People vs.
Hernandez members of, or otherwise affiliated with the Communist Party
This is the appeal prosecuted by the defendants from the
judgment rendered by the Court of First Instance of Manila,
Hon. Agustin P. Montesa, presiding, in its Criminal Case No.
15841, People vs. Amado V. Hernandez, et al., and Criminal
Case No. 15479, People vs. Bayani Espiritu, et al. In Criminal
Case No. 15841 (G.R. No. L-6026) the charge is for Rebellion
with Multiple Murder, Arsons and Robberies; the appellants
are Amado V. Hernandez, Juan J. Cruz, Genaro de la Cruz,
Amado Racanday, Fermin Rodillas and Julian Lumanog;
Aquilino Bunsol, Adriano Samson and Andres Baisa, Jr. were
among those sentenced in the judgment appealed from, but
they have withdrawn their appeal. In Criminal Case No.
15479 (G.R. No. L-6026) the charge is for rebellion with
murders, arsons and kidnappings; the accused are Bayani
Espiritu Teopista Valerio and Andres Balsa, Jr.; they all
appealed but Andres Balsa, Jr. withdrew his appeal.
The information filed against defendants Hernandez and
others in Criminal Case No. 15481 alleged:
I. That on or about March 15, 1945, and for some time before
the said date and continuously thereafter, until the present
time, in the City of Manila, Philippines, and the place which
they had chosen as the nerve center of all their rebellious
activities in the different parts of the Philippines, the said
accused, conspiring, confederating and cooperating with
each other, as well as with the thirty-one (31) defendants
charged in Criminal Cases Nos. 19071, 14082, 14270, 14315
and 14344 of the Court of First Instance of Manila (decided
May 11, 1951) and also with others whose whereabouts and
identities are still unknown, the said accused and their other
co-conspirators, being then high ranking officers and/or
of the Philippines (P.K.P.), which is now actively engaged in an
armed rebellion against the Government of the Philippines
thru act theretofore committed and planned to be further
committed in Manila and other places in the Philippines, and
of which party the "Hukbong Mapagpalaya Ng Bayan"(H.M.B.)
otherwise or formerly known as the "Hukbalahaps" (Huks),
unlawfully and did then and there willfully, unlawfully and
feloniously help, support, promote, maintain, cause, direct
and/or command the "Hukbong Mapagpalaya Ng Bayan"
(H.M.B.) or the "Hukbalahaps" (Huks) to rise publicly and take
arms against the Republic of the Philippines, or otherwise
participate in such armed public uprising, for the purpose of
removing the territory of the Philippines from the allegiance
to the government and laws thereof as in fact the said
"Hukbong Mapagpalaya Ng Bayan" or "Hukbalahaps" have
risen publicly and taken arms to attain the said purpose by
then and there making armed raids, sorties and ambushes,
attacks against police, constabulary and army detachments
as well as innocent civilians, and as a necessary means to
commit the crime of rebellion, in connection therewith and in
furtherance thereof, have then and there committed acts of
murder, pillage, looting, plunder, arson, and planned
destruction of private and public property to create and
spread chaos, disorder, terror, and fear so as to facilitate the
accomplishment of the aforesaid purpose, as. follows, to wit:
(Enumeration of thirteen attacks on government forces or
civilians by Huks on May 6, 1946, August 6, 1946, April 10,
1947, May 9, 1947, August 19, 1947, June, 1946, April 28,
1949, August 25, 1950, August 26, 1950, August 25, 1950,
September 12, 1950, March 28, 1950 and March 29, 1950.)
II. That during the period of time and under the same
circumstances herein-above indicated the said accused in the
above-entitled case, conspiring among themselves and with
several others as aforesaid, willfully, unlawfully and
feloniously organized, established, led and/or maintained the
Congress of Labor Organizations (CLO), formerly known as
the Committee on Labor Organizations (CLO), with central
offices in Manila and chapters and affiliated or associated
labor unions and other "mass organizations" in different
places in the Philippines, as an active agency, organ, and
instrumentality of the Communist Party of the Philippines
(P.K.P.) and as such agency, organ, and instrumentality, to
fully cooperate in, and synchronize its activities — as the CLO
thus organized, established, led and/or maintained by the
herein accused and their co-conspirators, has in fact fully
cooperated in and synchronized its activities with the
activities of the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.)
and other organs, agencies, and instrumentalities of the
Communist Party of the Philippines (P.K.P.), to thereby assure,
facilitate, and effect the complete and permanent success of
the above-mentioned armed rebellion against the
Government of the Philippines.
The information filed against the defendants in Criminal Case
No. 15479, Bayani Espiritu Andres Baisa, Jr. and Teopista
Valerio, alleges:
That on or about the 6th day of May, 1946, and for sometime
prior and subsequent thereto and continuously up to the
present time, in the City of Manila, the seat of the
government of the Republic of the Philippines, which the
herein accused have intended to overthrow, and the place
chosen for that purpose as the nerve center of all their
rebellious atrocities in the different parts of the country, the
said accused being then high ranking officials and/or
members of the Communist Party of the Philippines (P.K.P.)
and/or of the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.)
otherwise or formerly known as the "Hukbalahaps" (HUKS),
the latter being the armed forces of said Communist Party of
the Philippines; having come to an agreement with the 29 of
the 31 accused in Criminal Cases Nos. 14071, 14082, 14270,
14315, 14344 of the Court of First Instance of Manila and
decided to commit the crime of rebellion, and therefore,
conspiring and confederating with all of the 29 accused in
said criminal cases, acting in accordance with their
conspiracy and in furtherance thereof, together with many
others whose whereabouts and identities are still unknown
up to the filing of this information, and helping one another,
did then and there willfully, unlawfully and feloniously
promote maintain, cause, direct and/or command the
"Hukbong Mapagpalaya Ng Bayan", (HMB) or the
Hukbalahaps (HUKS) to rise publicly and take Arms against
the Government or otherwise participate therein for the
purpose of overthrowing the same, as in fact, the said
"Hukbong Mapagpalaya Ng Bayan" or Hukbalahap (HUKS)
have risen publicly and taken arms against the Government,
by then and there making armed raids, sorties and
ambushes, attacks against police, constabulary and army
detachment, and as a necessary means to commit the crime
of rebellion, in connection therewith and in furtherance
thereof, by then and there committing wanton acts of
murder, spoilage, looting, arson, kidnappings, planned
destruction of private and public buildings, to create and
spread terrorism in order to facilitate the accomplishment of
the aforesaid purpose, as follows to wit: (Enumeration of
thirteen attacks on Government forces or civilians by Huks on
May 6, 1946. August 6, 1946, April 10, 1947, May 9, 1947,
August 19, 1947, June 1946, April 28, 1949, August 25, 1950,
August 26, 1950, August 25, 1950, September 12, 1950,
March 28, 1950 and March 29, 1950).
A joint trial of both cases was held, after which the court
rendered the decision subject of the present appeals.
APPEAL OF AMADO V. HERNANDEZ
After trial the Court of First Instance found, as against
appellant Amado V. Hernandez, the following: (1) that he is a
member of the Communist Party of the Philippines and as
such had aliases, namely, Victor or Soliman; (2) that he was
furnished copies of "Titis", a Communist publication, as well
as other publications of the Party; (3) that he held the
position of President of the Congress of Labor Organizations;
(4) that he had close connections with the Secretariat of the
Communist Party and held continuous communications with
its leaders and its members; (5) that he furnished a
mimeographing machine used by the Communist Party, as
well as clothes and supplies for the military operations of the
Huks; (6) that he had contacted well-known Communists
coming to the Philippines and had gone abroad to the WFTU
conference Brussels, Belgium as a delegate of the CLO, etc.
Evidence was also received by the court that Hernandez
made various speeches encouraging the people to join in the
Huk movement in the provinces.
The court also found that there was a close tie-up between
the Communist Party and the Congress of Labor
Organizations, of which Hernandez was the President, and
that this Congress was organized by Hernandez in
conjunction with other Huks, namely: Alfredo Saulo, Mariano
Balgos, Guillermo Capadocia, etc.
We will now consider the nature and character of both the
testimonial as well as the documentary evidence,
independently of each other, to find out if the said evidence
supports the findings of the court.
Testimonial Evidence
Amado V. Hernandez took the oath as member of the
Communist Party in the month of October, 1947, at the
offices of the Congress of Labor Organizations at 2070
Azcarraga in the presence of Guillermo Capadocia, Ramon
Espiritu, Pedro Castro, Andres Balsa, etc. As a Communist he
was given the pseudonyms of Victor and Soliman, and
received copies of the Communist paper "Titis". He made
various speeches on the following dates and occasions:
(1) On August 29, 1948 before the Democratic Peace Rally of
the CLO at Plaza Miranda, in which he announced that the
people will soon meet their dear comrade in the person of
Comrade Luis Taruc.
(2) On September 4, 1948 he conferred with Hindu Khomal
Goufar at the Escolta, at which occasion Balgos told Goufar
that the PKM, CLO and the Huks are in one effort that the
PKM are the peasants in the field and the Huks are the armed
forces of the Communist Party; and the CLO falls under the
TUD of the Communist Party. 1äwphï1.ñët
(3) On October 2, 1948 he went abroad to attend the Second
Annual Convention of the World Federation of Trade Unions
and after arrival from abroad a dinner was given to him by
the people of Gagalangin, at which Hernandez delivered a
speech and he said that he preferred to go with the Huks
because he felt safer with them than with the authorities of
the Government.
(4) In April, 1949, he made a speech before a group of
tenants in Malabon attacking the frauds in the 1947
elections, graft and corruption in the elections and that if
improvement cannot be made by the ballots, they could be
made by bullets; and enjoined the people to go to the hills
and join Luis Taruc the head of the dissidents in the
Philippines.
(5) On October 2, 1949 he delivered a speech on the
occasion of the commemoration of the World Peace at the
CLO headquarters at 330 P. Campa. He attacked the city
mayor and incited the people to go to Balintawak and see
Bonifacio there and thereafter join four comrades under the
leadership of Luis Taruc.
(6) On October 16, 1949 he delivered a speech before a
convention of the unemployed at 330 P. Campa. He asked the
unemployed to approve a resolution urging the Government
to give them jobs. In conclusion he said that if the
Government fails to give them jobs the only way out was to
join the revolutionary forces fighting in the hills. He further
said that Mao Tse Tung, leader of the People's Army in China,
drove Chiang Kai Shek from his country, and that Luis Taruc
was also being chased by Government forces run by puppets
like Quirino, etc.
(7) On January 13, 1950 there was another meeting at 330 P.
Campa. In his talk Hernandez expressed regret that two
foremost leaders of the CLO, Balgos and Capadocia, had
gone to the field to join the liberation army of the HMB,
justifying their going out and becoming heroes by fighting in
the fields against Government forces until the ultimate goal
is achieved.
The above evidence was testified to by Florentino Diolata
who was the official photographer of the CLO since August,
1948.
On the tie-up between the Communist Party and the CLO
Guillermo Calayag, a Communist and a Huk from 1942 to
1950, explained:
(1) The ultimate goal of the Communist Party is to overthrow
the president government by force of aims and violence; thru
armed revolution and replace it with the so-called
dictatorship of the proletariat the Communist Party carries its
program of armed overthrow of the present government by
organizing the HMB and other forms of organization's such as
the CLO, PKM, union organizations, and the professional and
intellectual group; the CLO was organized by the Trade Union
Division TUD of the Communist Party.
(2) A good majority of the members of the Executive
Committee and the Central Committee of the CLO were also
top ranking officials of the Communist Party; activities
undertaken by the TUD - the vital undertaking of the TUD is
to see that the directives coming from the organizational
bureau of the Communist Party can be discussed within the
CLO especially the Executive Committee. And it is a fact that
since a good majority of the members of the Executive
Committee are party members, there is no time, there is no
single time that those directives and decisions of the
organizational department, thru the TUD are being objected
to by the Executive Committee of the CLO. These directives
refer to how the CLO will conduct its functions. The executive
committee is under the chairmanship of accused Amado V.
Hernandez.
(3) The CLO played its role in the overall Communist program
of armed overthrow of the present government and its
replacement by the dictatorship of the proletariat by means
of propaganda - by propagating the principles of
Communism, by giving monetary aid, clothing, medicine and
other forms of material help to the HMB. This role is
manifested in the very constitution of the CLO itself which
expounded the theory of classless society and the
eradication of social classes (par. 5, Sec. 1, Art. 2, page 18 of
the CLO Constitution contained in the Fourth Annual
Convention Souvenir Program of the CLO Exh. "V-1579").
Thru propaganda, the CLO promoted the aims of Communist
Party and disseminated Communist ideas by:
(a) The conspicuous display of the portrait or, pictures of
Crisanto Evangelista (Exh. V-1662), founder of Communism in
the Philippines, in the session hall of the CLO headquarters at
2070 Azcarraga and then at 330 P. Campa;
(b) The distribution of foreign communist reading materials
such as the World Federation of Trade Union Magazine,
International Union of Students magazine, Voice magazine of
the marine cooks of the CLO, World Committee of the
Defenders of the Peace magazine, Free Bulgaria magazine,
Soviet Russia Today magazine and World Federation of
Democratic Youth magazine (Exhs. V-911, V-907, V-910, V-
899, V-912, V-853, W-996 and V-967);
(c) The publication and distribution of some local subversive
publications such as the "Titis", "Bisig", Kidlat", which are
Communist Party organs; "The Philippine Labor Demands
Justice" and "Hands Off Korea" authored by accused Amado
V. Hernandez;
(d) Principles of Communism were also propagated thru
lectures, meetings, and by means of organization of
committees in the educational department as well as
researches in the Worker's Institute of the CLO.
(4) The CLO also helped carry out the program of the
Communist Party thru infiltration of party members and
selected leaders of the HMB within the trade unions under
the control of the CLO. The Communist Party thru the CLO
assigned Communist Party leaders and organizers to different
factories in order to organize unions. After the organization of
the union, it will affiliate itself with the CLO thru the
Communist leaders and the CLO in turn, will register said
union with the Department of Labor; and the orientation and
indoctrination of the workers is continued in the line of class
struggle. After this orientation and infiltration of the
Communist Party members and selected leaders of the HMB
with the trade unions under the control of the CLO is already
achieved and the group made strong enough to carry out its
aims, they will begin the sporadic strikes and the liquidation
of anti-labor elements and anti-Communist elements and will
create a so-called revolutionary crisis. That revolutionary
crisis will be done for the party to give directives to the HMB
who are fighting in the countrysides and made them come to
the city gates. The entry of the HMB is being paved by the
simultaneous and sporadic strikes, by ultimate general
strikes thru the management of the CLO.
Important Documents Submitted at Trial
1. Documents which proved that Amado V. Hernandez used
the aliases "Victor", or was referred to as "Victor" or
"Soliman".
(a) Letter dated April 23, 1950 (signed) by Victor addressed
to Julie telling the latter of his sympathies for other
communists, describing his experiences with Communists
abroad, telling Julie to dispose of materials that may be sent
by Victor. (Exh. D-2001-2004)
(b) "Paano Maisasagawa, etc." — mentions different groups
of labor unions of which Victor heads one group, consisting of
the MRRCO, PTLD, PGWU, EMWU and IRWU (Exh. C-2001-
2008) Cadres assigned to different industries. (Exh. V-40-41)
(c) Handwritten certificate of Honofre Mangila states that he
knew Amado Hernandez as Victor from co-party members
Hugo and Ely. (Exh. LL)
(d) Letter of Elias to Ka Eto requesting the latter to deliver
attached letter to Victor. (Exh. 1103)
(e) Saulo's letter about his escape, asks Victor why his press
statement was not published in the newspapers. (Exh. C-362)
Letter was however published by Hernandez in the Daily
Mirror.
(f) Letter of Taruc to Maclang directing the latter to give copy
of Huk Story to Victor. (Exh. D-463-64)
(g) Notes of Salome Cruz, Huk courier, stating that she went
to Soliman at Pampanga St. to bring to the latter
communications from the Communist Party. (Exh. D-1203)
That Soliman was given copies of "Titis". (Exh. D-1209)
(h) SEC directions to Politburo members, Soliman not to be
involved with Nacionalista Rebels. (Exh. F-92-93. SEC)
(i) Letter of SEC to Politburo reporting that Saulo be sent out
and Soliman has "tendencies of careerism and tendency to
want to deal with leaders of the party"; that he should be
asked to choose to go underground or fight legally. (Exh. F-
562)
(j) Explanation given by Hernandez why he did not join Saulo
in going underground. (Exh. V-87) (1) His election as
councilor until December, 1951. (Exhs. V-42, W-9) (2) His
election as President of CLO until August of following year.
(Exhs. V-42, W-9)
2. Letters and Messages of Hernandez.
(a) To Lyden Henry and Harry Reich, tells Huks still fighting.
(Exh. V-80)
(b) To SOBSI Jakarta — that Filipinos are joining other
communist countries of the East. (Exh. V-82)
 (k) Communication of Hernandez to CLO at MRRCO — Praises
Balgos and Capadocia for joining the Huks. (Exhs. V-12-22, V-
(c) Press release on Saulo's disappearance published by
289)
Amado Hernandez. (Exh. W-116-120)

(l) "Philippine labor Demands Justice" — Attacks czars of Wall

(d) To Hugh and Eddie, July 8, 1949 — Extends greetings to
Street and U.S. Army and Government. (Exh. V-94) .
National Union of Marine Cooks and Stewards, states that
labor has one common struggle — "the liberation of all the
peoples from the chains of tyranny, fascism and
(m) Letter to Taruc — June 28, 1948.-States solidarity among
imperialism". (Exh. V-259)
the CLO Huks and PKM. Attacks North Atlantic Pact. Praises
Mao Tse Tung (contained in Exh. V-94)
(e) To Kas. Pablo and Estrada - talks of the fight - fight of
labor. (Exh. V-85-89)
(n) "Philippines Is Not A Paradise" — States of a delegation to
Roxas attacking unemployment. (Exh. V-90-93)
(f) Appeal to the Women and Asia. (Exh. V-5-10)
(o) Article "Progressive Philippines" — (Exh. V-287)
(g) Letter to Julie (Exh. V-2001-2004)
(p) Article "Hands Off Korea" — (Exhs. V-488-494, 495-501,
509-515, W-25-26)
(h) Letter to Chan Lieu - states that leaders during the war
are being persecuted, like Taruc. Tells of reward of
P100,000.00 on Taruc's head. (Exh. X-85-88)
(q) "Limang Buwang Balak Sa Pagpapalakas Ng
Organisasyon". (Exh. X-35-38)
(i) Letter to John Gates of the Daily Worker — condemns Wall
Street maneuvers; corruption and graft in Quirino
(r) Press statement of Hernandez — opposes acceptance of
administration, etc. (Exh. V-83)
decorations from Greece by Romulo. (Exh. V-72)

(j) Cablegram: CLO join ILWU commends Harry Bridges, US

3. Other Activities of Hernandez.
Communist. (Exh. V-79)
(a) Hernandez received clothes from Pres. Lines thru P.
Campa, which clothes he sent to the field. Letters show of
sending of supplies to Huks. (Exh. S-383)
(b) Hernandez was asked to furnish portable typewriter,
which he did furnish to Huks. (Exh. C-364)
(c) Hernandez brought Taruc's letter about facts and
incidents about Huks to Bulosan for inclusion in Bulosan's
book. (Exh. FF-1)
(d) Had conference with Kumar Goshal a Hindu, about the
Huks and their armed forces. (Photographs, Exhs. X-6 RR-54-
55A)
(e) Supervised taking of pictures of sons of Capadocia and
Joven. (Photographs, Exhs. T-1, RR-136-138A)
(f) Had knowledge of the going underground of Capadocia
and Balgos and issued press release about their going
underground. (Exh. F-91)
(g) Victor mentioned to continue as contact for Chino. (Exh.
C-362)
(h) Taruc's letter to Maclang shows that Soliman had sent 7
lessons to Taruc. (Exh. D-451-451-A)
(i) Associated with fellow ranking Communist leaders.
The Court upon consideration of the evidence submitted,
found (1) that the Communist Party was fully organized as a
party and in order to carry out its aims and policies a
established a National Congress, a Central Committee (CC),
Politburo PB, Secretariat (SEC), Organization Bureau (OB),
and National Courier or Communication Division (NCD), each
body performing functions indicated in their respective
names; (2) that in a meeting held on August 11, 1950 the
SEC discussed the creation of a Military Committee of the
Party and a new GHQ, under which on September 29, 1950
the SEC organized a special warfare division, with a
technological division; (3) that on May 5, 1950 a body known
as the National Intelligence Division was created, to gather
essential military intelligence and, in general, all information
useful for the conduct of the armed struggle (4) that a
National Finance Committee was also organized as a part of
the Politburo and answerable to it; (5) that the country was
divided into 10 Recos, the 10th Reco comprising the Manila
and suburbs command; (6) that since November, 1949 the
CPP had declared the existence of a revolutionary situation
and since then the Party had gone underground and the CPP
is leading the armed struggle for national liberation, and
called on the people to organize guerrillas and coordinate
with the HMB on the decisive struggle and final overthrow of
the imperialist government; (7) that in accordance with such
plan the CPP prepared plans for expansion and development
not only of the Party but also of the HMB; the expansion of
the cadres from 3,600 in July 1950 to 56,000 in September
1951, the HMB from 10,800 in July 1950 to 172,000 in
September 1951, et seq.
Around the month of January, 1950 it was decided by the CPP
to intensify HMB military operations for political purposes.
The Politburo sanctioned the attacks made by the Huks on
the anniversary of the HMB on March 25, 1950. The HMB
attacks that were reported to the PB were those made in
May, 1946; June, 1946; April 10, 1947; May 9, 1947; August
19, 1947; August 25, 1950; August 26, 1950; October 15 and
17, 1950; May 6, 1946; August 6, 1946; April 10, 1947; May
9, 1947; August 19, 1947; April 29, 1949; August 25, 1950;
August 26, 1950; September 12, 1950; March 26, 1950;
March 29, 1950.
The theory of the prosecution, as stated in the lower court's
decision, is as follows:
The evidence does not show that the defendants in these
cases now before this Court had taken a direct part in those
raids and in the commission of the crimes that had been
committed. It is not, however, the theory of the prosecution
that they in fact had direct participation in the commission of
the same but rather that the defendants in these cases have
cooperated, conspired and confederated with the Communist
Party in the prosecution and successful accomplishment of
the aims and purposes of the said Party thru the organization
called the CLO (Congress of Labor Organizations).
The Court found that the CLO is independent and separate
from the CPP, organized under the same pattern as the CPP,
having its own National Congress, a Central Committee
(which acts in the absence of and in representation of the
National Congress), an Executive Committee (which acts
when the National Congress and the Executive Committee
are not in session), and seven permanent Committees,
namely, of Organization, Unemployment and Public Relations,
Different Strikes and Pickets, Finance, Auditing, Legislation
and Political Action. Members of the Communist Party
dominate the committees of the CLO. The supposed tie-up
between CPP and the CLO of which Hernandez was the
President, is described by the court below in finding, thus:
Just how the CLO coordinates its functions with the
Communist Party organ under which it operates was
explained by witness Guillermo S. Calayag, one-time ranking
member of the Communist Party and the CLO who typewrites
the "Patnubay sa Education" from a handwritten draft of
Capadocia, which is one of the texts used in the Worker's
institute of the CLO. According to him, the CLO plays its role
by means of propaganda, giving monetary aid, clothing,
medicine and other material forms of help to the HMB, which
constitutes the armed forces of the Communist Party.
Propaganda is done by lectures, meetings, and the
organization of committees of the educational department as
well as researches at the CLO Worker's Institute.
Another way of helping the Communist Party of the
Philippines is by allowing the Communist Party leaders to act
as organizers in the different factories in forming a union.
These Party Members help workers in the factories to agitate
for the eradication of social classes and ultimately effect the
total emancipation of the working classes thru the
establishment of the so-called dictatorship of the proletariat.
It is the duty of these Communist Party members to
indoctrinate uninitiated workers in the union to become
proselytes of the Communist Party ideology. After the right
number is secured and a union is formed under a communist
leader, this union is affiliated with the CLO and this in turn
registers the same with the Department of Labor. The
orientation and indoctrination of the masses is continued
with the help of the CLO. The primary objective of the CLO is
to create what is called a revolutionary crisis. It seeks to
attain this objective by first making demands from the
employers for concessions which become more and more
unreasonable until the employers would find it difficult to
grant the same. Then a strike is declared. But the strikes are
only preparation for the ultimate attainment of the
Communist goal of armed overthrow of the government.
After the workers in the factories have already struck in
general at the behest of the Communist Party thru the CLO a
critical point is reached when a signal is given for the armed
forces of the Communist Party, the HMB, to intervene and
carry the revolution now being conducted outside to within
the city.
On the basis of the above findings, the court below found
Hernandez guilty as principal of the crime charged against
him and sentenced him to suffer the penalty of reclusion
perpetua with the accessories provided by law, and to pay
the proportionate amount of the costs.
Our study of the testimonial and documentary evidence,
especially those cited by the Court in its decision and by the
Solicitor General in his brief, discloses that defendant-
appellant Amado V. Hernandez, as a Communist, was an
active advocate of the principles of Communism, frequently
exhorting his hearers to follow the footsteps of Taruc and join
the uprising of the laboring classes against capitalism and
more specifically against America and the Quirino
administration, which he dubbed as a regime of puppets of
American imperialism. But beyond the open advocacy of
Communistic Theory there appears no evidence that he
actually participated in the actual conspiracy to overthrow by
force the constituted authority.
Hernandez is the founder and head of the CLO. As such, what
was his relation to the rebellion? If, as testified to by
Guillermo S. Calayag, the CLO plays merely the role of
propagation by lectures, meetings and organization of
committees of education by Communists; if, as stated, the
CLO merely allowed Communist Party leaders to act as
organizers in the different factories, to indoctrinate the CLO
members into the Communist Party and proselytize them to
the Communist ideology; if, as also indicated by Calayag, the
CLO purports to attain the ultimate overthrow of the
Government first by making demands from employers for
concessions until the employers find it difficult to grant the
same, at which time a strike is declared; if it is only after the
various strikes have been carried out and a crisis is thereby
developed among the laboring class, that the Communist
forces would intervene and carry the revolution — it is
apparent that the CLO was merely a stepping stone in the
preparation of the laborers for the Communist' ultimate
revolution. In other words, the CLO had no function but that
of indoctrination and preparation of the members for the
uprising that would come. It was only a preparatory
organization prior to revolution, not the revolution itself. The
leader of the CLO therefore, namely Hernandez, cannot be
considered as a leader in actual rebellion or of the actual
uprising subject of the accusation. Hernandez, as President of
the CLO therefore, by his presidency and leadership of the
CLO cannot be considered as having actually risen up in arms
in rebellion against the Government of the Philippines, or
taken part in the conspiracy to commit the rebellion as
charged against him in the present case; he was merely a
propagandist and indoctrinator of Communism, he was not a
Communist conspiring to commit the actual rebellion by the
mere fact of his presidency of the CLO.
The court below declares that since November 1949 the
Communist Party of the Philippines had declared the
existence of the revolutionary situation and since then the
Party had gone underground, with the CPP leading the
struggle for national integration and that in the month of
January 1950, it was decided by the said Party to intensify
the HMB military operations for political purposes. The court
implicates the appellant Hernandez as a co-conspirator in
this resolution or acts of the Communist Party by his mere
membership thereto. We find this conclusion unwarranted.
The seditious speeches of Hernandez took place before
November, 1949 when the CPP went underground. The court
below has not been able to point out, nor have We been able
to find among all acts attributed to Hernandez, any single
fact or act of his from which it may be inferred that he took
part in the deliberations declaring the existence of a
revolutionary situation, or that he had gone underground. As
a matter of fact the prosecution's evidence is to the effect
that Hernandez refused to go underground preferring to
engage in what they consider the legal battle for the cause.
We have also looked into the different documents which have
been presented at the time of the trial and which were
confiscated from the office of the Politburo of the Communist
Party. The speeches of Hernandez were delivered before the
declaration by the Communist Party of a state of
revolutionary situation in 1949. Neither was it shown that
Hernandez was a member of the Executive Committee, or of
the SEC, or of the Politburo of the Communist Party; so NO
presumption can arise that he had taken part in the accord or
conspiracy declaring a revolution. In short, there has been no
evidence, direct or indirect, to relate or connect the appellant
Hernandez with the uprising or the resolution to continue or
maintain said uprising, his participation in the deliberations
leading to the uprising being inferred only from the fact that
he was a communist.
The practice among the top Communists, as declared by the
trial court appears to have been for important members, if
they intend actually to join the rebellion, to go underground,
which meant leaving the city, disappearing from sight and/or
secretly joining the forces in the field.
The document, Exhibit F-562, which is quoted in the decision,
contains the directive of the SEC of September 1, 1950, to
Saulo and Hernandez, which reads:
11. In view of the new developments in the city, send out
Elias who prefers to work outside. Present problem of fighting
legally to Com. Soliman. If Soliman is prepared for
martyrdom, retain him to fight legally. If not, send him out
with Elias. Same goes with Com. Mino and other relatively
exposed mass leaders.
And the lower court itself found that whereas Saulo went
underground and joined the underground forces outside the
City, Hernandez remained in the City, engaged in the work of
propaganda, making speeches and causing the publication of
such matters as the Communist Party leaders directed him to
publish.
That Hernandez refused to go underground is a fact which is
further corroborated by the following reasons (excuses) given
by him for not going underground, namely (1) that his term
of councilor of the City of Manila was to extend to December,
1951; and (2) that he was elected President of the CLO for a
term which was to end the year 1951.
As a matter of fact the SEC gave instructions to Hernandez
not to be involved with Nacionalista Rebels, and reported to
the Politburo that Hernandez "has tendencies of careerism,
and tending to want to deal with leaders of the Nacionalista
Party instead of following CPP organizational procedures."
The court below further found that Hernandez had been
furnishing supplies for the Huks in the field. But the very
document dated December 3, 1949, Exhibit D-420422, cited
in the decision (printed, p. 49), is to the effect that clothes
and shoes that Hernandez was supposed to have sent have
not been received. It is true that some clothes had been sent
thru him to the field, but these clothes had come from a crew
member of a ship of the American President Lines. He also,
upon request, sent a portable typewriter to the SEC or
Politburo. Furthermore, a certain Niagara Duplicating
machine received by Hernandez from one Rolland Scott
Bullard a crew member of the SS President Cleveland,
appease later to have been forwarded by him to the officers
of the SEC or the Politburo.
Lastly, it further appears that Taruc and other CPP leaders
used to send notes to appellant Hernandez, who in turn
issued press releases for which he found space in the local
papers. His acts in this respect belong to the category of
propaganda, to which he appears to have limited his actions
as a Communist.
The acts of the appellant as thus explained and analyzed fall
under the category of acts of propaganda, but do not prove
that he actually and in fact conspired with the leaders of the
Communist Party in the uprising or in the actual rebellion, for
which acts he is charged in the information. And his refusal to
go underground because of his political commitments
occasioned by his term of election as president of the CLO
and the impressions caused by his acts on the Communist
leaders, to the effect that he was in direct communication or
understanding with the Nacionalista Party to which he was
affiliated, creates in Us the reasonable doubt that it was not
his Communistic leanings but his political ambitions, that
motivated his speeches sympathizing with the Huks. For
which reason We hold that the evidence submitted fails to
prove beyond reasonable doubt that he has conspired in the
instigation of the rebellion for which he is held to account in
this criminal case.
The question that next comes up for resolution is: Does his or
anyone's membership in the Communist Party per se render
Hernandez or any Communist guilty of conspiracy to commit
rebellion under the provisions of Article 136 of the Revised
Penal Code? The pertinent provision reads:
ART. 136. Conspiracy and proposal to commit rebellion or
insurrection. — The conspiracy and proposal to commit
rebellion or insurrection shall be punished, respectively, by
prision correccional in its maximum period and a fine which
shall not exceed 5,000 pesos, and by prision correccional in
its medium period and a fine not exceeding 2,000 pesos.
The advocacy of Communism or Communistic theory and
principle is not to be considered as a criminal act of
conspiracy unless transformed or converted into an advocacy
of action. In the very nature of things, mere advocacy of a
theory or principle is insufficient unless the communist
advocates action, immediate and positive, the actual
agreement to start an uprising or rebellion or an agreement
forged to use force and violence in an uprising of the working
class to overthrow constituted authority and seize the reins
of Government itself. Unless action is actually advocated or
intended or contemplated, the Communist is a mere theorist,
merely holding belief in the supremacy of the proletariat a
Communist does not yet advocate the seizing of the reins of
Government by it. As a theorist the Communist is not yet
actually considered as engaging in the criminal field subject
to punishment. Only when the Communist advocates action
and actual uprising, war or otherwise, does he become guilty
of conspiracy to commit rebellion. Borrowing the language of
the Supreme Court of the United States:
In our jurisprudence guilt is personal, and when the
imposition of punishment on a status or on conduct can only
be justified by reference to the relationship of that status or
conduct to other concededly criminal activity (here advocacy
of violent overthrow), that relationship must be sufficiently
substantial to satisfy the concept of personal guilt in order to
withstand attack under the Due Process Clause of the Fifth
Amendment. Membership, without more, in an organization
engaged in illegal advocacy, it is now said, has not heretofore
been recognized by this Court to be such a relationship. ... .
What must be met, then, is the argument that membership,
even when accompanied by the elements of knowledge and
specific intent, affords an insufficient quantum of
participation in the organization's alleged criminal activity,
that is, an insufficiently significant form of aid and
encouragement to permit the imposition of criminal sanctions
on that basis. It must indeed be recognized that a person
who merely becomes a member of an illegal organization, by
that "act" alone need be doing nothing more than signifying
his assent to its purposes and activities on one hand, and
providing, on the other, only the sort of moral
encouragement which comes from the knowledge that others
believe in what the organization is doing. It may indeed be
argued that such assent and encouragement do fall short of
the concrete, practical impetus given to a criminal enterprise
which is lent for instance by a commitment on the part of the
conspirator to act in furtherance of that enterprise. A
member, as distinguished from a conspirator, may indicate
his approval of a criminal enterprise by the very fact of his
membership without thereby necessarily committing himself
to further it by any act or course of conduct whatever.
(Scales v. United States, 367 U.S. 203, 6 L. ed. 782)
The most important activity of appellant Hernandez appears
to be the propagation of improvement of conditions of labor
through his organization, the CLO. While the CLO of which he
is the founder and active president, has communistic
tendencies, its activity refers to the strengthening of the
unity and cooperation between labor elements and preparing
them for struggle; they are not yet indoctrinated in the need
of an actual war with or against Capitalism. The appellant
was a politician and a labor leader and it is not unreasonable
to suspect that his labor activities especially in connection
with the CLO and other trade unions, were impelled and
fostered by the desire to secure the labor vote to support his
political ambitions. It is doubtful whether his desire to foster
the labor union of which he was the head was impelled by an
actual desire to advance the cause of Communism, not
merely to advance his political aspirations.
Insofar as the appellant's alleged activities as a Communist
are concerned, We have not found, nor has any particular act
on his part been pointed to Us, which would indicate that he
had advocated action or the use of force in securing the ends
of Communism. True it is, he had friends among the leaders
of the Communist Party, and especially the heads of the
rebellion, but this notwithstanding, evidence is wanting to
show that he ever attended their meetings, or collaborated
and conspired with said leaders in planning and encouraging
the acts of rebellion, or advancing the cause thereof. Insofar
as the furnishing of the mimeograph machine and clothes is
concerned, it appears that he acted merely as an
intermediary, who passed said machine and clothes on to
others. It does not appear that he himself furnished funds or
material help of his own to the members of the rebellion or to
the forces of the rebellion in the field.
But the very act or conduct of his in refusing to go
underground, in spite of the apparent desire of the chief of
the rebellion, is clear proof of his non-participation in the
conspiracy to engage in or to foster the rebellion or the
uprising.
We next consider the question as to whether the fact that
Hernandez delivered speeches of propaganda in favor of
Communism and in favor of rebellion can be considered as a
criminal act of conspiracy to commit rebellion as defined in
the law. In this respect, the mere fact of his giving and
rendering speeches favoring Communism would not make
him guilty of conspiracy, because there was no evidence that
the hearers of his speeches of propaganda then and there
agreed to rise up in arms for the purpose of obtaining the
overthrow of the democratic government as envisaged by
the principles of Communism. To this effect is the following
comment of Viada:
CUESTION 10. El que hace propaganda entre sus convecinos,
induciendoles a que el dia que se anunciara la subasta de
consumes se echaran a la calle para conseguir aunque fuera
preciso acudir a la fuerza el reparto entre los vecinos ricos
solamente, sera responsable de un delito de conspiracion
para la sedicion? — El Tribunal Supreme ha resuelto la
negative al casar cierta sentencia de la Audiencia de
Valencia, que entendio lo contrario: "Considerando que, con
areglo a lo que dispone el art. 4. del Codigo Penal, hay
conspiracion cuando dos o mas personas se conciertan para
la execution de un delito y resuelven cmeterlo; y no
constando que existiera ese concierto en cuanto a los hechos
que se refieren en la tercera pregunta del veredicto, pues en
ella solo se habla de los actos de induccion que el procesado
realizo, sin expresar el efecto que la mismo produjo en el
animo de las personas a quienes se dirigian, ni si estas
aceptaron o no lo que se las propuso, resulta evidence que
faltan los clementos integrantes de la conspiracion, etc." (Se.
de 5 de Julio de 1907, Gaceta de 7 de Enero de 1909.) (Viada,
Tomo I, Codigo Penal, p. 152)
In view of all the above circumstances We find that there is
no concrete evidence proving beyond reasonable doubt that
the appellant (Hernandez) actually participated in the
rebellion or in any act of conspiracy to commit or foster the
cause of the rebellion. We are constrained, in view of these
circumstances, to absolve, as We hereby absolve, the
appellant Amado V. Hernandez from the crime charged, with
a proportionate share of the costs de oficio.
APPEAL OF OTHER DEFENDANTS-APPELLANTS
All the other defendants were found guilty as accomplices in
the crime of rebellion as charged in the information and were
each sentenced to suffer the penalty of 10 years and 1 day of
prision mayor, with the accessories provided by law, and to
pay their proportionate share of the costs.
 In U.S. v. Vergara, infra, the defendants organized a secret
society commonly known as the "Katipunan", the purpose of
Legal Considerations. — Before proceeding to consider the
which was to overthrow the government by force. Each of the
appeals of the other defendants, it is believed useful if not
defendants on various times solicited funds from the people
necessary to lay dawn the circumstances or facts that may
of Mexico, Pampanga. The Court held that the defendants
be determinative of their criminal responsibility or the
were guilty of conspiracy and proposal to commit rebellion or
existence or nature thereof. To begin with, as We have
insurrection and not of rebellion or insurrection itself. Thus,
exhaustively discussed in relation to the appeal of
the Court ruled that:
Hernandez, we do not believe that mere membership in the
Communist Party or in the CLO renders the member liable,
either of rebellion or of conspiracy to commit rebellion,
From the evidence adduced in this case we are of the opinion
because mere membership and nothing more merely implies
that the said defendants are guilty, not of inciting, setting or
advocacy of abstract theory or principle without any action
foot, or assisting or engaging in rebellion, but rather of the
being induced thereby; and that such advocacy becomes
crime of conspiring to overthrow, put down, and destroy by
criminal only if it is coupled with action or advocacy of action,
force the Government of the United States in the Philippine
namely, actual rebellion or conspiracy to commit rebellion, or
Islands, and therefore we find that said defendants, and each
acts conducive thereto or evincing the same.
of them, did, together with others, in the months of February
and March, 1903, in the Province of Pampanga, Philippine
Islands, conspire to overthrow, put down, and to destroy by
On the other hand, membership in the HMB (Hukbalahap)
force the Government of the United States in the Philippine
implies participation in an actual uprising or rebellion to
Islands. (U.S. v. Vergara, et al., 3 Phil. 432, 434.)
secure, as the Huks pretend, the liberation of the peasants
and laboring class from thraldom. By membership in the
HMB, one already advocates uprising and the use of force,
JUAN J. CRUZ
and by such membership he agrees or conspires that force
be used to secure the ends of the party. Such membership,
therefore, even if there is nothing more, renders the member
The court found him to be a Communist with various aliases,
guilty of conspiracy to commit rebellion punishable by law.
a member of the Central Committee of the CLO member of
the Central Committee of the CPP and as such committed to
the establishment of the dictatorship of the proletariat To the
And when a Huk member, not content with his membership,
same effect is the testimony of Guillermo Calayag.
does anything to promote the ends of the rebellion like
soliciting contributions, or acting as courier, he thereby
becomes guilty of conspiracy, unless he takes to the field and
There is no evidence to connect him with the rebellion or to
joins in the rebellion or uprising, in which latter case he
the conspiracy to commit rebellion. He should therefore be
commits rebellion.
absolved of the charges contained in the information.
 The court found him to be a Communist since 1945, an
officer of an organized Communist branch in Pasay City, a
AMADO RACANDAY
member of the Central Committee and Treasurer of the CLO.
He admitted his membership and his position as member of
the executive committee and treasurer of the CLO these facts
The trial court found him guilty as a Communist, a Secretary
being corroborated by the witness Guillermo Calayag.
and Executive Committee member of the CLO a
communications center of the Communist Party, having been
found in possession of letters from Federico Maclang to
His membership in the Communist Party dates as far back as
Salome Cruz, and solicitor of contributions for the Huks.
the year 1945. As a communist, Genaro de la Cruz received
quotas and monetary contributions coming from the areas
under his jurisdiction, and one time he made a receipt from a
Racanday admits being a member of the Executive
member from Caloocan at the CLO headquarters at
Committee of the CLO Editor of the Kidlat of the Government
Azcarraga signing the receipt as "Gonzalo" which is one of his
Workers Union, receiving copies of the Titis. Calayag testified
aliases. He also distributed copies of the "Titis" magazine. `
that he was a member of the Central Committee of the
Communist Party entrusted with the duty of receiving
directives of the Regional Committee of the Communist Party.
While his membership in the Communist Party plus his
having received contributions for the party indicate that he is
an active member, it was not shown that the contributions
The letters found in his possession are dated February 14,
that he received from Communist Party members were
1950, before the Communist Party went underground. We
received around the year 1950 when the Central Committee
have been unable to find the evidence upon which the court
of the Communist Party had already agreed to conspire and
bases its conclusion that he received contributions for the
go underground and support the Huk rebellion. Under these
Huks. With these circumstances in mind, We are not
circumstances We cannot find him guilty of conspiracy to
convinced beyond reasonable doubt that as a Communist he
commit rebellion because of the lack of evidence to prove his
took part in the conspiracy among the officials of the
guilt beyond reasonable doubt.
Communist Party to take part and support the rebellion of the
Huks.

JULIAN LUMANOG
We are, therefore, constrained to absolve him of the charges
filed against him.
The court found him to be an organizer of HMB among the
mill workers, solicited contributions for the HMB and Central
Committee member of the CLO as per Testimony of Guillermo
GENARO DE LA CRUZ
Calayag.
 Considering that while he has not actually taken part in the
rebellion, he has shown sympathy with the cause by soliciting
He admitted that he joined the Communist Party because he
contributions for it and had given shelter to the Huks. We feel
was made to believe that the Party is for the welfare of the
that the court was fully justified in finding him guilty, but We
laborers. He also admitted being a member of the Central
hold that he should be declared liable merely as a co-
Committee of the CLO Calayag testified that Lumanog
conspirator in the crime of conspiracy to commit rebellion,
organized the HMB units of the Communist Party in the
and should be sentenced accordingly.
Lumber Unions and attended a Communist meeting held by
Maclang.
BAYANI ESPIRITU
Domingo Clarin testified that he (Julian Lumanog) used to
give the money collected by him to one Nicasio Pamintuan,
This appellant was found by the court to be a Communist, he
one of the members of the HMB Special Unit Trigger Squad)
having admitted membership in the Communist Party since
in Manila for the use of the said unit.
1945; that his duties as a Communist was to help in the
office of the National Finance Committee, assorting papers
and written documents; that sometimes he accompanied the
Considering that the HMB was engaged in a rebellion to
purchaser of medicines, shoes, papers, foodstuffs and
overthrow the government, it is evident that by giving his
clothing to be given to the Huks; that he is a member of the
contributions he actually participated in the conspiracy to
Communication Division of the CPP in Manila, in charge of
overthrow the government and should, therefore, be held
distribution of letters or communications; that he admits
liable for such conspiracy, and should be sentenced
having written to Salome Cruz, courier of the Communist
accordingly.
Party, when he asked for his necessities, such as money and
shoes, etc.
FERMIN RODILLAS

The facts found by the court are sufficiently supported by the

communications and evidence submitted by the prosecution.
The trial court found that Fermin Rodillas was a member of
The exhibits show that he was in constant communication
the CPP and the CLO that his activities consisted in soliciting
with the communists; serving them as courier. His oath as a
contributions, in cash and in kind, from city residents for the
member of the Communist Party was submitted in court and
use of the HMB, turning over said collections to the Party;
in it he admits obedience to all orders of the Party and to
that he has given asylum to a wanted Hukbalahap at his
propagate the stability of the PKP.
house at Juan Luna St., Gagalangin, which house was used as
Military post. The above findings of the court are fully
supported by the testimony of Domingo Clarin.
Considering that the PKP was engaged in an actual uprising
against the constituted Government and that Bayani Espiritu
was in constant communication with the Communist Party
and served it as courier, We believe that the court was fully
justified in finding him guilty. However, We believe that not
having actually taken up arms in the uprising he may only be
declared guilty of conspiracy to commit rebellion.
therefore, that the evidence proves beyond reasonable doubt
that she is guilty of conspiracy to commit rebellion.
DEFENDANTS NOT INCLUDED IN DECISION

TEOPISTA VALERIO In Crim. Case No. 15841 (G.R. No. L-6025) the charge against
Guillermo Capadocia, Mariano P. Balgos, Alfredo B. Saulo and
Jacobo Espino was dismissed because they have not been
The court below found that this appellant joined the apprehended at the time of the trial.
Communists in 1938 in San Luis, Pampanga, under Casto
Alejandrino, who later became her common-law husband;
that her aliases are "Estrella" and "Star"; that she was found PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND
in possession of various documents written to top
REPUBLIC ACT NO. 1700, DISTINGUISHED
Communists like Alejandrino, Lava and Romy, as well as a
letter from Taruc congratulating her for the delivers, of a son.
In the case at bar the prosecution is for actual rebellion which
consists in rising publicly and taking aims against the
Jose Taguiang testified that she was a member of the
Government for the purpose of removing from the allegiance
Provincial Committee of the CPP in Nueva Ecija, later
to said Government or its laws, the territory of the
Chairman of the Finance Department, and then promoted to
Philippines, or any part thereof, etc., a crime defined in
Finance Officer of the Central Luzon Committee. Alicia
Article 134 of the Revised Penal Code; whereas Evangelista
Vergara, a Huk courier, testified that she delivered letter from
was charged and convicted for inciting to rebellion under Art.
the mountains to Teopista Valerie, who was in turn also a
138, Revised Penal Code (formerly Sec. 2, Act No. 292). As
courier.
the specific charge against appellants is that of rising up in
arms in actual rebellion against the Government, they cannot
be held guilty of inciting the people to arms under Article
Without considering the close relationship that she had with
138, which is a different offense.
top Communist Casto Alejandrino, We are satisfied that she
herself was, aside from being a Huk courier, also a Huk, a
member of the HMB from 1942 to 1951. As she was a
On the other hand, Rep. Act 1700, known as the Anti-
Communist and at the same time a member of the HMB, and
subversion Act, which penalizes membership in any
considering that the HMB was engaged in an uprising to
organization or association committed to subvert the
uproot the legitimate government, there cannot be any
Government, cannot be applied to the appellants because
question that she was in conspiracy with the other members
said Act was approved on June 20, 1957 and was not in force
of her Party against the constituted government. We hold,
at the time of the commission of the acts charged against
appellants (committed 1945-1950) ; the Anti-Subversion Act
punishes participation or membership in an organization
committed to overthrow the duly constituted Government, a
crime district from that of actual rebellion with which
appellants are charged.
CONCLUSION
WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025)
defendants-appellants Amado V. Hernandez, Juan J. Cruz,
Amado Racanday and Genaro de la Cruz are absolved from
the charges contained in the information, with their
proportionate share of the costs de oficio. The defendants-
appellants Julian Lumanog and Fermin Rodillas in Criminal
Case No. 15841 (G.R. No. L-6025) and the defendants-
appellants Bayani Espiritu and Teopista Valerio in Criminal
Case No. 15479 (G.R. No. L-6026) are hereby found guilty of
the crime of conspiracy to commit rebellion, as defined and
punished in Article 136 of the Revised Penal Code, and each
and everyone of them is hereby sentenced to suffer
imprisonment for five years, four months and twenty-one
days of prision correccional, and to pay a fine of P5,000.00,
with subsidiary imprisonment in case of insolvency and to
pay their proportional share of the costs. So ordered.
Sayo vs. Chief of Police
Upon complaint of Bernardino Malinao, charging the
petitioners with having committed the crime of robbery,
Benjamin Dumlao, a policeman of the City of Manila, arrested
the petitioners on April 2, 1948, and presented a complaint
against them with the fiscal's office of Manila. Until April 7,
1948, when the petition for habeas corpus filed with this
Court was heard, the petitioners were still detained or under
arrest, and the city fiscal had not yet released or filed against
them an information with the proper courts justice.
This case has not been decided before this time because
there was not a sufficient number of Justices to form a
quorum in Manila, And it had to be transferred to the
Supreme Court acting in division here in Baguio for
deliberation and decision. We have not until now an official
information as to the action taken by the office of the city
fiscal on the complaint filed by the Dumlao against the
petitioners. But whatever night have been the action taken
by said office, if there was any, we have to decide this case
in order to lay down a ruling on the question involved herein
for the information and guidance in the future of the officers
concerned.
The principal question to be determined in the present case
in order to decide whether or not the petitioners are being
illegally restrained of their liberty, is the following: Is the city
fiscal of manila a judicial authority within the meaning of the
provisions of article 125 of the Revised Penal Code?
Article 125 of the Revised Penal Code provides that "the
penalties provided in the next proceeding article shall be
imposed upon the public officer or employee who shall detain
any person for some legal ground and shall fail to deliver
such person to the proper judicial authorities within the
period of six hours."
Taking into consideration the history of the provisions of the
above quoted article, the precept of our Constitution
guaranteeing individual liberty, and the provisions of Rules of
Court regarding arrest and habeas corpus, we are of the
opinion that the words "judicial authority", as used in said
article, mean the courts of justices or judges of said courts
vested with judicial power to order the temporary detention
or confinement of a person charged with having committed a
public offense, that is, "the Supreme Court and such inferior
courts as may be established by law". (Section 1, Article VIII
of the Constitution.)
Article 125 of the Revised Penal Code was substantially taken
from article 202 of the old Penal Code formerly in force of
these Islands, which penalized a public officer other than a
judicial officer who, without warrant, "shall arrest a person
upon a charge of crime and shall fail to deliver such person
to the judicial authority within twenty four hours after his
arrest." There was no doubt that a judicial authority therein
referred to was the judge of a court of justice empowered by
law, after a proper investigation, to order the temporary
commitment or detention of the person arrested; and not the
city fiscals or any other officers, who are not authorized by
law to do so. Because article 204, which complements said
section 202, of the same Code provided that "the penalty of
suspension in its minimum and medium degrees shall be
imposed upon the following persons: 1. Any judicial officer
who, within the period prescribed by the provisions of the law
of criminal procedure in force, shall fail to release any
prisoner under arrest or to commit such prisoner formally by
written order containing a statement of the grounds upon
which the same is based."
Although the above quoted provision of article 204 of the old
Penal Code has not been incorporated in the Revised Penal
Code the import of said words judicial authority or officer can
not be construed as having been modified by the mere
omission of said provision in the Revised Penal Code.
Besides, section 1 (3), Article III, of our Constitution provides
that "the right of the people to be secure in their
persons...against unreasonable seizure shall not be violated,
and no warrant [of arrest, detention or confinement] shall
issue but upon probable cause, to be determined by the
judge after the examination under oath or affirmation of the
complaint and the witness he may produce." Under this
constitutional precept no person may be deprived of his
liberty, except by warrant of arrest or commitment issued
upon probable cause by a judge after examination of the
complainant and his witness. And the judicial authority to
whom the person arrested by a public officers must be
surrendered can not be any other but court or judge who
alone is authorized to issue a warrant of commitment or
provisional detention of the person arrested pending the trial
of the case against the latter. Without such warrant of
commitment, the detention of the person arrested for than
six hours would be illegal and in violation of our Constitution.

Our conclusion is confirmed by section 17, Rule 109 of the
Rules of court, which, referring to the duty of an officer after
arrest without warrant, provides that "a person making arrest
for legal ground shall, without unnecessary delay, and within
the time prescribed in the Revised Penal Code, take the
person arrested to the proper court or judge for such action
for they may deem proper to take;" and by section 11 of Rule
108, which reads that "after the arrest by the defendant and
his delivery to the Court, he shall be informed of the
complaint or information filed against him. He shall also
informed of the substance of the testimony and evidence
presented against him, and, if he desires to testify or to
present witnesses or evidence in his favor, he may be
allowed to do so. The testimony of the witnesses need not be
reduced to writing but that of the defendant shall be taken in
writing and subscribed by him.
And it is further corroborated by the provisions of section 1
and 4, Rule 102 of the Rules of Court. According to the
provision of said section, "a writ of habeas corpus shall
extend any person to all cases of illegal confinement or
detention by which any person is illegally deprived of his
liberty"; and "if it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under
process issued by a court or judge, or by virtue of a
judgement or order of a court of record, and that the court or
judge had jurisdiction to issue the process, render judgment,
or make the order, the writ shall not be allowed. "Which a
contrario sensu means that, otherwise, the writ shall be
allowed and the person detained shall be released.
The judicial authority mentioned in section 125 of the
Revised Penal Code can not be construed to include the fiscal
of the City of Manila or any other city, because they cannot
issue a warrant of arrest or of commitment or temporary
confinement of a person surrendered to legalize the
detention of a person arrested without warrant. (Section 7,
Rule 108; Hashim vs. Boncan, 40 Off. Gaz. 13th Supp., p.13;
Lino vs. Fugoso, L-1159, promulgated on January 30, 1947,
43 Off. Gaz., 1214). The investigation which the city of fiscal
of Manila makes is not the preliminary investigation proper
provided for in section 11, Rule 108, above quoted, to which
all person charged with offenses cognizable by the Court of
First Instance in provinces are entitled, but it is a mere
investigation made by the city fiscal for the purpose of filing
the corresponding information against the defendant with the
proper municipal court or Court of First Instance of Manila if
the result of the investigation so warrants, in order to obtain
or secure from the court a warrant of arrest of the defendant.
It is provided by a law as a substitute, in a certain sense, of
the preliminary investigation proper to avoid or prevent a
hasty or malicious prosecution, since defendant charged with
offenses triable by the courts in the City of Manila are not
entitled to a proper preliminary investigation.
The only executive officers authorized by law to make a
proper preliminary investigation in case of temporary
absence of both the justice of the peace and the auxiliary
justice of the peace from the municipality, town or place, are
the municipal mayors who are empowered in such case to
issue a warrant of arrest of the caused. (Section 3, Rule 108,
in connection with section 6, Rule 108, and section 2 of Rule
109.) The preliminary investigation which a city fiscal may
conduct under section 2, Rule 108, is the investigation
referred to in the proceeding paragraph.
Under the law, a complaint charging a person with the
commission of an offense cognizable by the courts of Manila
is not filed with municipal court or the Court of First Instance
of Manila, because as above stated, the latter do not make or
conduct a preliminary investigation proper. The complaint
must be made or filed with the city fiscal of Manila who,
personally or through one of his assistants, makes the
investigation, not for the purpose of ordering the arrest of the
accused, but of filing with the proper court the necessary
information against the accused if the result of the
investigation so warrants, and obtaining from the court a
warrant of arrest or commitment of the accused.
When a person is arrested without warrant in cases permitted
bylaw, the officer or person making the arrest should, as
abovestated, without unnecessary delay take or surrender
the person arrested, within the period of time prescribed in
the Revised Penal Code, to the court or judge having
jurisdiction to try or make a preliminary investigation of the
offense (section 17, Rule 109); and the court or judge shall
try and decide the case if the court has original jurisdiction
over the offense charged, or make the preliminary
investigation if it is a justice of the peace court having no
original jurisdiction, and then transfer the case to the proper
Court of First Instance in accordance with the provisions of
section 13, Rule 108.
In the City of Manila, where complaints are not filed directly
with the municipal court or the Court of First Instance, the
officer or person making the arrest without warrant shall
surrender or take the person arrested to the city fiscal, and
the latter shall make the investigation above mentioned and
file, if proper, the corresponding information within the time
prescribed by section 125 of the Revised Penal Code, so that
the court may issue a warrant of commitment for the
temporary detention of the accused. And the city fiscal or his
assistants shall make the investigation forthwith, unless it is
materially impossible for them to do so, because the
testimony of the person or officer making the arrest without
warrant is in such cases ready and available, and shall,
immediately after the investigation, either release the person
arrested or file the corresponding information. If the city
fiscal has any doubt as to the probability of the defendant
having committed the offense charged, or is not ready to file
the information on the strength of the testimony or evidence
presented, he should release and not detain the person
arrested for a longer period than that prescribed in the Penal
Code, without prejudice to making or continuing the
investigation and filing afterwards the proper information
against him with the court, in order to obtain or secure a
warrant of his arrest. Of course, for the purpose of
determining the criminal liability of an officer detaining a
person for more than six hours prescribed by the Revised
Penal Code, the means of communication as well as the hour
of arrested and other circumstances, such as the time of
surrender and the material possibility for the fiscal to make
the investigation and file in time the necessary information,
must be taken into consideration.
To consider the city fiscal as the judicial authority referred to
in article 125 of the Revised Penal Code, would be to
authorize the detention of a person arrested without warrant
for a period longer than that permitted by law without any
process issued by a court of competent jurisdiction. The city
fiscal, may not, after due investigation, find sufficient ground
for filing an information or prosecuting the person arrested
and release him, after the latter had been illegally detained
for days or weeks without any process issued by a court or
judge.
A peace officer has no power or authority to arrest a person
without a warrant upon complaint of the offended party or
any other person, except in those cases expressly authorized
by law. What he or the complainant may do in such case is to
file a complaint with the city fiscal of Manila, or directly with
the justice of the peace courts in municipalities and other
political subdivisions. If the City Fiscal has no authority, and
he has not, to order the arrest even if he finds, after due
investigation, that there is a probability that a crime has
been committed and the accused is guilty thereof, a fortiori a
police officer has no authority to arrest and detain a person
charged with an offense upon complaint of the offended
party or other persons even though, after investigation, he
becomes convinced that the accused is guilty of the offense
charged.
In view of all the foregoing, without making any
pronouncement as to the responsibility of the officers who
intervened in the detention of the petitioners, for the
policeman Dumlao may have acted in good faith, in the
absence of a clear cut ruling on the matter in believing that
he had complied with the mandate of article 125 by
delivering the petitioners within six hours to the office of the
city fiscal, and the latter might have ignored the fact that the
petitioners were being actually detained when the said
policeman filed a complaint against them with the city fiscal,
we hold that the petitioners are being illegally restrained of
their liberty, and their release is hereby ordered unless they
are now detained by virtue of a process issued by a
competent court of justice. So ordered.
Gigantoni vs. People
Petitioner Melencio Gigantoni y Javier, was charged before
the Regional Trial Court of Rizal, Pasig, with the crime of
usurpation of authority in violation of Article 177 of the
Revised Penal Code upon an information alleging that the
crime was committed as follows:
That on or about the 14th and 15th day of May, 1981, in the
Municipality of Makati, Metro Manila, Philippines, and within
the jurisdiction of this Honorable Court, the above-named
accused, who is not a bonafide agent of the CIS, Philippine
Constabulary, did then and there willfully, unlawfully,
knowingly and falsely represented himself as a bonafide
agent of the CIS, Philippine Constabulary, said accused,
knowing fully well his representation to be false.
After arraignment during which the accused pleaded not
guilty and after trial, the lower court rendered judgment
finding the accused guilty as charged. On appeal to the
appellate court, the judgment was affirmed with modification
only as to the penalty imposed.
The facts of the case, as recited in the decision of the
appellate court, are as follows:
During the period material to this case, or in 1981, accused-
appellant Melencio Gigantoni was an employee of Black
Mountain Mining Inc. and Tetra Management Corporation,
which are both private companies doing business in the
Philippines .... On May 14, 1981, as an employee of said
companies, Gigantoni went to the office of the Philippine Air
Lines (PAL) at Vernida Building, Legaspi Street, Makati, Metro
Manila, allegedly to conduct verification of some travels
made by Black Mountain's officials. Upon reaching the said
PAL office, he falsely represented himself to the PAL legal
officer as a PC-CIS agent investigating a kidnapping case,
and requested that he be shown the PAL records particularly
the passenger manifests for Manila-Baguio-Manila flights
covering the period February 1 to 3 1981. He explained that
he was then at the tracking stage of aforementioned
kidnapping case. ... To further convince the PAL officials of his
supposed mission, Gigantoni exhibited his Identification card
purporting to show that he was a PC-CIS agent. ... Thereupon,
his aforesaid request was granted, and PAL legal officer Atty.
Conrado A. Boro showed to him the requested PAL records.
Gigantoni then secured xerox copies of the requested
manifest ...and the used PAL tickets of one Cesar (Philippe)
Wong, an SGV auditor, and that of a certain Daisy Britanico,
an employee of Black Mountain. Thereafter, he left the PAL
premises.
When Gigantoni was no longer around, PAL general counsel
Ricardo Puno, Jr., inquired from Atty. Boro about Gigantoni's
purpose in securing copies of PAL records. They then became
suspicious of the accused" real identity prompting them to
conduct verification from the PC-CIS office. They
subsequently learned from General Uy of PC-CIS that
Gigantoni was no longer a CIS agent since June 30, 1980 as
he had been dismissed from the service for gross misconduct
... brought about by the extortion charges filed against him
and his final conviction by the Sandiganbayan for the said
offense.... Upon discovering the foregoing, Atty. Puno
immediately alerted the NBI as Gigantoni would be coming
back to the PAL office the following day. ...
On May 15, 1981, when Gigantoni returned to the Makati PAL
office, he was brought by Atty. Puno to their conference room
while awaiting for the arrival of the NBI agents who were
earlier contacted. In the presence of Atty. Boro and a PAL
security, Gigantoni was confronted by Atty. Puno as to his
real Identity. He later admitted that he was no longer with the
CIS; that he was working for the Black Mountain Mining
Corporation; and that he was just checking on a claim for per
diem of one of their employees who had travelled. ...
Upon the arrival of NBI agents Teodoro Pangilinan, Lolito
Utitco and Dante Crisologo, Attys. Puno and Boro turned over
the person of Gigantoni to the NBI. They also submitted a
complaint affidavit against Gigantoni .... On that same day,
after the investigation, arrest and booking conducted by the
NBI, Gigantoni was charged before the Office of the Provincial
Fiscal of Rizal, thru its office in Makati, with the crime of
Usurpation of Authority.
The petitioner-accused raised substantially the same errors
on appeal to respondent appellate court, to wit:
1. The appellate court erred in interpreting that presumption
that official duty has been regularly performed, its applicable
in the case at bar;
2. The appellate court erred in its interpretation of the
difference between suspension and dismissal.
The gist of petitioner's contention is that he could not be
guilty of the crime charged because at the time of the
alleged commission of the offense, he was still a CIS agent
who was merely suspended and was not yet informed of his
termination from the service. Furthermore, he avers that the
receipt by him of the notice of dismissal, if there was any,
could not be established on mere presumption of law that
official duty has been regularly performed.
Article 177 of the Revised Penal Code on usurpation of
authority or official functions, under which the petitioner was
charged, punishes any person: (a) who knowingly and falsely
represents himself to be an officer, agent or representative of
any department or agency of the Philippine Government or of
any foreign government; or (b) who, under pretense of official
position, performs any act pertaining to any person in
authority or public officer of the Philippine Government or
any foreign government or any agency thereof, without being
lawfully entitled to do so. The former constitutes the crime of
usurpation of authority under which the petitioner stands
charged, while the latter act constitutes the crime of
usurpation of official functions.
The question before us is—did petitioner knowingly and
falsely represent himself as an agent of the CIS, Philippine
Constabulary? Petitioner admits that he received a notice of
his suspension from the CIS effective June 20, 1980. This
admission is supported by the record (Annex "D") which
shows the letter of Lt. Col. Sabas Edades to petitioner, dated
June 23, 1980, regarding said action. Said official letter was
also sent to the Commissioner of the Merit Systems Board,
Civil Service Commission, the Minister of National Defense
and the Commanding General of the CIS. However, as to
petitioner's alleged dismissal effective June 20, 1980, he
denies having been informed thereof. The record is bereft of
any evidence or proof adduced by the prosecution showing
that the dismissal was actually conveyed to petitioner. That is
why the court, in convicting him, relied on the disputable
presumption that official duty has been regularly performed,
that is, that it is presumed that he was duly notified of his
dismissal.
The failure of the prosecution to prove that petitioner was
duly notified of his dismissal from the service negatives the
charge that he "knowingly and falsely" represented himself
to be a CIS agent. The constitutional presumption of
innocence can only be overturned by competent and credible
proof and never by mere disputable presumptions, as what
the lower and appellate courts did when they presumed that
petitioner was duly notified of his dismissal by applying the
disputable presumption "that official duty has been regularly
performed." It was not for the accused to prove a negative
fact, namely, that he did not receive the order of dismissal. In
criminal cases, the burden of proof as to the offense charged
lies on the prosecution. Hence, it was incumbent upon the
prosecution to establish by positive evidence the allegation
that the accused falsely represented himself as a CIS agent,
by presenting proof that he knew that he was no longer a CIS
agent, having been duly notified of his dismissal. It is
essential to present proof that he actually knew at the time
of the alleged commission of the offense that he was already
dismissed from the service. A mere disputable presumption
that he received notice of his dismissal would not be
sufficient.
The Solicitor General has argued in his memorandum, that it
makes no difference whether the accused was suspended or
dismissed from the service, "for both imply the absence of
power to represent oneself as vested with authority to
perform acts pertaining to an office to which he knowingly
was deprived of " (Emphasis supplied). The observation of
the Solicitor General is correct if the accused were charged
with usurpation of official function (second part of Article
177), but not if he is charged merely with usurpation of
authority (first part of Article 177). The information charges
the accused with the crime of usurpation of authority for
"knowingly and falsely representing himself to be an officer,
agent or representative of any department or agency of the
Philippine Government."
Petitioner is not accused of usurpation of official functions. It
has not been shown that the information given by PAL to the
accused was confidential and was given to him only because
he was entitled to it as part of the exercise of his official
function. He was not charged in the information for such an
offense. In fact, it appears from the record of the case that
the information, which was not claimed to be secret and
confidential, was readily made available to the accused
because PAL officials believed at the time that he was a CIS
agent. And this was the only offense with which he was
charged in the information, that he knowingly and falsely
represented himself to be a CIS agent.
Premises considered, the decision of the respondent
Appellate Court affirming the judgment of conviction of the
Regional Trial Court is reversed and set aside. Petitioner-
accused, Melencio Gigantoni y Javier is hereby aquitted of the
crime charged.
SO ORDERED.
Batulanon vs. People
This petition assails the October 30, 1998 Decision1 of the
Court of Appeals in CA-G.R. CR No. 15221, affirming with
modification the April 15, 1993 Decision2 of the Regional Trial
Court of General Santos City, Branch 22 in Criminal Case Nos.
3453, 3625, 3626 and 3627, convicting Leonila Batulanon of
estafa through falsification of commercial documents, and
the July 29, 1999 Resolution3 denying the motion for
reconsideration.
Complainant Polomolok Credit Cooperative Incorporated
(PCCI) employed Batulanon as its Cashier/Manager from May
1980 up to December 22, 1982. She was in charge of
receiving deposits from and releasing loans to the member of
the cooperative.
During an audit conducted in December 1982, certain
irregularities concerning the release of loans were
discovered.4
Thereafter, four informations for estafa thru falsification of
commercial documents were filed against Batulanon, to wit:
Criminal Case No. 3625
That on or about the 2nd day of June, 1982 at Poblacion
Municipality of Polomolok, Province of South Cotabato,
Philippines, and within the jurisdiction of the Honorable Court
said accused being then the manager-cashier of Polomolok
Credit Cooperative, Inc., (PCCI), entrusted with the duty of
managing the aff[a]irs of the cooperative, receiving
payments to, and collections of, the same, and paying out
loans to members, taking advantage of her position and with
intent to prejudice and defraud the cooperative, did then and
there willfully, unlawfully and feloniously falsify a commercial
document, namely: Cash/Check Voucher No. 30-A of PCCI in
the name of Erlinda Omadlao by then and there making an
entry therein that the said Erlinda Omadlao was granted a
loan of P4,160, Philippine Currency, and by signing on the
appropriate line thereon the signature of Erlinda Omadlao
showing that she received the loan, thus making it appear
that the said Erlinda Omadlao was granted a loan and
received the amount of P4,160 when in truth and in fact the
said person was never granted a loan, never received the
same, and never signed the cash/check voucher issued in her
name, and in furtherance of her criminal intent and
fraudulent design to defraud PCCI said accused did then and
there release to herself the same and received the loan of
P4,160 and thereafter misappropriate and convert to her own
use and benefit the said amount, and despite demands,
refused and still refuses to restitute the same, to the damage
and prejudice of PCCI, in the aforementioned amount of
P4,160, Philippine Currency.5

Criminal Case No. 3626
That on or about the 24th day of September, 1982 at
Poblacion, Municipality of Polomolok, Province of South
Cotabato, Philippines, and within the jurisdiction of the
Honorable Court, said accused being then the manager-
cashier of Polomolok Credit Cooperative, Inc. (PCCI),
entrusted with the duty of managing the affairs of the
cooperative, receiving payments to, and collections of, the
same, and paying out loans to members taking advantage of
her position and with intent to prejudice and defraud the
cooperative, did then and there willfully, unlawfully and
feloniously falsify a commercial document, namely:
Cash/Check Voucher No. 237 A of PCCI in the name of
Gonafreda Oracion by then and there making an entry
therein that the said Gonafreda Oracion was granted a loan
of P4,000.00 and by signals on the appropriate line thereon
the signature of Gonafreda Oracion showing that she
received the loan, thus making it appear that the said
Gonafreda Oracion was granted a loan, received the loan of
P4,000.00 when in truth and in fact said person was never
granted a loan, never received the same, and never signed
the Cash/Check voucher issued in her name, and in
furtherance of her criminal intent and fraudulent design to
defraud PCCI said accused did then and there release to
herself the same and received the amount of P4,000.00 and
thereafter misappropriate and convert to her own use and
benefit the said amount, and despite demands, refused and
still refuses to restitute the same, to the damage and
prejudice of PCCI, in the aforementioned amount of P4,000,
Philippine Currency.
CONTRARY TO LAW.6
Criminal Case No. 3453
That on or about the 10th day of October 1982 at Poblacion,
Municipality of Polomolok, Province of South Cotabato,
Philippines, and within the jurisdiction of the Honorable
Court, the said accused being then the manager-cashier of
Polomolok Credit Cooperative, Inc., (PCCI), entrusted with the
duty of managing the affairs of the cooperative, receiving
payments to, and collection of the same and paying out loans
to members, taking advantage of her position and with intent
to prejudice and defraud the cooperative, did then and there
willfully, unlawfully and feloniously falsify a commercial
document, namely: an Individual Deposits and Loan Ledger of
one Ferlyn Arroyo with the PCCI by then and there entering
on the appropriate column of the ledger the entry that the
said Ferlyn Arroyo had a fixed deposit of P1,000.00 with the
PCCI and was granted a loan in the amount of P3,500.00,
thus making it appear that the said person made a fixed
deposit on the aforesaid date with, and was granted a loan
by the PCCI when in truth and in fact Ferlyn Arroyo never
made such a deposit and was never granted loan and after
the document was so falsified in the manner set forth, said
accused did then and there again falsify the Cash/Check
Voucher of the PCCI in the name of Ferlyn Arroyo by signing
therein the signature of Ferlyn Arroyo, thus making it appear
that the said Ferlyn Arroyo received the loan of P3,500,
Philippine Currency, when in truth and in fact said Ferlyn
Arroyo never received the loan, and in furtherance of her
criminal intent and fraudulent design to defraud PCCI said
accused did then and there release to herself the same, and
received the amount of P3,500, and thereafter, did then and
there, wilfully, unlawfully and feloniously misappropriate and
convert to her own personal use and benefit the said amount,
and despite demands, refused and still refuses to restitute
the same, to the damage and prejudice of the PCCI in the
aforementioned amount of P3,500, Philippine Currency.
CONTRARY TO LAW.7
Criminal Case No. 3627
That on or about the 7th day of December, 1982 at
Poblacion, Municipality of Polomolok, Province of South
Cotabato, Philippines, and within the jurisdiction of the
Honorable Court, the said accused being then the manager-
cashier of Polomolok Credit Cooperative, Inc., (PCCI)
entrusted with the duty of managing the affairs of the
cooperative, receiving payments to, and collection of, the
same and paying out loans to members, taking advantage of
her position and with intent to prejudice and defraud the
cooperative, did then and there willfully, unlawfully and
feloniously falsify a commercial document, namely: an
Individual Deposits and Loan Ledger of one Dennis Batulanon
with the PCCI by then and there entering on the appropriate
column of the ledger the entry that the said Dennis
Batulanon had a fixed deposit of P2,000.00 with the PCCI and
was granted a loan in the amount of P5,000.00 thus making
it appear that the said person made fixed deposit on the
aforesaid date with, and was granted a loan by the PCCI
when in truth and in fact Dennis Batulanon never made such
a deposit and was never granted loan and offer the
document was so falsified in the manner set forth, said
accused did then and there again falsify the Cash/Check
Voucher No. 374 A of PCCI in the name of Dennis Batulanon
by signing therein the signature of Dennis Batulanon, thus
making it appear that the said Dennis Batulanon received the
loan of P5,000.00 when in truth and in fact said Dennis
Batulanon never received the loan and in furtherance of her
criminal intent and fraudulent design to defraud PCCI said
accused did then and there release to herself the same and
receive the loan of P5,000, and thereafter, did then and there
willfully, unlawfully and feloniously misappropriate and
convert to her own personal use and benefit the said amount,
and [despite] demands, refused and still refuses to restitute
the same to the damage and prejudice of the PCCI in the
aforementioned amount of P5,000, Philippine Currency.
CONTRARY TO LAW.8
The cases were raffled to Branch 22 of the Regional Trial
Court of General Santos City and docketed as Criminal Case
Nos. 3453, 3625, 3626 and 3627.
Batulanon pleaded not guilty to the charges, afterwhich a
joint trial on the merits ensued.

The prosecution presented Maria Theresa Medallo, Benedicto
Gopio, Jr., and Bonifacio Jayoma as witnesses.
Medallo, the posting clerk whose job was to assist Batulanon
in the preparation of cash vouchers9 testified that on certain
dates in 1982, Batulanon released four Cash Vouchers
representing varying amounts to four different individuals as
follows: On June 2, 1982, Cash Voucher No. 30A10 for
P4,160.00 was released to Erlinda Omadlao; on September
24, 1982, Cash Voucher No. 237A11 for P4,000.00 was
released to Gonafreda12 Oracion; P3, 500.00 thru Cash
Voucher No. 276A13 was released to Ferlyn Arroyo on
October 16, 1982 and on December 7, 1982, P5,000.00 was
released to Dennis Batulanon thru Cash Voucher No. 374A.14
Medallo testified that Omadlao, Oracion, and Dennis
Batulanon were not eligible to apply for loan because they
were not bona fide members of the cooperative.15 Ferlyn
Arroyo on the other hand, was a member of the cooperative
but there was no proof that she applied for a loan with PCCI
in 1982. She subsequently withdrew her membership in
1983.16 Medallo stated that pursuant to the cooperative's
by-laws, only bona fide members who must have a fixed
deposit are eligible for loans.17
Medallo categorically stated that she saw Batulanon sign the
names of Oracion and Arroyo in their respective cash
vouchers and made it appear in the records that they were
payees and recipients of the amount stated therein.18 As to
the signature of Omadlao in Cash Voucher No. 30A, she
declared that the same was actually the handwriting of
appellant.19
Gopio, Jr. was a member of PCCI since 1975 and a member of
its board of directors since 1979. He corroborated Medallo's
testimony that Omadlao, Arroyo, Oracion and Dennis
Batulanon are not members of PCCI. He stated that Oracion
is Batulanon's sister-in-law while Dennis Batulanon is her son
who was only 3 years old in 1982. He averred that
membership in the cooperative is not open to minors.20
Jayoma was the Vice-Chairman of the PCCI Board of Directors
in 1980 before becoming its Chairman in 1982 until 1983. He
testified that the loans made to Oracion, Omadlao, Arroyo
and Dennis Batulanon did not pass through the cooperative's
Credit Committee and PCCI's Board of Directors for screening
purposes. He claimed that Oracion's signature on Cash
Voucher No. 237A is Batulanon's handwriting.21 Jayoma also
testified that among the four loans taken, only that in
Arroyo's name was settled.22
The defense presented two witnesses, namely, Maria Theresa
Medallo who was presented as a hostile witness and
Batulanon.
Medallo was subpoenaed by the trial court on behalf of the
defense and was asked to bring with her the PCCI General
Journal for the year 1982. After certifying that the said
document reflected all the financial transactions of the
cooperative for that year, she was asked to identify the
entries in the Journal with respect to the vouchers in
question. Medallo was able to identify only Cash Voucher No.
237A in the name of Gonafreda Oracion. She failed to identify
the other vouchers because the Journal had missing pages
and she was not the one who prepared the entries.23
Batulanon denied all the charges against her. She claimed
that she did not sign the vouchers in the names of Omadlao,
Oracion and Arroyo; that the same were signed by the loan
applicants in her presence at the PCCI office after she
personally released the money to them;24 that the three
were members of the cooperative as shown by their
individual deposits and the ledger; that the board of directors
passed a resolution in August 1982 authorizing her to certify
to the correctness of the entries in the vouchers; that it has
become an accepted practice in the cooperative for her to
release loans and dispense with the approval of Gopio Jr., in
case of his absence;25 that she signed the loan application
and voucher of her son Dennis Batulanon because he was a
minor but she clarified that she asked Gopio, Jr., to add his
signature on the documents to avoid suspicion of
irregularity;26 that contrary to the testimony of Gopio, Jr.,
minors are eligible for membership in the cooperative
provided they are children of regular members.
Batulanon admitted that she took out a loan in her son's
name because she is no longer qualified for another loan as
she still has to pay off an existing loan; that she had started
paying off her son's loan but the cooperative refused to
accept her payments after the cases were filed in court.27
She also declared that one automatically becomes a member
when he deposits money with the cooperative.28 When she
was Cashier/Manager of PCCI from 1980 to 1982, the
cooperative did not have by-laws yet.29
On rebuttal, Jayoma belied that PCCI had no by-laws from
1980-1982, because the cooperative had been registered
since 1967.30
On April 15, 1993, the trial court rendered a Decision
convicting Batulanon as follows:
WHEREFORE, premises considered, finding the accused
Leonila Batulanon guilty beyond reasonable doubt in all the
above-entitled case, she is sentenced in each of the four
cases to 4 months of ARRESTO MAYOR to 1 year and 2
months of PRISION CORRECTIONAL, to indemnify the PCCI in
the total sum of P16,660.00 with legal interest from the
institution of the complaints until fully paid, plus costs.
SO ORDERED.31
The Court of Appeals affirmed with modification the decision
of the trial court, thus:
WHEREFORE, the decision appealed from is MODIFIED.
Appellant LEONILA BATULANON is found guilty beyond
reasonable doubt of Falsification of Private Documents under
Par. 2, Article 172 of the Revised Penal Code; and is hereby
sentenced to suffer the indeterminate penalty of six (6)
months of arresto mayor maximum, AS MINIMUM, to four (4)
years and two (2) months of prision correccional medium, AS
MAXIMUM; to pay a fine of five thousand (P5,000.00) pesos;
and to indemnify the Polomolok Cooperative Credit , Inc. the
sum of thirteen thousand one hundred sixty (P13,160.00),
plus legal interests from the filing of the complaints until fully
paid, plus costs.
SO ORDERED.32
The motion for reconsideration was denied, hence this
petition.
Batulanon argues that in any falsification case, the best
witness is the person whose signature was allegedly forged,
thus the prosecution should have presented Erlinda Omadlao,
Gonafreda Oracion and Ferlyn Arroyo instead of relying on
the testimony of an unreliable and biased witness such as
Medallo.33 She avers that the crime of falsification of private
document requires as an element prejudice to a third person.
She insists that PCCI has not been prejudiced by these loan
transactions because these loans are accounts receivable by
the cooperative.34
The petition lacks merit.
Although the offense charged in the information is estafa
through falsification of commercial document, appellant
could be convicted of falsification of private document under
the well-settled rule that it is the allegations in the
information that determines the nature of the offense and not
the technical name given in the preamble of the information.
In Andaya v. People,35 we held:
From a legal point of view, and in a very real sense, it is of no
concern to the accused what is the technical name of the
crime of which he stands charged. It in no way aids him in a
defense on the merits. x x x That to which his attention
should be directed, and in which he, above all things else,
should be most interested, are the facts alleged. The real
question is not did he commit a crime given in the law some
technical and specific name, but did he perform the acts
alleged in the body of the information in the manner therein
set forth. x x x The real and important question to him is,
"Did you perform the acts alleged in the manner alleged?"
not, "Did you commit a crime named murder?" If he
performed the acts alleged, in the manner stated, the law
determines what the name of the crime is and fixes the
penalty therefor. x x x If the accused performed the acts
alleged in the manner alleged, then he ought to be punished
and punished adequately, whatever may be the name of the
crime which those acts constitute.
The elements of falsification of private document under
Article 172, paragraph 236 of the Revised Penal Code are: (1)
that the offender committed any of the acts of falsification,
except those in paragraph 7, Article 171; (2) that the
falsification was committed in any private document; and (3)
that the falsification caused damage to a third party or at
least the falsification was committed with intent to cause
such damage.37
In Criminal Case Nos. 3625, 3626, and 3453, Batulanon's
act38 of falsification falls under paragraph 2 of Article 171,
i.e., causing it to appear that persons have participated in
any act or proceeding when they did not in fact so
participate. This is because by signing the name of Omadlao,
Oracion, and Arroyo in Cash Voucher Nos. 30A, 237A, and
267A, respectively, as payee of the amounts appearing in the
corresponding cash vouchers, Batulanon made it appear that
they obtained a loan and received its proceeds when they did
not in fact secure said loan nor receive the amounts reflected
in the cash vouchers.
The prosecution established that Batulanon caused the
preparation of the Cash Vouchers in the name of Omadlao
and Oracion knowing that they are not PCCI members and
not qualified for a loan from the cooperative. In the case of
Arroyo, Batulanon was aware that while the former is a
member, she did not apply for a loan with the cooperative.
Medallo categorically declared that she saw Batulanon forge
the signatures of Oracion and Arroyo in the vouchers and
made it appear that the amounts stated therein were actually
received by these persons. As to the signature of Arroyo,
Medallo's credible testimony and her familiarity with the
handwriting of Batulanon proved that it was indeed the latter
who signed the name of Arroyo. Contrary to Batulanon's
contention, the prosecution is not duty-bound to present the
persons whose signatures were forged as Medallo's
eyewitness account of the incident was sufficient. Moreover,
under Section 22, Rule 132 of the Rules of Court, the
handwriting of a person may be proved by any witness who
believes it to be the handwriting of such person because he
has seen the person write, or has seen writing purporting to
be his upon which the witness has acted or been charged,
and has thus acquired knowledge of the handwriting of such
person.
Her insistence that Medallo is a biased witness is without
basis. There is no evidence showing that Medallo was
prompted by any ill motive.
The claim that Batulanon's letter to the cooperative asking
for a compromise was not an admission of guilt is untenable.
Section 27, Rule 130 of the Rules of Court provides that in
criminal cases, except those involving quasi-offenses or
criminal negligence or those allowed by law to be
compromised, an offer of compromise by the accused may
be received in evidence as an implied admission of guilt.
There is no merit in Batulanon's assertion that PCCI has not
been prejudiced because the loan transactions are reflected
in its books as accounts receivable. It has been established
that PCCI only grants loans to its bona fide members with no
subsisting loan. These alleged borrowers are not members of
PCCI and neither are they eligible for a loan. Of the four
accounts, only that in Ferlyn Arroyo's name was settled
because her mother, Erlinda, agreed to settle the loan to
avoid legal prosecution with the understanding however, that
she will be reimbursed once the money is collected from
Batulanon.39
The Court of Appeals40 correctly ruled that the subject
vouchers are private documents and not commercial
documents because they are not documents used by
merchants or businessmen to promote or facilitate trade or
credit transactions41 nor are they defined and regulated by
the Code of Commerce or other commercial law.42 Rather,
they are private documents, which have been defined as
deeds or instruments executed by a private person without
the intervention of a public notary or of other person legally
authorized, by which some disposition or agreement is
proved, evidenced or set forth. 43
In all criminal prosecutions, the burden of proof is on the
prosecution to establish the guilt of the accused beyond
reasonable doubt. It has the duty to prove each and every
element of the crime charged in the information to warrant a
finding of guilt for the said crime or for any other crime
necessarily included therein.44 The prosecution in this case
was able to discharge its burden completely.
As there is no complex crime of estafa through falsification of
private document,45 it is important to ascertain whether the
offender is to be charged with falsification of a private
document or with estafa. If the falsification of a private
document is committed as a means to commit estafa, the
proper crime to be charged is falsification. If the estafa can
be committed without the necessity of falsifying a document,
the proper crime to be charged is estafa. Thus, in People v.
Reyes,46 the accused made it appear in the time book of the
Calamba Sugar Estate that a laborer, Ciriaco Sario, worked
21 days during the month of July, 1929, when in reality he
had worked only 11 days, and then charged the offended
party, the Calamba Sugar Estate, the wages of the laborer for
21 days. The accused misappropriated the wages during
which the laborer did not work for which he was convicted of
falsification of private document.
In U.S. v. Infante,47 the accused changed the description of
the pawned article on the face of the pawn ticket and made it
appear that the article is of greatly superior value, and
thereafter pawned the falsified ticket in another pawnshop
for an amount largely in excess of the true value of the
article pawned. He was found guilty of falsification of a
private document. In U.S. v. Chan Tiao,48 the accused
presented a document of guaranty purportedly signed by
Ortigas Hermanos for the payment of P2,055.00 as the value
of 150 sacks of sugar, and by means of said falsified
documents, succeeded in obtaining the sacks of sugar, was
held guilty of falsification of a private document.
In view of the foregoing, we find that the Court of Appeals
correctly held Batulanon guilty beyond reasonable doubt of
Falsification of Private Documents in Criminal Case Nos.
3625, 3626 and 3453.
Article 172 punishes the crime of Falsification of a Private
Document with the penalty of prision correccional in its
medium and maximum periods with a duration of two (2)
years, four (4) months and one (1) day to six (6) years. There
being no aggravating or mitigating circumstances, the
penalty should be imposed in its medium period, which is
three (3) years, six (6) months and twenty-one (21) days to
four (4) years, nine (9) months and ten (10) days. Taking into
consideration the Indeterminate Sentence Law, Batulanon is
entitled to an indeterminate penalty the minimum of which
must be within the range of arresto mayor in its maximum
period to prision correccional in its minimum period, or four
(4) months and one (1) day to two (2) years and four (4)
months.49 Thus, in Criminal Case Nos. 3625, 3626 and 3453,
the Court of Appeals correctly imposed the penalty of six (6)
months of arresto mayor, as minimum, to four (4) years and
two (2) months of prision correccional, as maximum, which is
within the range of the allowed imposable penalty.
Since Batulanon's conviction was for 3 counts of falsification
of private documents, she shall suffer the aforementioned
penalties for each count of the offense charged. She is also
ordered to indemnify PCCI the amount of P11,660.00
representing the aggregate amount of the 3 loans without
deducting the amount of P3,500.00 paid by Ferlyn Arroyo's
mother as the same was settled with the understanding that
PCCI will reimburse the former once the money is recovered.
The amount shall earn interest at the rate of 6% per annum
from the filing of the complaints on November 28, 1994 until
the finality of this judgment. From the time the decision
becomes final and executory, the interest rate shall be 12%
per annum until its satisfaction.
However, in Criminal Case No. 3627, the crime committed by
Batulanon is estafa and not falsification. Under Article 171 of
the Revised Penal Code, the acts that may constitute
falsification are the following:
1. Counterfeiting or imitating any handwriting, signature, or
rubric;
2. Causing it to appear that persons have participated in any
act or proceeding when they did not in fact so participate;
3. Attributing to persons who have participated in an act or
proceeding statements other than those in fact made by
them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine
document which changes its meaning;
7. Issuing in an authenticated form a document purporting to
be a copy of an original document when no such original
exists, or including in such copy a statement contrary to, or
different from, that of the genuine original; or;
8. Intercalating any instrument or note relative to the
issuance thereof in a protocol, registry, or official book.
In Criminal Case No. 3627, the trial court convicted petitioner
Batulanon for falsifying Dennis Batulanon's signature in the
cash voucher based on the Information charging her of
signing the name of her 3 year old son, Dennis. The records,
however, reveal that in Cash Voucher No. 374A, petitioner
Batulanon did not falsify the signature of Dennis. What she
did was to sign: "by: lbatulanon" to indicate that she received
the proceeds of the loan in behalf of Dennis. Said act does
not fall under any of the modes of falsification under Article
171 because there in nothing untruthful about the fact that
she used the name of Dennis and that as representative of
the latter, obtained the proceeds of the loan from PCCI. The
essence of falsification is the act of making untruthful or false
statements, which is not attendant in this case. As to
whether, such representation involves fraud which caused
damage to PCCI is a different matter which will make her
liable for estafa, but not for falsification. Hence, it was an
error for the courts below to hold that petitioner Batulanon is
also guilty of falsification of private document with respect to
Criminal Case No. 3627 involving the cash voucher of
Dennis.50
The elements of estafa through conversion or
misappropriation under Art. 315 (1) (b) of the Revised Penal
Code are:
(1) that money, goods or other personal property is received
by the offender in trust, or on commission, or for
administration, or under any other obligation involving the
duty to make delivery of, or to return, the same;
(2) that there be misappropriation or conversion of such
money or property by the offender or denial on his part of
such receipt;
(3) that such misappropriation or conversion or denial is to
the prejudice of another;
(4) that there is a demand made by the offended party on
the offender. (Note: The 4th element is not necessary when
there is evidence of misappropriation of the goods by the
defendant)51
Thus in the case of U.S. v. Sevilla,52 the Court convicted the
appellant of estafa by misappropriation. The latter, a
treasurer of the Manila Rail Road Company, took the sum of
P8,330.00 out of the funds of the company and used it for
personal purposes. He replaced said cash with his personal
check of the same amount drawn on the Philippine National
Bank (PNB), with instruction to his cashier not to deposit the
same in the current account of the Manila Rail Road Company
until the end of the month. When an audit was conducted,
the check of appellant was discovered to have been carried
in the accounts as part of the cash on hand. An inquiry with
the PNB disclosed that he had only P125.66 in his account,
although in the afternoon of the same day, he deposited in
his account with the PNB sufficient sum to cover the check. In
handing down a judgment of conviction, the Court explained
that:
Fraudulent intent in committing the conversion or diversion is
very evidently not a necessary element of the form of estafa
here discussed; the breach of confidence involved in the
conversion or diversion of trust funds takes the place of
fraudulent intent and is in itself sufficient. The reason for this
is obvious: Grave as the offense is, comparatively few men
misappropriate trust funds with the intention of defrauding
the owner; in most cases the offender hopes to be able to
restore the funds before the defalcation is discovered. x x x
Applying the legal principles here stated to the facts of the
case, we find all of the necessary elements of estafa x x x.
That the money for which the appellant's checks were
substituted was received by him for safe-keeping or
administration, or both, can hardly be disputed. He was the
responsible financial officer of the corporation and as such
had immediate control of the current funds for the purposes
of safe-keeping and was charged with the custody of the
same. That he, in the exercise of such control and custody,
was aided by subordinates cannot alter the case nor can the
fact that one of the subordinates, the cashier, was a bonded
employee who, if he had acted on his own responsibility,
might also have misappropriated the same funds and thus
have become guilty of estafa.
Neither can there be any doubt that, in taking money for his
personal use, from the funds entrusted to him for
safekeeping and substituting his personal checks therefor
with instructions that the checks were to be retained by the
cashier for a certain period, the appellant misappropriated
and diverted the funds for that period. The checks did not
constitute cash and as long as they were retained by the
appellant or remained under his personal control they were
of no value to the corporation; he might as well have kept
them in his pocket as to deliver them to his subordinate with
instructions to retain them.
xxxx
But it is argued in the present case that it was not the
intention of the accused to permanently misappropriate the
funds to himself. As we have already stated, such intention
rarely exists in cases of this nature and, as we have seen, it
is not a necessary element of the crime. Though authorities
have been cited who, at first sight, appear to hold that
misappropriation of trust funds for short periods does not
always amount to estafa, we are not disposed to extend this
interpretation of the law to cases where officers of
corporations convert corporate funds to their own use,
especially where, as in this case, the corporation is of a
quasi-public character. The statute is clear and makes no
distinction between permanent misappropriations and
temporary ones. We can see no reason in the present case
why it should not be applied in its literal sense.
The third element of the crime with which the appellant is
charged is injury to another. The appellant's counsel argues
that the only injury in this case is the loss of interest suffered
by the Railroad Company during the period the funds were
withheld by the appellant. It is, however, well settled by
former adjudications of this court that the disturbance in
property rights caused by the misappropriation, though only
temporary, is in itself sufficient to constitute injury within the
meaning of paragraph 5, supra. (U.S. vs. Goyenechea, 8 Phil.,
117 U.S. vs. Malong, 36 Phil., 821.)53
In the instant case, there is no doubt that as
Cashier/Manager, Batulanon holds the money for
administration and in trust for PCCI. Knowing that she is no
longer qualified to obtain a loan, she fraudulently used the
name of her son who is likewise disqualified to secure a loan
from PCCI. Her misappropriation of the amount she obtained
from the loan is also not disputed as she even admitted
receiving the same for personal use. Although the amount
received by Batulanon is reflected in the records as part of
the receivables of PCCI, damage was still caused to the latter
because the sum misappropriated by her could have been
loaned by PCCI to qualified members, or used in other
productive undertakings. At any rate, the disturbance in
property rights caused by Batulaono's misappropriation is in
itself sufficient to constitute injury within the meaning of
Article 315.
Considering that the amount misappropriated by Batulanon
was P5,000.00, the applicable provision is paragraph (3) of
Article 315 of the Revised Penal Code, which imposes the
penalty of arresto mayor in its maximum period to prision
correccional in its minimum period, where the amount
defrauded is over P200.00 but does not exceed P6,000.00.
There being no modifying circumstances, the penalty shall be
imposed in its medium period. With the application of the
Indeterminate Sentence Law, Batulaon is entitled to an
indeterminate penalty of three (3) months of arresto mayor,
as minimum, to one (1) year and eight (8) months of prision
correccional, as maximum.
WHEREFORE, the Decision appealed from is AFFIRMED with
the following MODIFICATIONS:
(1) In Criminal Case Nos. 3625, 3626 and 3453, Leonila
Batulanon is found GUILTY of three counts of falsification of
private documents and is sentenced to suffer the penalty of
six (6) months of arresto mayor, as minimum, to four (4)
years and two (2) months of prision correccional, as
maximum, for each count, and to indemnify complainant
Polomolok Credit Cooperative Incorporated the amount of
P11,660.00 with interest at the rate of 6% per annum from
November 28, 1994 until finality of this judgment. The
interest rate of 12% per annum shall be imposed from finality
of this judgment until its satisfaction; and
(2) In Criminal Case No. 3627, Leonila Batulanon is found
GUILTY of estafa and is sentenced to suffer the penalty of
three (3) months of arresto mayor, as minimum, to one (1)
year and eight (8) months of prision correccional, as
maximum. She is likewise ordered to indemnify Polomolok 1" to "IIB-24", respectively and specifically enumerated, to
Credit Cooperative Incorporated the sum of P5,000.00 with wit:
interest at the rate of 6% per annum from November 28,
1994 until finality of this judgment. The interest rate of 12% SERIAL NO.
per annum shall be imposed from finality of this judgment PCS.
until its satisfaction. AMOUNT
SERIAL NO.
SO ORDERED. PCS.
AMOUNT
Clemente vs. People PX626388
1
Before us is a petition for review on certiorari under Rule 45 P500.00
of the 1997 Rules of Civil Procedure, as amended, seeking to CC077337
reverse the March 29, 2010 Decision[1] of the Court of 1
Appeals (CA) which denied petitioner's appeal and affirmed P500.00
the November 3, 2008 Judgment[2] of the Regional Trial CC077337
Court (RTC) of Manila, Branch 7, convicting petitioner of 1
illegal possession and use of false bank notes under Article 500.00
168[3] of the Revised Penal Code (RPC), as amended. Also CC077337
assailed is the CA Resolution dated October 14, 2010[4] 1
denying petitioner's motion for reconsideration. 500.00
CC077337
Petitioner was charged before the RTC with violation of Article 1
168 of the RPC under an Information[5] which reads: 500.00
CC077337
That on or about August 5, 2007, in the City of Manila, 1
Philippines, the said accused, with intent to use, did then and 500.00
there willfully, unlawfully, feloniously and knowingly have in BR666774
his possession and under his custody and control 1
twenty[-]four (24) pcs. [of] P500.00 bill with Markings ["] IIB- 500.00
CC077337 WW164152
1 1
500.00 500.00
CC077337 BR666774
1 1
500.00 500.00
BR666774 BR666774
1 1
500.00 500.00
BB020523 UU710062
1 1
500.00 500.00
BR666774 PX626388
1 1
500.00 500.00
PX626388 CC077337
1 1
500.00 500.00
CC077337 PX626388
1 1
500.00 500.00
BR666774
1 Which are false and falsified.
500.00
WW164152 Contrary to law.
1
500.00 Upon arraignment, petitioner entered a plea of not guilty.
PX626388 Trial thereafter ensued.
1
500.00
The version of the prosecution and the defense, as
summarized by the CA, are as follows:[6]
The prosecution presented three (3) witnesses, namely: Jail
Officer 1 (JO1) Michael Michelle Passilan, the Investigator of
the Manila City Jail; JO1 Domingo David, Jr.; and Loida
Marcega Cruz, the Assistant Manager of the Cash
Department of the Bangko Sentral ng Pilipinas.
[Their testimonies established the following:]
Appellant is a detainee at the Manila City Jail. On August 7,
2007, at around 3:30 pm, an informant in the person of
inmate Francis dela Cruz approached JO1s Domingo David, Jr.
and Michael Passilan. The informant narrated that he
received a counterfeit P500.00 bill from appellant with orders
to buy a bottle of soft drink from the Manila City Jail Bakery.
The bakery employee, however, recognized the bill as a fake
and refused to accept the same. Consequently, JO1s David
and Passilan, along with the informant, proceeded to
appellant's cell for a surprise inspection. Pursuant to their
agreement, the informant entered the cubicle first and found
appellant therein, lying in bed. The informant returned to
appellant the latter's P500.00 bill. The jail guards then
entered the cell and announced a surprise inspection. JO1
Passilan frisked appellant and recovered a black wallet from
his back pocket. Inside the wallet were twenty-three (23)
pieces of P500.00, all of which were suspected to be
counterfeit. They confiscated the same and marked them
sequentially with "IIB-2" to "II-B24". They likewise marked the
P500.00 bill that was returned by informant to appellant with
"IIB-1". Appellant was consequently arrested and brought out
of his cell into the office of the Intelligence and Investigation
Branch (IIB) of the Manila City jail for interrogation.
Meanwhile, the twenty-four (24) P500.00 bills confiscated
from appellant were turned over to the Bangko Sentral ng
Pilipinas for analysis. Pursuant to a Certification dated August
7, 2007, Acting Assistant Manager Loida Marcega Cruz of the
Bangko Sentral ng Pilipinas examined and found the following
bills as counterfeit, viz: one (1) P500.00 bill with Serial
Number BB020523; six (6) P500.00 bills with Serial Number
BR666774; nine (9) P500.00 bills with Serial Number
CC077337; five (5) P500.00 bills with Serial Number
PX626388; one (1) P500.00 bill with Serial Number
UU710062; and two (2) P500.00 bills with Serial Number
WW164152.
For the defense, appellant was the lone witness presented on
the stand.
Appellant simply raised the defense of frame-up. He testified
that in the afternoon of August 5, 2007, he was inside his
room located at Dorm 1 of the Manila City Jail. At around 3:00
pm, JO1 Michael Passilan entered appellant's room while JO1
Domingo David, Jr. posted himself outside. Without any
warning, JO1 Passilan frisked appellant and confiscated his
wallet containing one (1) P1,000.00 bill. JO1s David and
Passilan left immediately thereafter. Appellant was left with
no other choice but to follow them in order to get back his
wallet. Appellant followed the jail officers to the Intelligence
Office of the Manila City Jail where he saw JO1 Passilan place
the P500.00 bills inside the confiscated black wallet.
Appellant was then told that the P500.00 bills were
counterfeit and that he was being charged with illegal
possession and use thereof. Appellant also added that JO1
Passilan bore a grudge against him. This was because
appellant refused to extend a loan [to] JO1 Passilan because
the latter cannot offer any collateral therefor. Since then, JO1
Passilan treated him severely, threatening him and, at times,
putting him in isolation.
After trial, the RTC found petitioner guilty beyond reasonable
doubt of the crime charged. The RTC gave credence to the
prosecution's witnesses in finding that the counterfeit money
were discovered in petitioner's possession during a surprise
inspection, and that the possibility that the counterfeit
money were planted to incriminate petitioner was almost nil
considering the number of pieces involved.[7] The RTC also
did not find that the jail officers were motivated by improper
motive in arresting petitioner,[8] and applied in their favor
the presumption of regularity in the performance of official
duties considering the absence of contrary evidence. As to
petitioner's defense of frame-up, the RTC held that the
purported frame-up allegedly staged by JO1 Passilan would
not affect the prosecution's evidence since the testimony of
JO1 David could stand by itself. The RTC likewise found that it
was strange that petitioner did not remonstrate despite the
fact that he was allegedly being framed.[9]
As to the elements of the crime, the RTC held that the fact
that the P500.00 bills found in petitioner's possession were
forgeries was confirmed by the certification issued by the
Cash Department of the Bangko Sentral ng Pilipinas, which
was testified into by Acting Assistant Manager Loida A. Cruz.
[10] The RTC also ruled that petitioner knew the bills were
counterfeit as shown by his conduct during the surprise
search and his possession of the bills. As to the element of
intention to use the false bank notes, the RTC ruled that the
fact that petitioner intended to use the bills was confirmed by
the information received by the jail officers from another
inmate.[11]
Aggrieved, petitioner sought reconsideration of the
judgment. Petitioner argued that the evidence used against
him was obtained in violation of his constitutional right
against unreasonable searches and seizures. Petitioner also
argued that the prosecution failed to prove his guilt beyond
reasonable doubt because of the non-presentation of the
informant-inmate, Francis dela Cruz, who could have
corroborated the testimonies of the jail officers.
Unconvinced, the RTC denied petitioner's motion for
reconsideration. The RTC, however, only ruled that there was
no violation of petitioner's constitutional right against
unreasonable searches and seizures because the seizure was
done pursuant to a valid arrest for violation of Article 168 of
the RPC. The trial court pointed out that prior to the search,
a crime was committed and the criminal responsibility
pointed to petitioner.[12]

On appeal before the CA, petitioner argued that the RTC
erred in finding him guilty beyond reasonable doubt for
violating Article 168 of the RPC. Petitioner contended that
one of the elements of the crime which is intent to use the
counterfeit bills was not established because the informant
Francis dela Cruz did not take the witness stand.[13]
The CA, however, found the appeal unmeritorious and denied
petitioner's appeal.[14] The appellate court found that the
fact the petitioner was caught in possession of twenty-four
(24) pieces of fake P500.00 bills already casts doubt on his
allegation that he was merely framed by the jail guards. The
CA agreed with the RTC that even without the testimony of
JO1 Passilan, the testimony of JO1 David was already
sufficient to establish petitioner's guilt since petitioner did
not impute any ill motive on the latter except to point out
that JO1 David was JO1 Passilan's friend.[15]
Regarding the element of intent to use, the CA found that
there are several circumstances which, if taken together,
lead to the logical conclusion that petitioner intended to use
the counterfeit bills in his possession. The CA pointed out
that jail officers were informed by inmate Francis dela Cruz
that he received a fake P500.00 bill from petitioner who told
him to buy soft drinks from the Manila City jail bakery. After
Francis dela Cruz identified petitioner as the person who gave
him the fake money, the jail officers conducted a surprise
inspection. Said inspection yielded twenty-three (23) pieces
of counterfeit P500.00 bills inside petitioner's black wallet,
which was taken from his back pocket. The CA further held
that the non-presentation of Francis dela Cruz would not
affect the prosecution's case because even without his
testimony, petitioner's intent to use the counterfeit bills was
established. The CA added that the matter of which
witnesses to present is a matter best left to the discretion of
the prosecution.[16]
Petitioner sought reconsideration of the above ruling, but the
CA denied petitioner's motion for reconsideration in the
assailed Resolution dated October 14, 2010.[17] Hence, the
present appeal.
Petitioner raises the following assignment of errors, to wit:
I.
THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION
OF THE REGIONAL TRIAL COURT, CONVICTING PETITIONER OF
THE CRIME CHARGED, DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE AN ELEMENT OF THE OFFENSE.
II.
THE COURT OF APPEALS ERRED IN NOT EXCLUDING THE
COUNTERFEIT BILLS SINCE THEY WERE DERIVED FROM
UNREASONABLE SEARCH AND SEIZURE.[18]
The petition is meritorious.
Generally, the trial court's findings are accorded finality,
unless there appears in the record some fact or circumstance
of weight which the lower court has overlooked,
misunderstood or misappreciated, and which, if properly
considered, would alter the result of the case. The exception
applies when it is established that the trial court has ignored,
overlooked, misconstrued or misinterpreted cogent facts and
circumstances which, if considered, will change the outcome
of the case.[19]
Here, the Court finds that the RTC and the CA had overlooked
certain substantial facts of value to warrant a reversal of its
factual assessments. While petitioner's denial is an
intrinsically weak defense which must be buttressed by
strong evidence of non-culpability to merit credence, said
defense must be given credence in this case as the
prosecution failed to meet its burden of proof.
Article 168 of the RPC, under which petitioner was charged,
provides:
ART. 168. Illegal possession and use of false treasury or bank
notes and other instruments of credit. -- Unless the act be
one of those coming under the provisions of any of the
preceding articles, any person who shall knowingly use or
have in his possession, with intent to use any of the false or
falsified instruments referred to in this section, shall suffer
the penalty next lower in degree than that prescribed in said
articles. [Emphasis supplied.]
The elements of the crime charged for violation of said law
are: (1) that any treasury or bank note or certificate or other
obligation and security payable to bearer, or any instrument
payable to order or other document of credit not payable to
bearer is forged or falsified by another person; (2) that the
offender knows that any of the said instruments is forged or
falsified; and (3) that he either used or possessed with intent
to use any of such forged or falsified instruments.[20] As held
in People v. Digoro,[21] possession of false treasury or bank
notes alone, without anything more, is not a criminal offense.
For it to constitute an offense under Article 168 of the RPC,
the possession must be with intent to use said false treasury
or bank notes.[22]
In this case, the prosecution failed to show that petitioner
used the counterfeit money or that he intended to use the
counterfeit bills. Francis dela Cruz, to whom petitioner
supposedly gave the fake P500.00 bill to buy soft drinks, was
not presented in court. According to the jail officers, they
were only informed by Francis dela Cruz that petitioner asked
the latter to buy soft drinks at the Manila City jail bakery
using a fake P500.00 bill. In short, the jail officers did not
have personal knowledge that petitioner asked Francis dela
Cruz use the P500.00 bill.[23] Their account, however, is
hearsay and not based on the personal knowledge.[24]
This Court, of course, is not unaware of its rulings that the
matter of presentation of prosecution witnesses is not for the
accused or, except in a limited sense, for the trial court to
dictate. Discretion belongs to the city or provincial prosecutor
as to how the prosecution should present its case.[25]
However, in this case, the non-presentation of the informant
as witness weakens the prosecution's evidence since he was
the only one who had knowledge of the act which manifested
petitioner's intent to use a counterfeit bill. The prosecution
had every opportunity to present Francis dela Cruz as its
witness, if in fact such person existed, but it did not present
him. Hence, the trial court did not have before it evidence of
an essential element of the crime. The twenty-three (23)
pieces of counterfeit bills allegedly seized on petitioner is not
sufficient to show intent, which is a state of mind, for there
must be an overt act to manifest such intent.
WHEREFORE, the petition for review on certiorari is
GRANTED. The Decision dated March 29, 2010 and Resolution
dated October 14, 2010 of the Court of Appeals in CA-G.R. CR
No. 32365 are REVERSED and SET-ASIDE. Petitioner Mark
Clemente y Martinez alias Emmanuel Dino is hereby
ACQUITTED of the crime of Illegal possession and use of false
bank notes defined and penalized under Article 168 of the
Revised Penal Code, as amended.
With costs de oficio.
SO ORDERED.
Galvante vs. Casemiro
Assailed herein by Petition for Certiorari and Mandamus
under Rule 65 of the Rules of Court are the October 30, 2003
Resolution1 of the Office of the Deputy Ombudsman for the
Military and Other Law Enforcement Offices - Office of the
Ombudsman (Ombudsman) which dismissed for lack of
probable cause the criminal complaint, docketed as OMB-P-C-
02-0109-B, filed by Feliciano Galvante2 (petitioner) against
SPO4 Benjamin Conde, PO1 Ramil Avenido, PO1 Eddie
Degran, PO1 Valentino Rufano, and PO1 Federico Balolot
(private respondents) for arbitrary detention, illegal search
and grave threats; and the January 20, 2004 Ombudsman
Order3 which denied his motion for reconsideration.
The facts are of record.
In the afternoon of May 14, 2001 at Sitio Cahi-an,
Kapatungan, Trento, Agusan del Sur, private respondents
confiscated from petitioner one colt pistol super .38
automatic with serial no. 67973, one short magazine, and
nine super .38 live ammunitions.4 The confiscated materials
were covered by an expired Memorandum Receipt dated
September 2, 1999.5
Consequently, the Assistant Provincial Prosecutor filed
against petitioner an Information6 for Illegal Possession of
Firearms and Ammunitions in Relation to Commission on
Elections (Comelec) Resolution No. 3258, docketed as
Criminal Case No. 5047, before the Regional Trial Court (RTC),
Prosperidad, Agusan del Sur.
Pending resolution of Criminal Case No. 5047, petitioner filed
against private respondents an administrative case, docketed
as Administrative Case No. IASOB-020007 for Grave
Misconduct, before the Internal Affairs Service (IAS), Region
XIII, Department of Interior and Local Government (DILG);7
and a criminal case, docketed as OMB-P-C-02-0109-B for
Arbitrary Detention, Illegal Search and Grave Threats, before
the Ombudsman.8
In the June 21, 2001 Affidavit-Complaint he filed in both
cases, petitioner narrated how, on May 14, 2001, private
respondents aimed their long firearms at him, arbitrarily
searched his vehicle and put him in detention, thus:
1. That sometime on May 14, 2001 I left my house at around
1:00 o'clock in the afternoon after having lunch for Sitio Cahi-
an, Brgy. Kapatungan, Trento, Agusan del Sur to meet retired
police Percival Plaza and inquire about the retirement
procedure for policemen;
2. That upon arrival at the house of retired police Percival
Plaza, together with Lorenzo Sanoria, Delfin Ramirez and
Pedro Ramas who asked for a ride from the highway in going
to Sitio Cahi-an, I immediately went down of the jeep but
before I could call Mr. Plaza, four policemen in uniform
blocked my way;
3. That the four policemen were [private respondents] PO1
Romil Avenido PNP, PO1 Valentino Rufano, PNP both member
of 142nd Company, Regional Mobile Group and PO1 Eddie
Degran PNP and PO1 Federico Balolot PNP members of 1403
Prov'l Mobile Group, all of Bunawan Brook, Bunawan, Agusan
del Sur; who all pointed their long firearms ready to fire [at]
me, having heard the sound of the release of the safety lock;
4. That raising my arms, I heard [private respondent] PO1
Avenido saying, "ANG IMONG PUSIL, IHATAG" which means
"Give me your firearm," to which I answered, "WALA MAN
KO'Y PUSIL" translated as "I have no firearm," showing my
waistline when I raised my T-shirt;
5. That my other companions on the jeep also went down
and raised their arms and showed their waistline when the
same policemen and a person in civilian attire holding an
armalite also pointed their firearms to them to which Mr.
Percival Plaza who came down from his house told them not
to harass me as I am also a former police officer but they did
not heed Mr. Plaza's statements;
6. That while we were raising our arms [private respondent]
SPO4 Benjamin Conde, Jr. went near my owner type jeep and
conducted a search. To which I asked them if they have any
search warrant;
7. That after a while they saw my super .38 pistol under the
floormat of my jeep and asked me of the MR of the firearm
but due to fear that their long arms were still pointed to us, I
searched my wallet and gave the asked [sic] document;
8. That immediately the policemen left me and my
companions without saying anything bringing with them the
firearm;
9. That at about 2:30 p.m., I left Mr. Percival's house and
went to Trento Police Station where I saw a person in civilian
attire with a revolver tucked on his waist, to which I asked
the police officers including those who searched my jeep to
apprehend him also;
10. That nobody among the policemen at the station made a
move to apprehend the armed civilian person so I went to the
office of Police Chief Rocacorba who immediately called the
armed civilian to his office and when already inside his office,
the disarming was done;
11. That after the disarming of the civilian I was put to jail
with the said person by Police Chief Rocacorba and was
released only at 4:00 o'clock in the afternoon of May 16,
2001 after posting a bailbond;
12. That I caused the execution of this document for the
purpose of filing cases of Illegal Search, Grave Misconduct
and Abuse of Authority against SPO4 Benjamin Conde, Jr., of
Trento Police Station; PO1 Ramil Avenido, PO1 Velantino
Rufano, PO1 Federico Balolot and PO1 Eddie Degran.9
Petitioner also submitted the Joint Affidavit10 of his
witnesses, Lorenzo Sanoria and Percival Plaza.
Private respondent Conde filed a Counter-Affidavit dated
March 20, 2002, where he interposed the following defenses:
First, he had nothing to do with the detention of petitioner as
it was Chief of Police/Officer-in-Charge Police Inspector
Dioscoro Mehos Rocacorba who ordered the detention.
Petitioner himself admitted this fact in his own Complaint-
Affidavit;11 and
Second, he denies searching petitioner's vehicle,12 but
admits that even though he was not armed with a warrant,
he searched the person of petitioner as the latter, in plain
view, was committing a violation of Comelec Resolutions No.
3258 and No. 3328 by carrying a firearm in his person.
Private respondents Avenido, Degran, Rufano and Balolot
filed their Joint-Affidavit dated March 25, 2002, which
contradicts the statements of private respondent Conde, viz:
1. that we executed a joint counter-affidavit dated August 28,
2001 where we stated among other things, that "we saw
Feleciano "Nani" Galvante armed with a handgun/pistol
tucked on his waist;"
2. that this statement is not accurate because the truth of
the matter is that the said handgun was taken by SPO4
BENJAMIN CONDE, JR., who was acting as our team leader
during the May 14, 2001 Elections, from the jeep of Mr.
Galvante after searching the same; and
3. that we noticed the aforementioned discrepancy in our
affidavit dated August 28, 2001 after we have already affixed
our signatures thereon.13
Consequently, petitioner filed an Affidavit of Desistance
dated March 25, 2002 with both the IAS and Ombudsman,
absolving private respondents Avenido, Degran, Rufano and
Balolot, but maintaining that private respondent Conde alone
be prosecuted in both administrative and criminal cases.14
On July 17, 2002, the IAS issued a Decision in Administrative
Case No. IASOB-020007, finding all private respondents guilty
of grave misconduct but penalized them with suspension
only. The IAS noted however that private respondents were
merely being "[enthusiastic] in the conduct of the arrest in
line of duty." 15
Meanwhile, in Criminal Case No. 5047, petitioner filed with
the RTC a Motion for Preliminary Investigation and to Hold in
Abeyance the Issuance of or Recall the Warrant of Arrest.16
The RTC granted the same in an Order17 dated August 17,
2001. Upon reinvestigation, Prosecutor II Eliseo Diaz, Jr. filed
a "Reinvestigation with Motion to Dismiss" dated November
22, 2001, recommending the dismissal of Criminal Case No.
5047 on the ground that "the action of the policemen who
conducted the warrantless search in spite of the absence of
any circumstances justifying the same intruded into the
privacy of the accused and the security of his property."18
Officer-in-Charge Prosecutor II Victoriano Pag-ong approved
said recommendation.19
The RTC granted the prosecution's motion to dismiss in an
Order20 dated January 16, 2003.
Apparently unaware of what transpired in Criminal Case No.
5047, Ombudsman Investigation & Prosecution Officer Dennis
L. Garcia issued in OMB-P-C-02-0109-B, the October 30, 2003
Resolution, to wit:
After a careful evaluation, the undersigned prosecutor finds
no probable cause for any of the offenses charged against
above-named respondents.
The allegations of the complainant failed to establish the
factual basis of the complaint, it appearing from the records
that the incident stemmed from a valid warrantless arrest.
The subsequent execution of an affidavit of desistance by the
complainant rendered the complaint even more uncertain
and subject to doubt, especially so since it merely exculpated
some but not all of the respondents. These circumstances,
coupled with the presumption of regularity in the
performance of duty, negates any criminal liability on the
part of the respondents.
WHEREFORE, premises considered, it is hereby
recommended that the above-captioned case be dismissed
for lack of probable cause.21 (Emphasis supplied)
Upon the recommendation of Director Bienvenido C.
Blancaflor, Deputy Ombudsman for the Military Orlando C.
Casimiro (Deputy Ombudsman) approved the October 30,
2003 Resolution.22
In his Motion for Reconsideration,23 petitioner called the
attention of the Ombudsman to the earlier IAS Decision, the
Reinvestigation with Motion to Dismiss of Prosecutor II Eliseo
Diaz, Jr. and the RTC Order, all of which declared the
warrantless search conducted by private respondents
illegal,24 which are contradicted by the October 30, 2003
Ombudsman Resolution declaring the warrantless search
legal.
The Ombudsman denied petitioner's motion for
reconsideration on the ground that the latter offered "no new
evidence or errors of law which would warrant the reversal or
modification"25 of its October 30, 2003 Resolution.
Petitioner filed the present petition, attributing to Deputy
Ombudsman Casimiro, Director Blancaflor and Prosecutor
Garcia (public respondents) the following acts of grave abuse
of discretion:
I. Public respondents acted without or in excess of their
jurisdiction and/or with grave abuse of discretion amounting
to lack or excess of jurisdiction when, in their Resolution
dated October 30, 2003, public respondents found that the
incident upon which petitioner's criminal complaint was
based stemmed from a valid warrantless arrest and
dismissed petitioner's complaint despite the fact that:
A. Petitioner has clearly shown that the search conducted by
the private respondents was made without a valid warrant,
nor does it fall under any of the instances of valid warrantless
searches.
B. Notwithstanding the absence of a valid warrant, petitioner
was arrested and detained by the private respondents.
II. Public respondents acted without or in excess of their
jurisdiction and/or with grave abuse of discretion amounting
to lack or excess of jurisdiction when, in their Order dated
January 20, 2004, public respondents denied the petitioner's
motion for reconsideration in a capricious, whimsical,
despotic and arbitrary manner. 26
In its Memorandum,27 the Office of the Solicitor General
argued that public respondents acted within the bounds of
their discretion in dismissing OMB-P-C-02-0109-B given that
private respondents committed no crime in searching
petitioner and confiscating his firearm as the former were
merely performing their duty of enforcing the law against
illegal possession of firearms and the Comelec ban against
the carrying of firearms outside of one's residence.
Private respondent Conde filed a Comment28 and a
Memorandum for himself.29 Private respondents Avenido,
Degran, Rufano and Balolot filed their separate Letter-
Comment dated June 25, 2004.30
The petition lacks merit.

The Constitution vests in the Ombudsman the power to
determine whether there exists reasonable ground to believe
that a crime has been committed and that the accused is
probably guilty thereof and, thereafter, to file the
corresponding information with the appropriate courts.31 The
Court respects the relative autonomy of the Ombudsman to
investigate and prosecute, and refrains from interfering when
the latter exercises such powers either directly or through the
Deputy Ombudsman,32 except when the same is shown to
be tainted with grave abuse of discretion amounting to lack
or excess of jurisdiction.33
Grave abuse of discretion is an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law or to act in
contemplation of law as when judgment rendered is not
based on law and evidence but on caprice, whim and
despotism.34 This does not obtain in the present case.
It is noted that the criminal complaint which petitioner filed
with the Ombudsman charges private respondents with
warrantless search, arbitrary detention, and grave threats.
The complaint for warrantless search charges no criminal
offense. The conduct of a warrantless search is not a criminal
act for it is not penalized under the Revised Penal Code (RPC)
or any other special law. What the RPC punishes are only two
forms of searches:
Art. 129. Search warrants maliciously obtained and abuse in
the service of those legally obtained. - In addition to the
liability attaching to the offender for the commission of any
other offense, the penalty of arresto mayor in its maximum
period to prision correccional in its minimum period and a
fine not exceeding P1,000.00 pesos shall be imposed upon
any public officer or employee who shall procure a search
warrant without just cause, or, having legally procured the
same, shall exceed his authority or use unnecessary severity
in executing the same.
Art. 130. Searching domicile without witnesses. - The penalty
of arresto mayor in its medium and maximum periods shall
be imposed upon a public officer or employee who, in cases
where a search is proper, shall search the domicile, papers or
other belongings of any person, in the absence of the latter,
any member of his family, or in their default, without the
presence of two witnesses residing in the same locality.
Petitioner did not allege any of the elements of the foregoing
felonies in his Affidavit-Complaint; rather, he accused private
respondents of conducting a search on his vehicle without
being armed with a valid warrant. This situation, while
lamentable, is not covered by Articles 129 and 130 of the
RPC.
The remedy of petitioner against the warrantless search
conducted on his vehicle is civil,35 under Article 32, in
relation to Article 221936 (6) and (10) of the Civil Code,
which provides:

Art. 32. Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable
to the latter for damages:
xxxx
(9) The right to be secure in one's person, house, papers, and
effects against unreasonable searches and seizures;
xxxx
The indemnity shall include moral damages. Exemplary
damages may also be adjudicated.
and/or disciplinary and administrative, under Section 41 of
Republic Act No. 6975.37
To avail of such remedies, petitioner may file against private
respondents a complaint for damages with the regular
courts38 or an administrative case with the PNP/DILG,39 as
petitioner did in Administrative Case No. IASOB-020007, and
not a criminal action with the Ombudsman.
Public respondents' dismissal of the criminal complaint for
illegal search which petitioner filed with the Ombudsman
against private respondents was therefore proper, although
the reasons public respondents cited for dismissing the
complaint are rather off the mark because they relied solely
on the finding that the warrantless search conducted by
private respondents was valid and that the Affidavit of
Desistance which petitioner executed cast doubt on the
veracity of his complaint.40 Public respondents completely
overlooked the fact that the criminal complaint was not
cognizable by the Ombudsman as illegal search is not a
criminal offense. Nevertheless, the result achieved is the
same: the dismissal of a groundless criminal complaint for
illegal search which is not an offense under the RPC. Thus,
the Court need not resolve the issue of whether or not public
respondents erred in their finding on the validity of the
search for that issue is completely hypothetical under the
circumstance.
The criminal complaint for abitrary detention was likewise
properly dismissed by public respondents. To sustain a
criminal charge for arbitrary detention, it must be shown that
(a) the offender is a public officer or employee, (b) the
offender detained the complainant, and (c) the detention is
without legal grounds.41 The second element was not
alleged by petitioner in his Affidavit-Complaint. As pointed
out by private respondent Conde in his Comment42 and
Memorandum,43 petitioner himself identified in his Affidavit-
Complaint that it was Police Chief Rocacorba who caused his
detention. Nowhere in said affidavit did petitioner allege that
private respondents effected his detention, or were in any
other way involved in it.44 There was, therefore, no factual or
legal basis to sustain the criminal charge for arbitrary
detention against private respondents.

Finally, on the criminal complaint for grave threats, the
Solicitor General aptly pointed out that the same is based
merely on petitioner's bare allegation that private
respondents aimed their firearms at him.45 Such bare
allegation stands no chance against the well-entrenched rule
applicable in this case, that public officers enjoy a
presumption of regularity in the performance of their official
function.46 The IAS itself observed that private respondents
may have been carried away by their "enthusiasm in the
conduct of the arrest in line of duty."47 Petitioner expressed
the same view when, in his Affidavit of Desistance, he
accepted that private respondents may have been merely
following orders when they pointed their long firearms at
him.
All said, public respondents did not act with grave abuse of
discretion in dismissing the criminal complaint against
private respondents.
WHEREFORE, the petition is DENIED.
No costs.
SO ORDERED.
Vda Del Prado vs. People
Before us is a petition for review on certiorari under Rule 45
of the Rules of Court, which seeks to assail and set aside the
following issuances of the Court of Appeals (CA) in the case
docketed as CA-G.R. CR No. 31225 and entitled “Norma Delos
Reyes Vda. Del Prado, Eulogia R. Del Prado, Normita R. Del
Prado and Rodelia R. Del Prado v. People of the
Philippines":cralaw
1) the Decision[1] dated September 15, 2008 affirming with
modification the decision and order of the Regional Trial
Court (RTC), Branch 38, Lingayen, Pangasinan in Criminal
Case No. L-8015; and
2) the Resolution[2] dated January 6, 2009 denying the
motion for reconsideration of the Decision of September 15,
2008.
The Factual Antecedents
This petition stems from an Information for falsification under
Article 172, in relation to Article 171(4), of the Revised Penal
Code filed against herein petitioners Norma Delos Reyes Vda.
Del Prado (Norma), Normita Del Prado (Normita), Eulogia Del
Prado (Eulogia) and Rodelia[3] Del Prado (Rodelia) with the
Municipal Trial Court (MTC) of Lingayen, Pangasinan,
allegedly committed as follows:
That on or about the 19th day of July, 1991, in the
[M]unicipality of Lingayen, [P]rovince of Pangasinan,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating
and mutually helping one another, did then and there
wil[l]fully, unlawfully and feloniously falsified, execute[d] and
cause[d] the preparation of the DEED OF SUCCESSION, by
stating and making it appear in said document that they
were the only heirs of the late Rafael del Prado, when in truth
and in fact, all the accused well knew, that Ma. Corazon Del
Prado-Lim is also an heir who is entitled to inherit from the
late Rafael Del Prado, and all the accused deliberately used
the DEED OF SUCCESSION to claim ownership and possession
of the land mentioned in the DEED OF SUCCESSION to the
exclusion of the complainant Ma. Corazon Del Prado-Lim to
her damage and prejudice.
Contrary to Art. 172 in relation to Art. 171, par. 4 of the
Revised Penal Code.[4]
Upon arraignment, the accused therein entered their plea of
“not guilty”. After pre-trial conference, trial on the merits
ensued.
The prosecution claimed that Ma. Corazon Del Prado-Lim
(Corazon), private complainant in the criminal case, was the
daughter of the late Rafael Del Prado (Rafael) by his marriage
to Daisy Cragin (Daisy). After Daisy died in 1956, the late
Rafael married Norma with whom he had five children,
namely: Rafael, Jr., Antonio, Eulogia, Normita and Rodelia.
The late Rafael died on July 12, 1978. On October 29, 1979,
Corazon, as a daughter of the late Rafael, and Norma, as the
late Rafael’s surviving spouse and representative of their five
minor children, executed a “Deed of Extra-Judicial Partition of
the Estate of Rafael Del Prado” to cover the distribution of
several properties owned by the late Rafael, including the
parcel of land covered by Original Certificate of Title (OCT)
No. P-22848, measuring 17,624 square meters, more or less,
and situated at Libsong, Lingayen, Pangasinan.
Per agreement of the heirs, Corazon was to get a 3,000-
square meter portion of the land covered by OCT No. P-
22848. This right of Corazon was also affirmed in the Deed
of Exchange dated October 15, 1982 and Confirmation of
Subdivision which she executed with Norma.
Corazon, however, later discovered that her right over the
subject parcel of land was never registered by Norma,
contrary to the latter’s undertaking. The petitioners instead
executed on July 19, 1991 a Deed of Succession wherein
they, together with Rafael, Jr. and Antonio, partitioned and
adjudicated unto themselves the property covered by OCT
No. P-22848, to the exclusion of Corazon. The deed was
notarized by Loreto L. Fernando (Loreto), and provides in
part:
WHEREAS, on the 12[th] day of July 1978, RAFAEL DEL
PRADO[,] SR., died intestate in the City of Dagupan, leaving
certain parcel of land, and more particularly described and
bounded to wit:
ORIGINAL CERTIFICATE OF TITLE NO. P-22848
“A certain parcel of land (Lot No. 5518, Cad-373-D) Lingayen
Cadastre, situated in Poblacion, Lingayen, Pangasinan, Island
of Luzon. Bounded on the NE., by Lots Nos. 5522, 5515; and
6287; on the SE., by Lots Nos. 5516, 5517, 55 and Road; on
the SW., by Road, and Lots Nos. 5521, 5510, and 5520; and
on the NW., by Road; x x x containing an area of SEVENTEEN
THOUSAND SIX HUNDRED TWENTY-FOUR (17,624) Square
Meters, more or less. Covered by Psd-307996 (LRC),
consisting of two lots. Lot No. 5510-A and Lot 5518-B.”
WHEREAS, the parties hereto are the only heirs of the
decedent, the first name, is the surviving spouse and the rest
are the children of the decedent;
xxx
NOW, THEREFORE, for and in consideration of the premises
and invoking the provisions of Rule 74, Sec. 1 of the Rules of
Court, the parties hereto do by these presents, agree to
divide and partition the entire estate above[-]described and
accordingly adjudicate, as they do hereby adjudicate the
same among themselves, herein below specified to wit:
x x x[5]
By virtue of the said Deed of Succession, OCT No. P-22848
was cancelled and several new titles were issued under the
names of Corazon’s co-heirs. When Corazon discovered this,
she filed a criminal complaint against now petitioners Norma,
Eulogia, Normita and Rodelia. Antonio and Rafael, Jr. had
both died before the filing of said complaint.
Among the witnesses presented during the trial was Loreto,
who confirmed that upon the request of Norma and Antonio,
he prepared and notarized the deed of succession. He
claimed that the petitioners appeared and signed the
document before him.
For their defense, the petitioners denied having signed the
Deed of Succession, or having appeared before notary public
Loreto. They also claimed that Corazon was not a daughter,
but a niece, of the late Rafael. Norma claimed that she only
later knew that a deed of succession was prepared by her
son Antonio, although she admitted having executed a deed
of real estate mortgage in favor of mortgagee Prudential
Bank over portions of the subject parcel of land already
covered by the new titles.
The Ruling of the MTC
The MTC rejected for being unsubstantiated the petitioners’
denial of any participation in the execution of the deed of
succession, further noting that they benefited from the
property after its transfer in their names. Thus, on August 9,
2006, the court rendered its decision[6] finding petitioners
Norma, Eulogia, Normita and Rodelia guilty beyond
reasonable doubt of the crime charged, sentencing them to
suffer an indeterminate penalty of four months and one day
of arresto mayor as minimum to two years and four months
and one day of prision correccional as maximum. They were
also ordered to pay a fine of P5,000.00 each, with subsidiary
imprisonment in case of non-payment of fine.
Considering the minority of Rodelia at the time of the
commission of the crime, she was sentenced to suffer the
penalty of four months of arresto mayor, plus payment of fine
of P5,000.00, with subsidiary imprisonment in case of non-
payment.
All the petitioners were ordered to indemnify Corazon in the
amount of P10,000.00 as attorney’s fees, and to pay the
costs of suit.
Unsatisfied with the MTC’s ruling, the petitioners filed a
motion for new trial on the grounds of alleged gross error of
law, irregularities during the trial, and new and material
evidence. To prove that they did not intend to exclude
Corazon from the estate of the late Rafael, the petitioners
cited their recognition of Corazon’s right to the estate in the
deed of extra-judicial partition, confirmation of subdivision,
deed of exchange, joint affidavit and petition for guardianship
of minors Rafael, Jr., Eulogia, Antonio and Normita, which
they had earlier executed.[7] Again, the petitioners denied
having signed the deed of succession, and instead insisted
that their signatures in the deed were forged.
The motion was denied by the MTC via a resolution[8] dated
December 21, 2006, prompting the filing of an appeal with
the RTC.
The Ruling of the RTC
On August 10, 2007, the RTC rendered its decision[9]
affirming the MTC’s decision, with modification in that the
case against Rodelia was dismissed in view of her minority at
the time of the commission of the crime. The decretal
portion of the decision reads:
WHEREFORE, premises considered, the appealed Decision of
the Municipal Trial Court of Lingayen, Pangasinan dated
August 9, 2006 is hereby AFFIRMED, but modified as to
accused Rodelia R. Del Prado as the case against her is
hereby DISMISSED on account of her minority at the time of
the commission of the offense.
SO ORDERED.[10]
A motion for reconsideration was denied for lack of merit by
the RTC via its resolution[11] dated October 31, 2007.
Hence, Norma, Eulogia and Normita filed a petition for review
with the CA.
The Ruling of the CA
On September 15, 2008, the CA rendered its decision[12]
dismissing the petition and affirming the RTC’s ruling, with
modification as to the imposable penalty under the
Indeterminate Sentence Law. The decretal portion of the
decision reads:
WHEREFORE, premises considered, the appeal is DISMISSED.
The appealed Decision dated August 10, 2007 and Order
dated October 31, 2007 of the Regional Trial Court, Branch
38, Pangasinan, in Crim. Case No. L-8015 are AFFIRMED with
MODIFICATION that appellants Norma delos Reyes Vda. Del
Prado, Eulogia R. Del Prado and Normita R. Del Prado are
hereby sentenced to suffer an indeterminate penalty of one
(1) year and one (1) day of arresto mayor, as minimum, to
three (3) years, six (6) months and twenty-one (21) days of
prision correccional, as maximum.
SO ORDERED.[13]
The motion for reconsideration filed by the petitioners was
denied by the CA in its resolution[14] dated January 6, 2009.
Feeling aggrieved, the petitioners appealed from the decision
and resolution of the CA to this Court, through a petition for
review on certiorari[15] under Rule 45 of the Rules of Court.
The Present Petitionb>
The petitioners present the following assignment of errors to
support their petition:
WITH DUE RESPECT, THE LOWER COURT CLEARLY ERRED IN
FINDING THAT COMPLAINANT MA. CORAZON DEL PRADO-LIM
WAS EXCLUDED AS AN HEIR OF THE LATE RAFAEL DEL
PRADO.
WITH DUE RESPECT, THE LOWER COURT CLEARLY ERRED IN
NOT APPRECIATING THE FACT THAT IN SEVERAL DOCUMENTS/
INSTRUMENTS EXECUTED BY THE PETITIONERS WITH THE
PARTICIPATION OF COMPLAINANT MS. CORAZON DEL PRADO-
LIM, SHE WAS SPECIFICALLY NAMED AS AN HEIR WITH
CORRESPONDING SHARES/INHERITANCE IN THE ESTATE OF
THE LATE RAFAEL DEL PRADO.
WITH DUE RESPECT, THE LOWER COURT CLEARLY ERRED IN
FAILING TO APPRECIATE THE GOOD FAITH OF THE
PETITIONERS WHICH NEGATES THE COMMISSION OF THE
OFFENSE OF FALSIFICATION ON THEIR PART.
WITH DUE RESPECT, THE LOWER COURT CLEARLY ERRED IN
CONVICTING THE PETITIONERS WITHOUT ANY FACTUAL AND
LEGAL BASIS, THE PRESUMPTION OF INNOCENCE OF THE
PETITIONERS NOT HAVING BEEN OVERCOME BY THE
PROSECUTION’S EVIDENCE.
WITH DUE RESPECT [THE LOWER COURT ERRED] IN NOT
HOLDING THAT THE CASE IS PURELY CIVIL ONE[,] NOT
CRIMINAL.[16]
To support their assigned errors, the petitioners invoke the
existence and contents of the several documents which they
had presented before the MTC, including the deed of
extrajudicial partition of the estate of Rafael Del Prado dated
October 29, 1979, confirmation of subdivision, deed of
exchange and petition in the guardianship proceedings for
the minor Del Prado children filed by Norma, in which
documents they claim to have indicated and confirmed that
Corazon is also an heir of the late Rafael. Given these
documents, the petitioners insist that they cannot be
charged with falsification for having excluded Corazon as an
heir of their decedent.
In sum, the issue for this Court’s resolution is whether or not
the CA erred in affirming the petitioners’ conviction for
falsification, notwithstanding the said petitioners’ defense
that they never intended to exclude private complainant
Corazon from the estate of the late Rafael.
This Court’s Ruling
The petition is bound to fail.
Only questions of law may be raised in petitions for review on
certiorari under Rule 45 of the Rules of Court.
First, the questions being raised by the petitioners refer to
factual matters that are not proper subjects of a petition for
review under Rule 45. Settled is the rule that in a petition for
review under Rule 45, only questions of law may be raised. It
is not this Court’s function to analyze or weigh all over again
evidence already considered in the proceedings below, our
jurisdiction being limited to reviewing only errors of law that
may have been committed by the lower court. The resolution
of factual issues is the function of the lower courts, whose
findings on these matters are received with respect. A
question of law which we may pass upon must not involve an
examination of the probative value of the evidence presented
by the litigants.[17] This is clear under Section 1, Rule 45 of
the Rules of Court, as amended, which provides:
Section 1. Filing of petition with Supreme Court. – A party
desiring to appeal by certiorari from a judgment, final order
or resolution of the Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the Supreme
Court a verified petition for review on certiorari. The petition
may include an application for a writ of preliminary injunction
or other provisional remedies and shall raise only questions
of law, which must be distinctly set forth. The petitioner may
seek the same provisional remedies by verified motion filed
in the same action or proceeding at any time during its
pendency. (Emphasis supplied)
The distinction between a question of law and a question of
fact is settled. There is a question of law when the doubt or
difference arises as to what the law is on a certain state of
facts. Such a question does not involve an examination of
the probative value of the evidence presented by the litigants
or any of them. On the other hand, there is a question of fact
when the doubt arises as to the truth or falsehood of the
alleged facts or when the query necessarily invites
calibration of the whole evidence, considering mainly the
credibility of witnesses, existence and relevancy of specific
surrounding circumstances, their relation to one another and
to the whole, and the probabilities of the situation.[18]
Contrary to these rules, the petitioners ask us to review the
lower courts’ factual finding on Carmen’s exclusion in the
subject deed of succession, to reconsider its contents and
those of the other documentary evidence which they have
submitted with the court a quo, all of which involve questions
of fact rather than questions of law. In their assignment of
errors, petitioners even fully question the factual basis for the
courts’ finding of their guilt. However, as we have explained
in Medina v. Asistio, Jr.:[19]
Petitioners’ allegation that the Court of Appeals “grossly
disregarded” their Exhibits “A”, “B”, “C”, “D” and “E”, in
effect, asks us to re-examine all the [evidence] already
presented and evaluated – as well as the findings of fact
made – by the Court of Appeals. Thus, in Sotto v. Teves (86
SCRA 154 [1978]), [w]e held that the appreciation of
evidence is within the domain of the Court of Appeals
because its findings of fact are not reviewable by this Court
(Manlapaz v. CA, 147 SCRA 236 [1987]; Knecht v. CA, 158
SCRA 80 [1988] and a long line of cases).
It is not the function of this Court to analyze or weigh such
evidence all over again. Our jurisdiction is limited to
reviewing errors of law that may have been committed by
the lower court. (Nicolas[,] et al., v. CA, 154 SCRA 635
[1987]; Tiongco v. de la Merced, 58 SCRA 89 [1974]).
There are recognized exceptions to this rule on questions of
law as subjects of petitions for review, to wit: (1) when the
findings are grounded entirely on speculation, surmises or
conjectures, (2) when the inference made is manifestly
mistaken, absurd or impossible, (3) when there is grave
abuse of discretion, (4) when the judgment is based on
misapprehension of facts, (5) when the findings of fact are
conflicting, (6) when in making its findings, the CA went
beyond the issues of the case, or its findings are contrary to
the admissions of both the appellant and the appellee, (7)
when the CA’s findings are contrary to those by the trial
court, (8) when the findings are conclusions without citation
of specific evidence on which they are based, (9) when the
acts set forth in the petition as well as in the petitioner’s
main and reply briefs are not disputed by the respondent,
(10) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on
record, or (11) when the CA manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion.[20] After a
consideration of the petitioners’ arguments, this Court holds
that the present appeal does not fall under any of these
exceptions.
There can be no good faith on the part of the petitioners
since they knew of the untruthful character of statements
contained in their deed of succession.
Even granting that the present petition may be admitted, we
find no cogent reason to reverse the CA decision appealed
from, considering that the elements of the crime of
falsification under Art. 171, par. 4 of the Revised Penal Code,
in relation to Art. 172 thereof, were duly proved during the
proceedings below. Said elements are as follows:
(a)
The offender makes in a public document untruthful
statements in a narration of facts;
(b)
The offender has a legal obligation to disclose the truth of the
facts narrated by him; and
(c)
The facts narrated by the offender are absolutely false.[21]
These elements are based on the provisions of Art. 172, in
relation to Art. 171, par. 4, of the Revised Penal Code, which
reads:
Art. 171. Falsification by public officer, employee or notary or
ecclesiastical minister. – The penalty of prision mayor and a
fine not to exceed P5,000 pesos shall be imposed upon any
public officer, employee, or notary who, taking advantage of
his official position, shall falsify a document by committing
any of the following acts:
xxx
4. Making untruthful statements in narration of facts;
xxx
Art. 172. Falsification by private individual and use of falsified
documents. – The penalty of prision correccional in its
medium and maximum periods and a fine of not more than
P5,000 pesos shall be imposed upon:
Any private individual who shall commit any of the
falsifications enumerated in the next preceding article in any
public or official document or letter of exchange or any other
kind of commercial document; and
Any person who, to the damage of a third party, or with the
intent to cause such damage, shall in any private document
commit any of the acts of falsification enumerated in the
next preceding article.
xxx
The material document claimed to be falsified in this case is
the Deed of Succession dated July 19, 1991, the presentation
of which before the Register of Deeds and other government
agencies allowed the cancellation of OCT No. P-22848, and
the issuance of several new titles in its stead. The first and
third elements were committed by the inclusion in the
subject deed of the clause that states, “(w)hereas, the
parties hereto are the only heirs of the decedent, the first
name, is the surviving spouse and the rest are the children of
the decedent.”[22] The untruthfulness of said statement is
clear from the several other documents upon which,
ironically, the petitioners anchor their defense, such as the
deed of extrajudicial partition dated October 29, 1979, the
parties’ confirmation of subdivision, deed of exchange and
Norma’s petition for guardianship of her then minor children.
Specifically mentioned in these documents is the fact that
Corazon is also a daughter, thus an heir, of the late Rafael.
The obligation of the petitioners to speak only the truth in
their deed of succession is clear, taking into account the very
nature of the document falsified. The deed, which was
transformed into a public document upon acknowledgement
before a notary public, required only truthful statements from
the petitioners. It was a legal requirement to effect the
cancellation of the original certificate of title and the
issuance of new titles by the Register of Deeds. The false
statement made in the deed greatly affected the
indefeasibility normally accorded to titles over properties
brought under the coverage of land registration, to the injury
of Corazon who was deprived of her right as a landowner,
and the clear prejudice of third persons who would rely on
the land titles issued on the basis of the deed.
We cannot subscribe to the petitioners’ claim of good faith
because several documents prove that they knew of the
untruthful character of their statement in the deed of
succession. The petitioners’ alleged good faith is disputed by
their prior confirmation and recognition of Corazon’s right as
an heir, because despite knowledge of said fact, they
included in the deed a statement to the contrary. The
wrongful intent to injure Corazon is clear from their execution
of the deed, showing a desire to appropriate only unto
themselves the subject parcel of land. Corazon was unduly
deprived of what was due her not only under the provisions
of the law on succession, but also under contracts that she
had previously executed with the petitioners.cralaw
WHEREFORE, premises considered, the petition for review on
certiorari is hereby DENIED. The Decision dated September
15, 2008 and Resolution dated January 6, 2009 of the Court
of Appeals in CA-G.R. CR No. 31225 are hereby AFFIRMED.
SO ORDERED.
Merencillo vs. People
This petition for review1 assails the June 18, 1999 decision2
of the Sandiganbayan in A.R. Case Nos. 004-005 affirming3
the omnibus decision4 of the Regional Trial Court (RTC) of
Tagbilaran City, Branch 47, in Criminal Case Nos. 9482-83
finding petitioner Juanito T. Merencillo guilty of violating
Section 3(b) of RA 30195 and Article 2106 of the Revised
Penal Code.
The information charging petitioner for violation of Section
3(b) of RA 3019 in Criminal Case No. 9482 read:
That, on or about the 28th day of September, 1995, in the
City of Tagbilaran, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused being then a
public official connected with the Bureau of Internal Revenue
as its Group Supervising Examiner, did then and there
willfully, unlawfully and feloniously and with intent of
personal gain, directly demand and extort from a certain Mrs.
Maria Angeles Ramasola Cesar the amount of TWENTY
THOUSAND PESOS (₱20,000.00), Philippine Currency, in
connection, in consideration and in exchange for the release
of the certification of her payment of the capital gains tax for
the land purchased by the Ramasola [Superstudio] Inc. from
one Catherine Corpuz Enerio, a transaction wherein the
aforesaid accused has to intervene in his official capacity,
and to which the said Mrs. Maria Angeles Ramasola Cesar
reluctantly agreed but upon prior consultation with the
military authorities particularly the elements of the 702nd
Criminal Investigation Command [CIC] who set up the
accused for a possible entrapment resulting to (sic) his being
caught in the act of receiving an envelope supposedly
containing the amount of TWENTY THOUSAND PESOS
(₱20,000.00) but consisting only of four (4) marked one
hundred peso bills and the rest all bogus (paper) monies, to
the damage and prejudice of the said Mrs. Maria Angeles
Ramasola Cesar in particular and the public and the
government in general in the amount to be proved during the
trial of the case.
Acts committed contrary to the provisions of Section 3(b) of
[RA] 3019.7
On the other hand, the information for direct bribery
penalized under Article 210 of the Revised Penal Code in
Criminal Case No. 9483 charged:
That, on or about the 28th day of September, 1995 in the
City of Tagbilaran, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused being then a
public official connected with the performance of official duty
as its Group Supervising Examiner, did then and there
willfully, unlawfully and feloniously and with intent of
personal gain, demand, extort and agree to perform an act
constituting a crime, an act which is in violation of the Anti-
Graft and Corrupt Practices Act, that is – that the certification
for payment of the capital gains tax relative to the land
purchased by the Ramasola Superstudio Incorporated from
Catherine Corpus Enerio be released by him only upon
payment of an additional under the table transaction in the
amount of TWENTY THOUSAND PESOS (₱20,000.00),
Philippine Currency, which Mrs. Maria Angeles Ramasola
Cesar reluctantly agreed, but upon prior consultation with the
military authorities particularly the elements of the 702nd
Criminal [Investigation] Command (CIC) who set up the
accused for a possible entrapment resulting to (sic) his being
caught in the act of receiving an envelope supposedly
containing the amount of TWENTY THOUSAND PESOS
(₱20,000.00) but, consisting only of four (4) marked one
hundred pesos bills and the rest all bogus (paper) monies, an
act performed by the accused in his official capacity as Group
Supervising Examiner of the BIR, to the damage and
prejudice of Mrs. Maria Angeles Ramasola Cesar in particular
and the public and the government in general in the amount
to be proved during the trial of the case.
Acts committed contrary to the provisions of Article 210 of
the Revised Penal Code of the Philippines.8
Petitioner pleaded not guilty to both charges when arraigned.
Thereafter trial ensued and the cases were tried jointly.
The Facts Established By The Prosecution
In the morning of September 13, 1995, Lucit Estillore went to
the Bureau of Internal Revenue (BIR) office in Tagbilaran City
to ask for the computation of taxes due on the sale of real
property to Ramasola Superstudio, Inc. and to apply for a
certificate authorizing registration (CAR).9 At the BIR office,
she was entertained by revenue examiner Lourdes Fuentes
who computed the documentary stamp tax (₱37,500) and
capital gains tax (₱125,000) due on the transaction. The
computation was approved by petitioner in his capacity as
group supervisor. Estillore paid the taxes in the bank and
returned to apply for a CAR. She submitted the application
together with relevant documents to Fuentes for processing.
Fuentes prepared the revenue audit reports and submitted
them together with the application for the CAR to petitioner
for preliminary approval. [The application was to be
forwarded thereafter to the Revenue District Officer (RDO) for
final approval.] Fuentes advised Estillore that the CAR would
be released after seven days.
At around 10:00 a.m. of the same day, private complainant
Maria Angeles Ramasola Cesar10 (Cesar) received a call from
Estillore. She was told that petitioner wanted to see her "for
some negotiation." She proceeded to petitioner’s office
where the latter demanded ₱20,000 in exchange for the
approval of the CAR. Cesar replied that she needed to confer
with her two brothers who were her business associates.
The following day, on September 14, 1995, Cesar received a
call from petitioner who was following up his demand. Later
that day, Cesar received another call from petitioner who told
her that she could get the CAR after four or five days.
Cesar was able to return to the BIR only on September 20,
1995. When petitioner saw her, he repeated his demand for
₱20,000 although the CAR had in fact been signed by RDO
Galahad Balagon the day before, on September 19, 1995,
and was therefore ready for release. On Cesar’s inquiry, the
releasing clerk, Susan Cabangon, informed Cesar that she
(Cabangon) was still waiting for petitioner’s go signal to
release the document.
On September 22, 1995, Cesar visited RDO Balagon and
complained about petitioner’s refusal to release the CAR
unless his demand was met. RDO Balagon assured Cesar that
he would look into her complaint. Subsequently, Cesar
received a call from petitioner informing her that she could
get the CAR but reminded her of his demand. He told her that
he was willing to accept a lesser amount. It was at this point
that Cesar decided to report the matter to the authorities.
She sought the help of the Provincial Director of the
Philippine National Police (PNP) in Bohol, Senior
Superintendent Dionaid Baraguer.
The following day, Sr. Supt. Baraguer referred Cesar’s
complaint to the chief of police of Tagbilaran City who
coordinated with Cesar for the entrapment of petitioner.
Cesar was instructed to prepare two bundles of bogus money
by putting a one-hundred peso bill on each side of each of
the two bundles to make it appear that the two bundles
amounted to ₱10,000 each or a total of ₱20,000. After the
serial numbers of the four one-hundred peso bills were
recorded, the entrapment was set for September 28, 1995.
On the appointed day, Cesar called petitioner and pleaded
for the release of the CAR as well as for the reduction of
petitioner’s demand. Petitioner cautiously told Cesar not to
talk about the matter on the phone and asked her to see him
instead. Cesar went to petitioner’s office with the two
bundles of bogus money inside a white envelope.
Petitioner was entertaining a lady visitor when Cesar arrived.
The members of the PNP entrapment team were already in
petitioner’s office posing as civilians. On seeing Cesar,
petitioner handed the CAR to her and, as she was signing the
acknowledgment for the release of the CAR, he informed her
that he was going down to the second floor. Cesar took this
as a cue for her to follow.
As petitioner left his office, he held the door open for Cesar to
follow. On reaching the third floor lobby, petitioner uttered
"Here only." Cesar handed the envelope containing the two
bundles of marked money to petitioner who, upon receiving
it, asked "Why is this thick?" Before Cesar could answer, a
member of the PNP entrapment team photographed
petitioner holding the envelope. Petitioner panicked, hid the
envelope behind his back and turned towards the window at
the back of the BIR building. On seeing that the window was
closed, he turned around towards the open window facing the
street. He threw the envelope towards the window but it hit
the ceiling instead, bounced and fell to the first floor of the
BIR building.11 The PNP entrapment team then introduced
themselves to petitioner and invited him to go with them to
their headquarters.
Charges were filed against petitioner. During the trial,
petitioner’s evidence consisted of nothing more than a
general denial of the charges against him. He claimed that he
never asked for money and that the allegations of demand
for money existed only in Cesar’s mind after she was told
that there was a misclassification of the asset and additional
taxes had to be paid. He was surprised when policemen
suddenly arrested him as soon as Cesar handed him a white
envelope the contents of which he suspected to be money.
After trial, the RTC found petitioner guilty as charged. The
dispositive portion of the decision read:
WHEREFORE, premises considered, the Court finds the
accused Juanito T. Merencillo, guilty beyond reasonable doubt
as principal by direct participation, defined and penalized by
Section 3(b) of [RA] 3019, otherwise known as the Anti-Graft
and Corrupt Practices Act, and sentences him to suffer the
indeterminate penalty of imprisonment for eight (8) years
and one (1) month as minimum to fifteen (15) years as
maximum, there being aggravating circumstances
considered under Section 3(e) and Section (f) of [RA] 3019 in
relation to Article 14(1) and (11) of the [RPC] in the sense
that the offender have taken advantage of his public position,
and that the crime was committed in consideration of a price
or promise, without any mitigating or extenuating
circumstances to neutralize or offset any of the aggravating
circumstances, with perpetual disqualification from public
office, and the Court further finds the accused guilty beyond
reasonable doubt as principal by direct participation, for the
crime of Direct Bribery defined and penalized by Article 210
of the Revised Penal Code and sentences him to suffer the
indeterminate penalty of four (4) years and one (1) day as
minimum to eight (8) years of prision mayor as maximum
and a fine of Sixty Thousand (₱60,000.00) Pesos, all as
mandated by law. The accused Juanito T. Merencillo likewise
is ordered to indemnify private complainant [Cesar] to pay
moral damages in the amount of ₱50,000.00 and attorney’s
fees in the amount of Five Thousand (₱5,000.00) Pesos. Costs
shall also be taxed against the accused.
CONTRARY TO LAW.12
Petitioner appealed the RTC decision to the Sandiganbayan.
The Sandiganbayan, however, denied the appeal and
affirmed the RTC decision with modification reducing the
penalty of imprisonment for violation of Section 3(b) of RA
3019 to an indeterminate sentence of six years and one
month of prision mayor, as minimum, to ten years of prision
mayor, as maximum.13 Thus, this petition.
Petitioner basically raises two points: (1) the
Sandiganbayan’s refusal to believe his evidence over that of
the prosecution’s and (2) the Sandiganbayan’s failure to
recognize that he was placed in double jeopardy.
Petitioner faults the Sandiganbayan for affirming the RTC
decision and disregarding his evidence. He claims that, had
the RTC and the Sandiganbayan not ignored the
inconsistencies in the testimonies of the prosecution’s
witnesses,14 he would have been acquitted. He also asserts
that he was placed twice in jeopardy when he was
prosecuted for violation of Section 3(b) of RA 3019 and for
direct bribery.
Petitioner is wrong.
Trial Court’s Evaluation of Evidence Will Not Be Disturbed
Both the RTC and the Sandiganbayan found the testimonies
of the prosecution’s witnesses (that petitioner demanded and
received money from private complainant Cesar for the
release of the CAR) sufficient and credible enough to sustain
conviction.
This notwithstanding, petitioner now asks this Court to review
the entire evidence anew, re-evaluate the credibility of
witnesses and make another factual determination of the
case – a course of action clearly improper given the nature of
the instant petition.15 Questions of fact cannot generally be
raised for the consideration of this Court.
The calibration of evidence and the relative weight thereof
belongs to the appellate court.16 Its findings and conclusions
cannot be set aside by this Court unless there is no evidence
on record to support them.17 In this case, however, the
findings of fact of the Sandiganbayan, affirming the factual
findings of the RTC, were amply supported by evidence and
the conclusions therein were not against the law and
jurisprudence. There is no reason to disturb the congruent
findings of the trial and appellate courts.
Moreover, findings and conclusions of the trial court on the
credibility of witnesses enjoy the respect of appellate courts
because trial courts have the distinct advantage of observing
the demeanor of witnesses as they testify.18 In the absence
of any arbitrariness in the trial court’s findings and evaluation
of evidence tending to show that it overlooked certain
material facts and circumstances, its findings and evaluation
of evidence should be respected on review.19 The presiding
judge of the trial court had the opportunity to actually
observe the conduct and demeanor of the witnesses on the
witness stand on direct examination by the prosecution,
cross-examination by the defense as well as during
clarificatory questioning by the trial judge himself.20
Between the trial judge and this Court, the former was
concededly in a better position to determine whether or not a
witness was telling the truth.21 Based on the records, we find
no reason to disagree with the trial court’s assessment and
to discredit the prosecution’s witnesses.
Contrary to petitioner’s contention, the RTC and the
Sandiganbayan considered the alleged inconsistencies in the
testimonies of the prosecution witnesses. Both courts,
however, ruled that the inconsistencies referred only to minor
details that did not detract from the truth of the
prosecution’s testimonial evidence. We agree.
Witnesses testifying on the same event do not have to be
consistent in each and every detail. Differences in the
recollection of the event are inevitable and inconsequential
variances are commonly regarded as signs of truth instead of
falsehood. Inconsistencies in the testimonies of prosecution
witnesses with respect to minor details and collateral matters
do not affect either the substance of their declaration, their
veracity or the weight of their testimony.22 In fact, such
minor flaws may even enhance the worth of a testimony for
they guard against memorized falsities.23
Minor discrepancies or inconsistencies do not impair the
essential integrity of the prosecution’s evidence as a whole
or reflect on the witnesses’ honesty.24 The test is whether
the testimonies agree on essential facts and whether the
respective versions corroborate and substantially coincide
with each other so as to make a consistent and coherent
whole.25 Thus, inconsistencies and discrepancies in details
which are irrelevant to the elements of the crime cannot be
successfully invoked as grounds for acquittal.26

The RTC and the Sandiganbayan correctly ruled that the
inconsistencies pointed out by petitioner were neither
material nor relevant to the elements of the offenses for
which he was charged. For instance, whether or not it was
petitioner himself who handed the CAR to private respondent
was immaterial. The fact was that petitioner demanded and
received money in consideration for the issuance of the CAR.
Petitioner Was Not Placed In Double Jeopardy
Section 3 of RA 3019 begins with the following statement:
Sec. 3. In addition to acts or omissions of public officers
already penalized by existing law, the following [acts] shall
constitute corrupt practices of any public officer and are
hereby declared unlawful:
xxx xxx xxx (emphasis supplied)
One may therefore be charged with violation of RA 3019 in
addition to a felony under the Revised Penal Code for the
same delictual act, that is, either concurrently or subsequent
to being charged with a felony under the Revised Penal
Code.27 There is no double jeopardy if a person is charged
simultaneously or successively for violation of Section 3 of RA
3019 and the Revised Penal Code.
The rule against double jeopardy prohibits twice placing a
person in jeopardy of punishment for the same offense.28
The test is whether one offense is identical with the other or
is an attempt to commit it or a frustration thereof; or whether
one offense necessarily includes or is necessarily included in
the other, as provided in Section 7 of Rule 117 of the Rules of
Court.29 An offense charged necessarily includes that which
is proved when some of the essential elements or ingredients
of the former, as 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 constitute or form a part of those constituting
the latter.30
A comparison of the elements of the crime of direct bribery
defined and punished under Article 210 of the Revised Penal
Code and those of violation of Section 3(b) of RA 3019 shows
that there is neither identity nor necessary inclusion between
the two offenses.
Section 3(b) of RA 3019 provides:
Sec. 3. In addition to acts or omissions of public officers
already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are
hereby declared unlawful:
xxx xxx xxx
(b) Directly or indirectly requesting or receiving any gift,
present, share percentage or benefit, for himself or for any
other person, in connection with any contract or transaction
between the Government and any other party, wherein the
public officer in his official capacity has to intervene under
the law.
xxx xxx xxx
The elements of the crime penalized under Section 3(b) of RA
3019 are:
(1) the offender is a public officer;
(2) he requested or received a gift, present, share,
percentage or benefit;
(3) he made the request or receipt on behalf of the offender
or any other person;
(4) the request or receipt was made in connection with a
contract or transaction with the government and
(5) he has the right to intervene, in an official capacity under
the law, in connection with a contract or transaction has the
right to intervene.31
On the other hand, direct bribery has the following essential
elements:
(1) the offender is a public officer;
(2) the offender accepts an offer or promise or receives a gift
or present by himself or through another;
(3) such offer or promise be accepted or gift or present be
received by the public officer with a view to committing some
crime, or in consideration of the execution of an act which
does not constitute a crime but the act must be unjust, or to
refrain from doing something which it is his official duty to do
and
(4) the act which the offender agrees to perform or which he
executes is connected with the performance of his official
duties.32
Clearly, the violation of Section 3(b) of RA 3019 is neither
identical nor necessarily inclusive of direct bribery. While they
have common elements, not all the essential elements of one
offense are included among or form part of those
enumerated in the other. Whereas the mere request or
demand of a gift, present, share, percentage or benefit is
enough to constitute a violation of Section 3(b) of RA 3019,
acceptance of a promise or offer or receipt of a gift or present
is required in direct bribery. Moreover, the ambit of Section
3(b) of RA 3019 is specific. It is limited only to contracts or
transactions involving monetary consideration where the
public officer has the authority to intervene under the law.
Direct bribery, on the other hand, has a wider and more
general scope: (a) performance of an act constituting a
crime; (b) execution of an unjust act which does not
constitute a crime and (c) agreeing to refrain or refraining
from doing an act which is his official duty to do.
Although the two charges against petitioner stemmed from
the same transaction, the same act gave rise to two separate
and distinct offenses. No double jeopardy attached since
there was a variance between the elements of the offenses
charged.33 The constitutional protection against double
jeopardy proceeds from a second prosecution for the same
offense, not for a different one.34
WHEREFORE, the petition is hereby DENIED. The June 18,
1999 decision of the Sandiganbayan in A.R. Case Nos. 004-
005 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Icdang vs. Sandiganbayan
Before us is a petition for certiorari under Rule 65 seeking to
reverse and set aside the Decision1 dated May 26, 2008 and
Resolution2 dated November 18, 2008 of the Sandiganbayan
(SB) (Second Division) which convicted petitioner of the
crime of malversation of public funds.
The factual antecedents:
Petitioner Marino B. Icdang, at the time of the transactions
subject of this controversy, was the Regional Director of the
Office for Southern Cultural Communities (OSCC) Region XII
in Cotabato City.
On January 19, 1998, a Special Audit Team was formed by the
Commission on Audit (COA) Regional Office XII, Cotabato City
pursuant to COA Regional Office Order No. 98-103 to conduct
comprehensive audit on the 1996 funds for livelihood
projects of the OSCC-Region XII. Hadji Rashid A. Mudag was
designated as team leader, with Jose Mercado, Myrla Fermin
and Evelyn Macala as members.
In its report submitted to the COA Regional Director, the audit
team noted that petitioner was granted cash advances which
remained unliquidated. In the cash examination conducted
by the team on March 10, 1998, it was discovered that
petitioner had a shortage of ₱219,392.75. Out of the total
amount of ₱920,933.00 released in September 1996 to their
office under sub-allotment advice No. COT-043, to cover the
implementation of various socio-economic projects for the
cultural communities of the region, cash advances amounting
to ₱407,000.00 were granted from October 1, 1996 to
February 5, 1997 to officials and employees including
petitioner. Per records, it was noted that ₱297,392.75 of
these cash advances remained unliquidated as of December
31, 1997.4
Petitioner never denied that he received a total of In the Audit Observation Memorandum No. 97-001 (March 18,
₱196,000.00 evidenced by disbursement vouchers and 1998) sent by the COA Region XII to the OSCC-Region XII
checks payable to him, as follows: reflecting the findings of the Special Audit Team, it was also
disclosed that: (1) Funds intended for programs for Ancestral
DV No. Check No. Date Purpose Amount Domain Claim Development and to support tribal
0988 893433 10/01/96 Initial funding for the cooperatives, were cash advanced, but the proposed projects
Ancestral Domain Development Program P50,000.00 were not implemented by the OSCC-Region XII; (2) No official
0989 893432 10/01/96 Establishment of ICC- IAD cashbooks are maintained to record cash advances and
50,000.00 disbursements from the 1996 funds allocated for livelihood
1150 916539 11/05/96 Support to Cooperative projects; and (3) Out of the total ₱920,933.00 allocated for
6,000.00 1996 livelihood projects, the amount of ₱445,892.80 was
0987 893429 10/01/96 Adult Literacy Program disbursed leaving a balance of ₱475,040.20; however, final
60,000.00 trial balance as of December 31, 1996 showed that the office
0986 893430 10/01/96 Child Care Development has exhausted the allocated funds for the whole year; the
Program 30,000.005 utilization of the ₱475,040.20 could not be explained by the
In addition, per the Schedule of Cash Advance Intended for Accountant so that it may be concluded that such was
Livelihood Projects,6 the following amounts were also for misappropriated. Petitioner indicated his comments on the
petitioner’s account: said memorandum by requesting for extension to restitute
the amount of ₱306,412.75 (which included the ₱67,000.00
Check No. Date Purpose Amount cash shortage of another OSCC-Region XII official, Ma. Teresa
xxxx A. Somorostro), and explaining that the ₱475,040.20 was not
893633 11/15/96 Operationalization of Tribal misappropriated as evidenced by their own financial report
Cooperative 11,000.00 and re-statement of allotment and obligation for the month
893768 12/13/96 Fishpen Development Program ending December 31, 1996.7
10,000.00
893788 12/20/96 Operationalization of Tribal From the field interviews conducted by the audit team, it was
Cooperative 5,000.00 also gathered that the intended projects covered by the cash
916634 02/05/97 Ancestral Domain Development advances were never implemented, such as the proposed
Program 10,000.00 Children Development Project in Bgy. Matila; adult literacy
[TOTAL CASH ADVANCES - P] 232,000.00 program in Cotabato; operationalization of tribal cooperative
in Bgy. Bantagan, Sultan Kudarat; and establishment of ICC-
IAD in Magpet, Cotabato where a complaint was made to the
effect that the OSCC-Region XII office allegedly upon receipt
of funds prepares a project for implementation which is
different from that project proposal submitted by the project
officer. Supposedly, there was likewise no support or
assistance given by the OSCC-Region XII to the activities of
the Provincial Special Task Force on Ancestral Domain for the
indigenous people of Columbio, Sultan Kudarat, and to Bgys.
Salumping, Municipality of Esperanza, President Roxas, and
Matrilala.8 And as already mentioned, the audit team
discovered that the accountable officers of OSCC-Region XII
failed to maintain the official cashbook so that there were no
recording of transactions whenever a cash advance was
granted; only subsidiary ledgers were used by the accounting
section.
From the ₱232,000.00 accountabilities of petitioner, the COA
deducted the following: ₱10,000.00 covered by
acknowledgment receipt by A. Anas; various cash invoices in
the amount of ₱2,197.25; and Reimbursement Expense
Receipts (RERs) in the amount of ₱410.00. After the cash
examination, petitioner was still found short of ₱219,392.75.9
Consequently, a demand letter was sent by the COA for
petitioner to immediately produce the missing funds. In his
letter-reply dated March 19, 1998, petitioner requested for
one-week extension to comply with the directive.10
However, the one-week period lapsed without compliance
having been made by petitioner. Hence, the audit team
recommended the initiation of administrative and criminal
charges against him, as well as Ms. Somorostro, Chief of the
Socio-Cultural Development Concerns Division of OSCC-
Region XII.
On September 21, 2000, the Office of the Ombudsman found
probable cause against petitioner and Ms. Somorostro for
violation of Art. 217 of the Revised Penal Code, as amended,
and Section 3(e) of Republic Act No. 3019 (Anti-Graft and
Corrupt Practices Act).
The Amended Information charging petitioner with the crime
of Malversation of Public Funds (Criminal Case No. 26327)
reads:
That during the period from October 1996 to February 1997
in Cotabato City, Philippines and within the jurisdiction of this
Honorable Court, accused Marino B. Icdang, a public officer
being then the Regional Director of the Office for Southern
Communities (OSCC), Region XII, Cotabato City and as such
is accountable officer for the public fund received by him that
were intended for the socio-economic and cultural
development projects of the OSCC Region XII, did then and
there willfully, unlawfully and feloniously take[,]
misappropriate, embezzle and convert for his own personal
use and benefit from the said fund the aggregate amount of
TWO HUNDRED NINETEEN THOUSAND THREE HUNDRED
NINETY-TWO PESOS AND 75/100 (P219,392.75) to the
damage and prejudice of the government in the aforesaid
sum.
CONTRARY TO LAW.11
Petitioner was likewise charged with violation of Section 3(e)
of R.A. No. 3019 (Criminal Case No. 26328).
The lone witness for the prosecution was Hadji Rashid A.
Mudag, State Auditor IV of COA Region XII. He presented
vouchers which they were able to gather during the cash
examination conducted on March 10, 1998, which showed
cash advances granted to petitioner, and in addition other
cash advances also received by petitioner for which he
remained accountable, duly certified by the Accountant of
OSCC-Region XII. Petitioner was notified of the cash shortage
through the Audit Observation Memorandum No. 97-001
dated March 18, 1998 and was sent a demand letter after
failing to account for the missing funds totalling
₱219,392.75.12
On cross-examination, witness Mudag admitted that while
they secured written and signed certifications from project
officers and other individuals during the field interviews,
these were not made under oath. The reports from Sultan
Kudarat were just submitted to him by his team members as
he was not present during the actual interviews; he had gone
only to Kidapawan, Cotabato and only prepared the audit
report. He also admitted that they no longer visited the
project sites after being told by the project officers that there
was nothing to be inspected because no project was
implemented.13
On May 26, 2008, the SB’s Second Division rendered its
decision convicting petitioner of malversation and acquitting
him from violation of Section 3(e) of R.A. No. 3019. The
dispositive portion reads:
WHEREFORE, premises considered judgment is hereby
rendered finding accused MARINO B. ICDANG Guilty beyond
reasonable doubt of Malversation of Public Funds or Property
in Criminal Case No. 26327 and finding in his favor the
mitigating circumstance of voluntary surrender, is hereby
sentenced to an indeterminate penalty of, considering the
amount involved, TEN (10) YEARS and ONE (1) DAY of
PRISION MAYOR as minimum to EIGHTEEN (18) YEARS, EIGHT
(8) MONTHS and ONE (1) DAY of Reclusion Temporal as
maximum, to suffer the penalty of perpetual special
disqualification, and to pay a fine of P196,000.00 without
subsidiary imprisonment in case of insolvency.
He is also ordered to reimburse the government of the said
amount.
In Criminal Case No. 26328, he is hereby ACQUITTED on the
basis of reasonable doubt.
With cost against accused.
SO ORDERED.14
The SB ruled that the prosecution has established the guilt of
petitioner beyond reasonable doubt for the crime of
malversation of public funds, the presumption from his failure
to account for the cash shortage in the amount of
₱232,000.00 remains unrebutted. As to the reasons given by
petitioner for non-compliance with the COA demand, the SB
held:
A careful perusal of Mr. Icdang’s Letter-Answer dated 19
March 1998 (Exh. "J") to the demand letter and directive
issued by the COA clearly shows he was just asking for
extension of time to comply with the demand letter. There
was virtually no denial on his part that he received the
P232,000.00 amount earmarked for the various government
projects. His reasons were first, the committee tasked to
prepare the liquidation of the cash advances are still in the
process of collecting all the documents pertinent to the
disbursement of the project funds; and second, the payees to
the disbursements were still to be notified so that they will
have to come to the office to affix their signatures as payees
to the liquidation vouchers.
This response is queer because as he gave the money to the
supposed payees, he should have kept a ledger to keep track
of the same, considering that these are public funds. More
importantly, Mr. Icdang was given ample opportunity to
dispute the COA findings that there was indeed a shortage.
Instead of doing so, Mr. Icdang never presented the promised
proof of his innocence before this Court during the trial of this
case. Thus, the prima facie presumption under Article 217 of
the Revised Penal Code, that the failure of a public officer to
have duly forthcoming the public funds with which he is
chargeable, upon demand, shall be evidence that he put the
missing funds for personal uses, arises because first, there
was no issue as to the accuracy, correctness and regularity of
the audit findings and second, the funds are missing.15
1avvphi1
Petitioner filed a motion for reconsideration requesting that
he be given another chance to present his evidence, stating
that his inability to attend the trial were due to financial
constraints such that even when some of the scheduled
hearings were sometimes held in Davao City and Cebu City,
he still failed to attend the same. However, the SB denied the
motion noting that the decision has become final and
executory on June 10, 2008 for failure of petitioner to file a
motion for reconsideration, or new trial, or appeal before that
date.
Hence, this petition anchored on the following grounds:
I. THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE
ABUSE OF DISCRETION TANTAMOUNT TO LACK OR EXCESS OF
JURISDICTION WHEN IT RENDERED ITS JUDGMENT OF
CONVICTION AGAINST PETITIONER DESPITE ITS KNOWLEDGE
THAT PETITIONER WAS NOT ABLE TO ADDUCE HIS EVIDENCE
DUE TO VARIOUS CIRCUMSTANCES, THAT HE WAS NOT
ASSISTED BY COUNSEL DURING THE PROMULGATION OF
JUDGMENT; THE GROSS AND RECKLESS NEGLIGENCE OF HIS
FORMER COUNSEL IN FAILING TO ASSIST HIM DURING THE
PROMULGATION; HIS FINANCIAL AND ECONOMIC
DISLOCATION WHICH MADE HIM UNABLE TO ATTEND THE
SCHEDULED TRIALS IN MANILA, DAVAO CITY AND CEBU CITY,
HIS RESIDENCE BEING IN COTABATO, WHICH ALL
CONSTITUTE A DENIAL OF HIS RIGHT TO BE HEARD AND TO
DUE PROCESS.
II. PETITIONER WAS LIKEWISE CLEARLY DENIED OF HIS RIGHT
TO DUE PROCESS WHEN DUE TO THE RECKLESS AND GROSS
NEGLIGENCE OF HIS FORMER COUNSEL, THE LATTER FAILED
TO FILE A MOTION FOR NEW TRIAL TO REVERSE THE
JUDGMENT OF CONVICTION BEFORE THE SANDIGANBAYAN
OR TO FILE AN APPEAL TO THE SUPREME COURT FROM THE
ADVERSE JUDGMENT OF CONVICTION.
III. IT IS HIGHLY UNJUST, INEQUITABLE AND
UNCONSCIONABLE FOR PETITIONER TO BE PRESENTLY
LANGUISHING IN JAIL WITHOUT HIS DEFENSE AGAINST THE
CRIME CHARGED HAVING BEEN PRESENTED BEFORE THE
HONORABLE SANDIGANBAYAN AND APPRECIATED BY THE
SAID COURT, AND BY THIS HONORABLE SUPREME COURT IN
CASE OF APPEAL FROM AN ADVERSE DECISION.
IV. REMAND OF THE INSTANT CASE TO THE COURT OF
ORIGIN, OR TO THE HONORABLE SANDIGANBAYAN SO THAT
PETITIONER CAN PRESENT HIS EVIDENCE BEFORE SAID
COURT, ASSISTED BY NEW COUNSEL, IS PROPER AND
JUSTIFIED, ESPECIALLY CONSIDERING THAT THE INSTANT
CASE INVOLVES A CRIME OF ALLEGED MALVERSATION OF
PUBLIC FUNDS WHICH HE NEVER COMMITTED, AND INVOLVES
A HIGHER PENALTY OR TERM OF IMPRISONMENT.16
The petition must fail.
At the outset it must be emphasized that the special civil
action of certiorari is not the proper remedy to challenge a
judgment conviction rendered by the SB. Petitioner should
have filed a petition for review on certiorari under Rule 45.
Pursuant to Section 7 of Presidential Decree No. 1606,17 as
amended by Republic Act No. 8249, decisions and final orders
of the Sandiganbayan shall be appealable to the Supreme
Court by petition for review on certiorari raising pure
questions of law in accordance with Rule 45 of the Rules of
Court. Section 1 of Rule 45 of the Rules of Court provides that
"[a] party desiring to appeal by certiorari from a judgment,
final order or resolution of the x x x Sandiganbayan x x x
whenever authorized by law, may file with the Supreme
Court a verified petition for review on certiorari. The petition
x x x shall raise only questions of law, which must be
distinctly set forth." Section 2 of Rule 45 likewise provides
that the petition should be filed within the fifteen-day period
from notice of the judgment or final order or resolution, or of
the denial of petitioner’s motion for reconsideration filed in
due time after notice of judgment.
As observed by the SB, the 15-day period of appeal, counted
from the date of the promulgation of its decision on May 26,
2008, lapsed on June 10, 2008, which rendered the same
final and executory. Petitioner’s motion for reconsideration
was thus filed 6 days late. Petitioner’s resort to the present
special civil action after failing to appeal within the fifteen-
day reglementary period, cannot be done. The special civil
action of certiorari cannot be used as a substitute for an
appeal which the petitioner already lost.18
This Court has often enough reminded members of the bench
and bar that a special civil action for certiorari under Rule 65
lies only when there is no appeal nor plain, speedy and
adequate remedy in the ordinary course of law. Certiorari is
not allowed when a party to a case fails to appeal a judgment
or final order despite the availability of that remedy. The
remedies of appeal and certiorari are mutually exclusive and
not alternative or successive.19 Appeals though filed late
were allowed in some rare cases, but there must be
exceptional circumstances to justify the relaxation of the
rules.
Petitioner claims that his right to due process was violated
when his counsel failed to assist him during the promulgation
of the judgment. He faults the Sandiganbayan for proceeding
with the promulgation despite the petitioner not then being
assisted by his counsel, and being a layman he is not familiar
with court processes and procedure.
Section 6, Rule 120 of the Revised Rules of Criminal
Procedure, as amended, provides:
SEC. 6. Promulgation of judgment. -- The judgment is
promulgated by reading it in the presence of the accused and
any judge of the court in which it was rendered. However, if
the conviction is for a light offense, the judgment may be
pronounced in the presence of his counsel or representative.
When the judge is absent or outside the province or city, the
judgment may be promulgated by the clerk of court.
If the accused is confined or detained in another province or
city, the judgment may be promulgated by the executive
judge of the Regional Trial Court having jurisdiction over the
place of confinement or detention upon request of the court
which rendered the judgment. The court promulgating the
judgment shall have authority to accept the notice of appeal
and to approve the bail bond pending appeal; provided, that
if the decision of the trial court convicting the accused
changed the nature of the offense from non-bailable to
bailable, the application for bail can only be filed and
resolved by the appellate court.
The proper clerk of court shall give notice to the accused
personally or through his bondsman or warden and counsel,
requiring him to be present at the promulgation of the
decision. If the accused was tried in absentia because he
jumped bail or escaped from prison, the notice to him shall
be served at his last known address.
In case the accused fails to appear at the scheduled date of
promulgation of judgment despite notice, the promulgation
shall be made by recording the judgment in the criminal
docket and serving him a copy thereof at his last known
address or thru his counsel.
If the judgment is for conviction and the failure of the
accused to appear was without justifiable cause, he shall lose
the remedies available in these Rules against the judgment
and the court shall order his arrest. Within fifteen (15) days
from promulgation of judgment, however, the accused may
surrender and file a motion for leave of court to avail of these
remedies. He shall state the reasons for his absence at the
scheduled promulgation and if he proves that his absence
was for a justifiable cause, he shall be allowed to avail of said
remedies within fifteen (15) days from notice. (Emphasis
supplied.)
There is nothing in the rules that requires the presence of
counsel for the promulgation of the judgment of conviction to
be valid. While notice must be served on both accused and
his counsel, the latter’s absence during the promulgation of
judgment would not affect the validity of the promulgation.
Indeed, no substantial right of the accused on the merits was
prejudiced by such absence of his counsel when the sentence
was pronounced.20
It is worth mentioning that petitioner never raised issue on
the fact that his counsel was not around during the
promulgation of the judgment in his motion for
reconsideration which merely prayed for reopening of the
case to enable him to present liquidation documents and
receipts, citing financial constraints as the reason for his
failure to attend the scheduled hearings. Before this Court he
now submits that the gross negligence of his counsel
deprived him of the opportunity to present defense evidence.
Perusing the records, we find that the prosecution made a
formal offer of evidence on August 30, 2002. At the
scheduled presentation of defense evidence on September 4,
2002, petitioner’s counsel, Atty. Manuel E. Iral, called the
attention of the SB to the fact that he had just received a
copy of said formal offer, and requested for 15 days to
submit his comment thereon. The SB granted his request and
set the case for hearing on December 2 and 3, 2002.21 No
such comment had been filed by Atty. Iral. On November 18,
2002, due to difficulty in securing a quorum with five existing
vacancies in the court, the SB thus reset the hearing to April
21 and 22, 2003.22 On January 14, 2003, the SB’s Second
Division issued a resolution admitting Exhibits "A" to "N" after
the defense failed to submit any comment to the formal offer
of the prosecution, and stating that the previously scheduled
hearings on April 21 and 22, 2003 shall proceed.23 On April
11, 2003, the SB for the same reason again reset the hearing
dates to August 11 and 12, 2003.24
At the scheduled initial presentation of defense evidence on
August 11, 2003, only petitioner appeared informing that
when he passed by that morning to his counsel’s residence,
the latter was ill and thus requested for postponement.
Without objection from the prosecution and on condition that
Atty. Iral will present a medical certificate within five days,
the SB reset the hearing to October 16 and 17, 2003. The SB
also said that if by the next hearing petitioner is not yet
represented by his counsel, said court shall appoint a counsel
de oficio in the person of Atty. Wilfredo C. Andres of the
Public Attorney’s Office.25 However, on October 16, 2003,
the SB received a letter from petitioner requesting for
postponement citing the untimely death of his nephew and
swelling of his feet due to arthritis. He assured the court of
his attendance in the next hearing it will set at a later
date.26 Accordingly, the SB reset the hearings to February 12
and 13, 2004.27 On February 4, 2004, the SB again received
a letter from petitioner requesting another postponement for
medical (arthritis) and financial (lack of funds for
attorney’s/appearance fee) reasons. He assured the court of
his availability after the May 10, 2004 elections.28 This time,
the SB did not grant the request and declared the case
submitted for decision on the basis of the evidence on
record.29
On March 30, 2004, Atty. Iral filed an Urgent Motion for
Reconsideration of the February 12, 2004 order submitting
the case for decision, citing circumstances beyond his control
– the fact that he had no means to come to Manila from
Kidapawan, North Cotabato, he being jobless for the past four
years. He thus prayed to be allowed to present his evidence
on May 17 and 18, 2004.30 The prosecution opposed said
motion, citing two postponements in which petitioner’s
counsel have not submitted the required medical certificate
and explanation and failure to be present on October 16,
2003.31
In the interest of justice, the SB reconsidered its earlier order
submitting the case for decision and gave the petitioner a
last chance to present his evidence on August 17 to 18,
2004.32 On August 17, 2004, Atty. Iral appeared but
requested that presentation of evidence be postponed to the
following day, which request was granted by the SB.33 The
next day, however, only petitioner appeared saying that his
lawyer is indisposed. Over the objection of the prosecution
and in the supreme interest of justice, the SB cancelled the
hearing and rescheduled it to November 15 and 16, 2004.
Atty. Iral was directed to submit a verified medical certificate
within 10 days under pain of contempt, and the SB likewise
appointed a counsel de oficio in the person of Atty. Roberto C.
Omandam who was directed to be ready at the scheduled
hearing in case petitioner’s counsel is not ready, stressing
that the court will no longer grant any postponement. Still,
petitioner was directed to secure the services of another
counsel if Atty. Iral is not available.34 With the declaration by
Malacañang that November 15, 2004 is a special non-working
holiday, the hearing was reset to November 16, 2004 as
previously scheduled.35
On November 16, 2004, Atty. Iral appeared but manifested
that he has no witness available. Over the objection of the
prosecution, hearing was reset to March 14 and 15, 2005.
Atty. Iral agreed to submit the case for decision on the basis
of prosecution evidence in the event that he is unable to
present any witness on the aforesaid dates.36 On March 14,
2005, the SB again reset the hearing dates to May 26 and 27,
2005 for lack of material time.37 However, at the scheduled
hearing on May 26, 2005, petitioner manifested to the court
that Atty. Iral was rushed to the hospital having suffered a
stroke, thereupon the hearing was rescheduled for
September 21 and 22, 2005 with a directive for Atty. Iral to
submit a verified medical certificate.38 On September 22,
2005, Atty. Iral appeared but again manifested that he has no
witness present in court. On the commitment of Atty. Iral that
if by the next hearing he still fails to present their evidence
the court shall consider them to have waived such right, the
hearing was reset to February 8 and 9, 2006.39 However, on
February 9, 2006, the defense counsel manifested that he
has some other commitment in another division of the SB
and hence he is constrained to seek cancellation of the
hearing. Without objection from the prosecution and
considering that the intended witness was petitioner himself,
the SB reset the hearing to April 17 and 18, 2006, which
dates were later moved to August 7 and 8, 2006.40 On
August 7, 2006, over the objection of the prosecution, the SB
granted the motion for postponement by the defense on the
ground of lack of financial capacity. The hearing was for the
last time reset to October 17 and 18, 2006, which date was
later changed to October 11 and 12, 2006.41
On October 11, 2006, on motion of the prosecution, the SB
resolved that the cases be submitted for decision for failure
of the defense to appear and present their evidence, and
directed the parties to present their respective memoranda
within 30 days.42 As only the prosecution submitted a
memorandum, the SB declared the cases submitted for
decision on August 24, 2007.43 Petitioner and his counsel
were duly notified of the promulgation of decision, originally
scheduled on February 28, 2008 but was moved to March 27,
2008 in view of the absence of petitioner and the Handling
Prosecutor.44 On that date, however, on motion of Atty. Iral,
the promulgation was postponed to April 14, 2008.45 On
April 14, 2008, both petitioner and his counsel failed to
appear, but since the notice to petitioner was sent only on
April 3, 2008, the SB finally reset the promulgation of
judgment to May 26, 2008.46 While supposedly absent
during the promulgation, records showed that Atty. Iral
personally received on the same date a copy of the
decision.47
The foregoing shows that the defense was granted ample
opportunity to present their evidence as in fact several
postponements were made on account of Atty. Iral’s health
condition and petitioner’s lack of financial resources to cover
transportation costs. The SB exercised utmost leniency and
compassion and even appointed a counsel de oficio when
petitioner cited lack of money to pay for attorney’s fee. In
those instances when either petitioner or his counsel was
present in court, the following documentary evidence listed
during the pre-trial, allegedly in the possession of petitioner,
and which he undertook to present at the trial, were never
produced in court at any time: (1) Liquidation Report by
petitioner; (2) Certification of Accountant Zamba Lajaratu of
the National Commission on Indigenous People, Region XII,
Cotabato City; and (3) Different Certifications by project
officers and barangay captains.48 If indeed these documents
existed, petitioner could have readily submitted them to the
court considering the length of time he was given to do so.
The fact that not a single document was produced and no
witness was produced by the defense in a span of 4 years
afforded them by the SB, it can be reasonably inferred that
petitioner did not have those evidence in the first place.
The elements of malversation of public funds are:
that the offender is a public officer;
that he had the custody or control of funds or property by
reason of the duties of his office;
that those funds or property were public funds or property for
which he was accountable; and
that he appropriated, took, misappropriated or consented or,
through abandonment or negligence, permitted another
person to take them.49
There is no dispute on the existence of the first three
elements; petitioner admitted having received the cash
advances for which he is accountable. As to the element of
misappropriation, indeed petitioner failed to rebut the legal
presumption that he had misappropriated the said public
funds to his personal use, notwithstanding his
unsubstantiated claim that he has in his possession
liquidation documents. The SB therefore committed neither
reversible error nor grave abuse of discretion in convicting
the petitioner of malversation for failure to explain or account
for his cash shortage by any liquidation or supporting
documents. As this Court similarly ruled in one case50 :
In the crime of malversation, all that is necessary for
conviction is sufficient proof that the accountable officer had
received public funds, that he did not have them in his
possession when demand therefor was made, and that he
could not satisfactorily explain his failure to do so. Direct
evidence of personal misappropriation by the accused is
hardly necessary as long as the accused cannot explain
satisfactorily the shortage in his accounts.
In convicting petitioner, the Sandiganbayan cites the
presumption in Article 217, supra, of the Revised Penal Code,
i.e., the failure of a public officer to have duly forthcoming
any public funds or property with which he is chargeable,
upon demand by any duly authorized officer, is prima facie
evidence that he has put such missing fund or property to
personal uses. The presumption is, of course, rebuttable.
Accordingly, if the accused is able to present adequate
evidence that can nullify any likelihood that he had put the
funds or property to personal use, then that presumption
would be at an end and the prima facie case is effectively
negated. This Court has repeatedly said that when the
absence of funds is not due to the personal use thereof by
the accused, the presumption is completely destroyed; in
fact, the presumption is never deemed to have existed at all.
In this case, however, petitioner failed to overcome this
prima facie evidence of guilt.
There is grave abuse of discretion where the public
respondent acts in a capricious, whimsical, arbitrary or
despotic manner in the exercise of its judgment as to be
equivalent to lack of jurisdiction. The abuse of discretion
must be so 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 or hostility.51 Under the facts on record, we
find no grave abuse of discretion on the part of the SB when
it submitted the case for decision and rendered the judgment
of conviction on the basis of the prosecution evidence after
the defense failed to present its evidence despite ample
opportunity to do so.
WHEREFORE, the petition is DISMISSED. The Decision
promulgated on May 26, 2008 and Resolution issued on
November 18, 2008 by the Sandiganbayan in Criminal Case
No. 26327 are AFFIRMED.
With costs against the petitioner.
SO ORDERED.
Mesina vs. People
On July 9, 1998, an information was filed in the RTC charging
the petitioner with qualified theft. Upon his motion, he was
granted a reinvestigation. On September 17, 1998, after the
reinvestigation, an amended information was filed charging
him instead with malversation of public funds, the amended
information alleging thusly:chanRoblesvirtualLawlibrary
That on or about the 6th day of July 1998, in Caloocan City,
Metro Manila, and within the jurisdiction of this Honorable
Court, the said above-named accused, being then an
employee of [the] City Treasurer’s Office, Caloocan City, and
acting as Cashier of said office, and as such was accountable
for the public funds collected and received by him (sic)
reason of his position, did then and there willfully, unlawfully
and feloniously misappropriated, misapplied and embezzled
and convert to his own personal use and benefit said funds in
the sum of P167,876.90, to the damage and prejudice of the
City Government of Caloocan in the aforementioned amount
of P167,876.90.
CONTRARY TO LAW.3
The CA adopted the RTC’s summary of the facts, as
follows:chanRoblesvirtualLawlibrary
x x x that in the afternoon of July 6, 1998 between 1:00 and
2:00 o’clock, herein accused Bernardo Mesina then Local
Treasurer Officer I of the Local Government of Caloocan City
went to the so called Mini City Hall located at Camarin Road,
District I, Caloocan City for purposes of collection. While
thereat, Ms. Rosalinda Baclit, Officer-In-Charge of collection
at said office, turned over/remitted to Mesina the weeks’
collection for the period covering the month of June 1998
representing, among others, the Market Fees’ collection,
Miscellaneous fees, real property taxes, Community Tax
Receipts (cedula) and the ‘Patubig’ (local water system)
collection all amounting to P468,394.46 (Exhs. ‘K’ and ‘K-2’,
‘L’ – ‘L-2’, ‘M’, ‘M-2’, ‘N’ – ‘N-2’, ‘O’ – ‘O-2’, ‘P’ – ‘P-2’, ‘Q’ – ‘Q-
2’, ‘R’, ‘R-2’, ‘S’ – ‘S-2’, ‘T’ – ‘TO-2’, ‘U’ – ‘U-2’, ‘V’ – ‘V-2’, ‘W’,
‘W-2’, ‘X’ – ‘X-2’, and ‘Y’ – ‘Y-2’). After counting the cash
money, the (sic) were bundled and placed inside separate
envelopes together with their respective liquidation
statements numbering about thirteen (13) pieces signed by
both Ms. Irene Manalang, OIC of the Cash Receipt Division,
and herein accused Mesina acknowledging receipt and
collection thereof (Exhs, ‘K-1’, ‘M-3’, ‘N-3’, ‘P-3’, ‘Q-3’, ‘R-3’,
T-3’, ‘U-3’, ‘V-3’, ‘W-3’, ‘X-3’, and ‘Y-3’). Thereafter, Bernardo
Mesina together with his driver left the Mini City Hall and
proceeded to City Hall Main.
Later that same afternoon, Ms. Baclit received several phone
calls coming from the Main City Hall. At around 3:00 o’clock,
Mrs. Josie Sanilla, secretary of City Treasurer Carolo V. Santos,
called up the Mini City Hall confirming the collection of the
‘Patubig’ by Mr. Bernardo Mesina. Thirty (30) minutes
thereafter, Mrs. Elvira Coleto, Local Treasurer Operation
Officer II of the Main City Hall called up to inform Ms. Baclit
that the supposed ‘Patubig’ collection amounting to
P167,870.90 (Exh. ‘K-2’) was not remitted. Also, Bernardo
Mesina phoned Ms. Baclit telling the latter that he did not
receive the ‘Patubig’ collection. Alarmed by these telephone
calls she just received, Ms. Baclit then immediately consulted
the documents/liquidation statements supposedly signed by
Mesina acknowledging receipt and collection thereof,
however, all efforts to locate and retrieved (sic) these records
proved futile at that moment.
Meanwhile, City Treasurer Carolo V. Santos, after having been
informed by Mrs. Irene Manalang of the discrepancy in the
collection, summoned both Ms. Baclit and Bernardo Mesina to
his office at the Main City Hall for an inquiry relative to the
missing P167,870.90 ‘Patubig’ collection. And as the two (2),
Baclit and Mesina, insisted on their respective versions
during said confrontation, City Treasurer Santos, in the
presence of the Chief of the Cash Disbursement Division,
Administrative Officers and Local Treasurer’s Operation
Officer II Mrs. Coleto, then ordered Mesina’s vault sealed
pending further investigation.
The following morning July 7, 1998, Caloocan City Mayor
Reynaldo O. Malonzo called for an immediate probe of the
matter. Present during the investigation at the Mayor’s Office
were Ms. Baclit, accused Bernardo Mesina, City Auditor Chito
Ramirez, City Treasurer Santos as well as the representative
from the different offices concerned. Again, when asked by
Mayor Malonzo as to whether or not [t]he ‘Patubig’ collection
was collected and/or remitted, Mesina stood fast in his denial
of having received the same; Ms. Baclit on the other hand
positively asserted the remittance and collection thereof by
Bernardo Mesina.
Thereafter, they all proceeded to the cashier’s room where
Mesina had his safe and thereat, in the presence of COA
State Auditor III Panchito Fadera, Cashier IV-CTO Fe. F.
Sanchez, Administrative Officer IV Lourdes Jose, LTOO II Elvira
M. Coleto, accused Bernardo Mesina and LTOO II Rosalinda
Baclit, Mesina’s vault was opened and a cash count and/or
physical count of the contents thereof was conducted. Found
inside were the following, to wit: 1) coins amounting to
P107.15; 2) coins amounting to P50.47; 3) coins amounting
to P127.00; 4) coins amounting to P64.10; 5) cash with tape
amounting to P770.00; 6) spoiled bills amounting to P440.00;
7) bundled bills amounting to P20,500.00. Also found inside
were the Report of Collection by the Liquidating Officer
(RCLO) in the amount of P123,885.55 as well as the original
and duplicate copies of the daily sum of collections of
accountable form under the name of one Racquel Ona dated
March 31, 1998 amounting to P123,885.55 (six (6) copies of
vales/chits) Exhs. ‘Z’, ‘Z-1’ and ‘Z-2’). In addition thereto, the
cash amount of P67,900.00 then withheld by the City Cashier
pending this investigation, was turned over to the said
auditing team, thus, the total cash money audited against
accused Mesina amounted to P89,965.72 (sic) (Exhs. ‘BB’
and ‘BB-1’).
In the afternoon of July 7, 1998, at about 5:00 o’clock, Mses.
Rosalinda Baclit and Maria Luisa Canas all went to the SID
Caloocan City Police Station to have their separate sworn
statements taken (Exhs. ‘E’, ‘E-1’, ‘D’, ‘D-1’, ‘F’, and ‘F-1’).
Mmes. Lorna Palomo-Cabal, Divina Dimacali-Sarile and
Victoria Salita Vda. De Puyat likewise executed a joint sworn
affidavit (Exhs. ‘G’, ‘G-1’, ‘G-2’, and ‘G-3’) in preparation for
the filing of appropriate criminal charge against Bernardo
Mesina.
The following day, July 8, 1998, Mamerto M. Manahan,
Panchito Fadera and Carolo V. Santos also executed their
respective affidavits in relation to the incidents at bar (Exhs.
‘A’, ‘A-1’, ‘A-2’; Exhs. ‘B’, and ‘B-1’; Exhs. ‘C’, and ‘C-1’).
Meanwhile, the statement of collection supposedly signed by
accused Mesina was finally recovered at Rosalinda Baclit’s
desk hidden under a pile of other documents. (Rollo, pp. 74-
75)4
The Defense presented the oral testimony of the petitioner
and documentary evidence.5 He admitted collecting the total
amount of P468,394.46 from Baclit, including the subject
patubig collection totaling to P167,976.90, but adamantly
denied misappropriating, misapplying, and embezzling the
patubig collection, maintaining that the patubig collection
was found complete in his vault during the inspection. He
explained that he deliberately kept the collection in his vault
upon learning that his wife had suffered a heart attack and
had been rushed to the hospital for immediate medical
treatment. He believed that he did not yet need to remit the
amount to the OIC of the Cash Receipt Division because it
was still to be re-counted. He claimed that when he returned
to the Main City Hall that same day his vault was already
sealed.6 He said that the accusation was politically
motivated. In support of his claim of innocence, he cited his
numerous awards and citations for honesty and dedicated
public service.7chanrobleslaw

On November 8, 2001, the RTC found the petitioner guilty
beyond reasonable doubt of the crime of malversation,
disposing:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, this Court finds the
accused BERNARDO MESINA Y UMALI guilty beyond
reasonable doubt of the crime of Malversation as defined and
penalized under Article 217 paragraph 4 of the Revised Penal
Code and hereby sentences him to suffer an indeterminate
penalty of twelve (12) years and one (1) day of prision mayor
as minimum to twenty (20) years of reclusion temporal as
maximum.
The Court further imposes a penalty of perpetual
disqualification to hold public office and a fine of P167,876.90
upon the accused.
SO ORDERED.8
On July 24, 2003, the CA affirmed the RTC’s decision, with
modification as to the amount of fine imposed,9
decreeing:chanRoblesvirtualLawlibrary
WHEREFORE, foregoing premises considered, the Decision
dated November 8, 2001 of the Regional Trial Court, Branch
120, Caloocan City in Criminal Case No. C-54217 is affirmed
with modification in the sense that the fine is reduced from
P167,876.98 to P37,876.98. Costs against accused-appellant.
SO ORDERED.
Issues
In his appeal, the petitioner submits for consideration the
following:chanRoblesvirtualLawlibrary
WHETHER THE COURT OF APPEALS ERRED IN AFFIRMING
WITH MODIFICATION THE CONVICTION OF PETITIONER
ACCUSED-APPELLANT OF THE CRIME OF MALVERSATION
NOTWITHSTANDING THAT:
it had admitted in evidence the testimony of prosecution
witness ELVIRA COLITO that she saw, when accused-
appellant’s vault was opened, to have seen (sic) the bundles
of the missing Patubig collections of more than Ps130,000.00
(sic), and thus, in effect, there was no misappropriation, as
one of the elements of the crime of malversation;
that it erred and completely misapprehended and failed to
appreciate the true meaning of the testimony of the said
witness of seeing inside the vault more than Ps130,000.00 in
bundles by treating/and/or (sic) appreciating the same as
exactly Ps130,000.00 flat without appreciating the words
more than, thus guilty of erroneous inference surmises and
conjectures;
that it overlooked and completely disregarded that inside the
vault was the sum of Ps20,500.00 in bundles also [Exh. “BB
and B-1”] regarding contents of the vault or the total sum of
Ps22,065.72 testified to by Panchito Madera (sic), Head of the
Audit Team;
the Court of Appeals gravely erred to surmise and at least
look on the lack from the lists of inventories of the vault the
more than Ps130,000.00 in bundles and why it was not listed
among the moneys found inside the accused-appellant’s
vault;
doubts and inconsistencies existing threrefrom shall
remained (sic) favorable to the accused-appellant pursuant
to applicable jurisprudence;
THAT THE COURT OF APPEALS ERRED ON A (SIC) QUESTIONS
OF LAW, THAT THE INVESTIGATION CONDUCTED BY THE
GROUP OF MAYOR MALONZO, THE TREASURER, THE
ADMINISTRATOR, THE CITY AUDITOR, CHIEF OF DIVISIONS
AND THE AUDIT PROCEEDINGS ARE NULL AND VOID DUE:
Accused-appellant was not informed of his constitutional
right to assistance of counsel as mandated by the
Constitution;
The audit proceedings did not comply strictly with the Manual
of Instructions to Treasurers and Auditors and other
Guidelines, thus null and void;
Thus, the presumption of juris tantum in Art. 127 of the
Revised Penal Code is overcome firmly supported by the
discovery of the missing money and further the conclusions
of the Court of Appeals was against established jurisprudence
enunciated in the case of TINGA vs. PEOPLE OF THE
PHILIPPINES, No. L-57650, [160 SCRA 483];
WHETHER THE COURT OF APPEALS WAS FATALLY WRONG IN
NOT APPLYING EVIDENCE OF GOOD MORAL CHARACTER TO
ACQUIT AND EXONERATE PETITIONER ACCUSED-APPELLANT
IN VIOLATION OF RULE 130, SEC. 46, OF THE RULES OF
COURT.
Notwithstanding, not only are the evidence weak, but its
findings or discovery of more than Ps130,000.00 inside the
vault is subject to double interpretations, and/or double
alternative or probabilities, thus the presumption of
innocence will be adopted.10
Ruling of the Court
The appeal has no merit.
The crime of malversation of public funds charged herein is
defined and penalized under Article 217 of the Revised Penal
Code, as amended, as follows:chanRoblesvirtualLawlibrary
Article 217. Malversation of public funds or property. –
Presumption of malversation. – Any public officer who, by
reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same, or shall take or
misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public
funds or property, wholly or partially, or shall otherwise be
guilty of the misappropriation or malversation of such funds
or property shall suffer:ChanRoblesVirtualawlibrary
xxxx
4. The penalty of reclusion temporal in its medium and
maximum periods, if the amount involved is more than
twelve thousand pesos but is less than twenty-two thousand
pesos. If the amount exceeds the latter, the penalty shall be
reclusion temporal in its maximum period to reclusion
perpetua.
In all cases, persons guilty of malversation shall also suffer
the penalty of perpetual special disqualification and a fine
equal to the amount of the funds malversed or equal to the
total value of the property embezzled.
The failure of a public officer to have duly forthcoming any
public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be prima facie
evidence that he has put such missing funds or property to
personal use. (As amended by R.A. No. 1060)
The crime of malversation of public funds has the following
elements, to wit: (a) that the offender is a public officer; (b)
that he had the custody or control of funds or property by
reason of the duties of his office; (c) that the funds or
property were public funds or property for which he was
accountable; and (d) that he appropriated, took,
misappropriated or consented or, through abandonment or
negligence, permitted another person to take
them.11chanrobleslaw
The elements of the crime charged were duly established
against the petitioner.
The Prosecution proved, firstly, that the petitioner was a
public officer with the position of Local Treasurer Officer I of
Caloocan City; secondly, that by reason of his position, he
was tasked to collect fees and taxes regularly levied by the
Mini City Hall, including market fees, miscellaneous fees, real
property taxes, and the subject patubig collection; and,
thirdly, that all of the fees and taxes collected were
unquestionably public funds for which he was accountable.
As to the fourth element of misappropriation, the petitioner
did not rebut the presumption that he had misappropriated
the patubig collection to his personal use. He had earlier
feigned ignorance of having received the patubig collection
when he phoned Ms. Baclit to tell her that he did not receive
the collection. He still insisted that he had not received the
sum from Ms. Baclit when the City Treasurer summoned them
both. His denial continued until the next day when City Mayor
Malonzo himself asked them both about the matter. Only
after the petitioner’s vault was finally opened did he declare
that the collection was intact inside his vault. Even then, the
actual amount found therein was short by P37,876.98.
Conformably with Article 217 of the Revised Penal Code,
supra, the failure of the petitioner to have the patubig
collection duly forthcoming upon demand by the duly
authorized officer was prima facie evidence that he had put
such missing fund to personal use. Although the showing was
merely prima facie, and, therefore, rebuttable, he did not
rebut it, considering that he not only did not account for the
collection upon demand but even steadfastly denied having
received it up to the time of the inspection of the sealed
vault. Under the circumstances, he was guilty of the
misappropriation of the collection.
Malversation is committed either intentionally or by
negligence. The dolo or the culpa is only a modality in the
perpetration of the felony. Even if the mode charged differs
from the mode proved, the same offense of malversation is
still committed; hence, a conviction is proper.12 All that is
necessary for a conviction is sufficient proof that the accused
accountable officer had received public funds or property,
and did not have them in his possession when demand
therefor was made without any satisfactory explanation of his
failure to have them upon demand. For this purpose, direct
evidence of the personal misappropriation by the accused is
unnecessary as long as he cannot satisfactorily explain the
inability to produce or any shortage in his accounts.13
Accordingly, with the evidence adduced by the State being
entirely incompatible with the petitioner’s claim of innocence,
we uphold the CA’s affirmance of the conviction, for, indeed,
the proof of his guilt was beyond reasonable doubt.
The petitioner bewails the deprivation of his constitutionally
guaranteed rights during the investigation. He posits that a
custodial investigation was what really transpired, and insists
that the failure to inform him of his Miranda rights rendered
the whole investigation null and void.
We disagree with the petitioner’s position.
According to People v. Marra,14 custodial investigation
involves any questioning initiated by law enforcement
authorities after a person is taken into custody or otherwise
deprived of his freedom of action in any significant manner.
The safeguards during custodial investigation begin to
operate as soon as the investigation ceases to be a general
inquiry into a still unsolved crime, and the interrogation is
then focused on a particular suspect who has been taken into
custody and to whom the police would then direct
interrogatory questions that tend to elicit incriminating
statements. The situation contemplated is more precisely
described as one where –
After a person is arrested and his custodial investigation
begins a confrontation arises which at best may be termed
unequal. The detainee is brought to an army camp or police
headquarters and there questioned and cross-examined not
only by one but as many investigators as may be necessary
to break down his morale. He finds himself in a strange and
unfamiliar surrounding, and every person he meets he
considers hostile to him. The investigators are well-trained
and seasoned in their work. They employ all the methods and
means that experience and study has taught them to extract
the truth, or what may pass for it, out of the detainee. Most
detainees are unlettered and are not aware of their
constitutional rights.
And even if they were, the intimidating and coercive
presence of the officers of the law in such an atmosphere
overwhelms them into silence x x x.15
Contrary to the petitioner’s claim, the fact that he was one of
those being investigated did not by itself define the nature of
the investigation as custodial. For him, the investigation was
still a general inquiry to ascertain the whereabouts of the
missing patubig collection. By its nature, the inquiry had to
involve persons who had direct supervision over the issue,
including the City Treasurer, the City Auditor, the
representative from different concerned offices, and even the
City Mayor. What was conducted was not an investigation
that already focused on the petitioner as the culprit but an
administrative inquiry into the missing city funds. Besides, he
was not as of then in the custody of the police or other law
enforcement office.
Even as we affirm the CA, we have to clarify the penalty
imposed in terms of the Indeterminate Sentence Law.
Section 1 of the Indeterminate Sentence Law states that an
indeterminate sentence is imposed on the offender
consisting of a maximum term and a minimum term.16 The
maximum term is the penalty properly imposed under the
Revised Penal Code after considering any attending
circumstance; while the minimum term is within the range of
the penalty next lower than that prescribed by the Revised
Penal Code for the offense committed.
Conformably with the instructions on the proper application
of the Indeterminate Sentence Law in malversation reiterated
in Zafra v. People:17 (a) the penalties provided under Article
217 of the Revised Penal Code constitute degrees; and (b)
considering that the penalties provided under Article 217 of
the Revised Penal Code are not composed of three periods,
the time included in the prescribed penalty should be divided
into three equal portions, each portion forming a period,
pursuant to Article 65 of the Revised Penal Code.18 With the
amount of P37,876.98 ultimately found and declared by the
CA to have been misappropriated exceeding the P22,000.00
threshold, the imposable penalty is reclusion temporal in its
maximum period to reclusion perpetua (that is, 17 years, four
months and one day to reclusion perpetua), the minimum
period of which is 17 years, four months and one to 18 years
and eight months, the medium period of which is 18 years,
eight months and one day to 20 years, and the maximum
period is reclusion perpetua.
Accordingly, the maximum of the indeterminate sentence of
the petitioner is the medium period in view of the absence of
any aggravating or mitigating circumstances, while the
minimum of the indeterminate sentence shall be taken from
the penalty next lower, which is reclusion temporal in its
minimum and medium periods (i.e., from 12 years and one
day to 17 years and four months). Hence, the indeterminate
sentence for the petitioner is modified to 12 years and one
day of reclusion temporal, as minimum, to 18 years, eight
months and one day of reclusion temporal, as maximum.
In addition, the Court notes that both lower courts did not
require the petitioner to pay the amount of P37,876.98
subject of the malversation. That omission was plain error
that we should now likewise correct as a matter of course, for
there is no denying that pursuant to Article 100 of the
Revised Penal Code, every person criminally liable for a
felony is also civilly liable. The omission, if unchecked and
unrevised, would permanently deprive the City of Caloocan of
the misappropriated amount. Such prejudice to the public
coffers should be avoided.
The Court has justifiably bewailed the omissions by the lower
courts in this respect, and has seen fit to point out in Zafra v.
People:chanRoblesvirtualLawlibrary
One more omission by the CA and the RTC concerned a
matter of law. This refers to their failure to decree in favor of
the Government the return of the amounts criminally
misappropriated by the accused. That he was already
sentenced to pay the fine in each count was an element of
the penalties imposed under the Revised Penal Code, and
was not the same thing as finding him civilly liable for
restitution, which the RTC and the CA should have included in
the judgment. Indeed, as the Court emphasized in Bacolod v.
People, it was “imperative that the courts prescribe the
proper penalties when convicting the accused, and determine
the civil liability to be imposed on the accused, unless there
has been a reservation of the action to recover civil liability
or a waiver of its recovery,” explaining the reason for doing
so in the following manner:chanRoblesvirtualLawlibrary
It is not amiss to stress that both the RTC and the CA
disregarded their express mandate under Section 2, Rule 120
of the Rules of Court to have the judgment, if it was of
conviction, state: “(1) the legal qualification of the offense
constituted by the acts committed by the accused and the
aggravating or mitigating circumstances which attended its
commission; (2) the participation of the accused in the
offense, whether as principal, accomplice, or accessory after
the fact; (3) the penalty imposed upon the accused; and (4)
the civil liability or damages caused by his wrongful act or
omission to be recovered from the accused by the offended
party, if there is any, unless the enforcement of the civil
liability by a separate civil action has been reserved or
waived.” Their disregard compels us to act as we now do lest
the Court be unreasonably seen as tolerant of their omission.
That the Spouses Cogtas did not themselves seek the
correction of the omission by an appeal is no hindrance to
this action because the Court, as the final reviewing tribunal,
has not only the authority but also the duty to correct at any
time a matter of law and justice.
We also pointedly remind all trial and appellate courts to
avoid omitting reliefs that the parties are properly entitled to
by law or in equity under the established facts. Their
judgments will not be worthy of the name unless they
thereby fully determine the rights and obligations of the
litigants. It cannot be otherwise, for only by a full
determination of such rights and obligations would they be
true to the judicial office of administering justice and equity
for all. Courts should then be alert and cautious in their
rendition of judgments of conviction in criminal cases. They
should prescribe the legal penalties, which is what the
Constitution and the law require and expect them to do. Their
prescription of the wrong penalties will be invalid and
ineffectual for being done without jurisdiction or in manifest
grave abuse of discretion amounting to lack of jurisdiction.
They should also determine and set the civil liability ex
delicto of the accused, in order to do justice to the
complaining victims who are always entitled to them. The
Rules of Court mandates them to do so unless the
enforcement of the civil liability by separate actions has been
reserved or waived.19
Under the law, the civil liability of the petitioner may involve
restitution, reparation of the damage caused, and
indemnification for consequential damages.20 Given that his
obligation requires the payment of the amount
misappropriated to the City of Caloocan, the indemnification
for damages is through legal interest of 6% per annum on the
amount malversed, reckoned from the finality of this decision
until full payment.21chanrobleslaw
WHEREFORE, the Court AFFIRMS the decision promulgated on
July 24, 2003 finding petitioner BERNARDO U. MESINA guilty
beyond reasonable doubt of malversation of public funds
subject to the MODIFICATIONS that: (a) he shall suffer the
indeterminate penalty of 12 years and one day of reclusion
temporal, as minimum, to 18 years, eight months and one
day of reclusion temporal, as maximum, and pay a fine of
P37,876.98; and (b) he shall further pay to the City of
Caloocan the amount of P37,876.98, plus interest thereon at
the rate of 6% per annum, reckoned from the finality of this
decision until the amount is fully paid.
The petitioner shall pay the costs of suit.
SO ORDERED
Mahinay vs. Sandiganbayan
The petitioner, Modesto Mahinay, was employed as Cashier I
of the Butuan General Hospital from July 1, 1973 to October
31, 1977 (Decision, Criminal Case No. 2628, p. 3; Rollo, p.
27).
On October 13, 1977, Antonio T. Martirez, Resident Auditor of
the Butuan General Hospital examined in the presence of
Modesto Mahinay, the cash and accounts of Modesto
Mahinay covering the period from July 1, 1973 to October 31,
1977. Antonio Martirez found Modesto Mahinay to have
incurred a shortage of P 20,619.40. Consequently, Antonio
Martirez prepared his report of examination which was signed
by the petitioner (Decision, Criminal Case No. 2628, pp. 3
and 9; Rollo, pp. 27 & 33).
Subsequently, a letter of demand was sent by Antonio
Martirez to the petitioner requiring the latter to produce the
missing funds and to submit an explanation on how the
shortages had been incurred. The petitioner submitted his
reply letter dated January 25, 1979 (Ibid, p. 3, Rollo, p. 27).
The petitioner was charged with the crime of Malversation of
Public Funds before the Sandiganbayan. The information
states:
That on or about and during the period comprised between
July 1, 1973 to October 13, 1977, in the City of Butuan,
Philippines, and within the jurisdiction of this Honorable Court
the above named accused, being an employee of the Butuan
General Hospital, Butuan City as Cashier and as such is
responsible and accountable for the public finds collected
and received by him in trust by reason of his position did
then and there wilfully, unlawfully and feloniously and
fraudulently and with grave abuse of confidence,
misappropriate, misapply, embezzle, malverse and take away
from said funds the sum of TWENTY THOUSAND SIX HUNRED
NINETEEN PESOS AND FORTY CENTAVOS (P20,619.40.)
Philippine Currency which he appropriated and converted to
his own personal use and benefit and inspite of repeated
demands to restitute said amount he failed and refused and
still fails and refuses to do so to the great damage and
detriment of the Philippine Government and the public
interest.
CONTRARY TO LAW. (Rollo, p. 1-34)
When arraigned, the accused duly assisted by counsel de
parte pleaded "not guilty". (Decision, Criminal Case No. 2628,
p. 2, Rollo, p. 26).
After trial on the merits, the Court found Modesto Mahinay
guilty as charged.
The dispositive portion of the decision reads:
IN THE LIGHT OF THE FOREGOING CIRCUMSTANCES, the
Court finds accused Modesto Mahinay y Azura, GUILTY,
beyond reasonable doubt as Principal of the crime of
Malversation of Public Funds, defined and penalized under
Art. 217, paragraph 4 of the Revised Penal Code. In the
absence of any modifying circumstance, since none was
appreciated, the Court hereby sentences the said I accused
to suffer an indeterminate penalty ranging from TEN (10)
YEARS, and ONE (1) DAY of Prision Mayor as minimum, to
SIXTEEN (16) YEARS, FIVE (5) MONTHS and ELEVEN (11)
DAYS of Reclusion Temporal as maximum, to suffer the
penalty of Special Perpetual Disqualification, to pay a fine of
P20,619.40, to indemnify the Government of the Republic of
the Philippines in the said amount of P20,619.40 and to pay
the costs.
SO ORDERED. (Rollo, p. 42).
A motion for reconsideration of the decision filed by the
petitioner was denied. Hence, this petition with the following
assignments of error:
I
THE SANDIGANBAYAN ERRED IN LEANING HEAVILY ON THE
LAST PARAGRAPH OF ARTICLE 217 OF THE REVISED PENAL
CODE IN ORDER TO CONVICT PETITIONER.
II

THE SANDIGANBAYAN ERRED IN RELYING TO SUPPORT ITS
DECISION OF CONVICTION, ON CASES WHICH ARE NOT ON
ALL FOURS WITH, AND THEREFORE NOT APPLICABLE TO, THE
CASE AT BAR. (Rollo, pp. 12-13)
In the resolution of September 14, 1982, the Court required
the Solicitor General to comment on the petition within ten
(10) days from notice (Rollo, p. 68) which was complied with
on October 25,1982 (Rollo, p. 73).
In the resolution of November 4, 1982, the Court required the
petitioner to file a reply to the Solicitor General's comment
(Rollo, p. 83). On December 10, 1982, the petitioner filed his
reply to the comment of the Solicitor General (Rollo, p. 86).
In the resolution of March 12, 1985, the petition was given
due course (Rollo, p. 98). The brief for the petitioner was filed
on May 14, 1985 (Rollo, p. 111) while the brief for the
respondents was filed on September 23, 1985 (Rollo, p. 169).
The sole issue in this case is whether or not the petitioner
has committed malversation of public finds under Article 217
of the Revised Penal Code.
The petitioner contends that the presumption established by
Article 217 of the Revised Penal Code that a public officer has
put missing funds or property to personal use in the event of
his failure to have duly forthcoming any such public funds or
property, with which he is chargeable, upon demand by any
duly authorized officer, is merely prima facie and may be
rebutted or overcome by proof to the contrary. Since he
presented at the trial "vale" slips signed by Audit Aide
Pacifica Alcordo thereby showing that he has not put said
funds or property to personal use, and the cash advances in
question extended by him in good faith and in the honest
belief that it was his duty to do so, the prima facie
presumption is destroyed and the mere absence of funds is
not sufficient proof of conversion.
It is further argued by the petitioner that the mode of
extending cash advances by mere "vale" slips was one of
long standing, in existence well ahead of the time he became
the cashier of the Butuan General Hospital and never
heretofore questioned by the Commission on Audit.
The contention of the petitioner is without merit.
Article 217 of the Revised Penal Code provides that any
public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate
the same, or shall take or misappropriate or shall consent, or
through abandonment or negligence, shall permit any other
person to take such public funds or property, wholly or
partially, shall be guilty of the misappropriation or
malversation of such funds or property. (Emphasis supplied).
There is no dispute that the presumption of malversation
under Article 217 of the Revised Penal Code is merely prima
facie and rebuttable, so that if the accountable officer has
satisfactorily proven that not a single centavo of the missing
funds was used by him for his own personal interest but
extended as cash advances to co-employees in good faith,
with no intent to gain and borne out of goodwill considering
that it was a practice tolerated in the office, the presumption
of guilt is overthrown (Quizo v. Sandiganbayan, 149 SCRA
108). However, the circumstances obtaining in the Quizo
case are not obtaining in the case at bar. Among others, in
the Quizo case, there was full restitution made within a
reasonable time, while in the instant case there was none.
But more importantly, in the instant case, the petitioner
admitted that the total shortage of P20,619.40 represents
the "vales" of Mr. Alcordo for travels, telegrams, mails, for
entertainment of his superiors, newspapers and salary
differentials from 1971 to 1976, and Alcordo did not give him
reimbursement receipts representing the "vales" (Decision,
Criminal Case No. 2628, p. 5, Rollo, p. 29).
Moreover, the respondent court found: (a) that the petitioner
continued to disburse funds from his collection to issue
"vales" to Alcordo despite the latter's transfer to another
place of assignment and inability to submit the required
vouchers that could have established the legality of the
disbursements or "vales" (Decision, Criminal Case No. 2628,
pp. 10-11; Rollo, pp. 34-35); and (b) that per findings of the
Resident Auditor, the petitioner juggled or manipulated the
cash book entries and made it appear that he made deposits
to conceal the "vales" or amounts loaned which were never
redeemed by Alcordo and/or other employees concerned,
and which deposits in turn, were verified by the Auditing
Examiner to be fictitious since the said deposits were not
supported by any slips nor could said deposits be traced to
the bank statements (Decision, Criminal Case No. 2628; p.
13; Rollo, p. 37).
It is therefore, apparent that the petitioner, in violation of
Article 217 of the Revised Penal Code, negligently consented
or permitted Alcordo to take public funds for which he is
accountable.
The petitioner's claim of good faith in extending the cash
advances in question is belied by his admission that he was
aware of existing COA regulations prohibiting the extension
of cash advances by way of "vales" to government
employees (Decision, Criminal Case No. 2628, p. 5; Rollo, p.
29).
In addition, per findings of the Resident Auditor, the
petitioner never remitted his collections to the National
Treasury regularly, thus, enabling him to accumulate
collections as much as P20,000.00 or more. The petitioner
also withheld part of the collections amounting to as much as
P15,000.00 or more everytime a deposit is made in
contravention of the provisions of General Circular Nos. 82
and 82-A which require that collections of National Funds as a
general rule should be remitted to the National Treasury at
anytime it reaches P500.00 or more, at least once a month
regardless of the amount (Decision, Criminal Case No. 2628,
p. 12; Rollo, p. 36).

Under the foregoing circumstances, it is evident that the
defense has not successfully rebutted the prima facie
presumption of malversation.
PREMISES CONSIDERED, the petition for review is DENIED
and the decision of the respondent Sandiganbayan is
AFFIRMED.
SO ORDERED.
People vs. Sahibil
This is an appeal from the September 16, 2016 Decision1 of
the Court of Appeals (CA) in CA-GR. CR HC No. 01409-MIN,
which affirmed in toto the April 1, 2015 Decision2 of the
Regional Trial Court (RTC) of Panabo City in Criminal Case No.
Crc 52-2012 finding accused-appellant Josh Joe T. Sahibil
(appellant) guilty of illegal sale of dangerous drugs (shabu),
as defined and penalized under Section 5, Article II of
Republic Act (RA) No. 9165.3
Factual Antecedents
In an Information dated February 1, 2012, appellant was
charged with illegal sale of dangerous drugs, reading as
follows:
That on or about January 31, 2012 in the City of Panabo,
Philippines and within the jurisdiction of this Honorable Court,
the above named accused, without being authorized by law,
willfully, unlawfully and knowingly traded, sold and delivered
two (2) sachets of methamphetamine hydrochloride
commonly known as 'shabu', a dangerous drug,
approximately weighing 0.2977 [gram] and 0.2379 [gram], to
SPO1 ROSIL ELLEVERA who was then acting as poseur-buyer
in a legitimate buy-bust operation after receiving from the
said poseur-buyer an envelope containing marked money
consisting of ten pieces of ONE HUNDRED PESO bills.
CONTRARY TO LAW.4
Upon arraignment, appellant pleaded "Not Guilty"5 to this
charge. Trial thereafter ensued.
Version of the Prosecution
In the third week of January 2012, the CIDG6 Provincial Office
in Tagum City (CIDG-Tagum) received information from a
confidential informant (CI) that a group of gay men was
selling illegal drugs in the Panabo Overland Transport
Terminal (Terminal). Thus, for a week, Police Chief Inspector
(PCI) Darwin S. Rafer, the Provincial Officer of the CIDG--
Tagum, instructed his team to conduct surveillance on those
persons mentioned by the CI. After confirming that drug sales
were being held at the Terminal, the CIDG-Tagum formed a
buy-bust team designating SPO3 Joseph7 Gaco, SPO1 Rosil A.
Ellevera (SPO1 Ellevera), and PO3 Johnny Collado (PO3
Collado) as team leader, poseur-buyer, and back-up/arresting
officer respectively. The CI was directed to accompany the
buy-bust team in the operation. During the briefing, SPO1
Ellevera placed his initials and the date of the buy-bust on 10
pieces of P100.00 bills to be used as marked money for the
operation.8
At about 7:15 p.m. on January 31, 2012, and with prior
coordination with the PDEA9 and the Panabo City Police
Station,10 the buy-bust team arrived at the Terminal. SPO1
Ellevera was with the CI while the other members of the buy-
bust team stayed in the vicinity. Later, the CI found alias
"Wally" (later identified as appellant) at the exit of the
Terminal, and introduced SPO1 Ellevera to him. Specifically,
the CI told appellant that SPO1 Ellevera was a drug user who
was interested in buying drugs from him (appellant).
Appellant then asked SPO1 Ellevera if the latter could afford
worth P12,000.00 of his stocks. In reply, SPO1 Ellevera told
appellant that he only had P2,000.00 hut if appellant could
wait, he would withdraw money and be back with
P12,000.00.11
Resultantly, SPO1 Ellevera went out of the Terminal and
pretended to withdraw money. After 15 to 20 minutes, and
still at the Exit area of the Terminal, SPO1 Ellevera met with
appellant. He told the latter that the money was complete
giving appellant a brown envelope containing the marked
money while the rest was just boodle money. Immediately,
appellant gave SPO1 Ellevera two sachets containing white
crystallized substances. After examining them, SPO1 Ellevera
scratched his head, the buy-bust team's pre-arranged signal
that the sale transaction had been completed. Upon seeing
the signal, the rest of the buy-bust team approached
appellant and announced his arrest.12
Later, the team leader (SPO3 Gaco) directed the police
operatives to proceed to the Panabo Police Station, which
was just a kilometer way from the Terminal because: (1) of
security reasons as there were many people in the Terminal
and the police operatives were unaware if appellant had
companions; (2) a commotion transpired since appellant was
resisting arrest and people in the vicinity were asking what
happened; and (3) the Terminal was busy and there was no
place to do the markings of the seized items considering that
buses were exiting the Terminal where the buy-bust
transpired.13
While in transit to the police station, SPO1 Ellevera kept
custody of the two sachets he bought from appellant. At
around 8:00 p.m. of the same day at the police station, SPO1
Ellevera marked the sachets with his initials ("ERA") and
signatures as well as the date and time of the operation. On
the other hand, PO3 Collado conducted an inventory of the
seized items in the presence of appellant, including an
elective official (Barangay Kagawad Joselito Ohaylan), and
representatives from the media (Gilbert P. Bacarro), and the
DOJ14 (Ian R. Dionola). Pictures were also taken during the
conduct of the inventory.15
At about 10:00 p.m. of even date, the police operatives
brought appellant and the seized items to their office in
Tagum City. Afterwards, they brought the evidence to the
PNP16 Provincial Crime Laboratory but the same was closed.
As such, they returned to their office, and SPO1 Ellevera
placed the subject items in his evidence locker to which he
had sole access. The following day, SPO1 Ellevera delivered
to the Crime Laboratory the recovered sachets and the
request for their laboratory examination. In turn, PO1 Jeffrey
Cambalon (PO1 Cambalon) received, weighed, and labelled
them with their weights and his signatures. PO1 Cambalon
also asked SPO1 Ellevera to affix his signature on each
specimen.17 Per the examination of PCI Virginia Sison Gucor
(PCI Gucor), the Forensic Chemist at the Crime Laboratory,
these specimens gave positive results for methamphetamine
hydrochloride, a dangerous drug. 18
Later, the counsels of both parties stipulated on the Chain of
Custody document which detailed the transfer of custody of
the subject shabu from PO1 Cambalon to PCI Gucor on
February 1, 2012 at 7:30 a.m., and from PCI Gucor to Officer
Maricar Villano on the same day at 2:00 p.m. Consequently,
their testimonies for the purpose of establishing their
participation in the Chain of Custody document were already
dispensed with.19 And since the parties had already
stipulated on the due execution and contents of the chain of
custody and turnover of the drug evidence, the testimony
PO1 Ruffy20 D. Federe (PO1 Federe), also from the Crime
Laboratory and the one who submitted the drug evidence to
the court, was likewise dispensed with.21
Version of the Defense
Appellant denied the accusations against him and instead
narrated on these events:
x x x [O]n January 31, 2012, at around 5:30 x x x in the
evening, and while at their house, [appellant] received a text
message from his gay friend, Socrates Rosario, inviting him
to a fiesta celebration in Panabo City.
[Appellant] acceded to the invitation and travelled to Panabo
City. When he arrived at Panabo City at around 7:00 o'clock in
the evening, a motorcycle went near him and offered to
transport him to his destination which was Gredu,
Everlasting, Panabo City.
While on board the motorcycle and five (5) minutes had
passed, the motorcycle was still not running. Subsequently, a
man came near him and choked him by the neck. Surprised
by the turn of events, the appellant was able to act on
impulse and hit the man by the body using his elbow.
However, the man was able to subdue [appellant] and
arrested him. He was made to board a car and was brought
to the CIDG Office, near the Shell Station in Panabo City –
they arrived at around 10:00 o'clock in the evening.
While at the CIDG Office, the arresting officers were able to
seize from the appellant Php40.00 and a Nokia Cellphone.
According to [appellant], he was subjected to a police
interrogation and/or torture when the police officers recorded
a video of him without pants and underwear.
The appellant narrated that the police officers wanted him to
admit possession and ownership of the purported shabu but
he vehemently denied it for he had no shabu with him.
While being subjected to severe interrogation and/or torture,
out of desperation, the appellant demanded for the shabu so
that he could admit ownership thereof. This angered the
police officers.
During his testimony, appellant denied selling dangerous
drugs to SPO1 Ellevera. According to him, he was just a back
rider of a motorcycle when he was arrested near the exit of
the Panabo Transport Terminal.22
Ruling of the Regional Trial Court
In its April 1, 2015 Decision, the RTC found appellant guilty as
charged imposing upon him the penalty of life imprisonment,
and ordering him to pay P500,000.00 as fine. It decreed that
the prosecution had sufficiently shown that appellant was
found to have been engaged in the illegal sale of prohibited
drugs.
Moreover, in concluding that the existence of the corpus
delicti or the subject drugs was established, the RTC
highlighted that the two sachets of shabu bought from
appellant remained in the custody of SPO1 Ellevera from the
time he bought them from appellant until they were marked
in the police station; and later, SPO1 Ellevera was also the
one who delivered them to the Crime Laboratory. It held that
the same items were thereafter turned over to the court by
PO1 Federe. The police (SPO1 Ellevera and PO3 Collado)
confirmed that the items presented in court were the same
ones subject of the buy-bust transaction.
Ruling of the Court of Appeals
The CA affirmed in toto the RTC Decision.
Undaunted, appellant appealed before the Court reiterating
his contentions before the CA. He insisted that he must be
acquitted as the chain of custody rule was not observed
faulting the police for its failure to immediately mark the
subject items after confiscation. He also ascribed irregularity
in the fact that the necessary witnesses – an elective official,
and representatives from the media and the DOJ – were not
present during the sale (made by appellant) and seizure of
the subject illegal drugs.
Issue
Whether appellant is guilty beyond reasonable doubt of
illegal sale of shabu.
Our Ruling
This appeal is patently without merit.
The Court has repeatedly elucidated that, in order for the
accused to be convicted of illegal sale of dangerous drugs,
the prosecution must establish the elements of the crime as
well as the corpus delicti or the drug/s subject of the case.23
These primordial requirements were duly proved here leaving
no doubt that appellant was guilty beyond reasonable doubt
of the illegal sale of dangerous drugs.
Under Section 5, Article II of RA 9165, any person, who,
without lawful authority, shall sell any dangerous drug,
regardless of quantity and purity, shall be guilty of illegal sale
of dangerous drugs. More particularly, to be convicted of this
charge, the prosecution must prove with moral certainty: (1)
the identity of the seller and the buyer; (2) the object and
consideration of the sale; and, (3) the delivery of the thing
sold and the payment therefor.24
All these elements were present here.
As uniformly found by the RTC and the CA, on January 31,
2012, the operatives of the CIDG-Tagum conducted a buy-
bust operation on the appellant; during the transaction,
appellant sold to SPO1 Ellevera two sachets of shabu in
exchange for money placed in an envelope, which appellant
believed to be worth P12,000.00 but which in fact comprised
of P1,000.00 marked money, the rest being just boodle
money. This being so, the identity of the seller (appellant)
and the buyer (SPO1 Ellevera); the object (two sachets of
shabu) and their consideration (marked money), as well as
the delivery of the illegal drugs and payment for the same,
were established.
Appellant nonetheless insists that he must be acquitted on
the ground that the police operatives failed to comply with
the Chain of Custody Rule which governs the handling of the
drug evidence from its confiscation until its presentation in
court as evidence.
We disagree.
Section 21, Article II of RA 9165 provides for the Chain of
Custody Rule or the procedure on how seized drug/s and/or
related items must be handled until they are presented in
court as evidence, to wit:
Section 21. Custody and Disposition of Confiscated, Seized,
and/or Surrendered Dangerous Drugs x x x. — The PDEA shall
take charge and have custody of all dangerous drugs x x x
for proper disposition in the following manner:
(1) The apprehending team having initial custody and control
of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the
presence of the accused or the person/s from whom such
items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the
inventory and be given a copy thereof;
(2) Within twenty-four (24) hours upon confiscation/seizure of
dangerous drugs x x x the same shall be submitted to the
PDEA Forensic Laboratory for a qualitative and quantitative
examination;
(3) A certification of the forensic laboratory examination
results, which shall be done under oath by the forensic
laboratory examiner, shall be issued within twenty-four (24)
hours after the receipt of the subject item/s X X X.
There are generally four links that must be proved to comply
with the Chain of Custody Rule. "[F]irst, the seizure and
marking, if practicable, of the illegal drug recovered from the
accused by the apprehending officer; second, the turnover of
the illegal drug seized by the apprehending officer to the
investigating officer; third, the turnover by the investigating
officer of the illegal drug to the forensic chemist for
laboratory examination; and fourth, the turnover and
submission of the marked illegal drug seized from the
forensic chemist to the court."25
Contrary to the contentions of appellant, the prosecution had
established that the buy-bust team fully complied with the
required chain of custody of the seized drug such that there
is no basis to depart from the lower courts' ruling that he was
guilty of the illegal sale of dangerous drugs.
To stress, after the conclusion of the buy-bust operation, the
police operatives, along with the appellant, proceeded to the
nearby Panabo Police Station, where SPO1 Ellevera marked
the sachets of shabu he bought from appellant with his
initials (ERA), signature, and the date and time of the buy-
bust.
The marking of the seized items at the police station, not at
the place of incident, did not impair the chain of custody of
the drug evidence. For one, the marking at the nearest police
station is allowed whenever the same is availed of due to
practical reason[s].26 For another, the prosecution had
explained the failure of the buy-bust team to immediately
mark these items at the place where the buy-bust operation
was conducted.
These justifications include: (i) because of security reasons —
there were many people in the place of incident, which was a
public transport terminal, and the buy-bust team was
uncertain if appellant had any companion; (ii) after the buy-
bust was concluded, appellant was resisting arrest and
consequently, people were asking what had happened and a
commotion transpired; and (iii) as mentioned, the buy-bust
happened in a bus terminal, which was a busy place where
buses were going out at the very exit where the actual buy-
bust took place.27
To put it simply, as a rule, marking of the illegal drugs must
be done immediately upon confiscation. "Immediate
confiscation," however, has no exact definition; and in case
there is such a practical reason, the marking at the nearest
police station falls within the concept of immediate marking
of the seized drugs. For indeed, "[m]arking upon 'immediate'
confiscation can reasonably cover marking done at the
nearest police station or office of the apprehending team,
especially when the place of seizure is volatile and could
draw unpredictable reactions from its surroundings,"28 as in
this case.
Clearly, there are more than sufficient justifications on why
the marking (as well as the succeeding procedures incidental
to establishing the chain of custody) was conducted at the
police station which was a mere kilometer away from the
place of incident.
Moreover, at the Panabo Police Station, PO3 Collado
conducted an inventory of the recovered sachets of shabu.
The inventory of these items was done in the presence of
appellant and the necessary witnesses - an elective official,
Brgy. Kagawad Joselito Ohaylan; a media representative,
Gilbert P. Bacarro; as well as a representative from the DOJ,
Ian R. Dionola. At the same time, pictures were taken during
the inventory of these items.
In addition, there was nothing irregular in the turnover of the
seized illegal drugs to the Crime Laboratory. Note that it was
established that, within 24 hours from the seizure of the
shabu, SPO1 Ellevera delivered them to the Crime
Laboratory. PO1 Cambalon received, weighed, and labelled
them and, thereafter, turned them over to their Forensic
Chemist, PCI Gucor. In turn, upon examination by the
Forensic Chemist, these specimens tested positive of
methamphetamine hydrochloride. In fact, the counsels of the
parties stipulated on the Chain of Custody document and
even dispensed with the testimonies of PO1 Cambalon and
PCI Gucor as well as that of PO1 Federe, who delivered the
drug evidence to the court. These matters only proved that
even the defense had, early on, agreed to the full compliance
with the Chain of Custody Rule by the buy-bust team.
Furthermore, SPO1 Ellevera and PO3 Collado identified in
court that the items presented thereat were the same ones
they recovered during the buy-bust operation against
appellant.
Taken together, all the foregoing circumstances showed that
the buy-bust team had fully observed the required chain of
custody of the confiscated illegal drugs. Without doubt, the
existence of the corpus delicti was established in this case.
Lastly, aside from properly finding that appellant was guilty
of illegal sale of dangerous drugs, the penalty imposed
against him by the RTC, as affirmed by the CA, is in order.
Pursuant to Section 5,29 Article II of RA 9165, appellant must
suffer the penalty of life imprisonment and a fine in the
amount of P500,000.00.
WHEREFORE, the appeal is DISMISSED. The assailed
September 16, 2016 Decision of the Court of Appeals in CA-
GR. CR HC No. 01409-MIN is hereby AFFIRMED.
SO ORDERED.
People vs. Romy Lim
On appeal is the February 23, 2017 Decision 1 of the Court of
Appeals (CA) in CA-G.R. CR HC No. 01280-MIN, which
affirmed the September 24, 2013 Decision2 of Regional Trial
Court (RTC), Branch 25, Cagayan de Oro City, in Criminal
Case Nos. 2010-1073 and 2010-1074, finding accused-
appellant Romy Lim y Miranda (Lim) guilty of violating
Sections 11 and 5, respectively, of Article II of Republic Act
(R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act
of 2002.
In an Information dated October 21, 2010, Lim was charged
with illegal possession of Methamphetamine Hydrochloride
(shabu), committed as follows:
That on or about October 19, 2010, at more or less 10:00
o'clock in the evening, at Cagayan de Oro City, Philippines,
and within the jurisdiction of this Honorable Court, the above-
named accused, without being authorized by law to possess
or use any dangerous drugs, did then and there, willfully,
unlawfully, criminally and knowingly have in his possession,
custody and control one (1) heat-sealed transparent plastic
sachet containing Methamphetamine hydrochloride, locally
known as Shabu, a dangerous drug, with a total weight of
0.02 gram, accused well-knowing that the substance
recovered from his possession is a dangerous drug.
Contrary to, and in violation of, Section 11, Article II of
Republic Act No. 9165.3
On even date, Lim, together with his stepson, Eldie Gorres y
Nave (Gorres), was also indicted for illegal sale of shabu,
committed as follows:
That on or about October 19, 2010, at more or less 10:00
o'clock in the evening, at Cagayan de Oro City, Philippines,
and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating together and
mutually helping one another, without being authorized by
law to sell, trade, administer, dispense, deliver, give away to
another, distribute, dispatch in transit or transport any
dangerous drugs, did then and there willfully, unlawfully,
criminally and knowingly sell and/or offer for sale, and give
away to a PDEA Agent acting as poseur-buyer One (1) heat-
sealed transparent plastic sachet containing
Methamphetamine hydrochloride, locally known as Shabu, a
dangerous drug, with a total weight of 0.02 gram, accused
knowing the same to be a dangerous drug, in consideration
of Five Hundred Pesos (Php500.00) consisting of one piece
five hundred peso bill, with Serial No. FZ386932, which was
previously marked and recorded for the purpose of the buy-
bust operation.
Contrary to Section 5, Paragraph 1, Article II of Republic Act
No. 9165.4
In their arraignment, Lim and Gorres pleaded not guilty. 5
They were detained in the city jail during the joint trial of the
cases.6
The prosecution presented Intelligence Officer (IO) 1 Albert
Orellan, 101 Nestle Carin, 102 Vincent Orcales, and Police
Senior Inspector (PSI) Charity Caceres. Aside from both
accused, Rubenia Gorres testified for the defense.
Version of the Prosecution
Around 8:00 p.m. on October 19, 2010, IO1 Orellan and his
teammates were at Regional Office X of the Philippine Drug
Enforcement Agency (PDEA). Based on a report of a
confidential informant (CI) that a certain "Romy" has been
engaged in the sale of prohibited drugs in Zone 7, Cabina,
Bonbon, Cagayan de Oro City, they were directed by their
Regional Director, Lt. Col. Edwin Layese, to gather for a buy-
bust operation. During the briefing, IO2 Orcales, IO1 Orellan,
and IO1 Carin were assigned as the team leader, the
arresting officer/back-up/evidence custodian, and the poseur-
buyer, respectively. The team prepared a ₱500.00 bill as buy-
bust money (with its serial number entered in the PDEA
blotter), the Coordination Form for the nearest police station,
and other related documents.
Using their service vehicle, the team left the regional office
about15 minutes before 10:00 p.m. and arrived in the target
area at 10:00 p.m., more or less. IOI Carin and the CI alighted
froin the vehicle near the comer leading to the house of
"Romy," while IO1 Orellan and the other team members
disembarked a few meters after and positioned themselves in
the area to observe. IOI Carin and the CI turned at the comer
and stopped in front of a house. The CI knocked at the door
and uttered, "ayo, nong Romy." Gorres came out and invited
them to enter. Inside, Lim was sitting on the sofa while
watching the television. When the CI introduced IO1 Carin as
a shabu buyer, Lim nodded and told Gorres to get one inside
the bedroom. Gorres stood up and did as instructed. After he
came out, he handed a small medicine box to Lim, who then
took one piece of heat-sealed transparent plastic of shabu
and gave it to IO1 Carin. In turn, IO1 Carin paid him with the
buy-bust money.
After examining the plastic sachet, IO1 Carin executed a
missed call to IO1 Orellan, which was the pre-arranged
signal. The latter, with the rest of the team members,
immediately rushed to Lim's house. When they arrived, IO1
Carin and the CI were standing near the door. They then
entered the house because the gate was opened. IO1 Orellan
declared that they were PDEA agents and informed Lim and
Gorres, who were visibly surprised, of their arrest for selling
dangerous drug. They were ordered to put their hands on
their heads and to squat on the floor. IO1 Orellan recited the
Miranda rights to them. Thereafter, IO1 Orellan conducted a
body search on both. When he frisked Lim, no deadly weapon
was found, but something was bulging in his pocket. IO1
Orellan ordered him to pull it out. Inside the pocket were the
buy-bust money and a transparent rectangular plastic box
about 3x4 inches in size. They could see that it contained a
plastic sachet of a white substance. As for Gorres, no weapon
or illegal drug was seized.
IO1 Orellan took into custody the ₱500.00 bill, the plastic box
with the plastic sachet of white substance, and a disposable
lighter. 101 Carin turned over to him the plastic sachet that
she bought from Lim. While in the house, IO1 Orellan marked
the two plastic sachets. Despite exerting efforts to secure the
attendance of the representative from the media and
barangay officials, nobody arrived to witness the inventory-
taking.
The buy-bust team brought Lim and Gorres to the PDEA
Regional Office, with IO1 Orellan in possession of the seized
items. Upon arrival, they "booked" the two accused and
prepared the letters requesting for the laboratory
examination on the drug evidence and for the drug test on
the arrested suspects as well as the documents for the filing
of the case. Likewise, IO1 Orellan made the Inventory Receipt
of the confiscated items. It was not signed by Lim and
Gorres. Also, there was no signature of an elected public
official and the representatives of the Department of Justice
(DOJ) and the media as witnesses. Pictures of both accused
and the evidence seized were taken.
The day after, IO1 Orellan and IO1 Carin delivered both
accused and the drug specimens to Regional Crime
Laboratory Office 10. IO1 Orellan was in possession of the
sachets of shabu from the regional office to the crime lab. PSI
Caceres, who was a Forensic Chemist, and Police Officer 2
(P02) Bajas7 personally received the letter-requests and the
two pieces of heat-sealed transparent plastic sachet
containing white crystalline substance. PSI Caceres got urine
samples from Lim and Gorres and conducted screening and
confirmatory tests on them. Based on her examination, only
Lim was found positive for the presence of shabu. The result
was shown in Chemistry Report No. DTCRIM-I96 and I97-
2010. With respect to the two sachets of white crystalline
substance, both were found to be positive of shabu after a
chromatographic examination was conducted by PSI Caceres.
Her findings were reflected in Chemistry Report No. D-228-
2010. PSI Caceres, likewise, put her own marking on the
cellophane containing the two sachets of shabu. After that,
she gave them to the evidence custodian. As to the buy-bust
money, the arresting team turned it over to the fiscal's office
during the inquest.
Version of the Defense
Around 10:00 p.m. on October 19, 2010, Lim and Gorres were
in their house in Cabina, Bonbon, Cagayan de Oro City. Lim
was sleeping in the bedroom, while Gorres was watching the
television. When the latter heard that somebody jumped over
their gate, he stood up to verify. Before he could reach the
door, however, it was already forced opened by the repeated
pulling and kicking of men in civilian clothing. They entered
the house, pointed their firearms at him, instructed him to
keep still, boxed his chest, slapped his ears, and handcuffed
him. They inquired on where the shabu was, but he invoked
his innocence. When they asked the whereabouts of "Romy,"
he answered that he was sleeping inside the bedroom. So the
men went there and kicked the door open. Lim was then
surprised as a gun was pointed at his head. He questioned
them on what was it all about, but he was told to keep quiet.
The men let him and Gorres sit on a bench. Lim was apprised
of his Miranda rights. Thereafter, the two were brought to the
PDEA Regional Office and the crime laboratory. During the
inquest proceedings, Lim admitted, albeit without the
assistance of a counsel, ownership of the two sachets of
shabu because he was afraid that the police would imprison
him. Like Gorres, he was not involved in drugs at the time of
his arrest. Unlike him, however, he was previously arrested
by the PDEA agents but was acquitted in the case. Both Lim
and Gorres acknowledged that they did not have any quarrel
with the PDEA agents and that neither do they have grudges
against them or vice-versa.
Rubenia, Lim's live-in partner and the mother of Gorres, was
at her sister's house in Pita, Pasil, Kauswagan the night when
the arrests were made. The following day, she returned home
and noticed that the door was opened and its lock was
destroyed. She took pictures of the damage and offered the
same as exhibits for the defense, which the court admitted
as part of her testimony.
RTC Ruling
After trial, the R TC handed a guilty verdict on Lim for illegal
possession and sale of shabu and acquitted Gorres for lack of
sufficient evidence linking him as a conspirator. The fallo of
the September 24, 2013 Decision states:
WHEREFORE, premises considered, this Court finds that:
1. In Criminal Case No. 2010-1073, accused ROMY LIM y
MIRANDA is hereby found GUILTY of violating Section 11,
Article II of R.A. 9165 and is hereby sentenced to suffer the
penalty of imprisonment ranging from twelve [12] years and
one [1] day to thirteen [13] years, and to pay a Fine in the
amount of Three Hundred Thousand Pesos [P300,000.00]
without subsidiary imprisonment in case of non-payment of
Fine;
2. In Criminal Case No. 2010-1074, accused ROMY LIM y
MIRANDA is hereby found GUILTY of violating Section 5,
Article II of R.A. 9165, and is hereby sentenced to suffer the
penalty of LIFE IMPRISONMENT and to pay the Fine in the
amount of Five Hundred Thousand Pesos [P500,000.00].
3. In Criminal Case No. 2010-1074, accused ELDIE GORRES y
NAVE is hereby ACQUITTED of the offense charged for failure
of the prosecution to prove his guilt beyond reasonable
doubt. The Warden of the BJMP having custody of ELDIE
GORRES y Nave, is hereby directed to immediately release
him from detention unless he is being charged of other
crimes which will justify his continued incarceration. 8
With regard to the illegal possession of a sachet of shabu, the
RTC held that the weight of evidence favors the positive
testimony of IO1 Orellan over the feeble and uncorroborated
denial of Lim. As to the sale of shabu, it ruled that the
prosecution was able to establish the identity of the buyer,
the seller, the money paid to the seller, and the delivery of
the shabu. The testimony of IO1 Carin was viewed as simple,
straightforward and without any hesitation or prevarication
as she detailed in a credible manner the buy-bust transaction
that occurred. Between the two conflicting versions that are
poles apart, the RTC found the prosecution evidence worthy
of credence and no reason to disbelieve in the absence of an
iota of malice, ill-will, revenge or resentment preceding and
pervading the arrest of Lim. On the chain of custody of
evidence, it was accepted with moral certainty that the PDEA
operatives were able to preserve the integrity and probative
value of the seized items.
In so far as Gorres is concerned, the R TC opined that the
evidence presented were not strong enough to support the
claim that there was conspiracy between him and Lim
because it was insufficiently shown that he knew what the
box contained. It also noted Chemistry Report No. DTCRIM
196 & 197-2010, which indicated that Gorres was
"NEGATIVE" of the presence of any illicit drug based on his
urine sample.
CA Ruling
On appeal, the CA affirmed the RTC Decision. It agreed with
the finding of the trial court that the prosecution adequately
established all the elements of illegal sale of a dangerous
drug as the collective evidence presented during the trial
showed that a valid buy-bust operation was conducted.
Likewise, all the elements of illegal possession of a
dangerous drug was proven. Lim resorted to denial and could
not present any proof or justification that he was fully
authorized by law to possess the same. The CA was
unconvinced with his contention that the prosecution failed
to prove the identity and integrity of the seized prohibited
drugs. For the appellate court, it was able to demonstrate
that the integrity and evidentiary value of the confiscated
drugs were not compromised. The witnesses for the
prosecution were able to testify on every link in the chain of
custody, establishing the crucial link in the chain from the
time the seized items were first discovered until they were
brought for examination and offered in evidence in court.
Anent Lim's defense of denial and frame-up, the CA did not
appreciate the same due to lack of clear and convincing
evidence that the police officers were inspired by an
improper motive. Instead the presumption of regularity in the
performance of official duty was applied.
Before Us, both Lim and the People manifested that they
would no longer file a Supplemental Brief, taking into account
the thorough and substantial discussions of the issues in their
respective appeal briefs before the CA.9 Essentially, Lim
maintains that the case records are bereft of evidence
showing that the buy-bust team followed the procedure
mandated in Section 21(1), Article II of R.A. No. 9165.
Our Ruling

The judgment of conviction is reversed and set aside, and
Lim should be acquitted based on reasonable doubt.
At the time of the commission of the crimes, the law
applicable is R.A. No. 9165. 10 Section 1(b) of Dangerous
Drugs Board Regulation No. 1, Series of 2002, which
implements the law, defines chain of custody as -
the duly recorded authorized movements and custody of
seized drugs or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of each stage, from
the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for
destruction. Such record of movements and custody of seized
item shall include the identity and signature of the person
who held temporary custody of the seized item, the date and
time when such transfer of custody were made in the course
of safekeeping and use in court as evidence, and the final
disposition. 11
The chain of custody rule is but a variation of the principle
that real evidence must be authenticated prior to its
admission into evidence. 12 To establish a chain of custody
sufficient to make evidence admissible, the proponent needs
only to prove a rational basis from which to conclude that the
evidence is what the party claims it to be. 13 In other words,
in a criminal case, the prosecution must offer sufficient
evidence from which the trier of fact could reasonably
believe that an item still is what the government claims it to
be. 14 Specifically in the prosecution of illegal drugs, the
well-established federal evidentiary rule in the United States
is that when the evidence is not readily identifiable and is
susceptible to alteration by tampering or contamination,
courts require a more stringent foundation entailing a chain
of custody of the item with sufficient completeness to render
it improbable that the original item has either been
exchanged with another or been contaminated or tampered
with. 15 This was adopted in Mallillin v. People, 16 where this
Court also discussed how, ideally, the chain of custody of
seized items should be established:
As a method of authenticating evidence, the chain of custody
rule requires that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the matter in
question is what the proponent claims it to be. It would
include testimony about every link in the chain, from the
moment the item was picked up to the time it is offered into
evidence, in such a way that every person who touched the
exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness'
possession, the condition in which it was received and the
condition in which it was delivered to the next link in the
chain. These witnesses would then describe the precautions
taken to ensure that there had been no change in the
condition of the item and no opportunity for someone not in
the chain to have possession of the same. 17
Thus, the links in the chain of custody that must be
established are: (1) the seizure and marking, if practicable, of
the illegal drug recovered from the accused by the
apprehending officer; (2) the turnover of the seized illegal
drug by the apprehending officer to the investigating officer;
(3) the turnover of the illegal drug by the investigating officer
to the forensic chemist for laboratory examination; and ( 4)
the turnover and submission of the illegal drug from the
forensic chemist to the court. 18
Seizure and marking of the illegal
drug as well as the turnover by the
apprehending officer to the
investigating officer
Section 21(1), Article II of R.A. No. 9165 states:
Sec. 21. Custody and Disposition of Confiscated, Seized, and/
or Surrendered Dangerous Drugs, Plant Sources of Dangerous
Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. -
The PDEA shall take charge and have custody of all
dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition
in the following manner:
(1) The apprehending team having initial custody and control
of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the
presence of the accused or the person/s from whom such
items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the
inventory and be given a copy thereof[.]19
Supplementing the above-quoted provision, Section 21(a) of
the Implementing Rules and Regulations (IRR) of R.A. No.
9165 mandates:
(a) The apprehending officer/team having initial custody and
control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same
in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media
and the Department of Justice (DO.T), and any elected public
official who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, that the
physical inventory and photograph shall be conducted at the
place where the search warrant is served; or at the nearest
police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless
seizures; Provided, further, that noncompliance with these
requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall
not render void and invalid such seizures of and custody over
said items. 20
On July 15, 2014, R.A. No. 10640 was approved to amend
R.A. No. 9165. Among other modifications, it essentially
incorporated the saving clause contained in the IRR, thus:
(1) The apprehending team having initial custody and control
of the dangerous drugs, controlled precursors and essential
chemicals, instruments/paraphernalia and/or laboratory
equipment shall, immediately after seizure and confiscation,
conduct a physical inventory of the seized items and
photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, with an elected
public official and a representative of the National
Prosecution Service or the media who shall be required to
sign the copies of the inventory and be given a copy thereof:
Provided, That the physical inventory and photograph shall
be conducted at the place where the search warrant is
served; or at the nearest police station or at the nearest
office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures: Provided, finally,
That noncompliance of these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of
the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures
and custody over said items.
In her Sponsorship Speech on Senate Bill No. 2273, which
eventually became R.A. No. 10640, Senator Grace Poe
admitted that "while Section 21 was enshrined in the
Comprehensive Dangerous Drugs Act to safeguard the
integrity of the evidence acquired and prevent planting of
evidence, the application of said section resulted in the
ineffectiveness of the government's campaign to stop
increasing drug addiction and also, in the conflicting
decisions of the courts."21 Specifically, she cited that
"compliance with the rule on witnesses during the physical
inventory is difficult. For one, media representatives are not
always available in all comers of the Philippines, especially in
more remote areas. For another, there were instances where
elected barangay officials themselves were involved in the
punishable acts apprehended."22 In addition, "[t]he
requirement that inventory is required to be done in police
station is also very limiting. Most police stations appeared to
be far from locations where accused persons were
apprehended."23
Similarly, Senator Vicente C. Sotto III manifested that in view
of the substantial number of acquittals in drug-related cases
due to the varying interpretations of the prosecutors and the
judges on Section 21 of R.A. No. 9165, there is a need for
"certain adjustments so that we can plug the loopholes in our
existing law" and "ensure [its] standard implementation."24
In his Co-sponsorship Speech, he noted:
Numerous drug trafficking activities can be traced to
operations of highly organized and powerful local and
international syndicates. The presence of such syndicates
that have the resources and the capability to mount a
counter-assault to apprehending law enforcers makes the
requirement of Section 21(a) impracticable for law enforcers
to comply with. It makes the place of seizure extremely
unsafe for the proper inventory and photograph of seized
illegal drugs.
xxxx
Section 21(a) of RA 9165 needs to be amended to address
the foregoing situation. We did not realize this in 2002 where
the safety of the law enforcers and other persons required to
be present in the inventory and photography of seized illegal
drugs and the preservation of the very existence of seized
illegal drugs itself are threatened by an immediate retaliatory
action of drug syndicates at the place of seizure. The place
where the seized drugs may be inventoried and
photographed has to include a location where the seized
drugs as well as the persons who are required to be present
during the inventory and photograph are safe and secure
from extreme danger.
It is proposed that the physical inventory and taking of
photographs of seized illegal drugs be allowed to be
conducted either in the place of seizure or at the nearest
police station or office of the apprehending law enforcers.
The proposal will provide effective measures to ensure the
integrity of seized illegal drugs since a safe location makes it
more probable for an inventory and photograph of seized
illegal drugs to be properly conducted, thereby reducing the
incidents of dismissal of drug cases due to technicalities.
Non-observance of the prescribed procedures should not
automatically mean that the seizure or confiscation is invalid
or illegal, as long as the law enforcement officers could justify
the same and could prove that the integrity and the
evidentiary value of the seized items are not tainted. This is
the effect of the inclusion in the proposal to amend the
phrase "justifiable grounds." There are instances wherein
there are no media people or representatives from the DOJ
available and the absence of these witnesses should not
automatically invalidate the drug operation conducted. Even
the presence of a public local elected official also is
sometimes impossible especially if the elected official is
afraid or scared.25
We have held that the immediate physical inventory and
photograph of the confiscated items at the place of arrest
may be excused in instances when the safety and security of
the apprehending officers and the witnesses required by law
or of the items seized are threatened by immediate or
extreme danger such as retaliatory action of those who have
the resources and capability to mount a counter-assault.26
The present case is not one of those.
Here, IO1 Orellan took into custody the ₱500.00 bill, the
plastic box with the plastic sachet of white substance, and a
disposable lighter. IO1 Carin also turned over to him the
plastic sachet that she bought from Lim. While in the house,
IO1 Orellan marked the two plastic sachets. IO1 Orellan
testified that he immediately conducted the marking and
physical inventory of the two sachets of shabu.27 To ensure
that .they were not interchanged, he separately marked the
item sold by Lim to 101 Carin and the one that he recovered
from his possession upon body search as BB AEO 10-19-10
and AEO-RI 10-19-10, respectively, with both bearing his
initial/signature.28
Evident, however, is the absence of an elected public official
and representatives of the DOJ and the media to witness the
physical inventory and photograph of the seized items. 29 In
fact, their signatures do not appear in the Inventory Receipt.
The Court stressed in People v. Vicente Sipin y De Castro: 30
The prosecution bears the burden of proving a valid cause for
noncompliance with the procedure laid down in Section 21 of
R.A. No. 9165, as amended. It has the positive duty to
demonstrate observance thereto in such a way that during
the trial proceedings, it must initiate in acknowledging and
justifying any perceived deviations from the requirements of
law. Its failure to follow the mandated procedure must be
adequately explained, and must be proven as a fact in
accordance with the rules on evidence. It should take note
that the rules require that the apprehending officers do not
simply mention a justifiable ground, but also clearly state this
ground in their sworn affidavit, coupled with a statement on
the steps they took to preserve the integrity of the seized
items. Strict adherence to Section 21 is required where the
quantity of illegal drugs seized is miniscule, since it is highly
susceptible to planting, tampering or alteration of
evidence.31
It must be alleged and proved that the -presence of the three
witnesses to the physical inventory and photograph of the
illegal drug seized was not obtained due to reason/s such as:
(1) their attendance was impossible because the place of
arrest was a remote area; (2) their safety during the
inventory and photograph of the seized drugs was
threatened by an immediate retaliatory action of the accused
or any person/s acting for and in his/her behalf; (3) the
elected official themselves were involved in the punishable
acts sought to be apprehended; (4) earnest efforts to secure
the presence of a DOJ or media representative and an
elected public official within the period required under Article
125 of the Revised Penal Code prove futile through no fault of
the arresting officers, who face the threat of being charged
with arbitrary detention; or (5) time constraints and urgency
of the anti-drug operations, which often rely on tips of
confidential assets, prevented the law enforcers from
obtaining the presence of the required witnesses even before
the offenders could escape.32
Earnest effort to secure the attendance of the necessary
witnesses must be proven. People v. Ramos33 requires:
It is well to note that the absence of these required witnesses
does not per se render the confiscated items inadmissible.
However, a justifiable reason for such failure or a showing of
any genuine and sufficient effort to secure the required
witnesses under Section 21 of RA 9165 must be adduced. In
People v. Umipang, the Court held that the prosecution must
show that earnest efforts were employed in contacting the
representatives enumerated under the law for "a sheer
statement that representatives were unavailable without so
much as an explanation on whether serious attempts were
employed to look for other representatives, given the
circumstances is to be regarded as a flimsy excuse." Verily,
mere statements of unavailability, absent actual serious
attempts to contact the required witnesses are unacceptable
as justified grounds for noncompliance. These considerations
arise from the fact that police officers are ordinarily given
sufficient time - beginning from the moment they have
received the information about the activities of the accused
until the time of his arrest - to prepare for a buy-bust
operation and consequently, make the necessary
arrangements beforehand knowing full well that they would
have to strictly comply with the set procedure prescribed in
Section 21 of RA 9165. As such, police officers are compelled
not only to state reasons for their non-compliance, but must
in fact, also convince the Court that they exerted earnest
efforts to comply with the mandated procedure, and that
under the given circumstances, their actions were
reasonable. 34
In this case, IO1 Orellan testified that no members of the
media and barangay officials arrived at the crime scene
because it was late at night and it was raining, making it
unsafe for them to wait at Lim's house.35 102 Orcales
similarly declared that the inventory was made in the PDEA
office considering that it was late in the evening and there
were no available media representative and barangay
officials despite their effort to contact them.36 He admitted
that there are times when they do not inform the barangay
officials prior to their operation as they might leak the
confidential information.37 We are of the view that these
justifications are unacceptable as there was no genuine and
sufficient attempt to comply with the law.
The testimony of team-leader IO2 Orcales negates any effort
on the part of the buy-bust team to secure the presence of a
barangay official during the operation:
ATTY. DEMECILLO:
xx xx
Q x x x Before going to the house of the accused, why did
you not contact a barangay official to witness the operation?
A There are reasons why we do not inform a barangay official
before our operation, Sir.
Q Why?
A We do not contact them because we do not trust them.
They might leak our information. 38
The prosecution likewise failed to explain why they did not
secure the presence of a representative from the Department
of Justice (DOJ). While the arresting officer, IO1 Orellan,
stated in his Affidavit that they only tried to coordinate with
the barangay officials and the media, the testimonies of the
prosecution witnesses failed to show that they tried to
contact a DOJ representative.
The testimonies of the prosecution witnesses also failed to
establish the details of an earnest effort to coordinate with
and secure presence of the required witnesses. They also
failed to explain why the buy-bust team felt "unsafe" in
waiting for the representatives in Lim's house, considering
that the team is composed of at least ten (10) members, and
the two accused were the only persons in the house.
It bears emphasis that the rule that strict adherence to the
mandatory requirements of Section 21(1) of R.A. No. 9165, as
amended, and its IRR may be excused as long as the
integrity and the evidentiary value of the confiscated items
are properly preserved applies not just on arrest and/or
seizure by reason of a legitimate buy-bust operation but also
on those lawfully made in air or sea port, detention cell or
national penitentiary, checkpoint, moving vehicle, local or
international package/parcel/mail, or those by virtue of a
consented search, stop and frisk (Terry search), search
incident to a lawful arrest, or application of plain view
doctrine where time is of the essence and the arrest and/or
seizure is/are not planned, arranged or scheduled in advance.
To conclude, judicial notice is taken of the fact that arrests
and seizures related to illegal drugs are typically made
without a warrant; hence, subject to inquest proceedings.
Relative thereto, Sections 1 (A.1.10) of the Chain of Custody
Implementing Rules and Regulations directs:
A. I. I 0. Any justification or explanation in cases of
noncompliance with the requirements of Section 2I (1) of R.A.
No. 9I65, as amended, shall be clearly stated in the sworn
statements/affidavits of the apprehending/seizing officers, as
well as the steps taken to preserve the integrity and
evidentiary value of the seized/confiscated items.
Certification or record of coordination for operating units
other than the PDEA pursuant to Section 86 (a) and (b),
Article IX of the IRR of R.A. No. 9I65 shall be presented.39
While the above-quoted provision has been the rule, it
appears that it has not been practiced in most cases
elevated before Us. Thus, in order to weed out early on from
the courts' already congested docket any orchestrated or
poorly built up drug-related cases, the following should
henceforth be enforced as a mandatory policy:
1. In the sworn statements/affidavits, the
apprehending/seizing officers must state their compliance
with the requirements of Section 21 (1) of R.A. No. 9165, as
amended, and its IRR.
2. In case of non-observance of the provision, the
apprehending/seizing officers must state the justification or
explanation therefor as well as the steps they have taken in
order to preserve the integrity and evidentiary value of the
seized/ confiscated i terns.
3. If there is no justification or explanation expressly declared
in the sworn statements or affidavits, the investigating fiscal
must not immediately file the case before the court. Instead,
he or she must refer the case for further preliminary
investigation in order to determine the (non) existence of
probable cause.
4. If the investigating fiscal filed the case despite such
absence, the court may exercise its discretion to either refuse
to issue a commitment order (or warrant of arrest) or dismiss
the case outright for lack of probable cause in accordance
with Section 5,40 Rule 112, Rules of Court.
Let a copy of this Decision be furnished the Superintendent
of the Davao Prison and Penal Farm, B.E. Dujali, Davao del
Norte, for immediate implementation. The said Director is
ORDERED to REPORT to this Court within five (5) days from
receipt of this Decision the action he has taken.
Let copies of this Decision be furnished to the Secretary of
the Department of Justice, as well as to the Head/Chief of the
National Prosecution Service, the Office of the Solicitor
General, the Public Attorney's Office, the Philippine National
Police, the Philippine Drug Enforcement Agency, the National
Bureau of Investigation, and the Integrated Bar of the
Philippines for their information and guidance. Likewise, the
Office of the Court Administrator is DIRECTED to
DISSEMINATE copies of this Decision to all trial courts,
including the Court of Appeals.

WHEREFORE, premises considered, the February 23, 2017 SO ORDERED.

Decision of the Court of Appeals in CA-G.R. CR HC No. 01280-
MIN, which affirmed the September 24, 2013 Decision of
Regional Trial Court, Branch 25, Cagayan de Oro City, in
Criminal Cases Nos. 2010-1073 and 2010-1074, finding
accused-appellant Romy Lim y Miranda guilty of violating
Sections 11 and 5, respectively, of Article II of Republic Act
No. 9165, is REVERSED and SET ASIDE. Accordingly, accused-
appellant Romy Lim y Miranda is ACQUITTED on reasonable
doubt, and is ORDERED IMMEDIATELY RELEASED from
detention, unless he is being lawfully held for another cause.
Let an entry of final judgment be issued immediately.