G.R. No. 124058 December 10, 2003 Emmanuel.

He overtook Emmanuel, grabbed and pushed the pedicab which

nearly fell into a canal. Emmanuel again ignored the appellant and pedaled on
PEOPLE OF THE PHILIPPINES, appellee, until he reached his house. His wife, Norberta Cañon was in the balcony of their
vs. house, above the porch waiting for him to arrive. Emmanuel, Jr., meanwhile, was
JESUS G. RETUBADO alias "JESSIE," appellant. already asleep. Undeterred, the appellant continued following Emmanuel.

DECISION Shortly after Emmanuel had entered his house, the appellant arrived and tarried
at the porch. Emmanuel suddenly opened the door and demanded to know why
he was being followed. The appellant told Emmanuel that he just wanted to talk
CALLEJO, SR., J.:
to Emmanuel, Jr., but Emmanuel told the appellant that his son was already
asleep. Norberta went down from the balcony and placed her hand on her
This is an appeal from the Decision1 of the Regional Trial Court, Toledo City, husband’s shoulder to pacify him.
Branch 29, in Criminal Case No. TCS-2153 convicting the appellant Jesus G.
Retubado of murder, sentencing him to reclusion perpetua, and directing him to
The appellant forthwith pulled out a handgun from under his T-shirt and shot
indemnify the heirs of the victim Emmanuel Cañon the sum of P50,000.00.
Emmanuel on the forehead. The latter fell to the floor as the appellant walked
away from the scene. Norberta shouted for help. The neighbors, her daughter,
The appellant was indicted for murder in an Information, the accusatory portion of and her son-in-law arrived. They brought Emmanuel to the Tuburan District
which reads: Hospital, but the victim died shortly thereafter. Dr. Ivar G. Arellano, the Municipal
Health Officer, performed an autopsy on the cadaver of Emmanuel and prepared
That on the 5th day of November, 1993 at 9:30 o’clock in the evening, more or a report thereon with the following findings:
less, at Barangay I Poblacion, Municipality of Tuburan, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the above-named Examination in Detail:
accused, with deliberate intent to kill, by means of treachery, evident
premeditation and taking advantage of superior strength, did then and there On detailed examination, a gunshot wound was found at the left side of the
willfully, unlawfully and feloniously attack, assault and shoot Emmanuel Cañon forehead, measuring 1 cm. in diameter. At the skin surrounding this wound was
with the use of unlicensed revolver of unknown caliber, thereby hitting the latter found powder burns which measured 3 cms. in diameter as the skin had been
on his forehead, resulting to the instantaneous death of the said victim.
blackened and burned by powder of the bullet. The underlying frontal bone was
fractured and depressed. The underlying meninges of the brain as well as the
CONTRARY TO LAW.2 frontal area of the brain was traumatized and injured. Blood and cerebrospinal
fluid were leaking from this wound. The edges of this bullet wound was inverted
Shortly before November 5, 1993, someone played a joke on Edwin Retubado, thus this was the gunshot entry wound. The wound was found to be circular in
the appellant’s younger brother who was mentally ill. Someone inserted a lighted shape. The exit wound was found at the left parietal bone measuring 1.2 cm. in
firecracker in a cigarette pack and gave it to Edwin. He brought the cigarette size or diameter for this wound communicated with the entry wound of the left
home and placed it on the dining table as he was having dinner with his father. side of the forehead. The connection from the wound of entry to the exit wound
Momentarily, the firecracker exploded. The suspect was Emmanuel Cañon, Jr., measured 8 cms. The parietal bone was fractured and was depressed and the
The Cañons and the appellant were neighbors. The matter was brought to the parietal part of the brain and meninges was traumatized. Blood and
attention of the barangay captain who conducted an investigation. It turned out cerebrospinal fluid as well as brain tissues leaked out from this wound.
that Emmanuel Cañon, Jr. was not the culprit. The barangay captain considered
the matter closed. The appellant, however, was bent on confronting Emmanuel Possible cause of death:
Cañon, Jr.
1. Gunshot wound at the head (left side) with injury to brain and
On November 5, 1993, at about 9:00 p.m., 50-year-old Emmanuel Cañon, Sr., a meninges
pedicab driver called it a day and decided to go home after a day’s work. He
drove his pedicab and stopped at the junction of Rizal and Gallardo Streets, at 2. Hypovolemic shock secondary to loss of blood (Severe loss of blood)
the poblacion of Tuburan. The appellant, who was conversing with Marcial
Luciño saw him. "Noy, why is [it] your son did something to my brother?"
Emmanuel ignored the appellant. The appellant was incensed and ran after (Sgd.) Ivar G. Arellano
MUN. Health Officer3
Dr. Charity Patalinghug and the victim’s daughter Loreta C. Claro signed appellant called the victim, the latter ignored the call, prompting the appellant to
Emmanuel’s Certificate of Death.4 The appellant surrendered to the police chase the victim, and eventually push the pedicab into a canal.
authorities but failed to surrender the firearm he used to kill the victim. Forensic
Officer Myrna P. Areola of the PNP Regional Office subjected the appellant to The appellant’s father, Iñigo Retubado, testified that on the evening of November
paraffin tests. The Chemical Analysis of the paraffin casts gave the following 5, 1993, he was in their house with Edwin, his son who was mentally-ill. It was
results: already late when the appellant arrived. The appellant was disheveled, and laid
down the gun he was carrying on the table. The appellant told his father that he
FINDINGS: would surrender to the police because he had shot somebody.6 The appellant
thereafter went to his room to change clothes while Iñigo went to the comfort
... room to answer the call of nature. When he was done, he saw the appellant
frantically looking for the gun. As Edwin was also nowhere to be found, Iñigo
concluded that Edwin might have taken the gun with him. He also testified on
1. POSITIVE for the presence of gunpowder residue on his left hand
Edwin’s mental imbalance and on the latter’s confinement at the Psychiatric
cast.
Department of the Don Vicente Sotto Memorial Medical Center in Cebu City
sometime in 1991.7
2. NEGATIVE for the presence of gunpowder residue on his right hand
cast.5
On November 6, 1993, the appellant surrendered to the police authorities.
Although he was required by the municipal trial court to file his counter-affidavit,
Norberta also testified on the expenses incurred by her family due to her the appellant refused to do so.
husband’s death. No documentary evidence was, however, offered to support the
same. She declared that she felt sad and lonely as a result of her husband's
After due proceedings, the trial court rendered judgment in Criminal Case No.
death.
TCS-2153, convicting the appellant of murder, and sentencing him to reclusion
perpetua. The decretal portion of the decision reads:
The Case for the Appellant
WHEREFORE, in view of the foregoing, this Court finds accused GUILTY
The appellant admitted shooting the victim but claimed that he was merely beyond reasonable doubt of the crime of Murder under Art. 248 R.P.C. and
performing a lawful act with due care; hence, cannot be held criminally liable for sentences the accused to the penalty of Reclusion Perpetua and to indemnify the
the victim’s death. He testified that when he insisted that Emmanuel wake up his heirs of the deceased the sum of P50,000.00.
son, Emmanuel went to his room and emerged therefrom holding a handgun with
his right hand. Emmanuel’s trigger finger was outside the trigger guard, and he However, accused is given full credit of his preventive imprisonment.
held the firearm with the muzzle facing downward. Fearing that he would be shot,
the appellant took hold of Emmanuel’s right hand with his left, and pulled the gun
towards Emmanuel’s stomach. The appellant grabbed Emmanuel’s free hand SO ORDERED.8
with his right hand, and the old man almost fell on his knees to the ground.
Emmanuel still resisted. The appellant pulled the gun to the level of Emmanuel’s On appeal, the appellant assails the decision of the trial court contending that:
forehead, and the gun suddenly went off. The bullet hit Emmanuel’s forehead.
Norberta fled from the house. For his part, the appellant rushed to his house to I
change clothes. He placed the gun on the dining table before entering his
bedroom. When he went back to the dining room to get the gun, his younger
First Assignment of Error
sister, Enrica told him that their brother Edwin had taken the gun. He found
Edwin outside their house near the church, and the latter told the appellant that
he threw the gun into the sea. When the appellant asked his brother to show him THE LOWER COURT ERRED IN NOT FINDING THE DEATH OF THE
where he threw the gun, Edwin refused to do so. DECEASED AS CAUSED BY MERE ACCIDENT WITHOUT FAULT OR
INTENTION OF CAUSING IT WHILE THE ACCUSED WAS PERFORMING A
LAWFUL ACT WITH DUE CARE OR, IN THE ALTERNATIVE, IT ERRED IN
Marcial Luciño corroborated the appellant’s testimony. He testified that he was
NOT CONVICTING HIM JUST MERELY OF HOMICIDE INSTEAD OF
talking with the appellant at around 9:00 p.m. at the junction of Rizal and
MURDER.
Gallardo streets when the victim Emmanuel passed by in his pedicab. When the
II ...

Second Assignment of Error 4) Any person who, in order to avoid an evil or injury, does an act which causes
damage to another provided that the following requisites are present:
THE LOWER COURT ERRED IN DISREGARDING THE VERY RELEVANT
AND MATERIAL CONTENTS OF EXHIBIT "B" OF THE PROSECUTION --- First. That the evil sought to be avoided actually exists;
CHEMISTRY REPORT, PARAFFIN TEST -- WHICH ARE FAVORABLE TO THE
ACCUSED. Second. That the injury feared be greater than that done to avoid it;

III Third. That there be no other practical and less harmful means of
preventing it.
Third Assignment of Error
The provision was taken from Article 8, paragraph 7 of the Spanish Penal Code,
THE LOWER COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF which reads:
THE SOLE WITNESS OF THE PROSECUTION IS SATISFACTORY AND
SUFFICIENT TO CONVICT THE ACCUSED OF MURDER. ARTICULO 8.

IV 7. El que para evitar un mal ejecuta un hecho que produzca dañ en la propiedad
ajena, siempre que concurran las circumstancias siguientes:
Fourth Assignment of Error
Primera. Realidad del mal que se trata de evitar.
THE LOWER COURT ERRED IN FAILING TO CONSIDER THAT THE
ACCUSED HAS EXPLAINED WHY HE FAILED TO SURRENDER THE GUN Segunda. Quesea mayor que el causado para evitarlo.
WHICH HE GOT FROM THE DECEASED.9
Tercera. Que no haya otro medio practicable y menos
The appellant asserts that he was merely performing a lawful act of defending perjudicial para impedirlo.
himself when he grabbed the victim’s hand which held the gun. The gun
accidentally fired and the bullet hit the victim’s forehead. The accident was not
Article 11, paragraph 4 of the Revised Penal Code is not an accurate translation
the appellant’s fault. The appellant asserts that when he wrestled with the victim
of the Spanish Penal Code. The phrase "an injury" does not appear in the first
for the possession of the gun, he was merely defending himself. He contends
paragraph in the Spanish Penal Code. Neither does the word "injury" appear in
that he had no intention of killing the victim, as he merely wanted to talk to his
the second subparagraph of the Spanish Penal Code.
son. If he had wanted to kill the victim, he could have easily done so when he
met the latter for the first time that fateful night of November 5, 1993. Moreover,
the appellant submits, he did not commit any felony; hence, under paragraph 4 of The justification is what is referred to in the Spanish Penal Code as el estado de
Article 12 of the Revised Penal Code, he is not criminally liable for the death of necessidad:
the victim.10 In the alternative, the appellant asserts that he should be convicted
only of the crime of homicide under Article 249 of the Revised Penal Code, since Es una situacion de peligro, actual o immediato para bienes, juridicamente
the qualifying circumstance of treachery is wanting. He and the victim had a protegides que solo puede ser evitada mediante, la lesion de bienes, tambien
heated exchange of words before they grappled for the possession of the gun. juridicamento protegidos, pertenecientes a otra personas.11
Such heated discussion had already forewarned the victim and placed him on
guard; thus, treachery cannot be legally considered. The phrase "state of necessity" is of German origin. Countries which have
embraced the classical theory of criminal law, like Italy, do not use the phrase.
The contention of the appellant has no merit. Article 11, paragraph 4 of the The justification refers to a situation of grave peril (un mal), actual or imminent
Revised Penal Code reads: (actual o imminente). The word propiedad covers diverse juridical rights (bienes
juridicos) such as right to life, honor, the integrity of one’s body, and property (la
ART. 11. Justifying circumstances. –
vida, la integridad corporal, el pudor, el honor, bienes patrimoniales) belonging to unlawful aggressor and the author of a deliberate and malicious act of shooting
another.12 the victim at close range on the forehead.

It is indispensable that the state of necessity must not be brought about by the First: When Norberta heard her husband and the appellant arguing with each
intentional provocation of the party invoking the same. 13 other in the porch of their house, she went down from the balcony towards her
husband and placed her hand on the latter’s shoulders. She was shocked when
A number of legal scholars in Europe are of the view that the act of the accused the appellant pulled out his handgun and deliberately shot the victim on the
in a state of necessity is justifying circumstance; hence, lawful. Under Article 12, forehead, thus:
paragraph 4 of the Revised Penal Code, a "state of necessity" is a justifying
circumstance. The accused does not commit a crime in legal contemplation; Q Now, you said that when your husband was about to go out again in order to
hence, is not criminally and civilly liable. Civil liability is borne by the see his trisicad and as he opened the door he saw Jesus Retubado near the
person/persons benefited by the act of the accused. Crimes cannot exist unless door. What happened after that?
the will concurs with the act, and when, says Blackstone, "a man intending to do
a lawful act, does that which is unlawful, the deed and the will act separately" and A He asked Jesus Retubado why Jesus Retubado chased him when he was
there is no conjunction between them which is necessary to constitute a driving his trisicad.
crime.14 Others are of the view that such act is a cause for exclusion from being
meted a penalty; still others view such act as a case of excluding the accused
from culpability. Q Now, as your husband was asking this question to the accused Jesus
Retubado what was the distance to your husband at the time?

According to Groizard, rights may be prejudiced by three general classes of acts,

A Just very near to him.
namely, (a) malicious and intentional acts; (b) negligent or reckless acts; (c) acts
which are neither malicious, imprudent nor negligent but nevertheless cause
damages. Q And you to the accused at that very moment what was more or less your
distance?
Nuestra propiedad puede ser perjudicada, puede sufrir detrimentos por tres
clases de hechos. Por actos maliciosos, intencionales, encaminados
1âwphi 1
A About an armslength.
directamente a causarnos daño; por actos que, sin llevar ese malicioso fin y por
falta de prudencia, por culpa o temeridad del que los ejecuta, den ese mismo Q When your husband asked Jesus Retubado why the latter chased him while
resultado, y por actos que, sin concurrir en su ejecucion un proposito doloso, ni your husband was driving his trisicadwhat was the answer of Jesus Retubado, if
culpa, ni negligencia sin embargo produzcan menocabo en nuestros bienes.15 any?

The defense of a state of necessity is a justifying circumstance under Article 12, A My husband asked the accused Jesus Retubado what is his grudge to him and
paragraph 4 of the Revised Penal Code. It is an affirmative defense that must be Jesus Retubado answered that it is not you who has a grudge to me but it is your
proved by the accused with clear and convincing evidence. By admitting causing son.
the injuries and killing the victim, the accused must rely on the strength of his
own evidence and not on the weakness of the evidence of the prosecution Q When Jesus Retubado uttered that statement what transpired after that?
because if such evidence is weak but the accused fails to prove his defense, the
evidence of the prosecution can no longer be disbelieved. Whether the accused
acted under a state of necessity is a question of fact, which is addressed to the A He immediately pointed his firearm that he was bringing (sic) to my husband
sound discretion of the trial court. The legal aphorism is that the findings of facts Emmanuel Cañon.
by the trial court, its calibration of the testimony of the witnesses of the parties
and of the probative weight thereof as well as its conclusions based on its own Q By the way considering that you were just near to both your husband and the
findings are accorded by the appellate court high respect, if not conclusive effect, accused where did that firearm that you said was pointed by the accused to your
unless the trial court ignored, misconstrued or misapplied cogent facts and husband come (sic) from?
circumstances of substance which, if considered, will change the outcome of the
case. We have meticulously reviewed the records and find no basis to deviate A While the accused was standing in front of our door his hands were placed
from the findings of the trial court that the appellant was the provocateur, the inside his T-shirt covered by his T-shirt.
Atty. Pepito: A That was what the position of the accused when he was standing in front of our
door and I do not know what was inside his T-shirt. I only know that he was
We move to strike out the answer. It is not responsive, Your Honor. The question carrying a firearm when it fired.
was, where did it come from?
Q Now, when the accused pointed the firearm to your husband and fired the
COURT: same more or less what was the distance between the accused and your
husband at the very precise time when the firing was made?
Let the answer stay in the record but let the witness answer again.
A It was just very near because his hand did not bend. (Witness demonstrating
by pointing to her forehead).
A From the hands of accused Jessie.
Q Now, more or less, describe to the Court the approximate distance between
Fiscal Pansoy:
the firearm that was pointed to your husband and the forehead of your husband
at the time when the firing was done?
Q Now, just a while ago you were making a motion using your hand placed inside
your T-shirt. Now, when you saw the firearm for the first time where did you saw A It touched the forehead of my husband.
(sic) the firearm for the first time where did the firearm come from as you saw it
from the hands of the accused?
Q That was the very time that you heard the gunburst?
Atty. Pepito:
A Yes.
Already answered. It came from the hands of the accused.
Q When the accused fired the firearm that was carried by him, what happened to
your husband?
Fiscal Pansoy:
A My husband fell down backward to the ground inside the house.
I will reform.

Q By the way, what was the flooring of your house where your husband fell
Q Before you saw the firearm in the hands of the accused where did the firearm backward to the ground?
come from?
A Cemented.
Atty. Pepito:
Q By the way considering that you were just very near to where the incident
She is incompetent. We object.
occurred can you describe the length of the firearm that was used by the
accused in firing your husband?
COURT:
A It was a short firearm about 6 inches.
Reform the question.
Q Now, as your husband fell down to the floor where did the accused proceed
Fiscal Pansoy: and what did the accused do?

Q Now, Mrs. Witness, before this question was asked to you as to where the A He was just casually walking away as if nothing had happened.
firearm came from you were making a motion by placing your hands inside your
shirt when you were only asked as to where the firearm came from?
Q Now, what did you do to your husband, if any, after he fell down to the floor?
A I have done nothing because I was somewhat shocked. I could not move doubt of homicide defined in and penalized by Article 249 of the Revised Penal
because I was shocked.16 Code and is hereby sentenced to suffer an indeterminate sentence of ten (10)
years of prision mayor, in its medium period, as minimum, to fifteen (15) years of
Second: After shooting the victim, the appellant fled from the situs criminis. He reclusion temporal, in its medium period, as maximum, and to pay the heirs of
surrendered to the police authorities only on November 6, 1993, but failed to the victim, Emmanuel Cañon, ₱50,000.00 as civil indemnity; ₱50,000.00 as
surrender the gun he used to kill the victim. The appellant’s claim that he placed moral damages; and P25,000.00 as temperate damages.
the gun on the dining table before entering his bedroom to change his clothes is
incredible. There is no evidence that the appellant informed the police authorities SO ORDERED.
that he killed the victim in a state of necessity and that his brother, Edwin, threw
the gun into the sea. The appellant never presented the police officer to whom he
confessed that he killed the victim in a state of necessity.

Third: The appellant had the motive to shoot and kill the victim. The victim
1av vphi1

ignored the appellant as the latter talked to him at the junction of Rizal and
Gallardo streets, in the poblacion of Tuburan. The appellant was incensed at the
effrontery of the victim, a mere pedicab driver. The appellant followed the victim
to his house where the appellant again confronted him. The appellant insisted on
talking with the victim’s son but the victim refused to wake up the latter. The
appellant, exasperated at the victim’s intransigence, pulled out a gun from under
his shirt and shot the victim on the forehead. It was impossible for the victim to
survive. With the appellant’s admission that he shot the victim, the matter on
whether he used his right or left hand to shoot the latter is inconsequential.

We agree with the contention of the Solicitor General that there is no treachery in
the present case to qualify the crime to murder. To appreciate treachery, two (2)
conditions must be present, namely, (a) the employment of the means of
execution that give the person attacked no opportunity to defend himself or to
retaliate, and (b) the means of execution were deliberately or consciously
adopted.17 The prosecution failed to adduce an iota of evidence to support the
confluence of the abovementioned conditions. Thus, the appellant is guilty only of
homicide under Article 249 of the Revised Penal Code. Although the Information
alleges that the appellant used an unlicensed firearm to shoot the victim, the
prosecution failed to prove that the appellant had no license to possess the
same. Hence, the aggravating circumstance of the use of an unlicensed firearm
to commit homicide should not be appreciated against the appellant.

The appellant is entitled to the mitigating circumstance of voluntary surrender. He

turned himself in to the police authorities prior to the issuance of any warrant for
his arrest.

The trial court awarded ₱50,000.00 as civil indemnity18 to the heirs of the
deceased. In addition, the heirs are entitled to moral damages in the amount of
₱50,000.0019 and the temperate damages in the amount of ₱25,000.00 since no
sufficient proof of actual damages was offered.20

WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATION. The

appellant Jesus G. Retubado alias "Jessie" is found GUILTY beyond reasonable
G.R. Nos. L-30527-28 March 29, 1974 shoulder. Ricohermoso stood near the door of his house while Severo Padernal
was stationed near the eaves of the house.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. Geminiano asked Ricohermoso about the palay. The latter, no longer conciliatory
PIO RICOHERMOSO, SEVERO PADERNAL, JUAN PADERNAL, ROSENDO and evidently hostile, answered in a defiant tone: "Whatever happens, I will not
PERPEÑAN, MACARIO MONTEREY and RITO MONTEREY, defendants, give you palay." Geminiano remonstrated: "Why did you tell us to pass by your
JUAN PADERNAL and SEVERO PADERNAL, defendants-appellants. house, if you were not willing to give the palay?"

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General At that juncture, as if by pre-arrangement, Ricohermoso unsheathed his bolo and
Antonio A. Torres and Trial Attorney Lolita C. Dumlao for plaintiff-appellee. approached Geminiano from the left, while Severo Padernal (Ricohermoso's
father-in-law) got an axe and approached Geminiano from the right. The latter
Rogerio S. T. Cadag for defendants-appellants. looked up to the sexagenarian Severo Padernal, with both hands raised and
pleaded: "Mamay (Grandpa), why will you do this to us. We will not fight you."
While Geminiano was still looking up to Severo Padernal on his right,
Ricohermoso walked to Geminiano's left, and, when about one meter from him,
stabbed him on the neck with his bolo. Geminiano fell face downward on the
AQUINO, J.:p ground. While in that helpless position, he was hacked on the back with an axe
by Severo Padernal.
Severo Padernal and Juan Padernal appealed from the decision of the Circuit Criminal Court at
Lucena City, convicting them of murder, sentencing each of them to reclusion perpetua and ordering
them to pay solidarily the sum of twelve thousand pesos to the heirs of Geminiano de Leon and to pay At that same place and time, while Severo Padernal and Ricohermoso were
the costs (Criminal Case No. CCC-IX-37-Quezon or 1922-CFI-Gumaca). assaulting Geminiano de Leon, another episode was taking place. Juan Padernal
(Ricohermoso's brother-in-law and the son of Severo) suddenly embraced
In the same decision they were convicted of lesiones leves. Each one was Marianito de Leon from behind, with his right arm locked around Marianito's neck
sentenced to suffer the penalty of fifteen (15) days of arresto menor and to pay and his left hand pressing Marianito's left forearm. They grappled and rolled
the costs. Rosendo Perpeñan, Rito Monterey and Macario Monterey were downhill towards a camote patch. Marianito passed out. When he regained
acquitted (Criminal Case No. CCC-IX-38-Quezon or 1923-CFI-Gumaca). consciousness, his rifle was gone. He walked uphill, saw his mortally wounded
father Geminiano in his death throes, and embraced him. He carried Geminiano
for a short distance. The fifty-one year old Geminiano died at two o'clock on that
The facts disclosed in the prosecution's evidence, on which the judgment of same day.
conviction was based, are as follows:
Doctor Isabela A. Matundan certified that Geminiano de Leon sustained the
At about nine o'clock in the morning of January 30, 1965 Geminiano de Leon, following wounds:
together with his thirty-three-year old common-law wife Fabiana Rosales, his
twenty-four-year old son Marianito de Leon and one Rizal Rosales, encountered
Pio Ricohermoso in Barrio Tagbacan Silangan, Catanauan, Quezon. 1. Wound, incised, neck, lateral aspect, left, cutting the carotid
artery and jugular vein, 4 inches in length crosswise with
fracture of the cervical vertebra.
Geminiano owned a parcel of land in that barrio which Ricohermoso cultivated as
kaingin. Geminiano asked Ricohermoso about his share of the palay harvest. He
added that he should at least be allowed to taste the palay harvested from his 2. Wound, incised, back lumbar region, left, 4 ½ inches, directed
land. Ricohermoso answered that Geminiano could go to his house anytime and anteriorly, 3 inches deep.
he would give the latter palay. Geminiano rejoined that he could not get the palay
that morning because he was on his way to Barrio Bagobasin but, on his return, 3. Wound, incised, waist, dorsal, 1 ½ inches, skin only.
he would stop at Ricohermoso's house and get the palay.
4. Hematoma, forearm, upper third, left. (Exh. B).
When Geminiano returned to Barrio Tagbacan Silangan, he stopped at
Ricohermoso's place. It was about two o'clock in the afternoon. Geminiano sat on Doctor Matundan said that the first wound was fatal. It could have caused
a sack beside Fabiana Rosales in front of the house while Marianito stood about instantaneous death because it was a deep wound which pierced the carotid
three meters behind his father. A .22 caliber rifle was slung on Marianito's right
artery and jugular vein (Exh. C). The second wound on the back could likewise Severo Padernal, who were the aggressors, was designed to insure the killing of
have caused the victim's death if it had penetrated the kidney. Geminiano de Leon without any risk to his assailants.

Doctor Matundan found that Marianito de Leon sustained multiple abrasions on Juan Padernal was not avoiding any evil when he sought to disable Marianito.
the neck and abdomen and a lacerated wound on the left foot which would heal Padernal's malicious intention was to forestall any interference in the felonious
from one to nine days even without medical treatment. assault made by his father and brother-in-law on Geminiano. That situation is
unarguably not the case envisaged in paragraph 4 of article 11.
Appellants' version is that in the afternoon of January 30, 1965, when
Ricohermoso refused to give any palay to Geminiano de Leon, because the land Juan Padernal contends that he was not a co-principal because he did not take
tilled by the former was allegedly a public land, Geminiano approached any direct part in the killing of Geminiano, that he did not force or induce
Ricohermoso. When Geminiano unsheathed his bolo, Ricohermoso met him, Ricohermoso to stab Geminiano and that he allegedly did not cooperate in its
drew his bolo and struck Geminiano on the left side of the neck. The latter tried to commission. That contention is not well-taken.
parry the blow. He was wounded in the wrist. As Geminiano turned right to flee,
Ricohermoso struck him again on the left side of his body, causing him to fall on It should be recalled that, in the morning, Geminiano had an understanding with
the ground. Geminiano died on the spot due to the bleeding from the wound on Ricohermoso that he (Geminiano) would return in the afternoon to get his share
his neck. of the palay harvest. Ricohermoso gave Geminiano the impression that he
(Ricohermoso) was amenable to giving Geminiano his share of the harvest.
While Geminiano was being assaulted, his son Marianito tried to shoot with his However, during the interval, Ricohermoso changed his mind. Instead of
rifle but Juan Padernal disabled him and wrested the gun. Marianito suffered remaining steadfast to his original intention to give Geminiano palay,
abrasions on the neck and other parts of the body (Pages 1 to 3, appellants' Ricohermoso planned with his father-in-law, Severo Padernal, and his brother-in-
brief). law, appellant Juan Padernal, the manner of liquidating Geminiano as to stop him
from pestering Ricohermoso with demands for a share in the harvest.
It is manifest that the defendants fashioned their version in such a way as to shift
the responsibility for the killing to Ricohermoso, a fugitive from justice who has So, when Geminiano reappeared at Ricohermoso's place in the afternoon,
not been tried. They also tried to exculpate Severo Padernal and to prove that Severo Padernal, Ricohermoso Juan Padernal, like actors in a well-rehearsed
Ricohermoso acted in self-defense. play, performed their assigned roles with dramatic precision. Severo Padernal
and Ricohermoso, one armed with an axe and the other with a bolo, in a pincer
The appellants filed their brief on February 6, 1970. Later, Severo Padernal movement, confronted Geminiano de Leon. Simultaneously with that maneuver,
withdrew his appeal. The withdrawal was granted in the resolution dated the thirty-five-year old Juan Padernal embraced Marianito de Leon and
November 3, 1970 (Page 206, Rollo). That withdrawal strengthened the case for prevented him from firing at Severo Padernal and Ricohermoso or from helping
the prosecution or the appellee and rendered inoperative appellants' version of his father.
the case. Severo Padernal in effect accepted as correct the prosecution's version
of the tragic incident and the trial court's finding that he conspired with Considering the trio's behavior and appellant Juan Padernal's close relationship
Ricohermoso and his son, Juan, to kill Geminiano de Leon. to Ricohermoso and Severo Padernal, the ineluctable conclusion is that he acted
in conspiracy with them. He coordinated and timed his seizure of Marianito with
The only issue in this appeal, which concerns Juan Padernal, is whether he the assault of Ricohermoso and Severo Padernal on Geminiano. It is doubtful if
conspired with Ricohermoso and Severo Padernal to kill Geminiano de Leon. the assailants could have consummated the killing of Geminiano, without their
suffering any injury, if Marianito had not been rendered helpless by appellant
Juan Padernal.
The trial court rationalized its conclusion that there was conspiracy by stating that
their conduct revealed unity of purpose and a concerted effort to encompass
Geminiano's death. The circumstances surrounding the killing of Geminiano de Leon alevosia or
treachery. His hands were raised and he was pleading for mercy with Severo
Padernal, when Ricohermoso struck him on the neck with a bolo. The fact that an
Appellant Juan Padernal invokes the justifying circumstance of avoidance of a
exchange of words preceded the assault would not negate the treacherous
greater evil or injury (par. 4, Art. 11, Revised Penal Code) in explaining his act of character of the attack. Geminiano did not expect that Ricohermoso would
preventing Marianito de Leon from shooting Ricohermoso and Severo Padernal. renege on his promise to give him palay and that he would adopt a bellicose
His reliance on that justifying circumstance is erroneous. The act of Juan attitude. Juan Padernal's role of weakening the defense, by disabling Marianito
Padernal in preventing Marianito de Leon from shooting Ricohermoso and
de Leon, was part and parcel of the means of execution deliberately resorted to
by the assailants to insure the assassination of Geminiano de Leon without any
risk to themselves (Par. 16, Article 14, Revised Penal Code).

Treachery was appreciated in a case where the accused fired at the victim who,
with hands upraised, pleaded in a loud voice: "Do not shoot me; investigate first
what was my fault" (People vs. Barba, 97 Phil. 991. See People vs. Dagundong,
108 Phil. 682, 684, 693).

As to the other case, L-30528, the charge against the appellants was attempted
murder with respect to Marianito de Leon. The trial court convicted them lesiones
leves. The case was included in this appeal apparently pursuant to the provision
in section 17(1) of the Judiciary Law that a case arising out of the same
occurrence, as that in which reclusion perpetua was imposed, is appealable to
this Court.

Inasmuch as Juan Padernal did not touch upon the lesiones leves case in his
brief, he, like his father Severo, seems to have acquiesced in the correctness of
the trial court's decision.

WHEREFORE, the judgment of the lower court as to appellant Juan Padernal is

affirmed with costs against him.

SO ORDERED.
G.R. No. L-18660 December 22, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
FELIPE DELIMA, defendant-appellant.

Tancinco & Rosales for appellant.

Attorney-General Villa-Real for appellee.

ROMUALDEZ, J.:

Lorenzo Napilon had escaped from the jail where he was serving sentence.

Some days afterwards the policeman Felipe Delima, who was looking for him,
found him in the house of Jorge Alegria, armed with a pointed piece of bamboo in
the shape of a lance, and demanded his surrender. The fugitive answered with a
stroke of his lance. The policeman dodged, it, and to impose his authority fired
his revolver, but the bullet did not hit him. The criminal ran away, without parting
with his weapon. These peace officer went after him and fired again his revolver,
this time hitting and killing him.

The policeman was tried and convicted for homicide and sentenced to reclusion
temporal and the accessory penalties. He appeals from that judgment which
must be reversed.

That killing was done in the performance of a duty. The deceased was under the
obligation to surrender, and had no right, after evading service of his sentence, to
commit assault and disobedience with a weapon in the hand, which compelled
the policeman to resort to such an extreme means, which, although it proved to
be fatal, was justified by the circumstances.
lawphil.net

Article 8, No. 11, of the Penal Code being considered, Felipe Delima committed
no crime, and he is hereby acquitted with the costs de oficio. So ordered.
G.R. Nos. L-1940-42 March 24, 1949 three shots. The second one hit him. After the first shot "we were all assembled."
(132-14). The witness did not see Tipace being shot. "The reason as to why I ran
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, was because I was afraid that I might be shot again." (16). His companions were
vs. probably scared and that is why they ran. (17).
IGNACIO LAGATA, defendant-appellant.
2. Mariano Ibañez, 25, married detained prisoner Zumarraga, Samar. — On
Vicente del Villar for appellant. October 3, 1946, he was in the provincial jail as a detained prisoner. After
Assistant Solicitor General Guillermo E. Torres and Solicitor Jaime de los breakfast, six prisoner were called: Epifanio Labong Ceferino Tipace, Eustaquio
Angeles for appellee. Galet, Jesus Manoso, Eusebio Abria and the witness, Mariano Ibanez. They
went to work in the plaza of the provincial jail. At about 11:00 o'clock they were
taking a rest and while they were taking a rest the witness heard Lagata inviting
PERFECTO, J.:
the prisoners to go the nursery to gather near the provincial hospital. They
scattered to get gabi. "We scarcely got three gabis when I heard Ignacio Lagata
The witnesses in the this case testified in substance as follows: calling us to assemble." The place was grassy were picking gabi Lagata was
standing by the side of a mango tree. At the call of Lagata only five them to call
PROSECUTION for him. (19-21). "Inasmuch as Epifanio Labong did not answer our call Ignacio
Lagata ordered us to go to the mountain and look for Epifanio Labong. Eusebio
1. Eusebio Abria 20 single farmer Jinangutdan, Santa Rita Samar. — On October then went to the camote plantation. He foundfootprints and he called Ignacio
3, 1946 he was in the provincial jail detained for illegal possession of firearm, but Lagata to inform him that he saw footprints. On account of this report of Eusebio
his case was dismissed. Ignacio Lagata was a provincial guard Six Prisoners that he saw flattened grass and that hewas unable to look for Epifanio Labong sa
were then assigned to work in the capitol's plaza; Jesus, Tipace, Eusebio Ignacio Lagata filed at him and he was hit on the left arm." He was at about three
Mariano the witness and Epifanio Labong. their guard ordered them to go to the meter from Lagata. (22). The witness was at the left side of Ceferino Tipace at
nursery to pick up gabi. Not long afterwards they were called to assemble. about two meter from Abria.Abria said, "Mano, I am wounded." Lagata said in
Epifanio Labong was missing. The nursery is near the provincial hospital in turn, "Come around assemble here." Abria came to the right side of Lagata. (23).
Catbalogan. The place was grassy. Lagata ordered the five prisoner to call "Oncewe were already assembled there Ignacio Lagata cocked his gun and shot
Labong (4-7). As Labong did not answer Lagata ordered the five prisoners to Ceferino Tipace and when I saw that Ceferino Tipace was hit then I ran away
look for him. They followed the trail. Upon reaching the nation highway, Lagata because I had in mind that had i not ran I would have been shot also." At the time
called them. As Labong did not answer their call Lagata ordered the five to look Tipace was "standing and carrying with him on his left arm some gabi and when
farther for him. The five prisoners went towards the mountain. Upon reaching a he turned to the left that was the time when he was shot by Ignacio Lagata. The
camote plantation, "I saw footprints. I called my companions. While we were all in bullet penetrated from the left side of the armpit and came out from the right side
the camote plantation I did not know that I was shot by Ignacio Lagata. He was of the body." Tipace was at about two meter then from Lagata. "At about 4:00
about four meter away from me. He fired at my left arm." At the time the witness o'clock in the afternoon of that day I returned to the provincial jail. I did not return
was standing one of his companions was at his right side three or four meter immediately because I was afraid." Tipace was killed. (23). One morning, Lagata
behind him. All walked almost together at the moment because they wanted to gave the witness fist blow on the abdominal region and kicked him at the back
see the footprints pointed by the witness. "At the moment that he was hit he Because the pervious night the witness told the prisoners not to make much
immediately called the attention of Ignacio Lagata 'Mano, I am wounded.' He said noise. "I did not have ill-feeling because he had the right to maltreat me even if I
it is because you did not approach to me." (8-9). "When I saw that he again was not at fault." (29). At the time they were searching for Labong before the
manipulated the chamber of his gun I ran away. When I say that my other shooting they were walking in an ordinary way looking toward the ground one
companion ran away, I ran also. I noticed that my left arm was wounded. When I after another at about half a meter from each other. Lagata was behind all of
was already sitting by the front of the coconut tree I heard another gun shot." them. (31).
Tipace is already dead "I did not see him anymore. When Ignacio Lagata passed
by where I was I Requested him to take me. He brought me to the justice building 3. Gilberto C. Rosales 63, married, president Sanitary Division Catbalogan,
Hospital. My left arm is amputated just right at the joint between the shoulder and Samar. — On October 17, 1946, the cadaver of Ceferino Tipace was exhumed.
the arm. It is not yet completely healed." The witness had no intention to run from (35). The witness found in it, "A gun shot wound which went through the body
Lagata. (11). Labong asked Lagata permission to gather gabi. The other prisoner from the lower left axillary region to the right shoulder." (36).
did not say anything. Lagata told them to go to the nursery. While they were
gathering gabi Lagata was near them. (12). But he could not see everybody 4. Eustaquio Galet, 20, married detained prisoner. — On October 3, 1946, he
because there was talahib growing in the place and it was tall. The witness heard was one of the six prisoner who worked in the premises of the capitol building.
(38). "We went to the nursery and each one of us got gabi. The guard Ignacio disappearance of prisoner Epifanio Labong. At the time, the witness was already
Lagata was under the mango tree. I was about ten meter awayfrom him. It was far, because he had to attend to several laborers detained at the capitol building.
grassy in the place where we were picking gabi. Not long after we were called by When he returned from the capitol building, he was informed that Epifanio
Ignacio Lagata because we were going home already. One was missing, Labong disappeared. (57-59). The witness did not hear any gun shot explosion in
Epifanio Labong. Ignacio Lagata ordered us to call Epifanio Labong but Epifanio the nursery. He saw the accused guarding the prisoners at about 8:00 o'clock in
Labong but Epifanio Labong did not answer." (39) The talahib plants growing in the morning. (60). The witness stayed in the nursery until about 8:30, when he
the place were taller than myself. " Lagata orderedus to search for Epifanio came to the capitol building. (61).
Labong. We went around the place and then crossed the national highway and
went up the mountain until we reached tom place where cogon grass were 2. Ignacio Lagata, 27, married, Catbalogan. — On October 3, 1946, he
growing. Eusebio Abria and myself saw flattened grass. We informed Ignacio accompanied the six prisoners from the provincial jail to the plaza of the
Lagata that there was a trace where a person had passed by or he may have provincial capitol. He remained there until 10 o'clock in the morning, when he told
gone that way. Then Ignacio Lagata fired one time. While we were searching for them to return to the provincial jail. The six prisoners requested him to allow them
Epifanio Labong each one of us were bent and leaning looking downward. I to get some gabi in the nursery. Lagata went with them to a spot around the
heard a gun shot and that was the time when Eusebio Abria was shot and then mango tree. (63-64). The grass in the place was knee-high. Lagata was under a
once he was hit he called Ignacio Lagata his hand at his wound and then got mango tree about five meters from the prisoners. He was watching all of them.
near Ignacio Lagata." (40). "Upon seeing that one of our companions was They were scattered back, Epifanio Labong took advantage and escaped. "I did
already shot without fault, I ran away and came down to the capitol building and not discover that but when I called them to assemble I found out that one
then went to the provincial jail and reported the matter to the sergeant of the missing. I asked the rest of the prisoners as to where Epifanio Labong was. I told
guard." His companion then was Jesus Mañoso. They reached the provincial jail the prisoners to go to that spot. We went there and the prisoners were ahead
at about 12 o'clock noon. The shooting took place at about 11:30. (41). The because they know the place. (66). When we arrived at the place, we did not see
witness heard Labong ask Lagata to accompany their group to the nursery to Labong and Tipace called our attention telling us that this is the place through
gather gabi. When he was shot Abria was bent and leaning his body downward which Epifanio Labong passed." The witness did not see the track of Epifanio
to the ground while Lagata was behind him. (42). The witness heard the shot that Labong but the prisoners, however, were the ones who indicated to him the place
killed Ceferino Tipace. "I was already descending near the Capitol building that through which Epifanio Labong passed. "I followed them. Up to above the
was the time when I heard the shot." (43). Jesus Manoso ran away with the national highway. When we reached up the place another prisoner called also
witness, but Ceferino Tipaceand Mariano Ibanez remained. The treatment our attention telling us that here is the place through which Labong passed and
received by the witness from Lagata was good. (44). so went up. When we reached above, they were already far from here. So I told
them to stop because they were already far from me. They did not heed my order
5. Pedro Mayuga, 39, married, chief, Samar Provincial Hospital. — On October to stop. Then I fired up to the air. They scattered. I could only see two of them I
3, 1946, prisoner Eusebio Abria was brought to the hospital with a wound on the also saw one of them running towards the mountain. So I fired at him." It was
upper side of his left arm which was amputated from the shoulder joint. "The Eusebio Abria, and he was at about five meters from him. "He was going up the
patient was at first given resuscitating medical treatment to combat the shock mountain. After I fired at Eusebio Abria, I saw him running. I just left him because
caused by the hemorrhage and later the shoulder joint was disarticulated." After I was looking for the rest. I saw also Ibanez running. He was running towards me
his arm was cut, he was confined in the hospital until November 6. The wound and then around me. I called his attention and told him to stop from running or
must have been produced by a gun shot. There are indications that the shot was else lie down and give up your arm. He did not heed my order. I fired at him."
fired at close range. Very likely around five meters. (48). There was no possibility (67-69). The witness saw Ibanez running before him towards the south road. He
of saving the arm because "all the vital tissues were destroyed and the bone in was Tipace. One minute elapsed from the time the witness fired at Abria to the
all the vital parts of the tissues destroyed from outward and inward." (50). time he fired at Ibañez. The witness fired at them because he sympathizes with
other policemen from whom other prisoners escaped. (70). "Because if it so
DEFENSE happened that a prisoner escaped under my custody, I would be the one to be
put in jail and if I cannot fire at him, I will be the one to be put in jail. "The truth is
that they ran away." At the time he fired at Tipace and Abria, they were running
1. Andres Saludario, 49, married, nursery foreman, Catbalogan, Samar. — On
away. (71). "What was in my mind was that if I could overtake them and not fire
October 3, 1946, he saw Lagata in the nursery guarding six prisoners. (53-54).
at them, I would meet the same situation as what other guards met under whose
The prisoners were just within the premises of the nursery just beyond the
custody prisoners escaped and some of them were discharged from their duty."
mango tree. Lagata was about seven meters from them and he was looking at
Ibanez testified against the accused because the latter fired at his father-in-law.
them all the time. The place was grassy. The grass was about half a meter tall.
(72). One day, the accused maltreated Ibanez. He slapped him two times. He
(55). The ground near the hill was covered with cogon and talahib. By the height
was the only prisoner he slapped. (73). At the time they were looking for Labong,
they could cover a man in standing position. The witness heard about the
the prisoners were walking in line one meter from one to another. The accused
was near them. (77). When he fired at Abria, the latter was about five meters looking towards appellant andwith the undisputed fact that Tipace was hit near
from him and when he fired at Tipace, the latter was four meters from him. At the one axilla, the bullet coming out from the opposite shoulder. If Tipace's purpose
time, Tipace was running side-wise to the accused and he could see where the was to escape the natural thing for him to do would have to give his back to
accused was. His face was facing the accused. (78). When he fired at Abria, he appellant.
lost hope to recover Labong. "I was hopeless already." (80) The picking up of
gabi was not part of the work of the prisoners. (81). The criminal responsibility of appellant regarding the killing of Tipace can be
exacted from him on the basis of his own testimony. The way he fired at Tipace (
Appellant was charged with murder, serious physical injuries and evasion whom he misnamed first as Ibañez) is described by appellant in the following
through negligence in three separate cases which have been tried jointly.Finding words:.
him guilty, the trial court sentenced him as follows:
He was running towards me and then around me.
(a) For Murder (Case No. 809) — Reclusion Perpetua with civil
interdiction for life and perpetual absolute disqualification, indemnify the I called his attention and told him to stop from running or else lie
heirs of Ceferino Tipace Two Thousand Pesos (2,000) and pay the costs downand give up your arm. He did not heed my advice.
of this action
Inasmuch as he did not heed my advised so I fired at him.
(b) For serious physical injuries (Case No. 810) — An indeterminate
imprisonment of two (2) year and four (4) month as minimum to four (4)
His direction while he was running not exactly towards me but running in
year nine (9) month and ten (10) days of prison correccional as
front of me to the left side. (69).
maximum and pay the cost of this action; and

Explaining his reason for firing at Abria and Tipace, appellant gave the following
(c) For evasion through negligence (Case No. 811) — An indeterminate
imprisonment of two (2) months one (1) day of arresto mayor as reason: "Because I sympathize with the other policeman from whom prisoners
minimum to one (1) year one (1) month and ten (10) days of prison escaped." (70). "If it so happened that a prisoner escaped under my custody, I
correccional and pay the costs, (p. 45, rec.) would be the one to be put in jail and if I cannot fire at him I will be the one to be
put in jail." (71). (Emphasis ours)
The evidence is conclusion to the effect that the escape of prisoner Epifanio
It is clear that Lagata had absolutely no reason to fire at Tipace. Lagata could
Labong was due to the negligence of the appellant. The six prisoner were
have fired at him in self defense or if absolutely necessary to avoid his escape.
supposed to work in the plaza of the provincial capitol and to return to jail after
The record does not show that Tipace was bent on committing any act of
said work but appellants allowed them instead to go to the nursery to gather gabi
without any apparent authority to do so. aggression "he was running towards and then around me". (Emphasis ours) How
could anyone in his senses imagine that Tipace intended to escape by running
towards and around the very guard he was supposed to escape from?
Considering that the place was grassy and tall talahib was growing therein the
height of which could conceal persons in standing position appellant must have
There is no question that the escape of Labong scared appellant according to
seen immediately that it was a choice place for any prisoner that may want to
him because of the experience of other guard who were dismissed from office or
escape. Such negligence of appellant is punishable under article 224 of the
even prosecuted because of prisoners who had escaped under their custody and
Revised Penal code, and the penalty imposed by trial court is in accordance with
law. that it was his duty to fire against the prisoner if he wanted to be exempt from any
responsibility. Even if appellant sincerely believe, althougherroneously that in
firing the shots be acted in the performance of his official duty the circumstances
As regards the shooting of Abria and Tipace we are convinced that the facts of the case show that there was no necessity for him to fire directly against the
were as narrated by the witnesses for the prosecution. Abria was shot when by prisoners so as seriously wound one of them and kill instantaneously another.
the witnesses for then prosecution. Abria was shot when he was onlythree meter While custodians of prisoners should necessity would authorize them to fire
away from appellant and the latter has not even shown that Abria attempted to against them. Their is the burden of proof as to such necessity. The summary
escape. Tipace was also shot when he was about four or fivemeter away from liquidation of Prisoner under flimsy pretexts of attempts of escape, which has
appellant. The latter's allegation that Tipace was running — conveying the idea been and is being practiced in dictatorial system of government has always been
that said prisoner was in the act of escaping — appears to be inconsistent with and is shocking to the universal conscience of humanity.
his own testimony to the effect that Tipace was running sidewise with his face
Human life is valuable albeit sacred. Cain has been the object of
unrelentlesscurse for centuries and millennia and his name will always be
remembered in shame as long as there are human generation able to read the
Genesis. Twenty centuries of Christianity have not been enough to make less
imperative the admonition that Thou shall not kill," uttered by greatest pundit and
prophet of Israel. Laws constitution world charters have been written to protect
human life. Still it is imperative that all men be imbued with spirit of the Sermon
on the Mount that the words of the gospels be translated into reality and that their
meaning fill all horizon with the eternal aroma of encyclical love of mankind.

As recommended by the prosecuted appellants is entitled to the benefit of the

mitigating circumstance of incomplete justifying circumstance in paragraph5 of
Article 11 of the Revised Penal Code. Consequently appellant shouldbe
sentenced for homicide to an indeterminate penalty of six years andone day of
prision mayor to twelve years and one day of reclusion temporal and in the case
of serious physical injuries to an indeterminate penalty of four months and one
day of arresto mayor to two years, four months and one day of prision
correccional.

Modified as above stated the appealed decision is affirmed with costs against
appellant.
G.R. No. 149152 February 2, 2007 of Antonio Abacan, owner of the house on which rooftop the shooting of the
victim took place.
RUFINO S. MAMANGUN, Petitioner,
vs. It is not disputed that on July 31, 1992, at about 8:00 in the evening, in Brgy.
PEOPLE OF THE PHILIPPINES, Respondent. Calvario, Meycauayan, Bulacan a certain Liberty Contreras was heard shouting,
"Magnanakaw…Magnanakaw." Several residents responded and thereupon
DECISION chased the suspect who entered the yard of Antonio Abacan and proceeded to
the rooftop of Abacan’s house.
GARCIA, J.:
At about 9:00 o’clock that same evening, the desk officer of the Meycauayan
PNP Police Station, upon receiving a telephone call that a robbery-holdup was in
In this petition for review under Rule 45 of the Rules of Court, petitioner Rufino
progress in Brgy. Calvario, immediately contacted and dispatched to the scene
Mamangun y Silverio seeks the reversal of the Decision1 dated January 19, 2001
the crew of Patrol Car No. 601 composed of Team Leader SPO1 Andres
(promulgated on February 13, 2001) of the Sandiganbayan in its Criminal Case
Legaspi, with PO2 Eugenio Aminas and herein petitioner PO2 Rufino S.
No. 21131, convicting him of the crime of Homicide.
Mamangun; and Patrol Car No. 602 composed of Team Leader PO3 Sandiego
San Gabriel, with PO2 Carlito Cruz and PO2 Hobert Diaz. With the permission of
The factual backdrop: Abacan, petitioner Mamangun, PO2 Diaz and PO2 Cruz went to the rooftop of
the house whereat the suspect was allegedly taking refuge.
On September 12, 1994, herein petitioner, then a police officer, was charged
before the Sandiganbayan with the crime of Murder, allegedly committed, per the The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a drawn
indicting Information,2 docketed as Criminal Case No. 21131, as follows: handgun, searched the rooftop. There, they saw a man whom they thought was
the robbery suspect. At that instance, petitioner Mamangun, who was walking
That on or about the 31st day of July 1992, in the Municipality of Meycauyan, ahead of the group, fired his handgun once, hitting the man. The man turned out
(sic) Province of Bulacan, Philippines, and within the jurisdiction of this to be Gener Contreras (Contreras) who was not the robbery suspect.
Honorable Court, the said accused Rufino S. Mamangun, a public officer, being
then a Police Officer (PO2), duly appointed as such and acting in relation to his Contreras died from the gunshot wound. The autopsy conducted by Dr. Benito B.
office, armed with a gun, with intent to kill, did then and there willfully, unlawfully Caballero yielded the following findings:
and feloniously, with treachery, evident premeditation and abuse of superior
strength, attack, assault and shoot one Gener M. Contreras with the said gun,
The cause of death was "Shock due to massive external and internal
hitting the latter on his body, thereby inflicting (sic) him serious physical injuries
hemorrhage due to multiple gunshot wounds in the left arm side of the thorax,
which directly cause (sic) his death.
penetrating the left lung and vertebral column." There were several wounds
caused by one (1) bullet.
CONTRARY TO LAW.
As shown on the sketch of human body attached to the Certificate of Death, and
On arraignment, petitioner, as accused below, duly assisted by a counsel de as testified on by Dr. Caballero, the bullet entered through the "lower third of the
oficio, entered a plea of "Not Guilty." left arm, left side of the thorax and it penetrated the left lung and vertebral
column and that is where the slug was found." From a layman’s appreciation of
In the ensuing trial, the prosecution presented in evidence the testimonies of the sketch, the bullet entered the outer, upper left arm of the victim, exited
Crisanto Ayson (Ayson), an alleged eyewitness, and Dr. Benito Caballero, then through the inner side of the said upper left arm, a little lower than the left armpit
the designated Medico-Legal Officer of Bulacan who performed an autopsy on and the slug lodging on the victim’s back where it was recovered at the vertebral
the cadaver of the victim. column.3

For its part, the defense adduced in evidence the testimonies of the accused From the foregoing admitted or undisputed facts, the prosecution and the
himself, Rufino Mamangun, his co-policemen at the Philippine National Police defense presented conflicting versions as to how the fatal shooting of Contreras
(PNP), namely, PO2 Carlito Cruz, PO4 Hobert O. Diaz and Police Investigator by petitioner Mamangun actually happened.
SPO-1 Hernando B. Banez, all assigned at the Meycauayan Police Station; and
those of Lorenzo S. Abacan and Rogelio Ingco, son and son-in-law, respectively,
According to Ayson, the lone eyewitness for the prosecution, he accompanied generic mitigating circumstance of voluntary surrender. Dispositively, the
the three policemen (Mamangun, Diaz and Cruz) to the rooftop of Abacan’s decision reads:
house. He was following petitioner Mamangun who was ahead of the group.
They passed through the second-floor door of the house to the rooftop. The roof WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby found GUILTY
was lighted by an incandescent bulb from an adjacent house. He was beside beyond reasonable doubt of the crime of Homicide, defined and penalized under
Mamangun when they saw, some four to five arms-length away, a man whom he Article 249, Revised Penal Code, and taking into account the attendance of one
(witness) recognized as Gener Contreras. Mamangun pointed his .45 cal. pistol (1) privileged mitigation (sic) circumstance, one generic circumstance and no
at the man, who instantly exclaimed, "Hindi ako, hindi ako!," to which Mamangun aggravating circumstance, he is hereby sentenced under the Indeterminate
replied, "Anong hindi ako?" Before he (Ayson) could say anything, Mamangun Sentence Law, to suffer the penalty of imprisonment of from Three (3) Years and
fired his gun, hitting the man who turned out to be Contreras. He (witness) Three (3) Months of prision correctional as minimum, to Seven (7) years of
approached the victim who was then lying on his left side unconscious. He prision mayor, as maximum, to indemnify the heirs (parents) of Gener Contreras
brought down the victim and they rushed him to the hospital where he died at in the total amount of P352,025.00, and to past the costs.
about 10:00 o’clock that same evening.
SO ORDERED.
The defense has its own account of what purportedly actually transpired. 1aw phi 1.net

Unable to accept the judgment of conviction, petitioner is now with this Court via
PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence of the present recourse alleging that the Sandiganbayan committed reversible error
Ayson at the rooftop during the shooting incident. Corroborating one another, the in failing to apply paragraph 5, Article 11, of the Revised Penal Code, which
three testified that they were the only ones at the scene of the shooting, and that would have absolved him from criminal liability on the basis of his submission
it was dark. They claimed that each of them, with Mamangun on the lead, went that the shooting in question was done in the performance of a duty or in the
on separate directions around a water tank. As they met each other at the other lawful exercise of a right or office.
side of the tank, PO2 Cruz pointed to a person crouching at the edge of the roof
of the garage. Thinking that the person was the suspect they were looking for,
First off, petitioner insists that the shooting, which ultimately caused the demise
Mamangun chased said person. They announced that they were police officers
of Contreras, was justified because he was repelling Contreras’ unlawful attack
but the person continued to run in a crouching position until Mamangun caught
on his person, as Contreras was then about to strike him on the head with a steel
up with him and shouted, "Pulis. Tigil," whereupon the person suddenly stopped,
pipe.
turned around, faced Mamangun, and raised a stainless steel pipe towards the
latter’s head but Mamangun was able to evade the attack. This prompted
Mamangun to shoot the person on the left arm. All three claimed that it was only We are not persuaded.
at this point that PO2 Cruz and Diaz approached Contreras who told them, "Hindi
ako. Hindi ako." Mamangun went near Contreras and asked, "Why did you go to Well-settled is the rule that factual findings of the Sandiganbayan are conclusive
the rooftop? You know there are policemen here." Contreras was thereafter upon the Court except where: (1) the conclusion is a finding grounded entirely on
brought to the hospital where he died. After the shooting incident, Mamangun speculations, surmises and conjectures; (2) the inference made is manifestly
reported the same to the desk officer, POI Filomeno de Luna, who advised him to mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on
remain in the police station. De Luna directed Police Investigator Hernando misapprehension of facts and the findings of fact are premised on the absence of
Banez to investigate the incident. That same evening, Investigator Banez went to evidence and are contradicted by the evidence on record.5None of these
the place where the shooting happened. Banez allegedly found a steel pipe exceptions obtains in this case.
about three (3) feet long on the depressed portion of the roof.
Having admitted6 the fatal shooting of Contreras on the night of July 31, 1992,
On January 19, 2001, after due proceedings, the Sandiganbayan came out with petitioner is charged with the burden of adducing convincing evidence to show
its decision4 finding the petitioner guilty beyond reasonable doubt of only the that the killing was done in the fulfillment of his duty as a policeman.
crime of Homicide. In so finding, the Sandiganbayan did not appreciate the
presence of the aggravating circumstances of treachery, evident premeditation The justifying circumstance of fulfillment of duty under paragraph 5, Article II, of
and abuse of superior strength to qualify the killing to Murder. But even as the the Revised Penal Code may be invoked only after the defense successfully
said court rejected the petitioner’s claim that the shooting was justified by self- proves that: (1) the accused acted in the performance of a duty; and (2) the injury
defense, it nonetheless ruled that the crime of Homicide was attended by an inflicted or offense committed is the necessary consequence of the due
incomplete justifying circumstance of the petitioner having acted in the performance or lawful exercise of such duty.7
performance of his duty as a policeman, and also appreciated in his favor the
Concededly, the first requisite is present in this case. Petitioner, a police officer, (3) The location of the entry of the bullet fired by accused Mamangun
was responding to a robbery-holdup incident. His presence at the situs of the which is at the outer left arm at about the bicep of the victim and its
crime was in accordance with the performance of his duty. However, proof that trajectory as it penetrated his body hitting his vital organs along the way
the shooting and ultimate death of Contreras was a necessary consequence of belies the claim of the accused that the victim was facing him and had
the due performance of his duty as a policeman is essential to exempt him from just missed his head with an iron pipe, as instead the victim must have
criminal liability. instinctively shielded his body with his left arm.

As we see it, petitioner’s posturing that he shot Contreras because the latter tried Moreover, petitioner’s pretense that Contreras struck him with a steel pipe is
to strike him with a steel pipe was a mere afterthought to exempt him from intriguing. As it is, petitioner did not report the same to Police Investigator Banez
criminal liability. when he reported back to the police station after the shooting incident. It was
only when a lead pipe was recovered from the scene and brought to the police
We see no plausible basis to depart from the Sandiganbayan’s findings that there station that petitioner conveniently remembered Contreras trying to hit him with a
was no reason for the petitioner to shoot Contreras. The latter was unarmed and pipe. Such a vital information could not have escaped the petitioner’s mind. We
had already uttered, "Hindi po ako, Hindi po ako" before the petitioner fatally shot are thus inclined to believe that the alleged actuation of Contreras, which could
him on the left arm. Prosecution witness Ayson, who was then behind the have justified petitioner’s shooting him, was nothing but a concocted story to
petitioner when the latter shot Contreras, testified that to the victim’s utterances, evade criminal liability. Indeed, knowing that he shot Contreras, the least that the
the petitioner even responded, "Anong hindi ako," and immediately shot petitioner should have done was to bring with him to the police station the very
Contreras.8 As correctly observed by the Sandiganbayan: pipe with which Contreras tried to attack him. As borne by the evidence,
however, it was only after a police investigator referred to the scene that the lead
pipe surfaced.
Besides being self-serving (with respect to the accused) and biased (with respect
to his co-policemen-witnesses), We find (1) the claim of the accused and his co-
policemen-witnesses that the victim (Contreras) attacked the said accused and Petitioner would likewise argue that the testimony of prosecution witness Ayson
(2) their seemingly "positive" identification of the stainless steel pipe (more of a was incredible and riddled with inconsistencies.
rod) as his weapon, to be of doubtful credibility, for the following reasons:
The alleged contradictions cited by the petitioner, i.e. where the victim was shot,
(1) We have no doubt that, as claimed by PO2 Carlito Cruz and PO2 where he died, and as to whether Ayson left his house after the shooting
Hobert Diaz, the three policemen appropriately identified themselves as incident, are but minor details which do not affect Ayson’s credibility. We have
police officers as they started chasing the man they saw "crouching," held time and again that few discrepancies and inconsistencies in the testimony
and, as claimed by accused PO2 Rufino Mamangun, that, as he was of a witness referring to minor details and not in actuality touching upon the
about to catch up with said man, he shouted, "Pulis! Tigil!" With all these central fact of the crime, do not impair his credibility. Quite the contrary, such
introductions and forewarnings, it is utterly incredible and contrary to minor inconsistencies even tend to strengthen credibility because they discount
human experience that, that man, later identified to be Gener Contreras the possibility that the testimony was rehearsed.9
and admittedly not the person they were looking for, purportedly armed
only with a stainless steel "lead" pipe (more of a rod) would suddenly For sure, the record reveals that Ayson’s answers to the questions propounded
stop, turn around and attack one of the three policemen who were by the defense counsel are clear and categorical. As to where the victim died,
chasing him, one after the other, with drawn guns. Ayson clarified that the victim was already at the rooftop even before the arrival
of the police officers. As to why he was not able to warn Mamangun that the
(2) When the victim (Gener Contreras) fell down after being shot by victim was his relative, Ayson explained that he was not able to utter any word
accused PO2 Mamangun, and as the latter went near the fallen victim, because when Contreras said "Hindi ako. Hindi ako," petitioner suddenly fired at
said accused asked, "Why did you go to the rooftop. You know there are the latter.10 As to the claim that Ayson was also on the roof, record shows that the
policemen here." He admits that he did not ask the victim, "Why did you robbery-holdup happened at around 8:00 in the evening. Before the policemen
try to hit me, if you are not the one?" This admission clearly belies the arrived, Ayson and Contreras were already pursuing the robber.11 Ayson also
claim of the police-witnesses that Gener Contreras attacked the accused testified that when the victim was shot by the petitioner, the former fell on his left
policeman with an iron pipe when he was shot, for the accused should side unconscious; that he did not leave his house after the incident because he
have asked the latter question. was afraid that the policemen would detain him.12

Self-defense, whether complete or incomplete, cannot be appreciated as a valid

justifying circumstance in this case. For, from the above admitted, uncontroverted
or established facts, the most important element of unlawful aggression on the
part of the victim to justify a claim of self defense was absent. Lacking this
essential and primary element of unlawful aggression, petitioner’s plea of self-
defense, complete or incomplete, must have to fail.

To be sure, acts in the fulfillment of a duty, without more, do not completely

justify the petitioner’s firing the fatal gunshot at the victim. True, petitioner, as one
of the policemen responding to a reported robbery then in progress, was
performing his duty as a police officer as well as when he was trying to effect the
arrest of the suspected robber and in the process, fatally shoot said suspect,
albeit the wrong man. However, in the absence of the equally necessary
justifying circumstance that the injury or offense committed be the necessary
consequence of the due performance of such duty, there can only be incomplete
justification, a privileged mitigating circumstance under Articles 13 and 69 of the
Revised Penal Code.

There can be no quibbling that there was no rational necessity for the killing of
Contreras. Petitioner could have first fired a warning shot before pulling the
trigger against Contreras who was one of the residents chasing the suspected
robber.

All told, we find no reversible error committed by the Sandiganbayan in

convicting the petitioner of the crime of Homicide attended by the privileged
mitigating circumstance of incomplete justifying circumstance of having acted in
the performance of his duty as a policeman and the generic mitigating
circumstance of voluntary surrender.

IN VIEW WHEREOF, the instant petition is DENIED and the assailed decision of
the Sandiganbayan is AFFIRMED in all respects.

No pronouncement as to costs.

SO ORDERED.
G.R. No. 153875 August 16, 2006 Appellants testified that they were ordered by their desk officer to investigate a
commotion at the canteen. Upon reaching the place, Santiano ordered his co-
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, accused, Dagani, to enter, while the former waited outside.
vs.
ROLANDO DAGANI y REYES and OTELLO SANTIANO Y Dagani approached Javier who had been striking a bottle of beer on the table.
LEONIDA, Accused-Appellants. Javier then pulled out a .22 caliber revolver and attempted to fire at Dagani, but
the gun failed to go off. Then suddenly, while outside the canteen, Santiano
DECISION heard gunfire and, from his vantage point, he saw Javier and Dagani grappling
for a .22 caliber gun which belonged to Javier. During the course of the struggle,
the gun went off, forcing Santiano to fire a warning shot. He heard Javier’s gun
AUSTRIA-MARTINEZ, J.:
fire again, so he decided to rush into the canteen. Santiano then shot Javier from
a distance of less than four meters.
For review before the Court is the Decision dated June 20, 20021 of the Court of
Appeals (CA) which affirmed the Decision of the Regional Trial Court of the City
Appellants invoked the justifying circumstances of self-defense and lawful
of Manila, Branch 12 (RTC), dated February 18, 1993, in Criminal Case No. 89-
performance of official duty as PNR security officers. They also argued that the
77467, finding the accused-appellants Otello Santiano y Leonida (Santiano) and prosecution failed to establish treachery and conspiracy.
Rolando Dagani y Reyes (Dagani) guilty of the crime of Murder.
The RTC rendered its Decision, the dispositive portion of which reads:
The accusatory portion of the Information reads:
WHEREFORE, finding both accused Otello Santiano y Leonida and Rolando
That on or about September 11, 1989, in the City of Manila, Philippines, the said
Dagani y Reyes guilty beyond reasonable doubt of the crime of Murder defined
accused conspiring and confederating together and mutually helping each other
and punished under Art. 248, RPC, with the presence of the mitigating
did then and there, willfully, unlawfully and feloniously, with intent to kill, evident circumstance of voluntary surrender and granting them the benefit of [the]
premeditation and treachery, attack, assault and use of personal violence upon Indeterminate Sentence Law, both accused are hereby sentenced to each suffer
one ERNESTO JAVIER Y FELIX by then and there shooting him with a .38 an Indeterminate prison term of TEN (10) YEARS and ONE (1) DAY of prision
caliber revolver, thereby inflicting upon the said ERNESTO JAVIER Y FELIX mayor as minimum, to EIGHTEEN (18) YEARS and ONE (1) DAY of reclusion
mortal gunshot wounds which were the direct and immediate cause of his death temporal x x x.
thereafter.
Both accused are hereby ordered to indemnify the heirs of the victim the sum
CONTRARY TO LAW.2
of P50,000.00 as death indemnity, the sum of P31,845.00 as funeral and burial
expenses, the sum of
Upon arraignment, the appellants pleaded not guilty. Trial ensued where the
prosecution adduced evidence to establish the following:
P30,000.00 as and for [sic] attorney’s fees and the further sum of P1,000.00 per
appearance of counsel.
At about 4:45 in the afternoon of September 11, 1989, a group composed of
Ernesto Javier (Javier), Lincoln Miran (Miran), and two other individuals had been
Both accused shall be credited with the full extent of their preventive
drinking at the canteen located inside the compound of the Philippine National
imprisonment. Both accused are hereby committed to the Director, National
Railways (PNR) along C.M. Recto Avenue, Tondo, Manila. All of a sudden, Penitentiary, Muntinlupa, Metro Manila for service of Sentence.
appellants, who were security officers of the PNR and covered by the Civil
Service Rules and Regulations, entered the canteen and approached the group.
Appellant Dagani shoved Miran, causing the latter to fall from his chair. Dagani SO ORDERED.3
then held Javier while Santiano shot Javier twice at his left side, killing the latter.
In brief, the RTC held that appellants failed to prove that Javier attempted to
The defense proceeded to prove their version of the facts: squeeze the trigger of the .22 caliber gun when he pointed it at Dagani; that
during the course of the struggle for the possession of the .22 caliber gun, the
danger to the life of the accused ceased to be imminent; that in grappling for the
weapon, Dagani "controlled" the hands of Javier and pushed them away from his
body; that the appellants failed to produce the two empty shells as physical SO ORDERED.5
evidence of the gunfire allegedly caused by Javier; that no points of entry or
bullet markings on the walls of the canteen were shown; that, in light of these The CA affirmed the findings of fact as well as the salient portions of the RTC
findings, no unlawful aggression was present on the part of the victim; that the Decision, but deleted the award of attorney’s fees and the per appearance fees
appellants failed to prove that they were on official duty at the time of the of counsel since, the
incidence; that, since it was not established that Javier actually fired his gun, the
injury inflicted upon him cannot be regarded as a necessary consequence of the
CA reasoned, the instant case is criminal in nature which is under the control of
due performance of an official duty; that the appellants were acting in conspiracy;
that the qualifying circumstance of treachery attended the killing, considering that the public prosecutor, and, additionally, the RTC failed to justify this award in the
Javier had been shot while his hands were being held by Dagani and as his body body of its Decision. And last, the CA found that the RTC erroneously applied the
was out of balance and about to fall; and that the mitigating circumstance of Indeterminate Sentence Law since the penalty for Murder, at the time of the
voluntary surrender should be appreciated in favor of the appellants. incident, was reclusion perpetua which is an indivisible penalty to be imposed in
its entirety, regardless of the attending mitigating circumstance of voluntary
surrender.
The appellants appealed to the CA and assigned the following errors:
Appellants are now before this Court submitting for resolution the same matters
I argued before the CA. Through their Manifestation dated February 11,
2003,6 appellants prayed to dispense with the filing of additional briefs.
THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING SELF
DEFENSE ON THE PART OF THE ACCUSED. As of date, the records show that despite the efforts exerted by the surety and
the responsible law officers to locate the appellants, the latter could not be found
II and have jumped bail.7

THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER THE FACT The appeal is partly meritorious.
THAT THE ACCUSED-APPELLANTS WERE IN LAWFUL PERFORMANCE OF
AN OFFICIAL DUTY. Appellants argue that the courts a quo misappreciated the facts and erred in
finding that there was no unlawful aggression on the part of the victim. They
III insist that the victim, Javier, had been armed with a revolver at the time he was
struggling with appellant Dagani; that the former "could have easily killed the
THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN RULING THAT latter;" that, given the fact that Javier had been drinking, "it is quite probable for
THERE WAS CONSPIRACY. Javier to act harshly and aggressively towards

IV peace officers such as the accused;"8 and that Javier actually fired three shots
from his .22 caliber gun.9
THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE
PROSECUTION WAS ABLE TO ESTABLISH BEYOND REASONABLE DOUBT We are not convinced.
THAT THE ACCUSED ARE GUILTY OF MURDER.4
When self-defense is invoked, the burden of evidence shifts to the accused to
The CA rendered its Decision, the dispositive portion of which states: show that the killing was legally justified. Having owned the killing of the victim,
the accused should be able to prove to the satisfaction of the Court the elements
of self-defense in order to avail of this extenuating circumstance. He must
WHEREFORE, the appealed judgment of conviction is MODIFIED. Appellants
discharge this burden by clear and convincing evidence. When successful, an
are hereby sentenced to reclusion perpetua. The award for attorney’s fees and
otherwise felonious deed would be excused, mainly predicated on the lack of
appearance fees for counsel are hereby deleted. In all the other aspects, the
criminal intent of the accused. Self-defense requires that there be (1) an unlawful
appealed decision is maintained.
aggression by the person injured or killed by the offender, (2) reasonable
necessity of the means employed to prevent or repel that unlawful aggression,
Let the entire records of the case be elevated to the Supreme Court for the
mandated review.
and (3) lack of sufficient provocation on the part of the person defending himself. commensurability between the means of attack and defense. What the law
All these conditions must concur.10 requires is rational equivalence.20 The circumstances in their entirety which
surround the grappling of the firearm by Dagani and Javier, such as the nature
Unlawful aggression, a primordial element of self-defense, would presuppose an and number of gunshot wounds sustained by the victim21 which amounted to two
actual, sudden and unexpected attack or imminent danger on the life and limb of fatal wounds,22 that Dagani was able to restrain the hands of Javier and push
a person – not a mere threatening or intimidating attitude11 – but most
importantly, at the time the defensive action was taken against the them away from his body,23 that Dagani was larger than Javier and had finished
aggressor.12 To invoke self-defense successfully, there must have been an Special Weapons and Tactics (SWAT) hand-to-

unlawful and unprovoked attack that endangered the life of the accused, who hand combat training,24 and Javier, as admitted by the appellants, was inebriated
was then forced to inflict severe wounds upon the assailant by employing at the time of the incident,25 do not justify appellant Santiano’s act of fatally
reasonable means to resist the attack.13 shooting the victim twice.26

In the instant case, the assertions that it was "quite probable" that Javier, during All things considered, the appellants’ plea of self-defense is not corroborated by
the course of the struggle for the firearm, "could have easily killed" the appellants competent evidence. The plea of self-defense cannot be justifiably entertained
are uncertain and speculative. There is aggression in contemplation of the law where it is not only uncorroborated by any separate competent evidence but is in
only when the one attacked faces real and immediate threat to one’s life. The itself extremely doubtful.27 Whether the accused acted in self-defense is a
peril sought to be avoided must be imminent and actual, not just speculative.14 question of fact. Like alibi, the affirmative defense of self-defense is inherently
weak because, as experience has demonstrated, it is easy to fabricate and
To sum up the matter, we quote the findings of the CA: difficult to disprove.28 This Court, therefore, finds no reversible error on the part of
the courts a quo in rejecting the claim of self-defense.
The defense was unable to prove that there was unlawful aggression on the part
of Javier. They were unable to present evidence that the victim actually fired his Appellants set up the defense that they were in the lawful performance of their
gun. No spent shells from the .22 caliber pistol were found and no bullets were official duties. They specifically aver that they had been ordered by their desk
recovered from the scene of the incident. Javier also tested negative for officer to proceed to the canteen in response to a telephone call stating that there
gunpowder residue. Moreover, the trial court found appellant Dagani’s account of was a group "creating trouble;" that they were in the call of duty and exercising
the incident to be incredible and self-serving. In sum, the defense presented a their functions and responsibilities as members of the PNR Civil Security Office
bare claim of self-defense without any proof of the existence of its requisites.15 to preserve peace and order and

Even if it were established that Javier fired his gun as the appellants so insist, the protect the lives and property in the PNR Compound;29 and that, invoking
imminence of the danger to their lives had already ceased the moment Dagani jurisprudence, as security officers in the performance of duty, like the police, they
held down the victim and grappled for the gun with the latter. After the victim had must stand their ground and overcome the opponent, and the force that may be
been thrown off-balance, there was no longer any unlawful aggression exerted must differ from that which ordinarily may be offered in self-defense.30

that would have necessitated the act of killing.16 When an unlawful aggression Article 11 of the Revised Penal Code provides that a person who acts in the
that has begun no longer exists, the one who resorts to self-defense has no right fulfillment of a duty or in the lawful exercise of a right or office does not incur any
to kill or even to wound the former aggressor.17 When Javier had been caught in criminal liability. Two requisites must concur before this defense can prosper: 1)
the struggle for the possession of the gun with appellant Dagani, the grave peril the accused must have acted in the performance of a duty or in the lawful
envisaged by appellant Santiano, which impelled him to fire at the victim, had exercise of a right or office; and 2) the injury caused or the offense committed
then ceased to a reasonable extent,18 and undoubtedly, Santiano went beyond should have been the necessary consequence of such lawful exercise. 31 These
the call of self-preservation when he proceeded to inflict the excessive and fatal requisites are absent in the instant case.
injuries on Javier, even when the alleged unlawful aggression had already
ceased.19 As found by the CA:

The second element of self-defense demands that the means employed to The defense failed to prove that the security officers were in fact on duty at the
neutralize the unlawful aggression are reasonable and necessary. It is settled time they were at the canteen. The trial court gave weight to the fact that the
that reasonable necessity of the means employed does not imply material appellants were unable to submit their daily time records to show that they were
on duty at the time. Appellants’ assertion that they were ordered to go on 24-hour Moreover, the facts show that Javier was shot by appellant Santiano as he was
duty was belied by PNR Security Investigator Rolando Marinay’s testimony that being subdued by appellant Dagani. The trial court held that the manner of the
PNR security officers work in two 12-hour shifts, from 7:00 a.m. to 7:00 p.m. and attack was indicative of a joint purpose and design by the appellants.37
from 7:00 p.m. to 7:00 a.m.
Courts must judge the guilt or innocence of the accused based on facts and not
Moreover, since it was not established that Javier fired his gun, the injury inflicted on mere conjectures, presumptions, or suspicions.38 Other than the plain fact that
upon him cannot be regarded as a necessary consequence of appellants’ due the victim had been shot by one of the accused while being held by a co-
performance of an official duty.32 accused, there is no other evidence that the appellants were animated by the
same purpose or were moved by a previous common accord. It follows that the
As stated, considering that the imminent or actual danger to the life of the liability of the accused must be determined on an individual basis. While no
appellants had been neutralized when Dagani grappled with Javier and formal agreement is necessary to establish conspiracy because conspiracy may
restrained his hands; that Javier had been thrown off-balance; that Dagani had be inferred from the circumstances attending the commission of the crime, yet,
been specially trained for these purposes; and that Javier had been drinking conspiracy must be established by clear and convincing evidence.39
immediately prior to the scuffle, this Court holds that the fatal injuries that
appellant Santiano inflicted on the victim cannot be deemed to be necessary This Court has held that even if all the malefactors joined in the killing, such
consequences of the performance of his duty as a PNR security officer. 33 While it circumstance alone does not satisfy the requirement of conspiracy because the
is recognized that police officers – if indeed the appellants can be likened to them rule is that
– must stand their ground and overwhelm their opponents, in People v.
Ulep,34 this Court counseled: neither joint nor simultaneous action is per se sufficient proof of conspiracy.
Conspiracy must be shown to exist
The right to kill an offender is not absolute, and may be used only as a last
resort, and under circumstances indicating that the offender cannot otherwise be as clearly and convincingly as the commission of the offense itself. 40 Thus, even
taken without bloodshed. The law does not clothe police officers with authority to assuming that Javier was simultaneously attacked, this does not prove
arbitrarily judge the necessity to kill. It may be true that police officers sometimes conspiracy. No evidence was presented to show that the appellants planned to
find themselves in a dilemma when pressured by a situation where an immediate kill Javier or that Dagani’s overt acts facilitated that alleged plan. The prosecution
and decisive, but legal, action is needed. However, it must be stressed that the did not establish that the act of Dagani in trying to wrestle the gun from Javier
judgment and discretion of police officers in the performance of their duties must and in the process, held the latter’s hands, was for the purpose of enabling
be exercised neither capriciously nor oppressively, but within reasonable limits. Santiano to shoot at Javier. The prosecution had the burden to show Dagani’s
In the absence of a clear and legal provision to the contrary, they must act in intentional participation to the furtherance of a common design and purpose 41 or
conformity with the dictates of a sound discretion, and within the spirit and that his action was all part of a scheme to kill Javier. That Dagani did not expect
purpose of the law. We cannot countenance trigger-happy law enforcement Santiano to shoot the victim is established when Santiano testified that Dagani
officers who indiscriminately employ force and violence upon the persons they "seem[ed] to be shocked, he was standing and looking at the victim" as Javier
are apprehending. They must always bear in mind that although they are dealing gradually fell to the ground.42 And since Dagani’s conviction can only be
with criminal elements against whom society must be protected, these criminals sustained if the crime had been carried out through a conspiracy duly proven, in
are also human beings with human rights.35 view of the failure of the prosecution to discharge that burden, this Court is
constrained to acquit him.
But this Court cannot agree with the findings of the courts a quo that the
appellants were in conspiracy. And this Court cannot say that treachery attended the attack. The RTC declared:

The RTC simply held: [T]he Court believes that Javier was shot while his body was out-balanced and
about to fall to the right side and while his hands were being held by Dagani.
The Information cited conspiracy of the accused. Since it can also be committed Javier, therefore, was shot at when he has no means to defend himself, hence,
thru simultaneous/concerted action and considering that Javier was shot by the killing was attended by the qualifying circumstance of treachery.43
Santiano while being held by Dagani, under jurisprudence, conspiracy is
present.36 which the CA affirmed as follows:

The tenor of the factual findings of the CA is equally unsatisfactory:

The findings of the court a quo clearly showed that Javier was being held down retaliate been eliminated during the course of the struggle over the weapon, as
and could not effectively use his weapon. As such, the trial court held that Javier the latter, though struggling, had not been
could not be considered to be an armed man as he was being held down and
was virtually helpless. completely subdued. As already stated, this Court must emphasize that the mere
suddenness of the attack, or the vulnerable position of the victim at the time of
It has been held that when an assault is made with a deadly weapon upon an the attack, or yet even the fact that the victim was unarmed, do not by
unarmed and unsuspecting victim who [was] given no immediate provocation for themselves make the attack treacherous.51 It must be shown beyond reasonable
the attack and under conditions which made it impossible for him to evade the doubt that the means employed gave the victim no opportunity to defend himself
attack, flee or make [a] defense, the act is properly qualified as treachery, and or retaliate, and that such means had been deliberately or consciously adopted
the homicide resulting therefrom is classified as murder.44 x x x without danger to the life of the accused.52

Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the For these reasons, the Court is inclined to look upon the helpless position of
deliberate employment of means, methods or forms in the execution of a crime Javier as merely incidental to the attack, and that the decision to shoot Javier
against persons which tend directly and specially to insure its execution, without was made in an instant.53
risk to the offender arising from the defense which the intended victim might
raise. Treachery is present when two conditions concur, namely: (1) that the Considering the rule that treachery cannot be inferred but must be proved as fully
means, methods and forms of execution employed gave the person attacked no and convincingly as the crime itself, any doubt as to its existence must be
opportunity to defend himself or to retaliate; and (2) that such means, methods resolved in favor of Santiano. Accordingly, for failure of the prosecution to prove
and forms of execution were deliberately and consciously adopted by the treachery to qualify the killing to Murder, appellant Santiano may only be
accused without danger to his person.45 convicted of Homicide.54 The penalty, therefore, under Article 249 of the Revised
Penal Code, as amended, is reclusion temporal.
This Court has held that the suddenness of the attack, the infliction of the wound
from behind the victim, the vulnerable position of the victim at the time the attack The Office of the Solicitor General is correct in that the courts a quo failed to
was made, or the fact that the victim was unarmed, do not by themselves render consider the aggravating circumstance of
the
taking advantage of official position under Article 14 (1) of the Revised Penal
attack as treacherous.46 This is of particular significance in a case of an Code, since the accused, a PNR security officer
instantaneous attack made by the accused whereby he gained an advantageous
position over the victim when the latter accidentally fell and was rendered
covered by the Civil Service, committed the crime with the aid of a gun he had
defenseless.47 The means employed for the commission of the crime or the mode
been authorized to carry as such.55Considering that the mitigating circumstance
of attack must be shown to have been consciously or deliberately adopted by the
of voluntary surrender, as duly appreciated by the courts a quo, shall be offset
accused to insure the consummation of the crime and at the same time eliminate
against the aggravating circumstance of taking advantage of official position, the
or reduce the risk of retaliation from the intended victim.48 For the rules on
penalty should be imposed in its medium period, pursuant to Article 64 (4) of the
treachery to apply, the sudden attack must have been preconceived by the
aforesaid Code.
accused, unexpected by the victim, and without provocation on the part of the
latter.49 Treachery is never presumed. Like the rules on conspiracy, it is required
that the manner of attack must be shown to have been attended by treachery as Applying the Indeterminate Sentence Law, the sentence of appellant Santiano
conclusively as the crime itself.50 will consist of a minimum that is anywhere within the full range of prision mayor,
and a maximum which is anywhere within reclusion temporal in its medium
The prosecution failed to convincingly prove that the assault by the appellants period. This Court hereby fixes it to be from eight (8) years and one (1) day of
prision mayor as minimum, to fourteen (14) years, eight (8) months, and one (1)
had been deliberately adopted as a mode of attack intended to insure the killing
day of reclusion temporal, as maximum.
of Javier and without the latter having the opportunity to defend himself. Other
than the bare fact that Santiano shot Javier while the latter had been struggling
with Dagani over the possession of the .22 caliber gun, no other fact had been As to the award of damages, prevailing jurisprudence entitles the heirs of the
adduced to show that the appellants consciously planned or predetermined the deceased to the amount of P50,000.00 as civil indemnity for the death of the
methods to insure the commission of the crime, nor had the risk of the victim to victim without need of any evidence or proof of damages.56
The CA erred in deleting the attorney’s fees and per appearance fees for lack of
factual basis. Although the CA is correct in noting that the RTC failed to justify
these awards in the body of its Decision, this appeal opens the entire case for
review and, accordingly, the records show that the foregoing

amounts had been stipulated by the parties,57 thereby dispensing with the need to
prove the same.58

As to moral damages, however, the widow of the victim, Erlinda Javier, is not
entitled to the same. She did not testify on any mental anguish or emotional
distress which she suffered as a result of her husband’s death. No other heirs of
Javier testified in the same manner.59

Inasmuch as the aggravating circumstance of taking advantage of official position

attended the killing, the Court awards exemplary damages in the amount
of P25,000.00 in accordance with Articles 2230 and 2234 of the Civil Code and
prevailing jurisprudence.60

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 15304

dated June 20, 2002 is MODIFIED. Appellant Otello Santiano y Leonida is
found GUILTY beyond reasonable doubt of Homicide and is sentenced to suffer
the penalty of an indeterminate sentence from eight (8) years and one (1) day of
prision mayor as minimum to fourteen (14) years, eight (8) months, and one (1)
day of reclusion temporal as maximum. Appellant Santiano is further ordered to
pay the heirs of the victim the amounts of P50,000.00 as death
indemnity, P31,845.00 as funeral and burial expenses, P25,000.00 as exemplary
damages, P30,000.00 as attorney’s fees and P1,000.00

per appearance of counsel. Appellant Santiano shall be credited with the full
extent of his preventive imprisonment.

Appellant Rolando Dagani y Reyes is hereby ACQUITTED.

SO ORDERED.
G.R. No. L-4445 February 28, 1955 accused. Later, Atty. Jovito Barreras voluntarily appeared and served as counsel
for Borjal. Sgt. Esteban Cabanos observed the proceedings for several days
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, upon instructions of Headquarters, 15th Infantry. The trial lasted 19 days up to
vs. April 10, 1945; the jury found Borjal guilty on all accounts and imposed upon him
MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO PACULDO, and instruction from his superiors. Mayor Beronilla forwarded the records of the case
JACINTO ADRIATICO, defendants-appellants. to the Headquarters of the 15th Infantry for review. Said records were returned
by Lt. Col. Arnold to Beronilla on April 18, 1945 with the following instructions:
Agripino A. Brillantes, Valera, Eufemio and Bernardez for appellants.
Prospero C. Sanidad and Claro M. Recto for defendant. HEADQUARTERS 3RD MILITARY DISTRICT
Office of the Solicitor General Juan R. Liwag and Solicitor Jaime R. de los 15TH INFANTRY, USAFIP
Angeles and Martiniano P. Vivo for appellee. In the Field

REYES, J.B.L., J.: 16 April 1945

This is an appeal by accused Manuel Beronilla, Policarpio Paculdo, Filipino

Velasco, and Jacinto Adriatico from the judgment of the Court of First Instance of Msg. No. 337
Abra (Criminal Case No. 70) convicting them of murder for the execution of Subject: Arsenio Borjal, Charges Against
Arsenio Borjal in the evening of April 18, 1945, in the town of La Paz , Province To: Military Mayor of La Paz, Abra.
of Abra.
1. Returned herewith are the papers on the case of Arsenio Borjal.
Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of war, 2. This is a matter best handled by your government and whatever
and continued to serve as Mayor during the Japanese occupation, until March disposition you make of the case is hereby approved.
10, 1943, when he moved to Bangued because of an attempt upon his life by
unknown persons. On December 18, 1944, appellant Manuel Beronilla was
appointed Military Mayor of La Paz by Lt. Col. R. H. Arnold, regimental (Sgd.) R. H. ARNOLD
commander of the 15th Infantry, Philippine Army, operating as a guerrilla unit in Lieut.-Colonel, 15th Inf., PA
the province of Abra. Simultaneously with his appointment as Military Mayor, Commanding
Beronilla received copy of a memorandum issued by Lt. Col. Arnold to all Military
Mayors in Northern Luzon, authorizing them "to appoint a jury of 12 bolomen to
try persons accused of treason, espionage, or the aiding and abetting (of ) the Received April 18, 1945, 10:35 a.m.
enemy" (Exhibit 9). He also received from the Headquarters of the 15th Infantry a
list of all puppet government officials of the province of Abra (which included (Sgd.) MANUEL BERONILLA
Arsenio Borjal, puppet mayor of La Paz), with a memorandum instructing all Military Mayor, La Paz, Abra
Military Mayors to investigate said persons and gather against them complaints
from people of the municipality for collaboration with the enemy (Exhibit 12-a). (Exhibit 8, 8-a)

Sometime in March, 1945, while the operations for the liberation of the province and on the night of the same day, April 18, 1945, Beronilla ordered the execution
of Abra were in progress, Arsenio Borjal returned to La Paz with his family in of Borjal. Jacinto Adriatico acted as executioner and Antonio Palope as grave
order to escape the bombing of Bangued. Beronilla, pursuant to his instructions, digger. Father Luding of the Roman Catholic Church was asked to administer the
placed Borjal under custody and asked the residents of La Paz to file complaints last confession to the prisoner, while Father Filipino Velasco of the Aglipayan
against him. In no time, charges of espionage, aiding the enemy, and abuse of Church performed the last rites over Borjal's remains. Immediately after the
authority were filed against Borjal; a 12-man jury was appointed by Beronilla, execution, Beronilla reported the matter to Col. Arnold who in reply to Beronilla's
composed of Jesus Labuguen as chairman, and Benjamin Adriatico, Andres report, sent him the following message:
Afos, Juanito Casal, Santiago Casal, Benjamin Abella, Servillano Afos, Mariano
Ajel, Felimon Labuguen, Felix Murphy, Pedro Turqueza, and Delfin Labuguen as
HEADQUARTERS 3RD MILITARY DISTRICT
members; while Felix Alverne and Juan Balmaceda were named prosecutors,
15TH INFANTRY, USAFIP
Policarpio Paculdo as clerk of the jury, and Lino Inovermo as counsel for the
In the Field
 Upon motion of defense counsel, the case against defendant Jesus Labuguen,
22 April 1945
who had been granted amnesty by the Amnesty Commission of the Armed
Forces of the Philippines, was ordered provisionally dismissed: defendant Juan
Balmaceda was discharged from the information so that he might be utilized as
Msg. No. 398 state witness, although actually he was not called to testify; while the case
Subject: Report and information Re Borjal case against defendants Antonio Palope (the grave digger) and Demetrio Afos( a
To: Military Mayor Beronilla boloman) was dismissed for lack of sufficient evidence.

1. Received your letter dated 18 April 1945, subject, above. Trial proceeded against the rest of the defendants; and on July 10, 1950, the
2. My request that you withhold action in this case was only dictated Court below rendered judgment, acquitting the members of the jury and the
because of a query from Higher Headquarters regarding same. Actually, grave digger Antonio Palope on the ground that they did not participated in the
I believe there was no doubt as to the treasonable acts of the accused killing of Arsenio Borjal; acquitting defendants Jesus Labuguen, Felix Alverne,
Arsenio Borjal and I know that your trial was absolutely impartial and fair. Severo Afos, and Lauro Parado upon insufficiency of evidence to establish their
Consequently, I Can only compliment you for your impartial independent participation in the crime; but convicting defendants Manuel Beronilla, Policarpio
way of handling the whole case. Paculdo, Filipino Velasco, and Jacinto Adriatico as conspirator and co-principals
of the crime of murder, and sentencing them to suffer imprisonment of from 17
years, 4 months and 1 day of reclusion temporal to reclusion perpetua, to
(Sgd.) R. H. ARNOLD
indemnify the heirs of Arsenio Borjal jointly and severally in the amount of P4,000
Lieut.-Colonel, 15th Inf., PA
with subsidiary imprisonment in case of insolvency, and each to pay one fourth of
Commanding
the costs. In convicting said defendants the Court a quo found that while the
crime committed by them fell within the provisions of the Amnesty Proclamation,
Received April 26, 1947 7:00 a.m. they were not entitled to the benefits thereof because the crime was committed
after the expiration of the time limit fixed by the amnesty proclamation;: i.e., that
the deceased Arsenio Borjal was executed after the liberation of La Paz, Abra.
(Sgd.) MANUEL BERONILLA
Military Mayor, La Paz, Abra
In view of the sentence meted by the Court below, the accused Beronilla,
Paculdo, Velasco and Adriatico appealed to this Court.
(Exhibit 21, 21-a)

The records are ample to sustain the claim of the defense that the arrest,
Two years thereafter, Manuel Beronilla as military mayor, Policarpio Paculdo as
prosecution and trial of the late Arsenio Borjal were done pursuant to express
Clerk of the jury, Felix Alverne and Juan Balmaceda as prosecutors, Jesus
orders of the 15th Infantry Headquarters. (Exhibit 9 and 12-a), instructing all
Labuguen, Delfin Labuguen, Filemon Labuguen, Servillano Afos, Andres Afos,
military mayors under its jurisdiction to gather evidence against puppet officials
Benjamin Adriatico, Juanito Casel, Santiago Casel, Mariano Ajel, Felix Murphy,
and to appoint juries of at least 12 bolomen to try the accused and find them
Benjamin Abella, and Pedro Turqueza as members of the jury, Jacinto Adriatico
guilty by two thirds vote. It is to be noted that Arsenio Borjal was specifically
as executioner, Severo Afos as grave digger, and Father Filipino Velasco as an
named in the list of civilian officials to be prosecuted (Exhibit 12-b).
alleged conspirator, were indicted in the Court of First Instance of Abra for
murder, for allegedly conspiring and confederating in the execution of Arsenio
Borjal. Soon thereafter, the late President Manuel A. Roxas issued Executive In truth, the prosecution does not seriously dispute that the trial and sentencing
Proclamation No. 8, granting amnesty to all persons who committed acts of Borjal was done in accordance with instructions of superior military authorities,
penalized under the Revised Penal Code in furtherance of the resistance to the altho it point to irregularities that were due more to ignorance of legal processes
enemy against persons aiding in the war efforts of the enemy. Defendant Jesus than personal animosity against Borjal. The state, however, predicates its case
Labuguen, then a master sergeant in the Philippine Army, applied for and was principally on the existence of the radiogram Exhibit H from Col. Volckmann,
granted amnesty by the Amnesty Commission, Armed Forces of the Philippines overall area commander, to Lt. Col. Arnold, specifically calling attention to the
(Records, pp. 618-20). The rest of the defendant filed their application for illegality of Borjal's conviction and sentence, and which the prosecution claims
amnesty with the Second Guerrilla Amnesty Commission, who denied their was known to the accused Beronilla. Said message is as follows:
application on the ground that the crime had been inspired by purely personal
motives, and remanded the case to the Court of First Instance of Abra for trial on "Message:
the merits.
 VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT told me that I should tie Mayor Borjal, as tomorrow he would die, as he
MUNICIPALITIES OF ABRA HAVE ORGANIZED JURY SYSTEM PD cannot escape. I returned to the Presidencia, and Mayor Borjal was tied,
BELIEVE THAT THIS BODY IS ILLEGAL AND CANNOT TRY as that was the ordered of Mayor Beronilla.
PUNISHMENTS THEREOF PD SPECIFIC INSTANCE IS BROUGHT
TO YOUR ATTENTION FRO PROPER AND IMMEDIATE ACTION ON The plain import of the affidavit is that the witness Rafael Balmaceda was not
ONE ARSENIO BORJAL OF LA PAZ WHO HAS BEEN TRIED CMA with Beronilla when the message arrived, otherwise Beronilla would have given
CONVICTED AND SENTENCED TO BE HANGED PD REPORT him his orders direct, as he (Balmaceda) testified later at the trial. Moreover, it is
ACTION TAKEN BY YOU ON THIS MATTER PD MSG BEGINS CLN" difficult to believe that having learned of the contents of the Volckmann message,
Balmaceda should not have relayed it to Borjal , or to some member of the
(EXH. H) latter's family, considering that they were relatives. In addition to Balmaceda was
contradicted by Bayken, another prosecution witness, as to the hatching of the
The crucial question thus becomes whether or not this message, originally sent alleged conspiracy to kill Borjal. Balmaceda claimed that the accused-appellants
to Arnold's quarters in San Esteban, Ilocos Sur, was relayed by the latter to decided to kill Borjal in the early evening of April 18, while Bayken testified that
appellant Beronilla in La Paz, Abra, on the morning of April 18, 1945, together the agreement was made about ten o'clock in the morning, shortly after the
with the package of records of Borjal's trial that was admittedly returned to and accused had denied Borjal's petition to be allowed to hear mass.
received by Beronilla on that date, after review thereof by Arnold (Exhibit 8-8-a).
Obviously, if the Volckmann message was known to Beronilla, his ordering the Upon the other hand, Beronilla's conduct belies his receipt of the Volckmann
execution of Borjal on the night of April 18, 1945 can not be justified. message. Had he executed Borjal in violation of superior orders, he would not
have dared to report it to Arnold's headquarters on the very same day, April 18th,
We have carefully examined the evidence on this important issue, and find no 1945, as he did (Exhibit 20), half an hour after the execution. And what is even
satisfactory proof that Beronilla did actually receive the radiogram Exhibit H or more important, if Borjal was executed contrary to instructions, how could Lt.
any copy thereof. The accused roundly denied it. The messenger, or "runner", Colonel Arnold on April 21, 1945, write in reply (Exhibit 21, 21-a) "I can only
Pedro Molina could not state what papers were enclosed in the package he compliment you for your impartial but independent way of handling the whole
delivered to Beronilla on that morning in question, nor could Francisco Bayquen case" instead of berating Beronilla and ordering his court martial for
(or Bayken), who claimed to have been present at the delivery of the message, disobedience?
state the contents thereof.
Our conclusion is that Lt. Col. Arnold, for some reason that can not now be
The only witness who asserted that Beronilla received and read the Volckmann ascertained, failed to transmit the Volckmann message to Beronilla. And this
message, Exhibit H, was Rafael Balmaceda, a relative of Borjal, who claimed to being so, the charge of criminal conspiracy to do away with Borjal must be
have been, as Beronilla's bodyguard, present at the receipt of the message and rejected, because the accused had no need to conspire against a man who was,
to have read it over Beronilla's shoulder. This testimony, however, can not be to their knowledge, duly sentenced to death.
accorded credence, for the reason that in the affidavit executed by this witness
before Fiscal Antonio of Abra (Exhibit 4), Balmaceda failed to make any mention The state claims that the appellants held grudges against the late Borjal. Even
of the reading, or even the receipt, of the message. In the affidavit, he stated: so, it has been already decided that the concurrence of personal hatred and
collaboration with the enemy as motives for a liquidation does not operate to
Q. In your capacity as policeman, do you know of any usual occurrence exclude the case from the benefits of the Amnesty claimed by appellants, since
that transpired in La Paz, Abra? — A. Yes, sir. then "it may not be held that the manslaughter stemmed from purely personal
motives" (People vs. Barrioquinto,* G. R. Nos. L-2011 and 2267, June 30, 1951).
Q. Will you state what is the event? — A. On April 17, 1945, I was Actually, the conduct of the appellants does not dispose that these appellants
assigned as guard at the Presidencia where Mayor Arsenio Borjal is were impelled by malice (dolo). The arrest and trial of Borjal were made upon
confined. On the 18th of April, 1945, six bolomen came to me while I express orders of the higher command; the appellants allowed Borjal to be
was on duty as guard, that Mayor Borjal should be tied, on orders of defended by counsel, one of them (attorney Jovito Barreras) chosen by Borjal's
Mayor Beronilla, Mayor Borjal wanted to know the reason why he would sister; the trial lasted nineteen (19) days; it was suspended when doubts arose
be tied, as he had not yet learned of the decision of the jury against him. about its legality, and it was not resumed until headquarters (then in
Mayor Borjal wrote a note to Mayor Beronilla, asking the reason for his Langangilang, Abra) authorized its resumption and sent an observer (Esteban
being ordered to be tied. I personally delivered the note of Borjal to Cabanos, of the S-5) to the proceedings, and whose suggestions on procedure
Mayor Beronilla. Mayor Beronilla did not answer the note, but instead were followed; and when the verdict of guilty was rendered and death sentence
imposed, the records were sent to Arnold's headquarters for review, and Borjal
was not punished until the records were returned eight days later with the
statement of Arnold that "whatever disposition you make of the case is hereby
approved" (Exhibit 8), which on its face was an assent to the verdict and the
sentence. The lower Court, after finding that the late Arsenio Borjal had really
committed treasonable acts, (causing soldiers and civilians to be tortured, and
hidden American officers to be captured by the Japanese) expressly declared
that "the Court is convinced that it was not for political or personal reason that the
accused decided to kill Arsenio Borjal" (Decision, p. 9; Record, p. 727).

It appearing that the charge is the heinous crime of murder, and that the
accused-appellants acted upon orders, of a superior officers that they, as military
subordinates, could not question, and obeyed in good faith, without being aware
of their illegality, without any fault or negligence on their part, we can not say that
criminal intent has been established (U. S. vs. Catolico, 18 Phil., 507; Peo. vs.
Pacana, 47 Phil., 48; Sent. of the Tribunal Supremo of Spain, 3 July 1886; 7
January 1901; 24 March 1900; 21 Feb. 1921; 25 March 1929). Actus non facit
reum nisi mens si rea.

To constitute a crime, the act must, except in certain crimes made such
by statute, be accompanied by a criminal intent, or by such negligence
or indifference to duty or to consequence, as, in law, is equivalent to
criminal intent. The maxim is, actus non facit reum, nisi mens rea-
a crime is not committed if the minds of the person performing the act
complained of be innocent. (U. S. vs. Catolico, 18 Phil., 507).

But even assuming that the accused-appellant did commit crime with they are
charged, the Court below should not have denied their claim to the benefits of the
Guerrilla Amnesty Proclamation No. 8 (42 Off. Gaz., 2072)on the ground that the
slaying of Arsenio Borjal took place after actual liberation of the area from enemy
control and occupation. The evidence on record regarding the date of liberation
of La Paz, Abra, is contradictory. The Military Amnesty Commission that decided
the case of one of the original accused Jesus Labuguen, held that La Paz, Abra,
was liberated on July 1, 1945, according to its records; and this finding was
accepted by Judge Letargo when he dismissed the case against said accused on
March 15, 1949. On the other hand, Judge Bocar and Hilario, who subsequently
took cognizance of the case, relied on Department Order No. 25, of the
Department of the Interior, dated August 12, 1948, setting the liberation of the
Province of Abra on April 4, 1945, fifteen days before Borjal was slain. The two
dates are not strictly contradictory; but given the benefit of the Presidential
directive to the Amnesty Commissions (Adm. Order No. 11, of October 2, 1946)
that "any reasonable doubt as to whether a given case falls within the (amnesty)
proclamation shall be resolved in favor of the accused" (42 Off. Gaz., 2360), as
was done in People vs. Gajo, Phil., 107 46 Off. Gaz., (No. 12) p. 6093.

For the reasons stated, the judgment appealed from is reversed and the
appellants are acquitted, with costs de oficio.
G.R. Nos. 103501-03 February 17, 1997 (P25,000,000.00), the amount malversed. He shall also
reimburse the Manila International Airport Authority the sum of
LUIS A. TABUENA, petitioner, TWENTY-FIVE MILLION PESOS (P25,000,000.00).
vs.
HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE In addition, he shall suffer the penalty of perpetual special
PHILIPPINES, respondents. disqualification from public office.

G.R. No. 103507 February 17, 1997 (3) In Criminal Case No. 11760, accused Luis A. Tabuena and
Adolfo M. Peralta are each sentenced to suffer the penalty of
ADOLFO M. PERALTA, petitioner, imprisonment of seventeen (17) years and one (1) day
vs. of reclusion temporal as minimum and twenty (20) years
HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE of reclusion temporal as maximum and for each of them to pay
PHILIPPINES, represented by the OFFICE OF THE SPECIAL separately a fine of FIVE MILLION PESOS (P5,000,000.00) the
PROSECUTOR, respondents. amount malversed. They shall also reimburse jointly and
severally the Manila International Airport Authority the sum of
FIVE MILLION PESOS (P5,000,000.00).

In addition, they shall both suffer the penalty of perpetual

FRANCISCO, J.: special disqualification from public office.

Through their separate petitions for review,1 Luis A. Tabuena and Adolfo M. A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then
Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan decision Assistant General Manager of MIAA, has remained at large.
dated October 12, 1990,2 as well as the Resolution dated December 20.
19913denying reconsideration, convicting them of malversation under Article 217
of the Revised Penal Code. Tabuena and Peralta were found guilty beyond There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since
reasonable doubt Of having malversed the total amount of P55 Million of the the total amount of P55 Million was taken on three (3) separate dates of January,
Manila International Airport Authority (MIAA) funds during their incumbency as 1986. Tabuena appears as the principal accused — he being charged in all three
General Manager and Acting Finance Services Manager, respectively, of MIAA, (3) cases. The amended informations in criminal case nos. 11758, 11759 and
and were thus meted the following sentence: 11760 respectively read:

(1) In Criminal Case No. 11758, accused Luis A. Tabuena is That on or about the 16th day of January, 1986, and for
sentenced to suffer the penalty of imprisonment of seventeen sometime subsequent thereto, in the City of Pasay, Philippines,
(17) years and one (1) day of reclusion temporal as minimum to and within the jurisdiction of this Honorable Court, accused Luis
twenty (20) years of reclusion temporal as maximum, and to pay A. Tabuena and Gerardo G. Dabao, both public officers, being
a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), then the General Manager and Assistant General Manager,
the amount malversed. He shall also reimburse the Manila respectively, of the Manila International Airport Authority
International Airport Authority the sum of TWENTY-FIVE (MIAA), and accountable for public funds belonging to the
MILLION PESOS (P25,000,000.00). MIAA, they being the only ones authorized to make withdrawals
against the cash accounts of MIAA pursuant to its board
resolutions, conspiring, confederating and confabulating with
In addition, he shall suffer the penalty of perpetual special each other, did then and there wilfully, unlawfully, feloniously,
disqualification from public office, and with intent to defraud the government, take and
misappropriate the amount of TWENTY FIVE MILLION PESOS
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is (P25,000,000.00) from MIAA funds by applying for the issuance
sentenced to suffer the penalty of imprisonment of seventeen of a manager's check for said amount in the name of accused
(17) years and one (1) day of reclusion temporal as minimum, Luis A. Tabuena chargeable against MIAA's Savings Account
and twenty (20) years of reclusion temporal as maximum, and No. 274-500-354-3 in the PNB Extension Office at the Manila
to pay a fine of TWENTY-FIVE MILLION PESOS International Airport in Pasay City, purportedly as partial
payment to the Philippine National Construction Corporation That on or about the 29th day of January, 1986, and for
(PNCC), the mechanics of which said accused Tabuena would sometime subsequent thereto, in the City of Pasay, Philippines,
personally take care of, when both accused well knew that there and within the jurisdiction of this Honorable Court, accused Luis
was no outstanding obligation of MIAA in favor of PNCC, and A. Tabuena and Adolfo M. Peralta, both public officers, being
after the issuance of the above-mentioned manager's check, then the General Manager and Acting Manager, Financial
accused Luis A. Tabuena encashed the same and thereafter Services Department, respectively, of the Manila International
both accused misappropriated and converted the proceeds Airport Authority (MIAA), and accountable for public funds
thereof to their personal use and benefit, to the damage and belonging to the MIAA, they being the only ones authorized to
prejudice of the government in the aforesaid amount. make withdrawals against the cash accounts of MIAA pursuant
to its board resolutions, conspiring, confederating and
CONTRARY TO LAW. confabulating with each other, did then and there wilfully,
unlawfully, feloniously, and with intent to defraud the
government, take and misappropriate the amount of FIVE
xxx xxx xxx
MILLION PESOS (P5,000,000.00) from MIAA funds by applying
for the issuance of a manager's check for said amount in the
That on or about the 16th day of January, 1986, and for name of accused Luis A. Tabuena chargeable against MIAA's
sometime subsequent thereto, in the City of Pasay. Philippines Savings Account No. 274-500- 354-3 in the PNB Extension
and within the jurisdiction of this Honorable Court, accused Luis Office at the Manila International Airport in Pasay City,
A. Tabuena and Gerardo G. Dabao, both public officers, being purportedly as partial payment to the Philippine National
then the General Manager and Assistant General Manager, Construction Corporation (PNCC), the mechanics of which said
respectively, of the Manila International Airport Authority accused Tabuena would personally take care of, when both
(MIAA), and accountable for public funds belonging to the accused well knew that there was no outstanding obligation of
MIAA, they being the only ones authorized to make withdrawals MIAA in favor of PNCC, and after the issuance of the above-
against the cash accounts of MIAA pursuant to its board mentioned manager's check, accused Luis A. Tabuena
resolutions, conspiring, confederating and confabulating with encashed the same and thereafter both accused
each other, did then and there wilfully, unlawfully, feloniously, misappropriated and converted the proceeds thereof to their
and with intent to defraud the government, take and personal use and benefit, to the damage and prejudice of the
misappropriate the amount of TWENTY FIVE MILLION PESOS government in the aforesaid amount.
(P25,000,000.00) from MIAA funds by applying for the issuance
of a manager.s check for said amount in the name of accused CONTRARY TO LAW.
Luis A. Tabuena chargeable against MIAA's Savings Account
No. 274-500-354-3 in the PNB Extension Office at the Manila
International Airport in Pasay City, purportedly as partial Gathered from the documentary and testimonial evidence are the following
payment to the Philippine National Construction Corporation essential antecedents:
(PNCC), the mechanics of which said accused Tabuena would
personally take care of, when both accused well knew that there Then President Marcos instructed Tabuena over the phone to pay directly to the
was no outstanding obligation of MIAA in favor of PNCC, and president's office and in cash what the MIAA owes the Philippine National
after the issuance of the above-mentioned manager's check, Construction Corporation (PNCC), to which Tabuena replied, "Yes, sir, I will do
accused Luis A. Tabuena encashed the same and thereafter it." About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then
both accused misappropriated and converted the proceeds private secretary of Marcos, a Presidential Memorandum dated January 8, 1986
thereof to their personal use and benefit, to the damage and (hereinafter referred to as MARCOS Memorandum) reiterating in black and white
prejudice of the government in the aforesaid amount. such verbal instruction, to wit:

CONTRARY TO LAW.

xxx xxx xxx

 Office of the President D
of the Philippines
Malacanang M
A
J R
a C
n O
u S
a .
4

r
y
The January 7, 1985 memorandum 8of then Minister of Trade and
Industry Roberto Ongpin referred to , in the MARCOS Memorandum,
reads in full:
1
MEMORANDUM 9
8
For: The President 6

MEMO TO: The General Manager From: Minister Roberto V. Ongpin

Manila International Airport Authority
Date: 7 January 1985
You are hereby directed to pay immediately the Philippine
National Construction Corporation, thru this Office, the sum of
Subject: Approval of
FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as
Supplemental Contracts and
partial payment of MIAA's account with said Company
Request for Partial Deferment
mentioned in a Memorandum of Minister Roberto Ongpin to this
of Repayment of PNCC's
Office dated January 7, 1985 and duly approved by this Office
Advances for MIA
on February 4, 1985.
Development Project

Your immediate compliance is appreciated.

May I request your approval of the attached recommendations
of Minister Jesus S. Hipolito for eight (8) supplemental contracts
( pertaining to the MIA Development Project (MIADP) between
S the Bureau of Air Transport (BAT) and Philippine National
g Construction Corporation (PNCC), formerly CDCP, as follows:
d
.
1. Supplemental Contract No. 12
)
Package Contract No. 2
P11,106,600.95
F
E
R 2. Supplemental Contract No. 13
D 5,758,961.52
I
N 3. Supplemental Contract No. 14
A Package Contract No. 2 4,586,610.80
N
 4. Supplemental Contract No. 15 evaluation 66.5 million
1,699,862.69 ——————
Total P99.1 million
5. Supplemental Contract No. 16
Package Contract No. 2 233,561.22 There has been no funding allocation for any of the above
escalation claims due to budgetary constraints.
6. Supplemental Contract No. 17
Package Contract No. 2 8,821,731.08 The MIA Project has been completed and operational as far
back as 1982 and yet residual amounts due to PNCC have not
7. Supplemental Contract No. 18 been paid, resulting in undue burden to PNCC due to additional
Package Contract No. 2 6,110,115.75 cost of money to service its obligations for this contract.

8. Supplemental Contract No. 3 To allow PNCC to collect partially its billings, and in
Package Contract No. II consideration of its pending escalation billings, may we request
16,617,655.49 for His Excellency's approval for a deferment of the repayment
of PNCC's advances to the extent of P30 million corresponding
to about 30% of P99.1 million in escalation claims of PNCC, of
(xerox copies only; original memo was which P32.5 million has been officially recognized by MIADP
submitted to the Office of the President on consultants but could not be paid due to lack of funding.
May 28, 1984)
Our proposal will allow BAT to pay PNCC the amount of P34.5
In this connection, please be informed that Philippine National
million out of existing MIA Project funds. This amount
Construction Corporation (PNCC), formerly CDCP, has represents the excess of the gross billings of PNCC of P98.4
accomplishment billings on the MIA Development Project million over the undeferred portion of the repayment of
aggregating P98.4 million, inclusive of accomplishments for the advances of P63.9 million.
aforecited contracts. In accordance with contract provisions,
outstanding advances totalling P93.9 million are to be deducted
from said billings which will leave a net amount due to PNCC of
only P4.5 million.

At the same time, PNCC has potential escalation claims

amounting to P99 million in the following stages of
approval/evaluation:

— Approved by Price
Escalation Committee
(PEC) but pended for lack of
funds P1.9 million

— Endorsed by project
consultants and
currently being evaluated by
PEC 30.7 million

— Submitted by PNCC
directly to PEC
and currently under
 I
N

M
i
n
i
s
t
e
r
5

In obedience to President Marcos' verbal instruction and memorandum, RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT
Tabuena, with the help of Dabao and Peralta, caused the release of P55 Million OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the
of MIAA funds by means of three (3) withdrawals. following dates:

The first withdrawal was made on January 10, 1986 for P25 Million, following a Jan. 10 — P 25,000,000.00
letter of even date signed by Tabuena and Dabao requesting the PNB extension Jan. 16 — 25,000,000.00
office at the MIAA — the depository branch of MIAA funds, to issue a manager's Jan. 30 — 5,000,000.00
check for said amount payable to Tabuena. The check was encashed, however,
at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch
counted the money after which, Tabuena took delivery thereof. The P25 Million in
cash were then placed in peerless boxes and duffle bags, loaded on a PNB
armored car and delivered on the same day to the office of Mrs. Gimenez located
at Aguado Street fronting Malacanang. Mrs. Gimenez did not issue any receipt
for the money received

Similar circumstances surrounded the second withdrawal/encashment and

delivery of another P25 Million, made on January 16, 1986.

The third and last withdrawal was made on January 31, 1986 for P5 Million.
Peralta was Tabuena's co-signatory to the letter- request for a manager's check
for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as
Tabuena requested him to do the counting of the P5 Million. After the counting,
the money was placed in two (2) peerless boxes which were loaded in the trunk
of Tabuena's car. Peralta did not go with Tabuena to deliver the money to Mrs.
Gimenez' office at Aguado Street. It was only upon delivery of the P5 Million that
Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena.
The receipt, dated January 30, 1986, reads:

Malacanang
Manila
The disbursement of the P55 Million was, as described by Tabuena and Peralta
themselves, "out of the ordinary" and "not based
J on the normal procedure". Not
only were there no vouchers prepared to support
a the disbursement, the P55
Million was paid in cold cash. Also, no PNCCn receipt for the P55 Million was
presented. Defense witness Francis Monera, then Senior Assistant Vice It proves that Tabuena had deliberately consented or permitted
President and Corporate Comptroller of PNCC, even affirmed in court that there through negligence or abandonment, some other person to take
were no payments made to PNCC by MIAA for the months of January to June of such public funds. Having done so, Tabuena, by his own
1986. narration, has categorically demonstrated that he is guilty of the
misappropriation or malversation of P55 Million of public funds.
The position of the prosecution was that there were no outstanding obligations in (Emphasis supplied.)
favor of PNCC at the time of the disbursement of the P55 Million. On the other
hand, the defense of Tabuena and Peralta, in short, was that they acted in good To support their theory that such variance is a reversible flaw, Tabuena
faith. Tabuena claimed that he was merely complying with the MARCOS and Peralta argue that:
Memorandum which ordered him to forward immediately to the Office of the
President P55 Million in cash as partial payment of MIAA's obligations to PNCC, 1) While malversation may be committed intentionally or by negligence, both
and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. modes cannot be committed at the same time.
Peralta for his part shared the same belief and so he heeded the request of
Tabuena, his superior, for him (Peralta) to help in the release of P5 Million.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of
negligence where the amended informations charged them with intentional
With the rejection by the Sandiganbayan of their claim of good faith which malversation.7
ultimately led to their conviction, Tabuena and Peralta now set forth a total of ten
(10) errors6 committed by the Sandiganbayan for this Court's consideration. It
3) Their conviction of a crime different from that charged violated their
appears, however, that at the core of their plea that we acquit them are the
constitutional right to be informed of the accusation.8
following:

We do not agree with Tabuena and Peralta on this point. Illuminative and
1) the Sandiganbayan convicted them of a crime not charged in the amended
informations, and controlling is "Cabello v. Sandiganbayan" 9where the Court passed upon similar
protestations raised by therein accused-petitioner Cabello whose conviction for
the same crime of malversation was affirmed, in this wise:
2) they acted in good faith.
. . . even on the putative assumption that the evidence against
Anent the first proposition, Tabuena and Peralta stress that they were being petitioner yielded a case of malversation by negligence but the
charged with intentional malversation, as the amended informations commonly information was for intentional malversation, under the
allege that: circumstances of this case his conviction under the first mode of
misappropriation would still be in order. Malversation is
. . . accused . . . conspiring, confederating and other, then and committed either intentionally or by negligence. The dolo or
there wilfully, unlawfully, feloniously, and with intent to defraud the culpa present in the offense is only a modality in the
the government, take and misappropriated the amount of . . . . perpetration of the felony. Even if the mode charged differs from
the mode proved, the same offense of malversation is involved
But it would appear that they were convicted of malversation by and conviction thereof is proper. . . .
negligence. In this connection, the Court's attention is directed to p. 17
of the December 20, 1991 Resolution (denying Tabuena's and Peralta's In Samson vs. Court of Appeals, et. al., we held that an accused
motion for reconsideration) wherein the Sandiganbayan said: charged with willful or intentional falsification can validly be
convicted of falsification through negligence, thus:
xxx xxx xxx
While a criminal negligent act is not a simple modality of a willful
On the contrary, what the evidence shows is that accused crime, as we held in Quizon vs. Justice of the Peace of Bacolor.
Tabuena delivered the P55 Million to people who were not G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal
entitled thereto, either as representatives of MIAA or of the Code, designated as a quasi offense in our Penal Code, it may
PNCC. however be said that a conviction for the former can be had
under an information exclusively charging the commission of a
willful offense, upon the theory that the greater includes the
 lesser offense. This is the situation that obtains in the present as, in law, is equivalent to criminal intent. The maxim is actus
case. Appellant was charged with willful falsification but from the non facit reum, nisi mens sit rea — a crime is not committed if
evidence submitted by the parties, the Court of Appeals found the mind of the person performing the act complained of is
that in effecting the falsification which made possible the innocent.
cashing of the checks in question, appellant did not act with
criminal intent but merely failed to take proper and adequate The rule was reiterated in "People v. Pacana," 12 although this case
means to assure himself of the identity of the real claimants as involved falsification of public documents and estafa:
an ordinary prudent man would do. In other words, the
information alleges acts which charge willful falsification but
which turned out to be not willful but negligent. This is a case Ordinarily, evil intent must unite with an unlawful act for there to
covered by the rule when there is a variance between the be a crime. Actus non facit reum, nisi mens sit rea. There can
be no crime when the criminal mind is wanting.
allegation and proof, and is similar to some of the cases
decided by this Tribunal.
American jurisprudence echoes the same principle. It adheres to the
xxx xxx xxx view that criminal intent in embezzlement is not based on technical
mistakes as to the legal effect of a transaction honestly entered into, and
there can be no embezzlement if the mind of the person doing the act is
Moreover; Section 5, Rule 116, of the Rules of Court does not innocent or if there is no wrongful purpose.13 The accused may thus
require that all the essential elements of the offense charged in always introduce evidence to show he acted in good faith and that he
the information be proved, it being sufficient that some of said had no intention to convert.14 And this, to our mind, Tabuena and Peralta
essential elements or ingredients thereof be established to had meritoriously shown.
constitute the crime proved. . . .
In so far as Tabuena is concerned, with the due presentation in evidence of the
The fact that the information does not allege that the falsification MARCOS Memorandum we are swayed to give credit to his claim of having
was committed with imprudence is of no moment for here this caused the disbursement of the P55 Million solely by reason of such
deficiency appears supplied by the evidence submitted by memorandum. From this premise flows the following reasons and/or
appellant himself and the result has proven beneficial to him. considerations that would buttress his innocence of the crime of malversation.
Certainly, having alleged that the falsification has been willful, it
would be incongruous to allege at the same time that it was
First. Tabuena had no other choice but to make the withdrawals, for that was
committed with imprudence for a charge of criminal intent is
incompatible with the concept of negligence. what the MARCOS Memorandum required him to do. He could not be faulted if
he had to obey and strictly comply with the presidential directive, and to argue
otherwise is something easier said than done. Marcos was undeniably Tabuena's
Subsequently, we ruled in People vs. Consigna, et. al., that the superior — the former being then the President of the Republic who
aforestated rationale and arguments also apply to the felony of unquestionably exercised control over government agencies such as the MIAA
malversation, that is, that an accused charged with willful and PNCC.15 In other words, Marcos had a say in matters involving inter-
malversation, in an information containing allegations similar to government agency affairs and transactions, such as for instance, directing
those involved in the present case, can be validly convicted of payment of liability of one entity to another and the manner in which it should be
the same offense of malversation through negligence where the carried out. And as a recipient of such kind of a directive coming from the highest
evidence sustains the latter mode of perpetrating the offense. official of the land no less, good faith should be read on Tabuena's compliance,
without hesitation nor any question, with the MARCOS Memorandum. Tabuena
Going now to the defense of good faith, it is settled that this is a valid defense in therefore is entitled to the justifying circumstance of "Any person who acts in
a prosecution for malversation for it would negate criminal intent on the part of obedience to an order issued by a superior for some lawful purpose."16 The
the accused. Thus, in the two (2) vintage, but significantmalversation cases of subordinate-superior relationship between Tabuena and Marcos is clear. And so
"US v. Catolico" 10 and "US v. Elvina," 11 the Court stressed that: too, is the lawfulness of the order contained in the MARCOS Memorandum, as it
has for its purpose partial payment of the liability of one government agency
To constitute a crime, the act must, except in certain crimes (MIAA) to another (PNCC). However, the unlawfulness of the MARCOS
made such by statute, be accompanied by a criminal intent, or Memorandum was being argued, on the observation, for instance, that the
by such negligence or indifference to duty or to consequences Ongpin Memo referred to in the presidential directive reveals a liability of only
about P34.5 Million. The Sandiganbayan in this connection said:
Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of V. Pres. Marcos' order to Tabuena dated January 8, 1986
Min. Ongpin to the President dated January 7, 1985) were baseless.
mainly:
Not only was Pres. Marcos' Memo (Exhibit "1")
a.) for the approval of eight Supplemental Contracts; and for Tabuena to pay P55 million irrelevant, but it
was actually baseless.
b.) a request for partial deferment of payment by PNCC for
advances made for the MIAA Development Project, while at the This is easy to see.
same time recognizing some of the PNCC's escalation billings
which would result in making payable to PNCC the amount of Exhibit "1" purports to refer itself to the Ongpin
P34.5 million out of existing MIAA Project funds. Memorandum (Exhibit "2", "2-a"); Exhibit "1",
however, speaks of P55 million to be paid to
Thus: the PNCC while Exhibit "2" authorized only
P34.5 million. The order to withdraw the
"xxx xxx xxx amount of P55 million exceeded the approved
payment of P34.5 million by P20.5 million. Min.
Ongpin's Memo of January 7, 1985 could not
To allow PNCC to collect partially its billings, therefore serve as a basis for the President's
and in consideration of ifs pending escalation order to withdraw P55 million. 18
billings, may we request for His Excellency's
approval for a deferment of repayment of
PNCC's advances to the extent of P30 million Granting this to be true, it will not nevertheless affect Tabuena's goad
corresponding to about 30% of P99.1 million in faith so as to make him criminally liable. What is more significant to
escalation claims of PNCC, of which P32.6 consider is that the MARCOS Memorandum is patently legal (for on its
million has been officially recognized by face it directs payment of an outstanding liability) and that Tabuena
MIADP consultants but could not be paid due acted under the honest belief that the P55 million was a due and
to lack of funding. demandable debt and that it was just a portion of a bigger liability to
PNCC. This belief is supported by defense witness Francis Monera who,
on direct examination, testified that:
Our proposal will allow BAT to pay PNCC the
amount of P34.5 million out of existing MIA
Project funds. This amount represents the ATTY ANDRES
excess of the gross billings of PNCC of P98.4
million over the undeferred portion of the Q Can you please show us in this Exhibit "7"
repayment of advances of P63.9 million." and "7-a" where it is indicated the receivables
from MIA as of December 31, 1985?
While Min. Ongpin may have, therefore recognized the
escalation claims of the PNCC to MIAA to the extent of P99.1 A As of December 31, 1985, the receivables
million (Exhibit 2a), a substantial portion thereof was still in the from MIA is shown on page 2, marked as
stages of evaluation and approval, with only P32.6 million Exhibit "7-a", sir, P102,475.392.35
having been officially recognized by the MIADP consultants.
xxx xxx xxx 19
If any payments were, therefore, due under this memo for Min.
Ongpin (upon which President Marcos' Memo was based) they ATTY. ANDRES
would only be for a sum of up to P34.5 million. 17
Q Can you tell us, Mr. Witness, what these
xxx xxx xxx obligations represent?
 WITNESS b) payment of all claims against the government had to be supported with
complete documentation (Sec. 4, P.D. 1445, "State Auditing Code of the
A These obligations represent receivables on Philippines). In this connection, the Sandiganbayan observed that:
the basis of our billings to MIA as contract-
owner of the project that the Philippine There were no vouchers to authorize the disbursements in
National Construction Corporation constructed. question. There were no bills to support the disbursement.
These are billings for escalation mostly, sir. There were no certifications as to the availability of funds for an
unquestionably staggering sum of P55 Million. 25
Q What do you mean by escalation?
c) failure to protest (Sec. 106, P.D. 1445)
A Escalation is the component of our revenue
billings to the contract-owner that are But this deviation was inevitable under the circumstances Tabuena was
supposed to take care of price increases, sir. in. He did not have the luxury of time to observe all auditing procedures
of disbursement considering the fact that the MARCOS Memorandum
xxx xxx xxx 20 enjoined his "immediate compliance" with the directive that he forward to
the President's Office the P55 Million in cash. Be that as it may,
Tabuena surely cannot escape responsibility for such omission. But
ATTY ANDRES
since he was acting in good faith, his liability should only be
administrative or civil in nature, and not criminal. This follows the
Q When you said these are accounts decision in "Villacorta v. People"26 where the Court, in acquitting therein
receivable, do I understand from you that accused municipal treasurer of Pandan, Catanduanes of malversation
these are due and demandable? after finding that he incurred a shortage in his cash accountability by
reason of his payment in good faith to certain government personnel of
A Yes, sir. 21 their legitimate wages leave allowances, etc., held that:

Thus, even if the order is illegal if it is patently legal and the subordinate Nor can negligence approximating malice or fraud be attributed
is not aware of its illegality, the subordinate is not liable, for then there to petitioner. If he made wrong payments, they were in Good
would only be a mistake of fact committed in good faith.22 Such is the faith mainly to government personnel, some of them working at
ruling in "Nassif v. People"23 the facts of which, in brief, are as follows: the provincial auditor's and the provincial treasurer's offices And
if those payments ran counter to auditing rules and regulations,
Accused was charged with falsification of commercial they did not amount to a criminal offense and he should only be
document. A mere employee of R.J. Campos, he inserted in the held administratively or civilly liable.
commercial document alleged to have been falsified the word
"sold" by order of his principal. Had he known or suspected that Likewise controlling is "US v. Elvina" 27 where it was held that payments
his principal was committing an improper act of falsification, he in good faith do not amount to criminal appropriation, although they were
would be liable either as a co-principal or as an accomplice. made with insufficient vouchers or improper evidence. In fact, the
However, there being no malice on his part, he was exempted Dissenting Opinion's reference to certain provisions in the revised
from criminal liability as he was a mere employee following the Manual on Certificate of Settlement and Balances — apparently made to
orders of his principal. 24 underscore Tabuena's personal accountability, as agency head, for
MIAA funds — would all the more support the view that Tabuena is
Second. There is no denying that the disbursement, which Tabuena admitted as vulnerable to civil sanctions only Sections 29.2 and 295 expressly and
"out of the ordinary", did not comply with certain auditing rules and regulations solely speak of "civilly liable," describe the kind of sanction imposable on
such as those pointed out by the Sandiganbayan, to wit: a superior officer who performs his duties with "bad faith, malice or gross
negligence"' and on a subordinate officer or employee who commits
"willful or negligent acts . . . which are contrary to law, morals, public
a) [except for salaries and wages and for commutation of leaves] all policy and good customs even if he acted under order or instructions of
disbursements above P1,000.00 should be made by check (Basic Guidelines for his superiors."
Internal Control dated January 31, 1977 issued by COA)
Third. The Sandiganbayan made the finding that Tabuena had already converted s
and misappropriated the P55 Million when he delivered the same to Mrs. .
Gimenez and not to the PNCC, proceeding from the following
definitions/concepts of "conversion": L
u
"Conversion", as necessary element of offense of n
embezzlement, being the fraudulent "appropriation to one's own t
use' of another's property which does not necessarily mean to a
one's personal advantage but every attempt by one person to o
dispose of the goods of another without right as if they were his ,
own is conversion to his own use." (Terry v. Water Improvement
Dist. No. 5 of Tulsa County, 64 p, 2d 904, 906, 179 Okl. 106. 5
0
Conversion is any interference subversive of the right of the O
owner of personal property to enjoy and control it. The gist of
.
conversion is the usurpation of the owner 's right of property,
G
and not the actual damages inflicted. Honesty of purpose is not
.
a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141).
p
xxx xxx xxx .

The words "convert" and "misappropriate" connote an act of 1

using or disposing of another's property as if it were one's own. 1
They presuppose that the thing has been devoted to a purpose 8
or use different from that agreed upon. To appropriate to one's 2
own use includes not only conversion to one's personal ,
advantage but every attempt to dispose of the property of
another without right. 1
1
s. Webber, 57 O.G. 8
p. 2933, 2937 3
2
8
By placing them at the disposal of private persons without due
authorization or legal justification, he became as guilty of
malversation as if he had personally taken them and converted
them to his own use. We do not agree. It must be stressed that the MARCOS Memorandum
directed Tabuena "to pay immediately the Philippine National
— Construction Corporation, thru this office the sum of FIFTY FIVE
MILLION. . .", and that was what Tabuena precisely did when he
P delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in
e effect delivery to the Office of the President inasmuch as Mrs. Gimenez
o was Marcos' secretary then. Furthermore, Tabuena had reasonable
p ground to believe that the President was entitled to receive the P55
l Million since he was certainly aware that Marcos, as Chief Executive,
e exercised supervision and control over government agencies. And the
good faith of Tabuena in having delivered the money to the President's
v office (thru Mrs. Gimenez), in strict compliance with the MARCOS
 Memorandum, was not at all affected even if it later turned out that In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his
PNCC never received the money. Thus, it has been said that: collection to be converted into checks drawn in the name of one
Marshall Lu, a non-customer of MWSS, but the checks were
Good faith in the payment of public funds relieves a public subsequently dishonored. Ang was acquitted by this Court after giving
officer from the crime of malversation. credence to his assertion that the conversion of his collections into
checks were thru the machinations of one Lazaro Guinto, another
MWSS collector more senior to him. And we also adopt the Court's
xxx xxx xxx
observation therein, that:

Not every unauthorized payment of public funds is malversation.

The petitioner's alleged negligence in allowing the senior
There is malversation only if the public officer who has custody
collector to convert cash collections into checks may be proof of
of public funds should appropriate the same, or shall take or
poor judgment or too trusting a nature insofar as a superior
misappropriate or shall consent, or through abandonment or
officer is concerned but there must be stronger evidence to
negligence shall permit any other person to take such public
show fraud, malice, or other indicia of deliberateness in the
funds. Where the payment of public funds has been made in
conspiracy cooked up with Marshall Lu. The prosecution failed
good faith, and there is reasonable ground to believe that the
to show that the petitioner was privy to the conspirational
public officer to whom the fund had been paid was entitled
scheme. Much less is there any proof that he profited from the
thereto, he is deemed to have acted in good faith, there is no
questioned acts. Any suspicions of conspiracy, no matter how
criminal intent, and the payment, if it turns out that it is
sincerely and strongly felt by the MWSS, must be converted into
unauthorized, renders him only civilly but not criminally liable.29
evidence before conviction beyond reasonable doubt may be
imposed. 33
Fourth. Even assuming that the real and sole purpose behind the MARCOS
Memorandum was to siphon-out public money for the personal benefit of those
The principles underlying all that has been said above in exculpation of
then in power, still, no criminal liability can be imputed to Tabuena. There is no
Tabuena equally apply to Peralta in relation to the P5 Million for which
showing that Tabuena had anything to do whatsoever with the execution of the
he is being held accountable, i.e., he acted in good faith when he, upon
MARCOS Memorandum. Nor is there proof that he profited from the felonious
the directive of Tabuena, helped facilitate the withdrawal of P5 Million of
scheme. In short, no conspiracy was established between Tabuena and the real the P55 Million of the MIAA funds.
embezzler/s of the P5 Million. In the cases of "US v. Acebedo" 30 and "Ang v.
Sandiganbayan",31 both also involving the crime of malversation, the accused
therein were acquitted after the Court arrived at a similar finding of non-proof of This is not a sheer case of blind and misguided obedience, but obedience in
conspiracy. In "Acebedo", therein accused, as municipal president of Palo, Leyte, good faith of a duly executed order. Indeed, compliance to a patently lawful order
was prosecuted for and found guilty by the lower court of malversation after is rectitude far better than contumacious disobedience. In the case at bench, the
being unable to turn over certain amounts to the then justice of the peace. It order emanated from the Office of the President and bears the signature of the
appeared, however, that said amounts were actually collected by his secretary President himself, the highest official of the land. It carries with it the presumption
Crisanto Urbina. The Court reversed Acebedo's conviction after finding that the that it was regularly issued. And on its face, the memorandum is patently lawful
sums were converted by his secretary Urbina without the knowledge and for no law makes the payment of an obligation illegal. This fact, coupled with the
participation of Acebedo. The Court said, which we herein adopt: urgent tenor for its execution constrains one to act swiftly without
question. Obedientia est legis essentia. Besides, the case could not be detached
from the realities then prevailing As aptly observed by Mr Justice Cruz in his
No conspiracy between the appellant and his secretary has dissenting opinion:
been shown in this case, nor did such conspiracy appear in the
case against Urbina. No guilty knowledge of the theft committed
by the secretary was shown on the part of the appellant in this We reject history in arbitrarily assuming that the people were
case, nor does it appear that he in any way participated in the free during the era and that the Judiciary was independent and
fruits of the crime. If the secretary stole the money in question fearless. We know it was not: even the Supreme Court at that
without the knowledge or consent of the appellant and without time was not free. This is an undeniable fact that we can not just
negligence on his part, then certainly the latter can not be blink away. Insisting on the contrary would only make our
convicted of embezzling the same money or any part thereof.32 sincerity suspect and even provoke scorn for what can only be
described as our incredible credulity. 34
But what appears to be a more compelling reason for their acquittal is the escalation billings. Were those escalation
violation of the accused's basic constitutional right to due process. "Respect for billings properly transmitted to MIA authorities?
the Constitution", to borrow once again Mr. Justice Cruz's words, "is more A I don't have the documents right now to
important than securing a conviction based on a violation of the rights of the show that they were transmitted, but I have a
accused."35 While going over the records, we were struck by the way the letter by our President, Mr. Olaguer, dated July
Sandiganbayan actively took part in the questioning of a defense witness and of 6, 1988, following up for payment of the
the accused themselves. Tabuena and Peralta may not have raised this as an balance of our receivables from MIA, sir.
error, there is nevertheless no impediment for us to consider such matter as *AJ AMORES
additional basis for a reversal since the settled doctrine is that an appeal throws *Q This matter of escalation costs, is it not a
the whole case open to review, and it becomes the duty of the appellate court to matter for a conference between the MIA and
correct such errors as may be found in the judgment appealed from whether they the PNCC for the determination as to the
are made the subject of assignments of error or not. 36 correct amount?
A I agree, your Honor. As far as we are
Simply consider the volume of questions hurled by the Sandiganbayan. At the concerned, our billings are what we deemed
taking of the testimony of Francis Monera. then Senior Assistant Vice President are valid receivables And, in fact, we have
and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions been following up for payment.
on direct examination. Prosecutor Viernes only asked six (6) questions on cross- *Q This determination of the escalation costs
examination in the course of which the court interjected a total of twenty-seven was it accepted as the correct figure by MIA ?
(27) questions (more than four times Prosecutor Viernes' questions and even A I don't have any document as to the
more than the combined total of direct and cross-examination questions asked by acceptance by MIA your Honor, but our
the counsels) After the defense opted not to conduct any re-direct examination, company was able to get a document or a
the court further asked a total of ten (10) questions.37 The trend intensified during letter by Minister Ongpin to President Marcos,
Tabuena's turn on the witness stand. Questions from the court after Tabuena's dated January 7, 1985, with a marginal note or
cross-examination totalled sixty-seven (67). 38 This is more than five times approval by former President Marcos.
Prosecutor Viernes' questions on cross-examination (14), and more than double *PJ GARCHITORENA
the total of direct examination and cross-examination questions which is thirty- *Q Basically, the letter of Mr. Ongpin is to what
one (31) [17 direct examination questions by Atty. Andres plus 14 cross- effect?
examination questions by Prosecutor Viernes]. In Peralta's case, the Justices, A The subject matter is approval of the
after his cross-examination, propounded a total of forty-one (41) questions. 39 supplementary contract and request for partial
deferment of payment for MIA Development
Project, your Honor.
But more importantly, we note that the questions of the court were in the nature
*Q It has nothing to do with the implementation
of cross examinations characteristic of confrontation, probing and
of the escalation costs?
insinuation. 40 (The insinuating type was best exemplified in one question
A The details show that most of the accounts
addressed to Peralta, which will be underscored.) Thus we beg to quote in length
refer to our escalations, your Honor.
from the transcripts pertaining to witness Monera, Tabuena and Peralta.
*Q Does that indicate the computation for
(Questions from the Court are marked with asterisks and italicized for emphasis.)
escalations were already billed or you do not
have any proof of that
(MONERA) A Our subsidiary ledger was based on billings
to MIA and this letter of Minister Ongpin
(As a background, what was elicited from his direct examination is that the PNCC appears to have confirmed our billings to MIA,
had receivables from MIAA totalling P102,475,392.35, and although such your Honor.
receivables were largely billings for escalation, they were nonetheless all due *AJ AMORES
and demandable. What follows are the cross-examination of Prosecutor Viernes *Q Were there partial payments made by MIA
and the court questions). an these escalation billings?
A Based on records available as of today, the
CROSS-EXAMINATION BY PROS. VIERNES P102 million was reduced to about P56.7
Q You admit that as shown by these Exhibits million, if my recollection is correct, your
"7" and "7- a", the items here represent mostly Honor.
*PJ GARCHITORENA *Q How were these payments made before
*Q Were the payments made before or after February 1986, in case or check, if there were
February 1986, since Mr. Olaguer is a new payments made?
entrant to your company? A The P44 million payments was in the form of
WITNESS assignments, your Honor.
A The payments were made after December *PJ GARCHITORENA
31, 1985 but I think the payments were made *Q The question of the Court is, before
before the entry of our President, your Honor. December 31, 1985, were there any
Actually, the payment was in the form of: liquidations made by MIA against these
assignments to State Investment of about P23 escalation billings?
million; and then there was P17.8 million A I have not reviewed the details of the record,
application against advances made or formerly your Honor. But the ledger card indicates that
given; and there were payments to PNCC of there were collections on page 2 of the Exhibit
about P2.6 million and there was a payment earlier presented. It will indicate that there
for application on withholding and contractual were collections shown by credits indicated on
stock of about P1 million; that summed up to the credit side of the ledger.
P44.4 million all in all. And you deduct that *AJ AMORES
from the P102 million, the remaining balance *Q Your ledger does not indicate the manner
would be about P57 million. of giving credit to the MIA with respect to the
*PJ GARCHITORENA escalation billings. Was the payment in cash or
*Q What you are saying is that, for all the just credit of some sort before December 31,
payments made on this P102 million, only P2 1985?
million had been payments in cash ? A Before December 31, 1985, the reference of
A Yes, your Honor. the ledger are official receipts and I suppose
*Q The rest had been adjustments of these were payments in cash, your Honor.
accounts, assignments of accounts, or *Q Do you know how the manner of this
offsetting of accounts? payment in cash was made by MIA?
A Yes, your Honor. A I do not know, your Honor.
*Q This is as of December 31, 1985? *PJ GARCHITORENA
A The P102 million was as of December 31, *Q But your records will indicate that?
1985, your Honor, but the balances is as of A The records will indicate that, your Honor.
August 1987. *Q Except that you were not asked to bring
*Q We are talking now about the P44 million, them?
more or less, by which the basic account has A Yes, your Honor.
been reduced. These reductions, whether by *Q At all events, we are talking of settlement or
adjustment or assignment or actual delivery of partial liquidation prior to December 31, 1985?
cash, were made after December 31, 1985? A Yes, your Honor.
WITNESS *PJ GARCHITORENA
A Yes, your Honor. *Q Subsequent thereto, we are talking merely
*Q And your records indicate when these of about P44 million?
adjustments and payments were made? A Yes, your Honor, as subsequent
A Yes, your Honor. settlements.
*AJ AMORES *Q After December 31, 1985?
*Q You said there were partial payments A Yes, your Honor.
before of these escalation billings. Do we get it *Q And they have liquidated that, as you
from you that there was an admission of these described it, by way of assignments,
escalation costs as computed by you by MIA, adjustments, by offsets and by P2 million of
since there was already partial payments? cash payment?
A Yes, your Honor. A Yes, your Honor.
 *AJ AMORES PJ GARCHITORENA
*Q Your standard operating procedure before Continue.
December 31, 1985 in connection with or in PROS. VIERNES
case of cash payment, was the payment in Q In accordance with this letter marked Exhibit
cash or check? "7" and "7-a", there were credits made in favor
A I would venture to say it was by check, your of MIA in July and November until December
Honor. 1985. These were properly credited to the
*Q Which is the safest way to do it? account of MIA?
A Yes, your Honor. WITNESS
"PJ GARCHITORENA A Yes, sir.
*Q And the business way? Q In 1986. from your records as appearing in
A Yes, your Honor. Exhibit "7-a", there were no payments made to
PJ GARCHITORENA PNCC by MIA for the months of January to
Continue. June 1986?
PROS VIERNES A Yes, sir.
Q You mentioned earlier about the letter of Q And neither was the amount of P22 million
former Minister Ongpin to the former President remitted to PNCC by MIA?
Marcos, did you say that letter concurs with A Yes, sir.
the escalation billings reflected in Exhibits "7" PROS VIERNES
and "7-a"? That will be all, your Honor.
WITNESS PJ GARCHITORENA
A The Company or the management is of the Redirect?
opinion that this letter, a copy of which we ATTY ANDRES
were able to get, is a confirmation of the No redirect, your Honor.
acceptance of our billings, sir. *PJ GARCHITORENA
Q This letter of Minister Ongpin is dated Questions from the Court.
January 7, 1985, whereas the entries of *AJ AMORES
escalation billings as appearing in Exhibit "7" *Q From your records, for the month of
are dated June 30, 1985, would you still insist January 1986, there was no payment of this
that the letter of January 1985 confirms the escalation account by MIA?
escalation billings as of June 1985? WITNESS
A The entries started June 30 in the ledger A Yes, your Honor. But on page 2 of Exhibit
card. And as of December 31, 1985, it stood at "7" there appears an assignment of P23
P102 million after payments were made as million, that was on September 25, 1986.
shown on the credit side of the ledger. I *Q But that is already under the present
suppose hat the earlier amount, before the administration?
payment was made, was bigger and therefore A After February 1986, your Honor.
I would venture to say that the letter of January *Q But before February, in January 1986,
7, 1985 contains an amount that is part of the there was no payment whatsoever by MIA to
original contract account. What are indicated in PNCC?
the ledger are escalation billings. A Per record there is none appearing, your
*PJ GARCHITORENA Honor.
*Q We are talking about the letter of Minister *PJ GARCHITORENA
Ongpin? *Q The earliest payment, whether by delivery
A The letter of Minister Ongpin refers to of cash equivalent or of adjustment of account, or
escalation billings, sir. by assignment, or by offsets, when did these payments
begin?
*Q As of what date?
A The letter is dated January 7, 1985, your A Per ledger card, there were payments in
Honor. 1985, prior to December 31, 1985, your Honor.
 *Q After December 31, 1985? Q The amount of P55 million as covered by
A There appears also P23 million as credit, the three (3) checks Mr. Tabuena, were
that is a form of settlement, your Honor. delivered on how many occasions?
*Q This is as of September 25? A Three times, sir.
A Yes, your Honor. There were subsequent Q And so, on the first two deliveries, you did
settlements P23 million is just part of the P44 not ask for a receipt from Mrs. Gimenez?
million. A Yes, sir.
*Q And what you are saying is that, PNCC Q It was only on January 30, 1986 that this
passed the account to State Investment. In receipt Exhibit "3" was issued by Mrs.
other words, State Investment bought the Gimenez?
credit of MIA? A Yes, sir.
A Yes, your Honor. *PJ GARCHITORENA
*Q And the amount of credit or receivables *Q So January 30 is the date of the last
sold by PNCC to State Investment is P23 delivery?
million? A I remember it was on the 31st of January,
A Yes, your Honor. your Honor What happened is that, I did not
*Q Is there a payback agreement? notice the date placed by Mrs. Gimenez.
A I have a copy of the assignment to State Q Are you telling us that this Exhibit "3" was
Investment but I have not yet reviewed the incorrectly dated
same, your Honor. A Yes, your Honor.
*AJ AMORES *Q Because the third delivery was on January
*Q As of now, is this obligation of MIA, now 31st and yet the receipt was dated January
NAIA, paid to PNCC? 30?
A There is still a balance of receivables from A Yes, your Honor.
MIA as evidenced by a collection letter by our *Q When was Exhibit "3" delivered actually by
President dated July 6, 1988, your Honor. The Mrs. Gimenez?
amount indicated in the letter is P55 million. A January 31st, your Honor.
PJ GARCHITORENA PJ GARCHITORENA
Any clarifications you would like to make Mr. Continue.
Estebal? PROS VIERNES
ATTY ESTEBAL Q You did not go to Malacañang on January
None, your Honor. 30, 1986?
PJ GARCHITORENA A Yes, sir, I did not.
Mr. Viernes? Q Do you know at whose instance this Exhibit
PROS VIERNES "3" was prepared?
No more, your Honor. A I asked for it, sir.
PJ GARCHITORENA Q You asked for it on January 31, 1986 when
The witness is excused. Thank you very much you made the last delivery?
Mr. Monera. . . .41 A Yes, sir.
(TABUENA) Q Did you see this Exhibit "3" prepared in the
(In his direct examination, he testified that he caused the preparation of the Office of Mrs. Gimenez?
checks totalling P55 Million pursuant to the MARCOS Memorandum and that he A Yes, sir.
thereafter delivered said amount in cash on the three (3) dates as alleged in the Q This receipt was typewritten in Malacañang
information to Marcos' private secretary Mrs. Jimenez at her office at Aguado stationery. Did you see who typed this receipt?
Street, who thereafter issued a receipt. Tabuena also denied having used the A No, sir. What happened is that, she went to
money for his own personal use.) her room and when she came out she gave
CROSS-EXAMINATION BY PROS. VIERNES me that receipt.
*PJ GARCHITORENA
Q What you are saying is, you do not know Because when I asked you, you said you saw
who typed that receipt? her signed it. Be careful Mr. Tabuena.
WITNESS WITNESS
A Yes, your Honor. Yes, your Honor.
*Q Are you making an assumption that she PJ GARCHITORENA
typed that receipt? Continue.
A Yes, your Honor, because she knows how to PROS VIERNES
type. Was there another person inside the office of
*Q Your assumption is that she typed it Mrs. Gimenez when she gave you this receipt
herself? Exhibit "3"?
A Yes, your Honor. A Nobody, sir.
PJ GARCHITORENA Q I noticed in this receipt that the last delivery
Proceed. of the sum of P55 million was made on
PROS. VIERNES January 30. Do we understand from you that
Q This receipt was prepared on January 31, this date January 30 is erroneous?
although it is dated January 30? A Yes, sir, that January 30 is erroneous. I
A Yes, sir, because I was there on January noticed it only afterwards. This should be
31st. January 31st, sir.
Q In what particular place did Mrs. Gimenez PROS VIERNES
sign this Exhibit "3"? That will be all, your Honor.
A In her office at Aguado, sir. PJ GARCHITORENA
Q Did you actually see Mrs. Gimenez signing Redirect?
this receipt Exhibit "3"? ATTY. ANDRES
A No, sir, I did not. She was inside her room. No redirect, your Honor.
Q So, she was in her room and when she *PJ GARCHITORENA
came out of the room, she handed this receipt Questions from the Court.
to you already typed and signed? *AJ HERMOSISIMA
A Yes, sir. *Q Why did you not ask for a receipt on the
*AJ HERMOSISIMA first and second deliveries?
*Q So, how did you know this was the A Because I know that the delivery was not
signature of Mrs. Gimenez? complete yet, your Honor.
WITNESS *PJ GARCHITORENA
A Because I know her signature, your Honor. I *Q So you know that the total amount to be
have been receiving letters from her also and delivered was P55 million')
when she requests for something from me. A Yes, your Honor.
Her writing is familiar to me. PJ GARCHITORENA
So, when the Presiding Justice asked you as Response by Mr. Peralta to the testimony of
to how you knew that this was the signature of Mr. Tabuena.
Mrs. Gimenez and you answered that you saw ATTY. ESTEBAL
Mrs. Gimenez signed it, you were not exactly We are adopting the testimony of Mr. Tabuena
truthful? and we will also present the accused, your
A What I mean is, I did not see her sign Honor.
because she went to her room and when she *AJ DEL ROSARIO
came out, she gave me that receipt, your "Q From whom did you receive the President's
Honor. memorandum marked Exhibit "1"? Or more
PJ GARCHITORENA precisely, who handed you this memorandum?
That is why you have to wait for the question A Mrs. Fe Roa Gimenez, your Honor.
to be finished and listen to it carefully. Q Did you ask Mrs, Fe Gimenez for what
purpose the money was being asked?
A The money was in payment for the debt of *Q Were you the one who asked for a
the MIA Authority to PNCC, your Honor. memorandum to be signed by him?
*Q If it was for the payment of such obligation A No, your Honor.
why was there no voucher prepared to cover *Q After receiving that verbal instruction for
such payment? In other words, why was the you to pay MIAA's obligation with PNCC, did
delivery of the money not covered by any you not on your own accord already prepare
voucher? the necessary papers and documents for the
A The instruction to me was to give it to the payment of that obligation?
Office of the President, your Honor. A He told me verbally in the telephone that the
*PJ GARCHITORENA Order for the payment of that obligation is
*Q Be that as it may, why was there no forthcoming, your Honor. I will receive it.
voucher to cover this particular disbursement? *Q Is this the first time you received such a
A I was just told to bring it to the Office of the memorandum from the President?
President, your Honor. A Yes, your Honor.
*AJ DEL ROSARIO *Q And was that the last time also that you
*Q Was that normal procedure for you to pay received such a memorandum?
in cash to the Office of the President for A Yes, your Honor.
obligations of the MIAA in payment of its *Q Did you not inquire, if not from the
obligation to another entity? President, at least from Mrs. Gimenez why this
WITNESS procedure has to be followed instead of the
A No, your Honor, I was just following the regular procedure?
Order to me of the President. A No, sir.
*PJ GARCHITORENA *AJ DEL ROSARIO
*Q So the Order was out of the ordinary? *Q Why did you not ask?
A Yes, your Honor. A I was just ordered to do this thing, your
*AJ DEL ROSARIO Honor.
Did you file any written protest with the manner *AJ HERMOSISIMA
with which such payment was being ordered? *Q You said there was an "I OWE YOU"?
A No, your Honor. A Yes, your Honor.
*Q Why not? *Q Where is that "I OWE YOU" now?
A Because with that instruction of the A All I know is that we owe PNCC the amount
President to me, I followed, your Honor. of P99.1 million, your Honor. MIAA owes
*Q Before receiving this memorandum Exhibit PNCC that amount.
"1", did the former President Marcos discuss *Q Was this payment covered by receipt from
this maitter with you? the PNCC?
A Yes, your Honor. A It was not covered, your Honor.
*Q When was that? *Q So the obligation of MIAA to PNCC was
A He called me up earlier, a week before that, not, for the record, cancelled by virtue of that
that he wants to me pay what I owe the PNCC payment?
directly to his office in cash, your Honor. A Based on the order to me by the former
*PJ GARCHITORENA President Marcos ordering me to pay that
*Q By "I OWE ", you mean the MIAA? amount to his office and then the mechanics
WITNESS will come after, your Honor.
A Yes, your Honor. *Q Is the PNCC a private corporation or
*AJ DEL ROSARIO government entity?
*Q And what did you say in this discussion you A I think it is partly government, your Honor.
had with him? *PJ GARCHITORENA
A I just said, "Yes, sir, I will do it/" *Q That is the former CDCP?
A Yes, your Honor.
*AJ HERMOSISIMA *Q There is no question and it can be a matter
*Q Why were you not made to pay directly, to of judicial knowledge that you have been with
the PNCC considering that you are the the MIA for sometime?
Manager of MIA at that time and the PNCC is A Yes, your Honor.
a separate corporation, not an adjunct of *Q Prior to 1986?
Malacañang? A Yes, your Honor.
WITNESS *Q Can you tell us when you became the
A I was just basing it from the Order of Manager of MIA?
Malacanang to pay PNCC through the Office A I became Manager of MIA way back, late
of the President, your Honor. 1968, your Honor.
*Q Do you know the President or Chairman of *Q Long before the MIA was constituted as an
the Board of PNCC? independent authority?
A Yes, your Honor. A Yes, your Honor.
"Q How was the obligation of MIAA to PNCC *PJ GARCHITORENA
incurred. Was it through the President or *Q And by 1986, you have been running the
Chairman of the Board? MIA for 18 years?
A PNCC was the one that constructed the WITNESS
MIA, your Honor. A Yes, your Honor.
*Q Was the obligation incurred through the *Q And prior to your Joining the MIA, did you
President or Chairman of the Board or ever work for the government?
President of the PNCC? In other words, who A No, your Honor.
signed the contract between PNCC and *Q So, is it correct for us to say that your
MIAA? joining the MIA in 1968 as its Manager was
A Actually, we inherited this obligation, your your first employment ,with the government?
Honor. The one who signed for this was the A Yes, your Honor.
former Director of BAT which is General *Q While you were Manager of MIA, did you
Singzon. Then when the MIA Authority was have other subsequent concurrent positions in
formed, all the obligations of BAT were the government also?
transferred to MIAA. So the accountabilities of A I was also the Chairman of the Games and
BAT were transferred to MIAA and we are the Amusement Board, your Honor.
ones that are going to pay, your Honor. *Q But you were not the executive or operating
*Q Why did you agree to pay to Malacañang officer of the Games and Amusement Board?
when your obligation was with the PNCC? A I was, your Honor.
A I was ordered by the President to do that, *Q As Chairman you were running the Games
your Honor. and Amusement Board?
*Q You agreed to the order of the President A Yes, your Honor.
notwithstanding the fact that this was not the *Q What else, what other government
regular course or Malacañang was not the positions did you occupy that time?
creditor? A I was also Commissioner of the Game Fowl
A I saw nothing wrong with that because that Commission, your Honor.
is coming, from the President, your Honor. *PJ GARCHITORENA
*Q The amount was not a joke, amounting to *Q That is the cockfighting?
P55 million, and you agreed to deliver money WITNESS
in this amount through a mere receipt from the A Yes, your Honor.
private secretary? *Q Here, you were just a member of the
A I was ordered by the President, your Honor. Board?
*PJ GARCHITORENA A Yes, your Honor.
*Q So you were not running the commission?
A Yes, your Honor.
*Q Any other entity? *PJ GARCHITORENA
A No more, your Honor. *Q Did you not think that at least out of
*Q As far as you can recall, besides being the prudence, you should have asked the COA for
Manager of the MIA and later the MIAA for some guidance on this matter so that you will
approximately 18 years, you also ran the do it properly?
Games and Amusement Board as its WITNESS
executive officer? A What I was going to do is, after those things
A Yes, your Honor. I was going to tell that delivery ordered by the
*Q And you were a commissioner only of the President to the COA, your Honor.
Came Fowl Commission? *Q That is true, but what happened here is that
A Yes, your Honor. you and Mr. Dabao or you and Mr. Peralta
*Q Who was running the commission at that signed requests for issuance of Manager's
time? checks and you were accommodated by the
A I forgot his name, but he retired already, PNB Office at Nichols without any internal
your Honor. documentation to justify your request for
*Q All of us who joined the government, Manager's checks?
sooner or later, meet with our Resident COA A Yes, your Honor.
representative? *Q Of course we had no intimation at that time
A Yes, your Honor. that Mr. Marcos will win the elections but even
*PJ GARCHITORENA then, the Daily Express, which was considered
*Q And one of our unfortunate experience (sic) to be a newspaper friendly to the Marcoses at
is when the COA Representative comes to us that time, would occasionally come with so-
and says: "Chairman or Manager, this cannot called expose, is that not so?
be". And we learn later on that COA has A Yes, your Honor.
reasons for its procedure and we learn to *Q And worst, you had the so-called mosquito
adopt to them? press that would always come out with the real
WITNESS or imagined scandal in the government and
A Yes, your Honor. place it in the headline, do you recall that?
*Q As a matter of fact, sometimes we consider A Yes, your Honor.
it inefficient, sometimes we consider it foolish, *PJ GARCHITORENA
but we know there is reason in this apparent Under these circumstances, did you not
madness of the COA and so we comply? entertain some apprehension that some
A Yes, your Honor. disloyal employees might leak you out and
*Q And more than anything else the COA is banner headline it in some mosquito
ever anxious for proper documentation and publications like the Malaya at that time?
proper supporting papers? WITNESS
A Yes, your Honor. A No, your Honor.
*Q Sometimes, regardless of the amount? *PJ GARCHITORENA
A Yes, your Honor. I bring this up because we are trying to find out
*Q Now, you have P55 million which you were different areas of fear. We are in the
ordered to deliver in cash, not to the creditor of government and we in the government fear the
the particular credit, and to be delivered in COA and we also fear the press. We might get
armored cars to be acknowledged only by a dragged into press releases on the most
receipt of a personal secretary. After almost 18 innocent thing. You believe that?
years in the government service and having A Yes, your Honor.
had that much time in dealing with COA *Q And usually our best defense is that these
people, did it not occur to you to call a COA activities are properly documented?
representative and say, "What will I do here?" A Yes, your Honor.
A I did not, your Honor.
 *Q In this particular instance, your witnesses because I was one of the signatories at that
have told us about three (3) different trips from time.
Nichols to Aguado usually late in the day Q As Acting Financial Services Manager of
almost in movie style fashion. I mean, the MIAA, you always co-sign with Mr. Tabuena in
money being loaded in the trunk of your official similar requests for the issuance of Manager's
car and then you had a back-up truck following checks by the PNB?
your car? A That is the only occasion I signed, sir.
A Yes, your Honor. Q Did you say you were ordered by Mr.
*Q Is that not quite a fearful experience to you Tabuena to sign the request?
? A Yes, sir, and I think the order is part of the
A I did not think of that at that time, your exhibits and based on that order, I co-signed in
Honor. the request for the issuance of Manager's
*PJ GARCHITORENA check in favor of Mr. Luis Tabuena.
"Q You did not think it fearful to be driving PROS VIERNES
along Roxas Boulevard with P25 million in the Q Was there a separate written order for you
trunk of your car? to co-sign with Mr. Tabuena?
WITNESS WITNESS
A We have security at that time your Honor. A Yes, sir, an order was given to me by Mr.
ATTY. ANDRES Tabuena.
Your Honor, the P25 million was in the *PJ GARCHITORENA
armored car; only P5 million was in the trunk of Was that marked in evidence?
his car. WITNESS
*PJ GARCHITORENA Yes, your Honor.
Thank you for the correction. Even P1 million *PJ GARCHITORENA
only. How much more with P5 million inside What exhibit?
the trunk of your car, was that not a nervous WITNESS
experience? I have here a copy, your Honor. This was the
A As I have said, your Honor, I never thought order and it was marked as exhibit "N".
of that. PROS VIERNES
PJ GARCHITORENA It was marked as Exhibit "M", your Honor.
Thank you very much, Mr. Tabuena. You are Q How did you know there was an existing
excused. . . . 42 liability of MIAA in favor of PNCC at that time?
(PERALTA) A Because prior to this memorandum of Mr.
(He testified on direct examination that he co-signed with Tabuena a Tabuena, we prepared the financial statement
memorandum request for the issuance of the Manager's Check for P5 Million of MIAA as of December 31, 1985 and it came
upon order of Tabuena and that he [Peralta] was aware that MIAA had an to my attention that there was an existing
existing obligation with PNCC in the amount of around P27 Million. He affirmed liability of around P27,999,000.00, your Honor.
having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Q When was that Financial Statement
Million, but denied having misappropriated for his own benefit said amount or any prepared?
portion thereof.) A I prepared it around January 22 or 24,
CROSS-EXAMINATION BY PROS VIERNES something like that, of 1986, sir.
Q Will you please tell the Honorable Court why Q Is it your usual practice to prepare the
was it necessary for you to co-sign with Mr. Financial Statement after the end of the year
Tabuena the request for issuance of within three (3) weeks after the end of the
Manager's check in the amount of P5 million? year?
A At that time I was the Acting Financial A Yes, sir, it was a normal procedure for the
Services Manager of MIAA, sir, and all MIAA to prepare the Financial Statement on or
withdrawals of funds should have my signature before the 4th Friday of the month because
there will be a Board of Directors Meeting and
the Financial Statement of the prior month will *Q If there were other denominations, you can
be presented and discussed during the not recall?
meeting. A Yes, your Honor.
*PJ GARCHITORENA PROS VIERNES
*Q This matter of preparing Financial Q In how many boxes were those bills placed?
Statement was not an annual activity but a A The P5 million were placed in two (2)
monthly activity? peerless boxes,
A Yes, your Honor. Q And you also went with Mr. Tabuena to
*Q This Financial Statement you prepared in Aguado?
January of 1986 recapitulated the financial A No, sir, I was left behind at Nichols. After it
condition as of the end of the year? was placed at the trunk of the car of Mr.
A Yes, your Honor. Tabuena, I was left behind and I went back to
PJ GARCHITORENA my office at MIA.
Continue. Q But the fact is that, this P5 million was
PROS VIERNES withdrawn at passed 5:00 o'clock in the
Q You made mention of a request for afternoon?
Escalation Clause by former Minister Ongpin. A I started counting it I think at around 4:30,
Did you personally see that request? sir. It was after office hours. But then I was
A When this order coming from Mr. Tabuena there at around 4:00 o'clock and we started
was shown to me, I was shown a copy, sir. I counting at around 4:30 p.m. because they
have no file because I just read it. have to place it in a room, which is the office of
Q It was Mr. Tabuena who showed you the the Manager at that time.
letter of Minister Ongpin? Q And Mr. Tabuena left for Malacañang after
A Yes, sir. 5:00 o'clock in the afternoon of that date?
*PJ GARCHITORENA A Yes, sir. After we have counted the money, it
And that will be Exhibit? was placed in the peerless boxes and Mr.
ATTY. ANDRES Tabuena left for Malacanang.
Exhibit "2" and "2-A", your Honor. PROS VIERNES
PROS VIERNES Q And you yourself, returned to your office at
Q You also stated that you were with Mr. MIA?
Tabuena when you withdrew the amount of P5 WITNESS
million from the PNB Extension Office at A Yes, sir.
Villamor? Q Until what time do you hold office at the
A Yes, sir. MIA?
Q Why was it necessary for you to go with him A Usually I over-stayed for one (1) or two (2)
on that occasion? hours just to finish the paper works in the
A Mr. Tabuena requested me to do the office, sir.
counting by million, sir. So what I did was to Q So, even if it was already after 5:00 o'clock
bundle count the P5 million and it was placed in the afternoon, you still went back to your
in two (2) peerless boxes. office at MIA?
Q Did you actually participate in the counting A Yes, sir.
of the money by bundles? PROS VIERNES
A Yes, sir. That will be all, your Honor.
Q Bundles of how much per bundle? PJ GARCHITORENA
A If I remember right, the bundles consisted of Redirect?
P100s and P50s, sir. ATTY. ESTEBAL
Q No P20s and P10s? No redirect, your Honor.
A Yes, sir, I think it was only P100s and P50s. *PJ GARCHITORENA
*PJ GARCHITORENA Questions from the Court.
*AJ DEL ROSARIO *Q After receiving that receipt, did you prepare
*Q Did you not consider it as odd that your the necessary supporting documents,
obligation with the PNCC had to be paid in vouchers, and use that receipt as a supporting
cash? document to the voucher?
WITNESS A Your Honor, a Journal Voucher was
A Based on the order of President Marcos that prepared for that.
we should pay in cash, it was not based on the *Q How about a disbursement voucher?
normal procedure, your Honor. A Inasmuch as this was a request for
*Q And, as Acting Financial Services Manager, Manager's check, no disbursement voucher
you were aware that all disbursements should was prepared, your Honor.
be covered by vouchers? *AJ DEL ROSARIO
A Yes, your Honor, the payments should be *Q Since the payment was made on January
covered by vouchers. But then, inasmuch as 31, I986, and that was very close to the
what we did was to prepare a request to the election held in that year, did you not entertain
PNB, then this can be covered by Journal any doubt that the amounts were being used
Voucher also. for some other purpose?
*Q Was such payment of P5 million covered ATTY. ESTEBAL
by a Journal Voucher? With due respect to the Honorable Justice, we
A Yes, your Honor. are objecting to the question on the ground
*Q Did you present that Journal Voucher here that it is improper.
in Court? *AJ DEL ROSARIO
A We have a copy, your Honor. I will withdraw the question.
*Q Do you have a copy or an excerpt of that *PJ GARCHITORENA
Journal Voucher presented in Court to show What is the ground for impropriety?
that payment? ATTY. ESTEBAL
A We have a copy of the Journal Voucher, This is not covered in the direct examination,
your Honor. and secondly, I don't think there was any
*Q Was this payment of P5 million ever basis, your Honor.
recorded in a cashbook or other accounting *PJ GARCHITORENA
books of MIAA ? Considering the withdrawal of the question,
A The payment of P5 million was recorded in a just make the objection on record.
Journal Voucher, your Honor. *AJ HERMOSISIMA
*PJ GARCHITORENA *Q As a Certified Public Accountant and
*Q In other words, the recording was made Financial Manager of the MIAA, did you not
directly to the Journal? consider it proper that a check be issued only
WITNESS after it is covered by a disbursement voucher
A Yes, your Honor. duly approved by the proper authorities ?
*Q There are no other separate documents as A Your Honor, what we did was to send a
part of the application for Manager's Check? request for a Manager's check to the PNB
A Yes, your Honor, there was none. based on the request of Mr. Tabuena and the
*AJ DEL ROSARIO order of Mr. Tabuena was based on the Order
*Q After the payment was made, did your of President Marcos.
office receive any receipt from PNCC? *PJ GARCHITORENA
A I was shown a receipt by Mr. Tabuena, the *Q In your capacity as Financial Services
receipt given by Mrs. Fe Roa Gimenez, your Manager of the MIAA, did you not think it
Honor. Inasmuch as the payment should be proper to have this transaction covered by a
made through the Office of the president, I disbursement voucher?
accepted the receipt given by Mrs. Fe WITNESS
Gimenez to Mr. Tabuena.
A Based on my experience, payments out of coming from the President of the Philippines at
cash can be made through cash vouchers, or that time, your Honor.
even though Journal Vouchers, or even *PJ GARCHITORENA
through credit memo, your Honor. *Q Mr. Peralta, are not Journal Vouchers
*AJ HERMOSISIMA merely entries in the Journals to correct certain
*Q This was an obligation of the MIAA to the statements of accounts earlier made in the
PNCC. Why did you allow a disbursement by same journal?
means of check in favor of Mr. Luis Tabuena, In other words, really what you are telling us is
your own manager? that, a Journal Voucher is to explain a
A We based the payment on the order of Mr. transaction was otherwise not recorded.
Tabuena because that was the order of WITNESS
President Marcos to pay PNCC through the A Yes, your Honor.
Office of the President and it should be paid in *Q Therefore, when you said that a Journal
cash, your Honor. Voucher here is proper, you are saying it is
*Q You are supposed to pay only on legal proper only because of the exceptional nature
orders. Did you consider that legal? of the transactions?
ATTY. ESTEBAL A Yes, your Honor.
With due respect to the Honorable Justice, the *Q In other words, as an Accountant, you
question calls for a conclusion of the witness. would not normally authorize such a
*PJ GARCHITORENA movement of money unless it is properly
Considering that tire witness is an expert, documented?
witness may answer. ATTY. ESTEBAL
WITNESS With due respect to the Honorable Presiding
A The order of president Marcos was legal at Justice, I think the question is misleading
that time because the order was to pay PNCC because what the witness stated is. . .
the amount of P5 million through the Office of *PJ GARCHITORENA
the President and it should be paid in cash, Be careful in your objection because the
your Honor. And at that time, I know for a fact witness understands the language you are
also that there was an existing P.D. wherein speaking, and therefore, you might be
the President of the Republic of the Philippines coaching him.
can transfer funds from one office to another ATTY. ESTEBAL
and the PNCC is a quasi government entity at No, your Honor. I am also an accountant that
that time. is why I could say that. . .
*AJ HERMOSISIMA *PJ GARCHITORENA
*Q Are you saying that this transaction was Please be simple in your objection.
made on the basis of that P.D. which you ATTY. ESTEBAL
referred to? The question is misleading on the ground that
A I am not aware of the motive of the what the witness stated earlier is that the
President, but then since he is the President of Journal Voucher in this particular case was
the Philippines, his order was to pay the PNCC supported, your Honor.
through the Office of the President, your *PJ GARCHITORENA
Honor. Overruled, may answer.
*Q As Financial Manager, why did you allow a WITNESS
payment in cash when ordinarily payment of A The transaction was fully documented since
an obligation of MIAA is supposed to be paid we have the order of the General Manager at
in check? that time and the order of President Marcos,
A I caused the payment through the name of your Honor.
Mr. Tabuena because that was the order of
Mr. Tabuena and also he received an order
*Q Are you saying the Order of the General PNCC through his office, I feel that the order of
Manager is an adequate basis for the the General Manager, the order of President
movement of money? Marcos, and also the memorandum of Minister
A Yes, your Honor, because at that time we Ongpin are sufficient to cause the payment of
have also a recorded liability of P27 million. P5 million.
*Q we are not talking of whether or not there *PJ GARCHITORENA
was a liability. What we are saying is, is the *Q This Presidential Decree which authorizes
order of the General Manager by itself the President to transfer funds from one
adequate with no other supporting papers, to department to another, is this not the one that
justify the movement of funds? refers to the realignment of funds insofar as
A Yes, your Honor. The order of Mr. Luis the Appropriation Act is concerned?
Tabuena was based on our existing liability of WITNESS
P27,931,000.00, inasmuch as we have that A Because at that time, your Honor, I have
liability and I was shown the order of President knowledge that the President is authorized
Marcos to pay P5 million through the Office of through a Presidential Decree to transfer
the President, I considered the order of Mr. government funds from one office to another.
Luis Tabuena, the order of President Marcos *PJ GARCHITORENA
and also the existing liability of P27 million *Q Under the Appropriation Act. Are payments
sufficient to pay the amount of P5 million. of debts of the MIAA covered by the
Inasmuch as there is also an escalation clause Appropriation Act?
of P99.1 million, the payment of P5 million is A I think the liability was duly recorded and
fully covered by those existing documents. appropriations to pay the amount is. . . .
*PJ GARCHITORENA (interrupted)
You keep flooding us with details we are not *PJ GARCHITORENA
asking for. We are not asking you whether or *Q Tell me honestly, is your answer responsive
not there was valid obligation. We are not to the question or are you just throwing words
asking you about the escalation clause. We at us in the hope that we will forget what the
are asking you whether or not this particular question is?
order of Mr. Tabuena is an adequate basis to A No, your Honor.
justify the movement of funds? *Q Are you telling us that the debts incurred by
WITNESS MIAA ate covered by the Appropriations Act so
When we pay, your Honor, we always look for that the payment of this debt would be in the
the necessary documents and at that time I same level as the realignment of funds
know for a fact that there was this existing authorized the President? Or are you telling as
liability. you did not read the Decree?
*PJ GARCHITORENA A I was aware of that Decree, your Honor.
When we ask questions and when we answer *PJ GARCHITORENA
them, we must listen to the question being Mr. Estebal, will you include in your
asked and not to whatever you wanted to say. memorandum what are the Decrees
I know you are trying to protect yourself. We authorizing this movement of funds?
are aware of your statement that there are all ATTY. ESTEBAL
of these memoranda. Yes, your Honor.
*Q By your disbursement of such amount, you *PJ GARCHITORENA
are saying that the order of Mr. Tabuena by *Q It is true that President Marcos was the
itself is adequate? President, but he was not an officer of the
WITNESS MIAA, was he?
A As far as I am concerned, your Honor, A No, your Honor.
inasmuch as we have a liability and I was *Q In fact, for purposes of internal control, you
shown the Order of President Marcos to pay have different officers and different officials in
any company either government or private, A A written protest was not made, your Honor,
which are supposed to check and balance but I called the attention of Mr. Tabuena that
each other, is it not? since this payment was upon the order of
A Yes, your Honor. President Marcos, then I think as President he
*Q So that when disbursements of funds are can do things which are not ordinary.
made, they are made by authority of not only *Q If you did not prepare a written protest, did
one person alone so that nobody will restrain you at least prepare a memorandum for the
him? record that this was an extra-ordinary
A Yes, your Honor. transaction?
*Q These checks and balances exist in an A I called the attention of Mr. Tabuena that this
entity so that no one person can dispose of was an extra-ordinary transaction and no
funds in any way he likes? written note, your Honor.
A Yes, your Honor. PJ GARCHITORENA
*Q And in fact, the purpose for having two (2) Thank you very much Mr. Peralta, you are
signatories to documents and negotiable excused. . . . 43
documents is for the same purpose? This Court has acknowledged the right of a trial judge to question witnesses with
A Yes, your Honor. a view to satisfying his mind upon any material point which presents itself during
*PJ GARCHITORENA the trial of a case over which he presides. 44 But not only should his examination
*Q In other words, the co-signatories counter be limited to asking "clarificatory" questions, 45 the right should be sparingly and
check each other? judiciously used; for the rule is that the court should stay out of it as much as
WITNESS possible, neither interfering nor intervening in the conduct of the trial. 46 Here,
A Yes, your Honor. these limitations were not observed. Hardly in fact can one avoid the impression
*Q In your case, you would be the counter that the Sandiganbayan had allied itself with, or to be more precise, had taken
check for Mr. Tabuena? the cudgels for the prosecution in proving the case against Tabuena and Peralta
A Yes, your Honor. when the Justices cross-examined the witnesses, their cross- examinations
*Q In the other words, even if Mr. Tabuena is supplementing those made by Prosecutor Viernes and far exceeding the latter's
the Manager, you as Financial Services questions in length. The "cold neutrality of an impartial judge" requirement of due
Manager and as counter signatory are in a process was certainly denied Tabuena and Peralta when the court, with its
position to tell Mr. Tabuena, "I am sorry, you overzealousness, assumed the dual role of magistrate and advocate. In this
are my superior but this disbursement is not connection, the observation made in the Dissenting Opinion to the effect that the
proper and, therefore, I will not sign it"., if in majority of this Court was "unduly disturbed" with the number of court questions
your opinion the disbursement is not proper? alone, is quite inaccurate. A substantial portion of the TSN was incorporated in
A Yes, your Honor. the majority opinion not to focus on "numbers" alone, but more importantly to
*Q Therefore, as a co-signatory, you expected show that the court questions were in the interest of the prosecution and which
to exercise your judgment as to the propriety thus depart from that common standard of fairness and impartiality. In fact, it is
of a particular transactions? very difficult to be, upon review of the records, confronted with "numbers" without
A Yes, your Honor. necessarily realizing the partiality of the Court. In "US v. De Sisto" (2 Cir., 1961,
*Q And this is something you know by the 289 F 2d 833), for example, a new trial was required because the trial judge, as
nature of your position and because you are a in this case, indulged in extensive questioning of defendant and his witnesses,
Certified Public Accountant? and the reviewing court also had to amplify on "numbers" to bolster this. It was
A Yes, your Honor. pointed out in the "De Sisto" case that the judge asked 3,115 questions of all
*AJ DEL ROSARIO witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's
*Q You admit that the payment of P5 million questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the
and P50 million were unusual in the manner defense counsel's, 201. After referring to these figures, the court stated:
with which they were disposed?
A Yes, your Honor. . . . It is indeed an impressive proportion, but no such
*Q Did you submit a written protest to the mathematical computation is of itself determinative. However,
manner in which such amount was being taking all this in conjunction with the long and vigorous
disposed of? examination of the defendant himself by the judge, and the
 repeated belittling by the judge of defendant's efforts to *Q Mr. Peralta, are not Journal Vouchers
establish the time that Fine left the pier, we fear that in its zeal merely entries in the Journals to correct certain
for arriving at the facts the court here conveyed to the jury too statements of accounts earlier made in the
strong an impression of the court's belief in the defendant's same journal?
probable guilt to permit the jury freely to perform its own xxx xxx xxx
function of independent determination of the facts. . . . *Q In other words, really what you are telling
us is that, a Journal Voucher is to explain a
The majority believes that the interference by the Sandiganbayan transaction was otherwise not recorded.
Justices was just too excessive that it cannot be justified under the norm xxx xxx xxx
applied to a jury trial, or even under the standard employed in a non-jury *Q Therefore, when you said that a Journal
trial where the judge is admittedly given more leeway in propounding Voucher here is proper, you are saying it is
questions to clarify points and to elicit additional relevant evidence. At proper only because of the exceptional nature
the risk of being repetitious, we will amplify on this via some specific of the transactions?
examples. Based on the evidence on record, and on the admission of xxx xxx xxx
Tabuena himself, the P55 million was delivered to the President's Office *Q In other words, as an Accountant, you
thru Mrs. Gimenez, in obedience to the Presidential directive. One would not normally authorize such a
Sandiganbayan Justice, however, hurled the following questions to movement of money unless it is properly
Peralta: documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding
AJ DEL ROSARIO
Justice, I think the question is misleading
Q: Since the payment was made on January
because what the witness stated is . . .
31, 1986, and that was very close to the
*PJ GARCHITORENA
election held in that year, did you not entertain
Be careful in your objection because the
any doubt that the amounts were being used
witness understands the language you are
for some other purposes?
speaking, and therefore, you might be
ATTY. ESTEBAL
coaching him.
With due respect to the Honorable Justice, We
ATTY. ESTEBAL
are objecting to the question on the ground
No, your Honor. I am also an accountant that
that it is improper.
is why I could say that . . .
AJ DEL ROSARIO
*PJ GARCHITORENA
I will withdraw the question.
Please be simple in your objection.
PJ GARCHITORENA
ATTY. ESTEBAL
What is the ground for impropriety?
The question is misleading on the ground that
ATTY. ESTEBAL
what the witness stated earlier is that the
This is not covered in the direct examination,
Journal Voucher in this particular case was
and secondly, I don't think there was any
supported, your Honor.
basis, Your Honor.
*PJ GARCHITORENA
PJ GARCHITORENA Overruled may answer.
Considering the withdrawal of the question, WITNESS
just make the objection on record. A The transaction was fully documented since
Nothing from the preceding questions of counsels or of the court would we have the order of the General Manager at
serve as basis for this question. How then, can this be considered even that time and the order of President Marcos,
relevant? What is the connection between the payment made to the your Honor.
President's office and the then forthcoming presidential "snap election"? *Q Are you saying the Order of the General
In another instance, consider the following questions of Presiding Justice
Manager is an adequate basis for the
Garchitorena:
movement of money?
*PJ GARCHITORENA
*Q We are not talking of whether or not there
was a liability. What we are saying is, is the
order of the General Manager by itself *PJ GARCHITORENA
adequate with no other supporting papers, to *Q It is true that President Marcos was the
justify the movement of funds? President, but he was not an officer of the
*PJ GARCHITORENA MIAA, was he?
You keep flooding us with details we are not *Q In fact, for purposes of internal control, you
asking for. We are not asking you whether or have different in officers and different officials
not there was valid obligation. We are not in any company either government or private,
asking you about the escalation clause. We which are supposed to check and balance
are asking you whether or not this particular each other, is it not?
order of Mr. Tabuena is an adequate basis to *Q So that when disbursements of funds are
justify the movement of funds? made, they are made by authority of not only
*PJ GARCHITORENA one person alone so that nobody will restrain
When we ask questions and when we answer him?
them, we must listen to the question being *Q These checks and balances exist in an
asked and not to whatever you wanted to say. entity so that no one person can dispose of
I know you are trying to protect yourself. We funds in any way he likes?
are aware of your statement that there are all *Q And in fact, the purpose for having two (2)
of these memoranda. signatories to documents and negotiable
*Q By your disbursement of such amount, you documents is for the same purpose?
are saying that the order of Mr. Tabuena by *PJ GARCHITORENA
itself is adequate? *Q In other words, the co-signatories counter
*PJ GARCHITORENA check each other?
*Q This Presidential Decree which authorizes *Q In your case, you would be the counter
the President to transfer funds from one check for Mr. Tabuena?
department to another, is this not the one that *Q In other words, even if Mr. Tabuena is the
refers to the realignment of funds insofar as Manager, you as Financial Services Manager
the Appropriation Act is concerned? and as counter signatory are in a position to
*PJ GARCHITORENA tell Mr. Tabuena, "I am sorry, you are my
*Q Under the Appropriation Act. Are payments superior but this disbursement is not proper
of debts of the MIAA covered by the and, therefore, I will not sign it.", if in your
Appropriation Act? opinion the disbursement is not proper?
*PJ GARCHITORENA *Q Therefore, as co-signatory, you are
*Q Tell me honestly, is your answer responsive expected to exercise your judgment as to the
to the question or are you just throwing words propriety of a particular transaction ?
at us in the hope that we will forget what the *Q And this is something you know by the
question is? nature of your position and because you are a
xxx xxx xxx Certified Public Accountant? 47
*Q Are you telling us that the debts incurred by How can these questions be considered clarificatory when they clearly
MIAA are covered by the Appropriations Act so border more on cross-examination questions? Thus, the Dissenting
that the payment of this debt would be in the Opinion's focus on the distinction between the two kinds of trial to justify
same level as the realignment of funds the Sandiganbayan's active participation in the examination of
authorized the President? Or are you telling as petitioners Tabuena and Peralta and witness Monera, with due respect,
you did not read the Decree? appears insignificant to this case. Let it, therefore, be emphasized anew
*PJ GARCHITORENA that:
Mr. Estebal, will you include in your
memorandum what are the Decrees A trial judge should not participate in the examination of
authorizing this movement of funds? witnesses as to create the impression that he is allied with the
ATTY. ESTEBAL prosecution.48
Yes, your Honor.
We doubt not that the sole motive of the learned judge was to He [the judge] may properly intervene in a trial of a case to
ascertain the truth of the transaction, but it is never proper for a promote expedition, and prevent unnecessary waste of time, or
judge to discharge the duties of a prosecuting attorney. to clear up some obscurity, but he should bear in mind that his
However anxious a judge may be for the enforcement of the undue interference, impatience, or participation in, the
law, he should always remember that he is as much judge in examination of witnesses, or a severe attitude on his part
behalf of the defendant accused of crime, and whose liberty is toward witnesses, especially those who are excited or terrified
in jeopardy, as he is judge in behalf of the state, for the purpose by the unusual circumstances of a trial, may tend to prevent the
of safeguarding the interests of society. 49 proper presentation of the cause, or the ascertainment of the
truth in respect thereto. 53
Ordinarily it is not good practice for the presiding judge himself
to examine witnesses at length. The circumstances may be The impartiality of the judge — his avoidance of the appearance
such in a given case as to justify the court in so doing. . . . This of becoming the advocate of either one side or the other of the
court, however, has more than once said that the examination pending controversy is a fundamental and essential rule of
of witnesses is the more appropriate function of counsel, and special importance in criminal cases. . . 54
the instances are rare and the conditions exceptional which will
justify the presiding judge in conducting an extensive Our courts, while never unmindful of their primary duty to
examination. It is always embarrassing for counsel to object to administer justice, without fear or favor, and to dispose of these
what he may deem improper questions by the court. Then, in cases speedily and in as inexpensive a manner as is possible
conducting a lengthy examination, it would be almost impossible for the court and the parties, should refrain from showing any
for the judge to preserve a judicial attitude. While he is not a semblance of one-sided or more or less partial attitude in order
mere figurehead or umpire in a trial, and it is his duty to see that not to create any false impression in the minds of the litigants.
justice is done, he will usually not find it necessary to conduct For obvious reasons, it is the bounden duty of all to strive for the
such examinations. The extent to which this shall be done must preservation of the people's faith in our courts.55
largely be a matter of discretion, to be determined by the
circumstances of each particular case, but in so doing he must
not forget the function of the judge and assume that of an Time and again this Court has declared that due process
advocate. . . 50 requires no less than the cold neutrality of an impartial judge.
Bolstering this requirement, we have added that the judge must
not only be impartial but must also appear to be impartial, to
While it is true that the manner in which a witness shall be give added assurance to the parties that his decision will be
examined is largely in the discretion of the trial judge, it must be just. The parties are entitled to no less than this, as a minimum
understood that we have not adopted in this country the practice guaranty of due process. 56
of making the presiding judge the chief inquisitor. It is better to
observe our time-honored custom of orderly judicial procedure,
even at the expense of occasional delays. . . . The judge is an We are well aware of the fear entertained by some that this decision may set a
important figure in the trial of a cause, and while he has the dangerous precedent in that those guilty of enriching themselves at the expense
right, and it is often his duty, to question witnesses to the end of the public would be able to escape criminal liability by the mere expedient of
that justice shall prevail, we can conceive of no other reason, for invoking "good faith". It must never be forgotten, however, that we render justice
him to take the trial of the cause out of the hands of counsel. 51 on a case to case basis, always in consideration of the evidence that is
presented. Thus, where the evidence warrants an acquittal, as in this case, we
are mandated not only by the dictates of law but likewise of conscience to grant
The examination of witnesses is the more appropriate function the same. On the other hand, it does not follow that all those similarly accused
of counsel, and it is believed the instances are rare and the will necessarily be acquitted upon reliance on this case as a precedent. For the
conditions exceptional in a high degree which will justify the decision in this case to be a precedent, the peculiar circumstances and the
presiding judge in entering upon and conducting an extended evidence that led to the petitioner's acquittal must also be present in subsequent
examination of a witness, and that the exercise of a sound cases.
discretion will seldom deem such action necessary or
advisable. 52
Furthermore, as between a mere apprehension of a "dangerous precedent" and
an actual violation of constitutionally enshrined rights, it is definitely the latter that
merits our immediate attention. For the most dangerous precedent arises when
we allow ourselves to be carried away by such fears so that it becomes lawful to
sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to
justice the malefactors of the Marcos regime, we must not succumb to the
temptation to commit the greatest injustice of visiting the sins of the wrongdoers
upon an innocent.

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and

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

SO ORDERED.