EN BANC

[G.R. No. 111399. November 14, 1994.]

ODON PECHO , petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE

PHILIPPINES , respondents.

A.M. Navarro Law Office for petitioner.

The Solicitor General for respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED; TO

BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION; ORIGIN AND
OBJECTIVES. — On the assumption that the prosecution's evidence had satis ed the
quantum of proof for conviction for the complex crime of attempted estafa through
falsi cation of public and commercial documents, there is absolutely no merit in the
petitioner's claim that he could not be convicted of the said crime without offending his
right to be informed of the nature and cause of the accusation against him, which is
guaranteed by the Bill of Rights. Such right, an ancient bulwark of the liberties of men,
has its origin in the Bill of Rights which the people of Great Britain demanded and
received from the Prince and Princess of Orange on 13 February 1688. It was adopted
by the Constitution of the United States and was extended to the Philippines by Act No.
235, or the Philippine Bill of 1902. It was later carried into the Jones Law and,
ultimately, enshrined in the Constitutions of 1935, 1973, and 1987. It has the following
objectives: First. To furnish the accused with such a description of the charge against
him as will enable him to make his defense; second, to avail himself of his conviction or
acquittal for protection against a further prosecution for the same cause; and third, to
inform the court of the facts alleged, so that it may decide whether they are su cient in
law to support a conviction, if one should be had (United States vs. Cruikshank, 92 U.S.
542). In order that this requirement may be satis ed, facts must be stated; not
conclusions of law. Every crime is made up of certain acts and intent; these must be set
forth in the complaint with reasonable particularity of time, place, names (plaintiff or
defendant), and circumstances. In short, the complaint must contain a speci c
allegation of every fact and circumstance necessary to constitute the crime charged.
ASHaTc

2. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES;

NATURE AND CAUSE OF ACCUSATION; DETERMINED BY THE ACTUAL RECITAL OF
FACTS STATED IN THE INFORMATION OR COMPLAINT. — What determines the real
nature and cause of accusation against an accused is the actual recital of facts stated
in the information or complaint and not the caption or preamble of the information or
complaint nor the speci cation of the provision of law alleged to have been violated,
they being conclusions of law. An incorrect caption is not a fatal mistake. It follows
then that an accused may be convicted of a crime which, although not the one charged,
is necessarily included in the latter as provided by Section 4, Rule 120 of the Rules of
Court. The succeeding Section 5 prescribes the rule in determining when an offense
includes or is included in another. We have shown in the challenged decision why the
complex crime of attempted estafa through falsi cation of public and commercial
documents is included in the offense charged. Moreover, we held that the information
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 in this case "can also be considered as charging two offenses: the violation of Section
3(e) of R.A. No. 3019 and the complex crime of attempted estafa through falsi cation
of o cial and commercial documents," and since the petitioner failed to object before
trial to such duplicity, he could be validly convicted of both or either of the offenses
charged and proved.
3. ID.; EVIDENCE; CIRCUMSTANTIAL EVIDENCE; WHEN SUFFICIENT TO
CONVICT. — Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence
would be su cient to convict if (a) there is more than one circumstance; (b) the facts
from which the inferences are derived are proven; and (c) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt. As
jurisprudentially formulated, a judgment of conviction based on circumstantial evidence
can be upheld only if the circumstances proven constitute an unbroken chain which
leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of
all others, as the guilty person, i.e., the circumstances proven must be consistent with
each other, consistent with the hypothesis that the accused is guilty, and at the same
time inconsistent with any other hypothesis except that of guilty.
4. ID.; ID.; ID.; PROOF BEYOND REASONABLE DOUBT; REQUIRED TO
OVERCOME ACCUSED'S RIGHT TO BE PRESUMED INNOCENT. — The evidence for the
prosecution likewise failed to prove that the petitioner (1) personally represented
himself as an agent of Eversun Commercial Trading; (2) knew of the falsity of any of the
public and commercial documents in question; and (3) had, at any time, possession of
all or some of the said documents. Otherwise stated, there is no su cient
circumstantial evidence to prove conspiracy between the petitioner and Catre to
commit the complex crime of estafa through falsi cation of public and commercial
documents. Neither is there evidence of petitioner's active participation in the
commission of the crime. The concordant combination and cumulative effect of the
acts of the petitioner as proven by the prosecution's evidence fails to satisfy the
requirements of Section 4, Rule 133 of the Rules of Court. There is reasonable doubt as
to his guilt. And since his constitutional right to be presumed innocent until proven
guilty can be overthrown only by proof beyond reasonable doubt, the petitioner must
then be acquitted even though his innocence may be doubted.
5. CRIMINAL LAW; CONSPIRACY; DEFINED; WHEN PRESENT. — There is
conspiracy when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Direct proof of previous agreement to
commit a crime is not necessary. Conspiracy may be deduced from the mode and
manner in which the offense was perpetrated, or inferred from the acts of the accused
themselves when such point to a joint purpose and design, concerted action, and
community of interest. It is, however, settled that the same degree of proof required for
establishing the crime is likewise required to support a nding of conspiracy. In other
words, conspiracy must be shown to exist as clearly and as convincingly as the
commission of the offense itself in order to uphold the fundamental principle that no
one shall be found guilty of a crime except upon proof beyond reasonable doubt.
6. ID.; ID.; THE ACT OF ONE IS THE ACT OF ALL. — The information charges
the petitioner and his co-accused Joe Catre as principals who "conspir[ed],
confabulat[ed], conniv[ed], confederat[ed], and mutually help[ed] one another," with
Catre "representing himself to be a representative of Everson Commercial Trading of
Cotabato City, a corporation, rm or partnership which turned out to be non-existent,
fake or ctitious." The evidence for the prosecution, as admitted by the respondent,
only showed that it was Catre who possessed the falsi ed documents, contracted the
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 services of Calica, and delivered the documents to the latter for processing. In the
absence of satisfactory explanation, Catre, being the one in possession of the forged
documents, is presumed to be the forger. Catre, however, could not provide the
explanation because only the petitioner was tried. The information states that his
address is "unknown," and the record does not show that a warrant for his arrest was
issued. The only warrant of arrest that was issued was that for the petitioner. Assuming
that such evidence and the others adduced by the prosecution are to be admitted to
prove the commission of the crime, a prima facie case enough to prove the guilt of
Catre with moral certainty was duly established against Catre as a principal.
Accordingly, if conspiracy were proven, the petitioner would be equally guilty of the
offense proved. For, in a conspiracy, every act of one of the conspirators in furtherance
of a common design or purpose of such a conspiracy is, in contemplation of law the act
of each of them.
7. ID.; ID.; TO BE A PARTY THERETO, THE CONSPIRATOR SHOULD HAVE
PERFORMED SOME OVERT ACT AS A DIRECT OR INDIRECT CONTRIBUTION IN THE
EXECUTION OF THE CRIME. — It is also essential for one to be a party to a conspiracy
as to be liable for the acts of the others that there be intentional participation in the
transaction with a view to the furtherance of the common design. Except when he is the
mastermind in a conspiracy, it is necessary that a conspirator should have performed
some overt act as a direct or indirect contribution in the execution of the crime planned
to be committed. The overt act may consist of active participation in the actual
commission of the crime itself, or it may consist of moral assistance to his co-
conspirators by being present at the commission of the crime or by exerting moral
ascendancy over the other co-conspirators. IDaCcS

DECISION

DAVIDE, JR. , J : p

Is the attempted or frustrated stage of the offense de ned in Section 3 (e) of

R.A. No. 3019, 1 as amended, otherwise known as the Anti-Graft and Corrupt Practices
Act, punishable? If it is not, may an accused be, nevertheless, convicted for an offense
penalized by the Revised Penal Code which is included in that of the former as charged?
cdll

These are the core issues in this case. The rst was resolved in the a rmative by
the Sandiganbayan. The petitioner and the O ce of the Solicitor General disagree. The
second is an outcrop of the first.
In Criminal Case No. 14844 of the Sandiganbayan, the petitioner and one Jose
Catre were charged in an information 2 with the violation of Section 3 (e) of R.A. No.
3019, as amended, allegedly committed as follows:
"That on or about March 16, 1989 and/or sometime prior thereto at Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused ODON PECHO, a public o cer being then the Customs Guard,
Miscellaneous Bonded Warehouse Division, Bureau of Customs, South Harbor,
Manila, with the indispensable cooperation and assistance of the accused JOSE
CATRE, whose position, whether public or private, and address are unknown but
representing himself to be a representative of Everson Commercial Trading of
Cotabato City, a corporation, rm or partnership which turned-out to be non-
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 existent, fake of ctitious as it is not registered in the Department of Trade and
Industry nor in the Securities and Exchange Commission and with a fake,
spurious or ctitious Tax Account No. as it was not issued by the Revenue
Information Systems, Inc., Bureau of Internal Revenue, acting in the capacities
aforesaid, with the former taking advantage of his o cial position and both
accused, motivated and impelled by personal gain, nancial and pecuniary
interest, with deliberate intent to cause damage and undue injury to the
Government, through manifest partiality and evident bad faith, conspiring,
confabulating, conniving, confederating and mutually helping one another, did
then and there wilfully, unlawfully and feloniously act, pretend and feign to be
agents or representatives of Everson Commercial Trading in the importation of 5
x 20 foot containers STC agricultural disc blades and irrigation water pumps, and
engage, solicit and contract the services of one Constantino Calica of Labatique,
a CPA Customs Broker for the release of said shipment and/or preparation of the
necessary import entry with the two (2) accused, furnishing, presenting and
producing the necessary shipping documents such as packing list, commercial
invoice, bill of lading and import entry declaration, which led and prompted said
Customs Broker to le BOC Import Entry No. 14081-89 with the computed taxes
and duties amounting to P53,164.00 declaring the shipment as ve (5) containers
STC agricultural disc blades and irrigation water pumps, more particularly
described as follows:
5 CONTAINERS STC:
200 pcs. Agricultural Disc Blades 24 inches in diameter
100 pcs. Agricultural Disc Blades 30 inches in diameter
50 sets Centrifugal Water Pump 5 HP
25 sets Centrifugal Water Pump Diesel Engine 10 H.P.
100 sets Centrifugal Water Pump Diesel engine 25 H.P.
but contrary to the entry declaration, the subject shipment before its release, upon
examination was found and/or discovered to contain 300 units diesel engines
Model 4DR50A, to wit, viz:
1. Contr. No. EKLU-2673966 20'-containing 60 pcs./units 4DR50A
diesel engines
2. Contr. No. ITLU-6078177 20'-containing 60 pcs./units 4DR50A
diesel engines
3. Contr. No. UFCO-3976925 20'-containing 60 pcs./units 4DR50A
diesel engines
4. Contr. No. KLTU-1010988 20'-containing 60 pcs./units 4DR50A
diesel engines
5. Contr. No. KXTU-2027369 20'-containing 60 pcs./units 4DR50A
diesel engines
and the correct taxes and duties is P1,080,485.00, to the damage and prejudice of
the government in the difference of said amounts or to be exact in the amount of
P1,027,321.00, said offense having been committed in relation to the o ce of the
above-named accused.
CONTRARY TO LAW."
The investigating prosecutor 3 made the following certification in the information:
"This is to certify that a preliminary investigation has been conducted in
this case; that there is a reasonable ground to engender a well-founded belief that
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 a crime has been committed and that the accused are probably guilty thereof. 4
Warrants for the arrest of the accused were issued. Only the petitioner was
brought under the Sandiganbayan's jurisdiction when he voluntarily surrendered on 15
March 1991. He posted bail. 5
After the petitioner had pleaded not guilty at his arraignment on 20 March 1991,6
trial on the merits as against him ensued.
In its decision 7 promulgated on 28 June 1993, the Sandiganbayan (Second
Division) found the petitioner guilty as charged and, applying the Indeterminate
Sentence Law, sentenced him "to suffer imprisonment for an indeterminate period of
Six (6) years and One (1) month as minimum penalty, to Ten (10) years and One (1) day,
as maximum penalty, with perpetual disquali cation to hold public o ce; and to pay
the Bureau of Customs, by way of civil liability, the sum of P1,027,321.00 and to pay the
costs." 8
The petitioner's motion for reconsideration based on the following grounds, to
wit:
"(1) Invalidity of the information as a consequence of non-compliance
with the mandatory provisions of Sections 3 and 4, Rule 112,9 Rules
of Court, and of Sections 6 and 7, Rules of Procedure of the O ce
of the Ombudsman (Administrative Order No. 07);
(2) Failure of the prosecution to overcome by proof beyond reasonable
doubt the presumption of innocence in favor of accused Odon
Pecho;
(3) Failure of the prosecution to establish the attendance of the
concurring essential elements of the crime charged; and
(4) There is no such crime as attempted violation of Section 3(e), RA
3019." 1 0
having been denied in the resolution of the Sandiganbayan of 12 August 1993, 1 1 he
now comes before us with a reiteration of the said grounds.
In its Manifestation in Lieu of Comment 1 2 led after having obtained six
extensions of time to le its Comment, or for a total of one hundred and fty days, the
O ce of the Solicitor General submits that there is no merit to the petitioner's claim
that the information is invalid for non-compliance with Sections 3 and 4, Rule 112 of the
Rules of Court and with Sections 6 and 7 of the Rules of Procedure of the Ombudsman
(Administrative Order No. 07), but agrees with the petitioner that the prosecution failed
to prove the elements of the crime charged and the consummation thereof, and, hence,
he should be acquitted. However, it recommends that the petitioner be charged
administratively for the violation of Section 36(b) [28] of P.D. No. 807, otherwise known
as the Civil Service Decree of the Philippines.
In the challenged resolution, the Sandiganbayan rejected the rst ground invoked
by the petitioner in his motion for reconsideration because of waiver, having voluntarily
entered his plea of not guilty, participated at the trial, and offered his evidence. As to
the second and third grounds, it ruled that the decision "is supported with proof beyond
reasonable doubt." And as to the fourth ground, it held that the provisions of the
Revised Penal Code on attempted or frustrated felonies do not apply to offenses
penalized by special laws, like the Anti-Graft and Corrupt Practices Act; hence:
"violation of Section 3 (e) of RA 3019 is always consummated irrespective
of whether or not the accused has achieved his purpose. The accused's argument
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 that he did not realize his purpose of depriving the government in the form of
customs tax and duties is of no moment. It is enough that the accused committed
an act that would cause undue injury to the government to make him liable." 1 3

We agree with the respondent Sandiganbayan and the O ce of the Solicitor

General that, indeed, the procedural issue raised is without merit. Firstly, the
certi cation of the investigating Prosecutor in the information is su cient. His failure
to state therein that the accused was informed of the complaint and of the evidence
submitted against him and that he was given an opportunity to submit controverting
evidence, which the petitioner claims is fatal because it is mandatorily required by
Sections 3 and 4, Rule 112 of the Rules of Court, is untenable. When the Prosecutor
stated under oath that, inter alia, "a preliminary investigation has been conducted in this
case," he gave the solemn assurance that such preliminary investigation conformed
with the requirements set forth in the said sections. The certi cation in question is
similarly worded as that involved in Alvizo vs. Sandiganbayan 1 4 which this Court
explicitly declared to be su cient. This Court also reiterated therein the doctrine laid
down in People vs. Marquez 1 5 that the absence of a certi cation as to the holding of a
preliminary investigation does not invalidate an information because such certi cation
is not an essential part of the information itself. In Marquez, this Court held:
"It should be observed that section 3 of Rule 110 de nes an information as
nothing more than 'an accusation in writing charging a person with an offense
subscribed by the scal and led with the court.' Thus, it is obvious that such
certi cation is not an essential part of the information itself and its absence
cannot vitiate it as such. True, as already stated, section 14 of Rule 112 enjoins
that 'no information . . . shall be led, without rst giving the accused a chance to
be heard in a preliminary investigation,' but, as can be seen, the injunction refers
to the non-holding of the preliminary investigation, not the absence of the
certi cation. In other words, what is not allowed is the ling of the information
without a preliminary investigation having been previously conducted, and the
injunction that there should be a certi cation is only a consequence of the
requirement that a preliminary investigation should first be conducted."

If the absence of a certi cation would not even invalidate the information, then its
presence, although de cient because of some missing clauses or phrases required
under Section 4, Rule 112 of the Rules of Court, can do nothing worse than the former.
The rule is also settled that the right to a preliminary investigation may be waived
by the failure to invoke the right prior to or at least at the time of the accused's plea. 1 6
Where the accused pleaded to the charge, he is deemed to have foregone the right of
preliminary investigation and the right to question any irregularity that surrounds it. 1 7
The right to a preliminary investigation is not a fundamental right and may be waived
expressly or by silence. 1 8
Equally devoid of merit is the alleged non-compliance with Sections 6 and 7, Rule
II of the Rules of Procedure of the O ce of the Ombudsman. The presumption of
regularity in the performance of o cial duty 1 9 on the part of the investigating
Prosecutor was not rebutted. Moreover, the failure to furnish the respondent with a
copy of an adverse resolution pursuant to Section 6 which reads:
"Sec. 6. Notice to parties. — The parties shall be served with a copy of
the resolution as nally approved by the Ombudsman or by the proper Deputy
Ombudsman."
does not affect the validity of an information thereafter led even if a copy of the
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 resolution upon which the information is based was not served upon the respondent.
The contention that the provision is mandatory in order to allow the respondent to avail
of the 15-day period to le a motion for reconsideration or reinvestigation is not
persuasive for under Section 7 of the said Rule, such motion may, nevertheless, be led
and acted upon by the Ombudsman if so directed by the court where the information
was led. Finally, just as in the case of lack of or irregularity in the conduct of the
preliminary investigation, a party, like the petitioner herein, should have seasonably
questioned the procedural error at any time before he entered his plea to the charge.
His failure to do so amounted to a waiver or abandonment of what he believed was his
right under Sections 6 and 7, Rule II of the Rules of Procedure of the O ce of the
Ombudsman.
We shall now direct our attention to the core issue in this case, viz., whether the
attempted or frustrated stage of the crime de ned in Section 3 (e) of R.A. No. 3019 is
punishable. From the facts proved by the prosecution, the plan of the petitioner and his
co-conspirators to defraud the government was foiled. The Sandiganbayan stated:
"However, the felonious plan of the two accused to defraud the
government was exposed and foiled through the combined efforts of the
employees of the Bureau of Customs. A spot check on the shipment was
conducted on March 9, 1989 by the Customs Senior Agent Ruperto Santiago.
They discovered that the contents are automotive diesel engines instead of
agricultural disc blades and irrigation pumps as declared in the import entry and
revenue declaration (Exh. A-6) led with the Bureau of Customs, more particularly
as follows:
xxx xxx xxx
On March 30, 1989, a random computation was made by Customs
Appraiser Mamerto Fernandez based on the information provided by the
Legal Division and he found out that a discrepancy exists in the total
amount of taxes equivalent to P1,627,321.00 2 0 (Exh. E). Consequently, a
hold order and also a warrant of seizure and detention were issued by the
District Collector of Customs covering said goods." 2 1

The evidence for the prosecution, as summarized in the challenged decision 2 2

and in the Manifestation of the O ce of the Solicitor General, 2 3 established beyond
doubt how the petitioner and his co-accused, Jose Catre, carried out their plan to
defraud the Government.
The petitioner and Catre are from Surigao del Norte. On 15 March 1989, Catre
and the petitioner, then a Customs Guard of the Bureau of Customs assigned at the
Miscellaneous Bonded Warehouse Division, South Harbor, Manila, went to the o ce of
Constantino Calica, a certi ed public accountant and a customs broker, at Magallanes
Street, Intramuros, Manila. They introduced themselves to Calica as the duly authorized
representatives of Eversun Commercial Trading, and then engaged him, for an amount
equal to fty percent (50%) of the authorized brokerage fee, to prepare and le with the
Bureau of Customs the necessary Import Entry and Internal Revenue Declaration
covering Eversun's shipment. The petitioner and Catre submitted to Calica the packing
list (Exhibit "A-3"), the commercial invoice (Exhibit "A-4"), the bill of lading (Exhibit "A-5"),
and the sworn import entry declaration (Exhibit "A-6"). The shipment was declared as
agricultural disc blades and irrigation water pumps more particularly described as
follows:
"200 pcs. Agricultural Disc Blades 24 inches in diameter
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 100 pcs. Agricultural Disc Blades 30 inches in diameter
50 sets Centrifugal Water Pump Diesel engine 5 HP
25 sets Centrifugal Water Pump Diesel engine 10 HP
100 sets Centrifugal Water Pump Diesel engine 25 HP"
Based on the foregoing information and the unit HCV in currency per invoice, the
customs duties and taxes due were computed at P53,164.00.
On 16 March 1989, Calica instructed his son Dennis, also a customs broker, to
le the documents with the Manila International Container Port (MICP) and to proceed
to K-Line Shipping in Makati, Metro Manila, for the processing of the delivery permits.
Dennis rst dropped by at K-Line Shipping where he was approached by the petitioner
and Catre who introduced themselves as the clients of his father. They invited Dennis to
ride with them in petitioner's car in going to the MICP. Dennis agreed. Upon arrival at
the MICP, Dennis proceeded to the Entry Processing Division of the Bureau of Customs
and led the import entry and internal revenue declaration (Exhibit "A") and other
supporting documents. Dennis handed to the petitioner and Catre a copy of the import
entry and internal revenue declaration. They then proceeded to Section 6, the
Examiner's Group, of the Bureau of Customs for further processing.
Two days after the documents were submitted to the Entry Processing Division,
Catre called up Calica and requested Calica to assist him and the petitioner when the
cargo will be submitted for actual examination. Calica agreed.
On 21 March 1989 Dennis met again with Catre for the processing of the
examination request. After ling the request with the arrastre operator, Dennis checked
the respective serial numbers of each container. Dennis did not join anymore in the
actual examination of the containers.
On 27 March 1989, Baltazar Morales, Chief Intelligence O cer of the Bureau of
Customs, addressed a formal request (Exhibit "B) to the District Intelligence O cer of
the Bureau for a 100% examination of the shipment consigned to Eversun Commercial
Trading.
On 29 March 1989, Ruperto Santiago, Customs Senior Agent, conducted a spot
check on the questioned shipment to verify the contents of the container van. It was
discovered that the contents were automotive diesel engines instead of agricultural
disc blades and irrigation pumps as declared in the import entry and revenue
declaration. The engines are more particularly described as follows:
"1. Contr. No. EKLU-2673966 20' — containing 60 pcs./units DR50A
diesel engine
2. Contr. No. ITLU-6078177 20' — containing 60 pcs./units 4DR50A
diesel engine
3. Contr. No. UFCO-3976925 20' — containing 60 pcs./units 4DR50A
diesel engine
4. Contr. No. KLTU-1010988 20' — containing 60 pcs./units 4DR50A
diesel engine
5. Contr. No. KXTU-2027369 20' — containing 60 pcs./units 4DR50A
diesel engine"
The computation of the taxes due thereon made on 30 March 1989 by Mamerto
Fernandez, Customs Appraiser, showed a discrepancy in the total amount of
P1,027,321.00 (Exhibit "E"). Consequently, a hold order and a warrant of seizure and
detention were issued by the District Collector of Customs.
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 Per the directive of the Commissioner of Customs dated 20 April 1989, Attys.
Cesar Tugday and Crisanto Tamparong of the Internal Inquiry and Prosecution Division
conducted an investigation on the circumstances surrounding the interception and
seizure of the shipment. Their veri cation with the Securities and Exchange
Commission (SEC) and the Department of Trade and Industry (DTI) disclosed that
Eversun Commercial Trading is a non-existent rm and that the tax account number
used by Eversun in making the Import Entry Declaration was non-existent.
During their investigation, Tugday and Tamparong issued two subpoenas to the
petitioner to appear before them. He did not appear to explain his side. As a result,
Tugday and Tamparong prepared an Investigation Report (Exhibit "I") containing their
ndings and recommendations, among which were the ling of criminal charges
against the petitioner, Jose Catre, and a certain Pablito Ampal pursuant to Section
3602 of the Tariff and Customs Code of the Philippines and the ling of criminal
charges against the petitioner under Section 3610, in relation to Section 3512.
Subsequently, after appropriate preliminary investigation, the information was
filed with the Sandiganbayan.
On the basis of the evidence, the Sandiganbayan concluded that all the elements
of Section 3 (e) of R.A. No. 3019, to wit:
"1. The accused is a public o cer or private person charged in
conspiracy with him;
2. Said public o cer commits the prohibited acts during the
performance of his o cial duties or in relation to his public
position;
3. He causes undue injury to any party, whether the government or
private party;
4. Such undue injury is caused by giving unwarranted bene ts,
advantage or preference to such parties; and
5. The public o cer has acted with manifest partiality, evident bad
faith or gross inexcusable negligence." 2 4
are present in this case. More specifically, it said:
"Accused Odon Pecho acted in bad faith from the very start when he
conspired with his co-accused Mr. Jose Catre in misleading the government on
the actual contents of the shipments belonging to Eversun Commercial Trading
and thereby evading the payment of correct taxes due to the government. 'Bad
faith' does not simply connote bad judgment or negligence; it imputes a dishonest
purpose or some moral obliquity and conscious doing of a wrong; a breach of
sworn duty through some motive or intent or ill will; it partakes of the nature of
fraud. (Spiegel vs. Beacon Participations 8 NE 2nd Series, 895, 1007). It
contemplates a statement of mind a rmatively operating with furtive design or
some motive of self-interest or ill will for ulterior purposes (Air France vs.
Carrascoso, 18 SCRA 155). Evident bad faith connotes a manifest deliberate
intent on the part of accused to do wrong or cause damage.
As Customs Guard, the accused is supposed to safeguard the interest of
the government particularly the Bureau of Customs to which he is employed.
Nonetheless, he allowed himself to be used in this illegal scheme to give
unwarranted bene ts or advantage to the importer at the expense of the
government. The accused's participation is positively established by the
testimonies of Messrs. Constantino Calica and his son Dennis Calica. These two
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 represent the Calica Brokerage contracted by the two accused Mr. Pecho and Mr.
Catre to prepare and le with the Bureau of Customs the required import entry
declaration. The two accused went straight to Mr. Calica's o ce and introduced
themselves as the duly authorized representatives of Eversun Commercial
Trading which is based at Surigao del Norte. The contract of services entered into
by the two accused and Mr. Constantino Calica may be said to be peculiar from
the usual contract of this kind. It is limited only to the preparation of the import
entry declaration, the computation of taxes due to the Bureau of Customs and
ling the same with the latter. It was the two accused who handed Mr. Calica the
shipping documents necessary for the preparation of an import entry declaration
such as the packing list (Exh. A-3), the commercial invoice (Exh. A-4), bill of lading
(Exh. A-3) and the importer's sworn statement. These documents declare the
shipment as ve (5) containers of STC agricultural disc blades and irrigation
water pumps more particularly described as follows:
xxx xxx xxx

Based on the information given by the two accused, the taxes and duties
was computed at P53,164.00.

As the customs representative of Calica Brokerage, Dennis Calica is in-

charge with the ling and posting of documents with the Bureau of Customs. On
March 16, 1989, his father instructed him to le the import entry declaration
covering the importations of Eversun Commercial Trading with the Bureau of
Customs. He dropped rst at the head o ce of K Line shipping Company in
Makati to process the delivery permits. While he was there, two men approached
him and introduced themselves as Mr. Pecho and Mr. Catre, the clients of his
father. The two accused invited him to go with them and they boarded Mr.
Pecho's car and the three of them proceeded to the Manila International Container
Port. The two accused accompanied him when the import entry declaration (Exh.
A-6) was led with the Entry Processing Division, Bureau of Customs. The
services of the Calica Brokerage were again solicited by the two accused in the
actual examination of the goods. So, on March 21, 1989, Dennis Calica met again
with the two accused for the said purpose.
There is a deliberate intent on the part of the accused to do wrong or cause
damage to the government. This may be inferred from the actuations of two
accused. Their concerted actions show that they cooperated with each other
towards the accomplishment of a common felonious purpose, in this case, the
defraudation of the government through non-payment of the correct amount of
taxes and duties to the latter (People vs. Catubig, 195 SCRA 505). Accused Pecho
assisted his co-accused Catre in his o cial capacity as a customs guard in
processing the documents required to insure that the goods consigned to Eversun
Commercial Trading be released without delay and without arousing suspicion
from the government authorities. Accused Pecho's act defeats the very objective
of the government to upgrade the system of collection with regard to taxes and
duties due to the government. Moreover, this is tantamount to an act of betrayal
of the con dence reposed in him when he was employed as Customs Guard of
the Bureau of Customs." 2 5

There is no doubt in our minds that without the early discovery of the fraud
through the timely recommendation by the Chief Intelligence O cer for a 100%
examination of the shipment and the spot check of the shipment by Customs Senior
Agent Ruperto Santiago, the Government would have been defrauded in the sum of
P1,027,321.00 corresponding to the de ciency in taxes. Such discovery and the
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 immediate issuance of a hold order and a warrant of seizure and detention by the
District Collector of Customs against the said articles effectively prevented the
consummation of the offense. The Government incurred no undue injury or damage. At
most then, the violation of Section 3(e) of R.A. No. 3019 reached only the attempted
stage because the perpetrators had commenced the commission of the offense
directly by overt acts but failed to perform all the acts of execution which would have
produced the felony as a consequence by reason or some cause other than their own
spontaneous desistance, 2 6 namely, the timely intervention of alert customs o cials
before the release of the cargoes.
Except then as to the third requisite of the offense penalized by Section 3 (e) of
R.A. No. 3019, as amended, viz.: "causing undue injury to any party, including the
Government," we agree with the ndings and conclusion of the Sandiganbayan that the
requisites thereof, as laid down in Ponce de Leon vs. Sandiganbayan, 2 7 are present in
this case. Would the absence of the third requisite, which, therefore, makes the
petitioner's act only an attempted violation of Section 3(e), subject him to the same
penalty as if he had committed the consummated crime? The answer would depend on
whether Article 6 2 8 of the Revised Penal Code is applicable to offenses punished by
special laws, like R.A. No. 3019, as amended, more speci cally to that covered by
Section 3 (e) thereof, which is involved in this case.
In United States vs. Basa, 2 9 this Court held that the last paragraph of Article 3 of
the Old Penal Code relating to attempts to commit crimes is not applicable to offenses
punished "by acts of the Commission," i.e., special laws. In People vs. Ngan Te , 3 0 this
Court also held that an accused cannot be convicted of a frustrated violation of a crime
punished by a special law (Section 4 of the Gold Reserve Act of Congress of 30 January
1934).
In People vs. Jolliffe, 3 1 involving a prosecution for the violation of Section 34 of
R.A. No. 265, in relation to Section 4 of Central Bank Circular No. 21 which provides:
"Any person desiring to export gold in any form, including jewelry, whether
for re ning abroad or otherwise, must obtain a license from the Central Bank.
Applicants for export licenses must present satisfactory evidence that the import
of the gold into the country of the importer will not be in violation of the rules and
regulations of such country."

this Court, in rejecting the contention of the defense that the penalty for violations of
the circular refer to consummated exportation not to "attempted or frustrated
exportation," declared:
"This section explicitly applies to 'any person desiring to export gold' and,
hence, it contemplates the situation existing prior to the consummation of the
exportation. Indeed, its purpose would be defeated if the penal sanction were
deferred until after the article in question had left the Philippines, for jurisdiction
over it, and over the guilty party, would be lost thereby."

It may thus be said that the application of Article 6 of the Revised Penal Code to
offenses penalized by special laws would depend on how the latter de nes the offense.
This would give life to Article 10 thereof which provides that the Code shall be
supplementary to special laws, unless the latter should speci cally provide the
contrary. In the case of Section 4 of Central Bank Circular No. 21, it is clear from the
phrase "desiring to export" that even a mere attempt to export — which is necessarily
included in desiring — is punishable.
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 There are two principal reasons why Section 3 (e) of R.A. No. 3019, as amended,
can be said to penalize only consummated offenses. Firstly, the penalty imposed
therefor per Section 9 is "imprisonment for not less than six years and one month nor
more than fteen years, perpetual disquali cation from o ce, and con scation or
forfeiture in favor of the Government of any prohibited interest and unexplained wealth
manifestly out of proportion to his salary and other lawful income." The imposable
imprisonment penalty does not have the nomenclature and duration of any speci c
penalty in the Revised Penal Code. Accordingly, there can be no valid basis for the
application of, inter alia, Articles 50 and 51 on the penalty to be imposed on the
principal of a frustrated and attempted felony. The penalty of perpetual disquali cation
is onlyfrom o ce , unlike either the perpetual absolute and perpetual special
disquali cations under Articles 30 and 31 of the Revised Penal Code. Secondly, the
third requisite of Section 3(e), viz., "causing undue injury to any party, including the
government," could only mean actual injury or damage which must be established by
evidence. the word causing is the present participle of the word cause. As a verb, the
latter means "to be the cause or occasion of; to effect as an agent; to bring about; to
bring into existence; to make to induce; to compel." 3 2 The word undue means "more
than necessary; not proper; illegal." 3 3 And the word injury means "any wrong or damage
done to another, either in his person, rights, reputation or property. The invasion of any
legally protected interest of another." 3 4 Taken together, proof of actual injury or
damage is required. Thus, in Alejandro vs. People, 3 5 which involves a prosecution for
the violation of Section 3 (e) of R.A. No. 3019, as amended, this Court, in acquitting the
accused declared:
"Moreover, one of the elements of the crime described in Sec. 3 (e) of the
Anti-Graft and Corrupt Practices Act is that there should be undue injury caused to
any party. However, in the 30 July 1987 decision of the respondent
Sandiganbayan, it is recognized that there was no proof of damage caused to the
employees of the hospital since they were in fact paid on 27 October 1982 their
salaries for the entire third quarter of 1982."

In Fernando vs. Sandiganbayan, 3 6 this Court, quoting the ruling in Alejandro, also
stated:
"There is no evidence whatsoever to show that the acts of the petitioners
were done with evident bad faith or gross negligence. Neither is there proof that
there was undue injury caused to any party. Who is the party injured? There is
nothing in the records to show injury to any party, least of all the government. The
urgent repairs were completed. The Bureau of Customs personnel and the public
dealing with them were bene ted but nobody was injured. But most of all, there
was no evident partiality."

No actual injury or damage having been caused to the Government due to the
timely 100% examination of the shipment and the subsequent issuance of a hold order
and a warrant of seizure and detention, the petitioner must, perforce, be acquitted of
the violation of Section 3 (e) of R.A. No. 3019. Fortunately, for the State, the offense
charged in the information in Criminal Case No. 14844 necessarily includes the
complex crime of estafa (under paragraph 2 (a), Article 315, Revised Penal Code)
through falsi cation of public documents (under Article 171, Revised Penal Code).
Article 315 reads:
"Art. 315. Swindling (estafa). — Any person who shall defraud another
by any of the means mentioned herein below . . .
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 xxx xxx xxx
2. By means of any of the following false pretenses or fraudulent acts
executed prior to or simultaneously with the commission of the
fraud:
(a) By using ctitious name, or falsely pretending to possess
power, in uence, quali cations, property, credit, agency,
business or imaginary transactions, or by means of other
similar deceits."
The information alleges in no uncertain terms the essential ingredients of estafa under
said paragraph 2 (a), viz., (1) false or fraudulent representation of co-accused Jose
Catre that he was the duly authorized representative of Eversun Commercial Trading,
the alleged importer of agricultural disc blades and irrigation water pumps in the
container van when, in truth and in fact, said importer is non-existent or fictitious with an
equally spurious Tax Account Number, and that the cargoes imported were not as
declared but 300 units of diesel engines, which fraudulent acts were done with the use
of falsi ed documents such as import entry declaration, packing list, commercial
invoice and bill of lading; (2) the false pretenses or fraudulent acts were executed prior
to the commission of the fraud; and (3) the defraudation of the Government in the
amount of P1,027,321.00 in taxes representing the difference between the correct
taxes and duties due and that earlier computed on the basis of the false declaration. In
other words some of the essential ingredients of the offense charged constitute the
essential requisites of estafa through falsi cation of o cial documents. If duly proved
by the evidence for the prosecution that satis es the quantum of proof required for
conviction, the petitioner can, under the information be convicted of estafa through
falsi cation of o cial and commercial documents, an offense which is, as stated
earlier, included in that which is charged.
Section 4, Rule 120 of the Rules of Court provides:
"Sec. 4. Judgment in case of variance between allegation and proof. —
When there is variance between the offense charged in the complaint or
information, and that proved or established by the evidence, and the offense as
charged is included in or necessarily includes the offense proved, the accused
shall be convicted of the offense proved included in that which is charged, or of
the offense charged included in that which is proved.
Analyzing this provision, this Court stated in Esquerra vs. People: 3 7
"Stated differently, an accused may be convicted of an offense provided it
is included in the charge, or of an offense charged which is included in that
proved. Still stated differently, an accused can be convicted of an offense only
when it is both charged and proved. If it is not charged although proved, or if it is
not proved although charged, the accused cannot be convicted thereof. In other
words, variance between the allegation and proof cannot justify conviction for
either the offense charged or the offense proved unless either is included in the
other."

Section 5 of Rule 120 states when an offense includes or is included in the other:
"Sec. 5. When an offense includes or is included in another. — An
offense charged necessarily includes that which is proved, when some of the
essential elements or ingredients of the former, as this is alleged in the complaint
or information, constitute the latter. And an offense charged is necessarily
included in the offense proved, when the essential ingredients of the former
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 constitute or form a part of those constituting the latter.

In view of the aforesaid rules, it follows then that:

"a. When the offense proved is less serious than, and is necessarily
included in, the offense charged (as when the offense proved is
homicide and the offense charged is murder), in which case the
defendant shall be convicted of the offense proved (U.S. vs.
Macalintal, 2 Phil. 448; . . .).
b. When the offense proved is more serious than and includes the
offense charged (as when the offense proved is serious physical
injuries and the offense charged is slight physical injuries), in which
case the defendant shall be convicted only of the offense charged
(U.S. vs. Guzman, 8 Phil. 21)." 3 8
As earlier adverted to, the evidence established by the prosecution proves
beyond reasonable doubt that the crime of estafa was only at its attempted stage and
that it was sought to be consummated through the falsi cation of the following
documents: the packing list (Exhibit "A-3") and Invoice (Exhibit "A-4"), which appear to
be prepared by the exporter, Kowa Tsusho Co. Ltd. through one Masayuki Higuchi, its
general manager; Bill of Lading (Exhibit "A-5") which appears to be issued in Yokohama
by the Kisen Kaishe Ltd.; the sworn Import Entry Declaration (Exhibit "A-6") all of which
show that the cargoes imported were "agricultural disc blades and irrigation water
pumps; as well as the Import Entry and Internal Revenue Declaration signed by customs
broker Constantino Calica and prepared on the basis of the foregoing documents. The
falsi cations consist in making it appear that the importer-consignee indicated is a
legitimate importer or an existing importer which had participated in such importation
and authorized the accused to request the release of the imported articles although, in
truth, it is non-existent and, therefore, had no participation in the importation; and in the
untruthful statements that what were imported were agricultural disc blades and
irrigation water pumps when in truth they were automotive diesel engines.
The information in this case can also be considered as charging two offenses:
the violation of Section 3 (e) of R.A. No. 3019 and the complex crime of attempted
estafa through falsi cation of o cial and commercial documents. The accused having
failed to object before trial to the duplicitous information, he may be validly convicted
of both or either of the offenses charged and proved. 3 9
The Import Entry Declaration (Exhibit "A-6"), a public and o cial document, is
required by Section 1301 of the Revised Tariff and Customs Code of the Philippines. 4 0
Under the said section, the parties authorized to make the import entry are (a) the
importer, being the holder of the bill of lading, (b) a duly licensed customs broker acting
under authority from a holder of the bill of lading, or (c) a person duly empowered to act
as agent or attorney in fact for such holder. If the entry is led by a party other than the
importer, the importer shall himself be required to declare under oath and under
penalties for falsi cation or perjury that the declarations and statements contained in
the entry are true and correct. Such statements under oath shall constitute prima facie
evidence of knowledge and consent of the importer of a violation against applicable
provisions of the Code should the importation turn out to be unlawful or irregular.
The falsi cations then of the aforesaid o cial and commercial documents were
the necessary means for the commission of the attempted estafa.
There was no direct proof that the petitioner and his co-conspirator, Jose Catre,
were the authors of the falsi cation. Nevertheless, since it was shown with moral
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 certainty from the testimony of the Calicas that the petitioner and Catre were in
possession of the falsi ed documents and personally delivered them to Dennis Calica
and that they showed extraordinary personal interest in securing the release of the
cargoes for a ctitious importer, then the petitioner and Catre are presumed to be the
authors of the falsi ed documents. A rule, well-buttressed upon reason, is that in the
absence of satisfactory explanation one found in possession of and who used a forged
document is the forger and therefore guilty of falsi cation. 4 1 It is, however, essential
that the use must be so closely connected in time with the forging such that the utterer
or user may be proved to have the capacity of forging, or such close connection with
the forger that it becomes, when so accomplished, probable proof of complicity in the
forgery. 4 2
In People vs. Sendaydiego, 4 3 this Court reiterated the rule thus:
"The rule is that if a person had in his possession a falsi ed document and
he made use of it (uttered it), taking advantage of it and pro ting thereby, the
presumption is that he is the material author of the falsi cation. This is especially
true if the use or uttering of the forged documents was so closely connected in
time with the forgery that the user or possessor may be proven to have the
capacity of committing the forgery, or to have close connection with the forgers,
and, therefore, had complicity in the forgery. (U.S. vs. Castillo, 6 Phil. 453; People
vs. De Lara, 45 Phil. 754; People vs. Domingo, 49 Phil. 28; People vs. Astudillo, 60
Phil. 338; People vs. Manansala, 105 Phil. 1253).
In the absence of a satisfactory explanation, one who is found in
possession of a forged document and who used or uttered it is presumed to be
the forger (Alarcon vs. Court of Appeals, L-21846, March 31, 1967, 19 SCRA 688;
People vs. Caragao, L-28258, December 27, 1969, 30 SCRA 993)."

No explanation at all having been given by the petitioner as to why he and his co-
accused were in possession of and used the falsi ed o cial and commercial
documents, they are deemed to be the forgers thereof.
Accordingly, the petitioner is liable for and can be validly convicted of the
complex crime of attempted estafa through falsi cation of o cial and commercial
documents under paragraph 2 (a) of Article 315 and Article 171 of the Revised Penal
Code. Pursuant to Article 48, the penalty for the more serious crime shall be applied in
its maximum period.
If the crime of estafa had been consummated, the Government would have been
defrauded in the amount of P1,027,321.00. Hence, the applicable penalty under Article
315 of the Revised Penal Code would have been prision correccional in its maximum
period to prision mayor in its minimum period, with an additional one (1) year for every
P10,000.00 in excess of the first P22,000.00; provided, that the total penalty should not
exceed twenty years.
Since what was established was only attempted estafa, then the applicable
penalty would be that which is two degrees lower than that prescribed by law for the
consummated felony pursuant to Article 51, in relation to Article 61(5), of the Revised
Penal Code, viz., arresto mayor in its medium period to arresto mayor in its maximum
period.
On the other hand, the penalty for falsi cation under Article 171 is prision mayor
and a ne not exceeding P5,000.00. Obviously then, this is the more serious crime
which shall be imposed upon the petitioner pursuant to Article 48. Since he is entitled
to the bene ts of the Indeterminate Sentence Law, 4 4 he can be sentenced to an
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 indeterminate penalty ranging from two (2) years, four (4) months, and one (1) day of
prision correccional medium as minimum to ten (10) years and one (1) day of prision
mayor maximum as maximum and a ne of P2,000.00. The maximum of the duration is
in conformity with Article 48 which mandates that the penalty for the more serious
crime shall be applied in its maximum period.
The foregoing disquisitions clearly suggest that those in charge of investigating
criminal complaints against public o cials and employees and of ling the
corresponding informations in court must carefully determine under what law the
offenders should be prosecuted. They should note that the offenses enumerated in
Section 3 of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019, as amended) are
but in addition to acts or omissions of public o cers already penalized by existing law .
Thus, to attain the very purpose of said law and further enhance the constitutional
mandate that a public o ce is a public trust and all public o cers and employees
"must at all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and e ciency," 4 5 prosecutors should not limit their action to the
additional offenses. To be more logical, they should initially consider if the questioned
acts are already penalized by the Revised Penal Code and should the rule on double
jeopardy be inapplicable, to exhaust all the available remedies of the State against the
offender. It is a cardinal rule that the protection against double jeopardy may be
invoked only for the same offense. 4 6
WHEREFORE, the instant petition is DENIED; however, the judgment of the
Sandiganbayan in Criminal Case No. 14844 is modi ed, and, as modi ed, the petitioner
is hereby declared guilty beyond reasonable doubt of the complex crime of attempted
estafa through falsi cation of o cial and commercial documents and, applying the
Indeterminate Sentence Law, is hereby sentenced to suffer an imprisonment penalty
ranging from TWO (2) YEARS, FOUR (4) MONTHS, and ONE (1) DAY of prision
correccional medium as minimum to TEN (10) YEARS and ONE (1) DAY of prision
mayor maximum as maximum, with the accessories thereof and to pay a ne of Two
Thousand Pesos (P2,000.00).
Costs against the petitioner.
SO ORDERED.
Narvasa, C.J., Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Puno,
Vitug, Kapunan, and Mendoza, JJ., concur.
Feliciano, J., is on leave.

Footnotes
1. It reads:

"Sec. 3. Corrupt practices by public officers. — In addition to acts or omissions of public

officers already penalized by existing law, the following shall constitute corrupt practice
of any public officer and are hereby declared to be unlawful:
xxx xxx xxx

(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision shall apply to officers and employees of
offices of government corporations charged with the grant of licenses or permits or other
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 concessions."

2. Original Records (OR), 1-4. Filed with the Sandiganbayan on 2 May 1990.
3. Jose J. Parentela, Jr., Special Prosecution Officer II, Office of the Special Prosecutor.

4. OR, 4.

5. OR, 25-32.
6. Id., 43-44.

7. Id., 184-205; Annex "A" of Petition; Rollo, 22-43. Per Associate Justice Augusto M.
Amores, concurred in by Associate Justices Romeo M. Escareal (Chairman) and Narciso
T. Atienza.
8. Id., 204-205; Id., 42-43.

9. Concerning the procedure in preliminary investigation (Section 3) and the duty of the
investigating fiscal (Section 4).
10. OR, 216-217.

11. Annex "B" of Petition; Rollo 44-46.

12. Id., 73-95.

13. Rollo, 46.

14. 220 SCRA 55 [1993].

15. 27 SCRA 808 [1969]. See also People vs. Pacala, 58 SCRA 370 [1974]; Estrella vs. Ruiz,
58 SCRA 779 [1974]; and People vs. Arbois, 138 SCRA 24 [1985].

16. People vs. Gomez, 117 SCRA 73 [1982].

17. Zacarias vs. Cruz, 30 SCRA 728 [1969]; People vs. Baluran, 32 SCRA 71 [1970]; People
vs. Umbrero, 196 SCRA 821 [1991].

18. People vs. Mabuyo, 63 SCRA 532 [1975]; People vs. Lazo, 198 SCRA 274 [1991].
19. Section 3(m), Rule 131, Rules of Court.

20. Should be P1,027,321.00 (see Exhibit "E").

21. Rollo, 40.

22. Id., 26-34.

23. Id., 73-79.

24. Ponce de Leon vs. Sandiganbayan, 186 SCRA 745 [1990].

25. Rollo, 36-39.

26. Last paragraph, Article 6, Revised Penal Code.

27. Supra note 24.

28. It provides:
"Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies, as
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the acts
of execution which would produce the felony as a consequence but which, nevertheless,
do not produce it by reason of causes independent of the will of the perpetrator. There is
an attempt when the offender commences the commission of a felony directly by overt
acts, and does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than his own spontaneous desistance."
However, Article 7 specifically provides that light felonies are punishable only when they
have been consummated with the exception of those committed against persons or
property.

29. 8 Phil. 89 [1907].

30. 62 Phil. 588 [1935].

31. 105 Phil. 677 [1959]. Reiterated in People vs. Lim Ho, 106 Phil. 887 [1960].
32. Black's Law Dictionary, Fifth ed., 200.

33. Id., 1370.

34. Id., 706.

35. 170 SCRA 400, 407 [1989].

36. 212 SCRA 680, 692 [1992].

37. 108 Phil. 1078, 1084-85 [1960].

38. FLORENZ D. REGALADO, Remedial Law Compendium, Vol. Two, Sixth Revised Ed.,
[1989] 215.
39. Section 3, Rule 120, Rules of Court. See also Section 8, Rule 117.

40. P.D. No. 1464, as amended by E.O. No. 688.

41. Alarcon vs. Court of Appeals, 125 Phil. 1110 [1967]; 19 SCRA 688 [1967], citing People
vs. de Lara, 45 Phil. 754 [1924]; People vs. Cu Unjieng, 61 Phil. 906 [1935]; People vs.
Loteyro, 50 O.G. No. 2, 632; People vs. Dala, 50 O.G. No. 6, 2675; People vs. Manansala,
L-13142, 30 January 1959.

42. People vs. de Lara, supra at note 41; U.S. vs. Castillo, 6 Phil. 453 [1906], citing
Wharton's Criminal Law, vol. 1, par. 726.
43. 81 SCRA 120, 141 [1978].

44. Act No. 4103, as amended.

45. Section 1, Article XI.

46. People vs. Tiozon, 198 SCRA 368 [1991].

CD Technologies Asia, Inc. © 2018 cdasiaonline.com