had evident premeditation been proven, and there being no other qualifying circumstance of frustrated murder present in this case, the acts should be held to be frustrated homicide and punished with the maximum degree of the penalty prescribed by law. (Question 2, p. 28, 1890 ed., Viada's Penal Code.) But, the fact is that treachery was proven and must be taken into consideration in this case, because the accused fired at Perfecta Buralo, employing means which tended to insure the execution of the crime without running any risk himself from anyone who might attempt to defend the said offended party. The treachery which, according to the evidence, would have attended the crime had the bullet hit Juana Buralo was present in this case because the offended party Perfecta Buralo and Juana were going upstairs with their backs towards the accused when he fired his revolver. The Supreme Court of Spain, in a decision of May 7, 1885 (Viada, do., pp. 29, 30), in holding a crime to be murder and not homicide, stated the following: Considering that, according to the concept of treachery as it is explained in article 10 of the Civil code dealing with said circumstance, it is evident that in firing the gun which Alejandro Sola was carrying which caused the death of Nazario Iigo, he employed means which tended to insure the commission of the crime without any risk to himself arising from any defense that might be made by the offended party, for neither the wounded party Bartolome Lobejano, at whom the shot was aimed in order to kill him so that he might not testify as to the assault committed upon him shortly before, as held by the trial court, was not in a position to defend himself in any way, nor could Nazario Iigo become aware of any attack so unjustified, rapid and unforeseen; considering, further, that the purely accidental circumstance that as a result of the shot a person other than the one intended was killed, does not modify, in the instant case, the elements constituting the crime of murder qualified by the treachery with which Alejandro Sola acted, whether with respect to the wounded Bartolome Lobejano or to the deceased Nazario Iigo, for which reason the rules of article 65 are not applicable herein, the culprit not having, in fact, committed a crime different from that which he intended, taking into consideration the substantial and intrinsical meaning thereof, etc. Although the case just cited refers to the crime of consummated murder, the doctrine sustained therein is applicable to the case at bar so far as the concurrence of treachery as a qualifying circumstance is concerned.

The crime now before us is frustrated murder, the accused having intended to kill and performed all the acts of execution, which would have produced the crime of murder but which, nevertheless, did not produce it by reason of causes independent of his will. (Art. 3, Penal Code.) We find no merit in the first assignment of error. In regard to the second, it appears beyond a reasonable doubt that the facts enumerated above constitute the crime of frustrated murder. With the exception of the qualifying circumstance of treachery, we find no other aggravating circumstance. The judgment appealed from being in accordance with the law and the facts proven, the same is hereby affirmed in all its parts costs against the appellant. So ordered. Avancea, C.J., Street, Villamor, Ostrand, Johns and Villa-Real JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-38511 October 6, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. FRANCISCO CAGOCO Y RAMONES (alias FRANCISCO CAGURO, alias FRANCISCO ADMONES, alias BUCOY, alias FRISCO GUY), defendant-appellant. W.A. Caldwell and Sotto and Astilla for appellant. Office of the Solicitor-General Bengzon for appellee.

VICKERS, J.: The accused was charged in the Court of First Instance of Manila with the crime of asesinato, committed as follows: That on or about the 24th day of July, 1932, in the City of Manila, Philippine Islands, the said accused did then and there willfully, unlawfully and feloniously, without any just cause therefor and with intent to kill and treachery, assault and attack one Yu Lon by suddenly giving him a fist blow on the back part of the head, under conditions which intended directly and especially to insure, the

accomplishment of his purpose without risk to himself arising from any defense the victim Yu Lon might make, thus causing him to fall on the ground as a consequence of which he suffered a lacerated wound on the scalp and a fissured fracture on the left occipital region, which were necessarily mortal and which caused the immediate death of the said Yu Lon. After hearing the evidence, Judge Luis P. Torres found the defendant guilty as charged, and sentenced him to suffer reclusion perpetua, with the accessory penalties of the law, to indemnify the heirs of the deceased Yu Lon in the sum of P1,000, without subsidiary imprisonment in case of insolvency, and to pay the costs. Appellant's attorney de oficio makes the following assignments of error: 1. The trial court erred in finding that the appellant the person who committed the assault on Yu Lon, the victim to the crime charged in the information. 2. Assuming that the appellant is the person who committed the assault on Yu Lon (a fact which we specifically deny), the trial court erred in finding that the appellant struck his supposed victim. 3. Assuming that the appellant is the person who committed the assault on Yu Lon, and that the appellant did strike his supposed victim (facts which we specifically deny) the trial court erred in finding that the blow was dealt from the victim's rear. 4. The trial court erred in finding that the identity of the appellant was fully established. 5. Assuming that the four preceding errors assigned are without merit, the trial court erred in convicting the appellant of the crime of murder, under article 248 of the Revised Penal Code, instead of convicting him of the crime of maltreatment, under article 266 of the said Code. It appears from the evidence that about 8:30 on the night of July 24, 1932 Yu Lon and Yu Yee, father and son, stopped to talk on the sidewalk at the corner of Mestizos and San Fernando Streets in the District of San Nicolas Yu Lon was standing near the outer edge of the sidewalk, with his back to the street. While they were talking, a man passed back and forth behind Yu Lon once or twice, and when Yu Yee was about to take leave of his father, the man that had been passing back the forth behind Yu Lon approached him from behind and suddenly and without warning struck him with his fist on the back part of the head. Yu Lon tottered and fell backwards. His head struck the asphalt pavement; the lower part of his body fell on the sidewalk. His assailants immediately ran away. Yu Yee pursued him through San Fernando, Camba, and Jaboneros Streets, and then lost sight of him. Two other Chinese, Chin Sam and Yee Fung, who were walking along Calle Mestizos, saw the incident and joined him in the pursuit of Yu Lon's assailant. The wounded man was taken to the Philippine General Hospital, were he died

about midnight. A post-mortem examination was made the next day by Dr. Anastacia Villegas, who found that the deceased had sustained a lacerated wound and fracture of the skull in the occipital region, and that he had died from cerebral hemorrhage; that he had tuberculosis, though not in an advanced stage, and a tumor in the left kidney. Yu Yee promptly reported the incident to the police, and about 3 o'clock the next morning Sergeant Sol Cruz and other detectives, accompanied by Yu Yee, went to the scene of the crime and found blood stains in the street. Yu Yee said that he could recognize his father's assailant, and described him as being about five feet in height, 25 or 30 years old, with long hair and wearing a suit of dark clothes. After Sergeant Sol Cruz had been working on the case for three or four days he received information that the accused might be the person that had assaulted Yu Lon, and on August 4th the accused was arrested by detectives Manrique and Bustamante. He was wearing a dark wool suit. Yu Yee was immediately called to the police station. The accused was placed near the middle of a line of some eleven persons that had been detained for investigation. They were wearing different kinds of clothes. Yu Yee without hesitation pointed out the defendant as the person that had assaulted Yu Lon. He identified him not only by his long hair combed towards the back and worn long on the sides in the form of side-whiskers (patillas), but also by his high cheek-bones and the fact that his ears have no lobes. The defendant was identified at the trial not only by Yu Yee, but also by Chin Sam and Yee Fung. With respect to the first four assignment of error, which raise questions of fact as to the identification of the accused, and whether or not be struck the deceased, and if he did assault the deceased, whether he did so in a treacherous manner, we see no sufficient reason, after considering the evidence and arguments of counsel, to doubt the correctness of the findings of the trial judge. The accused was identified by Yu Yee and two other Chinese, and although Yu Yee may have overstated at the trial some of the facial peculiarities in the defendant that he claimed to have observed at the time of the incident, it must be remembered that Yu Yee without hesitation picked the defendant out of a group of eleven persons as his father's assailant, and that he had exceptional opportunities for observing his father's assailant, because while that person was walking back and forth behind Yu Lon, Yu Yee was facing the assailant. We find the testimony of the defendant and his witnesses as to the whereabouts of the defendant on the night in question unworthy of credit.1awphil.net The testimony of the three Chinese that a man struck the deceased and then ran away is corroborated by the testimony of a 15-year old boy, Dominador Sales. As to the contention that the deceased would have fallen on his face if he had been struck on the back of the head, the expert testimony shows that in such a case a person instinctively makes an effort to preserve or regain his balance, and that as result thereof the deceased may have fallen backwards. Another consideration is that sidewalks almost invariably slope towards the pavement, and this being true, when the deceased straightened up, he naturally tended to fall backwards. The evidence leaves no room for

doubt that the accused struck the deceased on the back of the head, because when the deceased was assaulted he and Yu Yee were standing on the sidewalk, facing each other, and if the accused had not struck the deceased on the back of the head, it would have been necessary for him to go between the deceased and Yu Yee. Since the accused struck the deceased from behind and without warning, he acted with treachery. "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 especially to insure its execution, without risk to himself arising from the defense which the offended party might make." (Article 14, No. 16, of the Revised Penal Code.) The fourth assignment of error is a repetition of the first. In the fifth assignment of error it is contended that the appellant if guilty at all, should be punished in accordance with article 266 of the Revised Penal Code, or for slight physical injuries instead of murder. Paragraph No. 1 of article 4 of the Revised Penal Code provide that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended; but in order that a person may be criminally liable for a felony different from that which he proposed to commit, it is indispensable that the two following requisites be present, to wit: (a) That a felony was committed; and (b) that the wrong done to the aggrieved person be the direct consequence of the crime committed by the offender. U.S. vs. Brobst, 14 Phil., 310; U.S. vs. Mallari, 29 Phil., 14 U.S. vs. Diana, 32 Phil., 344.) In the Brobst case, supra, it was held that death may result from a blow over or near the heart or in the abdominal region, notwithstanding the fact that the blow leaves no outward mark of violence; that where death result as the direct consequence of the use of illegal violence, the mere fact that the diseased or weakened condition of the injured person contributed to his death, does not relieve the illegal aggressor of criminal responsibility; that one is not relieved, under the law in these Islands, from criminal liability for the natural consequences of one's illegal acts, merely because one does not intend to produce such consequences; but that in such cases, the lack of intention, while it does not exempt from criminal liability, is taken into consideration as an extenuating circumstance. (U.S. vs. Luciano, 2 Phil., 96.) The reasoning of the decisions cited is applicable to the case at bar. There can be no reasonable doubt as to the cause of the death of Yu Lon. There is nothing to indicate that it was due to some extraneous case. It was clearly the direct consequence of defendants felonious act, and the fact that the defendant did not intend to cause so great an injury does not relieve him from the consequence of his unlawful act, but is merely a mitigating circumstance (U.S. vs. Rodriguez, 23 Phil., 22). The next question is whether the crime committed by the defendant should be classified as homicide or murder. Can the defendant be convicted of murder when he did not intend to kill the deceased?

We have seen that under the circumstances of this case the defendant is liable for the killing of Yu Lon, because his death was the direct consequence of defendant's felonious act of striking him on the head. If the defendant had not committed the assault in a treacherous manner. he would nevertheless have been guilty of homicide, although he did not intend to kill the deceased; and since the defendant did commit the crime with treachery, he is guilty of murder, because of the presence of the qualifying circumstance of treachery. The Supreme Court of Spain has held that there is no incompatibility, moral or legal, between alevosia and the mitigating circumstance of not having intended to cause so great an injury: Considering that there is no moral or legal incompatibility between treachery and the mitigating circumstance No. 3 of article 9 of the Penal Code, because the former depends upon the manner of execution of the crime and the latter upon the tendency of the will towards a definite purpose, and therefore there is no obstacle, in case treacherous means, modes or forms are employed, to the appreciation of the first of said circumstances and simultaneously of the second if the injury produced exceeds the limits intended by the accused; and for that reason it cannot be held in the instant case that this mitigating circumstances excludes treachery, or that the accused, being chargeable with the death of the offended party, should not be liable due to the voluntary presence of treachery in the act perpetrated, although with mitigation corresponding to the disparity between the act intended and the act consummated, etc. (Decision of May 10, 1905, Gazette of April 20, 906; Viada: 5th edition, Vol. 2, p. 156.) In the case of the United States vs. Candelaria (2 Phil., 104), this court speaking through Chief Justice Arellano said: In trying Jacinto to a tree the three defendants acted treacherously (alevosamente). Whether it was to prevent him from making resistance, whether it was to torture him for the purpose of making him give information, or whether it was for the purpose of inflicting further punishment, the fact is that by this means the defendants secured themselves against any risk which might have arisen from an attempt at self-defense on the part of the victim. We are of opinion that they had no intention to cause so great an evil as that which resulted, but this does not neutralize that other qualifying circumstance of the resulting death, because if there was no alevosia for the purpose of killing there was alevosia for the purpose of the illtreating. The means employed were not made use of for the precise purpose of making certain the death of Jacinto de Jesus but as a safe means of illtreating him without risk to the persons who were doing so. If by this means the ill treatment was aggravated, it follows that it is a qualifying circumstances in the death which resulted. It was not a condition of the purpose, but it was a condition of the criminal act itself, in whatever sense this be taken.

The penalty of murder (article 248 of the Revised Penal Code) is reclusion temporal in its maximum period to death, and there being present in this case one mitigating and no aggravating circumstance the prison sentence of the appellant is reduced to seventeen years, four months, and one day of reclusion temporal. As thus modified, the decision appealed from is affirmed, with the costs against the appellant. Avancea, C.J., Street, Abad Santos, and Butte, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 103119 October 21, 1992 SULPICIO INTOD, petitioner, vs. HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

CAMPOS, JR., J.: Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of attempted murder. From the records, we gathered the following facts. In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them to the house of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to be killed because of a land dispute between them and

that Mandaya should accompany the four (4) men, otherwise, he would also be killed. At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the instance of his companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out, however, that Palangpangan was in another City and her home was then occupied by her son-in-law and his family. No one was in the room when the accused fired the shots. No one was hit by the gun fire. Petitioner and his companions were positively identified by witnesses. One witness testified that before the five men left the premises, they shouted: "We will kill you (the witness) and especially Bernardina Palangpangan and we will come back if (sic) you were not injured". 2 After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by the Court of Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from this Court a modification of the judgment by holding him liable only for an impossible crime, citing Article 4(2) of the Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall be incurred: xxx xxx xxx 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means.

Petitioner contends that, Palangpangan's absence from her room on the night he and his companions riddled it with bullets made the crime inherently impossible. On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead, the facts were sufficient to constitute an attempt and to convict Intod for attempted murder. Respondent alleged that there was intent. Further, in its Comment to the Petition, respondent pointed out that:
. . . The crime of murder was not consummated, not because of the inherent impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a cause or accident other than petitioner's and his accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time. Had it not been for this fact, the crime is possible, not impossible. 3

Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old Penal Code where:
. . . it was necessary that the execution of the act has been commenced, that the person conceiving the idea should have set about doing the deed, employing appropriate means in order that his intent might become a reality, and finally, that the result or end contemplated shall have been physically possible. So long as these conditions were not present, the law and the courts did not hold him criminally liable. 5

This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the Positivist School, recognizes in the offender his formidability, 7 and now penalizes an act which were it not aimed at something quite impossible or carried out with means which prove inadequate, would constitute a felony against person or against property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. 9 Under this article, the act performed by the offender cannot produce an offense against person or property because: (1) the commission of the offense is inherently impossible of accomplishment: or (2) the means employed is either (a) inadequate or (b) ineffectual. 10 That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of accomplishment. 11 There must be either impossibility of accomplishing the intended act 12 in order to qualify the act an impossible crime. Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1) the motive, desire and expectation is to perform an act in violation of the law; (2) there is intention to perform the physical act; (3) there is a performance of the intended physical act; and (4) the consequence resulting from the intended act does not amount to a crime. 14

The impossibility of killing a person already dead

15

falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. 16 One example is the man who puts his hand in the coat pocket of another with the intention to steal the latter's wallet and finds the pocket empty.
17

The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be, although in reality, the victim was not present in said place and thus, the petitioner failed to accomplish his end.

One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with intent to kill, aimed and fired at the spot where he thought the police officer would be. It turned out, however, that the latter was in a different place. The accused failed to hit him and to achieve his intent. The Court convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party imagined where he was, and where the bullet pierced the roof, renders it no less an attempt to kill. It is well settled principle of criminal law in this country that where the criminal result of an attempt is not accomplished simply because of an obstruction in the way of the thing to be operated upon, and these facts are unknown to the aggressor at the time, the criminal attempt is committed.

In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because the latter did not pass by the place where he was lying-in wait, the court held him liable for attempted murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only became impossible by reason of the extraneous circumstance that Lane did not go that way; and further, that he was arrested and prevented from committing the murder. This rule of the law has application only where it is inherently impossible to commit the crime. It has no application to a case where it becomes impossible for the crime to be committed, either by outside interference or because of miscalculation as to a supposed opportunity to commit the crime which fails to materialize; in short it has no application to the case when the impossibility grows out of extraneous acts not within the control of the party.

In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no one can seriously doubt that the protection of the public requires the punishment to be administered, equally whether in the unseen depths of the pocket, etc., what was supposed to exist was really present or not. The community suffers from the mere alarm of crime. Again: Where the thing intended (attempted) as a crime and what is done is a sort to create alarm, in other words, excite apprehension that the evil; intention will be carried out, the incipient act which the law of attempt takes cognizance of is in reason committed.

In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the latter was inside. However, at that moment, the victim was in another part of the house. The court convicted the accused of attempted murder. The aforecited cases are the same cases which have been relied upon by Respondent to make this Court sustain the judgment of attempted murder against Petitioner. However, we cannot rely upon these decisions to resolve the

issue at hand. There is a difference between the Philippine and the American laws regarding the concept and appreciation of impossible crimes. In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding this matter. What it provided for were attempts of the crimes enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of committing the offense is merely a defense to an attempt charge. In this regard, commentators and the cases generally divide the impossibility defense into two categories: legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a defense. If the crime could have been committed had the circumstances been as the defendant believed them to be, it is no defense that in reality the crime was impossible of commission.

Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of prison. The law governing the matter made the act criminal if done without knowledge and consent of the warden. In this case, the offender intended to send a letter without the latter's knowledge and consent and the act was performed. However, unknown to him, the transmittal was achieved with the warden's knowledge and consent. The lower court held the accused liable for attempt but the appellate court reversed. It held unacceptable the contention of the state that "elimination of impossibility as a defense to a charge of criminal attempt, as suggested by the Model Penal Code and the proposed federal legislation, is consistent with the overwhelming modern view". In disposing of this contention, the Court held that the federal statutes did not contain such provision, and thus, following the principle of legality, no person could be criminally liable for an act which was not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the offense of attempt irrespective of legal impossibility until such time as such legislative changes in the law take place, this court will not fashion a new non-statutory law of criminal attempt.

To restate, in the United States, where the offense sought to be committed is factually impossible or accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to commit the substantive crime where the elements of attempt are satisfied. It appears, therefore, that the act is penalized, not as an impossible crime, but as an attempt to commit a crime. On the other hand, where the offense is legally impossible of accomplishment, the actor cannot be held liable for any crime neither for an attempt not for an impossible crime. The only reason for this is that in American law, there is no such thing as an impossible crime. Instead, it only recognizes impossibility as a defense to a crime charge that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase "inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no distinction between factual or physical impossibility and legal impossibility. Ubi lex non distinguit nec nos distinguere debemos . The factual situation in the case at bar present a physical impossibility which rendered the intended crime impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act an impossible crime. To uphold the contention of respondent that the offense was Attempted Murder because the absence of Palangpangan was a supervening cause independent of the actor's will, will render useless the provision in Article 4, which makes a person criminally liable for an act "which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment . . ." In that case all circumstances which prevented the consummation of the offense will be treated as an accident independent of the actor's will which is an element of attempted and frustrated felonies. WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Having in mind the social danger and degree of criminality shown by Petitioner, this Court sentences him to suffer the penalty of six (6) months of arresto mayor, together with the accessory penalties provided by the law, and to pay the costs. SO ORDERED. Feliciano, Regalado and Nocon, JJ., concur. Narvasa, C.J., is on leave.

Footnotes
1 People vs. Intod, C.A-G.R. No. 09205, August 14, 1991; Justice Fidel P. Purisima, Ponente: Justices Eduardo R. Bengzon and Salome A. Montoya, concurring. 2 TSN, p. 4, July 24, 1986. 3 Records, p. 65.

4 Guevarra, Commentaries on the Revised Penal Code 15 (4th ed., 1946). 5 Albert, Ibid. 6 Albert, Ibid. 7 Albert, Ibid. 8 Albert, Ibid. 9 Grogorio and Feria, Comments on the Revised Penal Code 76 (Vol. I, 1st ed. 1958). 10 Reyes, The revised Penal Code, 90 (Vol. I, 11th ed., 1977). 11 Reyes, Ibid. 12 Reyes, Ibid. 13 U.S. vs. Berrigan, 482 F. 2nd. 171 (1973). 14 U.S. vs. Berrigan, Ibid. 15 Aquino, The Revised Penal Code, (Vol. I, 1987). 16 U.S. vs. Berrigan, supra, p. 13. 17 U.S. vs. Berrigan, Ibid. 18 21 L.R.A. 626 (1898). 19 21 L.R.A. N.S. 898 (1908). 20 17 S.W. 145 (1888). 21 71 S.W. 175 (1902). 22 U.S. vs. HENG AWKAK ROMAN, 39 L. Ed. 2d. 874 (1974). 23 565 F. Supp. 1416 (1983). 24 Supra, n. 13.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-43530 August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. AURELIO LAMAHANG, defendant-appellant. Honesto K. Bausa for appellant. Office of the Solicitor-General Hilado for appellee. RECTO, J.: The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and four months of prision correccional and to an additional penalty of ten years and one day of prision mayor for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs of the proceeding. At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of a store of cheap goods located on the last named street. At that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused had only succeeded in breaking one board and in

unfastening another from the wall, when the policeman showed up, who instantly arrested him and placed him under custody. The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as constituting attempted robbery, which we think is erroneous. It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the case at bar it was the intention of the accused to enter Tan Yu's store by means of violence, passing through the opening which he had started to make on the wall, in order to commit an offense which, due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. Thus, in case of robbery, in order that the simple act of entering by means of force or violence another person's dwelling may be considered an attempt to commit this offense, it must be shown that the offender clearly intended to take possession, for the purpose of gain, of some personal property belonging to another. In the instant case, there is nothing in the record from which such purpose of the accused may reasonably be inferred. From the fact established and stated in the decision, that the accused on the day in question was making an opening by means of an iron bar on the wall of Tan Yu's store, it may only be inferred as a logical conclusion that his evident intention was to enter by means of force said store against the will of its owner. That his final objective, once he succeeded in entering the store, was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing in the record to justify a concrete finding.1avvphil.et It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is wanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of the acts executed (accion medio). Hence, the necessity that these acts be such that by their very nature, by the facts to which they are related, by the circumstances of the persons performing the same, and by the things connected therewith, they must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well as against the culprit, and which show an innocent as well as a punishable act, must not and can not furnish grounds by themselves for attempted nor frustrated

crimes. The relation existing between the facts submitted for appreciation and the offense which said facts are supposed to produce must be direct; the intention must be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instances of injustice, that the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury. This must have been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence the commission of the felony directly by overt acts, that is to say, that the acts performed must be such that, without the intent to commit an offense, they would be meaningless. Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense, are not punished except when they are aimed directly to its execution, and therefore they must have an immediate and necessary relation to the offense." Considering says the Supreme Court of Spain in its decision of March 21, 1892 that in order to declare that such and such overt acts constitute an attempted offense it is necessary that their objective be known and established, or that said acts be of such nature that they themselves should obviously disclose the criminal objective necessarily intended, said objective and finality to serve as ground for the designation of the offense: . . . . In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under article 280 of the Revised Penal Code, this offense is committed when a private person shall enter the dwelling of another against the latter's will. The accused may be convicted and sentenced for an attempt to commit this offense in accordance with the evidence and the following allegation contained in the information: "... the accused armed with an iron bar forced the wall of said store by breaking a board and unfastening another for the purpose of entering said store ... and that the accused did not succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who upon hearing the noise produced by the breaking of the wall, promptly approached the accused ... ." Under the circumstances of this case the prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be taken into consideration the aggravating circumstances of nighttime and former convictions, inasmuch as the record shows that several final judgments for robbery and theft have been rendered against him and in his favor, the mitigating circumstance of lack of instruction. The breaking of the wall should not be taken into consideration as an aggravating circumstance inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass to dwelling. The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with force, is prision correccional in its medium and maximum

periods and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium periods. Because of the presence of two aggravating circumstances and one mitigating circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for one-half of his preventive imprisonment. Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to three months and one day of arresto mayor, with the accessory penalties thereof and to pay the costs. Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 88724 April 3, 1990 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CEILITO ORITA alias "Lito," defendant-appellant. The Office of the Solicitor General for plaintiff-appellee. C. Manalo for defendant-appellant.

MEDIALDEA, J.: The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in the said case reads as follows (p. 47, Rollo):

The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as follows: That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, above named accused with lewd designs and by the use of a Batangas knife he conveniently provided himself for the purpose and with threats and intimidation, did, then and there wilfully, unlawfully and feloniously lay with and succeeded in having sexual intercourse with Cristina S. Abayan against her will and without her consent. CONTRARY TO LAW.

Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses for the People testified and the exhibits were formally offered and admitted, the prosecution rested its case. Thereafter, the defense opted not to present any exculpatory evidence and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the dispositive portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to pay costs. SO ORDERED.

Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion perpetua and to indemnify the victim in the amount of P30,000.00. SO ORDERED.

On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of 1948.

The antecedent facts as summarized in the People's brief are as follows (pp. 7175, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier. In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden, somebody held her and poked a knife to her neck. She then recognized appellant who was a frequent visitor of another boarder (pp. 8-9, ibid). She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door which led to the first floor was locked from the inside, appellant forced complainant to use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs (p. 14, ibid). When they reached the second floor, he commanded her to look for a room. With the Batangas knife still poked to her neck, they entered complainant's room. Upon entering the room, appellant pushed complainant who hit her head on the wall. With one hand holding the knife, appellant undressed himself. He then ordered complainant to take off her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p. 20, ibid). He ordered her to lie down on the floor and then mounted her. He made her hold his penis and insert it in her vagina. She followed his order as he continued to poke the knife to her. At said position, however, appellant could not fully penetrate her. Only a portion of his penis entered her as she kept on moving (p. 23, ibid). Appellant then lay down on his back and commanded her to mount him. In this position, only a small part again of his penis was inserted into her vagina. At this stage, appellant had both his hands flat on the floor. Complainant thought of escaping (p. 20, ibid). She dashed out to the next room and locked herself in. Appellant pursued her and climbed the partition. When she saw him inside the room, she ran to another room. Appellant again chased her. She fled to another room and jumped out through a window (p. 27, ibid). Still naked, she darted to the municipal building, which was about eighteen meters in front of the boarding house, and knocked on the door. When there was no answer, she ran around the building and knocked on the back door. When the policemen who were inside the building opened the door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the first policeman to see her, took off his jacket and wrapped it around her. When they discovered what happened, Pat. Donceras and two other policemen rushed to the boarding house. They heard a sound at the second floor and saw somebody running away. Due to darkness, they failed to apprehend appellant.

Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she was physically examined. Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical Certificate (Exhibit "A") which states: Physical Examination Patient is fairly built, came in with loose clothing with no under-clothes; appears in state of shock, per unambulatory. PE Findings Pertinent Findings only. Neck- Circumscribed hematoma at Ant. neck. Breast Well developed, conical in shape with prominent nipples; linear abrasions below (L) breast. Back Multiple pinpoint marks. Extremities Abrasions at (R) and (L) knees. Vulva No visible abrasions or marks at the perineal area or over the vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen intact; no laceration fresh and old noted; examining finger can barely enter and with difficulty; vaginal canal tight; no discharges noted.

As aforementioned, the trial court convicted the accused of frustrated rape. In this appeal, the accused assigns the following errors: 1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and 2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused. The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its candor, truth and validity." (p. 33, Rollo) A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as manifestations of truthfulness on material points. These little deviations also confirm that the witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but such honest lapses do not necessarily impair

their intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion which is, the testimony of the victim that the accused asked her to hold and guide his penis in order to have carnal knowledge of her. According to the accused, this is strange because "this is the only case where an aggressor's advances is being helped-out by the victim in order that there will be a consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the testimony of the victim ended there. The victim testified further that the accused was holding a Batangas knife during the aggression. This is a material part of the victim's testimony which the accused conveniently deleted. We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on the credibility of witnesses should be accorded the highest respect because it has the advantage of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding the testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be desired as to the sincerity of the offended party in her testimony before the court. Her answer to every question profounded (sic), under all circumstances, are plain and straightforward. To the Court she was a picture of supplication hungry and thirsty for the immediate vindication of the affront to her honor. It is inculcated into the mind of the Court that the accused had wronged her; had traversed illegally her honor.

When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was committed provided her testimony is clear and free from contradiction and her sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that she was raped but she testified convincingly on how the rape was committed. The victim's testimony from the time she knocked on the door of the municipal building up to the time she was brought to the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude) declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle against force

and violence exerted on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully satisfied that the narration of the scene of the incident and the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of both accused and offended party without the slightest difficulty, even in the manner as narrated. The partitions of every room were of strong materials, securedly nailed, and would not give way even by hastily scaling the same.

A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the ground which was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury to a frightened individual being pursued. Common experience will tell us that in occasion of conflagration especially occuring ( sic) in high buildings, many have been saved by jumping from some considerable heights without being injured. How much more for a frightened barrio girl, like the offended party to whom honor appears to be more valuable than her life or limbs? Besides, the exposure of her private parts when she sought assistance from authorities, as corroborated, is enough indication that something not ordinary happened to her unless she is mentally deranged. Sadly, nothing was adduced to show that she was out of her mind.

In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her having been rendered entirely naked by appellant and that even in her nudity, she had to run away from the latter and managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts she would not have done nor would these facts have occurred unless she was sexually assaulted in the manner she narrated.

The accused questions also the failure of the prosecution to present other witnesses to corroborate the allegations in the complaint and the nonpresentation of the medico-legal officer who actually examined the victim. Suffice it to say that it is up to the prosecution to determine who should be presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the medico-legal officer who actually examined the victim, the trial court stated that it was by agreement of the parties that another physician testified inasmuch as the medico-legal officer was no longer available. The accused did not bother to contradict this statement. Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its face. Some were not even substantiated and do

not, therefore, merit consideration. We are convinced that the accused is guilty of rape. However, We believe the subject matter that really calls for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim and thus convicted the accused of frustrated rape only. The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same view. Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious and 3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. xxx xxx xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193). On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies as well as those which are frustrated and attempted, are punishable. A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.

Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the crime of rape. Our concern now is whether or not the frustrated stage applies to the crime of rape. The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which would produce the felony and (2) that the felony is

not produced due to causes independent of the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction between attempted and frustrated felonies which is readily understood even by law students:
. . . A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when all of the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished . Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed . The offender merely commenced the commission of a felony directly by overt acts . Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed. Of course, We are aware of our earlier pronouncement in the case of People v. Eria 50 Phil. 998 [1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of the offended party. However, it appears that this is a "stray" decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965)

which provides, in its penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Eria case, supra, might have prompted the lawmaking body to include the crime of frustrated rape in the amendments introduced by said laws. In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there was penetration or not. It is true, and the Court is not oblivious, that conviction for rape could proceed from the uncorroborated testimony of the offended party and that a medical certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people relied upon cannot be applicable to the instant case. The testimony of the offended party is at variance with the medical certificate. As such, a very disturbing doubt has surfaced in the mind of the court. It should be stressed that in cases of rape where there is a positive testimony and a medical certificate, both should in all respect, compliment each other, for otherwise to rely on the testimony alone in utter disregard of the manifest variance in the medical certificate, would be productive of mischievous results.

The alleged variance between the testimony of the victim and the medical certificate does not exist. On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of the victim. He merely testified that there was uncertainty whether or not there was penetration. Anent this testimony, the victim positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina? A It entered but only a portion of it. xxx xxx xxx Q What do you mean when you said comply, or what act do you referred (sic) to, when you said comply? A I inserted his penis into my vagina. Q And was it inserted?

A Yes only a little.

The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative and is not an indispensable element in the prosecution of this case (People v. Alfonso, supra). Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused because after a thorough review of the records, We find the evidence sufficient to prove his guilt beyond reasonable doubt of the crime of consummated rape. Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not declare the abolition of the death penalty but merely prohibits the imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any mitigating or aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702). ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00. SO ORDERED. Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

SECOND DIVISION

SIMON FERNAN, JR. and cralawG.R. No. 145927 EXPEDITO TORREVILAS,

cralawPetitioners,cralawPresent: cralaw cralawQUISUMBING, cralawCARPIO,

J., Chairperson,

- versus -cralawCARPIO MORALES,

cralawTINGA,

and

VELASCO, JR., JJ.

cralawPromulgated:

PEOPLE OF THE PHILIPPINES,cralaw

cralawRespondent.cralawAugust

24, 2007cralaw

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

DECISION

VELASCO, JR., J.:

cralawThe

instant petition under Rule 45 originated from 119 criminal cases filed with the

Sandiganbayan (SB) involving no less than 36 former officials and employees of the then Ministry of Public Highways (MPH) and several suppliers of construction materials for defalcation of public funds arising from numerous transactions in the Cebu First Highway Engineering District in 1977.Because of the sheer magnitude of the illegal transactions, the number of people involved, and the ingenious scheme employed in defrauding the government, this infamous 86 million highway scam has few parallels in the annals of crime in the country.

The Case

cralawPetitioners

Simon Fernan, Jr. and Expedito Torrevillas seek the reversal of the December 4,

1997 Decision of the SB in the consolidated Criminal Case Nos. 1640, 1641, 1642, 1643, 1818, 1819, 1820, 1821, 1822, 1823, 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 2839, 2840, 2841, 2842, 2843, 2844, 2845, 2846, 2847, 2848, 2849, 2850, 2851, 2852, 2853, 2854, 2855, 2856, 2857, 2858, 2859, 2860, 2861, 2862, 2863, 2864, 2865, 2866, 2867, 2868, 2869, 2870, 2871, 2872, 2873, 2874, 2875, 2876, 2877, 2878, 2879, 2880, 2881, 2882, 2883, 2884, 2885, 2886, 2887, 2888, 2889, 2890, 2891, 2892, 2893, 2894, 2895, 2896, 2897, 2898, 2899, 2900, 2901, 2902, 2903, 2904, 2905, 2906, 2907, 2908, 2909, 2910, 2911, 2912,

2913, 2915, 2917, 2918, 2919, 2920, 2921, 2922, 2923, 2924, 2925, 2926, 2927, 2928, 2929, 2930, 2931, 2932, 2936, 2937, 2938, and 2939, all entitled People of the Philippines v. Rocilo Neis, et al., finding them guilty of multiple instances of estafa through falsification of public documents; and the subsequent August 29, 2000 SB Resolution which denied their separate pleas for reconsideration.

Petitioner Fernan, Jr. disputes the adverse judgment in only six (6) cases, namely: 2879, 2880, 2881, 2885, 2914, and 2918; while petitioner Torrevillas seeks exoneration in nine (9) cases, namely: 2855, 2856, 2858, 2859, 2909, 2910, 2914, 2919, and 2932.

Both petitioners assert their strong belief that their guilt has not been established beyond reasonable doubt and, hence, exculpation is in order.

The Facts

cralawThe

SB culled the facts this way:

On June 21, 1978, COA Regional Director Sofronio Flores Jr. of COA Regional Office No. 7, directed auditors Victoria C. Quejada and Ruth I. Paredes to verify and submit a report on sub-allotment advises issued to various highway engineering districts in Cebu, particularly, the Cebu City, Cebu 1st, Cebu 2nd and the Mandaue City Highway Engineering Districts.Complying with the directive, they conducted an investigation and in due course submitted their findings.Their report (Exhibit C) confirmed the issuance of fake Letters of Advice of Allotments (LAAs) in the districts mentioned.They discovered that two sets of LAAs were received by the districts.One set consists of regular LAAs which clearly indicated the covering sub-allotment advices and were duly signed by

Mrs. Angelina Escao, Finance Officer of the MPH Regional Office.The LAAs were numbered in proper sequence and duly recorded in the logbook of the Accounting, Budget and Finance Division. The other set consists of fake LAAs which do not indicate the covering sub-allotment advice and were signed by Chief Accountant Rolando Mangubat and Engr. Jose Bagasao, instead of the Finance Officer.These fake LAAs were not numbered in proper sequence; they were mostly undated and were sometimes duplicated.They could not be traced to the files and records of the Accounting, Budget and Finance Division.The accounting entry for the disbursements made on the fake LAAs was debited to the AccountsPayable Unliquidated Obligations (8-81-400) and credited to the Checking Account with the Bureau of Treasury (8-70-790).Nevertheless, the expenditures were taken from obligations of the current year (1978) because all the supporting papers of the payment vouchers were dated in that year.The entries in the journal vouchers filed with the MPH Regional Office were adjusted every month to 8-81-400 (unliquidated or prior years obligation), 8-83-000 (liquidated or current year obligations) and 8-70-700 (Treasury/Agency Account).All of these were approved for the Finance Officer by Chief Accountant Rolando Mangubat. Mangubat, however, had no authority to approve them because since October 1977, he had already been detailed to the MPH Central Office. There were indications that the practice had been going on for years. xxxx Due to these serious irregularities, then President Marcos created a Special Cabinet Committee on MPH Region VII Ghost Projects Anomalies which in turn organized a Special Task Force composed of representatives from the Finance Ministry Intelligence Bureau (FMIB), National Bureau of Investigation (NBI), the Bureau of Treasury and the Commission on Audit.The mission of the task force was to conduct a wider and more extended investigation in all the fifteen (15) highway engineering districts of MPH Region VII, including the Cebu First Highway Engineering District, the 1977 questionable disbursements of which are the subject matter of these cases. xxxx For a better understanding of these highways cases, the flow in the release of funds to the various agencies of the government and the control devices set up for disbursement and accounting of public funds should first be explained.A chart (Exhibit B) graphically shows the flow of allotments from the Ministry down to the district level.
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On the basis of appropriation laws and upon request made by heads of agencies, the then Ministry of Budget released funds to the various

agencies of the government by means of an Advice of Allotment (AA) and a Cash Disbursement Ceiling (CDC).The Advice of Allotment is an authority for the agency to incur obligations within a specified amount in accordance with approved programs and projects. The Cash Disbursement Ceiling is an authority to pay.Upon receipt of the AA and CDC from the Budget, the Central Office of the agency prepares the Sub-Advice of Allotment (SAA) and the Advice of Cash Disbursement Ceiling (ACDC) for each region, in accordance with the disbursement allotment.These are sent to the Regional Office.Upon receipt, the Budget Officer of the region prepares the corresponding Letters of Advice of Allotment (LAA) which are forwarded to the various districts of the region (The amount that goes to each district is already indicated in the Advice of Allotment).Only upon receipt of the LAA is the district office authorized to incur obligations. Now, how are funds released by the Regional Office to the different districts and ultimately paid out to contractors, the District Engineer submits to the Regional Director a request for allotment in accordance with the program of work prepared by the former. This procedure starts with the preparation of a Requisition for Supplies and Equipment (RSE) in the District Office by the Senior Civil Engineer, approved by the District Engineer, and signed by the Chief Accountant of the Highway Engineering District, who certifies as to the availability of funds.The RSE is then submitted to the Regional Director for approval.Once it is approved, a Request for Obligation of Allotment (ROA) is prepared by the Chief Accountant of the district Senior Civil Engineer.The ROA signifies that a certain amount of district funds has been set aside or earmarked for the particular expenditures stated in the RSE.On the basis of the ROA, the District Office puts up advertisements, [conducts] biddings, makes awards and prepares purchase orders which are served on the winning bidder.The District Office also prepares a summary of deliveries with the corresponding delivery receipts and tally sheets, conducts inspection and prepares the General Voucher for the payment of deliveries.Once the General Voucher (GV) has been prepared, the corresponding check in the form of a Treasury Check Account for Agency (TCAA) is drawn by the Disbursing Officer and finally released to the contractor. At the end of every month, the Report of Checks Issued by Deputized Disbursing Officer (RCIDD) is prepared, listing all the checks issued during that period.The RCIDDO is submitted to the accounting division of the region.Upon receipt of the RCIDDO, the Regional Office draws a journal voucher, debiting the account obligation (liquidated or unliquidated obligation, whichever is applicable), and crediting the account Treasury Check Account for Agency (TCAA).The RCIDDO is recorded in the Journal of Checks Issued by Deputized Disbursing Officers (JCIDDO) and posted in the general ledger at the end of each month.

Simultaneous with the flow of the RCIDDO, the ROAs are summarized in the Reports of Obligations Incurred (ROI) in the District Office, once or twice a month, depending upon the volume of transactions.The ROI is then submitted to the Regional Office.Upon receipt of the ROI, the accountant of the Regional Office draws a journal voucher taking up the following entry: debiting the appropriation allotted (0-90-000) and crediting the obligation incurred (0-82-000). This is recorded in the general voucher and posted to the general ledger at the end of each month.The journal voucher is prepared, closing the account 8-70-709 to 871-100-199 at the end of each month.It is also recorded and posted to the general ledger.At the end of the month, the balances of each account shown in the general ledger are summarized in a statement called the trial balance. The trial balance is submitted to the MPH Central Office in Manila where it is consolidated with other trial balances submitted by other regional offices. xxxx The elaborate accounting procedure described above with its system of controls was set up obviously to make sure that government funds are properly released, disbursed and accounted for.In the hands of untrustworthy guardians of the public purse, however, it proved to be inadequate.There were loopholes which an unscrupulous person adroit in government accounting could take advantage of to surreptitiously draw enormous sums of money from the government. Sometime in February, 1977, accused Rolando Mangubat (Chief Accountant), Delia Preagido (Accountant III), Jose Sayson (Budget Examiner), and Edgardo Cruz (Clerk II), all of MPH Region VII, met at the Town and Country Restaurant in Cebu City and hatched an ingenious plan to siphon off large sums of money from government coffers.Mangubat had found a way to withdraw government money through the use of fake LAAs, vouchers and other documents and to conceal traces thereof with the connivance of other government officials and employees.In fine, the fraudulent scheme involved the splitting of LAAs and RSEs so that the amount covered by each general voucher is less than P50,000.00 to do away with the approval of the Regional Auditor; the charging of disbursements to unliquidated obligations due the previous year to provide the supposed source of funds; and the manipulation of the books of account by negation or adjustment, i.e., the cancellation of checks through journal vouchers to conceal disbursements in excess of the cash disbursement ceiling (CDC), so as not to reflect such disbursements in the trial balances submitted to the Regional Office.

Mangubat enticed Preagido, Cruz and Sayson to join him.All three agreed to help him carry out his plan.They typed the fake LAAs during Saturdays. Cruz and Sayson also took charge of negotiating or selling the fake LAAs to contractors at 26% of the gross amount.Preagido on her part manipulated the General Ledger, Journal Vouchers and General Journal thru negative entries to conceal the illegal disbursements.Thus, in the initial report of the auditors (Exhibit D), it was discovered that the doubtful allotments and other anomalies escaped notice due to the following manipulations: The letter-advices covering such allotments (LAA) were generally not signed by the Finance Officer nor recorded in the books of accounts.Disbursements made on the basis of these fake LAAs were charged to the unliquidated Obligations (Account 8-81-400), although the obligations being paid were not among those certified to the unliquidated obligations (Account 8-81-400) at the end of the preceding year.To conceal the overcharges to authorized allotments, account 8-81-400 and the excess of checks issued over authorized cash disbursements ceiling, adjustments were prepared monthly through journal vouchers to take up the negative debit to Account 8-81-400 and a negative credit to the Treasury Checking Account for Agencies Account 8-70-790.These journal vouchers in effect cancelled the previous entry to record the disbursements made on the basis of the fake LAAs. Thus, the affected accounts (Accounts 8-81-400 and 8-70-790), as appearing in the trial balance would not show the irregularity.The checks, however, were actually issued. cralawThe four formed the nucleus of the nefarious conspiracy.Other government employees, tempted by the prospect of earning big money, allowed their names to be used and signed spurious documents. Although the anomalies had been going on for sometime (February 1977 to June 1978), the PNB and Bureau of Treasury had no inkling about it until the NBI busted the illegal operations. (Some of the recipients of the stolen funds spent lavishly and bought two cars at a time).The reason for this is that, at that time, the PNB and Bureau of Treasury were not furnished copy of the mother CDC and the local branch of the PNB did not receive independent advice from the PNB head office in Manila.There were no deposits of money made with the PNB from which withdrawals could be charged.Only CDCs were presented to it, and not knowing that some of the CDCs were fake, the PNB branch paid out the checks drawn against them.The bank had also no way of knowing what amount was appropriated for the district; consequently, it did not know if the limit had already been exceeded.Only an insider steep in government accounting, auditing and banking procedures, particularly their flaws and loopholes, could have pulled off such an ingenious and audacious plan.
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cralaw

xxxx

Focusing our attention now on the anomalies committed in the Cebu First District Engineering District, hereinafter referred to as the Cebu First HED for brevity, the Court finds that the same pattern of fraud employed in the other highway engineering districts in MPH Region VII was followed.The Cebu First HED received from Region VII thirty-four Letters of Advice of Allotment (LAAs) in the total sum of P4,734,336.50 and twenty-nine (29) corresponding Sub-Advices of Cash Disbursement Ceiling (SACDCs), amounting to P5,160,677.04 for the period January 1, 1977 to December 31, 1977.But apart from this, the Cebu First HED appears to have also received for the same period another set of eightyfour (84) LAAs amounting to P4,680,694.76 which however, could not be traced to any Sub-Advice of Allotment (SAA) or matched to the Advices of Cash Disbursement Ceiling (ACDCs) received from the MPH and Regional Office.This is highly irregular and not in consonance with accounting procedures.
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It was also made to appear that the payments were made for alleged prior years obligations and chargeable to Account 8-81-400, obviously because, they were not properly funded.Furthermore, the list of projects in Region VII for 1977 showed that Cebu First HED completed rehabilitation and/or improvement of roads and bridges in its districts from February to May 1977, with expenditures amounting to P613,812.00.On the other hand, the expenditures for barangay roads in the same district in 1977 amounted to P140,692.00, and these were all completed within the period from November to December, 1977.These completed projects were properly funded by legitimate LAAs and CDCs in the total amount of only P754,504.00.However, an additional amount of P3,839,810.74 was spent by the Cebu First HED for maintenance of roads and bridges for the same year (1977) but the same could not be traced to any authoritative document coming from the MPH.
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xxxx

A total of 132 General Vouchers, emanating from fake LAAs and ACDCs, were traced back to Rolando Mangubat, Regional Accountant of Region VII and Adventor Fernandez, Regional Highway Engineer, also of Region VII.Those LAAs and ACDCs became the vehicles in the disbursement of funds amounting to P3,839,810.74, through the vouchers purportedly issued for the purchase and delivery of the aforementioned materials allegedly used for the maintenance and repair of the national highways within the Cebu First HED.Despite the enormous additional expenditure of P3,839,810.74, the roads and bridges in the district, as found out by the NBI, did not show any improvement.As testified to by
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several barangay captains, the road maintenance consisted merely of spreading anapog or limestone on potholes of the national highway. Obviously, the vouchers for payments of alleged maintenance of roads and bridges in the additional amount of P3,839,810.74 were prepared for no other purpose than to siphon the said amount from the government coffer into the pockets of some officials and employees of Region VII and the Cebu First HED, as well as the suppliers and contractors who conspired and confederated with them.

The nuclei of this massive conspiracy, namely: Rolando Mangubat, Jose Sayson, and Edgardo Cruz, all of MPH Region VII, were found guilty in all 119 counts and were accordingly sentenced by the SB. The other conniver, Delia Preagido, after being found guilty in some of the cases, became a state witness in the remainder.On the basis of her testimony and pertinent documents, Informations were filed, convictions were obtained, and criminal penalties were imposed on the rest of the accused.

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the other hand, petitioners were both Civil Engineers of the MPH assigned to the Cebu

First Highway Engineering District.Petitioner Fernan, Jr. was included among the accused in Criminal Case Nos. 2879, 2880, 2881, 2885, 2914, and 2918 allegedly for having signed six (6) tally sheets or statements of deliveries of materials, used as bases for the preparation of the corresponding number of general vouchers.Fund releases were made to the suppliers, contractors, and payees based on these general vouchers.

cralawThe

Information against Fernan, Jr. in SB Criminal Case No. 2879 reads as follows:

The undersigned accuses Rocilo Neis, Rolando Mangubat, Adventor Fernandez, Angelina Escao, Delia Preagido, Camilo de Letran, Manuel de Veyra, Heracleo Faelnar, Basilisa Galvan, Matilde Jabalde, Josefina Luna, Jose Sayson, Edgardo Cruz, Leonila del Rosario, Engracia Escobar, Abelardo Cardona, Leonardo Tordecilla, Agripino Pagdanganan, Ramon

Quirante, Mariano Montera, Mariano Jarina, Leo Villagonzalo, Asterio Buqueron, Zosimo Mendez, Simon Fernan, Jr. and Juliana de los Angeles for estafa thru falsification of public and commercial documents, committed as follows: That on, about and during the period from December 1, 1976 up to January 31, 1977,both dates inclusive, in the City of Cebu and in Cebu Province, and within the jurisdiction of this Honorable Court, the accused Rocilo Neis, Assistant District Engineer of Cebu HED I; Rolando Mangubat, the Chief Accountant of Region VII of the Ministry of Public Highways and Adventor Fernandez, Regional Highway Engineer of same Regional Office, conniving with each other to defraud the Philippine Government with the indispensable cooperation and assistance of Angelina Escao, Finance Officer of Region VII of the Ministry of Public Highways; Delia Preagido, Assistant Chief Accountant of same Regional Office; Camilo de Letran, Chief Accountant of Cebu I HED; Manuel de Veyra, Regional Director, MPH, Region VII; Heracleo Faelnar, then Assistant Director MPH Region VII; Basilisa Galvan, Budget Officer, MPH, Region VII; Matilde Jabalde, Supervising Accounting Clerk, MPH, Region VII; Josefina Luna, Accountant II, MPH, Region VII; Jose Sayson, Budget Examiner, MPH, Region VII, Edgardo Cruz, Accountant I, MPH, Region VII; Leonila del Rosario, Chief Finance and Management Service, MPH, Central Office; Engracia Escobar, Chief Accountant, MPH, Central Office; Abelardo Cardona, Assistant Chief Accountant, MPH, Central Office; Leonardo Tordecilla, Supervising Accountant, MPH, Central Office; Agripino Pagdanganan, Budget Officer III, MPH, Central Office; Ramon Quirante, Property Custodian of Cebu I HED; Mariano Montera, Senior Civil Engineer Engineer of Cebu I HED; Mariano Jarina, Clerk in the Property Division of Cebu I HED; Leo Villagonzalo, Auditors Aide of Cebu I HED; Zosimo Mendez, Auditor of Cebu I HED; Asterio Buqueron, Administrative Officer of Cebu I HED; Simon Fernan, Jr., Civil Engineer of Cebu I HED and Juliana de los Angeles, an alleged supplier, all of whom took advantage of their official positions, with the exception of Juliana de los Angeles, mutually helping each other did then and there willfully, unlawfully and feloniously falsify and/or cause the falsification of the following documents, to wit: 1. Request for Allocation of Allotment 2. Letter of Advice of Allotment 3. Advice of Cash Disbursement Ceiling

4. General Voucher No. B-15 5. Check No. 9933064 6. Abstract of Bids 7. Purchase Order 8. Statement of Delivery 9. Report of Inspection 10. Requisition for Supplies or Equipment 11. Trial Balance by making it appear that Regional Office No. VII of the Ministry of Public Highways regularly issued an advice of cash disbursement ceiling (ACDC) and the corresponding letter of advice of allotment (LAA) to cover the purchase of 1,400 cu. m. of item 108 for use in the repair of the Cebu Hagnaya Wharf road from Km. 50.30 to Km. 60.00, when in truth and in fact, as all the accused knew, the same were not true and correct; by making it appear in the voucher that funds were available and that there were appropriate requests for allotments (ROA) to pay the aforesaid purchase; that a requisition for said item was made and approved; that a regular bidding was held; that a corresponding purchase order was issued in favor of the winning bidder; that the road construction materials were delivered, inspected and used in the supposed project and that the alleged supplier was entitled to payment when in truth and in fact, as all the accused know, all of the foregoing were false and incorrect and because of the foregoing falsifications, the above-named accused were able to collect from the Cebu I HED the total amount of TWENTY EIGHT THOUSAND PESOS (P28,000.00), Philippine Currency, in payment of the non-existing deliveries; that the said amount of P28,000.00 was not reflected in the monthly trial balance submitted to the Central Office by Region VII showing its financial condition as the same was negated thru the journal voucher, as a designed means to cover-up the fraud; and the accused, once in possession of the said amount, misappropriated, converted and misapplied the same for their personal needs, to the damage and prejudice of the Philippine Government in the total amount of TWENTY EIGHT THOUSAND PESOS (P28,000.00), Philippine Currency.

CONTRARY TO LAW.
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cralawThe

Informations in the six (6) cases involving Fernan, Jr. were essentially identical save for

the details as highlighted in boldface above.For ease of reference, Fernan, Jr.s criminal cases are detailed below:

Criminal Case No. 2879

Dates of Commission December 1, 1976 up to January 31, 1977

2880

1,400 cu. m. of item 108 for use in the repair of the CebuHagnayaWharf road from Km. 50.30 to Km. 60.00 December 1, 1976 1. Request for 1,400 cu. m. of item 108 for up to January 31, Allocation of use in the repair of the 1977 Allotment 101-12- Bogo-Curva-Medellon road 105-76; from Km. 110.00 to Km. 119.00 2. General Voucher No. B-55; 3. Check No. 9933104; January 2, 1977 up 1. Request for to February 28, Allocation of 1977 Allotment 101-256-77;

Main Documents Falsified 1. General Voucher No. B-15; 2. Check No. 9933064;

Items Allegedly Purchased Amount of Fraud PhP 28,000.00

PhP 28,000.00

2881

Approximately 1,500 cu. m. of item 108 for use in the repair and rehabilitation of damaged roads and bridges by Typhoon Aring at the 2. General Voucher Tabogon-Bogo provincial road from Km. 92 to Km. 98 No. B-245;

PhP 31,000.00

2885

3. Check No. 9933294; January 2, 1977 up 1. Request for to January 31, 1977 Allocation of Allotment 101-12112-76; 2. General Voucher No. B-76; 3. Check No. 9933125;

materials for use in the repair and rehabilitation of the Daan-Bantayan road from Km. 127.00 to Km. 136

PhP 30,000.00

2914

2918

October 1, 1977 up 1. General Voucher to November 30, No. B-927; 1977 2. Check No. 9403425; January 2, 1977 up 1. General Voucher to February 28, No. B-107; 1977 2. Check No. 9933157;

1,200 cu. m. of item 108 for use in the rehabilitation of the Cajel-Lugo, Barbon barangay road 1,500 cu. m. of item 108 for the rehabilitation of the CebuNorthHagnayaWharf road from Km. 71 to Km. 76

PhP 27,000.00

PhP 30,000.00

On the other hand, petitioner Torrevillas was one of the accused in Criminal Case Nos. 2855, 2856, 2858, 2859, 2909, 2910, 2914, 2919, and 2932.

The Information against Torrevillas in SB Criminal Case No. 2855 reads as follows:

The undersigned accuses Rocilo Neis, Rolando Mangubat, Adventor Fernandez, Angelina Escao, Delia Preagido, Camilo de Letran, Manuel de Veyra, Heracleo Faelnar, Basilisa Galvan, Matilde Jabalde, Josefina Luna, Jose Sayson, Edgardo Cruz, Leonila del Rosario, Engracia Escobar, Abelardo Cardona, Leonardo Tordecilla, Agripino Pagdanganan, Ramon Quirante, Jorge de la Pea, Leo Villagonzalo, Asterio Buqueron, Expedito Torrevillas, Mariano Montera and Rufino V. Nuez for estafa thru falsification of public and commercial documents, committed as follows: That on, about and during the period from June 1, 1977 up to June 30, 1977,both dates inclusive, in the City of Cebu and in Cebu Province, and within the jurisdiction of this Honorable Court, the accused Rocilo Neis, Assistant District Engineer of Cebu HED I; Rolando Mangubat, the Chief Accountant of Region VII of the Ministry of Public Highways and Adventor Fernandez, Regional Highway Engineer of same Regional Office, conniving with each other to defraud the Philippine Government with the indispensable cooperation and assistance of Angelina Escao, Finance Officer of Region VII of the Ministry of Public Highways; Delia Preagido, Assistant Chief Accountant of same Regional Office; Camilo de Letran, Chief Accountant of Cebu I HED; Manuel de Veyra, Regional Director, MPH, Region VII; Heracleo Faelnar, then Assistant Director MPH Region VII; Basilisa Galvan, Budget Officer, MPH, Region VII; Matilde Jabalde, Supervising

Accounting Clerk, MPH, Region VII; Josefina Luna, Accountant II, MPH, Region VII; Jose Sayson, Budget Examiner, MPH, Region VII, Edgardo Cruz, Accountant I, MPH, Region VII; Leonila del Rosario, Chief Finance and Management Service, MPH, Central Office; Engracia Escobar, Chief Accountant, MPH, Central Office; Abelardo Cardona, Assistant Chief Accountant, MPH, Central Office; Leonardo Tordecilla, Supervising Accountant, MPH, Central Office; Agripino Pagdanganan, Budget Officer III, MPH, Central Office; Ramon Quirante, Property Custodian of Cebu I HED; Jorge de la Pea, Auditor of Cebu I HED; Leo Villagonzalo, Auditors Aide of Cebu I HED; Asterio Buqueron, Administrative Officer of Cebu I HED; Expedito Torrevillas, representative of the Engineers Office, Cebu I HED; Mariano Montera, Senior Civil Engineer Engineer of Cebu I HED; and Rufino V. Nuez, an alleged supplier, all of whom took advantage of their official positions, with the exception of Rufino V. Nuez, mutually helping each other did then and there willfully, unlawfully and feloniously falsify and/or cause the falsification of the following documents, to wit: 1. Request for Allocation of Allotment 101-10-186-76; 10190-76; 10-192-76; 10-188-76; 10-180-76 2. Letter of Advice of Allotment 3. Advice of Cash Disbursement Ceiling 4. General Voucher No. B-613 5. Check No. 9403099 6. Abstract of Bids 7. Purchase Order 8. Statement of Delivery 9. Report of Inspection 10. Requisition for Supplies or Equipment 11. Trial Balance by making it appear that Regional Office No. VII of the Ministry of Public Highways regularly issued an advice of cash disbursement ceiling (ACDC) and the corresponding letter of

advice of allotment (LAA) to cover the purchase of 153.63 m. t. of item 310 for use in asphalting of the Toledo-Tabuelan road at Km. 108.34 to Km. 109.52, when in truth and in fact, as all the accused knew, the same were not true and correct; by making it appear in the voucher that funds were available and that there were appropriate requests for allotments (ROA) to pay the aforesaid purchase; that a requisition for said item was made and approved; that a regular bidding was held; that a corresponding purchase order was issued in favor of the winning bidder; that the road construction materials were delivered, inspected and used in the supposed project and that the alleged supplier was entitled to payment when in truth and in fact, as all the accused know, all of the foregoing were false and incorrect and because of the foregoing falsifications, the above-named accused were able to collect from the Cebu I HED the total amount of FORTY EIGHT THOUSAND FOUR HUNDRED THIRTY ONE PESOS & 85/100 (P48,431.85), Philippine Currency, in payment of the nonexisting deliveries; that the said amount of P48,431.85 was not reflected in the monthly trial balance submitted to the Central Office by Region VII showing its financial condition as the same was negated thru the journal voucher, as a designed means to cover-up the fraud; and the accused, once in possession of the said amount, misappropriated, converted and misapplied the same for their personal needs, to the damage and prejudice of the Philippine Government in the total amount of FORTY EIGHT THOUSAND FOUR HUNDRED THIRTY ONE PESOS & 85/100 (P48,431.85), Philippine Currency. CONTRARY TO LAW.

cralawThe

Torrevillas cases were substantially the same save for the details highlighted in the

aforequoted typical accusatory pleading.For ease of reference, Torrevillas criminal cases are particularized as follows:

Criminal Case No. 2855

Dates of Main Documents Commission Falsified June 1, 1977 up to 1. Request for June 30, 1977 Allocation of Allotment 101-10186-76; 10-190-76; 10-192-76; 10-188-

Items Allegedly Amount of Fraud Purchased 153.63 m. t. of item PhP 48,431.85 310 for use in asphalting of the Toledo-Tabuelan road from Km. 108.34 to

76; 10-180-76; 2. General Voucher No. B-613;

Km. 109.52

2856

3. Check No. 9403099; June 1, 1977 up to 1. Request for 153.76 m. t. of item June 30, 1977 Allocation of 310 for use in the Allotment 101-10-15- asphalting of the 76; 9-201-76; 8-152- Toledo-Tabuelan road 76; 8-153-76;9-181- from Km 108.34 to 76; 9-184-76 Km. 109.52 2. General Voucher No. B-619; 3. Check No. 9403105; June 1, 1977 up to 1. Request for 151.35 m. t. of item July 31, 1977 Allocation Allotment 310 for use in the 101-6-234-76; 6-237- asphalting of the 76; 6-239-76; 6-241- Toledo-Tabuelan road 76; 6-240-76 from Km. 108.34 to Km. 109.52 2. General Voucher No. B-629; 3. Check No. 9403115; June 1, 1977 up to 1. Request for June 31, 1977 Allocation of Allotment 101-7-6376; 8-102-76; 8-12176 2. General Voucher No. B-631; 3. Check No. 9403117; September 1, 1977 up 1. General Voucher to November 30, No. B-928; 1977 2. Check No. 9403426; September 1, 1977 up 1. General Voucher to November 30, No. B-929; 1977 2. Check No. 9403427;

PhP 48,472.84

2858

PhP 47,713.09

2859

110.01 m. t. of item 310 for use in asphalting of the Toledo-Tabuelan road from Km. 108.34 to Km.109.52

PhP 34,680.65

2909

2910

1,200 cu.m. of item 108 for use in the rehabilitation of the Buanoy-Cantibas, Balaban barangay road 1,200 cu. m. of item 108 for use in the rehabilitation of the Magay-Canamukan, Compostela barangay road

PhP 27,900.00

PhP 27,900.00

2914

October 1, 1977 up to 1. General Voucher November 30, 1977 No. B-927; 2. Check No. 9403425;

2919

2932

1,200 cu. m. of item 108 for use in the rehabilitation of the Cajel-Lugo, Barbon barangay road January 2, 1977 up to 1. General Voucher 1,550 cu. m. of item February 28, 1977 No. B-244; 108 for use in the 2. Check No. repair and 9933293; rehabilitation of damaged roads and bridges at the ToledoTabuelan national road from Km. 71 to Km. 83 June 1, 1977 up to 1. Request for 250 gals of aluminum July 31, 1977 Allocation of paint 324 gals of red Allotment 101-7-83- lead paint for use in 76; 7-84-76; 7-124- the maintenance of 76; 8-153-76; 8-170- national roads and 76; bridges 2. General Voucher B-643; 3. Check No. 9403130;

PhP 27,000.00

PhP 31,000.00

PhP 44,762.58

The Sandiganbayans Ruling

The anti-graft court was fully convinced of the guilt of petitioner Fernan, Jr.; and in its December 4, 1997 Decision, it found him criminally liable in the six (6) cases against him, thus:

In Criminal Case No. 2879, the Court finds accused JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA, ZOSIMO MENDEZ, MARIANO JARINA and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00);

to indemnify, jointly and severally the Republic of the Philippines in the amount of Twenty Eight Thousand Pesos (P 28,000.00); and, to pay their proportionate share of the costs. (Emphasis supplied.) In Criminal Case No. 2880, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA, ZOSIMO MENDEZ, and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Twenty Eight Thousand Pesos (P 28,000.00); and, to pay their proportionate share of the costs. (Emphasis supplied.) In Criminal Case No. 2881, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, ZOSIMO MENDEZ and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Thirty One Thousand Pesos (P 31,000.00); and, to pay their proportionate share of the costs. (Emphasis supplied.) In Criminal Case No. 2885, the Court finds accused CAMILO DE LETRAN JOSE SAYSON, RAMON QUIRANTE, ZOSIMO MENDEZ and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of

Thirty Thousand Pesos (P 30,000.00); and, to pay their proportionate share of the costs. (Emphasis supplied.) In Criminal Case No. 2914, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, EXPEDITO TORREVILLAS and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Twenty Seven Thousand Pesos (P 27,000.00); and, to pay their proportionate share of the costs. (Emphasis supplied.) In Criminal Case No. 2918, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, ZOSIMO MENDEZ, SIMON FERNAN, Jr. and ISMAEL SABIO, Jr. GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Thirty Thousand Pesos (P 30,000.00); and, to pay their proportionate share of the costs. (Emphasis supplied.)
cralaw cralawPetitioner

Torrevillas suffered the same fate and was convicted in the nine (9) criminal cases,

to wit:

In Criminal Case No. 2855, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA, and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification

of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Forty Eight Thousand Four Hundred Thirty One Pesos and 85/100 (P 48,431.85); and, to pay their proportionate share of the costs. (Emphasis supplied.) In Criminal Case No. 2856, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Forty Eight Thousand Four Hundred Seventy Two Pesos and 84/100 (P 48,472.84); and, to pay their proportionate share of the costs. (Emphasis supplied.) In Criminal Case No. 2858, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA and EXPEDITO TOREVILLAS, GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru Falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Forty Seven Thousand Seven Hundred Thirteen Pesos and 9/100 (P47,713.09); and, to pay their proportionate share of the costs. In Criminal Case No. 2859, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA and EXPEDITO TOREVILLAS, GUILTY beyond

reasonable doubt as co-principals in the crime of Estafa thru Falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Thirty Four Thousand Six Hundred Eighty pesos and 65/100 (P34,680.65); and , to pay their proportionate share of the costs. In Criminal Case No. 2909, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, FLORO JAYME and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Twenty Seven Thousand Nine Hundred Pesos (P 27,900.00); and, to pay their proportionate share of the costs. (Emphasis supplied.) In Criminal Case No. 2910, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, FLORO JAYME and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Twenty Seven Thousand Nine Hundred Pesos (P 27,900.00); and, to pay their proportionate share of the costs. (Emphasis supplied.) In Criminal Case No. 2914, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, EXPEDITO TORREVILLAS and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification

of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Twenty Seven Thousand Pesos (P 27,000.00); and, to pay their proportionate share of the costs. (Emphasis supplied.) In Criminal Case No. 2919, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA, ZOSIMO MENDEZ, EXPEDITO TORREVILLAS and ISMAEL SABIO, Jr. GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Thirty One Thousand Pesos (P 31,000.00); and, to pay their proportionate share of the costs. (Emphasis supplied.) In Criminal Case No. 2932, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA, PEDRITO SEVILLE and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Forty Four Thousand Seven Hundred Sixty Two Pesos and 58/100 (P 44,762.58); and, to pay their proportionate share of the costs. (Emphasis supplied.)

cralawPetitioners

made the supplication before the court a quo to recall the adverse judgments

against them which was declined by the August 29, 2000 SB Resolution.

cralawFirm

in their belief that they were innocent of any wrongdoing, they now interpose the

instant petition to clear their names.

The Issues

cralawPetitioners

put forward two (2) issues, viz:

I THE HONORABLE SANDIGANBAYAN TOTALLY IGNORED PETITIONERS CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT WHEN IT RULED THAT THE BURDEN OF CONVINCING THE HON. COURT THAT THE DELIVERIES OF THE ROAD MATERIALS ATTESTED TO HAVE BEEN RECEIVED BY THEM WERE NOT GHOST DELIVERIES RESTS WITH THE ACCUSED AND NOT WITH THE PROSECUTION. II THE HONORABLE SANDIGANBAYAN ERRED IN CONVICTING PETITIONERS AS CO-CONSPIRATORS DESPITE THE PROSECUTIONS FAILURE TO SPECIFICALLY PROVE BEYOND REASONABLE DOUBT THE FACTS AND CIRCUMSTANCES THAT WOULD IMPLICATE THEM AS CO-CONSPIRATORS AND JUSTIFY THEIR CONVICTION.

The Courts Ruling

cralawWe

are not persuaded to nullify the verdict.

Petitioners guilt was established beyond reasonable doubt

cralawPetitioners

mainly asseverate that their guilt was not shown beyond a peradventure of doubt

and the State was unable to show that government funds were illegally released based on alleged ghost deliveries in conjunction with false or fake tally sheets and other documents which they admittedly signed.

cralawWe

are not convinced.

cralawOur

Constitution unequivocally guarantees that in all criminal prosecutions, the accused shall

be presumed innocent until the contrary is proved.This sacred task unqualifiedly means proving the guilt of the accused beyond a reasonable doubt.Definitely, reasonable doubt is not mere guesswork whether or not the accused is guilty, but such uncertainty that a reasonable man may entertain after a fair review and consideration of the evidence.Reasonable doubt is present when

after the entire comparison and consideration of all the evidences, leaves the minds of the [judges] in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge; a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it.

cralawA

thorough scrutiny of the records is imperative to determine whether or not reasonable

doubt exists as to the guilt of accused Fernan, Jr. and Torrevillas.

cralawPetitioners

were charged with the complex crime of estafa through falsification of public

documents as defined and penalized under Articles 318 and 171 in relation to Article 48 of the Revised Penal Code, thus:

ART. 318. Other deceits. The penalty of arresto mayor and a fine of not less than the amount of the damage caused and not more than twice such amount shall be imposed upon any person who shall defraud or damage another by any deceit not mentioned in the preceding articles of this chapter.

ART. 171. Falsification by public officer, employee; or notary or ecclesiastical minister. The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts: xxxx 4. Making untruthful statements in a narration of facts;

ART. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period.

The complex crime is pruned into the following essential elements:

For estafa 1. Deceit: Deceit is a specie of fraud.It is actual fraud, and consists in any false representation or contrivance whereby one person overreaches and misleads another, to his hurt.There is deceit when one is misled, either by

guile or trickery or by other means, to believe to be true what is really false. 2. Damage: Damage may consist in the offended party being deprived of his money or property as a result of the defraudation, disturbance in property right, or temporary prejudice. For falsification 1. That the offender is a public officer, employee, or notary public; 2. That he takes advantage of his official position; 3. That he falsifies a document by committing any of the acts defined under Article 171 of the Revised Penal Code.
cralaw cralawBefore

the SB, a Memorandum of Agreement (MOA) dated September 1, 1988 was entered

into between the State and the accused with the following stipulations and admissions:

(1) To expedite the early termination of the instant cases and abbreviate the testimony of Mrs. Delia Preagido, the prosecution and the accused have agreed to reproduce and adopt as the testimony of Preagido in the instant cases, her previous testimonies in Criminal Cases Nos. 889, etc. (Mandaue City HED 78 cases), on May 18 and 19, 1982 and in Criminal Cases Nos. 1446-1789, etc. (Danao City HED 77 cases) on November 10, 1987 and March 14, 1988, both on direct and cross examination x x x without prejudice to whatever direct and/or cross examination question, that may be propounded by the Prosecution and the accused on said State witness, which questions will only be limited to the fake or irregular LAAs and SACDCs issued to Cebu I HED in 1977, the sale of such fake or irregular LAAs and SACDCs issued to Cebu I HED in 1977, the sale of such fake or irregular LAAs and SACDCs in said engineering district in the said year and the participation of the accused thereon; (2) That in the event Mrs. Delia Preagido is presented to testify as a State witness in the instant cases without reproducing and adopting her previous testimonies in the Mandaue City HED 78 and the Danao City HED 77 cases, she will identify documents and exhibits which have been previously marked and identified by other prosecution witness x x x. (3) That in the previous testimonies of Mrs. Delia Preagido in the Mandaue City HED 78 and the Danao City HED 77 cases, she identified twenty-six separate lists containing names of officials and employees of

MPH, Regional Office No. VII, of the various Highways Engineering Districts in MPH, Region VII, and the MPH Central Office who have allegedly received money or various sums from 1977 to 1978 out of the proceeds or sales of fake LAAs in 1977 and 1978 and, therefore, to obviate Mrs. Preagidos previous testimony of these lists, the Prosecution hereby reproduces and adopts specifically such testimony and the markings of the lists, i.e., Exhibits KKK, KKK-1 to KKK-25 in the Mandaue City HED 78 cases and Exhibits 0000, 0000-1 to 0000-25 in the Danao City HED 77 cases, substituted or re-marked accordingly as Exhibits LL, LL-1 to LL-25 in the instant cases.

cralawAs

a result of this MOA, the testimony of state witness Preagido on the modus operandi of

the conspirators, or the unique and distinct method of procedure by which the malversation of public funds in Region VII of the MPH was perpetrated and accomplished, dealt a major blow to the defenses raised by petitioners.Preagidos vital testimony, wherein she identified the methods, documents, exhibits, and other pertinent papers that led to the crafting of fake Letters of Advice of Allotment (LAAs), general vouchers, disbursement of funds for non-existent projects, general vouchers, and other documents, was not even successfully refuted or overturned by petitioners.
cralawPreagido

confirmed and admitted under oath that the illegal disbursement of public funds

pertained to non-existent projects and was supported by fake LAAs, fake general vouchers, and other pertinent papers that were also falsified.The fake LAAs and general vouchers were, in turn, supported by signed tally sheets that pertained to alleged ghost deliveries of road construction materials for non-existent or illegal projects. The fake tally sheets, delivery receipts, reports of inspection, requests for supplies and materials, and other related documents signed on separate occasions by petitioners, which were attached as supporting documents to corresponding general vouchers; the alleged amounts and quantities of road construction materials delivered; and the specific fake general vouchers, checks, and other pertinent documents issued which led to the illegal disbursement of funds are summarized as follows:

Petitioner Fernan, Jr.

Criminal Case No. 2879

Specific Exhibits T-86-f-1, etc. (Tally Sheets)

2880

T-87-f-1, etc. (Tally Sheets)

Main Documents Items Allegedly Purchased FAKE LAAs Amount of Falsified that authorized Fraud purchase 1. General Voucher 1,400 cu. m. of item 108 for Not numbered PhP 28,000.00 No. B-15; use in the repair of the contrary to 2. Check No. CebuHagnayaWharf road official procedure 9933064; from Km. 50.30 to Km. 60.00 1. Request for 1,400 cu. m. of item 108 for Not numbered PhP 28,000.00 Allocation of use in the repair of the contrary to Allotment 101-12- Bogo-Curva-Medellon road official procedure 105-76; from Km. 110.00 to Km. 119.00 2. General Voucher No. B-55;

2881

3. Check No. 9933104; T-104-g-1, etc. 1. Request for Approximately 1,500 cu. m. Not numbered PhP 31,000.00 (Tally Sheets) Allocation of of item 108 for use in the contrary to Allotment 101-2- repair and rehabilitation of official procedure 56-77; damaged roads and bridges by Typhoon Aring at the 2. General Voucher Tabogon-Bogo provincial road from Km. 92 to Km. 98 No. B-245; 3. Check No. 9933294; T-89-f-1, etc. 1. Request for (Tally Sheets) Allocation of Allotment 101-12112-76; 2. General Voucher No. B-76; 3. Check No. 9933125; T-115-g-1, etc. 1. General Voucher 1,200 cu. m. of item 108 for PhP 27,000.00 (Tally Sheets) No. B-927; use in the rehabilitation of 2. Check No. the Cajel-Lugo, Barbon 9403425; barangay road T-116-f-1, etc. 1. General Voucher 1,500 cu. m. of item 108 for Not numbered PhP 30,000.00 (Tally Sheets) No. B-107; the rehabilitation of the contrary to 2. Check No. CebuNorthHagnayaWharf official procedure 9933157; road from Km. 71 to Km. 76

2885

Materials for use in the Not numbered PhP 30,000.00 repair and rehabilitation of contrary to the Daan-Bantayan road official procedure from Km. 127.00 to Km. 136

2914

2918

Petitioner Torrevillas

Criminal Specific Exhibits Main Documents Case No. Falsified 2855 T-33-f (Delivery 1. Request for Receipt); T-33-f- Allocation of 1 (Daily Tally Allotment 101-10Sheet); 186-76; 10-190-76; 10-192-76; 10-18876; 10-180-76; 2. General Voucher No. B-613;

FAKE LAAs that Amount of Fraud authorized purchase 153.63 m. t. of item Not numbered PhP 48,431.85 310 for use in contrary to official asphalting of the procedure Toledo-Tabuelan road from Km. 108.34 to Km. 109.52

Items Allegedly Purchased

2856

3. Check No. 9403099; T-34-f (Delivery 1. Request for 153.76 m. t. of item Not numbered Receipt); T-34-f- Allocation of 310 for use in the contrary to official 1 (Daily Tally Allotment 101-10-15- asphalting of the procedure Sheet); 76; 9-201-76; 8-152- Toledo-Tabuelan 76; 8-153-76;9-181- road from Km 76; 9-184-76 108.34 to Km. 109.52 2. General Voucher No. B-619; 3. Check No. 9403105; T-35-f (Delivery 1. Request for Receipt); T-35-f- Allocation Allotment 1 (Daily Tally 101-6-234-76; 6-237Sheet); 76; 6-239-76; 6-24176; 6-240-76 2. General Voucher No. B-629; 3. Check No. 9403115; T-36-f (Delivery 1. Request for Receipt); T-36-f- Allocation of 1 (Daily Tally Allotment 101-7-63Sheet); 76; 8-102-76; 8-12176 2. General Voucher No. B-631;

PhP 48,472.84

2858

151.35 m. t. of item Not numbered 310 for use in the contrary to official asphalting of the procedure Toledo-Tabuelan road from Km. 108.34 to Km. 109.52

PhP 47,713.09

2859

110.01 m. t. of item Not numbered 310 for use in contrary to official asphalting of the procedure Toledo-Tabuelan road from Km. 108.34 to Km.109.52

PhP 34,680.65

2909

2910

2914

2919

3. Check No. 9403117; T-113-b (Request 1. General Voucher for Supplies and No. B-928; Equipment); T- 2. Check No. 113-d (Report of 9403426; Inspection); T113-c (Abstract of Sealed Quotation) T-114-c (Request 1. General Voucher for Supplies and No. B-929; Equipment); T- 2. Check No. 114-e (Report of 9403427; Inspection); T114-f (Abstract of Sealed Quotation) T-115-c (Request 1. General Voucher for Supplies and No. B-927; Equipment); T- 2. Check No. 115-e (Report of 9403425; Inspection); T115-f (Abstract of Sealed Quotation) T-117-g 1. General Voucher (Delivery No. B-244; Receipt); T-117- 2. Check No. g-1, etc. (Daily 9933293; Tally Sheets)

1,200 cu.m. of item Not numbered 108 for use in the contrary to official rehabilitation of the procedure Buanoy-Cantibas, Balaban barangay road 1,200 cu. m. of Not numbered item 108 for use in contrary to official the rehabilitation of procedure the MagayCanamukan, Compostela barangay road 1,200 cu. m. of Not numbered item 108 for use in contrary to official the rehabilitation of procedure the Cajel-Lugo, Barbon barangay road

PhP 27,900.00

PhP 27,900.00

PhP 27,000.00

2932

1,550 cu. m. of Not numbered item 108 for use in contrary to official the repair and procedure rehabilitation of damaged roads and bridges at the Toledo-Tabuelan national road from Km. 71 to Km. 83 1. Request for 250 gals of Not numbered Allocation of aluminum paint contrary to official Allotment 101-7-83- 324 gals of red lead procedure 76; 7-84-76; 7-124- paint for use in the 76; 8-153-76; 8-170- maintenance of 76; national roads and bridges 2. General Voucher B-643; 3. Check No. 9403130;

PhP 31,000.00

PhP 44,762.58

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On the part of petitioners, they readily admitted that they either signed the tally sheets and/or delivery receipts, reports of inspection, requests for supplies and materials, and other related documents which became part of the supporting documents that led to the issuance of general vouchers and eventually the disbursement of public funds. The tally sheets are statements of delivery that purportedly indicated the specified quantities of materials for the construction and maintenance of roads that have been delivered on supposed project sites on given dates at specific places.

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a result of petitioners signatures in the tally sheets and/or delivery receipts, reports of

inspection, requests for supplies and materials, and other supporting documentswhich became the basis for payment to supplierspublic funds were released via general vouchers and checks to the said suppliers despite the fact that the latter did not make any deliveries in accordance with projects allegedly funded by mostly fake LAAs.

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accusation that there were no actual deliveries of road construction and maintenance

materials in support of projects or otherwise funded by LAAs was proven true by the testimonies of the various barangay captains and residents of the barangay who were supposed to be benefited by the construction and repair activities of the Cebu First Highway Engineering District.The testimonies of these barangay captains and residents are summarized as follows:chanroblesvirtuallawlibrary

1. MACARIO LIMALIMA,Barangay Captain of Barangay Antipolo, Medellin, Cebu, testified that his barangay is traversed by the national highway stretching to a distance of 2 kilometers and 750 meters (Km. 122; Km. 123 to 125).He described the road as full of potholes.Except for filling up these potholes with anapog or crushed limestone, no major repairs were undertaken on the said road in 1978 or in previous years. (TSN., pp. 6-14, June 5, 1986). 2. FELOMINO ORBISO, Barangay Captain of Cawit, Medellin, Cebu, from 1972 to 1981, testified that his barangay is traversed by the national highway, stretching from Km. 125 to Km. 127.9.He described the road as a rough or dirt road.No improvement was ever made on this road whether

during the year when he gave his statement to the NBI (1978) or in previous years. The road remained in bad shape, with numerous potholes which the camineros merely filled up with limestone. (TSN., pp.14-19, June 5, 1986). 3.TIMOTEO ANCAJAS, Barangay Captain of Paypay, Daan Bantayan, Cebu, from 1972 to 1982, testified that his barangay is traversed by the national highway, stretching from Km. 132 to Km. 134 , or a distance of 2 kilometers.He described the portion of the highway as a rough road with potholes.He stated that the only improvement done on this road was the filling up of the potholes with anapog or crushed limestone and this was done only once in 1977.It even took the camineros three months from the time the limestones were delivered to start working on the road. (TSN., pp. 20-26, June 5, 1986). 4. LUCIA PEAFLOR, Barangay Captain of Don Pedro, Bogo, Cebu, from 1966 to 1982, testified that her barangay is traversed by the national highway, stretching from Km. 103 to Km. 105 , up to the boundary of San Remigio, and from the boundary to Daan Bantayan, a distance of more than 3 kilometers.It was only in 1984 or 1985 when this portion of the national highway was asphalted.Prior to that, the road was maintained by filling up the potholes with crushed limestone or anapog.These potholes started to appear between January and June of 1977.However, as alleged by her in her affidavit (Exh. II-1-d), these potholes were filled up only from January to June, 1978. (TSN., pp. 28-46, June 5, 1986). 5.MARCELO CONEJOS, Barangay Captain of Tapilon, Daan Bantayan, from 1972 to 1982, testified that his barangay is traversed by the national highway, stretching from Km. 130 to Km. 134, or a distance of 4 kilometers.In 1977, said portion of the national highway was in bad condition and that nothing was done to improve it until 1982, except for the time when the potholes were filled up with crushed limestones. (TSN., pp. 48-56, June 5, 1986). 6. REMEDIOS FELICANO, Barangay Captain of Looc, San Remigio, Cebu from 1977 to 1982, testified that her barangay is traversed by the national highway, stretching form Km. 109 to Km. 110.She described said portion of the national highway as stoney.The only maintenance work undertaken to improve the road was the filling up of potholes with crushed limestone which camineros gathered from the roadside. (TSN., pp.57-67, June 5, 1986). 7. ALBERTO BRANSUELA, a resident of Barangay San Jose, Catmon, Cebu, from 1974 to 1978, testified that barangay San Jose is traversed by the national highway (Km. 58), covering a distance of kilometer more or less.He stated that while this portion of the national highway was already

asphalted as of 1977, there were potholes which the camineros filled up with anapog taken from the roadside. (TSN., pp. 69-80), June 5, 1986). 8. CARIDAD PUNLA, Acting Barangay Captain of Barangay Corazon, Catmon, Cebu, from 1977 to 1982, testified that the Poblacion of Catmon is traversed by the national highway, stretching from Km. 57 to Km. 58.In 1977, only more than of this portion of the national highway was cemented while the remaining portion was asphalted.While said portion of the national highway already had cracks and potholes as of 1977, the real problem was the uneven elevation of the surface of the shoulder of the road.No general repair was undertaken by the authorities to correct the uneven elevation, except for the work done by the camineros who covered up the potholes. (TSN., pp. 81-89, June 5, 1986). 9.FELIPE MOLIT, Barangay Captain of Bao, Sugud, Cebu, from 1975 to 1982, testified that barangay Bao was traversed by the national highway, stretching from Km. 59 to Km. 60 1/2.He described said portion of the national highway as a gravel road surfaced with anapog.In 1977, the said road already had potholes which maintenance men filled up with anapog beginning in March, 1977.The anapog was hauled in from Km. 64, the usual excavation place of anapog.It took only 3 truckloads of anapog to cover the entire length of the 1 kilometers traversing their barangay. (TSN., pp. 90-99, June 5, 1986). 10. LEONARDO PINOTE, Barangay Captain of Barangay Argawanon, San Remigio, Cebu, from 1972 to 1980, testified that his barangay is traversed by the national highway covering a distance of kilometers more or less.In 1977, this portion of the national highway was a rough road with potholes.In the same year, camineros worked on the road, using wheelbarrows, shovels and rakes, pitching up the potholes with anapog. (TSN., pp. 29-35, June 6, 1986). 11.PEDRO ORSAL, Barangay Captain of Poblacion, San Remigio, Cebu, from January 1972 to 1980, testified that his barangay is traversed by the national highway, from Km. 107 to Km. 110, or a distance of three kilometers more or less.In 1977, the road from Km. 107 to Km. 108 was a gravel road. It was properly maintained by the highways people, and every time potholes appeared on the road, they would be filled-up with anapog.This material was dumped along the road by trucks of the Bureau of Public Highways.On the other hand, the road leading to the heart of the poblacion was asphalted, but with potholes.In 1977, the potholes were filled up by camineros with gravel delivered by dump trucks of the Bureau of Public Highways.It was only in 1978 when the road was re-asphalted and extended from the junction of the poblacion to the adjacent barrio of Looc. x x x (TSN., pp.36-45, June 6, 1986).

The inescapable conclusion from the aforementioned testimonies of the barangay captains and residents of Cebu whose respective barangay are traversed by the national highway is that there were no actual major repair works undertaken on the national highway except the filling of potholes by crushed limestone (anapog). Clearly, there were no deliveries of supplies and materials for asphalting and repair of roads described in the tally sheets and other supporting documents signed by petitioners.

While petitioner Torrevillas presented Vice-Mayor Emigdio Tudlasan of Tabuclan, Cebu, who testified that he saw the asphalting of the Tabuclan Road from kilometers 18 to 19, said testimony is not conclusive on the actual delivery of the supplies indicated in the tally sheets, as Tudlasan was not present at the time of alleged delivery. Moreover, his testimony runs counter to the testimonies of Barangay Captain Remedios Feliciano of Looc, San Remigio, Cebu and Barangay Captain Pedro Orsal of Poblacion, San Remigio, Cebu. Feliciano testified that she was Barangay Captain of Looc, San Remigio, Cebu from 1977 to 1982; that her barangay is traversed by the national highway, stretching from km. 109 to km. 110; and that the only work undertaken to improve the road was the filling up of potholes with crushed limestone which camineros gathered from the roadside. On the other hand, Orsal testified that he was Barangay Captain of Poblacion, San Remigio, Cebu, from January 1972 to 1980; that his barangay is traversed by the national highway, from km. 107 to km. 110; that in 1977, the road from km. 107 to km. 108 was a gravel road maintained by the highways people, and every time potholes appeared on the road, they would be filled-up with anapog, which was dumped along the road by the Bureau of Public Highways; and that it was only in 1978 when the road was re-asphalted and extended from the junction of the poblacion to the adjacent barrio of Looc.

Compared to the testimony of Vice-Mayor Tudlasan, the testimonies of Barangay Captains Feliciano and Orsal are entitled to more weight and credit, and are more credible considering the fact that they are residents of the area where the road supposedly to be repaired is located plus the fact that they saw only limestone, not asphalt, that was used in the repair of the road in 1977. The testimonies of Feliciano and Orsal are further buttressed by the findings and statements of government witnesses, namelyRuth Inting Paredes, Supervising Commission on Audit (COA) Auditor assigned to Region VII; Felicitas Cruz Ona, Supervising COA Auditor assigned to the

main COA office; Federico A. Malvar, Senior National Bureau of Investigation (NBI) Agent of the Anti-Graft Section and member of the COA NBI team assigned to investigate the anomalies; Rogelio C. Mamaril, Supervising NBI Agent of the Anti-Fraud and Action Section; and Delia Comahig Preagido, Accountant III, MPH, Region VIIto the effect that the general vouchers and LAAs that corresponded to the aforementioned tally sheets signed by petitioner Torrevillas were fake or falsified.Undeniably, the government witnesses have no motive to testify falsely against petitioner Torrevillas and, hence, credible. We conclude that there were no actual deliveries of supplies for asphalting of road and repair on kilometers 108 and 109, which were the subjects of Criminal Case Nos. 2855, 2856, 2858, and 2859.

Glaring is the finding of the SB that the Cebu First Highway Engineering District, to which petitioners were assigned, had fake LAAs totaling to PhP 4,924,366.50, while the fake Cash Disbursement Ceilings issued amounted to PhP 6,271,150.The Cebu First Highway Engineering District had also issued checks per unrecorded reports in the total sum of PhP 1,135,176.82.Therefore, the total illegal disbursements in the Cebu First Highway Engineering District alone were a staggering PhP 12,330,693.32 circa 1977.

Of this total, petitioner Fernan, Jr. freely admitted signing tally sheets which pertained to nonexistent deliveries of road construction supplies and materials totaling PhP 146,000, including PhP 27,000 in Criminal Case No. 2914 where petitioner Torrevillas was among the co-accused. These tally sheets were attached as the supporting papers to fake general vouchers which facilitated the release of check payments to suppliers.

These checks were allegedly paid to suppliers Juliana de los Angeles (Criminal Case Nos. 2879, 2880, 2881, 2885, and 2914) and Ismael Sabio, Jr. (Criminal Case No. 2918). chanroblesvirtuallawlibrary

On his part, petitioner Torrevillas voluntarily admitted to signing tally sheets, reports of inspection, requisitions of supplies and equipment, and other pertinent documents totaling an even

greater amount of PhP 337,861.01, including PhP 27,000 in Criminal Case No. 2914 where petitioner Fernan, Jr. was among the co-accused.These documents signed by petitioner Torrevillas were likewise attached as supporting papers to fake general vouchers which facilitated the release of check payments to suppliers.

These checks were allegedly paid to suppliers Rufino V. Nuez (Criminal Case Nos. 2855, 2856, 2858, and 2859), Juliana de los Angeles (Criminal Case Nos. 2909, 2910, and 2914), Ismael Sabio, Jr. (Criminal Case No. 2919), and Manuel Mascardo (Criminal Case No. 2932).chanroblesvirtuallawlibrary These general vouchers and checks could not be traced to genuine LAAs.Ergo, there were no actual deliveries of supplies and materials for the road repair and rehabilitation in Region VII, which were the subjects of the criminal cases where petitioners were charged.

We find no reason to disturb the findings of the court a quo that all the essential elements of the crime of estafa through falsification of public documents were present.There is no question that petitioners, at the time of the commission of the crime, were public officerscivil engineersassigned to the MPH.Their signing of tally sheets and related documents pertaining to the alleged deliveries of supplies for road repair and construction constitutes intervention and/or taking advantage of their official positions, especially considering that they had the duty to inspect the purported deliveries and ascertain the veracity of the documents and the statements contained in them.

The tally sheets bearing their signatures contained false recitals of material facts which the petitioners had the duty to verify and confirm.These tally sheets were attached as supporting documents to fake LAAs and subsequently became the bases for the disbursement of public funds to the damage and prejudice of the government.Indubitably, there exists not even an iota of doubt as to petitioners guilt.

The essential elements of estafa through falsification of public documents are present in the cases against petitioners, as follows:

1. Deceit: Petitioners Fernan, Jr. and Torrevillas made it appear that supplies for road construction and maintenance were delivered by suppliers allegedly in furtherance of alleged lawful projects when in fact said supplies were not delivered and no actual asphalting or repair of road was implemented.In doing so, petitioners:

1.1. Were public officers or employees at the time of the commission of the offenses; 1.2. Took advantage of their official position as highway engineers; and 1.3. Made untruthful statements in several narrations of fact.

2. Damage: The government disbursed PhP 146,000 in the case of Fernan, Jr. and PhP 337,861.01 in the case of Torrevillas, as payments to various suppliers for the delivery of non-existent supplies.

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way of defense, petitioners posit that the tally sheets and other documents could in fact be

traced to genuine LAAs that were in the custody of the NBI.Unfortunately, these genuine LAAs were not introduced in evidence.It is an age-old axiom that s/he who alleges something must prove it. Petitioners assertion that the documents they signed were all genuine and duly covered by genuine LAAs was substantiated only by their own self-serving and uncorroborated testimonies.We hesitate to give much weight and credit to their bare testimonies in the face of clear, convincing, overwhelming, and hard evidence adduced by the State.

If the genuine LAAs were vital to their defense, and they firmly believed that the documents were indeed in the custody of the NBI, then petitioners could have easily procured the compulsory process to compel the production of said documents.However, petitioners miserably failed to avail of subpoena duces tecum which the court a quo could have readily granted.The inability to produce such important and exculpatory pieces of evidence proved disastrous to petitioners cause.Their conviction was indeed supported by proof beyond reasonable doubt which was not overturned by defense evidence. Petitioners acted in conspiracy with one another

Petitioners vigorously claim error on the part of the lower court when it made the finding that they were co-conspirators with the other parties accused despite the dearth of evidence to amply demonstrate complicity.

We are not convinced by petitioners postulation.

Indeed, the burden of proving the allegation of conspiracy falls to the shoulders of the prosecution. Considering, however, the difficulty in establishing the existence of conspiracy, settled jurisprudence finds no need to prove it by direct evidence.In People v. Pagalasan, the Court explicated why direct proof of prior agreement is not necessary:

After all, secrecy and concealment are essential features of a successful conspiracy.Conspiracies are clandestine in nature.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 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.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.

In Estrada v. Sandiganbayan, we categorized two (2) structures of multiple conspiracies, namely: (1) the so-called wheel or circle conspiracy, in which there is a single person or group (the hub) dealing individually with two or more other persons or groups (the spokes); and (2) the chain conspiracy, usually involving the distribution of narcotics or other contraband, in which there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer.chanroblesvirtuallawlibrary

We find that the conspiracy in the instant cases resembles the wheel conspiracy. The 36 disparate persons who constituted the massive conspiracy to defraud the government were controlled by a single hub, namely: Rolando Mangubat (Chief Accountant), Delia Preagido (Accountant III), Jose Sayson (Budget Examiner), and Edgardo Cruz (Clerk II), who controlled the separate spokes of the conspiracy.Petitioners were among the many spokes of the wheel. We recall the painstaking efforts of the SB through Associate Justice Cipriano A. Del Rosario, Chairperson of the Third Division, in elaborating the intricate web of conspiracy among the accused, thus:

Mangubat enticed Preagido, Cruz and Sayson to join him.All three agreed to help him carry out his plan.They typed fake LAAs during Saturdays.Cruz and Sayson also took charge of negotiating or selling fake LAAs to contractors at 26% of the gross amount.Preagido manipulated the general ledger, journal vouchers and general journal through negative entries to conceal the illegal disbursements.In the initial report of COA auditors Victoria C. Quejada and Ruth I. Paredes it was discovered that the doubtful allotments and other anomalies escaped notice due to the following manipulations: The letter-advices covering such allotments (LAA) were not signed by the Finance Officer nor (sic) recorded in the books of

accounts.Disbursements made on the basis of these fake LAAs were charged to the unliquidated obligations (Account 8-81-400), although the obligations being paid were not among those certified to the unliquidated obligations (Account 8-81-400) at the end of the preceding year.To conceal the overcharges to authorized allotments, account 8-81-400 (sic) and the excess of checks issued over authorized cash disbursements ceiling, adjustments were prepared monthly through journal vouchers to take up the negative debit to Account 8-81-400 and a negative credit to the Treasury Checking Account for Agencies Account 8-70-790.These journal vouchers in effect cancelled the previous entry to record the disbursements made on the basis of fake LAAs. Thus the affected accounts (Accounts 8-81-400 and 8-70-790), as appearing in the trial balance, would not show the irregularity.The checks, however, were actually issued.

The four formed the nucleus of the nefarious conspiracy.Other government employees, tempted by the prospect of earning big money, allowed their names to be used and signed spurious documents.
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xxxx 3.cralawCebu First Highway Engineering District Anomalies Focusing our attention now on the anomalies committed in the Cebu First District Engineering District, hereinafter referred to as the Cebu First HED for brevity, the Court finds that the same pattern of fraud employed in the other highway engineering districts in MPH Region VII was followed.The Cebu First HED received from Region VII thirty-four Letters of Advice of Allotment (LAAs) in the total sum of P4,734,336.50 and twenty-nine (29) corresponding Sub-Advices of Cash Disbursement Ceiling (SACDCs), amounting to P5,160,677.04 for the period January 1, 1977 to December 31, 1977.But apart from this, the Cebu First HED appears to have also received for the same period another set of eighty-four (84) LAAs amounting to P4,680,694.76 which however, could not be traced to any Sub-Advice of Allotment (SAA) OR MATCHED TO THE Advices of Cash Disbursement Ceiling (ACDCs) received from the MPH and Regional Office.This is highly irregular and not in consonance with accounting procedures. It was also made to appear that the payments were made for alleged prior years obligations and chargeable to Account 81-400, obviously because, they were not properly funded.Furthermore, the list of projects in Region

VII for 1977 showed that Cebu first HED completed rehabilitation and/or improvement of roads and bridges in its districts from February to May, 1977, with expenditures amounting to P613,812.00.On the other hand, the expenditures for barangay roads in the same district in 1977 amounted to P140,692.00, and these were all completed within the period from November to December, 1977.These completed projects were properly funded by legitimate LAAs and CDCs in the total amount of only P754,504.00.However, an additional amount of P3,839,810.74, was spent by the Cebu First HED for maintenance of roads and bridges for the same year (1977) but the same could not be traced to any authoritative document coming from the MPH. The following payments for materials purchased for the year 1977 were made to appear as payment for prior years obligation and were paid out of fake LAAs:
Supplier Rufino Nuez J. delos Angeles Iluminada Vega Florencio Gacayan Ismael Sabio, Jr. FBS Marketing Cebu Hollow Blocks Bienvenido Presillas T.R. Eustaquio Ent. Santrade Mktg. Pelagia Gomez M & M Ent. Freent Ind. No. of Vouchers 29 21 11 10 6 3 2 4 1 1 1 1 1 Kind of Materials Item 310 Item 108 Item 108 Item 108 Item 108 Lumber Hollow Blocks Equip. Rental Office Supplies Johnson Products Item 108 Paints Office Supplies Measurement 4,640,275 mt 22,290 cu.m. 8,325 cu.m. 7,800 cu.m. 6,198 cu.m. Amount P1,374,135.00 433,300.00 191,500.00 156,000.00 123,960.00 70,610.00 19,880.00 29,580.00 7,461.90 8,392.90 40,000.00 49,736.20 590.20 P2,505,147.00

2,000 cu.m.

Total

The NBI also discovered that there were purchases of materials in 1977 that were charged to current obligations but paid out of spurious LAAs, to wit:
Supplier Rufino Nuez Juliana delos Angeles No. of Kind of Vouchers Materials 11 Item 310 Item 108 16 Item 108 Item 111 Item 200 Item 108 Item 108 Measurement 162,549 m.t. 5,000 cu.m. 13,280 cu.m. 1,00 cu.m. 307 cu.m. 3,600 cu.m. 2,400.00 cu.m. Amount P529,475.00 P276,400.00 24,000.00 7,982.00 72,090.00 48,000.00

Iluminada Vega Florencio Gacayan

3 2

Vicon Ent. Ismael Sabio, Jr. Jabcyl Mktg.

1 5 3

Steel Frame Item 108 6,950 cu.m. Bridge Materials Total

19,042.74 139,000.00 128,764.80 P1,339,663.74

Grand Total .P3,839,810.74 A total of 132 General Vouchers, emanating from fake LAAs and ACDCs, were traced back to Rolando Mangubat, Regional Accountant of Region VII and Adventor Fernandez, Regional Highway Engineer, also of Region VII. Those LAAs and ACDCs became the vehicles in the disbursement of funds amounting to P3,839,810.74, through the vouchers purportedly issued for the purchase and delivery of the aforementioned materials allegedly used for the maintenance and repair of the national highways within the Cebu First HED.Despite the enormous additional expenditure of P3,839,810.74, the roads and bridges in the district, as found out by the NBI, did not show any improvement (Exhibit II).As testified to by several barangay captains, the road maintenance consisted merely of spreading anapog or limestone on potholes of the national Highway. Obviously, the vouchers for payments of alleged maintenance of roads and bridges in the additional amount of P3,839,810.74 were prepared for no other purpose than to siphon off the said amount from the government coffer into the pockets of some officials and employees of Region VII and the Cebu First HED, as well as the suppliers and contractors who conspired and confederated with them.

After a close re-examination of the records, the Court finds no reason to disturb the finding of the anti-graft court that petitioners are co-conspirators of the other accused, headed by Chief Accountant Rolando Mangubat, who were similarly convicted in practically all the 119 counts of estafa.Undisturbed is the rule that this Court is not a trier of facts and in the absence of strong and compelling reasons or justifications, it will accord finality to the findings of facts of the SB.The feeble defense of petitioners that they were not aware of the ingenuous plan of the group of accused Mangubat and the indispensable acts to defraud the government does not merit any consideration.The State is not tasked to adduce direct proof of the agreement by petitioners with the other accused, for such requirement, in many cases, would border on near impossibility.The State needs to adduce proof only when the accused committed acts that constitute a vital connection to the chain of conspiracy or in furtherance of the objective of the conspiracy.In the case at bench, the signing of the fake tally sheets and/or delivery receipts, reports of inspection, and requests for supplies and materials by petitioners on separate occasions is vital to the success

of the Mangubat Group in siphoning off government funds.Without such fabricated documents, the general vouchers covering the supply of materials cannot be properly accomplished and submitted to the disbursing officer for the preparation of checks.

State witness Ruth Paredes, Supervising COA Auditor, elaborated on the procedure regarding the award of the contract more specifically to the payment of the contractor or supplier.Once the Request for Supplies and Equipment is approved by the Regional Office, the Request for Obligation of Allotment (ROA) or the request for funds is signed by the District Engineer pursuant to the approved plans and budget and signed by the district accountant as to availability of funds.

The district office will advertise the invitation to bid and award the contract to the lowest bidder.The Purchase Order (PO) is prepared and addressed to the winning bidder.Upon delivery of the supplies and materials, the supplier bills the district office for payment.Consequently, the requisitioning officer will prepare the general voucher which must be accompanied by the following documents:

a. b. c. d. e.

The ROA; The PO; The abstract of Bid together with the Bid quotations; The delivery receipts together with the tally sheets; and The tax clearance and tax certificate of the supplier.

After the preparation and submission of the general voucher and the supporting documents, the disbursing officer shall prepare and draw a check based on said voucher.The check is

countersigned by an officer of the district office and/or the COA Regional Director based on the amount of the check.

Thus, it is clear that without the tally sheets and delivery receipts, the general voucher cannot be prepared and completed.Without the general voucher, the check for the payment of the supply cannot be made and issued to the supplier.Without the check payment, the defraudation cannot be committed and successfully consummated.Thus, petitioners acts in signing the false tally sheets and/or delivery receipts are indispensable to the consummation of the crime of estafa thru falsification of public documents. Surely, there were ghost or false deliveries of supplies and materials as convincingly shown by the testimonies of the barangay captains, officials, and residents of the areas where the materials were allegedly used.More importantly, if there were actual deliveries of materials made, then there would be no need to fake the LAAs because the suppliers will have to be paid the cost of said materials plus a reasonable profit.As a result, there is nothing or not much to share with the more than 30 or so co-conspirators, for the suppliers would not be too dim-witted to part with even their cost in buying the materials they allegedly supplied.Moreover, the fake delivery receipts and tally sheets signed by petitioners were linked to the general vouchers upon which check payments were made to the suppliers who were found guilty of participating in the fraud.With respect to petitioner Fernan, Jr., he signed tally sheets on the ghost deliveries of Juliana de los Angeles and Ismael Sabio, Jr. On the part of petitioner Torrevillas, he signed false tally sheets and delivery receipts on supplies allegedly delivered by Rufino V. Nuez, Juliana de los Angeles, Ismael Sabio, Jr., and Manuel Mascardo.Lastly, the checks issued to these suppliers based on general vouchers supported by the false tally sheets and general vouchers signed by petitioners cannot be traced to any genuine LAAs, resulting in the inescapable conclusion that these LAAs were unauthorized; hence, fake or fabricated.These are undisputed tell-tale signs of the complicity by petitioners with the Mangubat syndicate.

In People v. Mangubat, the court a quo elucidated the conspiracy in the Cebu highway scam in a trenchant manner:

Where the acts of each of the accused constitute an essential link in a chain and the desistance of even one of them would prevent the chain from being completed, then no conspiracy could result as its consummation would then be impossible or aborted.But when each and everyone of the accused in the instant cases performed their assigned tasks and roles with martinet-like precision and accuracy, by individually performing essential overt acts, so much so that the common objective is attained, which is to secure the illegal release of public funds under the guise of fake or simulated public documents, then each and everyone of said accused are equally liable as co-principals under the well-established and universally-accepted principle that, once a conspiracy is directly or impliedly proven, the act of one is the act of all and such liability exists notwithstanding no-participation in every detail in the execution of the offense.

In sum, the required quantum of proof has been adduced by the State on the conspiracy among the accused including petitioners. The conviction of petitioners must perforce be sustained.

WHEREFORE, we DENY the petition and AFFIRM the December 4, 1997 Decision of the SB in the consolidated criminal cases subject of this petition.

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costs.

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ORDERED.

PRESBITERO J. VELASCO, JR. Associate Justice

WE CONCUR: LEONARDO A. QUISUMBING Associate Justice Chairperson

ANTONIO T. CARPIOCONCHITA CARPIO MORALES Associate Justice Associate Justice DANTE O. TINGA Associate Justice

ATTESTATION
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attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. LEONARDO A. QUISUMBING Associate Justice Chairperson

CERTIFICATION

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to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.
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S. PUNO

Chief Justice

EN BANC [G.R. No. 148560. November 19, 2001] JOSEPH EJERCITO ESTRADA, Petitioner, vs. SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, Respondents. DECISION BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of the individual from the vast powers of the State and the inroads of societal pressure. But even as he draws a sacrosanct line demarcating the limits on individuality beyond which the State cannot tread - asserting that "individual spontaneity" must be allowed to flourish with very little regard to social interference - he veritably acknowledges that the exercise of rights and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost, against those who would endeavor to withhold fulfillment. Thus he says The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. Parallel to individual liberty is the natural and illimitable right of the State to selfpreservation. With the end of maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of laws that would compel obeisance to its collective wisdom and inflict punishment for non-observance. The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order, carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of contemporary socio-political ideologies. In the process, the web of rights and State impositions became tangled and obscured, enmeshed in threads of multiple shades and colors, the skein irregular and broken. Antagonism, often outright collision, between the law as the expression of the will of the State, and the zealous attempts by its members to preserve their individuality and dignity, inevitably followed. It is when individual rights are pitted against State authority that judicial conscience is put to its severest test. Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act Defining and Penalizing the Crime of Plunder), [1 as amended by RA 7659, [2 wishes to impress upon us that the assailed law is so defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally infirm. He therefore makes a stringent call for this Court to subject the Plunder Law to the crucible of constitutionality mainly because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes already punishable under The Revised Penal Code, all of which are purportedly clear violations of the fundamental rights of the accused to due process and to be informed of the nature and cause of the accusation against him. Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder: Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of any person within the purview of Section Two (2) hereof,

acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: (1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public office concerned; (3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and their subsidiaries; (4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State (underscoring supplied). Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten

wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring supplied). On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085). On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for preliminary investigation with respect to specification "d" of the charges in the Information in Crim. Case No. 26558; and, for reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give the accused an opportunity to file counter-affidavits and other documents necessary to prove lack of probable cause. Noticeably, the grounds raised were only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and opportunity to prove lack of probable cause. The purported ambiguity of the charges and the vagueness of the law under which they are charged were never raised in that Omnibus Motion thus indicating the explicitness and comprehensibility of the Plunder Law. On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused." On 25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan. On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the facts alleged therein did not constitute an indictable offense since the law on which it was based was unconstitutional for vagueness, and that the Amended Information for Plunder charged more than one (1) offense. On 21 June 2001 the Government filed its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash. As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within the power of Congress to so classify it.

Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic principle that a legislative measure is presumed to be in harmony with the Constitution. [3 Courts invariably train their sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch - the legislature. If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority. Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts should proceed with judicial restraint and act with caution and forbearance. Every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality. In La Union Credit Cooperative, Inc. v. Yaranon [4 we held that as long as there is some basis for the decision of the court, the constitutionality of the challenged law will not be touched and the case will be decided on other available grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law into the safe environs of constitutionality. Of course, where the law clearly and palpably transgresses the hallowed domain of the organic law, it must be struck down on sight lest the positive commands of the fundamental law be unduly eroded. Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to sustain." [5 And petitioner has miserably failed in the instant case to discharge his burden and overcome the presumption of constitutionality of the Plunder Law. As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts, conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. Thus 1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons;

2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and, 3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00. As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law. In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the various elements of the offense which petitioner is alleged to have committed: "The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows: That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in

CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with coaccused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied). (c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS (P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY

CENTAVOS (P1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;' (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK." We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of the crime are easily understood and provide adequate contrast between the innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the accusations against him as to enable him to prepare for an intelligent defense. Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms "combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the nature and cause of the accusation against him, hence, violative of his fundamental right to due process. The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them; [6 much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law. Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification, [7 unless it is evident that the legislature intended a technical or special legal meaning to those

words. [8 The intention of the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is always presumed. Thus, Webster's New Collegiate Dictionary contains the following commonly accepted definition of the words "combination" and "series:" Combination - the result or product of combining; the act or process of combining. To combine is to bring into such close relationship as to obscure individual characters. Series - a number of things or events of the same class coming one after another in spatial and temporal succession. That Congress intended the words "combination" and "series" to be understood in their popular meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law: DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991 REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we actually mean to say, if there are two or more means, we mean to say that number one and two or number one and something else are included, how about a series of the same act? For example, through misappropriation, conversion, misuse, will these be included also? REP. GARCIA: Yeah, because we say a series. REP. ISIDRO: Series. REP. GARCIA: Yeah, we include series. REP. ISIDRO: But we say we begin with a combination. REP. GARCIA: Yes. REP. ISIDRO: When we say combination, it seems that REP. GARCIA: Two. REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration. REP. GARCIA: No, no, not twice. REP. ISIDRO: Not twice? REP. GARCIA: Yes. Combination is not twice - but combination, two acts.

REP. ISIDRO: So in other words, thats it. When we say combination, we mean, two different acts. It cannot be a repetition of the same act. REP. GARCIA: That be referred to series, yeah. REP. ISIDRO: No, no. Supposing one act is repeated, so there are two. REP. GARCIA: A series. REP. ISIDRO: Thats not series. Its a combination. Because when we say combination or series, we seem to say that two or more, di ba? REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or series of overt or criminal acts. So x x x x REP. GARCIA: Series. One after the other eh di.... SEN. TANADA: So that would fall under the term series? REP. GARCIA: Series, oo. REP. ISIDRO: Now, if it is a combination, ano, two misappropriations.... REP. GARCIA: Its not... Two misappropriations will not be combination. Series. REP. ISIDRO: So, it is not a combination? REP. GARCIA: Yes. REP. ISIDRO: When you say combination, two different? REP. GARCIA: Yes. SEN. TANADA: Two different. REP. ISIDRO: Two different acts. REP. GARCIA: For example, ha... REP. ISIDRO: Now a series, meaning, repetition... DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989 SENATOR MACEDA: In line with our interpellations that sometimes one or maybe even two acts may already result in such a big amount, on line 25, would the Sponsor consider

deleting the words a series of overt or, to read, therefore: or conspiracy COMMITTED by criminal acts such as. Remove the idea of necessitating a series. Anyway, the criminal acts are in the plural. SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this. THE PRESIDENT: Probably two or more would be.... SENATOR MACEDA: Yes, because a series implies several or many; two or more. SENATOR TANADA: Accepted, Mr. President x x x x THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say acts of plunder there should be, at least, two or more. SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President. Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3). On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it in the law. As for "pattern," we agree with the observations of the Sandiganbayan [9 that this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of action or method' which the principal accused and public officer and others conniving with him follow to achieve the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal.

Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. [10 But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever directed against such activities. [11 With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. [12 It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes. Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial review of its validity The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."[13 The overbreadth doctrine, on the other hand, decrees that "a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." [14

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity."[15 The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."[16 In Broadrick v. Oklahoma, [17 the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." [18 As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." [19 In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional."[20 As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant." [21 Consequently, there is no basis for petitioner's claim that this Court review the AntiPlunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected.[22 It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. [23 But, as the U.S. Supreme Court pointed out in Younger v. Harris [24 [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort,"[25 and is generally disfavored. [26 In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged. [27 In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific precision in the law. Every provision of the law should be construed in relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn the wellentrenched presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated upon by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with full knowledge of its legal implications and sound constitutional anchorage. The parallel case of Gallego v. Sandiganbayan [28 must be mentioned if only to illustrate and emphasize the point that courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and deficient in its details, and is susceptible of no reasonable construction that will support and give it effect. In that case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The AntiGraft and Corrupt Practices Act for being vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise and elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize. Petitioners further argued that the Information charged them with three (3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits through evident bad faith; and,

(c) giving of "unwarranted" benefits through gross inexcusable negligence while in the discharge of their official function and that their right to be informed of the nature and cause of the accusation against them was violated because they were left to guess which of the three (3) offenses, if not all, they were being charged and prosecuted. In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does not suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and "gross and inexcusable negligence" merely describe the different modes by which the offense penalized in Sec. 3, par. (e), of the statute may be committed, and the use of all these phrases in the same Information does not mean that the indictment charges three (3) distinct offenses. The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized (Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19). The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful the act of the public officer in: x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as amended). It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits, advantage or preference which is unjustified, unauthorized or without justification or adequate reason, through manifest partiality, evident bad faith or gross inexcusable negligence. In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its primary and general acceptation. Consequently, in that case, petitioners' objection thereto was held inadequate to declare the section unconstitutional. On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime of plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being

sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as in all other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the accused is entitled to an acquittal. [29 The use of the "reasonable doubt" standard is indispensable to command the respect and confidence of the community in the application of criminal law. It is critical that the moral force of criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in the realm of constitutional law as it gives life to the Due Process Clause which protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged. [30 The following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the deliberations in the floor of the House of Representatives are elucidating DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990 MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts enumerated in the information, does that not work against the right of the accused especially so if the amount committed, say, by falsification is less than P100 million, but the totality of the crime committed is P100 million since there is malversation, bribery, falsification of public document, coercion, theft? MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr. Speaker, there is an enumeration of the things taken by the robber in the information three pairs of pants, pieces of jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime for which he was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two. Now, what is required to be proved beyond reasonable doubt is the element of the offense. MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the amount is very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the act of bribery, he was able to accumulate only P50,000 and in the crime of extortion, he was only able to accumulate P1 million. Now, when we add the totality of the other acts as required under this bill

through the interpretation on the rule of evidence, it is just one single act, so how can we now convict him? MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a need to prove that element beyond reasonable doubt. For example, one essential element of the crime is that the amount involved is P100 million. Now, in a series of defalcations and other acts of corruption in the enumeration the total amount would be P110 or P120 million, but there are certain acts that could not be proved, so, we will sum up the amounts involved in those transactions which were proved. Now, if the amount involved in these transactions, proved beyond reasonable doubt, is P100 million, then there is a crime of plunder (underscoring supplied). It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or element necessary to constitute the crime. The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount of at least P50,000,000.00. There is no need to prove each and every other act alleged in the Information to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder with having committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to at least P50,000,000.00. [31 A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. This conclusion is consistent with reason and common sense. There would be no other explanation for a combination or series of overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts. Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very important element of the crime of plunder;" and that Sec. 4 is

"two pronged, (as) it contains a rule of evidence and a substantive element of the crime," such that without it the accused cannot be convicted of plunder JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts complained of? ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but not plunder. JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without applying Section 4, can you not have a conviction under the Plunder Law? ATTY. AGABIN: Not a conviction for plunder, your Honor. JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for violation of the Plunder Law? ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable doubt on the acts charged constituting plunder? ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4. JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are concerned that you do not have to go that far by applying Section 4? ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder and that cannot be avoided by the prosecution.[32 We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal: SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x xxx It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being a purely procedural measure, Sec. 4 does not define or

establish any substantive right in favor of the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons advanced by petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to other persons or circumstances shall not be affected thereby. Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity of some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best be achieved. As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof of criminal intent. Thus, he says, in his Concurring Opinion x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner. In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims the statute is void, petitioner cites the following remarks of Senator Taada made during the deliberation on S.B. No. 733: SENATOR TAADA . . . And the evidence that will be required to convict him would not be evidence for each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime of plunder.[33 However, Senator Taada was discussing 4 as shown by the succeeding portion of the transcript quoted by petitioner: SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence, which, in the Gentleman's view, would provide for a speedier and faster process of attending to this kind of cases? SENATOR TAADA: Yes, Mr. President . . .[34

Senator Taada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea must be shown. Indeed, 2 provides that Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. It is true that 2 refers to "any person who participates with the said public officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean."[35 Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v. Echegaray:[36 The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the victim is detained for more than three days or serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal acts in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the government and impoverished the population, the Philippine Government must muster the political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society and the psyche of the populace. [With the government] terribly lacking the money to provide even the most basic services to its people, any form of misappropriation or misapplication of government funds translates to an actual threat to the very existence of government, and in turn, the very survival of the people it governs over. Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug offenses involving government officials, employees or officers, that their perpetrators must not be allowed to cause further destruction and damage to society. The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se[37 and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts. To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the same having been eternally consigned by People v. Echegaray [38 to the archives of jurisprudential history. The declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary effect, assimilated in the Constitution now as an integral part of it. Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office. These are times that try men's souls. In the checkered history of this nation, few issues of national importance can equal the amount of interest and passion generated by petitioner's

ignominious fall from the highest office, and his eventual prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension among our people that may linger for a long time. Only by responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the midst of ferment. PREMISES CONSIDERED , this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of merit. SO ORDERED. Buena, and De Leon, Jr., JJ., concur. Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza. Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion. Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion. Mendoza , J., please see concurring opinion. Panganiban J., please see separate concurring opinion. Carpio, J., no part. Was one of the complainants before Ombudsman.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. L-33535 January 17, 1975 SERGIO M. ISADA, in his capacity as Acting General Manager of the National Waterworks & Sewerage Authority (NWSA) and in his personal capacity, Petitioner, vs. JUDGE JUAN L. BOCAR as Judge, Court of First Instance of Manila, Branch XVI; ANGELINO S. PASCUAL, FRANCISCO R. UNTALAN, ALEJANDRO S. REYES, ROLANDO M. MAZO, ICASIANO M. SANTOS, SEVERINO MATEO, BENJAMIN M. TULALI, TEODORO M. SALINAS, and more than 700 others in a class suit; GENARO C. BAUTISTA, in his capacity as attorney-in-fact of NWSA Employees Housing Project; and RELITO M. PUMARADA, in his capacity as Chairman of the Housing Project Implementation Committee created by employees-awardees for the implementation of the NWSA Employees Housing Project, Respondents. BARREDO, J.: Petition for certiorari and prohibition praying that the orders of respondent court of March 5, 1971 and May 11, 1971, granting the mandatory preliminary injunction applied for by private respondents, which commands petitioner to execute certain deeds of sale of lots of the NWSA or the National Waterworks & Sewerage Authority (now the Metropolitan Waterworks & Sewerage System), be set aside, with prayer for preliminary injunction. Acting on the petition, on May 26, 1971, the Court issued the preliminary injunction prayed for. Respondents filed their answer in due time, after which the parties filed their respective memoranda in lieu of oral argument and the case was submitted for decision.
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On June 18, 1968, pursuant to its collective bargaining agreement with two unions of its employees and workers, the KKMK-NWSA (Kaisahan at Kapatiran ng Mga Manggagawa sa NWSA) and BELA (Balara Employees and Laborers Association), and "in line with the Housing Program of the Administration", NWSA, through its board of directors, segregated and set aside a portion of its land below the La Mesa Dam in Quezon City, consisting of 58 hectares, as the initial site of the proposed NWSA Housing Project for said workers and employees. (Resolution 415-'68, Annex A of the petition, p. 43, Record.) On December 23, 1968, a raffle was held to determine who among its employees and workers would be allowed to purchase housing units, considering that the estimated number of said units would not be enough for all the members of the two unions. Only 1,411 awardees were selected.
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With the prospective awardees thus known, the NWSA Board approved Resolution No. 113-'69, on March 11, 1969 worded as follows: RESOLVED, That in pursuance to Resolution No. 415, series 1968, and as a gesture of harmonious Labor-Management relationships in the NWSA, the sale to the NWSA Labor Unions (KKMK & BELA) of raw land with a total area of 479,433 square meters consisting of:

Area for proposed main and side streets 130,735 sq. m. Saleable Area 348,698 sq. m. within the portion of the NWSA property below the La Mesa Dam, Quezon City, as reserved and allotted for the NWSA Housing Project under said Res. No. 415, s. 1968, at the minimal price of P4.00 per square meter or at a total value of P1,917,732.00, be and is hereby approved, Provided That, in the repayment of the land by the Unions, a housing lot in the said housing project, shall be priced at P5.50 per square meter in order to absorb the cost of the land to be converted into streets.
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xxx xxx xxx (Annex B P. 45, Record.) Shortly thereafter, upon request of the unions made on March 24 and 26, 1969, the Board approved Resolution No. 154-'69 on April 1, 1969 reading thus: RESOLVED, That in order to facilitate the financing of the housing project for the NWSA rank and file as contemplated under Resolution No. 415 series 1968 and Resolution No. 113, series 1969, the request of the Unions (KKMK-BELA) for the mass preparation of lot titles and the transfer of the same to the individual employee-awardees so that such titles can be deposited under the care and custody of the GSIS to serve as collaterals of individual real estate loan applications, be and is hereby approved, provided that the individual employee-awardees shall make a down payment in the amount of P100.00 for the awarded lot, deductible from the payrolls, or payable in cash.
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RESOLVED FURTHER, That in the preparation of the aforesaid Transfer Certificate of Titles (TCT) to the individual employee-awardees, a notation of conviction of final transfer should be entered at the back thereof under the column "Memorandum of Encumbrance," to the effect that absolute ownership of the lot will only be obtained upon full payment of the individual loan applications to the GSIS, a provision shall be inserted therein whereby the cost of the lot or the unpaid balance of the cost of the same, shall be deducted from the proceeds of the loan in favor of the NWSA.
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xxx xxx xxx (Annex C p. 47, Record.)

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This resolution was subsequently amended on June 17, 1969 to read as follows: RESOLVED, That the second paragraph of Resolution No. 154, series 1969, which approved the request of the Union (KKMK-BELA) for the mass preparation of Transfer Certificate of Titles to individual employee-awardees in the NWSA Housing Project, be and is hereby amended to read as follows:
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"Resolved Further, That in the preparation of the aforesaid Transfer Certificate of Title to individual employee-awardees, a notation should be entered at the back of said titles

under the column "Memorandum of Encumbrances" that the said lot is mortgaged to the NWSA for the balance of the purchase price, and that in the preparation of the individual loan applications to the GSIS, a provision shall be inserted, therein whereby the cost of the lot or the unpaid balance of the cost of the same, shall be deducted from the proceeds of the GSIS loan and paid to the NWSA, after which the NWSA shall execute the corresponding Deed of Release and Cancellation of Mortgage."
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RESOLVED FURTHER, That the Acting General Manager, NWSA, be and is hereby authorized to sign for and in behalf of the Authority the individual deed of sale to employee-awardees.
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xxx xxx xxx (Resolution No. 283-'69, Annex D, p. 49, Record.) In other words, by way of implementing the sale of the homesite to the unions for the benefit of its individual members who had won in the raffle, it was necessary to execute deeds of sale in favor respectively of each awardee. Accordingly, a subdivision plan was prepared, on the basis of which each awardee was to be allotted his respective lot. 1This lot, to be identified by block number and lot number, would be the basis of the deeds. Obviously, no titles could be immediately issued because payment to the NWSA would have to come from the GSIS, and the GSIS is agreeable to this arrangement, so much so that, as will be stated more in detail later, it has gone to the extent of already granting the KKK-NWSA, one of the unions, an interim loan of P1.5 M. to pay the contractor who had already started the work.
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Indeed, in the meanwhile, the awardees, through an attorney-in-fact, the respondent Genero C. Bautista, who acted with the assistance of a Housing Project Implementation Committee, appointed and created, respectively, by them, called for bids in the newspapers, through paid advertisements, among contractors, and on April 24, 1969, the job was awarded to Builders Heavy Equipment and Service Corporation or BHESCO. And in order not to lose time, the KKK-NWSA requested the Board to allow it to obtain an interim loan with the GSIS, on the security of the lots sold by NWSA to its members, so BHESCO could immediately start working on the project. Acting on this request, on August 29, 1969, the Board approved the following resolution: RESOLVED, That in line with the recommendation of Management, the request of the KKMK-NWSA for authority to mortgage with the Government Service Insurance System the mother title of the land allotted as housing project of the KKMK-NWSA, identified as TCT No. 141924 of the Registry of Deeds of Quezon City, for an interim loan pending completion of the individual lot titles of the NWSA employee-awardees who are qualified to borrow real estate loans with the GSIS, be and is hereby granted and approved subject to the following conditions:
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1. That the GSIS shall make a written commitment to the NWSA that it will deduct from the loan of every individual awardee, the amount corresponding to the balance of the

purchase price of the lot sold to the individual NWSA employee-awardee, and shall remit the same to the NWSA. .
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2. That at the back of the aforesaid TCT No. 141924, under the column "Memorandum of Encumbrance", shall be entered a notation to the effect that the total area of 130,735 square meters earmarked for the proposed main and side streets valued at P522,940.00 is not included as being mortgaged.
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xxx xxx xxx (Resolution No. 410-'69, Annex B, p. 353, Record.) Accordingly, BHESCO proceeded to develop the site. Incidentally, it may be mentioned at this point that the P1.5 M. interim loan given by the GSIS to the KKK-NWSA by virtue of the above resolution has to be assumed pro-rata by the individual awardees, and as it is drawing interest in the meanwhile, the awardees will have to carry the burden of said interests until the work on the project is resumed. Please note that the award to BHESCO took place, presumably with the knowledge of NWSA before the resolution of June 17, 1969 was approved.
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During the month of January, 1970, petitioner, as manager of NWSA and pursuant to the terms of above-quoted resolution No. 283-'69, began executing deeds of sale with mortgage in favor of individual awardees. He has signed already 29 of them. 2On February 24, 1970, due to intra-union disputes, the President ordered the suspension of the Housing Project but later, on May 22, 1970, upon the joint request of the two unions, the suspension was lifted. After this lifting, the NWSA approved the following resolution (No. 150-'70) on August 18, 1970: RESOLVED, That Condition No. 1 of Resolution No. 410-'69, be and is hereby amended to read as follows:
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"1. That the GSIS shall make a written commitment to the NWSA that it will deduct from the loan of every individual awardee, the amount corresponding to the balance of the purchase price of the lot sold to the individual NWSA employee-awardee, and that such amount to be deducted in favor of NWSA shall be set off against the outstanding accounts of the NWSA with the GSIS, like the unremitted insurance and retirement premiums as well as salary loan deductions, instead of remitting the same directly to the NWSA."
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xxx xxx xxx (Annex C, p. 354, Record.) GSIS agreed to these conditions and forthwith granted the interim loan of P1.5 M. abovereferred to.
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All these notwithstanding, Isada has refused and continues to refuse to sign the rest of the deeds corresponding to the remaining awardees. Hence, the petition for mandamus in the lower court. And in connection with said petition, private respondents asked for a writ of

preliminary mandatory injunction, which, after a hearing wherein practically all the issues on the merits of the mandamus were threshed out and made the subject of the presentation of evidence by both parties, respondent court granted. It is against this provisional remedy that the instant petition before Us was filed.
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At first blush it would seem to appear that the remedy sought by respondents in their special civil action of mandamus is specific performance of their contract with NWSA embodied in the resolutions aforequoted. A closer scrutiny of the circumstances related to such contract readily shows, however, that NWSA is not reneging nor does it refuse to comply with its obligations. There can be no question that as between NWSA and the 1,411 awardees selected by raffle on December 23, 1968 and listed in Annex G of the answer herein of respondents, there is already not only a perfected but a partially consummated contract of sale, considering that it is not denied that the awardees listed in said Annex G have already paid the NWSA the corresponding down payment required by Resolution l54-'69. And since it is not pretended that NWSA is backing out of said contract, there is no need to compel it to comply. It is only petitioner, Manager Isada who is adamantly and arbitrarily failing to comply with his clear official duty in the premises, thereby obstructing and impeding the implementation of a contract, the legality of which is not in issue. We reiterate that there can be no dispute that as between respondent employees and their unions, on the one hand, and NWSA, on the other, there is already a partially consummated sale by the latter to the former of 479,433 square meters of raw land, the technical description of which is known and definite, for a price fixed in the resolution aforequoted of March 11, 1969. The method of financing this purchase by respondents was duly approved by NWSA in its above resolutions of April 1, 1969 and June 17, 1969. In plain terms, the arrangement is as follows:
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Respondent employees would secure individual loans from the GSIS. Accordingly, NWSA would have to execute the corresponding deeds in favor of the individual employees who won in the raffle to enable them to mortgage their respective lots to the GSIS. While, as a matter of procedure, the said deeds would provide for a mortgage in favor of NWSA to secure the payment to it of the lots, under the arrangement, upon approval of the individual loans, GSIS would credit to NWSA's account therewith the amount corresponding to the purchase price thereof, and the mortgage will forthwith be transferred from NWSA to the GSIS as mortgagee. Under this procedure, upon being duly credited for the value of the lots, NWSA would have nothing to do anymore with the project, as the completion thereof would already be a matter exclusively between the GSIS, on the one hand, and the awardees and the contractor, on the other.
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It is not pretended that there is any legal obstacle or any other factor impeding the consummation of the sale contract between the NWSA and the awardees. It is true that for a time, the President ordered the suspension of the project in question, but this injunction was subsequently lifted. The inter-union trouble which caused said suspension has already been finally settled. The civil action filed by officers of PAFLU questioning the powers of respondents to enter into the agreements with NWSA and GSIS has been dismissed by the Court of First Instance of Manila, and said decision is now final. Indeed, even the excuse which petitioner attempted to give to the effect that he had to stop

signing the deeds in question because of said union trouble has, therefore, become definitely untenable.
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Proof of the fact that the GSIS has agreed and is irrevocably committed to finance the project in dispute in the manner aforestated is that, actually, with the approval of the NWSA Board, upon recommendation of no less than petitioner himself, the GSIS has already granted an interim loan of P1.5 million to the respondents to pay the developer who had already started the work. Indeed, nothing, but absolutely nothing remains for the completion of the project except for the petitioner to sign the deeds in question and, of course, to also sign the corresponding documents to complete the requirements for the final approval by the Land Registration Commission of the subdivision plan already bearing the imprimatur of the Quezon City Council.
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It is, therefore, clear that the mandamus being sought by respondents is not for the specific performance of a contract. In essence, what respondent employees are asking for is a mandamus to compel an officer of a corporation to perform a duty imposed upon him by law. Under Section 7 of Republic Act 1383 creating the NWSA, among the functions of the Manager of NWSA is "to represent the Authority in all its business matters ... and (to) perform such other executive duties as may be prescribed by law or may be required of him by resolution of the Board." In this connection, petitioner's contention that Resolution 283-'69 above merely "authorized" him to sign the deeds at issue but did not impose upon him the duty to do so cannot be sustained. There is nothing in the resolution granting him any discretion to interpose his own will and thereby set at naught the action of the Board selling land of the Authority to respondents. Under the terms of the resolution, petitioner's duty to sign the deeds properly prepared in conformity with the conditions agreed between the parties is as ministerial as the duty of an auditor to sign the warrant for the payment of an obligation of a government office to pay money pursuant to a contract the legality of which is not in dispute. In several cases, We have held that mandamus would lie to compel the auditor to sign the warrant. 3
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In Vda. de Serra vs. Salas, 30 SCRA 541, the rule in mandamus that the rights of a party in a contract cannot be enforced by such remedy was held not to be really absolute. We said: . A rule long familiar is that mandamus never issues in doubtful cases. (Valdez vs. Gutierrez (1968), 23 SCRA 661, 664, citing Aprueba vs. Ganzon (1966), 18 SCRA 8, 12.) It requires a showing of a complete and clear legal right in the petitioner to the performance of ministerial acts. (Section 3, Rule 65, Rules of Court; Palileo vs. Ruiz Castro, 85 Phil. 272, 275; Aquino vs. General Manager (1968), 22 SCRA 415, 420, citing Zamora vs. Wright, 53 Phil. 613, Palileo vs. Ruiz Castro, supra, Cochoco vs. Icasiano, L599, March 20, 1954, and Aprueba vs. Ganzon, supra. See also: Ramos vs. Diaz (1967), 21 SCRA 1243, 1246.) In varying language, the principle echoed and re-echoed is that legal rights may be enforced by mandamus only if those rights are well-defined, clear and certain. (JRS Business Corporation vs. Montesa (1968), 23 SCRA 190, 197-198, citing cases.) Otherwise, the mandamus petition must be dismissed. (Id., citing 3 Moran Comments on the Rules of Court [1963 ed.] 172. See also: Viuda e Hijos de Crispulo

Zamora vs. Wright, 53 Phil. 613, 621; Alzate vs. Aldana (1963), 8 SCRA 219, 223, citing Tabigne vs. Duvall, 16 Phil. 324.) This is not to say of course, that we should overlook the equally tested precept that where government contracts are completely performed on the part of the private party, and there is nothing more to do but to effect payment, mandamus will avail to command the government's proper officials to sign and issue the corresponding warrants. (Hoey vs. Baldwin, 1 Phil. 551, 558; Compania General de Tabacos vs. French, 39 Phil. 34, 59; Quiogue vs. Romualdez, 46 Phil. 337, 341. See also: Villegas vs. Auditor General (1966), 18 SCRA 877, 888-890, 893, citing Hoey vs. Baldwin, supra, Ynchausti & Co. vs. Wright, 47 Phil. 866, 891, Radiowealth, Inc. vs. Agregado, 86 Phil. 429, 440, and Guevara vs. Gimenez (1962), 6 SCRA 807, 812-813.). It is difficult to understand, much less sanction, the position of petitioner. In effect, by his refusal to sign the deeds in question, he is not only obstructing the implementation of a laudable project of the NWSA for the benefit of its employees and workers, he is in fact prevailing the compliance by the corporation with its legal obligation under the contract of sale with the awardees among said employees and workers. Not only that. His act has the effect of setting aside at least two other contracts already in the process of consummation, namely, the contract of the unions or the awardees with the BHESCO and the contract of loan with the GSIS, which, of course, has yet to be individualized and put in final form. Mandamus is a remedy in equity, and equitable considerations, not to speak of the legal ones, demand that these contracts be respected and enforced, and that petitioner does not put any further hindrance thereto.
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We are not overlooking the strong suggestion of petitioner that respondent employees might be victimized by those in charge of the project, but aside from the fact that the apprehension is not shown to be beyond being merely speculative, not factual, the employees themselves are the ones who have gone to court for relief. There is no showing that any of them, much less a substantial number of them, are complaining about the way the affairs of the project are being undertaken by those whom they have designated for the purpose. Indeed, in some instances, the Court has refused to deny mandamus on the ground thus invoked by petitioner. 4
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We cannot see any adequate administrative remedy which respondents have not exhausted. Their complaint to the President has been referred to NWSA for action, and We do not expect the Board to replace petitioner with another official who would be willing to execute the deeds in question because, after all, the law imposes the function only on him. As to the allegation that the preliminary mandatory injunction has prejudged the case, We can only say that indeed, there is hardly anything else that remains to be litigated subsequently in the court below. Everything related to the rights of the parties is already before Us. If technically, there might be reason for Us to require a trial on the principal petition by the court below, such a roundabout procedure can serve no useful purpose. The final decision of the case would be nothing more than a reiteration of the order of mandatory injunction. We will only be delaying the housing project which has long been the dream of the respondent employees.
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The common man, like, for example, a salaried employee, is entitled not only "to a little more food in his stomach, a little more clothing on his back, and a little more shelter over his head" but also to a lot, even small, where he can build his house and establish a permanent abode. "A man with a home and a means of subsistence is a lover of peace and order and will profess affections for his country, whereas one without a home and in penury is not only a social parasite but also a dangerous element in the social order" (Moran, J., dissent in Kasilag vs. Rodriguez, 69 Phil. 217, 254, 264). The Government, as the biggest employer, should be the first to help its employees in the solution of their housing problem.
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WHEREFORE, the petition is dismissed. No costs. Makalintal, C.J., Antonio and Fernandez, JJ., concur. Fernando J., concurs in the result. Aquino, J., took no part.
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THIRD DIVISION [G.R. No. 116736. July 24, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN DOE, accused, BENJAMIN ORTEGA, JR. y CONJE and MANUEL GARCIA y RIVERA, accused-appellants. DECISION PANGANIBAN, J.: A person who commits a felony is liable for the direct, natural and logical consequences of his wrongful act even where the resulting crime is more serious than that intended. Hence, an accused who originally intended to conceal and to bury what he thought was the lifeless body of the victim can be held liable as a principal, not simply as an accessory, where it is proven that the said victim was actually alive but subsequently died as a direct result of such concealment and burial. Nonetheless, in the present case, Appellant Garcia can not be held liable as a principal because the prosecution failed to allege such death through drowning in the Information. Neither may said appellant be held liable as an accessory due to his relationship with the principal killer, Appellant Ortega, who is his brother-in-law. Statement of the Case This case springs from the joint appeal interposed by Appellants Benjamin Ortega, Jr. and Manuel Garcia from the Decision,1 dated February 9, 1994 written by Judge Adriano R. Osorio,2 finding them guilty of murder. Appellants were charged by State Prosecutor Bernardo S. Razon in an Information3 dated October 19, 1992, as follows: That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, without any justifiable cause, with treachery and evident premeditation and with abuse of superior strenght (sic) and with deliberate intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab repeatedly with a pointed weapon on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA, thereby inflicting upon the latter serious physical injuries which directly caused his death. During arraignment, Appellants Ortega and Garcia, assisted by counsel de oficio,4 pleaded not guilty to the charge.5 Accused John Doe was then at large.6 After trial in due course, the court a quo promulgated the questioned Decision. The dispositive portion reads:7chanroblesvirtuallawlibrary WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel Garcia y Rivera [g]uilty beyond reasonable doubt of the crime charged, the

Court hereby sentenced (sic) them to suffer the penalty of RECLUSION PERPETUA and to pay the costs of suit. Accused are hereby ordered to pay the offended party the sum of P35,000.00 for funeral expenses of deceased Andre Mar Masangkay and death indemnity of P50,000.00. The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo P. Velicaria8 who took over from the Public Attorneys Office as counsel for the accused. The Facts Evidence for the Prosecution The trial court summarized the testimonies of the prosecution witnesses as follows:9chanroblesvirtuallawlibrary Diosdado Quitlong substantially testified that on October 15, 1992 at about 5:30 in the afternoon, he, the victim Andre Mar Masangkay, Ariel Caranto, Romeo Ortega, Roberto San Andres were having a drinking spree in the compound near the house of Benjamin Ortega, Jr. at Daangbakal, Dalandanan, Valenzuela, Metro Manila. That while they were drinking, accused Benjamin Ortega, Jr. and Manuel Garcia who were [already] drunk arrived and joined them. That victim Andre Mar Masangkay answered the call of nature and went to the back portion of the house. That accused Benjamin Ortega, Jr. followed him and later they [referring to the participants in the drinking session] heard the victim Andre Mar shouted, Dont, help me! (Huwag, tulungan ninyo ako!) That he and Ariel Caranto ran towards the back portion of the house and [they] saw accused Benjamin Ortega, Jr., on top of Andre Mar Masangkay who was lying down in a canal with his face up and stabbing the latter with a long bladed weapon. That Ariel Caranto ran and fetched Benjamin Ortega, Sr., the father of accused Benjamin, Jr. That he [Quitlong] went to Romeo Ortega in the place where they were having the drinking session [for the latter] to pacify his brother Benjamin, Jr. That Romeo Ortega went to the place of the stabbing and together with Benjamin Ortega, Jr. and Manuel Garcia lifted Andre Mar Masangkay from the canal and brought Andre Mar to the well and dropped the latter inside the well. That Romeo Ortega, Benjamin Ortega, Jr. and Manuel Garcia then dropped stones measuring 11 to 12 inches high, 2 feet in length and 11 to 12 inches in weight to the body of Andre Mar Masangkay inside the well. That Romeo Ortega warned him [Quitlong] not to tell anybody of what he saw. That he answered in the affirmative and he was allowed to go home. That his house is about 200 meters from Romeo Ortegas house. That upon reaching home, his conscience bothered him and he told his mother what he witnessed. That he went to the residence of Col. Leonardo Orig and reported the matter. That Col. Orig accompanied him

to the Valenzuela Police Station and some police officers went with them to the crime scene. That accused Benjamin Ortega, Jr. and Manuel Garcia were apprehended and were brought to the police station. On cross-examination, he said that he did not talk to the lawyer before he was presented as witness in this case. That he narrated the incident to his mother on the night he witnessed the killing on October 15, 1992. That on October 15, 1992 at 5:30 in the afternoon when he arrived, victim Andre Mar Masangkay, Romeo Ortega, Serafin and one Boyet were already having [a] drinking spree and he joined them. That accused Benjamin Ortega, Jr. and Manuel Garcia were not yet in the place. That the stabbing happened between 12:00 midnight and 12:30 a.m. That they drank gin with finger foods such as pork and shell fish. That he met the victim Andre Mar Masangkay only on that occasion. That accused Benjamin Ortega, Jr. and Manuel Garcia joined them at about 11:00 p.m. That there was no altercation between Benjamin Ortega, Jr. and Manuel Garcia in one hand and Andre Mar Masangkay, during the drinking session. That at about 12:30 a.m. Andre Mar Masangkay answered the call of nature and went to the back portion of the house. That he cannot see Andre Mar Masangkay from the place they were having the drinking session. That he did not see what happened to Andre Mar Masangkay. That he only heard Masangkay asking for help. That accused Manuel Garcia was still in the drinking session when he heard Masangkay was asking for help. That Benjamin Ortega, Jr. and Manuel Garcia are his friends and neighbors. That when he heard Andre Mar Masangkay was asking for help, he and Ariel Caranto ran to the back portion of the house and saw Benjamin Ortega, Jr. on top of Andre Mar Masangkay and stabbing the latter. That Andre Mar Masangkay was lying down with his back in the canal and Benjamin Ortega, Jr. on top stabbing the former. That he did not see any injuries on Benjamin Ortega, Jr. That he called Romeo Ortega to pacify his brother Benjamin, Jr. That he did not do anything to separate Benjamin Ortega, Jr. and Masangkay. That he knows that Andre Mar Masangkay was courting Raquel Ortega. That Raquel Ortega asked permission from Andre Mar Masangkay when she left between 8:00 and 9:00 p.m. That there was no trouble that occurred during the drinking session. PNP Superintendent Leonardo Orig substantially testified that Diosdado Quitlong is his neighbor for about 9 years. That on October 16, 1992 at 5:00 in the morning, he was summoned by Diosdado Quitlong and reported to him the stabbing incident that occurred at Daangbakal near the subdivision he is living. That he relayed the information to the Valenzuela Police Station and a police team under police officer Param accompanied them to the place. That he asked the police officers to verify if there is a body of person inside the well. That the well was covered with stones and he asked the police officers to seek the help of theneighbors (sic) to remove the stones inside the well. That after the stones were removed, the body of the victim was found inside the well. That the lifeless body was pulled out from the

well. That the body has several stab wounds. That he came to know the victim as Andre Mar Masangkay. That two men were arrested by the police officers. On cross-examination, he said that he saw the body when taken out of the well with several stab wounds. That Diosdado Quitlong told him that he was drinking with the victim and the assailants at the time of the incident. That Benjamin Ortega, Jr. stabbed the victim while the latter was answering the call of nature. NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he conducted [an] autopsy on the cadaver of Andre Mar Masangkay on October 16, 1992 at the Valenzuela Memorial Homes located at Macarthur Highway. That he prepared the autopsy report and the sketch of human head and body indicating the location of the stab wounds. That the cause of death is multiple stab wounds, contributory, [a]sphyxia by submersion in water. That there were 13 stab wounds, 8 of which were on the frontal part of the body, 2 at the back and there were contused abrasions around the neck and on the left arm. There was stab wound at the left side of the neck. That the contused abrasion could be produced by cord or wire or rope. That there is (an) incised wound on the left forearm. That the stab wounds which were backward downward of the body involved the lungs. That the victim was in front of the assailant. That the stab wound on the upper left shoulder was caused when the assailant was in front of the victim. That the assailant was in front of the victim when the stab wound near the upper left armpit was inflicted as well as the stab wound on the left chest wall. That the stab wound on the back left side of the body and the stab wound on the back right portion of the body may be produced when the assailant was at the back of the victim. That the assailant was in front of the victim when the stab wound[s] on the left elbow and left arm were inflicted. That the large airway is filled with muddy particles indicating that the victim was alive when the victim inhaled the muddy particles. The heart is filled with multiple hemorrhage, loss of blood or decreased of blood. The lungs is filled with water or muddy particles. The brain is pale due to loss of blood. The stomach is one half filled with muddy particles which could [have been] taken in when submerged in water. On cross-examination, he said that he found 13 stab wounds on the body of the victim. That he cannot tell if the assailant or the victim were standing. That it is possible that the stab wounds was (sic) inflicted when both [referring to participants] were standing or the victim was lying down and the assailant was on top. That he cannot tell the number of the assailants. Evidence for the Appellants Appellant Manuel Garcia testified that in the early morning of October 15, 1992, he and his wife, Maritess Garcia, brought their feverish daughter, Marjorie, to the Polo Emergency Hospital. He left the hospital at seven o clock in the morning, went

home, changed his clothes and went to work.10 After office hours, he and Benjamin Ortega, Jr. passed by the canteen at their place of work. After drinking beer, they left at eight o clock in the evening and headed home. En route, they chanced on Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, who invited them to join their own drinking spree. Thereupon, Appellant Garcias wife came and asked him to go home because their daughter was still sick. To alleviate his daughters illness, he fetched his mother-in-law who performed a ritual called tawas. After the ritual, he remained at home and attended to his sick daughter. He then fell asleep but was awakened by police officers at six o clock in the morning of the following day. Maritess Garcia substantially corroborated the testimony of her husband. She however added two other participants in the drinking session aside from Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, namely, a Mang Serafin and Boyet Santos.11chanroblesvirtuallawlibrary Benjamin Ortega, Jr. likewise substantially corroborated the testimony of Appellant Manuel Garcia.12 According to him, between eleven and twelve o clock in the evening, Masangkay left the drinking session. Thirty (30) minutes after Masangkay left, he also left the drinking place to urinate.13 He went behind the house where he saw Masangkay peeping through the room of his sister Raquel. He ignored Masangkay and continued urinating.14 After he was through, Masangkay approached him and asked where his sister was. He answered that he did not know. Without warning, Masangkay allegedly boxed him in the mouth, an attack that induced bleeding and caused him to fall on his back. When he was about to stand up, Masangkay drew a knife and stabbed him, hitting him on the left arm, thereby immobilizing him. Masangkay then gripped his neck with his left arm and threatened to kill him. Unable to move, Ortega shouted for help. Quitlong came and, to avoid being stabbed, grabbed Masangkays right hand which was holding the knife. Quitlong was able to wrest the knife from Masangkay and, with it, he stabbed Masangkay ten (10) times successively, in the left chest and in the middle of the stomach. When the stabbing started, Ortega moved to the left side of Masangkay to avoid being hit.15 Quitlong chased Masangkay who ran towards the direction of the well. Thereafter, Ortega went home and treated his injured left armpit and lips. Then, he slept. When he woke up at six o clock the following morning, he saw police officers in front of his house. Taking him with them, the lawmen proceeded to the well. From the railroad tracks where he was asked to sit, he saw the police officers lift the body of a dead person from the well. He came to know the identity of the dead person only after the body was taken to the police headquarters.16chanroblesvirtuallawlibrary The Trial Courts Discussion The trial court explained its basis for appellants conviction as follows:17chanroblesvirtuallawlibrary

The Court is convinced that the concerted acts of accused Benjamin Ortega, Jr., Manuel Garcia, Jr. and one Romeo Ortega in lifting, carrying and dumping the victim Andre Mar Masangkay who was still alive and breathing inside the deep well filled with water, head first and threw big stones/rocks inside the well to cover the victim is a clear indication of the community of design to finish/kill victim Andre Mar Masangkay. Wounded and unarmed victim Andre Mar Masangkay was in no position to flee and/or defend himself against the three malefactors. Conspiracy and the taking advantage of superior strength were in attendance. The crime committed by the accused is Murder. Concert of action at the moment of consummating the crime and the form and manner in which assistance is rendered to the person inflicting the fatal wound may determine complicity where it would not otherwise be evidence (People vs. Yu, 80 SCRA 382 (1977)). Every person criminally liable for a felony is also civilly liable. Accused (m)ust reimburse the heirs of victim Andre Mar Masangkay the amount of P35,000.00 for the funeral expenses of the deceased. The Issues In their ten-page brief, appellants fault the trial court with the following:
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I. The trial court erred in holding that there is conspiracy on the basis of the prosecutions evidence that at the time both accused and one Romeo Ortega lifted the body of Andrew Masangkay from where he succumbed due to stab wounds and brought and drop said body of Andrew Masangkay to the well to commit murder; II. The trial court erred in finding and holding that Andrew Masangkay was still alive at the time his body was dropped in the well; III. The trial court erred in convicting Manuel Garcia and in not acquitting the latter of the crime charged; and IV. The trial court erred in not finding that if at all Benjamin Ortega Jr. is guilty only of homicide alone. On the basis of the records and the arguments raised by the appellants and the People, we believe that the question to be resolved could be simplified thus: What are the criminal liabilities, if any, of Appellants Ortega and Garcia? The Courts Ruling We find the appeal partly meritorious. Appellant Ortega is guilty only of homicide. Appellant Garcia deserves acquittal.

First Issue: Liability of Appellant Ortega The witnesses for the prosecution and defense presented conflicting narrations. The prosecution witnesses described the commission of the crime and positively identified appellants as the perpetrators. The witnesses for the defense, on the other hand, attempted to prove denial and alibi. As to which of the two contending versions speaks the truth primarily rests on a critical evaluation of the credibility of the witnesses and their stories. In this regard, the trial court held:19chanroblesvirtuallawlibrary The Court has listened intently to the narration of the accused and their witnesses and the prosecution witnesses and has keenly observed their behavior and demeanor on the witness stand and is convinced that the story of the prosecution is the more believable version. Prosecution eyewitness Diosdado Quitlong appeared and sounded credible and his credibility is reinforced by the fact that he has no reason to testify falsely against the accused. It was Diosdado Quitlong who reported the stabbing incident to the police authorities. If Quitlong stabbed and killed the victim Masangkay, he will keep away from the police authorities and will go in hiding. x x x Because the trial court had the opportunity to observe the witnesses demeanor and deportment on the stand as they rendered their testimonies, its evaluation of the credibility of witnesses is entitled to the highest respect. Therefore, unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case, his assessment of credibility must be respected.20chanroblesvirtuallawlibrary In the instant case, we have meticulously scoured the records and found no reason to reverse the trial courts assessment of the credibility of the witnesses and their testimonies21 insofar as Appellant Ortega is concerned. The narration of Eyewitness Diosdado Quitlong appears to be spontaneous and consistent. It is straightforward, detailed, vivid and logical. Thus, it clearly deserves full credence. On the other hand, in asserting alibi and denial, the defense bordered on the unbelievable. Appellant Ortega claimed that after he was able to free himself from Masangkays grip, he went home, treated his injuries and slept.22 This is not the ordinary reaction of a person assaulted. If Ortegas version of the assault was true, he should have immediately reported the matter to the police authorities, if only out of gratitude to Quitlong who came to his rescue. Likewise, it is difficult to believe that a man would just sleep after someone was stabbed in his own backyard. Further, we deem it incredible that Diosdado Quitlong would stab Masangkay ten (10) times successively, completely ignoring Benjamin Ortega, Jr. who was grappling with Masangkay. Also inconsistent with human experience is his narration that Masangkay persisted in choking him instead of defending himself from the alleged successive stabbing of Quitlong.23 The natural tendency of a person

under attack is to defend himself and not to persist in choking a defenseless third person. Murder or Homicide? Although treachery, evident premeditation and abuse of superior strength were alleged in the information, the trial court found the presence only of abuse of superior strength. We disagree with the trial courts finding. Abuse of superior strength requires deliberate intent on the part of the accused to take advantage of such superiority. It must be shown that the accused purposely used excessive force that was manifestly out of proportion to the means available to the victims defense.24 In this light, it is necessary to evaluate not only the physical condition and weapon of the protagonists but also the various incidents of the event.25chanroblesvirtuallawlibrary In his testimony, Witness Dominador Quitlong mentioned nothing about Appellant Ortegas availment of force excessively out of proportion to the means of defense available to the victim to defend himself. Quitlong described the assault made by Appellant Ortega as follows:26chanroblesvirtuallawlibrary ATTY. ALTUNA: QWill you please tell me the place and date wherein you have a drinking spree with Andrew Masangkay and where you witnessed a stabbing incident? AIt was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in the house of Mr. Benjamin Ortega, Sr., because the house of Benjamin Ortega Sr. and the house of his son Benjamin Ortega, Jr. are near each other. xxx xxx xxx QMr. Witness, who were the companions of said persons, Benjamin Ortega, Jr., Manuel Garcia, you (sic) in drinking in said place? A The other companions in the drinking session were Ariel Caranto y Ducay, Roberto San Andres and Romeo Ortega. QWhat about this victim, Andrew Masangkay, where was he at that time? AAlso the victim, Andrew Masangkay, he was also there. QYou said that the two accused, Manuel Garcia and Benjamin Ortega, Jr. arrived drunk and joined the group? AYes, sir.

QWhat happened next? AWhile we were there together and we were drinking... (interrupted by Atty. Altuna) QWho is that we? AReferring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo Ortega, Roberto San Andres, myself and Andrew Masangkay. Andrew Masangkay answer to a call of nature and went to the back portion of the house, and Benjamin Ortega, Jr. followed him where he was. QWhat happened next? AAnd afterwards we heard a shout and the shout said Huwag, tulungan nyo ako. QFrom whom did you hear this utterance? AThe shout came from Andrew Masangkay. QAfter Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of nature and after you heard huwag, tulungan nyo ako coming from the mouth of the late Andrew Masangkay, what happened next? AAriel Caranto and I ran towards the back portion of the house. QAnd what did you see? AAnd I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and he was stabbing Andrew Masangkay. QWill you please demonstrate to the Honorable Court how the stabbing was done telling us the particular position of the late Andrew Masangkay and how Benjamin Ortega, Jr proceeded with the stabbing against the late victim, Andrew Masangkay? INTERPRETER: (At this juncture, the witness demonstrating.) Andrew Masangkay was lying down on a canal with his face up, then Benjamin Ortega, Jr. was nakakabayo and with his right hand with closed fist holding the weapon, he was thrusting this weapon on the body of the victim, he was making downward and upward motion thrust. ATTY. ALTUNA: (To the witness)

QHow many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay? AI cannot count the number of times. It should be noted that Victim Masangkay was a six-footer, whereas Appellant Ortega, Jr. was only five feet and five inches tall.27 There was no testimony as to how the attack was initiated. The accused and the victim were already grappling when Quitlong arrived. Nothing in the foregoing testimony and circumstances can be interpreted as abuse of superior strength. Hence, Ortega is liable only for homicide, not murder. Second Issue: Liability of Appellant Manuel Garcia Appellants argue that the finding of conspiracy by the trial court is based on mere assumption and conjecture x x x.28 Allegedly, the medico-legal finding that the large airway was filled with muddy particles indicating that the victim was alive when the victim inhaled the muddy particles did not necessarily mean that such muddy particles entered the body of the victim while he was still alive. The Sinumpaang Salaysay of Quitlong stated, Nilubayan lang nang saksak nang mapatay na si Andrew ni Benjamin Ortega, Jr. Thus, the prosecution evidence shows Masangkay was already dead when he was lifted and dumped into the well. Hence, Garcia could be held liable only as an accessory.29chanroblesvirtuallawlibrary We do not agree with the above contention. Article 4, par. 1, of the Revised Penal Code states that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended. The essential requisites for the application of this provision are that (a) the intended act is felonious; (b) the resulting act is likewise a felony; and (c) the unintended albeit graver wrong was primarily caused by the actors wrongful acts. In assisting Appellant Ortega, Jr. carry the body of Masangkay to the well, Appellant Garcia was committing a felony. The offense was that of concealing the body of the crime to prevent its discovery, i.e. that of being an accessory in the crime of homicide.30 Although Appellant Garcia may have been unaware that the victim was still alive when he assisted Ortega in throwing the body into the well, he is still liable for the direct and natural consequence of his felonious act, even if the resulting offense is worse than that intended. True, Appellant Garcia merely assisted in concealing the body of the victim. But the autopsy conducted by the NBI medico-legal officer showed that the victim at that time was still alive, and that he died subsequently of drowning. 31 That drowning was the immediate cause of death was medically demonstrated by the muddy particles found in the victims airway, lungs and stomach.32 This is evident from the expert testimony given by the medico-legal officer, quoted below:33chanroblesvirtuallawlibrary ATTY. ALTUNA:

QWill you please explain this in simple language the last portion of Exhibit N, beginning with tracheo-bronchial tree, that is sentence immediately after paragraph 10, 2.5 cms. Will you please explain this? AThe trancheo-bronchial tree is filled with muddy particles. QI ask you a question on this. Could the victim have possibly get this particular material? ANo, sir. QWhat do you mean by no? AA person should be alive so that the muddy particles could be inhaled. QSo, in short, you are telling or saying to us that if there is no inhaling or the taking or receiving of muddy particles at that time, the person is still alive? AYes, sir. QSecond point? AThe heart is pale with some multiple petechial hemorrhages at the anterior surface. QAnd this may [be] due to stab wounds or asphyxia? AThese are the effects or due to asphyxia or decreased amount of blood going to the heart. QThis asphyxia are you referring to is the drowning? AYes, sir. QNext point is the lungs? AThe lungs is also filled with multiple petechial hemorrhages. QWhat could have caused this injury of the lungs? AThis is due to asphyxia or the loss of blood. QAre you saying that the lungs have been filled with water or muddy particles? AYes, sir.

QAnd, precisely, you are now testifying that due to stab wounds or asphyxia, the lungs have been damaged per your Report? AYes, sir. QContinuing this brain and other visceral organs, pale. What is this? AThe paleness of the brain and other visceral organs is due to loss of blood. QAnd, of course, loss of blood could be attributed to the stab wound which is number 13? AYes, sir. QAnd the last one, under the particular point hemothorax? AIt indicates at the right side. There are around 1,400 cc of blood that accumulate at the thoraxic cavity and this was admixed with granular materials? QAnd what cause the admixing with granular materials on said particular portion of the body? ACould be muddy particles. QDue to the taking of maddy (sic) materials as affected by asphyxia? Am I correct? AIts due to stab wounds those muddy particles which set-in thru the stab wounds. QSo, because of the opening of the stab wounds, the muddy particles now came in, in that particular portion of the body and caused admixing of granular materials? AYes, sir. QContinuing with your report, particularly, the last two portions, will you please explain the same? AThe hemoperitoneum there are 900 cc of blood that accumulated inside the abdomen. QAnd what could have cause the same? A[T]he stab wound of the abdomen. QThe last one, stomach 1/2 filled with muddy particles. Please explain the same? AThe victim could have taken these when he was submerged in water.

QWhat is the take in? AMuddy particles. QAnd he was still alive at that time? AYes, sir. (Underscoring supplied) A Filipino authority on forensic medicine opines that any of the following medical findings may show that drowning is the cause of death:34chanroblesvirtuallawlibrary 1. The presence of materials or foreign bodies in the hands of the victim. The clenching of the hands is a manifestation of cadaveric spasm in the effort of the victim to save himself from drowning. 2. Increase in volume (emphysema aquosum) and edema of the lungs (edema aquosum). 3. Presence of water and fluid in the stomach contents corresponding to the medium where the body was recovered. 4. Presence of froth, foam or foreign bodies in the air passage found in the medium where the victim was found. 5. Presence of water in the middle ear. The third and fourth findings were present in the case of Victim Masangkay. It was proven that his airpassage, or specifically his tracheo-bronchial tree, was filled with muddy particles which were residues at the bottom of the well. Even his stomach was half-filled with such muddy particles. The unrebutted testimony of the medicolegal officer that all these muddy particles were ingested when the victim was still alive proved that the victim died of drowning inside the well. The drowning was the direct, natural and logical consequence of the felony that Appellant Garcia had intended to commit; it exemplifies praeter intentionem covered by Article 4, par. 1, of the Revised Penal Code. Under this paragraph, a person may be convicted of homicide although he had no original intent to kill.35chanroblesvirtuallawlibrary In spite of the evidence showing that Appellant Garcia could be held liable as principal in the crime of homicide, there are, however, two legal obstacles barring his conviction, even as an accessory as prayed for by appellants counsel himself. First. The Information accused Appellant Garcia (and Appellant Ortega) of attack[ing], assault[ing], and stab[bing] repeatedly with a pointed weapon on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA The prosecutions evidence itself shows that Garcia had nothing to do with the stabbing which was solely perpetrated by Appellant Ortega. His responsibility relates only to

the attempted concealment of the crime and the resulting drowning of Victim Masangkay. The hornbook doctrine in our jurisdiction is that an accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the accusation against him. To convict him of an offense other than that charged in the complaint or information would be a violation of this constitutional right.36 Section 14, par. 2, of the 1987 Constitution explicitly guarantees the following: (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (Underscoring supplied) In People vs. Pailano,37 this Court ruled that there can be no conviction for rape on a woman deprived of reason or otherwise unconscious where the information charged the accused of sexual assault by using force or intimidation, thus: The criminal complaint in this case alleged the commission of the crime through the first method although the prosecution sought to establish at the trial that the complainant was a mental retardate. Its purpose in doing so is not clear. But whatever it was, it has not succeeded. If the prosecution was seeking to convict the accused-appellant on the ground that he violated Anita while she was deprived of reason or unconscious, such conviction could not have been possible under the criminal complaint as worded. This described the offense as having been committed by Antonio Pailano, being then provided with a scythe, by means of violence and intimidation, (who) did, then and there, wilfully, unlawfully and feloniously have carnal knowledge of the complainant, Anita Ibaez, 15 years of age, against her will. No mention was made of the second circumstance. Conviction of the accused-appellant on the finding that he had raped Anita while she was unconscious or otherwise deprived of reason -- and not through force and intimidation, which was the method alleged -- would have violated his right to be informed of the nature and cause of the accusation against him.[Article IV, Sec. 19, Constitution of 1973; now Article III, Sec. 14(2)] This right is safeguarded by the Constitution to every accused so he can prepare an adequate defense against the charge against him. Convicting him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. This right was, of course, available to the herein accused-appellant.

In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with rape could not be found guilty of qualified seduction, which had not been alleged in the criminal complaint against him. In the case of People vs. Montes, [fn: 122 SCRA 409] the Court did not permit the conviction for homicide of a person held responsible for the suicide of the woman he was supposed to have raped, as the crime he was accused of -- and acquitted -was not homicide but rape. More to the point is Tubb v. People of the Philippines, [fn: 101 Phil. 114] where the accused was charged with the misappropriation of funds held by him in trust with the obligation to return the same under Article 315, paragraph 1(b) of the Revised Penal Code, but was convicted of swindling by means of false pretenses, under paragraph 2(b) of the said Article, which was not alleged in the information. The Court said such conviction would violate the Bill of Rights. By parity of reasoning, Appellant Garcia cannot be convicted of homicide through drowning in an information that charges murder by means of stabbing. Second. Although the prosecution was able to prove that Appellant Garcia assisted in concealing x x x the body of the crime, x x x in order to prevent its discovery, he can neither be convicted as an accessory after the fact defined under Article 19, par. 2, of the Revised Penal Code. The records show that Appellant Garcia is a brotherin-law of Appellant Ortega,38 the latters sister, Maritess, being his wife.39 Such relationship exempts Appellant Garcia from criminal liability as provided by Article 20 of the Revised Penal Code: ART. 20. Accessories who are exempt from criminal liability. -- The penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees with the single exception of accessories falling within the provisions of paragraph 1 of the next preceding article. On the other hand, the next preceding article provides: ART. 19. Accessories. Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: 1. By profiting themselves or assisting the offender to profit by the effects of the crime. 2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery. 3. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with abuse

of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime. Appellant Garcia, being a covered relative by affinity of the principal accused, Benjamin Ortega, Jr., is legally entitled to the aforequoted exempting provision of the Revised Penal Code. This Court is thus mandated by law to acquit him. Penalty and Damages The award of actual damages should be reduced to P31,790.00 from P35,000.00. The former amount was proven both by documentary evidence and by the testimony of Melba Lozano, a sister of the victim.40 Of the expenses alleged to have been incurred, the Court can give credence only to those that are supported by receipts and appear to have been genuinely incurred in connection with the death of the victim.41 However, in line with current jurisprudence,42 Appellant Ortega shall also indemnify the heirs of the deceased in the sum of P50,000.00. Indemnity requires no proof other than the fact of death and appellants responsibility therefor.43chanroblesvirtuallawlibrary The penalty for homicide is reclusion temporal under Article 249 of the Revised Penal Code, which is imposable in its medium period, absent any aggravating or mitigating circumstance, as in the case of Appellant Ortega. Because he is entitled to the benefits of the Indeterminate Sentence Law, the minimum term shall be one degree lower, that is, prision mayor. WHEREFORE, premises considered, the joint appeal is PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is found GUILTY of homicide and sentenced to ten (10) years of prision mayor medium, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium, as maximum. Appellant Ortega, Jr. is also ORDERED to pay the heirs of the victim P50,000.00 as indemnity and P31,790.00 as actual damages. Appellant Manuel Garcia is ACQUITTED. His immediate release from confinement is ORDERED unless he is detained for some other valid cause. SO ORDERED. Narvasa C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.