G.R. No.
161950 December 19, 2006 ‘- Financial Guarantee
FLORENCIO B. CAMPOMANES, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari1 assailing the
Decision2 promulgated on 31 January 2003 and the
Resolution3 promulgated on 6 February 2004 by the
Sandiganbayan in Criminal Case No. 23672 entitled
People of the Philippines v. Cecilio G. Hechanova and
Florencio B. Campomanes. The accused were charged
with conspiracy in violating Article 218 of the Revised
Penal Code, which defines and penalizes the failure of
an accountable officer to render accounts.
The Sandiganbayan acquitted then Philippine Sports
Commission (PSC) Chairman Cecilio G. Hechanova
("Hechanova") for failure of the prosecution to prove
conspiracy. The Sandiganbayan, however, convicted
accused-petitioner Florencio B. Campomanes
("Campomanes"), then President of the Federation
Internationale Des Echecs (FIDE), of the crime of failure
to render accounts as defined in Article 218 in relation to
Article 222 of the Revised Penal Code. The
Sandiganbayan sentenced Campomanes to one year and
ten months of imprisonment.
On reconsideration, the Sandiganbayan reduced
Campomanes’ penalty to a fine of P6,000 due to his
advanced age.
The Facts
The present petition involves alleged irregularities in the
disbursement and liquidation of the funds that the PSC
made available to the FIDE through Campomanes in
connection with the PSC’s bid to host the 1992 Chess
Olympiad and Congress in Manila from 6 to 25 June
1992.
The parties stipulated upon the following facts:
1. That during the period material to the
Information of this case, accused Cecilio G.
Hechanova was the Chairman of the Philippine
Sports Commission (PSC) and Florencio B.
Campomanes was the President of the
Federation International [sic] Des Echecs
(FIDE), a private international organization with
offices at Lausanne, Switzerland.
2. That on 6 March 1991 the Philippine Sports
Commission submitted to FIDE a bid offer to
host the 30th Chess Olympiad of 1992 in
Manila, making the promissory representations
required under FIDE rules, viz:
The Funding of the Olympiad
Declaration and/or and Congress shall be the
Government Guarantee if responsibility of the Philippine
applicable. Provisional Sports Commission. (attached
budget to be added. board resolution) budget US$6
million P180 M.
(1) Additional arrangements:
The sum of One Millions [sic] Swiss
Francs (SFr. 1,000,000.00) has been
placed in the Philippine National Bank
in an account In Trust to the Federation
Internationale Des Echecs to guarantee
the organization of the 1992 Chess
Olympiad and Congress, in case of the
award of the same, which amount shall
be forfeited in favor of FIDE in the
event that the Philippine Sports
Commission fails to organize the said
Chess Olympiad and Congress.
- Deposit: We enclose with out [sic]
offer/bid our deposit fee of SFr.
5,000.00 to FIDE. We are aware that we
forfeit this sum if for any reason we do
not organize the event. If we do
organize the event this sum will be put
to the credit of our account with FIDE.
We have organized the specific FIDE
stipulations for the above mentioned
event and will observe them.
- All conditions offered are subject to
the approval of the FIDE President or
his representatives.
- The President has the right to demand
additional deposits or guarantees from
the organizers when he so decides.
- Twelve months before the
commencement of the event the
President must be in possession of
sufficient evidence of the full financial
reliability and attention of the sponsors.
If such evidence is not at hand at the
given time, the President has the right to
withdraw the option.
3. That the PSC’s bid offer was accepted by
FIDE, and accordingly the Philippine
government thru the PSC was granted the right
to organize and host the 30th World Chess
Olympiad in Manila from June 6-25, 1992.
4. That in connection with the 30th World Chess
Olympiad, the PSC governing board passed
Resolution No. 292 on June 4, 1991
appropriating the amount of Fourty [sic]
Thousand Swiss Francs (SFr40,000.00) as
monthly expenditure of FIDE from May 1991 to
June 1992.
1|Page
 5. That from October 1990 to June 1992 the
PSC, also complying with its obligations under
the bid offer, remitted to FIDE – received in
FIDE’s behalf by its President, Florencio
Campomanes – the total amount of
P12,876,008.00 in connection with the 30th
World Chess Olympiad in Manila.
6. That the amount of P12,876,008.00 was
acknowledged as having been received by FIDE
as shown by a letter dated December 22, 1995 of
Willy Iclicki, FIDE Treasurer.
7. Also the FIDE transmitted to the PSC two
letter-explanations/clearances re the above funds
received from PSC:
Letter dated 8 December 1995:
- ‘As far as the World Chess Federation
is concerned, Mr. Florencio
Campomanes made his clarifications
and there are no further queries on the
amount assigned for FIDE for the
Manila Olympiad 1992. As you may
know, he was given a total vote of
confidence by the General Assembly
and elected FIDE Chairman.’ -[see
Exhibit "2-Campomanes"]
Letter dated 29 May 1997:
- ‘Attached is my letter dated Singapore,
22 December 1995, where we had our
FIDE Presidential Board meeting, as
authenticated today 29 May 1997, by the
Philippine Embassy in Brussels.
- We began issuing official receipts only
in late 1993 and it is FIDE practice not
to issue official receipts unless
specifically requested.’ [see Exhibit "4-
Campomanes"]4
The Commission on Audit (COA) conducted an audit of
the PSC’s transactions from March 1990 up to June
1992. During the audit, the COA team, composed of
team leader Rexy Mendoza ("Mendoza") and members
Ignacia Rodrigo and Alexander Rodriguez, requested for
the journal and checks and disbursements issued by the
PSC pertaining to the P12 million appropriated to defray
the organization, administration, and hosting of the
Chess Olympiad and Congress. The COA team noticed
irregularities in the claims payable to the FIDE. The
irregularities consisted of the lack of acknowledgment
receipts and of accounting liquidation attached to the
disbursement vouchers. The COA defined an
acknowledgment receipt as an official receipt evidencing
that the FIDE received the funds from the PSC. An
accounting liquidation is used to explain how the funds
were expended pursuant to the purpose specified in the
disbursement voucher.
The COA invited the PSC officials to an exit conference
on 27 October 1993. During the conference, the COA
submitted its team’s findings to the PSC and requested
for the PSC’s comment on the matter. In the absence of
the PSC’s comment, the COA prepared SAO Report No.
93-27. The report stated that the FIDE, through
Campomanes, received P12,876,008 without
acknowledgment and without liquidation.
In an Information dated 1 April 1997, Hechanova and
Campomanes were charged as follows:
That, on or about August 25, 1992, or sometime
prior or subsequent thereto, in the City of Manila
and within the jurisdiction of this Honorable
Court, the above-named accused Cecilio G.
Hechanova, a public officer, being then the
Chairman of the Philippine Sports Commission
(PSC), and as such was accountable for public
funds disbursed by his office, conspiring and
confederating with Florencio B. Campomanes,
President of the Federacion [sic] Internationale
des Echecs (FIDE), a private organization, to
whose custody and possession was entrusted
PSC funds to be used in connection with the
World Chess Olympiad in Manila, hosted by the
Philippine Government from June 6-25, 1992,
amounting to PESOS: TWELVE MILLION
EIGHT HUNDRED SEVENTY SIX
THOUSAND EIGHT (P12,876,008.00),
Philippine Currency, did then and there
willfully, unlawfully and feloniously fail to
render account on the disbursement thereof,
within the period provided for by law and the
rules and regulations of the Commission on
Audit, preventing the auditors from fully
establishing the cash accountabilities of both
accused and/or the offices they represent to the
prejudice of the Government.5
Campomanes entered a plea of not guilty upon
arraignment on 24 July 1997 and filed a motion for
reconsideration the next day. On 14 January 1998,
Special Prosecution Officer II Cicero D. Jurado, Jr.
recommended the dismissal of the case. Ombudsman
Aniano Desierto overruled the recommendation.
During trial, the prosecution presented Mendoza as its
sole witness. Hechanova and Campomanes testified on
their own behalf.
The Ruling of the Sandiganbayan
In its decision promulgated on 31 January 2003, the
Sandiganbayan’s Fifth Division acquitted Hechanova
but declared Campomanes guilty and sentenced him
accordingly. The dispositive portion of the decision
reads thus:
Premises considered, accused Cecilio G.
Hechanova is hereby ACQUITTED of the crime
charged for failure of the prosecution to prove
conspiracy.
On the basis of proof beyond reasonable doubt,
accused Florencio B. Campomanes is hereby
CONVICTED of the crime of failure to render
accounts as defined in Article 218 in relation to
Article 222 of the Revised Penal Code.
2|Page
 Accordingly, he is hereby meted the straight
penalty of one (1) year and ten (10) months
imprisonment.
There is no pronouncement as to civil liability as
the fact from which the same might arise was
not established in the case at bar.
The cash bond posted by accused Hechanova is
hereby ordered returned to him subject to the
usual accounting and auditing procedures.
The Hold Departure Order issued on May 20,
1997 against accused Hechanova is likewise
ordered lifted.
SO ORDERED.6 (Emphasis in the original)
In its resolution promulgated on 6 February 2004, the
Sandiganbayan denied Campomanes’ Motion for
Reconsideration filed on 11 February 2003 but modified
its previous judgment. The dispositive portion of the
resolution reads as follows:
In view of all the foregoing, the instant Motion
for Reconsideration dated February 10, 2003 is
hereby denied for lack of merit. However, due to
accused’s advanced age and for humanitarian
reasons, the penalty imposed in the questioned
Decision is hereby amended to a fine of six
thousand pesos (Php6,000.00), instead of
imprisonment of one (1) year and ten (10)
months, pursuant to Article 218 of the Revised
Penal Code.
SO ORDERED.7
Justices Francisco Villaruz, Jr. and Diosdado Peralta
wrote separate dissenting opinions.
The Issues
Campomanes comes before this Court to question the
Sandiganbayan’s rulings. He raises the following issues:
I months after such accounts should be rendered.
The Assailed Decision violated petitioner’s
constitutional right to be informed of the nature
and cause of the charges against him.
II
Even assuming that the Sandiganbayan’s
findings were alleged in the Information,
petitioner is not required by law to render an
accounting and therefore did not violate Article
218 of the RPC.
III
Assuming further that petitioner was required by
law to account for the funds paid by the PSC to
the FIDE, the admitted and undisputed facts
warrant his acquittal.8
The Ruling of the Court
The petition has merit.
The main issue in this appeal is whether Campomanes is
indeed guilty of failure to render accounts as defined in
Article 218 in relation to Article 222 of the Revised
Penal Code.
The Crime of Failure to Render Accounts under
Article 218 in
relation to Article 222 of the Revised Penal Code
The pertinent articles of the Revised Penal Code read:
Art. 218. Failure of accountable officer to
render accounts. — Any public officer, whether
in the service or separated therefrom by
resignation or any other cause, who is required
by law or regulation to render account to the
[Commission on Audit], or to a provincial
auditor and who fails to do so for a period of two
months after such accounts should be rendered,
shall be punished by prision correccional in its
minimum period, or by a fine ranging from 200
to 6,000 pesos, or both.
Art. 222. Officers included in the preceding
provision. — The provisions of this chapter shall
apply to private individuals who, in any capacity
whatever, have charge of any [national],
provincial or municipal funds, revenues or
property and to any administrator or depository
of funds or property attached, seized or
deposited by public authority, even if such
property belongs to a private individual.
There are four elements of the crime under Article 218.
First, the offender is a public officer. Second, he must be
an accountable officer for public funds or property.
Third, the offender is required by law or regulation to
render accounts to the COA, or to a provincial auditor.
Fourth, he fails to render an account for a period of two
Campomanes is clearly not a public officer. He is the
president of the FIDE, a private foreign corporation with
whom the PSC, through Hechanova, negotiated to
conduct the 1992 Chess Olympiad and Congress in
Manila. The Sandiganbayan acknowledged that
Campomanes is not a public officer and applied Article
222 of the Revised Penal Code in relation to Article 218.
The Sandiganbayan enumerated the elements of the
crime as applied to Campomanes thus:
1. That the offender is [a] private individual.
2. That he has charge of any insular (now
national), provincial, or municipal funds,
revenues, or property or [is an] administrator or
depository of funds, property attached, seized, or
deposited by public authority, even if such
property belongs to a private individual.
3|Page
 3. That he is required by law or regulation to
render accounts to the Commission on Audit, or
to a provincial auditor.
4. That he fails to do so for a period of two
months after such accounts should be rendered.9
Campomanes admitted that he received funds from the
PSC, through Hechanova. Campomanes’ admissions are
found in the exhibits and in the prosecution and
defense’s testimonies. The exhibits show Campomanes’
signatures in the respective disbursement vouchers
issued by the PSC and FIDE’s letters to PSC
acknowledging receipt of the funds. Moreover,
Campomanes has not rendered an accounting of the
funds even after he received a letter dated 19 January
1994 from COA Chairman Pascasio S. Banaria
demanding that Campomanes refund or submit a
detailed accounting to the COA covering the liquidation
of the funds that the FIDE received.10
The Sandiganbayan’s decision, however, failed to
specify any law or regulation requiring Campomanes to
render accounts to the COA. The Sandiganbayan
reasoned thus:
As to the third element of the offense that the
accountable officer should be required by law or
regulation to render accounts to the Commission
on Audit, the prosecution’s evidence established
that it was accused Campomanes, as President of
the FIDE, a private international organization,
and thus a private entity, was the one liable to
render accounts on the grant that he had received
in behalf of FIDE from the PSC.
The basis of the present charge is SAO Audit
Report No. 93-27 on the Special Audit of the
Philippine Sports Commission (Exh. "HH").
Section 1.2 thereof provides in part thus:
"1.2 Federation Internationale de Echecs
(FIDE)
----------------------------
--
The grant of financial assistance to the
Federation Internationale De Echecs
(FIDE) amounting to P12,876,008.00
was highly irregular. All checks were
received by Mr. Florencio
Campomanes, FIDE President, without
issuing any Official Receipt of the
Organization. No liquidation was
submitted by the FIDE President to the
PSC on the grant that he received in
behalf of FIDE."
The lone prosecution witness, COA Auditor,
Ms. Rexy Ramos, herself testified that FIDE was
supposed to render an account of the subject
funds because it was the one which expended
the same. Thus, she testified on direct
examination:
"Q: When the PSC funds are turned-
over from the PSC to FIDE, who are
supposed to account for the funds, the
PSC or the FIDE?
A: It should be FIDE, Your Honor
Honor [sic], because it will be FIDE
who will be expending."
Likewise, on cross-examination, she
declared that it was PSC’s responsibility
to request for an accounting from the
FIDE to which it transferred the funds,
however, she did not mention in her
written recommendation contained in
the SAO Audit Report No 93-27 (Exh.
"HH"), that PSC should request FIDE to
account for the funds. Her testimony is
quoted below:
"Q: And nowhere in your report, Special
Audit report, which stated that it is the
PSC who is obligated or required to
account for the P12.8 Million, more or
less, financial assistance, is that correct?
A: Yes, sir, because PSC should not be
the one to submit the accounting, but it
is responsible and obliged to ask FIDE
to submit an accounting of the P12.8
Million.
Q: And what is the basis for that answer,
Madam Witness?
A: Section 102 of the Philippine
Government Auditing Code Manual, PD
1445. Section 102, "Primary and
Secondary Responsibility. The head of
any agency of the government is
immediately and primarily responsible
for all government funds or property
pertaining to his agency."
Q: So, you mean to say that it is also
PSC who is required to account for the
P12.8 Million, more or less, financial
assistance?
A: It is not to account but it is his
responsibility to request for an
accounting to the agency wherein he
happened to transfer any funds.
Q: The responsibility to request, not to
account for it, is that an accurate
statement?
A: Yes, sir.
Q: But based on your findings in the
Audit Report, you never mentioned in
your recommendation that the PSC
should request FIDE to account for this
fund, is that correct? Nowhere in your
recommendation was it stated that the
4|Page
 PSC should request FIDE to account for
this fund, is that correct?
A: Yes, sir."
Based on the foregoing evidence, it is crystal
clear that it was accused Campomanes who
should render an accounting of the funds that
FIDE received from the PSC.11 (Emphasis in the
original)
The Office of the Special Prosecutor (OSP), for its part,
recognized the Sandiganbayan’s failure to specify the
law or regulation requiring Campomanes to render an
accounting. The OSP enumerated various laws which
presumably specify that Campomanes had the legal
obligation to render an account to the COA. The OSP
stated thus:
Petitioner finds fault in the assailed Decision of
the court a quo in convicting him of the crime
charged. He contends that there is no law or
regulation requiring him to render an accounting
for the amount of P12.8 Million Pesos to the
Commission on Audit, which he, as President of
the FIDE, received from the PSC.
On the contrary, Section 102(2) of P.D. 1445, as
well as Section 27 of the Manual on Certificate
of Settlement and Balances (1993 edition),
expressly provides petitioner’s duty and
obligation to render an account of the 12.8
Million Pesos which he received in behalf of
FIDE, viz:
"Persons entrusted with the possession or
custody of the funds or property under the
agency head shall be immediately responsible to
him without prejudice to the liability of either
party to the government."
The obligation of petitioner to render an account
is crystal clear from this provision. The fact that
there was no agreement between the PSC and
FIDE for the latter to liquidate or to account is
of no moment, because the law expressly
imposes, and laid upon petitioner an obligation
to render an account, which he manifestly failed.
Secondly, all monies and property officially
received by any person in whatever capacity and
in whatever occasion must be duly accounted
for, and must be duly receipted and
acknowledged officially. These again were
violated by FIDE, although complied with
belatedly. This belated act of FIDE merely
proves that it acquiesced that, indeed, it has
obligation to render an account for the amount
of 12.8 Million Pesos.
Thirdly, the obligation to render an account is
buttressed by the provision of Article 222 of the
Revised Penal Code which provides that Article
218, among others, "shall apply to private
individuals who, in any capacity whatever,
have charge of any insular (now national),
provincial or municipal funds, revenues or
property …"
Fourthly, Article IX [D], Section 2 [1] of the
1987 Constitution vests upon the Commission
o[n] Audit the power and authority, as well as
the duty, to examine, audit, among others, all
accounts pertaining to the expenditures or uses
of funds owned by or pertaining to the
Government or any of its agencies,
instrumentalities and departments; and this
authority extends to the accounts of all persons,
regardless of whether an officer or employee of
the government or a private individual,
respecting funds or properties they received,
expended or held in an accountable capacity or
not. This is so because of the principle that all
government monies must be duly accounted for
in order to see to it that government resources
are not put to waste and thus, properly protected.
Be it noted that government funds must be spent
for and used solely for public purpose and only
for the purpose for which it is intended.
Concomitantly, all persons who received, in
whatever capacity, and expended public funds,
shall have the obligation to render an account of
such funds to the Commission on Audit. Thus,
petitioner i[s] under obligation to render an
account for the amount of 12.8 Million Pesos
which he received as President of FIDE as
financial assistance in hosting the World Chess
Olympiad in the Philippines.
All these established facts belie the allegation of
petitioner that he is under no legal obligation to
render an account.12 (Emphasis in the original)
It is well-settled that penal statutes must be liberally
construed in favor of the accused and strictly construed
against the state. To paraphrase our ruling in Kilosbayan,
Inc. v. COMELEC,13 no matter how believable a story
may be, no matter how possible it could really have been
that the FIDE and Campomanes were financial conduits
for criminal elements, criminal charges cannot ever be
sanctioned by mere possibilities or coffee shop rumors.
Campomanes should be acquitted because neither the
Sandiganbayan nor the OSP was able to show any law or
regulation requiring Campomanes to render an
accounting to the COA.
Section 2(1)(d) of Article IX-D of the 1987 Constitution
must be read in conjunction with Article 222 of the
Revised Penal Code. Section 2(1)(d) of Article IX-D of
the 1987 Constitution states that:
The Commission on Audit shall have the power,
authority, and duty to examine, audit, and settle
all accounts pertaining to the revenue and
receipts of, and expenditures or uses of funds
and property, owned or held in trust by, or
pertaining to, the Government, or any of its
subdivisions, agencies, or instrumentalities,
including government-owned and controlled
corporations with original charters, and on a
post-audit basis: x x x
5|Page
 d) such non-governmental entities receiving
subsidy or equity, directly or indirectly, from or
through the government, which are required by
law or the granting institution to submit to
such audit as a condition of subsidy or equity. x
x x (Emphasis added)
The COA has the authority to demand an accounting
from the FIDE if there is a law which requires the PSC
to ask the FIDE to render an accounting, or if the PSC
expressly required the FIDE to render an accounting as a
condition for funding the Chess Olympiad and Congress.
Absent such law or contractual obligation, the COA does
not have the authority to audit the accounts of non-
governmental entities receiving subsidy or equity from
the government, like the FIDE. In the same manner, non-
governmental entities receiving subsidy or equity from
the government, like the FIDE, are not obliged to render
an accounting to the COA if no law or contract requires
them to do so.
In the present case, the absence of the conditions
contained in Section 2(1)(d) of Article IX-D of the 1987
Constitution prevents the creation of an obligation on the
FIDE’s part to render an accounting to the PSC or the
COA. Consequently, Campomanes, as representative of
the FIDE which has no legal obligation to render an
accounting, cannot be liable under Article 222 of the
Revised Penal Code.
to criminal liability on the part of the FIDE’s officers
under Article 222 of the Revised Penal Code which
admittedly requires that there must be a "law or
regulation" requiring the rendering of accounts by
private individuals.
We acquit Campomanes because of the failure of the
prosecution to prove all the elements of Article 218, in
relation to Article 222, of the Revised Penal Code.
Because of this failure, we deem it unnecessary to rule
on the other issues raised by both parties.
WHEREFORE, we GRANT the petition. We SET
ASIDE the Decision promulgated on 31 January 2003
and the Resolution promulgated on 6 February 2004 of
the Sandiganbayan. We ACQUIT Florencio B.
Campomanes of the crime of failure to render accounts
as defined in Article 218, in relation to Article 222, of
the Revised Penal Code.
SO ORDERED.

The laws cited by the OSP do not sufficiently show that

Campomanes is legally required to render accounts to
the COA. Neither the "prosecution’s evidence" nor the
Audit Report is the "law or regulation" contemplated by
the Revised Penal Code. Moreover, it is error for the
OSP to submit that Section 102 of Presidential Decree
No. 1445 ("PD 1445") is the law mandating the FIDE or
its officers to render an accounting. Section 102 of PD
1445, read together with other Sections in Chapter 5 of
PD 1445, clearly refers to "official(s) or employee(s)"
who are "accountable officers" of "any government
agency,"14 and not to "non-governmental entities
receiving subsidy or equity, directly or indirectly, from
or through the Government x x x." When it comes to
subsidy or equity extended by the government to a "non-
governmental entity," the legal obligation on the part of
the non-governmental entity to account for, and the
power of the COA to audit, such subsidy or equity arises
only if "the law or the granting institution" requires
such audit as a condition for the subsidy or equity.

As gleaned from the parties’ stipulation of facts, the PSC

and the FIDE entered here into a contract requiring the
PSC to provide the FIDE the funds for the latter to
organize the Chess Olympiad and Congress in Manila.
The PSC delivered the funds to the FIDE, which
apparently successfully organized the Chess Olympiad
and Congress since the PSC does not claim that the
FIDE failed to organize the two events. In short, the
FIDE complied with its undertaking under the
contract. There is no claim by the PSC or the COA that
the FIDE, a foreign non-governmental entity, is
obligated under the contract to render an accounting.
There is also no showing that the PSC’s charter or any
law or regulation requires the FIDE to render an
accounting to the PSC or the COA as a condition for the
receipt of funds. Clearly, this situation cannot give rise
6|Page

A.M. No. RTJ-00-1524 January 26, 2000
formerly A.M. OCA IPI No. 97-420-RTJ
LUCIA F. LAYOLA, complainant,
vs.
JUDGE BASILIO R. GABO, JR., respondent.
PURISIMA, J.:
At bar is an administrative case initiated by the sworn
affidavit-complaint1 of Lucia F. Layola, dated 12
August 1997, charging Presiding Judge Basilio R. Gabo,
Jr. of Branch 11 of the Regional Trial Court in Malolos,
Bulacan, with a violation of Section 3 (e), R.A. 3019,2
for issuing an unjust interlocutory order, and with gross
ignorance of the law. Complainant sent said affidavit-
complaint to Deputy Ombudsman for the Military,
BGen. Manuel B. Casaclang (Ret.), of the Office of the
Ombudsman who, in turn, indorsed the same affidavit-
complaint to the Office of the Court Administrator
(OCA) for appropriate action.
As culled by the OCA,3 the facts that matter are as
follows:
On June 4, 1996, herein complainant Lucia F.
Layola filed a complaint with the Office of the
Deputy of the Ombudsman for the Military,
charging SPO2 Leopoldo M. German and PO2
Tomasito H. Gagui, members of the Santa Maria
Police Station, Santa Maria, Bulacan, with
homicide for the death of complainant's son.
On January 24, 1997, a resolution was handed
down by the Ombudsman Investigator
recommending the indictment for murder of
SPO2 German and PO2 Gagui. The
corresponding information for murder was
drafted and thereafter, the case was indorsed to
the Provincial Prosecutor of Bulacan for filing
with the appropriate court. The case was
docketed as Criminal Case No. 209-M-97 and
raffled to the sala of respondent Judge Basilio R.
Gabo, [sic] RTC, Branch 11, Malolos, Bulacan.
Sometime in March, 1997, a petition to take
custody of accused SPO2 Leopoldo M. German
was filed by the Chief of Police of the Sta. Maria
Police Station based on the following grounds:
1. that pursuant to the provisions of
Presidential Decree 971, Presidential
Decree 1184 and Executive Order No.
106, police personnel who are charged
of any crime before any court of justice
may be placed under the custody of his
immediate superior officers upon
request, [who shall] be responsible for
the appearance of [such] police officer .
. . during trials and when needed by the
court; and
2. that the . . . case is service connected
and within the ambit of the above
provisions of P.D. 971, 1184 and E.O.
No. 106, because the offense imputed
against [the accused] stemmed from the
death of Pablo Loyola [sic], a violator of
the law, who was then inside the cell of
the Municipal Jail of Sta. Maria,
Bulacan.
Respondent Judge, relying on the
provisions of law cited in the petition for
custody, resolved to grant the petition
through an order dated April 7, 1997.
A motion for reconsideration of the
above-mentioned order was filed by the
Office of the Deputy Ombudsman for
the Military, bringing to respondent's
attention the applicable and relevant
laws. However, the said motion for
reconsideration was denied in an order
dated June 25, 1997.
To repeat; respondent Judge Basilio R. Gabo, Jr. stands
charged with a violation of Section 3 (e), R.A. 3019, for
issuing an unjust interlocutory order, and with gross
ignorance of the law. According to the complainant the
respondent judge directed that accused SPO2 German be
held in the custody of his immediate superior, the Chief
of Police of Sta. Maria, Bulacan, an order sans any legal
and factual basis, instead of ordering the arrest of the
said accused being indicted for murder, a heinous and
non-bailable crime. Thereafter, respondent judge denied
the motion for reconsideration interposed by the Office
of the Deputy Ombudsman for the Military.
Asked to comment by the Court Administrator in the
latter's first indorsement, dated October 27, 1997, the
respondent judge, tried to justify his action; pointing out
that:
1. The questioned order dated April 7, 1997 was
issued in the light of the Comment of the
Assistant Provincial Prosecutor, to whose office
the prosecution of the case was indorsed by the
Office of the Deputy Ombudsman for the
Military. Said Comment by the prosecutor
interposes no objection to the release of the
accused to the custody of the petitioner Chief of
Police, on the ground that from the records of
the case, accused's "indictment was based on
circumstantial evidence", hence, not so strong as
to deprive the accused of his right to bail.
2. The motion for reconsideration of the above-
mentioned order filed by the Deputy
Ombudsman for the Military "did not raise
strong arguments on why the order should be
modified," hence, the denial of said motion.
3. The disputed order is now the subject of a
petition for certiorari in the Court of Appeals
7|Page
 initiated by the Office of the Deputy
Ombudsman for the Military.
The OCA found the charges of violating Section 3 (e),
R.A. 3019 and of issuing an unjust interlocutory order,
barren of merit but respondent judge was adjudged
guilty of gross ignorance of the law.
As regards the charge of violating Section 3 (e) of the
Anti-Graft and Corrupt Practices Act, the OCA stressed
that the important element of the offense, which is
damage or injury to the complainant, or manifest
partiality shown to any party, is anemic of evidentiary
support. There is no allegation of any injury suffered by
the complainant as a result of the conduct or actuation of
the respondent judge, nor was there any showing of
undue benefit or advantage given to the adverse party
under the orders complained of.
With respect to the alleged rendering of an unjust
interlocutory order, in connection with the denial by
respondent judge of the motion for reconsideration of the
order granting the petition of the Chief of Police, Sta.
Maria Station to take custody of accused SPO2 German,
the OCA found such a charge to be unfounded.
Knowingly rendering an unjust interlocutory order must
have the elements: 1) that the offender is a judge; 2) that
he performs any of the following acts: a) he knowingly
renders unjust interlocutory order or decree; or b) he
renders a manifestly unjust interlocutory order or decree
through inexcusable negligence or ignorance.4
The OCA perceived no evidence that the respondent
judge issued the questioned order knowing it to be
unjust; and neither is there any proof of conscious and
deliberate intent to do an injustice.
As to the propriety of the act of respondent judge in
releasing accused SPO2 German to the custody of the
immediate superior instead of ordering the arrest of said
accused, the OCA found respondent judge liable for
gross ignorance of the law for failing to conduct a
summary proceeding to determine whether or not the
evidence of guilt against subject accused was strong,
considering that the charge of murder is a non-bailable
offense.
Thus, the OCA recommended:
1. That Judge Basilio R. Gabo, Jr., RTC, Branch
11, Malolos, Bulacan be FINED P20,000 for
granting bail in a capital offense without a
hearing, with a stern warning that a repetition of
the same or similar act in the future will be dealt
with more severely;
2. That the charges of violation of Section 3(e)
of R.A. 3019 (Anti-Graft and Corrupt Practices
Act) and issuance of an unjust interlocutory
order be DISMISSED for lack of merit.
The aforestated recommendation of OCA is sustainable.
It is a settled doctrine that for a judge to be held liable
for knowingly rendering an unjust judgment, it must be
established beyond cavil that the judgment adverted to is
unjust, contrary to law or unsupported by the evidence,
and that the same was rendered with conscious and
deliberate intent to do an injustice.5 In other words, the
quantum of proof required to hold respondent judge
guilty for alleged violations of Section 3 (e) of R.A.
3019 and Article 206 of the Revised Penal Code, is
proof beyond reasonable doubt.1âwphi1.nêt
Proof beyond reasonable doubt requires moral certainty.
If the inculpatory facts and circumstances are capable of
two or more explanations or interpretations, one of
which is consistent with the innocence of the accused
and the other consistent with his guilt, the evidence does
not fulfill or hurdle the test of moral certainty and does
not suffice to convict.6 Here, the allegations of the
complaint-affidavit are unsubstantiated. Respondent
judge cannot, of course, be pronounced guilty on the
basis of bare allegations. There has to be evidence on
which conviction can be anchored. The evidence must
truly be beyond reasonable doubt.
On the matter of gross ignorance of the law, records on
hand decisively warrant a finding against the respondent.
Section 7 of Rule 114 of the Rules of Court, provides:
No person charged with a capital offense, or an
offense punishable by reclusion perpetua or life
imprisonment, when evidence of guilt is strong,
shall be admitted to bail regardless of the stage
of the criminal prosecution.
Respondent judge was acting upon a case of murder
punishable by reclusion perpetua to death. Murder being
a capital offense, respondent judge should have been
mindful that bail cannot be allowed as a matter of right.
In the case of Baylon vs. Sison,7 it was succinctly held,
"Quintessentially, and as a matter of law, the discretion
of the court, in cases involving capital offenses may be
exercised only after there has been a hearing called to
ascertain the weight of the evidence against the accused.
Peremptorily, the discretion lies, not in determining
whether or not there will be a hearing, but in
appreciating and evaluating the weight of the evidence
of guilt against the accused. It follows that any order
issued in the absence of the requisite evidence is not a
product of sound judicial discretion but of whim and
caprice and outright arbitrariness.8
In the case of Cortes vs. Catral,9 the Court held:
. . . . Inasmuch as the determination of whether
or not the evidence of guilt against the accused
is strong is a matter of judicial discretion, it may
rightly be exercised only after the evidence is
submitted to the court at the hearing. Since the
discretion is directed to the weight of evidence
and since evidence cannot properly be weighed
if not duly exhibited or produced before the
court, it is obvious that a proper exercise of
judicial discretion requires that the evidence of
guilt be submitted to the court, . . .
The prosecution must first be accorded an opportunity to
present evidence because by the very nature of deciding
applications for bail, it is on the basis of such evidence
8|Page
that judicial discretion is exercised in determining
whether the evidence of guilt of the accused is strong. In
other words, discretion must be exercised regularly,
legally and within the confines of procedural due
process, that is, after evaluation of the evidence
submitted by the prosecution. Any order issued in the
absence thereof is not a product of sound judicial
discretion but of whim and caprice and outright
arbitrariness.10 Granting bail in non-bailable offenses
without hearing is gross ignorance of the law.11
That the prosecutor interposed no objection to the
release of the accused to the custody of the petitioner
Chief of Police, on the ground that from the records of
the case, accused's "indictment was based on
circumstantial evidence," did not and should not excuse
respondent judge from his judicial duty to conduct a
summary proceeding to determine the strength of
evidence against the accused, as to entitle him to post
bail. What is more, as the Information itself categorically
states that no bail is recommended for
accused,12 the respondent judge should have been
alerted to conduct a summary hearing.
Thus, the doctrine of res ipsa loquitor, i.e., that the
Court may impose its authority upon erring judges
whose actuations, on their face, would show gross
incompetence, ignorance of the law, or misconduct, is
obviously applicable in the instant case.13
WHEREFORE, the Court finds Judge Basilio R. Gabo
GUILTY of gross ignorance of the law and is hereby
ordered to pay a FINE of P20,000.00, with the stern
warning that a commission of similar acts in the future
will be dealt with more severely.
The charges of graft and corruption under Section 3 (e)
of R.A. 3019 and of issuing unjust interlocutory order
are DISMISSED for lack of merit and for insufficiency
of evidence.1âwphi1.nêt
SO ORDERED.
G.R. No. 137354 July 6, 2000
SALVADOR M. DE VERA, petitioner,
vs.
HON. BENJAMIN V. PELAYO, Presiding Judge,
Branch 168, Regional Trial Court, Pasig City; and
EVALUATION AND INVESTIGATION BUREAU,
OFFICE OF THE OMBUDSMAN, respondents.
DECISION
PARDO, J.:
"It is said that a little learning is a dangerous thing; and
he who acts as his own lawyer has a fool for a client."
In Re: Joaquin Borromeo
241 SCRA 408 (1995)
The case is a petition for certiorari and mandamus1
assailing the Evaluation Report of the Evaluation and
Investigation Office, Office of the Ombudsman, dated
October 2, 1998 referring petitioner’s complaint to the
Supreme Court and its Memorandum, dated January 4,
1999,2 denying petitioner’s motion for reconsideration.
We state the relevant facts.
Petitioner is not a member of the bar. Possessing some
awareness of legal principles and procedures, he
represents himself in this petition.
On August 28, 1996, petitioner instituted with the
Regional Trial Court, Pasig City a special civil action for
certiorari, prohibition and mandamus to enjoin the
municipal trial court from proceeding with a complaint
for ejectment against petitioner.3 When the Judge
originally assigned to the case inhibited himself, the case
was re-raffled to respondent Judge Benjamin V.
Pelayo.4
On July 9, 1998, the trial court denied petitioner’s
application for a temporary restraining order. Petitioner
moved for reconsideration. The court denied the same on
September 1, 1998.5
On September 23, 1998, petitioner filed with the Office
of the Ombudsman an affidavit-complaint6 against
Judge Pelayo, accusing him of violating Articles 2067
and 2078 of the Revised Penal Code and Republic Act
No. 3019.9
On October 2, 1998, Associate Graft Investigation
Officer, Erlinda S. Rojas submitted an Evaluation Report
recommending referral of petitioners’ complaint to the
9|Page
Supreme Court. Assistant Ombudsman Abelardo L. Likewise, the determination of whether a judge has
Apotadera approved the recommendation.10 We quote maliciously delayed the disposition of the case is also an
the decretal portion of the report:11 exclusive judicial function.21

"FOREGOING CONSIDERED, and in accordance with
the ruling in Maceda vs. Vasquez, 221 SCRA 464, it is
respectfully recommended that the instant complaint be
referred to the Supreme Court for appropriate action.
The same is hereby considered CLOSED and
TERMINATED insofar as this Office is concerned."
On October 13, 1998, the Office of the Ombudsman
referred the case to the Court Administrator, Supreme
Court.12
On November 6, 1998, petitioner moved for the
reconsideration of the Evaluation Report.
On January 4, 1999, the Ombudsman denied the motion
for reconsideration.13
Hence, this petition.14
The issue is whether or not the Ombudsman has
jurisdiction to entertain criminal charges filed against a
judge of the regional trial court in connection with his
handling of cases before the court.
Petitioner criticizes the jurisprudence15 cited by the
Office of the Ombudsman as erroneous and not
applicable to his complaint. He insists that since his
complaint involved a criminal charge against a judge, it
was within the authority of the Ombudsman not the
Supreme Court to resolve whether a crime was
committed and the judge prosecuted therefor.
"To repeat, no other entity or official of the Government,
not the prosecution or investigation service of any other
branch, not any functionary thereof, has competence to
review a judicial order or decision -- whether final and
executory or not -- and pronounce it erroneous so as to
lay the basis for a criminal or administrative complaint
for rendering an unjust judgment or order. That
prerogative belongs to the courts alone (underscoring
ours)."22
This having been said, we find that the Ombudsman
acted in accordance with law and jurisprudence when he
referred the cases against Judge Pelayo to the Supreme
Court for appropriate action.
WHEREFORE, there being no grave abuse of
discretion amounting to lack or excess of jurisdiction
committed by the respondent, we DISMISS the petition
and AFFIRM the Evaluation Report of the Evaluation
and Investigation Office, Office of the Ombudsman
dated October 2, 1998 and its memorandum, dated
January 4, 1999, in toto.
No costs.
SO ORDERED.

The petition can not succeed.

We find no grave abuse of discretion committed by the

Ombudsman. The Ombudsman did not exercise his
power in an arbitrary or despotic manner by reason of
passion, prejudice or personal hostility.16 There was no
evasion of positive duty. Neither was there a virtual
refusal to perform the duty enjoined by law.17

We agree with the Solicitor General that the

Ombudsman committed no grave abuse of discretion
warranting the writs prayed for.18 The issues have been
settled in the case of In Re: Joaquin Borromeo.19 There,
we laid down the rule that before a civil or criminal
action against a judge for a violation of Art. 204 and 205
(knowingly rendering an unjust judgment or order) can
be entertained, there must first be "a final and
authoritative judicial declaration" that the decision or
order in question is indeed "unjust." The pronouncement
may result from either:20

(a).....an action of certiorari or prohibition in a

higher court impugning the validity of the
judgment; or

(b).....an administrative proceeding in the

Supreme Court against the judge precisely for
promulgating an unjust judgment or order.

10 | P a g e

G.R. NO. 150129 April 6, 2005
NORMA A. ABDULLA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
Convicted by the Sandiganbayan1 in its Crim. Case No.
23261 of the crime of illegal use of public funds defined
and penalized under Article 220 of the Revised Penal
Code, or more commonly known as technical
malversation, appellant Norma A. Abdulla is now
before this Court on petition for review under Rule 45.
Along with Nenita Aguil and Mahmud Darkis, appellant
was charged under an Information which pertinently
reads:
That on or about November, 1989 or sometime prior or
subsequent thereto, in Jolo, Sulu, Philippines and within
the jurisdiction of this Honorable Court, the above-
named accused: NORMA A. ABDULLA and NENITA
P. AGUIL, both public officers, being then the President
and cashier, respectively, of the Sulu State College, and
as such by reason of their positions and duties are
accountable for public funds under their administration,
while in the performance of their functions, conspiring
and confederating with MAHMUD I. DARKIS, also a
public officer, being then the Administrative Officer V
of the said school, did then and there willfully,
unlawfully and feloniously, without lawful authority,
apply for the payment of wages of casuals, the amount
of FORTY THOUSAND PESOS (P40,000.00),
Philippine Currency, which amount was appropriated for
the payment of the salary differentials of secondary
school teachers of the said school, to the damage and
prejudice of public service.
CONTRARY TO LAW.
Appellant’s co-accused, Nenita Aguil and Mahmud
Darkis, were both acquitted. Only appellant was found
guilty and sentenced by the Sandiganbayan in its
decision2 dated August 25, 2000 (promulgated on
September 27,2000), as follows:
WHEREFORE, premises considered, accused Mahmud
Darkis and Nenita P. Aguil are hereby acquitted of the
crime charged. The cash bond posted by each of the said
accused for their provisional liberty are hereby ordered
returned to each of them subject to the usual auditing
and accounting procedures.
Accused Norma Abdulla is hereby convicted of the
crime charged and is hereby meted a fine of three
thousand pesos, pursuant to the second paragraph of
Article 220 of the Revised Penal Code. She is further
imposed the penalty of temporary special
disqualification for a period of six (6) years. She shall
also pay the costs of the suit.
SO ORDERED.
Upon motion for reconsideration, the Sandiganbayan
amended appellant’s sentence by deleting the temporary
special disqualification imposed upon her, thus:
Premises considered, the decision of this Court dated
August 25, 2000, is hereby amended to the effect that the
penalty of temporary special disqualification for six (6)
years is hereby cancelled and set aside. Hence, the last
paragraph of said decision shall read as follows:
Accused Abdulla is hereby convicted of the crime
charged and is hereby meted a fine of three thousand
pesos, pursuant to the second paragraph of Article 220 of
the Revised Penal Code. She shall also pay the costs of
the suit.
SO ORDERED.3
Still dissatisfied, appellant, now before this Court,
persistently pleas innocence of the crime charged.
The record shows that the prosecution dispensed with
the presentation of testimonial evidence and instead
opted to mark in evidence the following exhibits:
EXHIBITS DESCRIPTION
"A" Audit Report which is denominated
as Memorandum of Commission on
Audit, Region IX, Zamboanga City,
from the Office of the Special Audit
Team, COA, dated May 8, 1992,
consisting of nine (9) pages;
"B" Certified Xerox copy of a letter
from the Department of Budget and
Management through Secretary
Guillermo N. Carague to the
President of the Sulu State College
dated October 30, 1989;
"C" Certified copy of the DBM Advice
of Allotment for the Year 1989;
"C-1" The entry appearing in Exhibit "C"
which reads: "Purpose – release
partial funding for the conversion of
34 Secondary School Teacher
11 | P a g e
 positions to Instructor I items; Fund
Source – lump-sum appropriation
authorized on page 370 of RA 6688
and the current savings under
personal services;"
"D" Manifestation filed by accused
Norma Abdulla herself dated
November 24, 1997 consisting of
two (2) pages appearing on pages
225 to 226 of the record;
"E" Motion filed by the accused through
Atty. Sandra Gopez dated February
9, 1998 found on pages 382-a and
382-b of the records of this case;
and
"F" Prosecution’s Opposition to the
motion marked as Exhibit "E" dated
February 11, 1998, consisting of
three (3) pages, appearing in pages
383 to 385 of the record.4
Thereafter, the prosecution immediately made its Formal
Offer of Evidence, and, with the admission thereof by
the court, rested its case.
The defense proceeded to adduce its evidence by
presenting four (4) witnesses, namely, accused Mahmud
Darkis, who was the Administrative Officer of Sulu
State College, Jolo, Sulu; accused Nenita Aguil, the
Cashier of the same College; appellant Norma Abdulla
herself, who was the College President; and Gerardo
Concepcion, Jr., Director IV and Head of the
Department of Budget and Management, Regional
Office No. 9, Zamboanga City.
The undisputed facts, as found by the Sandiganbayan
itself:
The evidence on record xxx show that the request for the
conversion of thirty-four (34) secondary school teachers
to Instructor I items of the Sulu State College, through
its former president, accused Abdulla, was approved by
the Department of Budget and Management (DBM); that
consequent to the approval of the said request, was the
allotment by the DBM of the partial funding for the
purpose of paying the salary differentials of the said
thirty-four (34) secondary school teachers in the amount
of forty thousand pesos (P40,000.00) sourced from the
"lump sum appropriation authorized on page 370 of R.A.
6688 [should be page 396 of RA 6688 (General
Appropriations Act January 1 – December 31, 1989)]
and the current savings under personal services of said
school (Exhibits `B,’ `C’ and `C-1;’ Exhibit `18,’ pp. 32-
35; tsn, hearing of September 22, 1998, pp. 6 to 25 and
26); that out of the thirty-four (34) secondary school
teachers, only the six (6) teachers were entitled and paid
salary differentials amounting to P8,370.00, as the
twenty-eight (28) teachers, who were occupying Teacher
III positions, were no longer entitled to salary
differentials as they were already receiving the same
salary rate as Instructor I (Exhibit `A,’ p. 4, par. 1;
Exhibits `1’ to `6,’ inclusive; Exhibit `14-A;’ tsn,
hearing of September 22, 1998, pp. 6 to 8; tsn, hearing
of September 23, 1998, pp. 10-11); and that the amount
of P31,516.16, taken from the remaining balance of the
P40,000.00 allotment, was used to pay the terminal leave
benefits of the six (6) casuals (Exhibits `D’ and `E;’
Exhibits `7’ to `12,’ inclusive; tsn, hearing of September
22, 1998, pp. 13 and 34; tsn, hearing of September 23,
1998, p. 13).
Accused Abdulla was able to sufficiently justify the
payment of the salary differentials of only six (6), out of
the thirty-four (34) teachers, when she testified that out
of the thirty-four (34) teachers, twenty-eight (28) were
already holding the position of Secondary School
Teacher III receiving the salary of Instructor I; and that
the remaining six (6) were still holding Secondary
Teacher II positions and therefore receiving a salary
lower than that of Instructor I so they were paid salary
differentials (tsn, hearing of September 23, 1998, pp. 8,
10 and 11). In fact, the notarized audit investigation
report (Exhibit `A,’ p. 4, 1st par.) and the Joint
Resolution of the Office of the Ombudsman, Mindanao
(Exhibit `14-a’), also point that said act of the accused is
justified.
In this recourse, appellant questions the judgment of
conviction rendered against her, claiming that the
Sandiganbayan erred:
"I
XXX ON A QUESTION OF LAW IN INVOKING THE
PRESUMPTION OF UNLAWFUL INTENT DESPITE
EVIDENCE TO THE CONTRARY.
II
XXX ON A QUESTION OF LAW IN HOLDING
THAT THE PROSECUTION WAS ABLE TO PROVE
THAT PETITIONER COMMITTED TECHNICAL
MALVERSATION UNDER ARTICLE 220 OF THE
REVISED PENAL CODE".
The Court grants the appeal.
So precious to her is the constitutional right of
presumption of innocence unless proven otherwise that
appellant came all the way to this Court despite the fact
that the sentence imposed upon her by the
Sandiganbayan was merely a fine of three thousand
pesos, with no imprisonment at all. And recognizing the
primacy of the right, this Court, where doubt exists, has
invariably resolved it in favor of an accused.
In a judgment of acquittal in favor of two (2) accused
charged of murder in People vs. Abujan,5 the Court
wrote:
We are enraged by the shocking death suffered by the
victim and we commiserate with her family. But with
seeds of doubt planted in our minds by unexplained
circumstances in this case, we are unable to accept the
lower court’s conclusion to convict appellants. We
cannot in conscience accept the prosecution’s evidence
here as sufficient proof required to convict appellants of
murder. Hence, here we must reckon with a dictum of
12 | P a g e
the law, in dubilis reus est absolvendus. All doubts must
be resolved in favor of the accused. Nowhere is this rule
more compelling than in a case involving the death
penalty for a truly humanitarian Court would rather set
ten guilty men free than send one innocent man to the
death row. Perforce, we must declare both appellants not
guilty and set them free.
Similarly, the Court had to acquit an accused charged of
rape in People vs. De Jesus6 on ground of reasonable
doubt, to wit:
With seeds of doubt planted in our minds by the conduct
of proceedings on record, we are unable to accept the
lower court’s conclusion to convict appellant. His
conviction is founded on the sole testimony of Agnes,
but though a credible witness despite her mental
retardation, she showed unnecessary dependence on her
mother when identifying the father of her child. Maternal
coaching taints her testimony. That her mother had to be
ordered by the judge to go outside the courtroom
impresses us as significant. We are unable to accept as
sufficient the quantum of proof required to convict
appellant of rape based on the alleged victim’s sole
testimony. Hence, here we must fall back on a truism of
the law, in dubilis reus est absolvendus. All doubts must
be resolved in favor of the accused.
WHEREFORE, the assailed decision dated May 26,
2000, of the Regional Trial Court of Camiling, Tarlac,
Branch 68, is REVERSED and SET ASIDE. Appellant
RUBEN LUMIBAO is ACQUITTED of the charge of
rape on reasonable doubt.
The Court’s faithful adherence to the constitutional
directive imposes upon it the imperative of closely
scrutinizing the prosecution’s evidence to assure itself
that no innocent person is condemned and that
conviction flows only from a moral certainty that guilt
has been established by proof beyond reasonable doubt.
In the words of People vs. Pascua7 :
Our findings in the case at bar should not create the
mistaken impression that the testimonies of the
prosecution witnesses should always be looked at with
askance. What we are driving at is that every accused is
presumed innocent at the onset of an indictment. But, it
has often happened that at the commencement of a trial,
people’s minds, sometimes judges too, would have
already passed sentence against the accused. An
allegation, or even any testimony, that an act was done
should never be hastily accepted as proof that it was
really done. Proof must be closely examined under the
lens of a judicial microscope and only proof beyond
reasonable doubt must be allowed to convict. Here, that
quantum of proof has not been satisfied.
We shall now assay appellant’s guilt or innocence in the
light of the foregoing crucibles.
In her first assigned error, appellant contends that the
prosecution failed to adduce evidence to prove criminal
intent on her part. When she raised this issue in her
Motion for Reconsideration before the Sandiganbayan,
that court, invoking Section 5 (b), Rule 131 of the Rules
of Court, ruled in a Resolution8 promulgated on
September 17, 2001, as follows:
Anent the allegation of the movant/accused that good
faith is a valid defense in a prosecution for malversation
as it would negate criminal intent on the part of the
accused which the prosecution failed to prove, attention
is invited to pertinent law and rulings of the Supreme
Court on the matter.
Sec. 5(b) of the Rule 131, Rules of Court, provides,
`That an unlawful act was done with an unlawful intent.’
Hence, dolo may be inferred from the unlawful act. In
several cases (Tria, 17 Phil. 303; Ballesteros, 25 Phil.
634; Sia Tioan, 54 Phil. 52; Cueto, 38 Phil. 935; Cubelo,
106 Phil. 496), the Supreme Court ruled that `When it
has been proven that the appellants committed the
unlawful acts alleged, it is properly presumed that they
were committed with full knowledge and with criminal
intent, `and it is incumbent upon them to rebut such
presumption.’ Further, the same court also ruled that
when the law plainly forbids an act to be done, and it is
done by a person, the law implies the guilty intent,
although the offender was honestly mistaken as to the
meaning of the law which he had violated (State vs.
McBrayer, 98 NIC 619; Sing Cong Bieng and Co Kong,
30 Phil. 577, 580; Hermenigildo Bautista, CA 40 O.G.
5th Supp. 139). If the act is criminal, then criminal intent
is presumed (Francisco y Martin, CA 53 O.G. 1450).
In the case at bar, inasmuch as the prosecution had
proved that a criminal act was committed by the accused
under Article 220 of the Revised Penal Code, criminal
intent was presumed. The accused did not present any
evidence to prove that no such criminal intent was
present when she committed the unlawful act of
technical malversation. Hence, the presumption that the
unlawful act of the accused was done with criminal
intent had been satisfactorily proven by the prosecution
(Sec. 5[b], Rule 131).
The Court must have to part ways with the
Sandiganbayan in its reliance on Section 5 (b) of Rule
131 as basis for its imputation of criminal intent upon
appellant.
For sure, the procedural rule relied upon does not apply
at all to this case. Indeed, clear it is from its very
language that the disputable presumption of the
existence of unlawful or criminal intent presupposes the
commission of an unlawful act. Thus, intent to kill is
presumed when the victim dies because the act of killing
clearly constitutes an unlawful act. In People vs.
Gemoya,9 the Court held:
The intent to kill is likewise presumed from the fact of
death, unless the accused proves by convincing evidence
that any of the justifying circumstances in Article 11 or
any of the exempting circumstances in Article 12, both
of the Revised Penal Code, is present.
In fact, in a Resolution penned by Justice Romeo
Callejo, Sr. in People vs. Delim, 10 the Court en banc
categorically stated:
13 | P a g e
If the victim dies because of a deliberate act of the
malefactor, intent to kill is conclusively presumed.
(Emphasis supplied).
Similarly, intent to gain or animus lucrandi is presumed
when one is found in possession of stolen goods
precisely because the taking of another’s property is an
unlawful act. So it is that in People vs. Reyes,11 the
Court held:
Accused-appellant’s contention that the animus lucrandi
was not sufficiently established by the prosecution is
devoid of merit. Animus lucrandi or intent to gain is an
internal act which can be established through the overt
acts of the offender. Although proof of motive for the
crime is essential when the evidence of the robbery is
circumstantial, intent to gain or animus lucrandi may be
presumed from the furtive taking of useful property
pertaining to another, unless special circumstances
reveal a different intent on the part of the perpetrator.
The intent to gain may be presumed from the proven
unlawful taking. In the case at bar, the act of taking the
victim’s wristwatch by one of the accused Cergontes
while accused-appellant Reyes poked a knife behind him
sufficiently gave rise to the presumption.
The presumption of criminal intent will not, however,
automatically apply to all charges of technical
malversation because disbursement of public funds for
public use is per se not an unlawful act. Here, appellant
cannot be said to have committed an unlawful act when
she paid the obligation of the Sulu State College to its
employees in the form of terminal leave benefits such
employees were entitled to under existing civil service
laws. Thus, in a similar case,12 the Court reversed a
conviction for technical malversation of one who paid
out the wages of laborers:
There is no dispute that the money was spent for a public
purpose – payment of the wages of laborers working on
various projects in the municipality. It is pertinent to
note the high priority which laborers’ wages enjoy as
claims against the employers’ funds and resources.
In the absence of any presumption of unlawful intent, the
burden of proving by competent evidence that
appellant’s act of paying the terminal leave benefits of
employees of the Sulu State College was done with
criminal intent rests upon the prosecution.
The Court notes the odd procedure which the
prosecution took in discharging its undertaking to prove
the guilt of appellant beyond reasonable doubt. As it is,
the prosecution did not present any single witness at all,
not even for the purpose of identifying and proving the
authenticity of the documentary evidence on which it
rested its case. The prosecution definitely failed to prove
unlawful intent on the part of appellant.
Settled is the rule that conviction should rest on the
strength of evidence of the prosecution and not on the
weakness of the defense. The weakness of the defense
does not relieve it of this responsibility. And when the
prosecution fails to discharge its burden of establishing
the guilt of an accused, an accused need not even offer
evidence in his behalf. A judgment of conviction must
rest on nothing less than moral certainty. It is thus
required that every circumstance favoring his innocence
must be duly taken into account. The proof against him
must survive the test of reason and the strongest
suspicion must not be permitted to sway judgment.
There must be moral certainty in an unprejudiced mind
that it was accused-appellant who committed the crime.
Absent this required quantum of evidence would mean
exoneration for accused-appellant.13
The Sandiganbayan’s improper reliance on Sec. 5(b) of
Rule 131 does not save the day for the prosecution’s
deficiency in proving the existence of criminal intent nor
could it ever tilt the scale from the constitutional
presumption of innocence to that of guilt. In the absence
of criminal intent, this Court has no basis to affirm
appellant’s conviction.
x x x. This calls to mind the oft-repeated maxim `Actus
non facit reum, nisi mens sit rea,’ which expounds a
basic principle in criminal law that a crime is not
committed if the mind of the person performing the act
complained of be innocent. Thus, to constitute a crime,
the act must, except in certain crimes made such by
statute, be accompanied by a criminal intent. It is true
that a presumption of criminal intent may arise from
proof of the commission of a criminal act; and the
general rule is that if it is proved that the accused
committed the criminal act charged, it will be presumed
that the act was done with criminal intention and that it
is for the accused to rebut this presumption. But it must
be borne in mind that the act from which such
presumption springs must be a criminal act In the case at
bar, the act is not criminal. Neither can it be categorized
as malum prohibitum, the mere commission of which
makes the doer criminally liable even if he acted without
evil intent.14
The second assigned error refers to the failure of the
prosecution to prove the existence of all the essential
elements of the crime of technical malversation defined
in Article 220 of the Revised Penal Code, which are:
"1. That the offender is a public officer;
"2. That there is public fund or property under his
administration;
"3. That such public fund or property has been
appropriated by law or ordinance;
"4. That he applies the same to a public use other than
that for which such fund or property has been
appropriated by law or ordinance."15
Appellant contends that the prosecution was unable to
prove the second and third elements of the crime
charged. 16 She argued that the public funds in question,
having been established to form part of savings, had
therefore ceased to be appropriated by law or ordinance
for any specific purpose.
The Court finds merit in appellant’s submission.
As found by the Sandiganbayan no less, the amount of
forty thousand pesos (P40,000.00) originally intended to
14 | P a g e
cover the salary differentials of thirty four (34) 1. Acquisition ---------------- ---------------- 8,612,00 8,612,0
secondary school teachers whose employment status and -- - 0 00
were converted to Instructor I, were sourced from the Improvements
"lump sum appropriation" authorized on page 370 of Lands, ----------- ----------
(should be page 396) of R.A. 6688 and the current Construction, ------- -------
Rehabilitation
savings under personal services of said school.17
or Renovation
of Buildings
The pertinent portions of RA 6688 are reproduced and Structures,
hereunder: and Acquisition
of Equipment
"K.2 Sulu State College Total New P 6,873,000 P 2,509,000 P P17,994
Appropriations, 8,612,00 .000
Sulu State ========== ========== 0
For general administration, administration of personnel
College ======
benefits, salary standardization, higher education and
secondary education services, including locally-funded ====== ====
====
project as indicated
hereunder……………………………………………… New Appropriations, by Object of Expenditures
…..…P 17,994,000
(In Thousand Pesos)
New Appropriations, by Function/Project A. Functions/Locally-Funded Project
Current Operating Expenditures
Current Operating Personal Services
Total Salaries of Permanent 4,148
Expenditures Personnel
Total Salaries and Wages of 146
----------------------------------- Contractual and Emergency
Personnel
Personal Maintenance Capital Total Total Salaries and Wages 4,294
Services and Other Outlays Other Compensation
Operating ---------- Honoraria and Commutable 185
---------------- Expenses ----------- --------- Allowances
---- --------
Cost of Living Allowances 1,292
----------------
--- Employees Compensation 44
Insurance Premiums
A. Functions Pag-I.B.I.G. Contributions 35
Medicare Premiums 18
1. General P 1,605,000 P 1,196,000 P P Merit Increases 20
Administration 2,801,0 Salary Standardization 37
and Support 00
Bonuses and Incentives 511
Services
Others 437
2. 608,000 608,000
Administration Total Other Compensation 2,579
of Personnel O1 Total Personal Services 6,873
Benefits

3. Salary 57,000 57,000 The Court notes that there is no particular appropriation
Standardization
for salary differentials of secondary school teachers of the
Sulu State College in RA 6688. The third element of the
4. Higher 1,967,000 577,000 2,544,0 crime of technical malversation which requires that the
Education 00
public fund used should have been appropriated by law,
Services
is therefore absent. The authorization given by the
Department of Budget and Management for the use of the
5. Secondary 2,636,000 736,000 3,372,0
Education 00
forty thousand pesos (P40,000.00) allotment for payment
Services of salary differentials of 34 secondary school teachers is
---------------- ----------------
not an ordinance or law contemplated in Article 220 of
-- - ----------
------- the Revised Penal Code.
Total, 6,873,000 2,509,000 9,382,0
Functions 00 The Court has unequivocably ruled in Parungao vs.
---------------- ---------------- ---------- Sandiganbayan18 that in the absence of a law or
-- - ------- ordinance appropriating the public fund allegedly
technically malversed (in that case, the absence of any
B. Locally- law or ordinance appropriating the CRBI fund for the
Funded Project concreting of Barangay Jalung Road), the use thereof for
another public purpose (there, for the payment of wages

15 | P a g e
of laborers working on projects other than the Barangay
Jalung Road) will not make the accused guilty of
violation of Article 220 of the Revised Penal Code.
Appellant herein, who used the remainder of the forty
thousand pesos (P40,000.00) released by the DBM for
salary differentials, for the payment of the terminal leave
benefits of other school teachers of the Sulu State
College, cannot be held guilty of technical malversation
in the absence, as here, of any provision in RA 6688
specifically appropriating said amount for payment of
salary differentials only. In fine, the third and fourth
elements of the crime defined in Article 220 of the
Revised Penal Code are lacking in this case. Acquittal is
thus in order.
WHEREFORE, the petition is hereby GRANTED.
Accordingly, the appealed decision and resolution of the
Sandiganbayan in Criminal Case No. 23261 are
REVERSED and SET ASIDE and appellant
ACQUITTED of the crime charged against her. The
cash bond posted by appellant for her provisional liberty,
if any, is ordered returned to her subject to the usual
auditing and accounting procedures. SO ORDERED.
G.R. No. 156643 June 27, 2006
FRANCISCO SALVADOR B. ACEJAS III,
Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x--------------------------------x
G.R. No. 156891 June 27, 2006
VLADIMIR S. HERNANDEZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PANGANIBAN, CJ:
This Court defers to the Sandiganbayan’s evaluation of
the factual issues. Not having heard any cogent reasons
to justify an exception to this rule, the Court adopts the
anti-graft court’s findings. In any event, after
meticulously reviewing the records, we find no ground
to reverse the Sandiganbayan.
The Case
Before us are consolidated Petitions for Review1
assailing the March 8, 2002 Decision,2 and the January
33 and 14, 20034 Resolutions of the Sandiganbayan in
Criminal Case No. 20194. Francisco SB. Acejas III and
Vladimir S. Hernandez were found guilty beyond
reasonable doubt of direct bribery penalized under
Article 210 of the Revised Penal Code.
Vladimir S. Hernandez, Victor D. Conanan, SPO3
Expedito S. Perlas, Francisco SB. Acejas III and Jose P.
Victoriano were charged on February 8, 1994, in an
Information that reads thus:
"That on or about January 12, 1994, or sometime prior
thereto in the City of Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused VLADIMIR S. HERNANDEZ and VICTOR
CONANAN, being then employed both as Immigration
officers of the Bureau of Immigration and Deportation,
Intramuros, Manila, hence are public officers, taking
advantage of their official positions and committing the
offense in relation to office, conspiring and
confederating with Senior Police Officer 3 EXPEDITO
S. PERLAS of the Western Police District Command,
Manila, together with co-accused Atty. FRANCISCO
SB. ACEJAS III, of the LUCENARIO, MARGATE,
MOGPO, TIONGCO & ACEJAS LAW OFFICES, and
co-accused JOSE P. VICTORIANO, a private
individual, did then and there, willfully, unlawfully and
feloniously demand, ask, and/or extort One Million
(P1,000,000.00) PESOS from the spouses BETHEL
GRACE PELINGON and Japanese TAKAO AOYAGI
and FILOMENO PELINGON, JR., in exchange for the
return of the passport of said Japanese Takao Aoyagi
confiscated earlier by co-accused Vladimir S. Hernandez
and out of said demand, the complainants Bethel Grace
Pelingon, Takao Aoyagi and Filomeno Pelingon, Jr.
produced, gave and delivered the sum of Twenty Five
Thousand (P25,000.00) Pesos in marked money to the
above-named accused at a designated place at the Coffee
Shop, Ground Floor, Diamond Hotel, Ermita, Manila,
causing damage to the said complainants in the aforesaid
amount of P25,000.00, and to the prejudice of
government service."5
After trial, all the accused -- except Victoriano -- were
convicted. The challenged Decision disposed as follows:
"WHEREFORE, premises considered, accused Vladimir
S. Hernandez, Victor D. Conanan, Expedito S. Perlas
and Francisco SB. Acejas III are hereby found GUILTY
beyond reasonable doubt of the crime of Direct Bribery,
and are sentenced to suffer the indeterminate penalty of
four (4) years, nine (9) months and ten (10) days of
prision correccional, as minimum, to seven (7) years and
four (4) months of prision mayor, as maximum, and to
pay a fine of three million pesos (P3,000,000.00).
Accused Vladimir S. Hernandez and Victor D. Conanan
shall also suffer the penalty of special temporary
disqualification. Costs against the accused.
"On ground of reasonable doubt, accused Jose P.
Victoriano is hereby ACQUITTED of the crime charged.
The surety bond he posted for his provisional liberty is
cancelled. The Hold Departure Order against him
embodied in this Court’s Order dated July 24, 2000 is
recalled."6
The first Resolution acquitted Conanan and denied
reconsideration of the other accused. The second
Resolution denied Petitioner Acejas’ Motion for New
Trial.
Hence, petitioners now seek recourse in this Court.7
The Facts
The facts8 are narrated by the Sandiganbayan as follows:
16 | P a g e
"At around 4:00 to 5:00 p.m. of December 17, 1993,
accused Bureau of Immigration and Deportation (BID)
Intelligence Agent Vladimir Hernandez, together with a
reporter, went to the house of Takao Aoyagi and Bethel
Grace Pelingon-Aoyagi at 27 Pacific Drive, Grand Villa,
Sto. Niño, Parañaque, Metro Manila. His purpose was to
serve Mission Order No. 93-04-12 dated December 13,
1993, issued by BID Commissioner Zafiro Respicio
against Takao Aoyagi, a Japanese national. Hernandez
told Takao Aoyagi, through his wife, Bethel Grace, that
there were complaints against him in Japan and that he
was suspected to be a Yakuza big boss, a drug dependent
and an overstaying alien.
"To prove that he had done nothing wrong, Takao
Aoyagi showed his passport to Hernandez who issued an
undertaking (Exh. ‘B’) which Aoyagi signed. The
undertaking stated that Takao Aoyagi promised to
appear in an investigation at the BID on December 20,
1993, and that as a guarantee for his appearance, he was
entrusting his passport to Hernandez. Hernandez
acknowledged receipt of the passport.
"On December 18, 1993, Bethel Grace Aoyagi called
accused Expedito ‘Dick’ Perlas9 and informed him about
the taking of her husband’s passport by Hernandez.
Perlas told her he would refer their problem to his
brother-in-law, Atty. Danton Lucenario of the Lucenario,
Margate, Mogpo, Tiongco and Acejas III Law Firm. It
was at the Sheraton Hotel that Perlas introduced the
Aoyagis to Atty. Lucenario. They discussed the problem
and Atty. Lucenario told the Aoyagis not to appear
before the BID on December 20, 1993.
"As advised by Atty. Lucenario, Takao Aoyagi did not
appear before the BID. Instead, Atty. Rufino M. Margate
of the Lucenario Law Firm filed with the BID an Entry
of Appearance (Exh. ‘6’ – Acejas). Atty. Margate
requested for copies of any complaint-affidavit against
Takao Aoyagi and asked what the ground was for the
confiscation of x x x Aoyagi’s passport.
"Hernandez prepared a Progress Report (Exh. ‘5’ –
Hernandez) which was submitted to Ponciano M. Ortiz,
the Chief of Operations and Intelligence Division of the
BID. Ortiz recommended that Takao Aoyagi, who was
reportedly a Yakuza and a drug dependent, be placed
under custodial investigation.
"In the evening of December 22, 1993 at the Diamond
Hotel, the Aoyagis met accused Atty. Francisco Acejas
III who was then accompanied by Perlas. Atty. Acejas
informed them that it would be he who would handle
their case. A Contract for Legal Services (Exh. ‘D’)
dated December 22, 1993 was entered into by Takao
Aoyagi and Atty. Acejas, who represented the Lucenario
Law Firm.
"In the morning of December 23, 1993, Perlas and Atty.
Acejas accompanied the Aoyagis to the Domestic
Airport as the latter were going to Davao. It was here
that Takao Aoyagi paid Atty. Acejas P40,000.00,
P25,000 of which is 50% of the acceptance fee, and the
P15,000.00 is for filing/docket fee (Exh. ‘O’). The
Aoyagis were able to leave only in the afternoon as the
morning flight was postponed.
"On December 24, 1993, while attending a family
reunion, Bethel Grace Pelingon-Aoyagi informed her
brother, Filomeno ‘Jun’ Pelingon, Jr., about her
husband’s passport.
"On January 2, 1994, Jun Pelingon talked to BID
Commissioner Zafiro Respicio in Davao and told the
latter of Takao Aoyagi’s problem with the BID. Respicio
gave Pelingon his calling card and told Pelingon to call
him up in his office. That same day, Jun Pelingon and
Mr. and Mrs. Aoyagi flew back to Manila.
"On January 5, 1994, Jun Pelingon, Dick Perlas, Atty.
Acejas, Vladimir Hernandez, Vic Conanan and Akira
Nemoto met at the Aristocrat Restaurant in Roxas
Boulevard.
"Another meeting was arranged at the Manila Nikko
Hotel in Makati on January 8, 1994 with Jun Pelingon,
Perlas, Atty. Acejas and Hernandez attending.
"On January 11, 1994, on account of the alleged demand
of P1 million for the return of Takao Aoyagi’s passport,
Jun Pelingon called up Commissioner Respicio. The
latter referred him to Atty. Angelica Somera, an NBI
Agent detailed at the BID. It was Atty. Carlos Saunar,
also of the NBI, and Atty. Somera who arranged the
entrapment operation.
"On January 12, 1994, Vladimir Hernandez returned the
passport to Takao Aoyagi at the Coffee Shop of the
Diamond Hotel. The NBI Team headed by Attorneys
Saunar and Somera arrested Dick Perlas, Atty. Acejas
and Jose Victoriano after the latter picked up the brown
envelope containing marked money representing the
amount being allegedly demanded. Only Perlas, Acejas
and Victoriano were brought to the NBI Headquarters."10
Version of the Prosecution
Testifying for the prosecution were Bethel Grace
Pelingon Aoyagi, Filomeno "Jun" Basaca Pelingon, Jr.,
and Carlos Romero Saunar.11
The prosecution evidence showed that it was during a
meeting on January 5, 1994, when P1 million as
consideration for the passport was demanded. Conanan
averred that Aoyagi was a drug trafficker and Yakuza
member. The money was to be used to settle the alleged
"problem" and to facilitate the processing of a permanent
visa. When Pelingon negotiated to lower the amount
demanded, Conanan stated that there were many of them
in the Bureau of Immigration and Deportation (BID).12
During the second meeting held at Hotel Nikko,
Pelingon was informed that the press and government
enforcers were after Aoyagi. Hernandez asked for a
partial payment of P300,000, but Pelingon said that the
whole amount would be given at just one time to avoid
another meeting.13
After talking to Commissioner Respicio on January 11,
1994,14 Pelingon called up Dick Perlas to schedule the
exchange.
17 | P a g e
Regarding the involvement of Petitioner Acejas, the
Office of the Solicitor General (OSG) adds the following
facts:
"1.2. On 5 January 1994, [Acejas] and Perlas
met Pelingon at the Aristocrat Restaurant.
[Acejas] informed Pelingon that he would file a
P1 million lawsuit against the BID agents who
confiscated the passport of Takao Aoyagi.
[Acejas] showed Pelingon several papers, which
allegedly were in connection with the intended
lawsuit. However, when Hernandez and
Conanan arrived at the Aristocrat Restaurant,
[Acejas] never mentioned to the BID agents the
P1 million lawsuit. [Acejas] just hid the papers
he earlier showed to Pelingon inside his
[Acejas’] bag.
"1.3. [Acejas] was present when Hernandez
proposed that Takao Aoyagi pay the amount of
P1 million in exchange for the help he would
extend to him (Takao) in securing a permanent
visa in the Philippines. [Acejas], who was
Aoyagi’s lawyer, did nothing.
"1.4. On 10 January 1994, [Acejas], Pelingon,
Perlas and Hernandez met at the Hotel Nikko.
Thereat, Hernandez informed the group that
certain government officials and even the press
were after Takao Aoyagi. Hernandez said that
Takao Aoyagi can make a partial payment of
P300,000.00. Pelingon however, assured the
group that Takao Aoyagi would pay in full the
amount of P1 million so as not to set another
meeting date. [Acejas] kept quiet throughout the
negotiations.
xxx xxx xxx
"1.5.a. [Acejas] was present during the
entrapment that took place at the Diamond
Hotel. Hernandez handed the passport to
[Acejas], who handed it then to Perlas and
thereafter to Takao Aoyagi. After Takao Aoyagi
went over his confiscated passport, Bethel Grace
handed to Hernandez the envelope15 containing
the supposed P1 million. Hernandez refused and
motioned that [Acejas] be the one to receive it.
[Acejas] willingly got the envelope and placed it
beside him and Perlas.
x x x before Hernandez handed out Aoyagi’s pass- port,
he reminded the group of their earlier agreement of
‘kaliwaan’, i.e., that after the passport is released, the
Aoyagis should give the P1 million."16
Version of the Defense
Vladimir S. Hernandez, Expedito S. Perlas, Francisco
SB. Acejas III, Victor D. Conanan and Ponciano M.
Ortiz testified for the defense.17
To the Sandiganbayan’s narration, Hernandez adds:
"6. x x x [Hernandez], an intelligence agent of the
Bureau of Immigration and Deportation (BID), went to
the house of Private Respondents Takao and Bethel
Grace Aoyagi to enforce and serve a Mission Order
issued and assigned to him by BID Commissioner Zafiro
Respicio on December 13, 1993, for the arrest of Takao
Aoyagi.
"7. When Bethel Grace showed [Hernandez] her
husband’s passport, [Hernandez] found out that the
latter’s [authority] to stay had already been duly
extended. He invited private respondents to go with him
to the BID office. They declined, but made a written
undertaking to appear at the BID office for investigation
on December 20, 1993. As security for said undertaking,
Bethel Grace Aoyagi entrusted to [Hernandez] her
husband’s passport, receipt of which [Hernandez], in
return, acknowledge[d] in the same instrument.
"8. On January 19, 1994, [Hernandez] signified that the
record of Aoyagi has been cleared and that he can pick
up his passport at the BID office. In connection
therewith, [Hernandez] was invited by Perlas to make
the return at a lunchtime meeting to be held at the
Diamond Hotel Coffee Shop. Upon arrival thereat,
[Hernandez] gave the passport to Atty. Acejas, Aoyagi’s
counsel, and within less than ten minutes, he left the
coffee shop."18
In his Petition, Acejas narrates some more occurrences
as follows:
"1. 18th December 1993 – The law firm of
Lucenario Margate Mogpo Tiongco & Acejas
was engaged by the spouses Takao Aoyagi and
Bethel Grace Pelingon Aoyagi. x x x.
xxx xxx xxx
"3. 22nd December 1993 –
"a) The managing partner of the law
firm, Atty. Lucenario, briefed [Acejas]
about the facts regarding the
confiscation by agents of the BID of the
passport belonging to a Japanese client.
x x x.
"b) Thereafter, [Acejas] was tasked by
Atty. Lucenario to ‘meet his brother-in-
law Mr. Expedito Perlas, who happened
to be a policeman and a friend of Mr.
Takao Aoyagi.’ Thus, [Acejas] ‘met Mr.
Perlas for the first time in the afternoon’
of this date.
"c) Also, for the first time, [Acejas] met
the clients, spouses Aoyagis, at the
Diamond Hotel, where they were
staying. x x x [Acejas] advised them that
the law firm decided that the clients ‘can
file an action for Replevin plus
Damages for the recovery of the
Japanese passport.’
"d) The CONTRACT FOR LEGAL
SERVICES was signed between the
client and the law firm, thru [Acejas] as
partner thereof. x x x The amount of
Fifty Thousand Pesos (Php.50,000.00)
18 | P a g e
 was agreed to be paid by way of ‘Case
Retainer’s/Acceptance Fees’, which was
supposed to be payable ‘upon (the)
signing (t)hereof’, and the sum of
Php.2,000.00 by way of appearance fee.
However, the client proposed to pay half
only of the acceptance fee
(Php.25,000.00), plus the estimated
judicial expenses for the filing or docket
fees (Php.15,000.00). x x x It was then
further agreed that the ‘balance of
Php.25,000.00 was supposed to be given
upon the successful recovery of the
Japanese passport’.
"e) The clients informed [Acejas] that
‘they are supposed to leave for Davao
the following day on the 23rd because
they will spend their Christmas in
Davao City; but they promised that they
will be back on the 26th, which is a
Sunday, so that on the 27th, which is a
Monday, the complaint against the BID
officers will have to be filed in Court’.
xxx xxx xx
x in-law would like to negotiate or in his
"6. 27th December 1993 – ‘(T)he law office
received word from Mr. Perlas that the Japanese
did not come back on the 26th (December), x x x
so that the case cannot be filed on the 27th
instead (it has) to wait for client’s instruction.’
"7. 4th January 1994 – ‘In the late afternoon, the
law firm received a telephone call from Mr.
Perlas informing (it) that the Japanese is already
in Manila and he was requesting for an
appointment with any of the lawyer of the law
firm on January 5, 1994’.
"8. 5th January 1994 – [Acejas] ‘met for the first
time Mr. Filomeno Pelingon Jr.’ including a
certain Nimoto Akira.
x x x.
"b) [Acejas] ‘told Mr. Pelingon Jr. that
all the pleadings are ready for filing but,
of course, the Japanese client and the
wife should first read the complaint and
sign if they want to pursue the filing of
the complaint against the BID agents’.
"c) For the first time, ‘Mr. Pelingon
advised against the intended filing of the
case’. x x x He ‘instead suggested that
he wants to directly negotiate with the
BID agents.’
"d) Thereafter, ‘Mr. Pelingon instructed
Mr. Dick Perlas to contact the BID
agent who confiscated the Japanese
passport.’ ‘Mr. Perlas and Mr. Pelingon
were able to contact the BID agent’.
"e) For the ‘first time [Acejas] saw Mr.
Hernandez’, when the latter arrived and
also accused Victor Conanan. In the
course of the meeting, a confrontation
ensued between [Acejas] and
[Hernandez] concerning the legal basis
for the confiscation of the passport.
[Acejas] demanded for the return of the
Japanese passport x x x. Mr. Hernandez
‘said that if there are no further
derogatory report concerning the
Japanese client, then in a matter of week
(from January 5 to 12), he will return the
passport’.
"f) [Acejas] ‘gave an ultimatum to Mr.
Hernandez that if the Japanese passport
will not be returned in one (1) week’s
time, then (the law firm) will pursue the
filing of the replevin case plus the
damage suit against him including the
other BID agents’.
"g) ‘x x x Mr. Pelingon Jr. for the
second time advised against the filing
thereof saying that his Japanese brother-
own words ‘magbibigay naman [i.e. will
give money anyway].’
"9. 8th January 1994 –
"a) Again, ‘Mr. Perlas called the law
office and informed x x x that the
Japanese client is now in Manila.’
Petitioner attended the meeting they
arranged in ‘(Makati) and meet Dick
Perlas, Vladimir Hernandez and
Pelingon Jr. x x x.
"b) x x x according to Pelingon Jr., the
Japanese does not want to meet with
anybody because anyway they are
willing to pay or negotiate.
"c) [Hernandez was also] present at the
meeting and [Acejas] ‘met him for the
second time. x x x [Acejas] said that if
[Hernandez] will not be able to return
the passport on or before January 12,
1994, then the law firm will have no
choice but to file the case against him x
x x. Again, for the third time Mr.
Pelingon warned against the filing of the
case because he said that he would
directly negotiate with the BID agents.’
"d) The Makati meeting ended up ‘with
the understanding that Mr. Hernandez
will have to undertake the return [of] the
Japanese passport on or before January
12, 1994.’
"10. 12th January 1994 –
19 | P a g e
 "a) Mr. Perlas called up the law office
informing that the Japanese client was
already in Manila and was requesting
for an appointment with the lawyers at
lunchtime of January 12 at the Diamond
Hotel where he was billeted.
xxx xxx xx
x xxx
"c) x x x x x x x x x
"At this meeting, ‘the Japanese was
inquiring on the status of the case and he
was wondering why the Japanese
passport is not yet recovered when
according to him he has already paid for
the attorney fees. And so, [Acejas]
explained to him that the case has to be
filed and they still have to sign the
complaint, the Special Power of
Attorney and the affidavit relative to the
filing of replevin case. But the Japanese
would not fully understand. So,
Pelingon Jr. again advised against the
filing of the case saying that since there
is no derogatory record of Mr. Aoyagi at
the BID office, then the BID agents
should return the Japanese passport.’
xxx xxx xx
x
"e) Thereafter, ‘Pelingon, Jr. and Dick
Perlas x x x tried to contact Mr.
Hernandez.’ Since, they were able to
contact the latter, ‘we waited until
around 2:00 p.m.’. ‘When Mr.
Hernandez came, he said that the
Japanese client is cleared at the BID
office and so, he can return the Japanese
passport and he gave it to [Acejas]. x x x
‘When [Acejas] received the Japanese
passport, (he) checked the authenticity
of the documents and finding that it was
in good order, (he) attempted to give it
to the Japanese client.’
"‘Very strangely when [Acejas] tried to hand-over the
Japanese passport to the Japanese across the table, the
Japanese was motioning and wanted to get the passport
under the table. x x x [Acejas] found it strange. (He) x x
x thought that it was a Japanese custom to receive things
like that under the table. But nonetheless, [Acejas] did
not give it under the table and instead passed it on to Mr.
Dick Perlas who was seated at (his) right. And so, it was
Mr. Dick Perlas who took the passport from [Acejas]
and finally handed it over to Mr. Aoyagi.’ x x x. ‘After
that, there was a little chat between Mr. Hernandez and
the client, and Mr. Hernandez did not stay for so long
and left.’
"Still, thereafter, ‘(w)hen the Japanese passport was
received, Bethel Grace Aoyagi and [Acejas] were talking
and she said since the Japanese passport had been
recovered, they are now willing to pay the
Php.25,000.00 balance of the acceptance fee.’
"‘Mrs. Aoyagi was giving [Acejas] a brown envelope
but she want[ed] Mr. Hernandez to receive it while Mr.
Hernandez was still around standing. But Mr. Hernandez
did not receive it.
"Since, the payment is due to the law firm, [Acejas]
received the brown envelope.
xxx xxx
"Not long after, [Acejas] saw his companion, accused
Mr. Victoriano, who was ‘signaling something’ as if
there was a sense of urgency. [Acejas] immediately
stood up and left hurriedly. When [Acejas] approached
Mr. Victoriano, he ‘said that the car which [Acejas]
parked in front of the Diamond Hotel gate, somebody
took the car’. [Acejas] ‘went out and checked and
realized that it was valet parking so it was the parking
attendant who took the car and transferred the car to the
parking area’. [Acejas] requested ‘Mr. Victoriano to get
(the) envelope and the coat’, at the table.
"g) ‘When [Acejas] went out, [Acejas] already looked
for the parking attendant to get the car. When the car
arrived, [Acejas] just saw from the doors of the Diamond
Hotel Mr. Jose Victoriano and Mr. Dick Perlas coming
out already in handcuffs and collared by the NBI
agents." They then ‘were taken to the NBI’, except the
accused Vladimir Hernandez."19
Ruling of the Sandiganbayan
The Sandiganbayan ruled that the elements of direct
bribery,20 as well as conspiracy in the commission of the
crime,21 had been proven. Hernandez and Conanan
demanded money;22 Perlas negotiated and dealt with the
complainants;23 and Acejas accepted the payoff and gave
it to Perlas.24
Victoriano was acquitted on reasonable doubt.25
Although he had picked up the envelope containing the
payoff, this act did not sufficiently show that he had
conspired with the other accused.26
The Sandiganbayan did not give credence to the alleged
belief of Acejas that the money was the balance of the
law firm’s legal fees.27 If he had indeed believed that the
money was payable to him, he should have kept and
retained it. The court then inferred that he had merely
been pretending to protect his client’s rights when he
threatened to file a suit against Hernandez.28
The January 3, 2003 Resolution acquitted Conanan and
denied the Motions for Reconsideration of Hernandez,
Acejas and Perlas. According to the Sandiganbayan,
Conanan was not shown to be present during the
meetings on January 8 and 12, 1994.29 His presence
during one of those meetings, on January 5, 1994, did
not conclusively show his participation as a co-
conspirator.
The January 14, 2003 Resolution denied Acejas’
Supplemental Motion, which prayed for a new trial.
The Issues
Petitioner Hernandez raises the following issues:
20 | P a g e
 "I. Whether or not respondent court erred in
ruling that [Hernandez] was part of the
conspiracy to extort money from private
respondents, despite lack of clear and
convincing evidence.
"II. Whether or not the Honorable
Sandiganbayan gravely abused its discretion
when it overlooked the fact that the legal
requisites of the crime are not completely
present as to warrant [Hernandez’] complicity in
the crime charged.
"III. Whether or not respondent Sandiganbayan,
5th Division, ruled erroneously when it relied
solely on the naked and uncorroborated
testimonies of the late Filomeno ‘Jun’ Pelingon,
Jr. in order to declare the existence of a
conspiracy to commit bribery, as well as the
guilt of the accused.
"IV. Whether or not [respondent] court’s
acquittal of co-accused Victor Conanan and its
conviction of [Hernandez] for the offense as
charged effectively belies the existence of a
conspiracy.
"V. Whether or not the respondent
Sandiganbayan committed grave abuse of
discretion amounting to lack of, or in excess of
jurisdiction when it found [Hernandez] guilty
beyond reasonable doubt of the crime of direct
bribery."30
On the other hand, Petitioner Acejas simply enumerates
the following points:
"1. The Conspiracy Theory
2. The presence of lawyer-client relationship;
duty to client’s cause; lawful performance of
duties
3. ‘Instigation’ not ‘entrapment’
4. Credibility of witness and testimony
5. Affidavit of desistance; effect: creates serious
doubts as to the liability of the accused
6. Elements of ‘bad faith’
7. Elements of the crime (direct bribery)
8. Non-presentation of complaining victim
tantamount to suppression of evidence"31
In the main, petitioners are challenging the finding of
guilt against them. The points they raised are therefore
intertwined and will be discussed jointly.
The Court’s Ruling
The Petitions have no merit.
Main Issue:
Finding of Guilt
The crime of direct bribery exists when a public officer
1)
agrees to perform an act that constitutes a crime in
consideration of any offer, promise, gift or present; 2)
accepts the gift in consideration of the execution of an
act that does not constitute a crime; or 3) abstains from
the performance of official duties.32
Petitioners were convicted under the second kind of
direct bribery, which contained the following elements:
1) the offender was a public officer, 2) who received the
gifts or presents personally or through another, 3) in
consideration of an act that did not constitute a crime,
and 4) that act related to the exercise of official duties.33
Hernandez claims that the prosecution failed to show his
involvement in the crime. Allegedly, he was merely
implementing Mission Order No. 93-04-12, which
required him to investigate Takao Aoyagi.34 The
passport was supposed to have been voluntarily given to
him as a guarantee to appear at the BID office, but he
returned it upon the instruction of his superior.35
The chain of circumstances, however, contradicts the
contention of Hernandez. It was he who had taken the
passport of Takao Aoyagi.36 On various dates,37 he met
with Takao and Bethel Grace Aoyagi, and also Pelingon,
regarding the return of the passport. Hernandez then
asked for a down payment on the payoff,38 during which
he directed Bethel Grace to deliver the money to
Acejas.39
Bethel Grace Aoyagi’s testimony, which was confirmed
by the other witnesses, proceeded as follows:
"PROSECUTOR MONTEMAYOR:
"Q: When Vlademir Hernandez arrived, what happened?
"A: He got the passport from his pocket and passed it on
to Atty. Acejas, sir.
"Q: What happened after he gave the passport to Atty.
Acejas?
"A: [Acejas] gave the passport to Mr. Expedito Perlas,
sir.
"Q: After that, what happened?
"A: Then, [Perlas] gave it to Mr. Aoyagi, sir.
"Q: The passport?
"A: Yes, sir.
"Q: And when Mr. Aoyagi received the passport, what
did you do or what did Mr. Aoyagi do?
"A: He checked all the pages and he kept it, sir.
21 | P a g e
 xxxxxxxxx
"Q: What did you do with that money after Mr. Aoyagi
received the passport?
"A: Because our agreement is that after giving the
passport we would give the money so when Mr. Perlas
handed to my husband the passport, I gave the money
placed on my lap to my husband and he passed it to Mr.
Hernandez who refused the same.
"ATTY. ACEJAS:
"Your Honor, please, may I just make a clarification that
when the witness referred to the money it pertains to the
brown envelope which allegedly contains the money x x
x.
"AJ ESCAREAL:
"Noted.
"PROSECUTOR MONTEMAYOR:
"Q: Did Mr. Hernandez got hold or touched the
envelope?
"A: No, sir.
"Q: When he [did] not want to receive the envelope,
what did your husband do?
"A: When Mr. Vlademir Hernandez refused to receive
the money, he pointed to Atty. Acejas so my husband
handed it to Atty. Acejas who received the same and
later on passed it to Mr. Perlas.
"Q: When Mr. Hernandez pointed to Atty. Acejas, did he
say anything?
"A: None, sir, he just motioned like this.
"INTERPRETER:
"Witness motioning by [waving] her two (2) hands, left
and right.
"PROSECUTOR MONTEMAYOR:
"Q: And at the same time pointed to Atty. Acejas?
"A: Yes, sir.
"Q: And your husband gave the envelope to Atty.
Acejas?
"A: Yes, sir.
"Q: And Atty. Acejas, in turn, handed the said envelope
to whom?
"A: Expedito Perlas, sir.
"Q: Did Expedito Perlas [receive] that envelope?
"A: Yes, sir.
"Q: After that, what happened?
"A: Mr. Perlas put the money on his side in between him
and Atty. Acejas, sir.
"Q: And then, what happened?
"A: After the money was placed where it was, we were
surprised, I think, it happened in just seconds[.] Mr.
Vlademir Hernandez immediately left and then all of a
sudden somebody came and picked up the envelope,
sir."40
Significantly, Hernandez does not address the lingering
questions about why Takao Aoyagi or his
representatives had to negotiate for the retrieval of the
passport during the meetings held outside the BID.
Ponciano Ortiz, chief of the Operation and Intelligence
Division of the BID, testified that it was not a standard
operating procedure to officially return withheld
passports in such locations.41 It can readily be inferred
that Hernandez had an ulterior motive for withholding
the passport for some time despite the absence of any
legal purpose.
Also, Hernandez cannot claim innocence based on
Conanan’s acquittal.42 While the testimony of Pelingon
was the only evidence linking Conanan to the
conspiracy,43 there was an abundance of evidence
showing Hernandez’s involvement.
Acejas, on the other hand, belies his involvement in the
conspiracy. He attacks the prosecution’s version that he
was silent during the negotiations for the return of the
passport.44 According to him, he kept giving Hernandez
an ultimatum to return the passport, with threats to file a
court case.
Acejas testified that he had wanted to file a case against
Hernandez, but was prevented by Spouses Aoyagi. His
supposed preparedness to file a case against Hernandez
might have just been a charade and was in fact belied by
Pelingon’s testimony regarding the January 5, 1994
meeting:
"ATTY. VALMONTE:
"Q: Who arrived first at Aristocrat Restaurant, you or
Acejas?
"A: Acejas arrived together with Dick Perlas[. T]hey
arrived ahead of me, sir.
xxxxxxxxx
"Q: When the three (3) of you were talking that was the
time that Atty. Acejas was showing you documents that
he was going to file [a] P1 million damage suit against
Hernandez?
"A: Yes, sir.
22 | P a g e
"Q: Now, is it not that when Hernandez and Cunanan
arrived and you were talking with each other, Atty.
Acejas also threatened, reiterated his threat to Hernandez
that he would file [a] P1 million damage suit should
Hernandez [fails] to return the passport?
"A: When the group [was] already there, the P1 million
[damage suit] was not [anymore] mentioned, sir."45
Even assuming that Acejas negotiated for the return of
the passport on his client’s behalf, he still failed to
justify his actions during the entrapment operation. The
witnesses all testified that he had received the purported
payoff. On this point, we recount the testimony of Bethel
Grace Aoyagi:
"Prosecutor Montemayor:
xxxxxxxxx
"Q: When he [did] not want to receive the envelope,
what did your husband do?
"A: When Mr. Vlademir Hernandez refused to receive
the money, he pointed to Atty. Acejas so my husband
handed it to Atty. Acejas who received the same and
later on passed it to Mr. Perlas.
"Q: When Mr. Hernandez pointed to Atty. Acejas, did he
say anything?
"A: None, sir, he just motioned like this.
"Interpreter:
"Witness motioning by [waving] her two (2) hands, left
and right.
"Prosecutor Montemayor:
"Q: And at the same time pointed to Atty. Acejas?
"A: Yes, sir.
"Q: And your husband gave the envelope to Atty.
Acejas?
"A: Yes, sir.
"Q: And Atty. Acejas, in turn, handed the said envelope
to whom?
"A: Expedito Perlas, sir.
"x x x x x x x x x
"Q: After that, what happened?
"A: Mr. Perlas put the money on his side in between him
and Atty. Acejas, sir.
"Q: And then, what happened?
"WITNESS:
"A: After the money was placed where it was, we were
surprised, I think, it happened in just seconds[.] Mr.
Vladimir Hernandez immediately left and then all of a
sudden somebody came and picked up the envelope, sir.
"Prosecutor Montemayor:
"Q: Do you know the identity of that somebody who
picked up the envelope?
xxxxxxxxx
"A: Victoriano, sir."46
Acejas failed to justify why he received the payoff
money. It would be illogical to sustain his contention
that the envelope represented the balance of his firm’s
legal fees. That it was given to Hernandez immediately
after the return of the passport leads to the inescapable
conclusion that the money was a consideration for the
return. Moreover, Acejas should have kept the amount if
he believed it to be his. The Court agrees with the
Sandiganbayan’s pronouncement on this point:
"x x x. If he believed that the brown envelope contained
the balance of the acceptance fee, how come he passed it
to Perlas? His passing the brown envelope to Perlas only
proves that the same did not contain the balance of the
acceptance fee; otherwise, he should have kept and
retained it. Moreover, the three prosecution witnesses
testified that the brown envelope was being given to
Hernandez who refused to accept the same. This further
shows that the brown envelope was not for the balance
of the acceptance fee because, if it were, why was it
given to Hernandez.
xxxxxxxxx
"Acejas’ defense was further weakened by the fact that
his testimony as to why he left immediately after the
brown envelope was given to him was uncorroborated.
He should have presented accused Victoriano to
corroborate his testimony since it was the latter who
allegedly called him and caused him to leave their table.
This, he did not do. The ineluctable conclusion is that he
was, indeed, in cahoots with his co-accused."47
Lawyer’s Duty
Acejas alleges that the Sandiganbayan failed to
appreciate his lawyer-client relationship with the
complainants. He was supposedly only acting in their
best interest48 and had the right to be present when the
passport was to be returned.49
True, as a lawyer, it was his duty to represent his clients
in dealing with other people. His presence at Diamond
Hotel for the scheduled return of the passport was
justified. This fact, however, does not support his
innocence
Acejas, however, failed to act for or represent the
interests of his clients. He knew of the payoff, but did
nothing to assist or protect their rights, a fact that
strongly indicated that he was to get a share. Thus, he
received the money purporting to be the payoff,
23 | P a g e
even if he was not involved in the entrapment operation.
The facts revealed that he was a conspirator.
The Court reminds lawyers to follow legal ethics50 when
confronted by public officers who extort money.
Lawyers must decline and report the matter to the
authorities.51 If the extortion is directed at the client, they
must advise the client not to perform any illegal act.
Moreover, they must report it to the authorities, without
having to violate the attorney-client privilege.52
Naturally, they must not participate in the illegal act.53
Acejas did not follow these guidelines. Worse, he
conspired with the extortionists.
Instigation
Also futile is the contention of petitioners that Pelingon
instigated the situation to frame them into accepting the
payoff.54 Instigation is the employment of ways and
means to lure persons into the commission of an offense
in order to prosecute them.55 As opposed to entrapment,
criminal intent originates in the mind of the instigator.56
There was no instigation in the present case, because the
chain of circumstances showed an extortion attempt. In
other words, the criminal intent originated from
petitioners, who had arranged for the payoff.
During the cross-examination of Bethel Grace Aoyagi,
pertinent was Associate Justice Escareal clarifying
question as follows:
"AJ ESCAREAL:
"[Q:] Did Mr. Hernandez say anything when he returned
the passport to your husband?
"A: He did not say anything except that he instructed
[the] group to abide with the agreement that upon
handing of the passport, the money would also be given
immediately (‘magkaliwaan’)."57
Alleged Discrepancies
According to Acejas, Pelingon’s testimonies given in his
Complaint-Affidavit, Supplemental-Affidavit, inquest
testimony, testimony in court, and two Affidavits of
Desistance were contradictory.58 He cites these particular
portions of Pelingon’s Affidavit:
"5. That having been enlightened of the case, and
conscious that I might be prosecuting innocent men, I
have decided on my own disposition, not to further
testify against any of the accused in the Sandiganbayan
or in any court or tribunal, regarding the same cause of
action.
"6. That this affidavit of desistance to further prosecute
is voluntarily executed, and that no reward, promise,
consideration, influence, force or threat was executed to
secure this affidavit."59
Pelingon testified that he had executed the Affidavit of
Desistance because of a threat to his life.60 He did not
prepare the Affidavit; neither was it explained to him.
Allegedly, his true testimony was in the first Complaint-
Affidavit that he had executed.61
By appearing and testifying during the trial, he
effectively repudiated his Affidavit of Desistance. An
affidavit of desistance must be ignored when pitted
against positive evidence given on the witness stand.62
Acejas has failed to identify the other material points
that were allegedly inconsistent. The Court therefore
adopts the Sandiganbayan’s finding that these were
minor details that were not indicative of the lack of
credibility of the prosecution witnesses.63 People v.
Eligino64 is in point:
"x x x. While witnesses may differ in their recollections
of an incident, it does not necessarily follow from their
disagreement that all of them should be disbelieved as
liars and their testimony completely discarded as
worthless. As long as the mass of testimony jibes on
material points, the slight clashing statements neither
dilute the witnesses’ credibility nor the veracity of their
testimony. Thus, inconsistencies and contradictions
referring to minor details do not, in any way, destroy the
credibility of witnesses, for indeed, such inconsistencies
are but natural and even enhance credibility as these
discrepancies indicate that the responses are honest and
unrehearsed."65
Suppression of Evidence
Acejas further raises the issue of suppression of
evidence. Aoyagi, from whom the money was
supposedly demanded, should have been presented by
the prosecution as a witness.66
The discretion on whom to present as prosecution
witnesses falls on the People.67 The freedom to devise a
strategy to convict the accused belongs to the
prosecution.68 Necessarily, its decision on which
evidence, including which witnesses, to present cannot
be dictated by the accused or even by the trial court.69 If
petitioners believed that Takao Aoyagi’s testimony was
important to their case, they should have presented him
as their witness.70
Finally, Acejas claims that his Comment/Objection to
the prosecution’s Formal Offer of Evidence was not
resolved by the Sandiganbayan.71 In that
Comment/Objection, he had noted the lateness in the
filing of the Formal Offer of Evidence.
It may readily be assumed that the Sandiganbayan
admitted the prosecution’s Formal Offer of Evidence
upon the promulgation of its Decision. In effect, Acejas’
Comment/Objection was deemed immaterial. It could
not overrule the finding of guilt. Further, it showed no
prayer that the Sandiganbayan needed to act upon.72
Finally we reiterate that, as a rule, factual findings of the
Sandiganbayan are conclusive upon this Court.73 We are
convinced that these were clearly based on the evidence
adduced in this case.
24 | P a g e
In sum, we find that the prosecution proved the elements
of direct bribery. First, there is no question that the
offense was committed by a public officer. BID Agent
Hernandez extorted money from the Aoyagi spouses for
the return of the passport and the promise of assistance
in procuring a visa. Petitioner Acejas was his co-
conspirator. Second, the offenders received the money as
payoff, which Acejas received for the group and then
gave to Perlas. Third, the money was given in
consideration of the return of the passport, an act that did
not constitute a crime. Fourth, both the confiscation and
the return of the passport were made in the exercise of
official duties.
For taking direct part in the execution of the crime,
Hernandez and Acejas are liable as principals.74 The
evidence shows that the
parties conspired to extort money from Spouses Aoyagi.
A conspiracy exists even if all the parties did not commit
the same act, if the participants performed specific acts
that indicated unity of purpose in accomplishing a
criminal design.75 The act of one is the act of all.
WHEREFORE, the Petitions are DENIED, and the
assailed Decision and Resolutions AFFIRMED. Costs
against petitioners.
SO ORDERED.
G.R. No. 164185 July 23, 2008
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
THE SANDIGANBAYAN (FOURTH DIVISION)
and ALEJANDRO A. VILLAPANDO, Respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari filed by the Office of the
Ombudsman through the Office of the Special
Prosecutor assails the May 20, 2004 Decision1 of the
Sandiganbayan, Fourth Division, in Criminal Case No.
27465, granting private respondent Alejandro A.
Villapando’s Demurrer to Evidence2 and acquitting him
of the crime of unlawful appointment under Article 2443
of the Revised Penal Code.
The facts culled from the records are as follows:
During the May 11, 1998 elections, Villapando ran for
Municipal Mayor of San Vicente, Palawan. Orlando M.
Tiape (now deceased), a relative of Villapando’s wife,
ran for Municipal Mayor of Kitcharao, Agusan del
Norte. Villapando won while Tiape lost. Thereafter, on
July 1, 1998, Villapando designated Tiape as Municipal
Administrator of the Municipality of San Vicente,
Palawan.4 A Contract of Consultancy5 dated February 8,
1999 was executed between the Municipality of San
Vicente, Palawan and Tiape whereby the former
employed the services of Tiape as Municipal
Administrative and Development Planning Consultant in
the Office of the Municipal Mayor for a period of six
months from January 1, 1999 to June 30, 1999 for a
monthly salary of ₱26,953.80.
On February 4, 2000, Solomon B. Maagad and Renato
M. Fernandez charged Villapando and Tiape for
violation of Article 244 of the Revised Penal Code
before the Office of the Deputy Ombudsman for Luzon.6
The complaint was resolved against Villapando and
Tiape and the following Information7 dated March 19,
2002 charging the two with violation of Article 244 of
the Revised Penal Code was filed with the
Sandiganbayan:
xxxx
That on or about 01 July 1998 or sometime prior or
subsequent thereto, in San Vicente, Palawan,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, ALEJANDRO A.
VILLAPANDO, a public officer, being then the
Municipal Mayor of San Vicente, Palawan, committing
the crime herein charged, in relation to and taking
advantage of his official functions, conspiring and
confederating with accused Orlando M. Tiape, did then
and there wilfully, unlawfully and feloniously appoint
ORLANDO M. TIAPE as a Municipal Administrator of
San Vicente, Palawan, accused Alejandro A. Villapando
knowing fully well that Orlando Tiape lacks the
qualification as he is a losing mayoralty candidate in the
Municipality of Kitcharao, Agusan del Norte during the
May 1998 elections, hence is ineligible for appointment
to a public office within one year (1) from the date of the
elections, to the damage and prejudice of the government
and of public interest.
CONTRARY TO LAW.8
The Information was docketed as Criminal Case No.
27465 and raffled to the Fourth Division of the
Sandiganbayan.
Upon arraignment on September 3, 2002, Villapando
pleaded not guilty. Meanwhile, the case against Tiape
was dismissed after the prosecution proved his death
which occurred on July 26, 2000.9
After the prosecution rested its case, Villapando moved
for leave to file a demurrer to evidence. The
Sandiganbayan, Fourth Division denied his motion but
gave him five days within which to inform the court in
writing whether he will nonetheless submit his Demurrer
to Evidence for resolution without leave of court.10
Villapando then filed a Manifestation of Intent to File
Demurrer to Evidence,11 and was given 15 days from
receipt to file his Demurrer to Evidence. He filed his
Demurrer to Evidence12 on October 28, 2003.
25 | P a g e
In a Decision dated May 20, 2004, the Sandiganbayan,
Fourth Division found Villapando’s Demurrer to
Evidence meritorious, as follows:
The Court found the "Demurrer to Evidence" impressed
with merit.
Article 244 of the Revised Penal Code provides:
Article 244. Unlawful appointments.–Any public officer
who shall knowingly nominate or appoint to any public
office any person lacking the legal qualifications
therefor, shall suffer the penalty of arresto mayor and a
fine not exceeding 1,000 pesos. (underscoring supplied)
A dissection of the above-cited provision [yields] the
following elements, to wit:
1. the offender was a public officer;
2. accused nominated or appointed a person to a
public office;
3. such person did not have the legal
qualifications [therefor;] and,
4. the offender knew that his nominee or
appointee did not have the legal qualifications at
the time he made the nomination or
appointment.
Afore-cited elements are hereunder discussed.
1. Mayor Villapando was the duly elected
Municipal Mayor of San Vicente, Palawan when
the alleged crime was committed.
2. Accused appointed Orlando Tiape as
Municipal Administrator of the Municipality of
San Vicente, Palawan.
3. There appears to be a dispute. This Court is
now called upon to determine whether Orlando
Tiape, at the time of [his] designation as
Municipal Administrator, was lacking in legal
qualification. Stated differently, does "legal
qualification" contemplate the one (1) year
prohibition on appointment as provided for in
Sec. 6, Art. IX-B of the Constitution and Sec. 94
(b) of the Local Government Code, mandating
that a candidate who lost in any election shall
not, within one year after such election, be
appointed to any office in the Government?
The Court answers in the negative.
In ascertaining the legal qualifications of a particular
appointee to a public office, "there must be a law
providing for the qualifications of a person to be
nominated or appointed" therein. To illuminate further,
Justice Rodolfo Palattao succinctly discussed in his book
that the qualification of a public officer to hold a
particular position in the government is provided for by
law, which may refer to educational attainment, civil
service eligibility or experience:
As the title suggests, the offender in this article is a
public officer who nominates or appoints a person to a
public office. The person nominated or appointed is not
qualified and his lack of qualification is known to the
party making the nomination or appointment. The
qualification of a public officer to hold a particular
position in the government is provided by law. The
purpose of the law is to ensure that the person appointed
is competent to perform the duties of the office, thereby
promoting efficiency in rendering public service.
The qualification to hold public office may refer to
educational attainment, civil service eligibility or
experience. For instance, for one to be appointed as
judge, he must be a lawyer. So if the Judicial and Bar
Council nominates a person for appointment as judge
knowing him to be not a member of the Philippine Bar,
such act constitutes a violation of the law under
consideration.
In this case, Orlando Tiape was allegedly appointed to
the position of Municipal Administrator. As such, the
law that provides for the legal qualification for the
position of municipal administrator is Section 480,
Article X of the Local Government Code, to wit:
"Section 480. Qualifications, Terms, Powers and
Duties.–(a) No person shall be appointed administrator
unless he is a citizen of the Philippines, a resident of the
local government unit concerned, of good moral
character, a holder of a college degree preferably in
public administration, law, or any other related course
from a recognized college or university, and a first grade
civil service eligible or its equivalent. He must have
acquired experience in management and administration
work for at least five (5) years in the case of the
provincial or city administrator, and three (3) years in
the case of the municipal administrator.
xxx xxx x x x"
It is noteworthy to mention that the prosecution did not
allege much less prove that Mayor Villapando’s
appointee, Orlando Tiape, lacked any of the
qualifications imposed by law on the position of
Municipal Administrator. Prosecution’s argument rested
on the assertion that since Tiape lost in the May 11, 1998
election, he necessarily lacked the required legal
qualifications.
It bears stressing that temporary prohibition is not
synonymous with absence or lack of legal qualification.
A person who possessed the required legal qualifications
for a position may be temporarily disqualified for
appointment to a public position by reason of the one
year prohibition imposed on losing candidates. Upon the
other hand, one may not be temporarily disqualified for
appointment, but could not be appointed as he lacked
any or all of the required legal qualifications imposed by
law.
4. Anent the last element, this Court deems it
unnecessary to discuss the same.
WHEREFORE, finding the "Demurrer to Evidence"
filed by Mayor Villapando with merit, the same is
26 | P a g e
hereby GRANTED. Mayor Villapando is hereby
ACQUITTED of the crime charged.
SO ORDERED.13
Thus, this petition by the Office of the Ombudsman,
through the Office of the Special Prosecutor,
representing the People of the Philippines.
Villapando was required by this Court to file his
comment to the petition. Despite several notices,
however, he failed to do so and in a Resolution14 dated
June 7, 2006, this Court informed him that he is deemed
to have waived the filing of his comment and the case
shall be resolved on the basis of the pleadings submitted
by the petitioner.
Petitioner raises the following issues:
I.
WHETHER THE RESPONDENT COURT
ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF
OR EXCESS OF JURISDICTION IN
INTERPRETING THAT THE "LEGAL
DISQUALIFICATION" IN ARTICLE 244 OF
THE REVISED PENAL CODE DOES NOT
INCLUDE THE ONE YEAR PROHIBITION
IMPOSED ON LOSING CANDIDATES AS
ENUNCIATED IN THE CONSTITUTION
AND THE LOCAL GOVERNMENT CODE.
II.
WHETHER THE RESPONDENT COURT
ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF
OR EXCESS OF JURISDICTION IN GIVING
DUE COURSE TO, AND EVENTUALLY
GRANTING, THE DEMURRER TO
EVIDENCE.15
Simply, the issue is whether or not the Sandiganbayan,
Fourth Division, acted with grave abuse of discretion
amounting to lack or excess of jurisdiction.
Petitioner argues that the Sandiganbayan, Fourth
Division acted with grave abuse of discretion amounting
to lack or excess of jurisdiction because its interpretation
of Article 244 of the Revised Penal Code does not
complement the provision on the one-year prohibition
found in the 1987 Constitution and the Local
Government Code, particularly Section 6, Article IX of
the 1987 Constitution which states no candidate who has
lost in any election shall, within one year after such
election, be appointed to any office in the government or
any government-owned or controlled corporation or in
any of their subsidiaries. Section 94(b) of the Local
Government Code of 1991, for its part, states that except
for losing candidates in barangay elections, no candidate
who lost in any election shall, within one year after such
election, be appointed to any office in the government or
any government-owned or controlled corporation or in
any of their subsidiaries. Petitioner argues that the court
erred when it ruled that temporary prohibition is not
synonymous with the absence of lack of legal
qualification.
The Sandiganbayan, Fourth Division held that the
qualifications for a position are provided by law and that
it may well be that one who possesses the required legal
qualification for a position may be temporarily
disqualified for appointment to a public position by
reason of the one-year prohibition imposed on losing
candidates. However, there is no violation of Article 244
of the Revised Penal Code should a person suffering
from temporary disqualification be appointed so long as
the appointee possesses all the qualifications stated in
the law.
There is no basis in law or jurisprudence for this
interpretation. On the contrary, legal disqualification in
Article 244 of the Revised Penal Code simply means
disqualification under the law. Clearly, Section 6, Article
IX of the 1987 Constitution and Section 94(b) of the
Local Government Code of 1991 prohibits losing
candidates within one year after such election to be
appointed to any office in the government or any
government-owned or controlled corporations or in any
of their subsidiaries.
Article 244 of the Revised Penal Code states:
Art. 244. Unlawful appointments. — Any public officer
who shall knowingly nominate or appoint to any public
office any person lacking the legal qualifications
therefore, shall suffer the penalty of arresto mayor and a
fine not exceeding 1,000 pesos.
Section 94 of the Local Government Code provides:
SECTION 94. Appointment of Elective and Appointive
Local Officials; Candidates Who Lost in Election. - (a)
No elective or appointive local official shall be eligible
for appointment or designation in any capacity to any
public office or position during his tenure.
Unless otherwise allowed by law or by the primary
functions of his position, no elective or appointive local
official shall hold any other office or employment in the
government or any subdivision, agency or
instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.
(b) Except for losing candidates in barangay elections,
no candidate who lost in any election shall, within one
(1) year after such election, be appointed to any office in
the government or any government-owned or controlled
corporations or in any of their subsidiaries.
Section 6, Article IX-B of the 1987 Constitution states:
Section 6. No candidate who has lost in any election
shall, within one year after such election, be appointed to
any office in the Government or any Government-owned
or controlled corporations or in any of their subsidiaries.
Villapando’s contention and the Sandiganbayan, Fourth
Division’s interpretation of the term legal
disqualification lack cogency. Article 244 of the Revised
Penal Code cannot be circumscribed lexically. Legal
27 | P a g e
disqualification cannot be read as excluding temporary
disqualification in order to exempt therefrom the legal
prohibitions under Section 6, Article IX of the 1987
Constitution and Section 94(b) of the Local Government
Code of 1991.
records of this case be remanded to the Sandiganbayan,
Fourth Division, for further proceedings.
SO ORDERED.

Although this Court held in the case of People v.

Sandiganbayan16 that once a court grants the demurrer to
evidence, such order amounts to an acquittal and any
further prosecution of the accused would violate the
constitutional proscription on double jeopardy, this
Court held in the same case that such ruling on the
matter shall not be disturbed in the absence of a grave
abuse of discretion.1avvphi1

Grave abuse of discretion defies exact definition, but it

generally refers to capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The
abuse of discretion must be patent and gross as to
amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all
in contemplation of law, as where the power is exercised
in an arbitrary and despotic manner by reason of passion
and hostility.17

In this case, the Sandiganbayan, Fourth Division, in

disregarding basic rules of statutory construction, acted
with grave abuse of discretion. Its interpretation of the
term legal disqualification in Article 244 of the Revised
Penal Code defies legal cogency. Legal disqualification
cannot be read as excluding temporary disqualification
in order to exempt therefrom the legal prohibitions under
the 1987 Constitution and the Local Government Code
of 1991. We reiterate the legal maxim ubi lex non
distinguit nec nos distinguere debemus. Basic is the rule
in statutory construction that where the law does not
distinguish, the courts should not distinguish. There
should be no distinction in the application of a law
where none is indicated.

Further, the Sandiganbayan, Fourth Division denied

Villapando’s Motion for Leave to File Demurrer to
Evidence yet accommodated Villapando by giving him
five days within which to inform it in writing whether he
will submit his demurrer to evidence for resolution
without leave of court.
G.R. No. 169425 March 4, 2008
Notably, a judgment rendered with grave abuse of
discretion or without due process is void, does not exist ROBERTO LICYAYO, Petitioner,
in legal contemplation and, thus, cannot be the source of vs.
an acquittal.18 PEOPLE OF THE PHILIPPINES, Respondent.

The Sandiganbayan, Fourth Division having acted with DECISION

grave abuse of discretion in disregarding the basic rules
of statutory construction resulting in its decision
granting Villapando’s Demurrer to Evidence and
acquitting the latter, we can do no less but declare its
decision null and void.
WHEREFORE, the petition is GRANTED. The
Decision dated May 20, 2004 of the Sandiganbayan,
Fourth Division, in Criminal Case No. 27465, granting
private respondent Alejandro A. Villapando’s Demurrer
to Evidence and acquitting him of the crime of unlawful
appointment under Article 244 of the Revised Penal
Code is hereby declared NULL and VOID. Let the
CHICO-NAZARIO, J.:
In this Petition for Review on Certiorari under Rule 45
of the Rules of Court,1 petitioner Roberto Licyayo prays
for the reversal of the Decision dated 6 May 20052 and
Resolution dated 12 August 20053 of the Court of
Appeals in CA-G.R. CR No. 27359, affirming with
modification the Decision4 dated 20 February 2003 of
the Regional Trial Court (RTC) of Lagawe, Ifugao,
Branch 14, in Criminal Cases No. 819 and 820,
convicting petitioner of Homicide under Article 249 of
the Revised Penal Code in Criminal Case No. 819 while

28 | P a g e
dismissing Criminal Case No. 820 for Direct Assault as
regards him.5
The factual antecedents are as follows:
On 1 February 1993, an Information6 in Criminal Case
No. 819 was filed before the RTC charging petitioner,
his brother Aron Licyayo (Aron), Paul Baguilat (Paul)
and Oliver Buyayo (Oliver) with Homicide under Article
249 of the Revised Penal Code quoted as follows:
The undersigned Provincial Prosecutor, hereby accuses
ROBERTO LICYAYO, OLIVER BUYAYO, ARON
LICYAYO, and PAUL BAGUILAT, of the crime of
HOMICIDE and committed as follows:
That on or about the 16th day of February, 1992, in the
Municipality of Kiangan, Ifugao, and within the
jurisdiction of this Honorable Court, the above-named
accused conspiring, confederating and mutually helping
one another and with intent to kill, DID then and there
willfully, unlawfully and feloniously attack, assault one
Rufino Guay, stabbing him with the use of a double
bladed weapon, thereby inflicting upon the victim
several stab wounds which directly caused his death.
On 11 May 1993, an Amended Information7 in Criminal
Case No. 820 was filed before the RTC accusing
petitioner of Direct Assault under Article 148 of the
Revised Penal Code, viz:
That on or about the 16th of February 1992, in the
Municipality of Kiangan, Ifugao, and within the
jurisdiction of this Honorable Court, the above-named
accused, DID then and there willfully, unlawfully and
feloniously attack and assault PO3 Miguel Buyayo with
the use of a bladed weapon while the victim was in the
performance of his official duties as a policeman which
fact was known to the accused.
Subsequently, these cases were consolidated for joint
trial. In Criminal Case No. 819, petitioner, Aron and
Paul pleaded "Not Guilty" to the charge of homicide,8
while the other accused, Oliver, was not arraigned.9 With
respect to Criminal Case No. 820, petitioner was not
arraigned.10 Thereafter, trial on the merits ensued.
The prosecution presented as witnesses three members
of the Philippine National Police (PNP), Kiangan,
Ifugao, namely, Joseph Danglay (Officer Danglay),
Miguel Buyayo (Officer Buyayo) and Alfonso Baguilat
(Officer Baguilat); and three other persons namely,
Jeffrey Malingan (Jeffrey), Jimmy Guay (Jimmy), and
Jose Guay (Jose). Their testimonies, woven together,
bear the following:
On 16 February 1992, victim Rufino Guay (Rufino),
along with his friends, Jeffrey and a certain Joel
Dumangeng (Joel) attended a wedding at Mabbalat,
Kiangan, Ifugao. Petitioner, together with his friends,
Paul and Oliver, were also present at the same wedding.
After the wedding reception, Rufino, Jeffrey and Joel
went to Natama’s Store at the Kiangan Public Market
and ordered two bottles of gin. While the three were
drinking gin at the said store, petitioner, Paul and Oliver
arrived and likewise ordered bottles of gin. Later,
petitioner, Paul and Oliver left the store. Subsequently,
Rufino, Jeffrey and Joel likewise adjourned their
drinking session and left the store.11
Rufino, Jeffrey and Joel dropped by at Famorca’s Store.
Petitioner and his brother, Aron, as well as Paul and
Oliver, were also present therein. While Jeffrey was
talking to the store’s owner, Larry Famorca (Larry), a
brawl suddenly occurred between Rufino and Aron. As a
consequence thereof, Rufino fell to the ground. Aron
thereafter placed himself on top of Rufino and punched
the latter several times. Jeffrey approached the two and
tried to pacify them. Paul entered the scene and punched
Jeffrey on the head. Thereupon, a scuffle followed.12
Officers Danglay, Buyayo and Baguilat were on their
way home from the Kiangan Police Station when they
heard some individuals calling for police assistance
regarding the commotion. The three officers rushed to
the scene. Upon arriving thereat, they saw petitioner
holding a six-inch double-bladed knife and walking
towards Rufino and Aron who were then wrestling with
each other. Officer Buyayo, then wearing only civilian
clothes and unarmed, approached petitioner and held the
latter’s back collar to prevent him from joining the fray.
Petitioner turned around, faced Officer Buyayo, and tried
to stab the latter but he missed. Officer Buyayo retreated.
The officers introduced themselves to petitioner as
policemen and pleaded with him to put down the knife.
Petitioner ignored the officers’ pleas.13
Afterwards, petitioner approached Rufino, who was then
wrestling with Paul, and stabbed Rufino in different
parts of the body.14 Officer Baguilat fired a warning shot
while Officer Danglay immediately pounced on
petitioner and disarmed the latter.15 Petitioner was
brought to the Kiangan Police Station while Rufino was
taken to a nearby hospital where he later died due to stab
wounds.16
The prosecution also presented documentary and object
evidence to bolster the testimonies of its witnesses, to
wit: (1) sworn statements of Officer Danglay, Officer
Buyayo, Officer Baguilat, Jeffrey, Jimmy, Jose and
Arsenio;17 (2) death certificate of Rufino;18 (3)
certification from the Ifugao General Hospital stating
that Rufino sustained several stab wounds which directly
caused his death;19 and (4) the knife used by the
petitioner in stabbing Rufino.20
For its part, the defense proffered the testimonies of
petitioner and his corroborating witnesses -- Daniel
Cayong (Daniel), Aron, and Paul -- to refute the
foregoing accusations. Their version of the incident is as
follows:
On the morning of 16 February 1992, petitioner attended
a wedding at Mabbalat, Kiangan, Ifugao. After the
wedding, petitioner met Paul and they proceeded to the
Kiangan Public Market where they chanced on Oliver, a
certain Kimayong and Fernando who invited them for a
drink in one of the stores near the market. Later, Rufino,
Jeffrey and Joel entered the store where petitioner’s
group was drinking and occupied a separate table.
Jeffrey and Joel approached petitioner’s group and sat at
their table. Jeffrey shook and pressed hard the hand of
29 | P a g e
Oliver. The storeowner signalled petitioner’s group to
pay its bills and leave. Petitioner brought out his wallet
to pay their bills but Jeffrey, who was still holding and
pressing Oliver’s hand, told him to buy another bottle.
Petitioner pleaded with Jeffrey to let go of Oliver’s hand
because the latter is his friend. Jeffrey, however, warned
him not to interfere if he did not want to get involved.
Petitioner glanced at the store’s door and saw Rufino
standing therein. Thereafter, Jimmy passed by in front of
the store and made a signal to Rufino, Jeffrey and Joel.
Petitioner, Paul and Oliver paid their bills, left the store
and proceeded to Sakai Store.21
Subsequently, Jeffrey and a companion went to
Famorca’s Store and saw Aron and Daniel seated in one
of the benches outside the store. Jeffrey then told his
companion "Can you tackle his brother?" Sensing that
he was the brother being referred to by Jeffrey and a
trouble might occur, Aron went inside the store but
Jeffrey followed him. Thus, Aron went outside the store
and sat on one of the benches nearby. Afterwards,
Rufino arrived at the store and approached Aron. Rufino
held the collar of Aron’s shirt and punched the latter on
the left cheek. Jeffrey also approached Aron and grabbed
the latter’s arm. Aron fought back but he fell to the
ground.22
Daniel immediately proceeded to Sakai Store and told
petitioner that Aron was being mauled. Petitioner went
to the scene and saw Rufino and Jeffrey punching Aron
who was sprawled on the ground. Petitioner pushed
Jeffrey away but the latter’s other companions suddenly
arrived and started hitting him. Petitioner fought back
but he was overpowered. Petitioner cannot recall
anymore the subsequent events that transpired.23
After trial, the RTC rendered a Decision dated 20
February 2003, finding petitioner guilty of homicide in
Criminal Case No. 819. It acquitted Aron and Paul
because the prosecution failed to prove the existence of
conspiracy. It did not rule on the liability of Oliver
because he was not arraigned in the said case. Further, it
dismissed Criminal Case No. 820 for direct assault
because petitioner was not arraigned therein.24
The dispositive portion of the decision in Criminal Case
No. 819 reads:
WHEREFORE, premises considered, accused Roberto
Licyayo is hereby found GUILTY beyond reasonable
doubt of the crime of Homicide under Article 249 of the
Revised Penal Code. Applying the provisions of the
Indeterminate Sentence Law and there being no
aggravating circumstances, he is hereby sentenced to
suffer the penalty of 8 years of prision mayor as
minimum to 15 years of reclusion temporal medium as
maximum.
Further, accused is hereby ordered to pay the victim’s
heirs the amount of ₱50,000.00 as civil indemnity for the
death of Rufino Guay. "Per prevailing jurisprudence,
death indemnity is fixed in the sum of ₱50,000.00. This
kind of civil indemnity is separate and distinct from
other forms of indemnity for damages and is
automatically awarded without need of further proof
other than the fact of death and that the accused is
responsible therefore." (People v. Julius Kinok, G.R. No.
104629, November 13, 2001; Case Digest of Supreme
Court Decisions; vol. 53, No. 2).
Likewise, accused is ordered to pay the victim’s heirs
another ₱50,000.00 as moral damages. "This award is
mandatory and does not require proof other than the
death of the victim." (People v. Mariano Pascua, Jr.,
G.R. No. 130963, November 27, 2001; Case Digest of
Supreme Court Decisions; vol. 53, No. 2).
But the Court cannot award actual damages as testified
to by the victim’s father, Jose Guay, in the amount of
₱12,000.00 since the same were not covered by receipts.
The same goes true with the alleged annual income of
the deceased in the amount of ₱30,000.00. "Well-
entrenched is the doctrine that actual, compensatory and
consequential damages must be proved, and cannot be
presumed." (Ibid.).25
Petitioner appealed to the Court of Appeals. On 6 May
2005, the appellate court promulgated its Decision
affirming with modifications the RTC decision. In
addition to the civil indemnity and moral damages
awarded by the RTC, the appellate court also ordered
petitioner to pay for the loss of earning capacity of
Rufino in the amount of ₱580,050.00 and temperate
damages in the amount of ₱25,000.00. Thus:
WHEREFORE, in view of the foregoing, the decision of
the Regional Trial Court, Branch 14 of Lagawe, Ifugao
in Criminal Cases Nos. 819 and 820 is hereby
AFFIRMED with MODIFICATION as to the award of
damages, in that accused-appellant is also ordered to pay
the victim’s heirs the following:
(a) the amount of ₱25,000.00 as temperate
damages; and
(b) the amount of ₱580,050.00 for lost
earnings.26
Petitioner filed a Motion for Reconsideration which the
appellate court denied. Hence, petitioner elevated the
instant case before us on the following grounds:
I.
THE INFORMATION FILED IS NOT
SUFFICIENT AS IT DID NOT
SPECIFICALLY CHARGED PETITIONER
FOR THE CRIME OF "HOMICIDE"
DEFINED AND PENALIZED UNDER
ARTICLE 249 OF THE REVISED PENAL
CODE; HENCE, PETITIONER COULD NOT
BE VALIDLY CONVICTED FOR SAID
CRIME.
II.
GRANTING THAT THE INFORMATION IS
SUFFICIENT, PETITIONER IS ENTITLED
TO THE MITIGATING CIRCUMSTANCES
OF SUFFICIENT PROVOCATION AND
INTOXICATION.27
30 | P a g e
Anent the first issue, petitioner points out that the
Information does not specifically mention the law which
he allegedly violated and for which he was charged.
Although the information accuses him of the crime of
homicide, it does not categorically state that he is being
charged with homicide, as defined and penalized under
Article 249 of the Revised Penal Code. According to
him, the information should have been more explicit by
stating that he is being indicted for homicide as defined
and penalized under Article 249 of the Revised Penal
Code. He argues that the specification in the information
of the law violated is necessary to enable him to
adequately prepare for his defense, and that to convict
him under such defective information would violate his
constitutional and statutory right to be informed of the
nature and cause of the accusation against him.28
Section 6, Rule 110 of the Revised Rules of Criminal
Procedure provides that an information is sufficient if it
states the name of the accused; the designation of the
offense given by the statute; the acts or omissions
complained of as constituting the offense; the name of
the offended party; the approximate date of the
commission of the offense; and the place where the
offense was committed.
With particular reference to the designation of the
offense, Section 8, Rule 110 of the Revised Rules of
Criminal Procedure merely directs that the information
must state the designation of the offense given by the
statute, aver the acts or omissions constituting the
offense, and specify its qualifying and aggravating
circumstances.
The information in the instant case contains the
foregoing required statements. The information mentions
the name of petitioner as the accused, the name of
Rufino as the offended party, the date and place of the
commission of the crime, and designates the crime
committed by petitioner as homicide. It also alleges the
act of petitioner constituting homicide which is the
unlawful stabbing of Rufino with the use of a bladed
weapon.29
The fact that the information does not specifically
mention Article 249 of the Revised Penal Code as the
law which defines and penalizes homicide, does not
make it defective. There is nothing in the afore-quoted
Rules which specifically requires that the information
must state the particular law under which the accused is
charged in order for it to be considered sufficient and
valid. What the Rules merely require, among other
things, is that the information must designate the offense
charged and aver the acts constituting it, which in this
case, were obviously done. People v. Gatchalian30
categorically stated that there is no law which requires
that in order that an accused may be convicted, the
specific provision which penalizes the act charged be
mentioned in the information.
Besides, it should be stressed that the character of the
crime is determined neither by the caption or preamble
of the information nor by the specification of the
provision of law alleged to have been violated, they
being conclusions of law, but by the recital of the
ultimate facts and circumstances in the information.31
The sufficiency of an information is not negated by an
incomplete or defective designation of the crime in the
caption or other parts of the information but by the
narration of facts and circumstances which adequately
depicts a crime and sufficiently apprises the accused of
the nature and cause of the accusation against him.32
Although the information herein does not specifically
mention Article 249 of the Revised Penal Code as the
law which defines and penalizes homicide, it,
nonetheless, narrates that petitioner stabbed Rufino with
a bladed weapon during the incident which caused the
latter’s death. The foregoing allegation unmistakably
refers to homicide under Article 249 of the Revised
Penal Code which is the unlawful killing of any person
without any attendant circumstance that will qualify it as
murder, parricide or infanticide.
Apropos the second issue, petitioner alleges that Rufino
started the scuffle by punching Aron on the left cheek;
that by such act, Rufino had given him sufficient
provocation; and that it was the pitiful sight of Aron
lying on the ground and being beaten by Rufino and
Jeffrey which caused him to stab Rufino.33 Petitioner
further claims that he was intoxicated during the
incident; that this fact was affirmed by Officers Danglay
and Baguilat in their court testimonies; that his
intoxication was not subsequent to any plan to commit a
felony because the encounter between him and Rufino
was merely accidental and there was no previous
agreement to harm Rufino; that prior to the incident, he
met old friends and had a drink with them; that such is a
mere custom or practice among Filipinos; and that his
intoxication is not habitual.34
Under paragraph 4, Article 13 of the Revised Penal
Code, a criminal liability may be mitigated if there was
sufficient provocation on the part of the offended party
which immediately preceded the act complained of. To
avail oneself of this mitigating circumstance, it must be
duly proven that the alleged provocation originated from
the offended party.35
The records do not sufficiently establish who between
Rufino and Aron started the brawl which resulted in the
stabbing of Rufino by petitioner. What is evident is that
Rufino and Aron suddenly and unexpectedly grappled
during the incident.36 As aptly observed by the RTC:
From the facts of the case earlier discussed, the fight
between Rufino Guay and Aron Licyayo was so
sudden. In his defense, Aron Licyayo in his direct
examination testified though self-serving, that it was
victim Rufino Guay who punched him first and so he
fought back.
Nevertheless, this claim of unlawful aggression is belied
during his cross-examination:
Q. You claim, Mr.Witness, that on February 16, 1992,
you did not know the late Rufino Guay?
A. Yes, Sir.
Q. You therefore cannot imagine why he should assault
you since you did not know each other?
31 | P a g e
A. None.
Q. You never had any misunderstanding or altercation
prior to February 16, 1992?
A. None.
Q. And all of a sudden, in the afternoon of February 16,
1992 you fought each other and you being bigger than
Rufino Guay, you are on top of him, is that right?
A. Yes, sir.
Q. And you delivered several blows when you were on
top of him?
A. No because they were already many and they held
me.
Q. How many blows did you deliver when you were on
top of him before the others came?
A. I do not know how many.
Q. Was it more than ten?
A. No.
Q. Was it more than fifteen?
A. I do not know.
Q. Why do you not know, Mr. Witness, were you drunk
at that time?
A. No, I was not. (TSN, pp. 82-83, Crim. Case No. 820).
Granting arguendo that there was unlawful aggression
on the part of the victim, it is obvious that immediately
he became the underdog, literally even. He was easily
overpowered by the bigger and sober Aron Licyayo,
who unfortunately, does not know how to count. With
this development, the situation changed. The aggressor
became the attacked and the attacked, the aggressor.
But even from the testimonies of both the prosecution
and the defense witnesses, the former (prosecution)
prevailed in convincing this Court that unlawful
aggression was not started by any of the protagonists
but that a sudden fight was started by Rufino Guay
and accused Aron Licyayo. This is verifiable from the
testimony of the fourth prosecution witness, Jeffrey
Malingan.
Defense on the other hand, tried to show that it was the
victim who started the unlawful aggression through
witnesses Daniel Cayong and accused Aron Licyayo.
They failed miserably, however, to show this. Daniel
Cayong, in his direct examination narrated that it was
not only Rufino Guay who started the trouble but rather
he and his two companions Joel Dumangeng and Jeffrey
Malingan took hold of Aron Licyayo and started
punching him. The latter witness, as shown earlier,
showed his bias by inculpating the deceased only to
contradict himself that the fight suddenly started when
he and the deceased grappled.37
The rule is that the findings of the trial court, its
calibration of the testimonies of the witnesses and its
assessment of the probative weight thereof, as well as its
conclusions anchored on said findings are accorded
respect if not conclusive effect. This is more true if such
findings were affirmed by the appellate court. When the
trial court’s findings have been affirmed by the appellate
court, said findings are generally binding upon this
Court.38
Since it was not convincingly shown that the alleged
provocation originated from Rufino, the mitigating
circumstance of sufficient provocation should not be
appreciated in favor of petitioner. We have held that
where there is no evidence as to how the quarrel arose,
the accused is not entitled to the mitigating circumstance
of sufficient provocation.39
For intoxication to be considered as a mitigating
circumstance, it must be shown that the intoxication
impaired the willpower of the accused and that he did
not know what he was doing or could not comprehend
the wrongfulness of his acts.40 The person pleading
intoxication must prove that he took such quantity of
alcoholic beverage, prior to the commission of the crime,
as would blur his reason.41
In the case at bar, there is no plausible evidence showing
that the quantity of liquor taken by petitioner was of
such quantity as to affect his mental faculties. On the
contrary, the fact that petitioner could recall the details
that transpired during and after his drinking session with
friends is the best proof that he knew what he was doing
during the incident. His vivid narration that he had a
confrontation with Rufino, Jeffrey and Joel during the
drinking session; that Daniel approached and told him
that Aron was being mauled; that he immediately went
to the scene and saw Aron being beaten by Rufino and
Jeffrey; that he pushed Jeffrey away from Aron; that he
was allegedly beaten by the companions of Jeffrey; and
that he fought back but was allegedly overpowered --- all
point to the conclusion that petitioner had complete
control of his mind during the incident.42
Petitioner cannot avail himself of the mitigating
circumstance of intoxication merely on the testimonies
of the prosecution witnesses that he was drunk during
the incident.43 Such testimonies do not warrant a
conclusion that the degree of petitioner’s intoxication
had affected his faculties.44 There must be convincing
proof of the nature and effect of his intoxication which
petitioner failed to adduce in the present case.45
We now go to the propriety of the sentence imposed on
petitioner and the damages awarded to the heirs of
Rufino.
Homicide is punishable by reclusion temporal.46 There
being no mitigating or aggravating circumstance proven
in the case at bar, the penalty should be applied in its
medium period of 14 years, 8 months and 1 day to 17
years and 4 months.47 Applying the Indeterminate
Sentence Law, the maximum penalty will be selected
32 | P a g e
from the above range, with the minimum penalty being Net earning = 2/3 (58) x (30,000.00 –
selected from the range of the penalty one degree lower capacity ₱15,000.00)
than reclusion temporal, which is prision mayor (six = 38.67 x ₱15,000.00
years and one day to 12 years). We found the = ₱580,050.00
indeterminate sentence of eight years of prision mayor
as minimum, to 15 years of reclusion temporal as WHEREFORE, the petition is hereby DENIED. The
maximum, imposed by the RTC, and affirmed by the Decision dated 6 May 2005 and Resolution dated 12
Court of Appeals, sufficient. August 2005 of the Court of Appeals in CA-G.R. CR
No. 27359 is hereby AFFIRMED in toto. No costs.
The Court of Appeals correctly awarded civil indemnity
in the amount of ₱50,000.00 and moral damages SO ORDERED.
amounting to ₱50,000.00 in line with prevailing
jurisprudence.48

As to actual damages, Jose testified that his family

incurred expenses for the hospitalization and funeral of
Rufino.49 However, since no documentary evidence was
proffered to support this claim, it cannot be awarded.50
Nonetheless, the award of ₱25,000.00 in temperate
damages in homicide or murder cases is proper when no
evidence of the said expenses is presented in the trial
court.51 Under Article 2224 of the Civil Code,52
temperate damages may be recovered as it cannot be
denied that the heirs of the victim suffered pecuniary
loss although the exact amount was not proved.53 Thus,
the award of temperate damages in the amount of
₱25,000.00 by the Court of Appeals is in order.

We also agree with the Court of Appeals that the heirs of

Rufino should be indemnified for loss of earning
capacity pursuant to Article 2206 of the New Civil
Code54 in the amount of ₱580,050.00. In accordance
with current jurisprudence,55 the formula for the
indemnification for loss of earning capacity is:

Net Earning = Life Expectancy x Gross

Capacity Annual Income (GAI) –
Living Expenses
= 2/3(80 – age of deceased) x
(GAI – 50% of GAI)
Generally, documentary evidence is necessary for the
purpose of proving the victim’s annual income. As an
exception, testimonial evidence suffices if the victim
was either: (1) self-employed, earning less than the
minimum wage under current labor laws, and judicial
notice may be taken of the fact that in the victim’s line
of work, no documentary evidence is available; or (2)
employed as a daily-wage worker earning less than the
minimum wage under current labor laws.56

Rufino falls under these exceptions. Jose testified that

Rufino was earning an average annual gross income of
₱30,000.00 from gardening and cultivating ricefields.57
Rufino was 22 years old at the time of his death.58
G.R. No. 74433 September 14, 1987
We have held that in the absence of proof as regards the
victim’s living expenses, his net income is deemed to be PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
50 percent of his gross income.59 vs.
FRANCISCO ABARCA, accused-appellant.
Applying the above-stated formula, the indemnity for the
loss of earning capacity of Rufino is ₱580,050.00,
computed as follows: SARMIENTO, J.:

This is an appeal from the decision of the Regional Trial

Court of Palo, Leyte, sentencing the accused-appellant

33 | P a g e
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
34 | P a g e
 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 by-product 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 above-quoted 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
35 | P a g e
 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 accused-appellant, 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 accused-appellant 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.
G.R. No. 108491 July 2, 1998
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
36 | P a g e
vs.
SERGIO AMAMANGPANG, accused-appellant.
KAPUNAN, J.:
In the early morning of 8 November 1991, SPO1 Placido
Flores, a member of the Philippine National Police in
Carmen, Bohol, was fatally hacked with a scythe and
shot with a .38 caliber revolver in the home of appellant
Sergio Amamangpang in Guadalupe, Carmen, Bohol.
On 17 January 1992, appellant was charged with the
murder of Flores in an information which read, thus:
That on or about the 8th day of November, 1991,
in the municipality of Carmen, province of
Bohol, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused,
with intent to kill and without justifiable cause,
with treachery and evident premeditation, did
then and there willfully, unlawfully and
feloniously attack, assault and strike with a
scythe and then shoot with the use of the service
handgun which the accused wrested from the
victim, SPO1 Placido Flores, who was unaware
of the attack, thereby inflicting mortal injuries
on the vital parts of the victim's body which
resulted in the death of the said SPO1 Placido
Flores; to the damage and prejudice of the heirs
of the deceased in the amount to be proved
during the trial.
Acts committed contrary to the provisions of
Article 248 of the Revised Penal Code, as
amended. 1
Upon arraignment, appellant entered a plea of
not guilty.
The prosecution established the following facts:
On 8 November 1991, at the police station in Carmen,
Bohol, SPO1 Placido Flores sought permission from
PO3 Gregorio Alimpolos to go to the house of appellant
with "trustee-prisoner" Elorde Galacio at around 1:00
a.m. It was the birthday of appellant's wife, Sinforiana
and Flores was bringing along Elorde to help roast the
Amamangpang's pig that was that earlier butchered. 2
On their way to appellant's residence aboard the victim's
patrol jeep, Flores and Galacio passed Manuel Noculan
who was walking towards his carinderia at the public
market to see to the newly harvested palay he had
deposited there. Flores stopped and asked Noculan to
accompany them to appellant's house. 3
Upon reaching the Amamangpang residence, Flores and
Galacio entered the house ahead of Noculan. Noculan
followed and upon entering saw Flores sitting on the
stairs with his head resting on the edge of a table.
Noculan seated himself outside the house while Galacio
stood beside the door. Appellant was then standing near
Sinforiana who was cooking in the kitchen. 4
Suddenly, from inside the house, Noculan heard a child
shout, "Father! Don't!" Noculan immediately stood up
and, peering through the door, saw appellant holding a
scythe and about to strike Flores who was already lying
prostrate on the ground, blood oozing from his neck.
Flores was still wearing his fatigue pants and white T-
shirt with PNP emblem. Appellant's daughter, Genalyn
had her arms around his (appellant's) waist. 5 Shocked
by what he had witnessed, Noculan ran and hid. While
running, he heard several gunshots. 6
At the police station around 250 meters away from the
Amamangpang residence, PO3 Alimpolos heard two gun
shots followed by a rapid succession of four shots,
alerting him and another patrolman. Thereafter,
appellant, in bloody clothes and accompanied by his
daughter, arrived at the police station and surrendered
himself to Alimpolos. He admitted to the latter that he
had killed Flores but gave no reason why. Appellant
surrendered a .38 Smith and Wesson revolver and empty
shells.7
Thereafter, police officers Jovencio Ybañez, Alfredo
Llongas and Magdaleno Dano were dispatched to
investigate the incident. At appellant's house, they
retrieved the scythe. 8
Dr. Amalia G. Añana, municipal health officer of
Carmen, Bohol, who was summoned to the crime scene,
found the lifeless body of the victim lying in appellant's
bedroom at the second storey of his house. 9 Her
postmortem report reveals the following findings:
Cause of Death:
A. Incised wounds — multiple at the ff:
1. 6 x 4 inches at the nape; base of the
neck; 7th rib, right axillary region.
2. 6 x 1/2 inch — mid-lateral forearm,
right upper extremity.
3. 5 x 1 inch at the upper lip slicing the
tip of the nose.
B. gunshot wounds, multiple at the ff:
1. 1/4 inch right naso-maxillary bone 2
inches below the right eyeball; right
parietal bone, 3 in number.
2. 1/4 inch — entrance wound at the
right posterior costal 7-rib, 4 inches
from the spinal column.
The body was supine position (sic) with
stretched upward outward upper extremities.
The body from the waist up to his head was all
covered with blood. The mat, floor, blanket and
clothes were soaked with blood. The underwear
at his ankle pants beside the left foot and the
blanket underneath the body. The room was
lighted with a small kerosene lamp near the Sto.
Niño image. The body was found 1-1/2 meters
from the lamp and the image. 10
37 | P a g e
In support of its theory that the appellant killed Flores in
a fit of jealousy, the prosecution presented Margarita
Flores (the wife of Placido Flores) who brought a
certification 11 issued by the barangay captain of
Guadalupe, Carmen, Bohol, showing that a complaint
had been lodged against appellant resulting from
physical injuries he had inflicted upon a certain Simon
Betonio on suspicion that Betonio and appellant's wife
were having an affair, but that the parties settled the case
amicably after appellant shouldered the medical
expenses incurred by Betonio.
For his part, appellant admitted killing Flores but
claimed that he did it in defense of his wife's honor. As
an alternative defense, appellant contended that his
action was justified under Article 247 of the Revised
Penal Code, after he caught his wife, Sinforiana and
Flores engaged in the sexual act on that fateful day. He
narrated the events as follows:
In the evening of 7 November 1991, in honor of his
wife's birthday the next day, appellant butchered a pig
with the assistance of Flores and Galacio. When his
wife, Sinforiana and his daughter, Genalyn arrived, the
former prepared their supper. After eating, Genalyn went
to bed and the rest (appellant, Flores, Galacio and
Sinforiana) drank tuba until midnight. Subsequently,
Flores prodded appellant to sleep in his (appellant's)
store at the public market with Galacio to guard the store
against robbers. At first, appellant refused because he
had to wake up early to roast the butchered pig.
However, he changed his mind when Flores assured him
that he would wake him up at dawn when he (Flores)
reported for duty. 12
That settled, Flores, Galacio and appellant bearded the
patrol jeep. After dropping off the two men at the public
market, Flores proceeded home. Appellant, however,
discovered that he left his store key at home. He tried to
force open the padlock but the effort proved futile.
Resigned, he sat beside Galacio who was sleeping on the
bamboo bed near the store. Minutes later, however,
appellant felt cold, so he woke up Galacio and they
decided to go
home. 13
Upon reaching appellant's house, Galacio excused
himself to answer the call of nature. When appellant
entered through the unfinished door at the back of his
house, he heard a noise ("kasikas"). He proceeded
upstairs and lighted a match. To his astonishment, he
saw the half-naked Flores on top of his wife who still
had her clothes on. Thereupon, appellant unsheathed his
scythe and hacked the victim on the neck. He attempted
to strike a second time but the handle of the scythe broke
off. Flores was then lying face down in a crawling
position. 14 Appellant jumped on Flores' back who tried
"to draw his gun." 15 The two grappled for possession
thereof. After wresting the gun from Flores, appellant
ran downstairs. Flores pursued him. Appellant then
faced Flores and shot him on the forehead. Flores
"retraced his way" and fell down. Because of his anger,
appellant consumed all the gun's bullets on the fallen
Flores. 16
Corroborating appellant's story, his wife, Sinforiana,
testified that after supper she drank a little tuba with her
husband, Flores and Galacio. At midnight, her husband
followed the advice of Flores to spend the night in their
store. After her husband, Flores and Galacio left, she
went to sleep with her daughter.
Sinforiana was awakened when Flores "tried to abuse"
her. At first, Flores held her, telling her that he wanted to
borrow money. She told him that she had no money as
they had just made purchases for their store. Responding
to what she said, Flores told her that he had long
developed his love for her. She thus retorted, ''Pre, are
you not foolish? We are close friends, why are you
doing this to me?" But Flores removed his pants and
briefs and embraced her. When Sinforiana tried to resist,
Flores threatened to kill her. While Flores was on top of
her, and embracing her, appellant arrived, unsheathed his
scythe and hacked Flores. Freed from his embrace,
Sinforiana ran away followed by her daughter. 17
Twelve-year-old Genalyn Amamangpang testified that
she was awakened by a noise and her mother saying,
"Pre, why are you still here when in fact you already
went home?" She saw her "maninoy" (godfather) Flores
completely naked. She told him, "Maninoy, what are you
going to do with my mother?" Flores answered, "Keep
quiet there Genalyn because if you will not, I will shot
you." (sic.) Just then, her father arrived and pulled out
his scythe. Genalyn ran outside to fetch a policeman as
her father instructed. She ran towards the public market
but, not seeing any policeman, she went back home.
Upon her arrival, her father told her to go with him to
surrender and, together, they proceeded to the municipal
building where the police station was located. 18
On 8 October 1992, the RTC of Bohol, Branch 1,
Tagbilaran City rendered a decision convicting appellant
of murder. The trial court ruled that appellant's act of
"emptying the bullets of the gun" on the body of the
victim, even when the latter was "already helpless and
severely wounded on the nape" constituted treachery.
Likewise, the trial court appreciated nighttime as a
generic aggravating circumstance and imposed the
penalty of reclusion perpetua upon appellant. The
dispositive portion of the decision reads, thus:
PREMISES CONSIDERED, the Court finds the
accused SERGIO AMAMANGPANG guilty of
the crime of Murder punished under Article 248
of the Revised Penal Code and hereby sentences
him to suffer an imprisonment of Reclusion
Perpetua, with the accessories of law and to pay
the cost.
The accused SERGIO AMAMANGPANG is
further ordered to indemnify the surviving
spouse Margarita Flores and the children of the
late Placido Flores in the amount of FIFTY
THOUSAND PESOS (P50,000.00) representing
indemnity and THIRTY FIVE THOUSAND
PESOS (P35,000.00) representing burial
expenses and in both instances without
subsidiary imprisonment in case of insolvency.
38 | P a g e
 The Smith and Wilson (sic) revolver with Serial
Number .335516 is ordered returned to the
government through the PNP authorities.
SO ORDERED. 19
In this appeal, appellant raises the following issues:
STATEMENT OF ISSUES
I. WHETHER OR NOT KILLING IS
JUSTIFIED AS AN ACT OF DEFENSE OF
HONOR.
II. WHETHER OR NOT THE KILLING HAS
THE CHARACTER OF DEATH UNDER
EXCEPTIONAL, CIRCUMSTANCES AS
PROVIDED FOR UNDER ARTICLE 247 OF
THE REVISED PENAL CODE OF THE
PHILIPPINES.
ASSIGNMENT OF ERRORS
1. The trial court erred in finding the presence of
the element of nighttime in appreciating it as
aggravating circumstance.
2. The trial court erred in finding that accused
emptied the bullets of the firearm in killing the
victim who was already helpless and severely
wounded in the nape.
3. The trial court erred in convicting the accused
of the crime of murder and the subsequent
application of the penalty of reclusion perpetua.
20
Before going to the main defense, we shall first resolve
the preliminaries raised by appellant.
Appellant contends that the pictures taken by the
investigators, depicting the victim's body lying naked in
the bedroom floor, were tampered with and suppressed
by the prosecution. In support, appellant cites the
following testimony of Dr. Añana:
Q Among those policemen who came to you, do
you know if any pictures were taken by them or
any of your companions in your direction?
A There was.
Q Where is the picture now?
A I told the policeman to get a picture, the body
of the victim did not appear in the picture.
Q How many pictures were honestly taken by
the policemen?
A One or two shots.
Q When the picture was taken by the policemen,
that was the time when the body of the victim
was naked and lying face up?
A Yes, sir.
Q You said that the picture was blurred because
you were told by the policemen?
A I think it was Alfredo Luengas who said it
was blurred. I went to the police station I saw
the picture, it was black.
Q Could it be possible that it could be a negative
of another shot not necessarily the shot taken at
the time of the incident?
A It could be. 21
Appellant's contention hardly deserves consideration. As
testified to by Dr. Añana, the pictures taken by the
investigators, unfortunately, turned out "black" meaning
the image did not come out. Hence, there was no sense
in presenting said pictures as exhibits. Nevertheless, it
cannot be asserted with certainty that Flores' body, as
discovered by Dr. Añana when she arrived at the scene
of the crime, was in exactly the same position where he
had actually fallen and died from his wounds. The
position of the body as described by Dr. Añana
contradicts the testimony of prosecution witness
Noculan that when his attention was aroused by the
shout of appellant's daughter, he saw appellant holding a
scythe and was about to strike Flores who was lying
prostrate on the ground, fully clothed, with blood oozing
from his neck. After everybody ran and hid during the
commotion, appellant was left in the house. Therefore,
from the time of the killing up to his surrender to the
authorities, appellant had the opportunity to move the
body of the victim from the ground floor to the second-
storey bedroom and strip him of his lower garments to
make it appear that the victim intended to have sexual
intercourse with his (appellant's) wife.
Appellant also questions the failure of the prosecution to
present the investigators and Galacio as witnesses.
Sec. 5, Rule 110 of the Rules of Court expressly
provides that all criminal actions shall be prosecuted
under the direction and control of the fiscal. Under this
provision, the defense may not dictate on the prosecution
the choice of the latter's witnesses as it is the prerogative
of each party to determine which evidence to submit. 22
Appellant further claims that it was Galacio's role to
ensure that he (appellant) would stay at the market while
Flores went back to appellant's house to "perpetrate his
lascivious scheme." If this was their theory, then, it
should have been the defense which presented Galacio
as witness, not the prosecution.
Proceeding to his main defense, appellant invokes the
justifying circumstance of defense of relative under
Article 11 (2) of the Revised Penal Code:
Art. 11. Justifying circumstances. — The
following do not incur any criminal liability:
1. Anyone who acts in defense of his person or
rights provided that the following circumstances
concur:
39 | P a g e
 First. Unlawful aggression;
Second. Reasonable necessity of the
means employed to prevent or repel it;
Third. Lack of sufficient provocation on
the part of the person defending himself.
2. Anyone who acts in defense of the person or
rights of his spouse, ascendants, descendants, or
legitimate, natural or adopted, brothers or sisters,
or of his relatives by affinity in the same
degrees, and those by consanguinity within the
fourth civil degree, provided that the first and
second requisites prescribed in the next
preceding circumstance are present, and the
further requisite, in case the provocation was
given by the person attacked, that the one
making defense had no part therein.
In cases of self-defense and defense of relatives where
the accused has admitted the killing, we observe the
time-honored rule that "[h]aving made the admission, it
is, thus incumbent upon the accused to prove the
justifying circumstance to the satisfaction of the court in
order to be relieved of any criminal liability. In such
instances, the accused must proffer strong, clear and
convincing evidence of self-defense and depend not on
the infirmity of the prosecution, for even if the latter was
weak, the plea of self-defense cannot prosper especially
so where the accused himself has admitted the killing. . .
. 23
In the case at bar, appellant miserably failed to hurdle
this test. His claim is belied by the physical evidence on
record. First, appellant's contention that he found Flores
with his wife in the bedroom at the second floor of the
house (the place where he cleaved Flores with his
scythe) is negated by the fact that blood was found
splattered on the table, the bamboo floor and the stairs in
the first floor of the house as unmistakably shown in the
pictures taken by amateur photographer Wilberto Dag-
um. 24 We find incredulous appellant's explanation that
after wresting the gun from Flores he ran downstairs
with Flores in pursuit and when he turned and shot
Flores on the forehead the latter was able to "retrace his
way" to the bedroom on the second floor of the house
before falling down. It must be recalled that Flores was
already severely wounded at the nape. Coupled with the
gunshot wound on his forehead, which as testified to by
Dr. Añana, was enough to have caused instantaneous
death, 25 it is, therefore, inconceivable that he was still
able to climb back up the stairs and finally collapse in
the bedroom.
On the contrary, the pictures are consistent with
Noculan's testimony that he saw the bloodied Flores
prostrate on the ground in the first floor of the house and
appellant poised to strike Flores again. 26
Second, appellant's contention that he cut Flores only
once with his scythe is repudiated by Dr. Añana's
findings that the victim's body bore three (3) incised
wounds: at the nape, forearm and upper lip.
Third, Dr. Añana testified that the trajectory of the bullet
wounds was "downward", hence "the assailant must be
higher in position" than the victim. 27 She opined that
the victim may have been shot while already lying
prostrate on the floor. 28
Finally, the testimony of appellant's daughter that Flores
was completely naked 29 is materially inconsistent with
the findings of Dr. Añana that Flores was wearing a shirt
and was naked only from the waist down. 30 It also
contradicts appellant's own testimony that when he was
being pursued by Flores, the latter was only half-naked
— wearing a t-shirt but no brief and trousers. 31
From the foregoing, we find more credible the theory of
the prosecution that Flores was killed in the first floor of
the house, as testified to by Noculan. His body, however,
was subsequently carried upstairs to the bedroom and
was stripped of his pants and underwear to make it
appear that appellant caught Flores in the act of abusing
his wife.
Appellant's story, as previously discussed, is full of
material discrepancies. Appellant testified that he caught
Flores on top of his wife in their bedroom on the second
floor and that he reacted by hacking Flores with his
scythe. But when the scythe's handle broke off, appellant
jumped on Flores' back and they grappled for possession
of Flores' gun. When Dr. Añana and the investigators
arrived, however, they found no signs of struggle in the
second floor bedroom. Dr. Añana testified that "the
things inside the room was (sic) still in order, the Sto.
Niño and the lamp." 32
Likewise, when Dr. Añana discovered Flores' body, she
found his pants by his left foot and his underwear
stripped down to his ankles. 33 But how could Flores
have his underwear around his ankles at the time his
body was found when appellant specifically stated that
Flores was not wearing his trousers and briefs when he
chased appellant and the latter shot him. Thus, the only
explanation for this is that appellant indeed altered the
physical evidence so as to make it conform to his
defense. It must be pointed out that nobody reported the
crime. The police became aware of the incident only
after appellant surrendered himself. Hence, appellant had
the time and opportunity to move the body, remove the
pants, strip the underwear down to the ankles and
concoct the story of defending his wife from the
lecherous intentions of Flores.
The alternative defense presented by appellant is Art.
247 of the Revised Penal Code which provides:
Art. 247. Death of 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.
40 | P a g e
 xxx xxx xxx We agree with the Solicitor General that the aggravating
circumstance of nighttime was not present when the
He asserts that his action was the result of anger crime was committed. No evidence was adduced to
and passion after discovering his wife and his indicate that nocturnity was specially sought by
friend, Flores, engaged in sexual intercourse in appellant or taken advantage of by him to facilitate the
his own home. commission of the crime or to insure his immunity from
capture. 38 The fact that the crime took place at night
Appellant's assertion is unmeritorious. His two bases for was just incidental.
exoneration are markedly inconsistent with each other.
On one hand, he claims that he was defending his wife The mitigating circumstance of voluntary surrender
from Flores who was trying to force himself upon her. should be considered in appellant's favor because of the
On the other, he gives the implication that his wife and concurrence of the following requisites: (a) the offender
Flores were having an illicit affair. Such contradictory had not actually been arrested; (b) the offender
theories are a manifest indication that appellant's surrendered himself to a person in authority or to an
defenses are nothing but mere concoctions. Besides, agent of a person in authority; and (c) the surrender was
appellant's alternative defense is inconsistent with the voluntary. 39
testimonies of his wife (Sinforiana) and daughter
(Genalyn) that Flores threatened to kill them if they PO3 Alimpolos distinctly testified that appellant, on his
refused to accede to his wishes. 34 own volition, appeared at the police station and
surrendered himself shortly after he had killed Flores. 40
The trial court, however, erred in finding that the crime By the presence of this mitigating circumstance and
was committed with treachery. Treachery, which should there being no generic aggravating circumstance, the
be proven as clearly as the crime itself to be considered a penalty imposable shall be the minimum period of
qualifying circumstance, 35 was not conclusively reclusion temporal. 41 Applying the Indeterminate
established in this case. According to prosecution Sentence Law, appellant shall suffer the penalty of
eyewitness Noculan, when he was alerted to the assault prision mayor, minimum as the minimum penalty to
by the warning shout of appellant's daughter and he reclusion temporal, minimum as the maximum penalty.
peeped inside the house, he saw the victim already
prostrate on the bamboo floor, blood oozing from his WHEREFORE, appellant Sergio Amamangpang is
neck and about to be struck by the appellant. Since the hereby found guilty beyond reasonable doubt of the
lone eyewitness failed to witness the initial attack crime of homicide for the killing of SPO1 Placido Flores
inflicted upon the victim, treachery cannot be considered and shall suffer the indeterminate penalty of six (6) years
a qualifying circumstance. 36 and one (1) day of prision mayor minimum as minimum
penalty to twelve (12) years and one (1) day of reclusion
In People v. Beltran, 37 we reiterated the rule that: temporal minimum as maximum penalty. The monetary
awards to the heirs of SPO1 Placido Flores imposed
. . . . There is treachery when, in the upon appellant by the trial court are AFFIRMED. Costs
commission of the crime, the offender against appellant.
employs means, methods and forms
which directly and specially insure the SO ORDERED.
execution thereof without risk to himself
arising from any defense the offender
party might make. The essence of
treachery is the swift and unexpected
attack without the slightest provocation
by the victim. In the case at bar, the
victim may have sustained twenty-two
(22) stab wounds but there is no
evidence as to the manner in which the
attack was made or how the stabbing
resulting in her death began and
developed. The existence of treachery
cannot be established from mere
suppositions nor drawn from
circumstances that existed prior and
after the killing; it must be proved by
clear and convincing evidence or as
conclusively as the killing itself. Where
treachery is not adequately proved,
appellant can only be convicted of
homicide. (Emphasis ours.)

In the absence of treachery, appellant should be

held liable only for homicide under Article 249
of the Revised Penal Code.

41 | P a g e

G.R. No. 132925 December 13, 2006
MARCIAL SIENES, BENITO SIENES, RICO
SIENES and ROGER BANAYBANAY, petitioners,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
GARCIA, J.:
On October 15, 1981, in the then Court of First Instance
(now Regional Trial Court [RTC]) of Negros Oriental,
herein petitioner Marcial Sienes, along with his three (3)
sons and co-petitioners, Benito Sienes (@ Baby Sienes),
Roger Banaybanay (@ Boboy Sienes) and Rico Sienes
were charged with the crime of Murder for the death of
one Felipe de la Cruz, Sr., allegedly committed, per the
indicting Information,1 as follows:
That on or about the 15th day of May, 1981, at
Barangay Kabulacan, Municipality of Sta.
Catalina, Province of Negros Oriental,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused,
conspiring and confederating with each other
and acting in concert, with evident
premeditation, treachery and abuse of superior
strength, did then and there willfully, unlawfully
and feloniously attack, assault, hack and stab
Felipe de la Cruz, Sr. with the use of canes long
bolo and jungle knife with which said accused
were then armed and provided, thereby inflicting
upon the body of said victim the following
injuries, to wit:
* Stab wound, left chest, left parasternal
line at the level of the 4th intercostals
space, 1.5 inch in size, penetrating.
Lung tissue about 1 inch was removed
from the wound opening.
* Stab wound, sternum, 1 inch in size.
* Stab wound, Abdomen, median line, 4
inches above umbilicus.
* Stab wound, left lumbar area 2 inches
in size, 3 inches deep.
* Stab wound, Postero-lateral aspect,
proximal thirds, left forearm, 1.5 inch in
size, 2 inches deep.
* Hack wound, right temporo-occipital
area (traversing thru the ear) 5 inches in
size, inch deep.
* Contusion-Hematoma, left post-
aurcular area.
which caused the death of said Felipe de la Cruz,
Sr. immediately thereafter.
Contrary to Article 248 of the Revised Penal
Code.
When arraigned on October 12, 1984, at which time the
case was already assigned to Branch 21 of the RTC of
Negros Oriental and thereat docketed as Criminal Case
No. 4804, all four (4) petitioners, as accused,
individually entered a plea of "Not Guilty."2
Thereafter, trial on the merits ensued.
In a decision3 dated August 20, 1990, the trial court
found all four (4) accused guilty beyond reasonable
doubt of the crime of Murder as charged, and sentenced
them accordingly, thus:
WHEREFORE, premises considered and of the
fact that the prosecution has proved the guilt of
the four (4) accused beyond reasonable doubt,
the court hereby finds the accused Marcial
Sienes, Benito Sienes (alias Baby Sienes), Rico
Sienes, and Roger Banaybanay (alias Boboy
Sienes) guilty of the crime of murder, as
charged. The accused, Marcial Sienes is entitled
to the benefit of the mitigating circumstance of
voluntary surrender in his favor, with no
aggravating circumstance to offset the same and,
applying the Indeterminate Sentence Law, he is
hereby sentenced to suffer the penalty of
Fourteen (14) years, Eight (8) months and One
(1) day to Seventeen (17) years, Four (4)
months. With regards to the three (3) other co-
accused, namely: Benito Sienes (alias Baby
Seines), Rico Sienes and Roger Banaybanay
(alias Boboy Seines), there being no aggravating
and mitigating circumstance, to offset each
other, and applying the Indeterminate Sentence
Law, the Court hereby sentences them to suffer
the penalty of Seventeen (17) years, Four (4)
months and One (1) day to Twenty (20) years.
All the four (4) accused shall indemnify, jointly
and severally, the heirs of the deceased-victim,
Felipe de la Cruz, the sum of Thirty Thousand
(P30,000.00) Pesos as jurisprudential damages,
plus the actual damages/expenses suffered in the
sum of Six Thousand (P6,000.00) Pesos,
representing Two Thousand (P2,000.00) Pesos
for embalming costs, One Thousand (P1,000.00)
for tomb-making expenses and Three Thousand
Pesos for wake and vigil expenses, with an
additional Five Thousand (P5,000.00) Pesos, as
moral damages, and to pay the costs of the
proceedings.
SO ORDERED.
Unable to accept the judgment of conviction, all the four
(4) accused went on appeal to the Court of Appeals (CA)
in CA-G.R. CR No. 10252. In a decision4 dated January
31, 1996, the CA, thru its then 12th Division, modified
42 | P a g e
the appealed decision of the trial court by ruling out the
presence of conspiracy among the four (4) accused and
the attendance of treachery and evident premeditation in
the commission of the offense. Accordingly, the CA
found the crime committed to have been merely
Homicide, not Murder, of which only the father, Marcial
Sienes, was sentenced as principal while his three (3)
sons were adjudged as mere accomplices. More
specifically, the CA decision dispositively reads:
WHEREFORE, the Decision of the trial court
convicting accused-appellant [petitioners]
Marcial Sienes, Benito Sienes, Rico Sienes and
Roger Banaybanay is hereby MODIFIED.
Appellant Marcial Sienes is hereby convicted of
HOMICIDE, and taking into account the
mitigating circumstance of voluntary surrender,
is hereby sentenced to suffer the penalty of
imprisonment from eight (8) years and one (1)
day of prision mayor medium as minimum, to
twelve (12) years and one (1) day of reclusion
temporal minimum as maximum. The indemnity
for the death of the victim, Felipe de la Cruz,
Sr., is hereby increased to P50,000.00 in
accordance with recent Jurisprudence.
On their part, appellants Benito Sienes, Rico
Sienes and Roger Banaybanay are hereby
convicted as accomplices to the crime of
homicide, and are hereby sentenced each to
suffer the penalty of four (4) years and two (2)
months of prision correccional maximum as
minimum to eight (8) years and one (1) day of
prision mayor medium as maximum.
In all other respects, the Decision stands. Costs
de officio.
SO ORDERED.
With their motion for reconsideration having been
denied by the CA in its Resolution5 of February 10,
1998, father and sons are now with this Court via this
petition for review on certiorari under Rule 45 of the
Rules of Court, claiming that the CA erred -
1. XXX IN DECLARING ACCUSED RICO
SIENES, BENITO SIENES AND ROGER
BANAYBANAY AS ACCOMPLICES,
CONTRARY TO ART. 18 OF THE RPC;
2. XXX IN NOT CONSIDERING THE
TESTIMONY OF THE OTHER
PROSECUTION WITNESS ROMULO
TUBONGBANUA WHICH MATERIALLY
CONTRADICTED THE TESTIMONY OF
CRESENCIO TABLO, AS CREATING
DOUBT AS TO THE GUILT OF THE
ACCUSED CONTRARY TO LAW THAT IN
CASE OF DOUBT IT SHOULD BE
RESOLVED IN FAVOR OF THE ACCUSED,
AND CONTRARY TO THE EVIDENCE ON
RECORD;
3. XXX IN NOT CONSIDERING AS
MITIGATING CIRCUMSTANCE THE
DEFENSE OF THE BARANGAY CAPTAIN,
FOR THE VICTIM WAS IN THE ACT OF
ASSAULTING A PERSON IN AUTHORITY.
We DENY.
In the course of trial in the court of origin, the
prosecution presented two (2) alleged eyewitnesses to
the incident, namely Cresencio Tablo and Romulo
Tubongbanua. Also presented were Dr. Renato Moleta,
acting Municipal Health Officer of Sta. Catalina, Negros
Oriental, and Rizalina de la Cruz, wife of the victim. For
its part, the defense presented all the four (4) accused
themselves, and one Tiburcio Jamin, a member of the
Integrated Police of Sta. Catalina, Negros Oriental.
Prosecution witness Cresencio Tablo testified that on
May 14, 1981, during the eve of the barrio fiesta of
Barangay Kabulukan, Sta. Catalina, Negros Oriental, he
attended an evening dance party at the Primary School of
Kabulukan. While the dance party was going on, the
victim, Felipe de la Cruz, Sr. got hold of the microphone
and announced a special dance number for some
persons. The special dance number did not push through
because petitioner Marcial Sienes, who was then the
barangay captain of Kabulukan, prevented the music
from being played and said over the microphone that the
announcement made by the victim, who incidentally was
his kumpadre, is foolish, then punched the victim on the
face. Instead of retaliating, the victim just uttered, "Pare,
why do we have to quarrel this?" Again, Marcial threw
another punch at the victim. Thereupon, Marcial's son,
Benito Sienes (@ Baby), struck the victim with a
kamagong cane, hitting the latter on the forehead which
caused him to feel dizzy and to fall down. With the
victim already down, Marcial, using a hunting knife, his
other son Roger Sienes (@ Boboy), using a pinuti, and
his two (2) other sons, Benito and Rico, both using
kamagong canes, took turns in striking the victim. This
witness further testified that the father Marcial Sienes
stabbed the victim thrice while both Benito and Roger
stabbed him once, using the weapon called pinuti.
The other prosecution witness, Romulo Tubongbanua,
testified that in the evening of May 14, 1981, he likewise
attended the barangay dance party at the Primary School
of Kabulukan, Sta. Catalina, Negros Oriental. While the
dancing was going on, some young people were making
trouble but Marcial Sienes, who was then the Barangay
Captain, was able to maintain peace and order.
According to this witness, he observed that Marcial and
his three (3) sons, namely, Benito, Rico and Roger, were
all armed at that time. At around one o'clock past
midnight, the victim announced over the microphone a
special dance number, but the music was stopped and
few minutes later, he heard people shouting as fight
erupted. Turning his head to the direction of the noise,
he saw the victim hugging Marcial while the latter's sons
Benito, Roger, and Rico were attacking the victim.
When he went nearer, he saw Benito, who was behind
the victim, hitting the latter with a cane or bartolina,
while Roger, who was at the left side of the victim,
holding a bartolina. He did not see Rico very clearly.
Both Benito and Roger struck the victim once. It was
after the two (Benito and Roger) struck the victim that
he (witness) was able to reach for them and when he got
hold of Benito's hand, he told the latter, "No, Be, let's
43 | P a g e
talk about this." Then, Benito stopped and Roger went
away. After the victim noticed that he was no longer
being attacked, the victim managed to stand up. For his
(witness) part, he released Marcial who thereupon ran
away. However, after a few steps, the victim lost his
balance and fell on the ground. Marcial then followed
the victim and stabbed him with a dagger, which was
tucked on Marcial's waist. The victim who was lying on
his back was hit on the breast. The victim managed to
stand up again and run but tripped on a pupil's desk
which caused him to fall down. Marcial followed the
victim and stabbed him once more. For the third time,
the victim tried to get up and run towards the stage, but
again he fell down. Marcial knelt over him and, for the
third time, stabbed the victim causing the latter's
instantaneous death. As to how many times Marcial
stabbed the victim on that third occasion, this witness
was not certain.
Dr. Renato Moleta, Acting Municipal Health Officer of
Sta. Catalina, Negros Oriental, performed the autopsy on
the victim's cadaver on May 15, 1981 at the dancing area
of Barangay Kabulukan and prepared a post-mortem
report thereon. According to this witness, he discovered
six (6) wounds on the body of the victim and a 7th injury
with a contusion-hematoma. This witness further
testified that when he examined the victim's body, it was
already in rigid condition.
Rizalina de la Cruz, wife of the victim, testified on the
funeral expenses amounting to P6,000.00 which the
family incurred as a result of her husband's death. She
added that during the lifetime of her husband, the latter
farmed their 8.5 hectares of land which were planted
with sugarcane, corn, bananas, and coconut. Her
husband left her with 14 children.
In his defense, the father, Marcial Sienes, while
admitting having killed the victim, insisted that he did so
in self-defense. He stressed that he was the only one who
inflicted all the wounds on the victim's body. According
to him, while making a round outside the dance hall, his
attention was called by Chairman Luz Badon informing
him that there was a person causing disturbance in the
dance hall. When he went inside, he saw the victim
holding the microphone and telling the people that the
music to be played was a special one and those who
wanted to dance will pay a certain fee. After three
musical records were played and nobody danced, he
approached the victim, told the latter over the
microphone to formalize the announcement as the price
was not specified. Irked, the victim grabbed the
microphone from him and boxed him, hitting him at his
right jaw below his right ear. Thereupon, he retaliated by
slapping the victim at the right cheek, which resulted in
their boxing and wrestling with each other. While
wrestling, the victim tried to pull out a knife, but he was
able to grab the knife and used it against the victim,
hitting the latter at the right cheek and right ear. As the
victim continued to grapple with him, the victim
sustained several wounds, resulting to his death. After
the incident, he surrendered to Pat. Jessie Navarro of the
Sta. Catalina Police Station. He further declared that his
sons, Benito and Roger, were not in the vicinity of the
crime scene when the incident took place, while his
other son, Rico, who was the escort of the queen that
night, was at the gate of the barangay hall. He also
confessed that all the wounds sustained by the victim
were inflicted by him alone and no one else.
Both Rico and Roger testified that they witnessed the
fight between their father and the victim, but they had no
participation in it. For his part, Benito declared that at
the time material to the case, he and his companions
were outside the dance hall. Upon hearing a commotion
that a fight was going on, he took his companions home.
On his way back to the dance hall, he met his mother
who informed him that his father had killed somebody.
Upon entering the dance hall, he saw his father standing
while the victim was lying down, already dead.
When an accused invokes self-defense, as Marcial
Sienes did in this case, the onus probandi to substantiate
such assertion rests on him. He must prove clearly and
convincingly the three elements of self-defense, namely:
(1) unlawful aggression on the part of the victim; (2)
reasonable necessity of the means employed to prevent
or repel the aggression; and (3) lack of sufficient
provocation on the part of the person defending himself.6
Going by Marcial's testimony, it would appear that after
he grabbed the microphone from the victim, the latter
boxed him, hitting him on his right jaw below the ear.
Thereafter, the two of them boxed each other, and, while
wrestling with one another, the victim tried to grab a
hunting knife, as if to kill him, compelling him to repel
the aggression by struggling for the possession of said
knife and thrusting it upon the victim himself.
Marcial's account, however, was belied by prosecution
witness Cresencio Tablo who categorically stated that
the hunting knife in question came from Marcial himself
who was already carrying it in his waist when Marcial
entered the dance hall.7
For sure, the very testimony of Roger Banaybanay @
Boboy, no less a son of Marcial, shows that the victim
was not the aggressor when attacked by Marcial, but was
even making a frantic attempt to evade Marcial's
assault.8
Moreover, the nature, location and number of stab
wounds sustained by the victim also belie and negate
Marcial's pretense of self-defense. It bears repeating that
the nature and number of wounds inflicted on the victim
are constantly and unremittingly considered as important
indicia which disprove a plea for self-defense,
demonstrative as they are of a determined effort to kill
the victim and not just to defend oneself.9 Here, the
victim's wounds, seven (7) in all, most of which were
inflicted on vital parts of the victim's body, are telltale
signs of Marcial's determination to finish off the victim.
Thus, absent an offensive attack on the part of the
victim, Marcial's plea of self-defense must simply fail.
What is more, Marcial himself never claimed self-
defense when he gave his sworn statement to the police
authorities or during the preliminary investigation of the
case. As it is, it was only during trial that he raised for
the first time his theory of self-defense. Persons who act
in legitimate defense of themselves describe fully and in
all candor at the first opportune time all that has
happened with a view to justify their acts. The Court is,
44 | P a g e
therefore, inclined to believe that the idea of self-defense
was a mere afterthought on the part of Marcial.
We now turn to the three other accused-petitioners.
The three presently contend that weight and credence
should not be given to the inconsistent and conflicting
testimonies of the two (2) principal prosecution
witnesses, namely, Cresencio Tablo and Romulo
Tubongbanua. They argue that the testimony of
Tubongbanua on direct examination to the effect that
this witness got hold of Baby's hand after Marcial hit the
victim, and that of Tablo that, as soon as the victim fell
down, the sons of Marcial took turns in stabbing him,
contradicted Tubongbanua's declaration during cross-
examination that before Marcial stabbed the victim, he
(Tubongbanua) got hold of Baby's hand and released
him only after Marcial's last thrust.10
We perceive no contradiction in the testimonies of Tablo
and Tubongbanua. On the contrary, their testimonies
substantially corroborate each other. Tubongbanua's
pleading to Baby to settle the matter was made after the
victim was attacked. To quote from the People's
Comment:11
There is no material inconsistency in the
testimonies of prosecution witnesses Tablo and
Tubongbanua. The testimonies of these two
prosecution witnesses are substantially
corroborative of each other except with respect
to the incident wherein witness Tubongbanua
tried to pacify petitioners Baby and Boboy
Sienes by pleading them that they just talk and
settle the matter, upon which the two, according
to Tubongbanua, desisted from further attacking
the victim. However, it must be observed that
this happened after they had already cooperated
with their father in the commission of the crime
by hacking and stabbing the victim with a pinuti
and hitting him on the forehead with a
kamagong cane, which undoubtedly were
manifestations of the support and cooperation
founded on one single objective, i.e., to kill the
victim.
In any event, Tubongbanua's clear and positive
testimony on direct-examination far outweighed
whatever perceived inconsistencies there were during his
cross-examination. On the other hand, Tablo's testimony
successfully revealed the participation of each of the
three accused-petitioners as accomplices in the
commission of the crime.12
Petitioners made much of the fact that the judge who
rendered the decision was not the same judge who
presided over the entire proceedings below. While it may
be true that a trial judge who conducted the hearing
would be in a better position to ascertain the truth or
falsity of the testimonies of the witnesses, this does not
mean, however, that a judge who did not hear a case
would be less competent as the first to assess the
credibility of witnesses. After all, the evidence presented
are all on record and the witnesses' testimonies are
reflected in the transcripts of stenographic notes.
Reliance on the transcript does not violate substantive
and procedural due process.13
After careful scrutiny of the records, particularly the
testimonies of the two (2) principal prosecution
witnesses, the Court finds no valid reason to disturb the
findings of the trial court on this matter.
In the face of the prosecution witnesses' positive
identification, the trial court, as well as the CA, correctly
rejected the three (3) brothers' denial and alibi. Alibi is a
weak defense. Positive identification, when categorical
and consistent and without any ill-motive on the part of
the eyewitness testifying on a matter at issue, prevails
over sheer denial and alibi which are basically negative,
self-serving and undeserving of any weight in law,
unless substantiated by clear and convincing proof.14
Furthermore, for alibi to prosper, the accused must prove
that not only was he somewhere else when the crime was
committed but he must likewise demonstrate that it was
physically impossible for him to be at the scene of the
crime at the time of its commission,15 which is not true
in this case.
The Court is in full accord with the findings of the CA,
and the observation of the People's counsel, that the
crime was not attended by the qualifying aggravating
circumstances of treachery and abuse of superior
strength, hence, the crime committed for the death of the
victim is only Homicide, not Murder, as charged in the
Information. As aptly pointed out by the CA in the
decision under review:
There was no treachery in this case. x x x. In this
case, it is not shown that the victim was attacked
suddenly and without warning. Appellant
Marcial Sienes merely punched the victim, and
when the latter protested, said appellant punched
him again; and only after then did appellant and
his sons strike him with their weapons. We fail
to see anything treacherous in this situation,
considering that the victim had been put on
guard when he was first slugged. The Supreme
Court said: "There is no treachery if the victim
was forewarned of the attack by the assailant."
(People vs. Estrellanes, Jr., GR. No. 111003,
239 SCRA 235 [1994]) We ruled that treachery
was not proven sufficiently.
Neither can abuse of superior strength be
appreciated in this case. There is no showing
that appellant Marcial Sienes took advantage of
the presence of his armed sons to overwhelm the
victim. As was discussed earlier, the
participation of appellant's sons was due to a
desire to help their father rather than as part of a
concerted and planned attack. It was mentioned
earlier also that when restrained by witness
Tubongbanua, appellants "Baby" and "Boboy"
Sienes desisted. Thus, there was never any
intention to overwhelm the victim by combined
strength. The Supreme Court said: "To
appreciate abuse of superiority, what should be
considered is not that there were three, four or
more assailants of one victim but whether the
aggressors took advantage of their combined
45 | P a g e
 strength in order to consummate the offense." Costs against the petitioners.
(People vs. Francisco, GR No. 106097, 234
SCRA 333 [1994]) Thus, abuse of superior SO ORDERED.
strength cannot be appreciated in this case.

Without the two aggravating circumstances of

treachery and abuse of superior strength, the
crime in this case should only be homicide.16

We are also in agreement with the CA's finding that

there was no conspiracy between and among the three
accused-petitioners and their father. Conspiracy cannot
be inferred from their acts. The fast sequence of
unexpected events leading to the killing of the victim
elicited the spontaneous, though erroneous reactions of
the three. Their impulsive acts cannot but produce the
conclusion that the same were triggered without prior or
evident deliberation. The killing was not the result of a
previous plot or sinister design to end the life of the
victim. Conspiracy, like the crime itself, must be proven
beyond reasonable doubt and the mere presence of a
person at the scene of the crime does not make him a co-
conspirator.17 But though not enough to prove
conspiracy, the presence of Marcial's sons within the
vicinity of the crime scene definitely defies their being
mere innocent spectators.

Here, upon seeing their father assault the victim, the

three sons approached and struck the victim with their
weapons, thus concurring with their father's criminal
design. In fact, the records show that Benito struck the
victim on the forehead with his cane, causing the latter
to fall down, leaving the victim helpless against the
assaults that followed. We note, however, that Marcial's
sons' participation was not indispensable for the death of
the victim since Marcial could have killed the victim by
himself without any need of assistance from his sons, he
being armed with a hunting knife and the victim being
intoxicated. This made the sons of Marcial not
conspirators but mere accomplices.18

Lastly, Marcial contends that as the barangay captain of

the place, he should be entitled to a privileged mitigating
circumstance. He argued that he is a person in authority
and the victim assaulted him, as a person in authority.

We view this as an attempt on the part of Marcial to

avail of the privileged mitigating circumstance of
incomplete justifying circumstance of performing a duty
under paragraph 1, Article 13,19 in relation to paragraph
5, Article 11,20 of the Revised Penal Code. We must
stress that there are two requisites for this justifying
circumstance: (a) that the offender acted in the lawful
exercise of a right or a duty; and (b) that the injury or
offense committed be the necessary consequence of the
due performance of such right or office.21 These two
requisites are wanting in this case. The victim was not
committing any offense at the time and killing him under
the circumstances of this case cannot in any wise be
considered a valid performance of a lawful duty by a
barangay captain.

WHEREFORE, the instant petition is DENIED and the

assailed CA decision and resolution in CA-G.R. CR No.
10252 are AFFIRMED.

46 | P a g e