ASUNCION GALANG ROQUE, petitioner, vs.

PEOPLE OF THE
PHILIPPINES, respondent.
On appeal, the appellate court found the conviction in accord with law and
the evidence and affirmed the decision of the RTC in toto. The Court of Appeals,
quoting at length the lower court, reasoned, thus:

The Court fully agrees with the court a quo in finding that appellants guilt has been
proven beyond reasonable doubt. As aptly pointed out by the lower court:

This finding is supported by the categorical testimony of prosecution witness

Reynaldo Manlulu who testified that on November 17, 1989 accused received from
him a beginning cash in the amount of P355,984.53 which is shown in a Tellers Daily
Report (Exh. D) prepared by the accused and signed by the accused in his presence
(TSN, March 25, 1993, page 30). At the close of business day of November 17, 1989
the accused also prepared an Abstract of Payment (Exh. E) and signed it in his
presence (Id., page 6). Aside from the beginning cash he also turned over to the
accused the transaction that took place after 3:00 oclock of the preceding day
particularly the withdrawal slip of M/Sgt. Salazar (Id., page 4) so that it can be entered
on the records on that very date as bank regulation required that transaction occurring
after 3:00 oclock of a particular day are recorded the following day. This explains
why although the questionable withdrawal slip was dated November 16, 1989 it was
stamped paid on November 17, 1989 for record purposes. Since it was the accused
who gave Reynaldo Manlulu the withdrawal slip dated November 16, 1989 the
presumption is that being in possession of said withdrawal slip before its delivery to
Reynaldo Manlulu the accused is the one who prepared the said withdrawal slip. This
particular transaction was tuned over to him by the accused the previous day (Id., page
5).

The Tellers Daily Report dated November 17, 1989 reflects among others a total
withdrawal on that date in the amount of P16,300.00. This amount is the totality of
withdrawal after adding the seven (7) legitimate withdrawals amounting to P6,300.00
(Exhs. E-2 to E-8) and the questionable withdrawal of P10,000.00 (Exh. C). On the
other hand the Abstract of Payment (Exh. E) reflects among others a savings
withdrawal of P16,300.00 which tallies with the Tellers Daily Report of that date and
with the seven (7) withdrawal slips.

Appellants defense is one of denial. She claims that the initials in the withdrawal slip
of P10,000.00 (Exh. C) the Tellers Daily Report (Exh. D) the Abstract of Payment
(Exh. E) and list of names of depositors (Exh. G) are not hers thus implying that these
documents were prepared by somebody else. To bolster her claim she wrote her
initials six (6) times on a piece of paper during the hearing on March 18, 1993 (Exh.
2) probably for comparison purposes. Admittedly there are noticeable differences
between her initials in Exhibit 2 and those appearing on Exhibits C to G. This is of
course understandable. It was not difficult for appellant to feign her initials in Exhibit
2 in order to mislead the Court.

At any rate no less than Rosalina de Lazo who as general manager of BABSLA is
familiar with the initials has positively identified the initials on Exhibits C to G as
hers. Likewise, Reynaldo Manlulu categorically stated not only that the questionable
withdrawal slip (Exh. C) was turned over to him by appellant on November 16, 1989
and returned to her on November 17, 1989 but also that the Tellers Daily Report (Exh.
D) and the Abstract of Payment (Exh. E) were initialed by her in his presence.
Needless to say the initials in Exhibits C, D, and E bear such similarities as would
lead to the conclusion that they were prepared by one and the same person. Hence, a
more worthy and reliable evidence than the mere samples of her initials written during
the trial is required to controvert the positive testimonies of Rosalina de Lazo and
Reynaldo Manlulu.

No cogent reason has been shown for this court not to give credence to the
prosecution witnesses. As aptly observed by the court a quo:

Accused after denying that the initials over the typewritten name A.G. Roque found in
several exhibits introduced by the prosecution are not hers concentrated [on] her
defense that Rosalina de Lazo another prosecution witness and the General Manager
of BABSLA was the author of the anomaly being imputed against her because said
witness has committed certain anomalous transactions at the BABSLA in the past.
Accused however, never mentioned a word about the testimony of Reynaldo Manlulu
which actually proved her undoing. She failed to controvert nor even comment on the
damaging testimony of Reynaldo Manlulu that she turned over to him the
questionable withdrawal slip and signed and/or placed her initial on the Tellers Daily
Report and Abstract of Payment in his presence. Accused did not present any
evidence that Reynaldo Manlulu had ulterior motives to testify falsely against her.
When there is no evidence indicating that the principal witness for the prosecution
was moved by improper motive the presumption is that he was not so moved and his
testimony is entitled to full faith and credit. (People vs. Perciano 233 SCRA 393).
Accused also failed to controvert the testimony of Rosalina de Lazo that the accused
confessed before Col. Dunilayan the president of BABSLA that she took money from
some depositors which she promised to return and in fact wrote down the names of
said depositors before Col. Dunilayan in a piece of paper which she handed to him.
This fact and [it being] taken in the light that she failed to appear for investigation
after the anomaly was discovered despite due notice, and her lack of interest to pursue
a case she filed before the Department of Labor which caused its dismissal, do not
speak well of her claim of innocence.
In sum, the Court finds appellants conviction of the offense charged in accord with
law and evidence.[8]

Petitioner now raises the following issues:

I

WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE

DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE
CRIME OF QUALIFIED THEFT THROUGH FALSIFICATION OF BANK
DOCUMENTS?

II

WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE

DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE
CRIME OF QUALIFIED THEFT BECAUSE OF THE WEAKNESS OF THE
DEFENSE OFFERED BY PETITIONER AND NOT ON THE STRENGTH OF THE
EVIDENCE OF THE PROSECUTION?

III

WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE

DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE
CRIME OF QUALIFIED THEFT IN THE ABSENCE OF ANY EVIDENCE
WHETHER TESTIMONIAL OR DOCUMENTARY TO THE EFFECT THAT
PETITIONER WAS SEEN OR CAUGHT IN THE ACT OF TAKING OR
CARRYING AWAY THE SUM OF P10,000.00?

IV

WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE

DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE
CRIME OF QUALIFIED THEFT WHEN THE AMOUNT OF P10,000.00 WHICH
CONSTITUTES THE CORPUS DELICTI OR BODY OF THE CRIME WAS
NEVER OFFERED IN EVIDENCE BY THE PROSECUTION?

WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AFFIRMED THE

DECISION OF THE LOWER COURT CONVICTING PETITIONER OF THE
CRIME OF QUALIFIED THEFT WHEN THE PROSECUTION FAILED TO
PROVE BEYOND REASONABLE DOUBT THE FACT OF LOSS OF THE
AMOUNT OF P10,000.00 IN THE ABSENCE OF ANY AUDIT BY AN
INDEPENDENT AUDITOR? [9]

Said issues may be summed up into two:

1. Whether or not qualified theft may be committed when the personal
property is in the lawful possession of the accused prior to the commission of
the alleged felony?
2. Whether or not the elements of qualified theft were proven?

First Issue

Petitioner contends:

Theft as defined in Article 308 of the Revised Penal Code requires physical taking of
anothers property without violence or intimidation against persons or force upon
things.

The crime of theft is akin to the crime of robbery. The only difference is in robbery
there is force upon things or violence or intimidation against persons in taking of
personal properties. In the crime of theft the taking of the personal property with
intent to gain is without violence against or intimidation of persons nor force upon
things and the taking shall be without the consent of the owner. In robbery, the taking
is against the will of the owner.

Under Article 308 of the Revised Penal Code, the following are the elements of the
crime of theft:

1. Intent to gain;
2. Unlawful taking;
3. Personal property belonging to another;
4. Absence of violence or intimidation against persons or force upon things.

The foregoing requirements presume that the personal property is in the possession of
another, unlike estafa, [where] the possession of the thing is already in the hands of
the offender. In People vs. Lacson, 57 Phil. 325, it was held:

Commentators on the Spanish Penal Code lay great stress on the taking away, that is,
getting possession in theft, laying hold of the thing, so that if the thing is not taken
away, but received and then appropriated or converted, without consent of the owner,
it may be any other crime, that of estafa for instance.
Can a person tasked to receive and collect capital contributions and having collected
and received in her capacity as teller as alleged in the information, be guilty of theft?
The question should be answered in the negative. xxx [10]

Petitioners argument contradicts jurisprudence. In U.S. v. De Vera, the [11]

accused, Nieves de Vera, received from Pepe, an Igorot, a bar of gold weighing
559.7 grams for the purpose of having a silversmith examine the same, and
bank notes amounting to P200 to have them exchanged for silver coins.
Accused appropriated the bar of gold and bank notes. This Court, citing Spanish
and U.S. jurisprudence, ruled that the crime committed was theft and
not estafa since the delivery of the personal property did not have the effect of
transferring the juridical possession, thus such possession remained in the
owner; and the act of disposal with gainful intent and lack of owners consent
constituted the crime of theft.
The principle enunciated in U.S. v. De Vera was reiterated in People v.
Trinidad, thus:
[12]

The defendant received a finger ring from the offended party for the purpose of
pledging it as security for a loan of P5 for the benefit of said offended party. Instead
of pledging the ring, the defendant immediately carried it to one of her neighbors to
whom she sold it for P30 and appropriated the money to her own use.

xxx

The defendant is undoubtedly guilty of having sold the ring without authority and the
only question which presents some difficulty is to determine whether the crime
committed was theft or whether it should be classified as estafa. The question is
discussed at length in the case of United States vs. De Vera (43 Phil., 1000) in which
the court, citing various authorities, held that "When the delivery of a chattel or cattle
has not the effect of transferring the juridical possession thereof, or title thereto, it is
presumed that the possession of, and title to, the thing so delivered remains in the
owner; and the act of disposing thereof with intent of gain and without the consent of
the owner constitutes the crime of theft." This view seems to be supported both by
Spanish and American authorities.

xxx

Though the facts in the present case differs somewhat from those in the De Vera case,
the underlying principle is the same in both cases: the juridical possession of the thing
appropriated did not pass to the perpetrators of the crime, but remained in the owners;
they were agents or servants of the owners and not bailees of the property. (See 17 R.
C. L., 43, par. 49.) But it has been suggested that one of the essential elements of the
crime of theft is that the intent to misappropriate the property taken must exist at the
time of the asportation and that while this element clearly existed in the De Vera case,
it is not as apparent in the case at bar.

We may agree that in cases such as the present the crime committed should not be
regarded as theft unless the circumstances are such that it must be presumed that the
intent to convert or misappropriate the property existed at the time it was received by
the perpetrator of the crime. But the existence of such intent is, in our opinion, fully as
apparent in this case as it was in the De Vera case; the defendant, according to her
own statement, offered the ring for sale immediately after its delivery to her, and we
are forced to conclude that she did not receive it with honest intentions, but had the
disposal of it in mind at the time.

In the case of People v. Locson which also deals with money of a bank in
[13]

the possession of its teller, the Court articulated:

Although the question is not specifically raised in the assignments of error, the court
has carefully considered the classification of the crime committed by the defendant
and found it to be correctly classified by the trial court as qualified theft. The money
was in the possession of the defendant as receiving teller of the bank, and the
possession of the defendant was the possession of the bank. When the defendant, with
a grave abuse of confidence, removed the money and appropriated it to his own use
without the consent of the bank, there was the taking or apoderamiento contemplated
in the definition of the crime of theft.

In the case of the United States vs. De Vera (43 Phil., 1000, 1003), Justice Villamor
speaking for the court said:

"The argument advanced in support of the contention of the defense is that the goods
misappropriated were not taken by the accused without the consent of the owner who
had delivered them to her voluntarily, and this element being lacking, it cannot be the
crime of theft.

"It is well to remember the essential elements of the crime of theft, as expounded in
the textbooks, which are as follows: First, the taking of personal property; second, that
the property belongs to another; third, that the taking away be done with intent of
gain; fourth, that the taking away be done without the consent of the owner; and fifth,
that the taking away be accomplished without violence or intimidation against persons
or force upon things.
"The commentators on the Spanish Penal Code, from which ours was adopted, lay
great stress on the first element, which is the taking away, that is, getting possession,
laying hold of the thing, so that, as Viada says, if the thing is not taken away, but
received and then appropriated or converted without the consent of the owner, it may
be any other crime, that of estafa for instance, but in no way that of theft, which
consists in the taking away of the thing, that is, in removing it from the place where it
is kept by the legal owner, without the latter's consent, that is, without obtaining for
the purpose the consent of the legitimate owner."

The doctrine of the case as stated in the syllabus is as follows:

"When the delivery of a chattel or cattle has not the effect of transferring the juridical
possession thereof, or title thereto, it is presumed that the possession of, and title to,
the thing so delivered remains in the owner; and the act of disposing thereof with
intent of gain and without the consent of the owner constitutes the crime of theft."

The Supreme Court of Spain in a decision of June 23, 1886 held that a shepherd, who
takes away and converts to his own use several head of the sheep under his care, is
guilty of qualified theft. (Viada: Vol. 3, p. 433, 4th ed.)

In the case of People v. Isaac, which involved a temporary driver of a

[14]

public service vehicle, this Court pronounced:

In the case of U. S. vs. De Vera (43 Phil., 1000), this Court said that when the delivery
of a chattel has not the effect of transferring the juridical possession thereof, or title
thereto, it is presumed that the possession of, and title to, the thing so delivered
remains in the owner; and the act of disposing thereof with intent of gain and without
the consent of the owner constitutes the crime of theft. This, we think, is actually the
case here. For as we see it, appellant had only substituted for the regular driver of a
vehicle devoted to the transportation of passengers for a fare or compensation and
therefore operated as a public utility; and while his arrangement with the owner was to
turn in, not all the fare collected, but only a fixed sum known in the trade as
"boundary", still he cannot be legally considered a hirer or lessee, since it is ordained
in section 26 of the Rules of Regulations of the Public Service Commission that "no
motor vehicle operator shall enter into any kind of contract with any person if by the
terms thereof it allows the use and operation of all or any of his equipment under a
fixed rental basis." In the eye of the law then, appellant was not a lessee but only an
employee or agent of the owner, so that his possession of the vehicle was only an
extension of that of the latter. In other words, while he had physical or material
possession of the jeepney, the juridical possession thereof remained in the owner.
Under those circumstances his disposing of the jeepney with intent of gain and
without the consent of its owner makes him guilty of theft.
Quoting from Ruling Case Law, this Court has also said in the same case:

"A felonious taking is necessary in the crime of larceny, and generally speaking, a
taking which is done with the consent or acquiescence of the owner of the property is
not felonious. But if the owner parts with the possession thereof for a particular
purpose, and the person who receives the possession avowedly for that purpose has
the fraudulent intention to make use of it as the means of converting it to his own use
and does so convert it, this is larceny, for in such case, the fraud supplies the place of
the trespass in the taking, or, as otherwise stated, the subsequent felonious conversion
of the property by the alleged thief will relate back and make the taking and
conversion larceny.

Under this theory, appellant, who, according to his own confession, took the vehicle
from its owner already with the intention of appropriating it, should also be deemed
guilty of theft. (People vs. Trinidad, 50 Phil., 65.)

In the present case, what is involved is the possession of money in the

capacity of a bank teller. In People v. Locson, cited above, this Court
[15]

considered deposits received by a teller in behalf of a bank as being only in the

material possession of the teller. This interpretation applies with equal force to
money received by a bank teller at the beginning of a business day for the
purpose of servicing withdrawals. Such is only material possession. Juridical
possession remains with the bank. In line with the reasoning of the Court in the
above-cited cases, beginning with People v. De Vera, if the teller appropriates
the money for personal gain then the felony committed is theft and not estafa.
Further, since the teller occupies a position of confidence, and the bank places
money in the tellers possession due to the confidence reposed on the teller, the
felony of qualified theft would be committed.

Second Issue

The elements of qualified theft include the elements of theft and any of the
circumstances enumerated in Article 310 of the Revised Penal Code (RPC). [16]

The elements of theft, which is defined in Artilce 308 of the RPC, are the [17]

following:

xxx there are five essential elements which constitute the crime of theft, namely: (1)
Taking of personal property; (2) that said property belongs to another; (3) that said
taking be done with intent to gain; (4) that, further, it be done without the owners
consent; and (5) finally, that it be accomplished without the use of violence or
intimidation against persons, nor of force upon things. [18]

The specific qualifying circumstance in Article 310 of the RPC which the
information indicated was that the felony was committed with grave abuse of
confidence. Hence, to warrant a conviction, the prosecution should have proven
the following elements:
1. Taking of personal property.
2. That the said property belongs to another.
3. That the said taking be done with intent to gain.
4. That it be done without the owners consent.
5. That it be accomplished without the use of violence or intimidation against persons,
nor of force upon things.
6. That it be done with grave abuse of confidence.

Regarding the first element, the taking of personal property, the prosecution
was not able to present direct evidence that petitioner took the P10,000 on
November 16, 1989. The prosecution attempted to prove the taking through
circumstantial evidence. One of the pieces of evidence that the prosecution
adduced and the trial court and Court of Appeals relied on heavily for the
conviction was the withdrawal slip for P10,000, dated November 16, 1989.
Antonio Salazar disowned the signature on the withdrawal slip. However, he
also indicated that he did not know who made the withdrawal. Rosalina de Lazo
testified that the initial on the withdrawal slip, written after the figure 11-17-89,
was the customary signature of petitioner. She, however, did not intimate the
significance of petitioners initial on the withdrawal slip. A careful inspection of
all the withdrawal slips, including the withdrawal slip stated above, shows that
[19]

the date and the initial of petitioner were written across the stamped word paid.
This indicates that petitioners initial was placed in her capacity as a teller which,
therefore, only proves that this transaction passed through her hands in such
capacity. It does not in any manner show that petitioner prepared the withdrawal
slip or that the proceeds of the withdrawal increased her patrimony.
The trial court articulated and the Court of Appeals quoted in toto the
following:

Since it was the accused who gave Reynaldo Manlulu the withdrawal slip dated
November 16, 1989 the presumption is that, being in possession of said withdrawal
slip before its delivery to Reynaldo Manlulu, the accused is the one who prepared the
said withdrawal slip. This particular transaction was turned over to him by the accused
the previous day [20]
 This presumption is without basis in law. Under the rules of evidence, there
is a fixed number of presumptions. These are contained in Sections 2 and 3 of
Rule 131, of the Revised Rules of Court. Courts of law should not be too ready
to generate other presumptions. After a thorough review of all the presumptions
enumerated in Sections 2 and 3 of Rule 131, the presumption that comes
closest to the one the RTC and Court of Appeals relied on is paragraph (j),
Section 3 of Rule 131, which reads:

That a person found in possession of a thing taken in the doing of a recent wrongful
act is the taker and the doer of the whole act; otherwise, that things which a person
possesses, or exercises acts of ownership over, are owned by him;

In a long line of cases, this Court has always applied this presumption to
[21]

a situation where property has been stolen and the stolen property is found in
the possession of the accused. In these cases the possession of the accused
gives rise to the presumption that the accused is the taker of the stolen property.
In the presumption availed of by the lower courts the property found in the
possession of the accused, which is the withdrawal slip, is not stolen property.
Furthermore, the presumption the lower court made was not that the petitioner
stole anything, but rather that the petitioner was the maker of the withdrawal
slip. It is plain that the presumption used by the lower court and the one found
in paragraph (j), Section 3 of Rule 131 are different. Consequently, there is no
basis for the finding that the withdrawal slip was prepared by the petitioner.
Another piece of evidence offered to prove petitioners taking is her
extrajudicial confession to de Lazo and Col. Dunilayan wherein she allegedly
admitted taking money from the accounts of several members of the BABSLA
and the list of people from whose accounts she took money, which list petitioner
supposedly prepared in the presence of de Lazo and Col. Dunilayan. In the
testimony of Rosalina de Lazo, all she mentioned was that petitioner confessed
to having taken sums of money from the accounts of several depositors,
including the account of Sgt. Salazar. Nowhere in her testimony did she mention
that petitioner confessed the exact date on which she took the money, nor the
amount she took from the account of Sgt. Salazar. It cannot be deduced from
the alleged verbal confession of petitioner that she was confessing a specific
taking of P10,000 from the account of Sgt. Salazar on November 16, 1989. She
also saw petitioner prepare the list of depositors from whose accounts she had
taken some money. Again, a perusal of the handwritten list allegedly prepared
by petitioner does not disclose any relation to the specific taking alleged in the
information. All that was written on the list, among other names and figures,
was the name Salazar, Antonio and the number fifteen (15) to the right of the
name. It must be kept in mind that the information was for a theft of P10,000
that occurred on the 16th of November 1989. The list does not mention the date
on which the money was taken. Neither does it disclose the precise amount that
was taken.
The other pieces of evidence such as the Tellers Daily Report and Abstract
of Payment, to which witnesses de Lazo and Salazar both testified as
containing the customary initials of petitioner, only corroborate the withdrawal
slip. They merely reveal that on the 16th of November 1989, a withdrawal was
made on the account of Sgt. Antonio Salazar and that this withdrawal passed
through the hands of petitioner in her capacity as a teller of the BABSLA. Again,
they prove neither that petitioner prepared the subject withdrawal slip nor that
she took the P10,000 on that date.
From the foregoing discussion it is plain that the prosecution failed to prove
by direct or sufficient circumstantial evidence that there was a taking of personal
property by petitioner.
A discussion of the other elements of qualified theft mentioned above is not
necessary. Even if the other elements were satisfactorily proven, the first and
most basic element of qualified theft was not established. The prosecution was,
therefore, unsuccessful in proving beyond reasonable doubt that the petitioner
committed the crime of qualified theft.
WHEREFORE, the petition is GRANTED and the decision and resolution of
the Court of Appeals dated December 28, 1998 and May 26, 1999, respectively,
are REVERSED and SET ASIDE. Petitioner, Asuncion Galang Roque, is
ACQUITTED of the crime of qualified theft charged in the information. No costs.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, appellee, vs. LUISITO D.
BUSTINERA, appellant.
It is settled that an appeal in a criminal proceeding throws the whole case
open for review, and it becomes the duty of the appellate court to correct such
errors as may be found in the judgment even if they have not been specifically
assigned. [26]

Appellant was convicted of qualified theft under Article 310 of the Revised
Penal Code, as amended for the unlawful taking of a motor
vehicle. However, Article 310 has been modified, with respect to certain
vehicles, by Republic Act No. 6539, as amended, otherwise known as "AN
[27]

ACT PREVENTING AND PENALIZING CARNAPPING.

When statutes are in pari materia or when they relate to the same person
[28]

or thing, or to the same class of persons or things, or cover the same specific
or particular subject matter, or have the same purpose or object, the rule
[29] [30]

dictates that they should be construed together interpretare et concordare leges

legibus, est optimus interpretandi modus. Every statute must be so construed
[31]

and harmonized with other statutes as to form a uniform system of

jurisprudence, as this Court explained in City of Naga v. Agna, viz:
[32] [33]

. . . When statutes are in pari materia, the rule of statutory construction dictates that
they should be construed together. This is because enactments of the same legislature
on the same subject matter are supposed to form part of one uniform system; that later
statutes are supplementary or complimentary to the earlier enactments and in the
passage of its acts the legislature is supposed to have in mind the existing legislation
on the same subject and to have enacted its new act with reference thereto. Having
thus in mind the previous statutes relating to the same subject matter, whenever the
legislature enacts a new law, it is deemed to have enacted the new provision in
accordance with the legislative policy embodied in those prior statutes unless there is
an express repeal of the old and they all should be construed together. In construing
them the old statutes relating to the same subject matter should be compared
with the new provisions and if possible by reasonable construction, both should
be so construed that effect may be given to every provision of each. However,
when the new provision and the old relating to the same subject cannot be
reconciled the former shall prevail as it is the latter expression of the legislative
will . . . (Emphasis and underscoring supplied; citations omitted)
[34]

The elements of the crime of theft as provided for in Article 308 of the
Revised Penal Code are: (1) that there be taking of personal property; (2) that
said property belongs to another; (3) that the taking be done with intent to gain;
(4) that the taking be done without the consent of the owner; and (5) that the
taking be accomplished without the use of violence against or intimidation of
persons or force upon things. [35]

Theft is qualified when any of the following circumstances is present: (1) the
theft is committed by a domestic servant; (2) the theft is committed with grave
abuse of confidence; (3) the property stolen is either a motor vehicle, mail
matter or large cattle; (4) the property stolen consists of coconuts taken from
the premises of a plantation; (5) the property stolen is fish taken from a fishpond
or fishery; and (6) the property was taken on the occasion of fire, earthquake,
typhoon, volcanic eruption, or any other calamity, vehicular accident or civil
disturbance. [36]

On the other hand, Section 2 of Republic Act No. 6539, as amended defines
carnapping as the taking, with intent to gain, of a motor vehicle belonging to
another without the latter's consent, or by means of violence against or
intimidation of persons, or by using force upon things. The elements of
carnapping are thus: (1) the taking of a motor vehicle which belongs to another;
(2) the taking is without the consent of the owner or by means of violence
against or intimidation of persons or by using force upon things; and (3) the
taking is done with intent to gain.[37]

Carnapping is essentially the robbery or theft of a motorized vehicle, the [38]

concept of unlawful taking in theft, robbery and carnapping being the same. [39]

In the 2000 case of People v. Tan where the accused took a Mitsubishi
[40]

Gallant and in the later case of People v. Lobitania which involved the taking
[41]

of a Yamaha motorized tricycle, this Court held that the unlawful taking of motor
vehicles is now covered by the anti-carnapping law and not by the provisions
on qualified theft or robbery.

There is no arguing that the anti-carnapping law is a special law, different from
the crime of robbery and theft included in the Revised Penal Code. It particularly
addresses the taking, with intent to gain, of a motor vehicle belonging to another
without the latter's consent, or by means of violence against or intimidation of
persons, or by using force upon things. But a careful comparison of this special law
with the crimes of robbery and theft readily reveals their common features and
characteristics, to wit: unlawful taking, intent to gain, and that personal property
belonging to another is taken without the latter's consent. However, the anti-
carnapping law particularly deals with the theft and robbery of motor
vehicles. Hence a motor vehicle is said to have been carnapped when it has been
taken, with intent to gain, without the owner's consent, whether the taking was done
with or without the use of force upon things. Without the anti-carnapping law, such
unlawful taking of a motor vehicle would fall within the purview of either theft
or robbery which was certainly the case before the enactment of said
statute. (Emphasis and underscoring supplied; citations omitted.)
[42]

It is to be noted, however, that while the anti-carnapping law penalizes the

unlawful taking of motor vehicles, it excepts from its coverage certain vehicles
such as roadrollers, trolleys, street-sweepers, sprinklers, lawn mowers,
amphibian trucks and cranes if not used on public highways, vehicles which run
only on rails and tracks, and tractors, trailers and tractor engines of all kinds
and used exclusively for agricultural purposes. By implication, the theft or
robbery of the foregoing vehicles would be covered by Article 310 of the
Revised Penal Code, as amended and the provisions on robbery, respectively. [43]

From the foregoing, since appellant is being accused of the unlawful taking
of a Daewoo sedan, it is the anti-carnapping law and not the provisions of
qualified theft which would apply as the said motor vehicle does not fall within
the exceptions mentioned in the anti-carnapping law.
 The designation in the information of the offense committed by appellant as
one for qualified theft notwithstanding, appellant may still be convicted of the
crime of carnapping. For while it is necessary that the statutory designation be
stated in the information, a mistake in the caption of an indictment in
designating the correct name of the offense is not a fatal defect as it is not the
designation that is controlling but the facts alleged in the information which
determines the real nature of the crime. [44]

In the case at bar, the information alleges that appellant, with intent to gain,
took the taxi owned by Cipriano without the latters consent. Thus, the [45]

indictment alleges every element of the crime of carnapping, and the [46]

prosecution proved the same.

Appellants appeal is thus bereft of merit.
That appellant brought out the taxi on December 25, 1996 and did not return
it on the same day as he was supposed to is admitted. [47]

Unlawful taking, or apoderamiento, is the taking of the motor vehicle without

the consent of the owner, or by means of violence against or intimidation of
persons, or by using force upon things; it is deemed complete from the moment
the offender gains possession of the thing, even if he has no opportunity to
dispose of the same. [48]

While the nature of appellants possession of the taxi was initially lawful as
he was hired as a taxi driver and was entrusted possession thereof, his act of
not returning it to its owner, which is contrary to company practice and against
the owners consent transformed the character of the possession into an
unlawful one. Appellant himself admits that he was aware that his possession
[49]

of the taxi was no longer with Ciprianos consent as the latter was already
demanding its return.
Q: Also you said that during your direct testimony that when you gave your wife
the P2,500.00, you also told her to go to the company to ask the company for
permission for you to use the taxi since you were then still short of the
boundary. Alright, after telling that to your wife and after seeing your wife between
December 27, 1996 and January 5, 1997, did you ask your wife what was the answer
of the company to that request of yours?
A: He did not allow me, sir, and he even [got] angry with me.
Q: So, when did you learn that the company was not agreeable to your making use of
the taxicab without first returning it to the company?
A: Before the new year, sir.
Q: When you said new year, you were referring to January 1, 1997?
A: Either December 29 or December 30, 1996, sir.
 Q: So, are you telling us that even if you knew already that the company was not
agreeable to your making use of the taxicab continually (sic) without returning
the same to the company, you still went ahead and make (sic) use of it and
returned it only on January 5, 1997.
A: Yes, sir.[50] (Emphasis and underscoring supplied)

Appellant assails the trial courts conclusion that there was intent to gain with
the mere taking of the taxi without the owners consent. He maintains that his
reason for failing to return the taxi was his inability to remit the boundary fee,
his earnings that day not having permitted it; and that there was no intent to
gain since the taking of the taxi was not permanent in character, he having
returned it.
Appellants position does not persuade.
Intent to gain or animus lucrandi is an internal act, presumed from the
unlawful taking of the motor vehicle. Actual gain is irrelevant as the important
[51]

consideration is the intent to gain. The term gain is not merely limited to
[52]

pecuniary benefit but also includes the benefit which in any other sense may be
derived or expected from the act which is performed. Thus, the mere use of
[53]

the thing which was taken without the owners consent constitutes gain. [54]

In Villacorta v. Insurance Commission which was reiterated in Association

[55]

of Baptists for World Evangelism, Inc. v. Fieldmens Insurance Co, Inc., Justice [56]

Claudio Teehankee (later Chief Justice), interpreting the theft clause of an

insurance policy, explained that, when one takes the motor vehicle of another
without the latters consent even if the motor vehicle is later returned, there
is theft, there being intent to gain as the use of the thing unlawfully taken
constitutes gain:

Assuming, despite the totally inadequate evidence, that the taking

was temporary and for a joy ride, the Court sustains as the better view that which
[57]

holds that when a person, either with the object of going to a certain place, or learning
how to drive, or enjoying a free ride, takes possession of a vehicle belonging to
another, without the consent of its owner, he is guilty of theft because by taking
possession of the personal property belonging to another and using it, his intent to
gain is evident since he derives therefrom utility, satisfaction, enjoyment and
pleasure. Justice Ramon C. Aquino cites in his work Groizard who holds that the
use of a thing constitutes gain and Cuello Calon who calls it hurt de
uso. (Emphasis and underscoring supplied; citation omitted)
[58]

Besides, the trial court did not believe appellants claim that he in fact
returned the taxi on January 5, 1997.
The Court can not (sic) believe accuseds assertion that he returned the subject vehicle
on January 5, 1997 to the garage and that he had in fact paid the amount of P4,500.00
in partial payment of his unremitted boundary for ten (10) days. He could not even be
certain of the exact amount he allegedly paid the taxicab owner. On direct-
examination, he claimed that he paid Edwin Cipriano on December 27, 1996 the
amount of P2,000.00 and it was his wife who handed said amount to Cipriano, yet on
cross-examination, he claimed that he gave P2,500.00 to his wife on that date for
payment to the taxicab owner. [59]

The rule is well-entrenched that findings of fact of the trial court are accorded
the highest degree of respect and will not be disturbed on appeal absent any
clear showing that the trial court had overlooked, misunderstood or misapplied
some facts or circumstances of weight and significance which, if considered,
would alter the result of the case. The reason for the rule being that trial courts
[60]

have the distinct advantage of having heard the witnesses themselves and
observed their deportment and manner of testifying or their conduct and
behavior during the trial. [61]

Other than his bare and self-serving allegations, appellant has not shown
any scintilla of evidence that he indeed returned the taxi on January 5, 1997.
Q: You said that you returned the taxi on January 5, 1997, correct?
A: Yes, sir.
Q: Now, Mr. Witness, did you sign any record when you returned the taxi?
A: Yes, sir.
Q: Do you have any copy of that record?
A: They were the one (sic) in-charge of the record book and I even voluntarily left
my drivers license with them, sir.
Q: You said that you did not return the taxi because you were short of (sic) boundary,
did you turn over any money to your employer when you returned the taxi?
A: I gave them [an] additional P2,500.00, sir.
Q: At the time when you returned the taxi, how much was your short indebtedness (sic)
or short boundary (sic)?
A: I was short for ten (10) days, and I was able to pay P4,500.00.
Q: Do you have any receipt to show receipt of payment for this P4,500.00?
A: They were the ones having the record of my payment, and our agreement was
that I have to pay the balance in installment.[62] (Emphasis supplied)

While appellant maintains that he signed on January 5, 1997 the record

book indicating that he returned the taxi on the said date and paid Cipriano the
amount of P4,500.00 as partial payment for the boundary fee, appellant did not
produce the documentary evidence alluded to, to substantiate his claim. That
such alleged record book is in the possession of Cipriano did not prevent him
from producing it as appellant has the right to have compulsory process issued
to secure the production of evidence on his behalf. [63]

The trial court having convicted appellant of qualified theft instead of

carnapping, it erred in the imposition of the penalty. While the information
alleges that the crime was attended with grave abuse of confidence, the same
cannot be appreciated as the suppletory effect of the Revised Penal Code to
special laws, as provided in Article 10 of said Code, cannot be invoked when
there is a legal impossibility of application, either by express provision or by
necessary implication. [64]

Moreover, when the penalties under the special law are different from and
are without reference or relation to those under the Revised Penal Code, there
can be no suppletory effect of the rules, for the application of penalties under
the said Code or by other relevant statutory provisions are based on or
applicable only to said rules for felonies under the Code. [65]

Thus, in People v. Panida which involved the crime of carnapping and the
[66]

penalty imposed was the indeterminate sentence of 14 years and 8 months, as

minimum, to 17 years and 4 months, as maximum, this Court did not apply the
provisions of the Revised Penal Code suppletorily as the anti-carnapping law
provides for its own penalties which are distinct and without reference to the
said Code.

The charge being simple carnapping, the imposable penalty is imprisonment for not
less than 14 years and 8 months and not more than 17 years and 4 months. There can
be no suppletory effect of the rules for the application of penalties under the
Revised Penal Code or by other relevant statutory provisions based on, or
applicable only to, the rules for felonies under the Code. While it is true that the
penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent
to the duration of the medium period of reclusion temporal, such technical term
under the Revised Penal Code is not given to that penalty for carnapping.
Besides, the other penalties for carnapping attended by the qualifying
circumstances stated in the law do not correspond to those in the Code. The rules
on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No.
6539 and special laws of the same formulation. For this reason, we hold that the
proper penalty to be imposed on each of accused-appellants is an indeterminate
sentence of 14 years and 8 months, as minimum, to 17 years and 4 months, as
maximum. (Emphasis and underscoring supplied; citations omitted)
[67]
 Appellant being then culpable for carnapping under the first clause of
Section 14 of Republic Act No. 6539, as amended, the imposable penalty is
imprisonment for not less than 14 years and 8 months, not more than 17 years
and 4 months, for, as discussed above, the provisions of the Revised Penal
[68]

Code cannot be applied suppletorily and, therefore, the alleged aggravating

circumstance of grave abuse of confidence cannot be appreciated.
Applying Section 1 of Act No. 4103, as amended, otherwise known as the
[69]

Indeterminate Sentence Law, if the offense is punishable by a special law, the

court shall sentence the accused to an indeterminate sentence, the maximum
term of which shall not exceed the maximum fixed by said law and the minimum
term shall not be less than the minimum prescribed by the same the penalty
imposed being a range. [70]

WHEREFORE, the judgment of the Regional Trial Court of Quezon City,

Branch 217, in Crim Case No. Q-97-71956, finding appellant Luisito
D. Bustinera guilty beyond reasonable doubt of qualified theft,
is REVERSED and SET ASIDE, and another judgment entered in its place,
finding him guilty beyond reasonable doubt of the crime of carnapping under
Republic Act No. 6539, as amended and sentencing him to an indeterminate
penalty of Fourteen (14) Years and Eight (8) Months, as minimum, to
Seventeen (17) Years and Four (4) Months, as maximum.
SO ORDERED.
ANTI-FENCING

JAIME ONG y ONG, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent. OUR RULING

The Petition has no merit.

Fencing is defined in Section 2(a) of P.D. 1612 as the "act of any person who, with intent to gain for
himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall
buy and sell, or in any manner deal in any article, item, object or anything of value which he knows,
or should be known to him, to have been derived from the proceeds of the crime of robbery or theft."

The essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft has
been committed; (2) the accused, who is not a principal or on accomplice in the commission of the
crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or
buys and sells, or in any manner deals in any article, item, object or anything of value, which has
been derived from the proceeds of the crime of robbery or theft; (3) the accused knew or should
have known that the said article, item, object or anything of value has been derived from the
proceeds of the crime of robbery or theft; and (4) there is, on the part of one accused, intent to gain
for oneself or for another.10
We agree with the RTC and the CA that the prosecution has met the requisite quantum of evidence
in proving that all the elements of fencing are present in this case.

First, the owner of the tires, private complainant Francisco Azajar (Azajar), whose testimony was
corroborated by Jose Cabal - the caretaker of the warehouse where the thirty-eight (38) tires were
stolen – testified that the crime of robbery had been committed on 17 February 1995. Azajar was
able to prove ownership of the tires through Sales Invoice No. 456511 dated 10 November 1994 and
an Inventory List.12 Witnesses for the prosecution likewise testified that robbery was reported as
evidenced by their Sinumpaang Salaysay13 taken at the Southern Police District at Fort
Bonifacio.14 The report led to the conduct of a buy-bust operation at Jong Markerting, Paco, Manila
on 27 February 1995.

Second, although there was no evidence to link Ong as the perpetrator of the robbery, he never
denied the fact that thirteen (13) tires of Azajar were caught in his possession. The facts do not
establish that Ong was neither a principal nor an accomplice in the crime of robbery, but thirteen (13)
out of thirty-eight (38) missing tires were found in his possession. This Court finds that the serial
numbers of stolen tires corresponds to those found in Ong’s possession.15 Ong likewise admitted
that he bought the said tires from Go of Gold Link in the total amount of ₱45,500 where he was
issued Sales Invoice No. 980.16

Third, the accused knew or should have known that the said article, item, object or anything of value
has been derived from the proceeds of the crime of robbery or theft. The words "should know"
denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in
performance of his duty to another or would govern his conduct upon assumption that such fact
exists.17 Ong, who was in the business of buy and sell of tires for the past twenty-four (24)
years,18 ought to have known the ordinary course of business in purchasing from an unknown seller.
Admittedly, Go approached Ong and offered to sell the thirteen (13) tires and he did not even ask for
proof of ownership of the tires.19 The entire transaction, from the proposal to buy until the delivery of
tires happened in just one day.20 His experience from the business should have given him doubt as
to the legitimate ownership of the tires considering that it was his first time to transact with Go and
the manner it was sold is as if Go was just peddling the thirteen (13) tires in the streets.

In Dela Torre v. COMELEC,21 this Court had enunciated that:

Circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of
the sale may have been derived from the proceeds of robbery or theft. Such circumstances include
the time and place of the sale, both of which may not be in accord with the usual practices of
commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly
engaged in the business of selling goods may likewise suggest the illegality of their source, and
therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No.
1612 that "mere possession of any goods, . . ., object or anything of value which has been the
subject of robbery or thievery shall be prima facie evidence of fencing" — a presumption that is,
according to the Court, "reasonable for no other natural or logical inference can arise from the
established fact of . . . possession of the proceeds of the crime of robbery or theft." xxx.22

Moreover, Ong knew the requirement of the law in selling second hand tires. Section 6 of P.D. 1612
1âw phi 1

requires stores, establishments or entities dealing in the buying and selling of any good, article, item,
object or anything else of value obtained from an unlicensed dealer or supplier thereof to secure the
necessary clearance or permit from the station commander of the Integrated National Police in the
town or city where that store, establishment or entity is located before offering the item for sale to the
public. In fact, Ong has practiced the procedure of obtaining clearances from the police station for
some used tires he wanted to resell but, in this particular transaction, he was remiss in his duty as a
diligent businessman who should have exercised prudence.

In his defense, Ong argued that he relied on the receipt issued to him by Go. Logically, and for all
1âw phi1

practical purposes, the issuance of a sales invoice or receipt is proof of a legitimate transaction and
may be raised as a defense in the charge of fencing; however, that defense is disputable.23 In this
case, the validity of the issuance of the receipt was disputed, and the prosecution was able to prove
that Gold Link and its address were fictitious.24Ong failed to overcome the evidence presented by the
prosecution and to prove the legitimacy of the transaction. Thus, he was unable to rebut the prima
facie presumption under Section 5 of P.D. 1612.

Finally, there was evident intent to gain for himself, considering that during the buy-bust operation,
Ong was actually caught selling the stolen tires in his store, Jong Marketing.

Fencing is malum prohibitum, and P.D. 1612 creates a prima fqcie presumption of fencing from
evidence of possession by the accused of any good, article, item, object or anything of value, which
has been the subject of robbery or theft; and prescribes a higher penalty based on the value of
the 25 property.

The RTC and the CA correctly computed the imposable penalty based on ₱5,075 for each tire
recovered, or in the total amount of ₱65,975. Records show that Azajar had purchased forty-four
(44) tires from Philtread in the total amount of ₱223,40 1.81.26 Section 3 (p) of Rule 131 of the
Revised Rules of Court provides a disputable presumption that private transactions have been fair
and regular. Thus, the presumption of regularity in the ordinary course of business is not overturned
in the absence of the evidence challenging the regularity of the transaction between Azajar ,and Phil
tread.

In tine, after a careful perusal of the records and the evidence adduced by the parties, we do not find
sufficient basis to reverse the ruling of the CA affirming the trial court's conviction of Ong for violation
of P.D. 1612 and modifying the minimum penalty imposed by reducing it to six ( 6) years of prision
correccional.

WHEREFORE, premises considered, the Petition is DENIED for lack of merit. Accordingly, the
assailed Decision of the Court of Appeals in CA-G.R. CR No. 30213 is hereby AFFIRMED.

SO ORDERED.

ERNESTO FRANCISCO y SPENOCILLA, petitioner, vs. PEOPLE OF

THE PHILIPPINES, respondent.

The Ruling of the Court

The petition is meritorious.

The essential elements of the crime of fencing are as follows: (1) a crime of
robbery or theft has been committed; (2) the accused, who is not a principal or
accomplice in the commission of the crime of robbery or theft, buys, receives,
possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or
in any manner deals in any article, item, object or anything of value, which has
been derived from the proceeds of the crime of robbery or theft; (3) the accused
knew or should have shown that the said article, item, object or anything of
value has been derived from the proceeds of the crime of robbery or theft; and,
(4) there is, on the part of the accused, intent to gain for himself or for
another. Fencing is malum prohibitum, and P.D. No. 1612 creates a prima
[32]

facie presumption of fencing from evidence of possession by the accused of

any good, article, item, object or anything of value which has been the subject
of robbery or theft, and prescribes a higher penalty based on the value of the
property. The stolen property subject of the charge is not indispensable to
[33]

prove fencing. It is merely corroborative of the testimonies and other evidence

adduced by the prosecution to prove the crime of fencing.
We agree with the trial and appellate courts that the prosecution mustered
the requisite quantum of evidence, on the basis of the testimony of Jovita, that
Pacita stole the subject jewelry from the locked cabinet in the main house of
her then employer. Jovita testified on her ownership of the jewelry and the loss
thereof, and narrated that Pacita had access to the cabinet containing the
pieces of jewelry.
We, however, agree with the petitioner that the decision of the RTC of Rizal,
Branch 76, in Criminal Case No. 2005 convicting Pacita of theft does not
constitute proof against him in this case, that Pacita had, indeed, stolen the
jewelry. There is no showing that the said decision in Criminal Case No. 2005
was already final and executory when the trial court rendered its decision in the
instant case.
On the second element of the crime, the trial and appellate courts held that
the prosecution proved the same beyond reasonable doubt based on the
testimony of Jovita during the trial in Criminal Cases Nos. 1992 and 2005; that
Pacita had confessed to Jovita that she sold some of the jewelry to the
petitioner; the joint affidavit of PO1 Roldan, Jr. and SPO1 Peralta on their
investigation of the complaint of Jovita; the testimony of PO1 Roldan, Jr. relating
to said investigation; the RTC decision in Criminal Cases Nos. 1992 and 2005;
the testimonies of Pacita and her brother Macario during the preliminary
investigation of Criminal Case No. 92-13841 before the MTC of Meycauayan
as shown by the transcripts of the stenographic notes taken during the
proceedings; the supplemental sworn statement of Pacita on August 23, 1992
in Camp Crame, Quezon City, and, the testimony of Macario before the trial
court.
However, we find and so hold that
 First. Jovitas testimony in Criminal Cases Nos. 1992 and 2005, that Pacita
had confessed to her that she had sold four pieces of jewelry to the petitioner,
is inadmissible in evidence against the latter to prove the truth of the said
admission. It bears stressing that the petitioner was not a party in the said
criminal cases. The well-entrenched rule is that only parties to a case are bound
by a judgment of the trial court. Strangers to a case are not bound by the
judgment of said case. Jovita did not reiterate her testimony in the said
[34]

criminal cases during the trial in the court a quo. The prosecution did not
present Pacita as witness therein to testify on the admission she purportedly
made to Jovita; hence, the petitioner was not able to cross-examine Pacita. The
rule is that the acts or declarations of a person are not admissible in evidence
against a third party.
[35]

Second. The testimony of Pacita during the preliminary investigation in

Criminal Case No. 92-13841, as well as her supplemental affidavit, is, likewise,
inadmissible against the petitioner since Pacita did not testify in the court a
quo. The petitioner was, thus, deprived of his constitutional right to confront and
cross-examine a witness against him.
Third. The testimony of PO1 Roldan, Jr., that on August 23, 1992, Pacita
pointed to the petitioner, while the latter was having a drinking spree, as the
person who bought the subject jewelry from her, is indeed admissible in
evidence against the petitioner. It is, likewise, corroborative of the testimony of
Macario. However, such testimony is admissible only to prove such fact - that
Pacita pointed to the petitioner as the person to whom she sold the subject
jewelry; it is inadmissible to prove the truth of Pacitas declaration to the
policemen, that the petitioner was the one who purchased the jewelry from her.
It must be stressed that the policemen had no personal knowledge of the said
sale, and, more importantly, Pacita did not testify in the court a quo. Indeed, the
petitioner was deprived of his right to cross-examine Pacita on the truth of what
she told the policemen.
Fourth. On the other hand, the testimony of Macario during the preliminary
investigation of Criminal Case No. 92-13841 is admissible in evidence against
the petitioner since he testified for the prosecution and was cross-examined on
his testimony during the preliminary investigation.
In fine, the only evidence of the prosecution to prove that the petitioner
purchased the jewelry from Macario and Pacita are the following: the testimony
and affidavit of PO1 Roldan, Jr.; and, the testimony of Macario during the
preliminary investigation and trial in the court a quo.
Although the well-entrenched rule is that the testimony of a single witness
is sufficient on which to anchor a judgment of conviction, it is required that such
testimony must be credible and reliable. In this case, we find the testimony of
[36]

Macario to be dubious; hence, barren of probative weight.

Macario admitted when he testified in the court a quo that his testimony
during the preliminary investigation in Criminal Case No. 92-13841 and his
testimony in the court a quo were inconsistent. He even admitted that some
portions of his testimony on direct examination in the court a quo were
inconsistent with his testimony on cross-examination and on re-direct
examination. These admissions are buttressed by the records of the case,
which show that such inconsistencies pertained to material points and not
merely to minor matters. Thus, during the preliminary investigation in Criminal
Case No. 92-13841, Macario admitted that on October 10, 1991, he and his
sister Pacita sold two rings and one bracelet to the petitioner for P25,000, while
in November 1991, he and Pacita sold a pair of earrings to the petitioner
for P25,000. On direct examination in the court a quo, Macario testified that he
and Pacita sold the earrings to the petitioner in May 1992, not in November
1991, and only for P18,000. On cross-examination, Macario testified that he
and his sister Pacita went to the petitioners shop in Meycauayan, Bulacan and
sold the subject jewelry on both occasions. On further cross-examination,
Macario changed his testimony anew, and declared that he sold the jewelry to
the petitioner for P18,000 and not P25,000; only to change his testimony again,
and declare that he sold the jewelry for P25,000. However, Macario testified
during the preliminary investigation in Criminal Case No. 92-13841 that when
he transacted with the petitioner for the second time, he was with a friend, and
not with his sister Pacita. On redirect examination, Macario declared that in
October 1991, he and Pacita sold four (4) pieces of jewelry, namely, two rings,
one bracelet and a pair of earrings, contrary to his testimony on direct
examination. He also testified that he and his sister sold the earrings in
November 1991. Because of the contradicting accounts made by Macario, the
court made the following observations:
Court
q According to you, you were nalilito but you gave the correct answer, you are
not nalilito here but you gave the wrong answer. Bakit ganoon, sabi mo nalilito ka
roon (sic) pero ang sagot mo pala tama. Dito hindi ka naman nalilito, bakit mali. Bakit
ka nalilito eh tama iyong P25,000.00. Hindi ka nalilito, mali ang sabi mo.
a Because I am scare[d] here thats why I gave the wrong answer.
q You better think about it.
a I was confused, Sir.[37]

The testimonies of Macario are even contrary to the averments of the

Information, that the petitioner received the said jewelry from Pacita.
 Assuming, for the nonce, that the petitioner purchased the said jewelry from
Macario, there is no evidence on record that the petitioner knew that they were
stolen. Significantly, even Macario did not know that the jewelry was stolen. He
testified that his sister Pacita told him before he sold the jewelry to the petitioner
that they belonged to a friend of hers.
Atty. Lerio
Q At that time you and your sister sold those jewels to Mang Erning did do you know
already [that] it was Mrs. Rodriguez who is the owner of those jewels?
A No, Sir, I do not know.
Q And who do you know was the owner of that jewels and that time you and your sister
sold those jewels to Mang Erning?
A According to my sister, it is (sic) owned by a friend of hers.
Court
Q How did you come to know of this Mang Erning?
A Only at that time when we brought the jewels.
Q But previous to that, do you know him?
A No.[38]

Macario learned, after the case against Pacita had already been filed in the
trial court, that the jewelry was, after all, owned by Jovita. However, he failed to
inform the petitioner that the said jewelry was stolen. Following is the testimony
of Macario:
Atty. Lerio
Q When you learned that those jewels were owned by Mrs. Rodriguez, did you, if at all,
informed (sic) Mang Erning about it?
Court
Q No basis, when did you come to know that the jewels belong to Mrs. Rodriguez?
A In 1992, when my sister already had a case.
Q What did you do when you come (sic) to know about that?
A I was not able to do anything but just to help my sister with her case and also to help
the case of Mrs. Rodriguez.
Atty. Lerio
Q After that, after knowing that these jewels are (sic) owned by Mrs. Rodriguez, was
there any occasion where you (sic) able to inform Mang Erning that those jewels
were owned by Mrs. Rodriguez?
A No more, I have no more time.[39]
 The prosecution cannot even validly argue that the petitioner should have
known which pieces of jewelry were stolen, considering that Macario was selling
the same for P50,000 when the said pieces stolen from Jovita were alleged to
be worth P655,000. This is so because the prosecution failed to adduce
sufficient competent evidence to prove the value of the said stolen articles. The
prosecution relied solely on the bare and uncorroborated testimony of Jovita,
that they were worth P655,000:
Atty. Lerio
Q Now, will you tell this Court some of those jewels which you own?
A I own several jewels and the one (sic) in question are: 1-pair of earrings, diamond
heart-shaped P400,000.00; 1-ring, heart-shaped diamond worth P100,000.00; 1-
bracelet, white gold full of stones, diamond worth P150,000.00; 1-diamond ring with
small stones worth P5,000.00. So, all in all, the jewelry is (sic) worth P665,000.00.[40]

When asked by the trial court to declare the present market value of the
stolen jewelry, Jovita merely declared:
Atty. Lerio
Q Now again, when did you acquire those jewels if you can still remember?
A I remember several years ago when my husband is (sic) alive.
Court
Q Please tell the court, [is] the market value of the jewels the same today?
A No, that is (sic) the market value several years ago.
Q So, can you explain [if] the market value, more or less, [is] the same today?
A No. The price, if we will appraise now, is much bigger.[41]
When required by the petitioner, through counsel, to bring to the court any
receipts reflecting the price of the pieces of jewelry to show that she purchased
the same, Jovita answered that she had no such receipts. Thus:
Court
Q You bought it from [a] private person?
A Yes, Your Honor.
Atty. Bernal
Q What then is your proof that you bought these jewelries (sic) from a private person?
Atty. Lerio
That was already answered, Your Honor. She said, no receipt.[42]
 In People v. Paraiso, we cited our ruling in People v. Marcos that an
[43] [44]

ordinary witness cannot establish the value of jewelry, nor may the courts take
judicial notice of the value of the same:

[A]nd as we have ruled in the case of People vs. Antonio Marcos, an ordinary witness
cannot establish the value of jewelry and the trial court can only take judicial notice of
the value of goods which are matters of public knowledge or are capable of
unquestionable demonstration. The value of jewelry is not a matter of public
knowledge nor is it capable of unquestionable demonstration and in the absence of
receipts or any other competent evidence besides the self-serving valuation made by
the prosecution, we cannot award the reparation for the stolen jewelry. [45]

It bears stressing that, in the absence of direct evidence that the accused
had knowledge that the jewelry was stolen, the prosecution is burdened to
prove facts and circumstances from which it can be concluded that the accused
should have known that the property sold to him were stolen. This requirement
serves two basic purposes: (a) to prove one of the elements of the crime of
fencing; and, (b) to enable the trial court to determine the imposable penalty for
the crime, since the penalty depends on the value of the property; otherwise,
the court will fix the value of the property at P5.00, conformably to our ruling
in People v. Dator: [46]

In the absence of a conclusive or definite proof relative to their value, this Court fixed
the value of the bag and its contents at P100.00 based on the attendant circumstances
of the case. More pertinently, in the case of People vs. Reyes, this Court held that if
there is no available evidence to prove the value of the stolen property or that the
prosecution failed to prove it, the corresponding penalty to be imposed on the
accused-appellant should be the minimum penalty corresponding to theft involving
the value of P5.00. [47]

IN VIEW OF ALL THE FOREGOING, the petition is GRANTED. The

Decision of the Court of Appeals in CA-G.R. CR No. 19110 affirming the
Decision of the Regional Trial Court of Malolos, Bulacan, Branch 22, is
REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of
violating P.D. No. 1612 for the prosecutions failure to prove his guilt beyond
reasonable doubt.
SO ORDERED.
RAMON C. TAN, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent. The case before the Court is an appeal via certiorari from a
decision of the Court of Appeals* affirming that of the Regional Trial Court of Manila, Branch
19,** convicting petitioner of the crime of fencing.
 Complainant Rosita Lim is the proprietor of Bueno Metal Industries, located at 301 Jose Abad
Santos St., Tondo, Manila, engaged in the business of manufacturing propellers or spare parts for
boats. Manuelito Mendez was one of the employees working for her. Sometime in February 1991,
Manuelito Mendez left the employ of the company. Complainant Lim noticed that some of the
welding rods, propellers and boat spare parts, such as bronze and stainless propellers and brass
screws were missing. She conducted an inventory and discovered that propellers and stocks valued
at P48,000.00, more or less, were missing. Complainant Rosita Lim informed Victor Sy, uncle of
Manuelito Mendez, of the loss. Subsequently, Manuelito Mendez was arrested in the Visayas and
he admitted that he and his companion Gaudencio Dayop stole from the complainants warehouse
some boat spare parts such as bronze and stainless propellers and brass screws. Manuelito Mendez
asked for complainants forgiveness. He pointed to petitioner Ramon C. Tan as the one who bought
the stolen items and who paid the amount of P13,000.00, in cash to Mendez and Dayop, and they
split the amount with one another. Complainant did not file a case against Manuelito Mendez and
Gaudencio Dayop.
On relation of complainant Lim, an Assistant City Prosecutor of Manila filed with the
Regional Trial Court, Manila, Branch 19, an information against petitioner charging him with
violation of Presidential Decree No. 1612 (Anti-Fencing Law) committed as follows:

That on or about the last week of February 1991, in the City of Manila, Philippines,
the said accused, did then and there wilfully, unlawfully and feloniously knowingly
receive, keep, acquire and possess several spare parts and items for fishing boats all
valued at P48,130.00 belonging to Rosita Lim, which he knew or should have known
to have been derived from the proceeds of the crime of theft.

Contrary to law.

Upon arraignment on November 23, 1992, petitioner Ramon C. Tan pleaded not guilty to the
crime charged and waived pre-trial. To prove the accusation, the prosecution presented the
testimonies of complainant Rosita Lim, Victor Sy and the confessed thief, Manuelito Mendez.
On the other hand, the defense presented Rosita Lim and Manuelito Mendez as hostile
witnesses and petitioner himself. The testimonies of the witnesses were summarized by the trial
court in its decision, as follows:

ROSITA LIM stated that she is the owner of Bueno Metal Industries, engaged in the
business of manufacturing propellers, bushings, welding rods, among others (Exhibits
A, A-1, and B). That sometime in February 1991, after one of her employees left the
company, she discovered that some of the manufactured spare parts were missing, so
that on February 19, 1991, an inventory was conducted and it was found that some
welding rods and propellers, among others, worth P48,000.00 were missing.
Thereafter, she went to Victor Sy, the person who recommended Mr. Mendez to her.
Subsequently, Mr. Mendez was arrested in the Visayas, and upon arrival in Manila,
admitted to his having stolen the missing spare parts sold then to Ramon Tan. She
then talked to Mr. Tan, who denied having bought the same.
When presented on rebuttal, she stated that some of their stocks were bought under
the name of Asia Pacific, the guarantor of their Industrial Welding Corporation, and
stated further that whether the stocks are bought under the name of the said
corporation or under the name of William Tan, her husband, all of these items were
actually delivered to the store at 3012-3014 Jose Abad Santos Street and all paid by
her husband.

That for about one (1) year, there existed a business relationship between her husband
and Mr. Tan. Mr. Tan used to buy from them stocks of propellers while they likewise
bought from the former brass woods, and that there is no reason whatsoever why she
has to frame up Mr. Tan.

MANUELITO MENDEZ stated that he worked as helper at Bueno Metal Industries

from November 1990 up to February 1991. That sometime in the third week of
February 1991, together with Gaudencio Dayop, his co-employee, they took from the
warehouse of Rosita Lim some boat spare parts, such as bronze and stainless
propellers, brass screws, etc. They delivered said stolen items to Ramon Tan, who
paid for them in cash in the amount of P13,000.00. After taking his share (one-half
(1/2) of the amount), he went home directly to the province. When he received a letter
from his uncle, Victor Sy, he decided to return to Manila. He was then accompanied
by his uncle to see Mrs. Lim, from whom he begged for forgiveness on April 8, 1991.
On April 12, 1991, he executed an affidavit prepared by a certain Perlas, a CIS
personnel, subscribed to before a Notary Public (Exhibits C and C-1).

VICTORY [sic] SY stated that he knows both Manuelito Mendez and Mrs. Rosita
Lim, the former being the nephew of his wife while the latter is his auntie. That
sometime in February 1991, his auntie called up and informed him about the spare
parts stolen from the warehouse by Manuelito Mendez. So that he sent his son to Cebu
and requested his kumpadre, a police officer of Sta. Catalina, Negros Occidental, to
arrest and bring Mendez back to Manila. When Mr. Mendez was brought to Manila,
together with Supt. Perlas of the WPDC, they fetched Mr. Mendez from the pier after
which they proceeded to the house of his auntie. Mr. Mendez admitted to him having
stolen the missing items and sold to Mr. Ramon Tan in Sta. Cruz, Manila. Again, he
brought Mr. Mendez to Sta. Cruz where he pointed to Mr. Tan as the buyer, but when
confronted, Mr. Tan denied the same.

ROSITA LIM, when called to testify as a hostile witness, narrated that she owns
Bueno Metal Industries located at 301 Jose Abad Santos Street, Tondo, Manila. That
two (2) days after Manuelito Mendez and Gaudencio Dayop left, her husband,
William Tan, conducted an inventory and discovered that some of the spare parts
worth P48,000.00 were missing. Some of the missing items were under the name of
Asia Pacific and William Tan.
MANUELITO MENDEZ, likewise, when called to testify as a hostile witness, stated
that he received a subpoena in the Visayas from the wife of Victor Sy, accompanied
by a policeman of Buliloan, Cebu on April 8, 1991. That he consented to come to
Manila to ask forgiveness from Rosita Lim. That in connection with this case, he
executed an affidavit on April 12, 1991, prepared by a certain Atty. Perlas, a CIS
personnel, and the contents thereof were explained to him by Rosita Lim before he
signed the same before Atty. Jose Tayo, a Notary Public, at Magnolia House,
Carriedo, Manila (Exhibits C and C-1).

That usually, it was the secretary of Mr. Tan who accepted the items delivered to
Ramon Hardware. Further, he stated that the stolen items from the warehouse were
placed in a sack and he talked to Mr. Tan first over the phone before he delivered the
spare parts. It was Mr. Tan himself who accepted the stolen items in the morning at
about 7:00 to 8:00 oclock and paid P13,000.00 for them.

RAMON TAN, the accused, in exculpation, stated that he is a businessman engaged

in selling hardware (marine spare parts) at 944 Espeleta Street, Sta. Cruz, Manila.

He denied having bought the stolen spare parts worth P48,000.00 for he never talked
nor met Manuelito Mendez, the confessed thief. That further the two (2) receipts
presented by Mrs. Lim are not under her name and the other two (2) are under the
name of William Tan, the husband, all in all amounting to P18,000.00. Besides, the
incident was not reported to the police (Exhibits 1 to 1-g).

He likewise denied having talked to Manuelito Mendez over the phone on the day of
the delivery of the stolen items and could not have accepted the said items personally
for everytime (sic) goods are delivered to his store, the same are being accepted by his
staff. It is not possible for him to be at his office at about 7:00 to 8:00 oclock in the
morning, because he usually reported to his office at 9:00 oclock. In connection with
this case, he executed a counter-affidavit (Exhibits 2 and 2-a).[1]

On August 5, 1996, the trial court rendered decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the accused RAMON C. TAN is hereby found

guilty beyond reasonable doubt of violating the Anti-Fencing Law of 1979, otherwise
known as Presidential Decree No. 1612, and sentences him to suffer the penalty of
imprisonment of SIX (6) YEARS and ONE (1) DAY to TEN (10) YEARS of prision
mayor and to indemnify Rosita Lim the value of the stolen merchandise purchased by
him in the sum of P18,000.00.

Costs against the accused.

SO ORDERED.

OCCUPATION OF REAL PROPERTY

CONCHITA QUINAO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES,

rep. by the OFFICE OF THE SOLICITOR GENERAL, and FRANCISCO
DEL MONTE, respondents.

The petition is bereft of merit.

Contrary to petitioners allegation, the decision rendered by the trial court

convicting her of the crime of usurpation of real property was not based on
"speculations, surmises and conjectures" but clearly on the evidence on
record and in accordance with the applicable law. Article 312 of Revised
Penal Code defines and penalizes the crime of usurpation of real property as
follows:

Art. 312. Occupation of real property or usurpation of real rights in

property. - Any person who, by means of violence against or
intimidation of persons, shall take possession of any real property
or shall usurp any real rights in property belonging to another, in
addition to the penalty incurred for the acts of violence executed
by him shall be punished by a fine from P50 to P100 per centum
of the gain which he shall have obtained, but not less than P75
pesos.

If the value of the gain cannot be ascertained, a fine from P200

to P500 pesos shall be imposed.

The requisites of usurpation are that the accused took possession of anothers
real property or usurped real rights in anothers property; that the possession
or usurpation was committed with violence or intimidation and that the
accused had animo lucrandi. In order to sustain a conviction for "usurpacion
de derecho reales," the proof must show that the real property occupied or
usurped belongs, not to the occupant or usurper, but to some third person,
and that the possession of the usurper was obtained by means of intimidation
or violence done to the person ousted of possession of the property. [5]

More explicitly, in Castrodes vs. Cubelo, the Court stated that the elements of
[6]

the offense are (1) occupation of anothers real property or usurpation of a real
right belonging to another person; (2) violence or intimidation should be
employed in possessing the real property or in usurping the real right, and (3)
the accused should be animated by the intent to gain. [7]

Thus, in order to absolve herself of any liability for the crime, petitioner insists
that the elements of the crime are not present in this case. Specifically, she
maintains that she owns the property involved herein. The matter on the
ownership of the lot in question, however, had long been settled when, in Civil
Case No. 3561 (ownership of real property) involving the predecessors-in-
interest of private complainant and that of accused Cases, the Court of First
Instance of Samar, Branch III, Thirteenth Judicial Region, adjudicated said lot
to private complainants predecessors-in-interest. [8]

Further, as established by the commissioner appointed by the trial court to

look into petitioners defense, i.e, she owns the lot subject of this criminal case,
the area being claimed by petitioner is the same area adjudicated in Civil
Case No. 3561. Deputy Sheriff A. Anacta, as commissioner, made the
following the report:

Taking the matter in relation to the order of the Honorable Court

dated February 1, 1994 which is the basis of this commission,
which merely directs the undersigned to find out if the area
claimed by by the accused encroached the area of the plaintiffs,
then, based from the above findings and the herein sketch, it is
indeed very clear that the area claimed by the accused
encroached the area of the plaintiffs. [9]

The foregoing findings of the commissioner was adopted by the trial court and
the latter subsequently convicted petitioner for the crime of usurpation of real
property. This findings of the commissioner was affirmed by the CA stating,
thus:

Based on the above findings and the sketch maps submitted, it is

clear that the disputed land which is the red shaded area (Exh. "B-
2") is within the boundary of the land awarded to the complainant
in Civil Case No. 3516 [should be 3561]. The issue of ownership
over the land in question having been decided in Civil Case No.
3516 [should be 3561] in favor of the complainant in 1949, the
same will not be disturbed. The accused has to respect the
findings of the court.[10]
We fully agree with the findings of both the trial court and the CA on the issue
of the ownership of the lot involved in this case. The evidence on record
sufficiently refuted petitioners claim of ownership.

The next issue that needs to be resolved is whether the other requisites of the
usurpation of real property are attendant in this case. These two (2) other
requisites are: the employment of violence in acquiring possession over the
real property or in usurping the real right and accused was animated by intent
to gain. On this point, the trial court and the CA ruled in the affirmative citing
[11]

the testimony of prosecution witness Bienvenido Delmonte as follows:

x x x Complainants witness Bienvenido Delmonte declared that on

February 2, 1993 at around 9 oclock in the morning while he was
busy working in the agricultural land which he owns in common
with complainant Francisco Delmonte, accused Salvador Cases
and Conchita Quinao, together with their other close relatives
suddenly appeared and while there, with the use of force, violence
and intimidation, usurped and took possession of their
landholding, claiming that the same is their inheritance from their
ascendants and while there, accused immediately gathered
coconuts and made them into copra. Complainant was forcibly
driven out by the accused from their landholding and was
threatened that if he will try to return to the land in question,
something will happen to him. Complainant was thus forced to
seek assistance from the Lapinig Philippine National Police.[12]

It is well settled that "factual findings of the CA are conclusive on the parties
and carry even more weight when the said court affirms the factual findings of
the trial court." Petitioner failed to give any cogent reason for this Court to
[13]

deviate from this salutary principle.

Finally, the fact that the judge who tried the case was different from the judge
who penned the decision does not in any way taint the same. Indeed, "the
efficacy of a decision is not necessarily impaired by the fact that its writer only
took over from a colleague who had earlier presided at the trial, unless there
is showing of grave abuse of discretion in the factual findings reached by
him." There is no such showing in this case.
[14]

WHEREFORE, premises considered, the Petition is hereby DENIED for lack

of merit. The decision of the Court of Appeals in CA-G.R. CR No. 19412 is
affirmed in toto.
ESTAFA
CHERRY ANN M. BENABAYE, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

The Court's Ruling

The petition is meritorious.

Article 315, paragraph 1 (b) of the RPC, as amended, under which Benabaye was charged and prosecuted,
states: chanRoblesvi rtua lLawl ibrary

Art. 315. Swindling (estafa). - Any person who shall defraud another by any means mentioned herein below
shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the
amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; and if such amount exceeds the
latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year
for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years.
In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of
the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case
may be[.]
x x x x

1. With unfaithfulness or abuse of confidence, namely:

x x x x

(b) By misappropriating or converting, to the prejudice of another, money, goods or any other personal
property received by the offender in trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or to return the same, even though such obligation be totally
or partially guaranteed by a bond; or by denying having received such money, goods, or other property[.]
cralawlawl ibra ry

The elements of Estafa under this provision are: (a) the offender's receipt of money, goods, or other
personal property in trust, or on commission, or for administration, or under any other obligation involving
the duty to deliver, or to return, the same; (b) misappropriation or conversion by the offender of the money
or property received, or denial of receipt of the money or property; (c) the misappropriation, conversion or
denial is to the prejudice of another; and (d) demand by the offended party that the offender return the
money or property received.40 cralawred

Under the first element, when the money, goods, or any other personal property is received by the offender
from the offended party (1) in trust or (2) on commission or (3) for administration, the offender acquires
both material or physical possession and juridical possession of the thing received. Juridical possession
means a possession which gives the transferee a right over the thing which the transferee may
set up even against the owner.41 cralawred

It bears to stress that a sum of money received by an employee on behalf of an employer is

considered to be only in the material possession of the employee.42 The material possession of an
employee is adjunct, by reason of his employment, to a recognition of the juridical possession of the
employer. So long as the juridical possession of the thing appropriated did not pass to the employee-
perpetrator, the offense committed remains to be theft, qualified or otherwise.43 Hence, conversion of
personal property in the case of an employee having mere material possession of the said
property constitutes theft, whereas in the case of an agent to whom both material and juridical
possession have been transferred, misappropriation of the same property constitutes Estafa.44 cralawred

In this case, Benabaye maintains that the first element of Estafa through misappropriation has not been
established, insisting that her possession of the collected loan payments was merely material and not
juridical; therefore, she cannot be convicted of the said crime.45 cralawred

The Court agrees.

Records show that Benabaye was merely a collector of loan payments from Siam Bank's clients. At the end
of every banking day, she was required to remit all cash payments received together with the corresponding
cash transfer slips to her supervisor, Tupag.46 As such, the money merely passes into her hands and she
takes custody thereof only for the duration of the banking day. Hence, as an employeeof Siam Bank,
specifically, its temporary cash custodian whose tasks are akin to a bank teller,47she had no juridical
possession over the missing funds but only their physical or material possession.

In Chua-Burce v. CA,48 the Court acquitted therein petitioner Cristeta Chua-Burce (Chua-Burce) of Estafaon
the ground that the element of juridical possession was absent. As a bank cash custodian, the Court ruled
that she had no juridical possession over the missing funds. Relative thereto, in Guzman v. CA,49where a
travelling sales agent was convicted of the crime of Estafa for his failure to return to his principal the
proceeds of the goods he was commissioned to sell, the Court had occasion to explain the distinction
between the possession of a bank teller and an agent for purposes of determining criminal liability
for Estafa, viz.:
chanRoblesv irt ual Lawlib rary

There is an essential distinction between the possession of a receiving teller of funds received from third
persons paid to the bank, and an agent who receives the proceeds of sales of merchandise delivered to him
in agency by his principal. In the former case, payment by third persons to the teller is payment to the
bank itself; the teller is a mere custodian or keeper of the funds received, and has no independent
right or title to retain or possess the same as against the bank. An agent, on the other hand, can even
assert, as against his own principal, an independent, autonomous, right to retain the money or goods received
in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and
indemnify him for damages suffered without his fault.50 (Emphasis supplied; citations omitted) cra lawlawlib rary

Thus, being a mere custodian of the missing funds and not, in any manner, an agent who could have
asserted a right against Siam Bank over the same, Benabaye had only acquired material and not juridical
possession of such funds and consequently, cannot be convicted of the crime of Estafa as charged. In fine,
the dismissal of the Estafa charge against Benabaye should come as a matter of course, without prejudice,
however, to the filing of the appropriate criminal charge against her as may be warranted under the
circumstances of this case.

Separately, in light of the foregoing, Benabaye's supervisor and co-accused in this case, Tupag, who likewise
was not appointed as an agent of Siam Bank and thus had no juridical possession of the subject sums, must
also be discharged of the same Estafa charge in view of Section 11 (a), Rule 122 of the Revised Rules of
Criminal Procedure, as amended, which states: chanRoblesvi rtua lLawl ibra ry

SEC. 11. Effect of appeal by any of several accused.—

(a) An appeal taken by one or more of several accused shall not affect those who did not appeal, except
insofar as the judgment of the appellate court is favorable and applicable to the latter. cralawlawl ibra ry

While it is true that only Benabaye was able to successfully perfect her appeal, the rule is that an appeal in a
criminal proceeding throws the whole case open for review of all its aspects, including those not raised by
the parties.51 Considering that under Section 11 (a), Rule 122 of the Revised Rules of Criminal Procedure as
above-quoted, a favorable judgment, as in this case, shall benefit the co-accused who did not appeal or
those who appealed from their judgments of conviction but for one reason or another, the conviction
became final and executory,52 Benabaye's discharge for the crime of Estafa is likewise applicable to Tupag.
Note that the dismissal of the Estafa charge against Tupag is similarly without prejudice to the filing of the
appropriate criminal charge against him as may be warranted under the circumstances pertinent to him.

WHEREFORE, the petition is GRANTED. The Decision dated August 31, 2011 and the Resolution dated
September 6, 2012 of the Court of Appeals in CA-G.R. CR No. 00722-MIN are hereby REVERSED and SET
ASIDE. The criminal charges against petitioner Cherry Ann M. Benabaye and her co-accused, Jenkin U.
Tupag, in Crim. Case No. 9344, are DISMISSED without prejudice.

SO ORDERED. cralawlawlibra ry

ANDRE L. D AIGLE, G.R. No. 174181

Petitioner,
Present:

CARPIO,
LEONARDO-DE CASTRO,
-versus- Acting Chairperson,
DEL CASTILLO,
VILLARAMA, JR., and
PERLAS-BERNABE, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent.

Our Ruling

After a circumspect consideration of the arguments earnestly pressed by the petitioner vis-
-vis that of the respondent People of the Philippines (respondent), and in the light of the
practically parallel finding of facts and conclusions of the courts below, this Court finds
the instant petition partly meritorious.

Concerning the first assigned error, the Court finds no cogent reason to sustain petitioners
claim that the appellate court erred in denying his Motion for Reconsideration without valid
reason or justification. The reason for the appellate courts denial of petitioners Motion for
Reconsideration is clear and simple, that is, after it made a thorough evaluation of the issues
and arguments proffered in the said motion, the CA found that same were already passed
upon and duly considered in its assailed Decision. This is very plain from the contents of
the August 17, 2006 Resolution of the CA denying petitioners Motion for
Reconsideration. Undoubtedly, petitioners motion for reconsideration was denied due to a
valid reason and justifiable cause.
Petitioner also bemoans the fact that the dispositive portion of the trial courts Decision did
not expressly mention that he was found guilty beyond reasonable doubt of the crime
charged. Suffice it to say, however, that a judgment is not rendered defective just because
of the absence of a declaration of guilt beyond reasonable doubt in the dispositive
portion. The ratio decidendiof the RTC Decision extensively discussed the guilt of the
petitioner and no scintilla of doubt against the same was entertained by the courts
below. Indeed, petitioners guilt was duly proven by evidence of the prosecution. In any
event, a judgment of conviction, pursuant to Section 2, Rule 120 of the Rules of Court, is
sufficient if it states: 1) the legal qualification of the offense constituted by the acts
committed by the accused and the aggravating or mitigating circumstances which attended
its commission; 2) the participation of the accused in the offense, whether as principal,
accomplice or accessory; 3) the penalty imposed upon the accused; and 4) the civil liability
or damages caused by his wrongful act or omission to be recovered from the accused by
the offended party, if there is any, unless the enforcement of the civil liability by a separate
civil action has been reserved or waived. We find that all of these are sufficiently stated in
the trial courts Decision.

Anent the second assigned error, petitioner posits that the CA erred in affirming the
said RTC Decision and in modifying the penalty imposed upon him since the prosecution
failed to establish beyond reasonable doubt all the elements of estafa. He argues that Article
315, paragraph 1(b) of the RPC requires that the person charged was given juridical
possession of the thing misappropriated. Here, he did not acquire juridical possession of
the things allegedly misappropriated because his relation to SPIs properties was only by
virtue of his official functions as a corporate officer. It is actually SPI, on whose behalf he
has acted, that has the juridical possession of the said properties.

Respondent, through the Office of the Solicitor General, on the other hand counters that
the prosecutions evidence has fully established all the elements of the crime charged. Based
on SPIs records, petitioner received from it various equipment of SPI on several occasions
for the sole purpose of manufacturing underwires for brassieres. However after the conduct
of an audit in December 1996, petitioner failed to properly account therefor.

Petitioners arguments fail to persuade.

Entrenched in jurisprudence are the following essential elements of Estafa under Article
315, paragraph 1(b) of the RPC:
 1. That money, goods or other personal properties are received by the
offender in trust or on commission, or for administration, or under any other
obligation involving the duty to make delivery of or to return, the same;

2. That there is a misappropriation or conversion of such money or property

by the offender or denial on his part of such receipt;

3. That such misappropriation or conversion or denial is to the prejudice of

another; and

4. That there is a demand made by the offended party on the offender.[23]

All these elements have been sufficiently established by the prosecution.

Petitioner asserts that as majority stockholder of TAC, he entered into a business

transaction with SPI wherein it would fabricate bending machines and spare parts for the
latter. Under their agreement, SPI would provide the necessary components to be used in
the fabrication as well as the electronic devices while work would be done at petitioners
premises. Pursuant to this, petitioner admitted to having received from SPI an electronic
transformer, electronic box and a computer box.[24] When petitioner, however, was not able
to finish the work allegedly due to his dismissal from SPI, the latter demanded for the return
of its properties. However, petitioner did not heed the demand and simply kept the
properties as lien for his claims against SPI.[25]

From petitioners own assertions, the existence of the first and fourth of the aforementioned
elements is very clear. SPIs properties were received by the petitioner in trust. He received
them for a particular purpose, that is, for the fabrication of bending machines and spare
parts for SPI. And when SPI made a demand for their return after petitioners alleged
dismissal therefrom, petitioner deliberately ignored the same.

The Court cannot agree with petitioners postulation that he did not acquire juridical
possession of SPIs properties since his relation with the same was only by virtue of his
official function as SPIs corporate officer. As borne out by the records, the equipment
subject matter of this case were received in trust by petitioner from SPI to be utilized in the
fabrication of bending machines. Petitioner was given absolute option on how to use them
without any participation on the part of SPI. Thus, petitioner acquired not only physical
possession but also juridical possession over the equipment. As the Court held in Chua-
Burce v. Court of Appeals:[26]

When the money, goods or any other personal property is received by the
offender from the offended party (1) in trust or (2) on commission or (3)
for administration, the offender acquires both material or physical possession
and juridical possession of the thing received. Juridical possession means a
possession which gives the transferee a right over the thing which the transferee
may set up even against the owner. x x x

With regard to the element of misappropriation or conversion, the prosecution was able to
prove this through circumstantial evidence. Misappropriation or conversion may be proved
by the prosecution by direct evidence or by circumstantial evidence.[27] The failure to
account upon demand, for funds or property held in trust, is circumstantial evidence of
misappropriation.[28]As mentioned, petitioner failed to account for, upon demand, the
properties of SPI which were received by him in trust. This already constitutes
circumstantial evidence of misappropriation or conversion of said properties to petitioners
own personal use. Even if petitioner merely retained the properties for the purpose of
preserving his right of lien over them, same is immaterial because, to reiterate, failure to
return upon demand the properties which one has the duty to return is tantamount to
appropriating the same for his own personal use. As correctly noted by the CA:

We are not impressed by appellants excuse. We note that SPIs demand

for the return of the properties subject of this case was made on January 14,
1997. At that time, appellant was no longer the managing director of SPI, he
having been terminated from his position on November 19, 1996. This
observation, coupled with SPIs demand for the return of its equipment and
materials, show that appellant had lost his right to retain the said properties and
the fact that he failed to return or at least account for them raises the
presumption of misappropriation and conversion. x x x[29]

Lastly, it is obvious that petitioners failure to return SPIs properties valued at P191,665.35
caused damage and prejudice to the latter.
 In a last ditch effort to evade liability, petitioner claims that the controversy between
him and SPI is an intra-corporate controversy considering that he was a stockholder of the
latter.Such being the case, he avers that his conviction for estafa has no basis.
Contrary, however to petitioners stance, by no stretch of imagination can the Court
consider the controversy between him and SPI as an intra-corporate controversy. As
correctly pointed out by the CA:

Finally, we find no cogent basis, in law and in fact, which would support
appellants allegation that the acts complained of in this case were corporate acts.
His allegation without more that he had an agreement with Mr. Bernie Kelly of
SPI to the effect that his (appellants) share in SPI would be increased to 40% in
exchange for two bending machines does not give his act of retaining the
properties a semblance of a corporate act. There is also no evidence that he acted
on behalf of TAC Manufacturing Corporation, much less of SPI. Premises
considered, we do not agree that appellants actuation should be considered as a
corporate act, for which he claims he could not be held personally liable. x x x[30]

Regarding the credibility of prosecution witnesses, the RTC found said witnesses to
be credible and therefore their testimonies deserve full faith and credence. The CA for its
part, did not disturb the trial courts appreciation of the same. It is a well-entrenched doctrine
that factual findings of the trial court, especially when affirmed by the appellate court, are
accorded the highest degree of respect and are considered conclusive between the
parties.[31] Though jurisprudence recognizes highly meritorious exceptions, none of them
obtain herein which would warrant a reversal of the challenged Decision. Thus, the Court
accords deference to the trial courts appreciation of said testimonies. Accordingly, the
RTCs finding of petitioners guilt, as affirmed by the CA, is sustained.

The proper imposable penalty

The penalty in estafa cases as provided under paragraph 1, Article 315 of the RPC is prision
correccional in its maximum period to prision mayor in its minimum period if the amount
of the fraud is over P12,000.00 but does not exceed P22,000.00. If the amount involved
exceeds the latter sum, the same paragraph provides the imposition of the penalty in its
maximum period with an incremental penalty of one year imprisonment for
every P10,000.00 but in no case shall the total penalty exceed twenty (20) years
imprisonment.
In the present case, petitioner poses no serious challenge to the amount involved which
is P191,665.35. Since said amount is in excess of P22,000.00, the penalty imposable
should be within the maximum term of six (6) years, eight (8) months and twenty-one (21)
days to eight (8) years of prision mayor.[32] [A] period of one (1) year shall be added to the
penalty for every additional P10,000.00 defrauded in excess of P22,000.00, but in no case
shall the total penalty which may be imposed exceed twenty (20) years.[33] Hence, sixteen
(16) years must be added to the maximum term of the penalty of prision mayor. And since
same exceeds twenty (20) years, the maximum term should be pegged at twenty (20) years
of reclusion temporal. Applying now the Indeterminate Sentence Law, the penalty next
lower than that prescribed by law which is prision correccional in its maximum to prision
mayor in its minimum is prision correccionalin its minimum to medium periods. Thus, the
minimum term of the indeterminate sentence should be anywhere from six (6) months and
one (1) day to four (4) years and two (2) months x x x.[34]

Prescinding from the foregoing discussion, the Court finds that the CA correctly pegged
the penalty in its maximum term of twenty (20) years of reclusion temporal but erred in
imposing the minimum term of six (6) years and one (1) day of prision mayor as same is
beyond the lawful range. Thus, the Court sets the minimum term of the indeterminate
penalty at four (4) years and two (2) months of prision correccional. Accordingly,
petitioner is hereby sentenced to suffer the indeterminate penalty of four (4) years and two
(2) months of prision correccional as minimum to twenty (20) years of reclusion
temporal as maximum.
WHEREFORE, the petition is DENIED. The Decision and Resolution of the Court of
Appeals in CA-G.R. CR No. 25830 dated March 31, 2006 and August 17, 2006,
respectively, are hereby AFFIRMED with the MODIFICATION that petitioner is
sentenced to suffer an indeterminate penalty of imprisonment of four (4) years and two (2)
months of prision correccional as minimum to twenty (20) years of reclusion temporal as
maximum.

SO ORDERED.
ROLAND V. VELOSO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

Challenged in this Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, are the Decision1 dated March 2, 2001 and Resolution2 dated August 10, 2001 of the Court of
Appeals in CA G.R. SP No. 59239.

Shangri-la Finest Chinese Cuisine, at No. 4 Times Street, West Triangle, Quezon City, is a restaurant owned
and operated by the Developers Group of Companies, Inc. Ramon Sy Hunliong (Ramon) was its president
and general manager. Roland Veloso, petitioner, claiming to be a consultant of then Congressman Antonio
V. Cuenco, was an occasional guest at the restaurant.

Before the May 1995 elections, petitioner and then Congressman Cuenco, while at the said restaurant
having dinner, had a conversation with Ramon. This led to a friendly bet between petitioner and Ramon on
whether or not Ferdinand Marcos, Jr. would win as a Senator. Ramon assured that Marcos, Jr. is a sure
winner, but petitioner claimed otherwise. They both agreed that the loser will host a dinner for ten (10)
persons. After the elections, official results showed that Marcos, Jr. lost in his senatorial bid. Hence,
petitioner won in the bet.

On August 22, 1995, Congressman Cuenco's secretary called Eva Anne Nanette Sto. Domingo (Eva), the
restaurant's assistant dining manager, to reserve a dinner for one table corresponding to ten persons on
behalf of petitioner. Ramon, the loser, informed Eva that he would pay for one table, his commitment to
petitioner.

However, when petitioner arrived at the restaurant on August 23, 1995, he asked that four (4) additional
tables be set, promising he would pay for the same. Hence, Eva had four additional tables prepared in
addition to the one under Ramon's account. The Sales Invoice for the additional four tables amounted
to P11,391.00.

When the Sales Invoice was presented to petitioner, he refused to pay, explaining he was a guest of Ramon.
Due to petitioner's stubborn refusal to pay, Eva asked him where she should send the bill. Petitioner
instructed her to send it to Congressman Cuenco's office as he was always present there. It turned out,
however, that he was no longer reporting at that office. Hence, the bill was sent to his address at 63 Benefit
Street, GSIS Village, Quezon City, but still, he refused to pay.

The lawyer for the restaurant sent a demand letter to petitioner, but to no avail.

Consequently, petitioner was charged with estafa before the Metropolitan Trial Court (MeTC), Branch 31,
Quezon City. The Information reads:

That on or about the 23rd day of August, 1995, in Quezon City, Philippines, the above-named accused, by
means of deceit, false pretenses and/or fraudulent acts executed prior to or simultaneously with the
commission of the fraud, did then and there, willfully, unlawfully and feloniously defraud the SHANGRI-LA
RESTAURANT, located at No. 4 Times Street, West Triangle, this City, represented by Eva Anne Nanette Sto.
Domingo, in the following manner, to wit: on the date and in the place aforementioned, said accused,
pretending that he has the money to pay, ordered that five (5) tables be prepared for his guests with the
total costs of P11,391.00, Philippine currency, but said accused and his guests after consuming the foods,
with intent to defraud, refused to pay for the bills despite demand, to the damage and prejudice of the said
offended party.

After trial on the merits, the MeTC rendered a Decision dated July 6, 1999 finding petitioner guilty of the
crime charged and imposing upon him the corresponding penalty, thus:

WHEREFORE, judgment is hereby rendered finding accused Roland V. Veloso guilty beyond reasonable doubt
of the crime of estafa, as defined and penalized in Article 315, paragraph 2nd, sub-paragraph 2 - (e), of the
Revised Penal Code, and, in default of any modifying circumstance in attendance, hereby sentences him to
an indeterminate penalty ranging from Four (4) Months of Arresto Mayor as minimum, to One (1) Year and
Eight (8) Months and Twenty-One (21) Days of Prision Correccional as maximum, with the accessories
provided by law; to indemnify the offended party, Developers Group of Companies, Inc., owner and operator
of the Shangri-La Finest Chinese Cuisine Restaurant, in the amounts of P11,391.00, with interests thereon
at the legal rate per annum from August 23, 1995 until fully paid, and P10,000.00, as and for attorney's
fees and expenses of litigation; and to pay the costs."

SO ORDERED.3

On appeal by petitioner, the Regional Trial Court (RTC), Branch 218, Quezon City, in its Decision dated April
7, 2000, affirmed the MeTC judgment, holding that all the issues being raised by petitioner have been
thoroughly considered and passed upon by the MeTC. His motion for reconsideration was likewise denied by
the RTC.

Petitioner then filed with the Court of Appeals a Petition for Review . On March 2, 2001, the appellate court
rendered its Decision affirming the judgment of the RTC, ratiocinating as follows:

x x x To quote the trial court, "having observed the demeanor of the witnesses who paraded before the
Court, we are of the considered view that, between the affirmations of the witness for the prosecution and
the denials of the accused, the choice is not difficult to make" - and gave credence to the prosecution's
evidence. The RTC sustained the MTC's assessment, and so must We. The credibility of witnesses is a matter
best assessed by the trial court because of its unique opportunity to observe the witnesses firsthand and to
note their demeanor, conduct and attitude.

The inconsistencies and contradictions cited by petitioner in the testimony of Sto. Domingo are on minor
details which do not impair her trustworthiness. If any, they indicate that she is not a tutored witness.
Truthful witnesses are seldom perfect witnesses.

Petitioner's argument that he was not prevented from leaving the Shangrila Restaurant even after he
refused to pay the bill for four tables, does not serve him any. Compelling him to stay because of his failure
to pay for his food would have exposed the person enforcing it to possible criminal charge of coercion. The
victim would then become the villain.

xxx

In sum, as aptly defined by the MTC and RTC - the issue boils down to credibility. The case law is that the
assessment of the trial court on this matter is entitled great weight and persuasion and at times conclusive
to the appellate courts.

The sole issue for our resolution is whether the Court of Appeals erred in affirming the RTC Decision finding
petitioner guilty of estafa under Article 315 (2)(e) of the Revised Penal Code.

The issue involves the correctness of the MeTC's findings of fact, which findings were affirmed by both the
RTC and the Court of Appeals.

An appeal in a criminal case throws the whole case open for review and it becomes the duty of this Court to
correct any error in the appealed judgment whether or not it is an assigned error.4

Appellant insists that he is only civilly liable for an unpaid debt.

We reviewed the records very closely and found that petitioner and his guests, occupying four tables, ate
the food he ordered. When asked to pay, he refused and insisted he was a mere guest of Ramon. It bears
emphasis that the understanding between petitioner and Ramon was that the latter would pay for only one
table.

We agree with the Solicitor General in his brief for the People that petitioner employed fraud in ordering four
additional tables, partaking of the food ordered and then illegally refusing to pay, which makes him liable for
estafa under Article 315 (2)(e) of the Revised Penal Code.5

After a careful review of the records of the case, we found no reversible error in the assailed Decision of the
Court of Appeals. The Court thus adopts its findings of fact and conclusion of law.

WHEREFORE, we DENY the petition. The assailed Decision and Resolution of the Court of Appeals in CA
G.R. SP No. 59239 finding petitioner Roland V. Veloso guilty beyond reasonable doubt of the crime of estafa
are AFFIRMED. Costs against petitioner.

SO ORDERED.
JOY LEE RECUERDO, G.R. No. 168217
Petitioner,
Present

PANGANIBAN, C.J., Chairperson,

YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ, CALLEJO, SR., and
CHICO-NAZARIO, JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
The petition is denied for lack of merit.

Estafa through false pretense or fraudulent act under Paragraph 2(d) of Article 315
of the Revised Penal Code, as amended by Republic Act No. 4885, is committed as
follows:

By postdating a check, or issuing a check in payment of an obligation when the

offender had no funds in the bank, or his funds deposited therein were not sufficient
to cover the amount of the check. The failure of the drawer of the check to deposit
the amount necessary to cover his check within three (3) days from receipt of
notice from the bank and/or the payee or holder that said check has been dishonored
for lack or insufficiency of funds shall be prima facie evidence of
deceit constituting false pretense or fraudulent act.

The essential elements of the felony are: (1) a check is postdated or issued in
payment of an obligation contracted at the time it is issued; (2) lack or insufficiency
of funds to cover the check; and (3) damage to the payee thereof.[10] It is criminal
fraud or deceit in the issuance of a check which is made punishable under the
Revised Penal Code, and not the non-payment of a debt.[11] Deceit is the false
representation of a matter of fact whether by words or conduct by false or misleading
allegations or by concealment of that which should have been disclosed which
deceives or is intended to deceive another so that he shall act upon it to his legal
injury.[12] Concealment which the law denotes as fraudulent implies a purpose or
design to hide facts which the other party ought to have.[13] The postdating or issuing
of a check in payment of an obligation when the offender had no funds in the bank
or his funds deposited therein are not sufficient to cover the amount of the check is
a false pretense or a fraudulent act.[14]

There is no false pretense or fraudulent act if a postdated check is issued in

payment of a pre-existing obligation.[15] As the Court emphasized in Timbal v. Court
of Appeals:[16]
 x x x In order to constitute Estafa under the statutory provisions, the act of
postdating or of issuing a check in payment of an obligation must be the efficient
cause of the defraudation; accordingly, it should be either prior to or simultaneous
with the act of fraud. In fine, the offender must be able to obtain money or property
from the offended party by reason of the issuance, whether postdated or not, of the
check. It must be shown that the person to whom the check is delivered would not
have parted with his money or property were it not for the issuance of the check by
the other party.

Estafa is a felony committed by dolo (with malice). For one to be criminally

liable for estafa under paragraph (2)(d) of Article 315 of the Revised Penal Code,
malice and specific intent to defraud are required.

General criminal intent is an element of all crimes but malice is properly

applied only to deliberate acts done on purpose and with design. Evil intent must
unite with an unlawful act for there to be a felony. A deliberate and unlawful act
gives rise to a presumption of malice by intent. On the other hand, specific intent is
a definite and actual purpose to accomplish some particular thing.
The general criminal intent is presumed from the criminal act and in the
absence of any general intent is relied upon as a defense, such absence must be
proved by the accused. Generally, a specific intent is not presumed. Its existence, as
a matter of fact, must be proved by the State just as any other essential element. This
may be shown, however, by the nature of the act, the circumstances under which it
was committed, the means employed and the motive of the accused.[17]

The law provides that, in estafa, prima facie evidence of deceit is established
upon proof that the drawer of the check failed to deposit the amount necessary to
cover his check within three (3) days from receipt of the notice of dishonor for lack
or insufficiency of funds. A prima facie evidence need not be rebutted by a
preponderance of evidence, nor by evidence of greater weight. The evidence of the
accused which equalizes the weight of the Peoples evidence or puts the case in
equipoise is sufficient. As a result, the People will have to go forward with the
proof. Should it happen that, at the trial the weight of evidence is equally balanced
or at equilibrium and the presumption operates against the People who has the
burden of proof, it cannot prevail.[18]

There can be no estafa if the accused acted in good faith because good faith
negates malice and deceit.[19] Good faith is an intangible and abstract quality with no
technical meaning or statutory definition, and it encompasses, among other things,
an honest belief, the absence of malice and the absence of design to defraud or to
seek an unconscionable advantage. An individuals personal good faith is a concept
of his own mind, therefore, may not conclusively be determined by his protestations
alone. It implies honesty of intention and freedom from knowledge of circumstances
which ought to put the holder upon inquiry. The essence of good faith lies in an
honest belief in the validity of ones right, ignorance of a superior claim, and absence
of intention to overreach another.[20] In People v. Gulion,[21] the Court held that:

Good faith is a defense to a charge of Estafa by postdating a check. This may be

manifested by the accuseds offering to make arrangements with his creditor as to
the manner of payment or, as in the present case, averring that his placing his
signature on the questioned checks was purely a result of his gullibility and
inadvertence, with the unfortunate result that he himself became a victim of the
trickery and manipulations of accused-at-large.[22]

In the present case, the prosecution adduced proof beyond reasonable doubt of the
guilt of the petitioner of the crime charged. The trial court gave credence and
probative weight to the evidence of the People and disbelieved that proferred by the
petitioner.

Petitioners insistence of her good faith and her reliance on the ruling of this
Court in the Ojeda case were raised as a mere afterthought in a last ditch effort to
secure her acquittal, as these arguments were invoked only in her motion for
reconsideration of the CA decision. In Pascual v. Ramos,[23] this Court held that if
an issue is raised only in the motion for reconsideration of the appellate courts
decision, it is as if it was never raised in that court at all.

Petitioners defense of good faith is even belied by the evidence of the prosecution
and her own evidence. When the postdated checks issued by petitioner were
dishonored by the drawee banks and the private complainant made demands for her
to pay the amounts of the checks, she intransigently refused to pay; she insisted that
she issued and delivered the postdated checks to the private complainant after the
subject pieces of jewelry had
been delivered to her. Petitioner never offered to pay the amounts of the checks after
she was informed by the private complainant that they had been dishonored by the
drawee banks, the private complainant thus charged her with estafa before the
RTC. It was only during the period of January 4, 2005 to June 27, 2005, after the
CA promulgated its decision affirming the decision of the trial court, that petitioner
made several payments to the private complainant. While petitioner appended the
deposit slips[24] to her motion for reconsideration in the CA and her petition in this
Court, there is no showing as to which checks they were made in payment for. In
fine, it was the spectre of a long prison term which jolted petitioner into making
remittances to the private complainant, after the CA affirmed the decision of the trial
court and increased the penalty meted on her, and not because she had acted in good
faith in her transactions with the private complainant. To reiterate, petitioner rejected
the demands of the private complainant to pay the amounts of the dishonored checks.

While it is true that nine of the 17 postdated checks petitioner issued and
delivered to the private complainant were honored by the drawee banks, such a
circumstance is not a justification for her acquittal of the charges relative to the
dishonored checks. The reimbursement or restitution to the offended party of the
sums swindled by the petitioner does not extinguish the criminal liability of the
latter. It only extinguishes pro tanto the civil liability.[25] Moreover, estafa is a public
offense which must be prosecuted and punished by the State on its own motion even
though complete reparation had been made for the loss or damage suffered by the
offended party.[26] The consent of the private complainant to petitioners payment of
her civil liability pendente lite does not entitle the latter to an acquittal. Subsequent
payments does not obliterate the criminal liability already incurred.[27] Criminal
liability for estafa is not affected by a compromise between petitioner and the private
complainant on the formers civil liability.[28]

Petitioner cannot find solace in the Courts ruling in the Ojeda case. The CA
correctly refuted the submission of the petitioner in its decision, thus:

This Court is in full agreement with the position advanced by the Office of
the Solicitor General that on account of the glaring dissimilarities between the
factual backdrop of the case of Ojeda, on one hand, and the material facts obtaining
in the case at bench, on the other, the doctrine in the former case may not be applied
to benefit accused-appellant. Indeed, even accused-appellant herself was quick to
admit that the facts of her case are not entirely on all fours with those that obtained
in the case of Ojeda. At the outset, emphasis must be made of the fact that the
acquittal of the accused in the Ojeda case was brought about by a combination of
reasons not obtaining in the present case. First, the Supreme Court ruled out the
existence of deceit and intent to defraud in the case of Ojeda in view of the fact that
the accused therein performed extraordinary efforts to gradually pay and settle her
monetary obligations with the private complainant, and this convinced the High
Court that the acts of the accused were not tainted with malice, bad faith and
criminal intent. Verily, the accused in the Ojeda case not only made determined
and honest arrangements to pay the private complainant, but was likewise able to
actually satisfy with completeness the sums she owed the latter, and this was
evidenced by an affidavit of desistance where the private complainant categorically
declared that the accused already paid in full her monetary obligations. The facts in
the instant case, however, are totally different. Contrary to the contention of
accused-appellant, she never made a determined and earnest effort to arrange and
settle with Floro with the end in view of paying her monetary obligations. In truth,
 accused-appellant simply promised to pay Floro the value of the dishonored checks
that were issued in payment for the pieces of jewelry. However, that was all there
was to it, and lamentably said promise turned out to be an empty one as accused-
appellant never made good her commitment to pay for the value of the dishonored
checks. Accused-appellant never arranged a payment scheme with Floro, and as the
facts of the case would disclose she never made any gradual payment to Floro as
shown by the fact that the value of the dishonored checks remained unpaid, in direct
contrast with the facts of the Ojeda case where the accused was able to pay in
full. Suffice it to say that accused-appellant failed to perform any concrete act to
show that she had the intention of paying Floro for the value of the purchased pieces
of jewelry, in order to somehow rebut the fact duly established by the prosecution
that deceit attended her business dealings with Floro. It must be reiterated that We
have found that accused-appellant issued the subject bank checks as payment for
the pieces of jewelry simultaneous with her transactions with Floro, and that was,
on the very same occasion when the pieces of jewelry were purchased, first, on the
second week of December 1993, and subsequently, on February 7,
1994. It being clear that the subject bank checks were issued simultaneous with said
transactions, it likewise became evident that deceit attended accused-appellants
dealings with Floro for the same only goes to show that the bum checks were issued
to Floro in order to induce her to part with the pieces of jewelry in favor of accused-
appellant.

In addition to the foregoing, the High Court likewise found in the Ojeda case that
the prosecution miserably failed to adduce evidence to establish that the
indispensable element of notice of dishonor was sent to and was received by the
accused therein. In the case at bench, however, it is undisputed that after the
dishonor of the subject bank checks Floro, through counsel, made repeated formal
demands requiring accused-appellant to pay for the value of the bum checks,
perforce the notice of dishonor which is required to properly prosecute and
eventually convict an accused of the crime of Estafa under Article 315, paragraph
2(d) of the Revised Penal Code has been sufficiently met.[29]

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The Decision

and Resolution of the Court of Appeals are AFFIRMED. No costs.

SO ORDERED.
ANICIA RAMOS-ANDAN,Petitioner,

- versus -
PEOPLE OF THE PHILIPPINES,
Respondent.

For our resolution is the instant petition for review on certiorari seeking to reverse
the Decision[1] and the Resolution of the Court of Appeals in CA-G.R. CR No.
18379, entitled People of the Philippines, plaintiff-appellee, versus Anicia Ramos-
Andan and Potenciana Nieto, accused, Anicia Ramos Andan, accused-appellant.

On February 4, 1991, Anicia Ramos-Andan, herein petitioner, and Potenciana Nieto

approached Elizabeth E. Calderon and offered to buy the latters 18-carat heart-
shaped diamond ring. Elizabeth agreed to sell her ring. In turn, Potenciana tendered
her three (3) postdated checks. To evidence the transaction, the parties prepared and
signed a receipt which reads as follows:
February 4, 1991

Received from Mrs. Elizabeth Eusebio Calderon the heart-shaped

diamond ring which in return Mrs. Potenciana Nieto and Mrs. Annie
Andan had given the checks dated June 30,
1991 worth P23,000.00, August 30, 1991 worth P25,000.00, and Sept.
30, 1991 worth P25.000.00 as full payment of the said jewelry.

(Sgd.) DIGNA G. SEVILLA (Sgd.) ANICIA ANDAN

Witness Signature
_______________________
Witness[2]
Inasmuch as the three checks (PDB Check Nos. 14173188, 14173189, and
14173190) were all payable to cash, Elizabeth required petitioner to endorse them.
The latter complied.

When Elizabeth deposited the checks upon maturity with the drawee bank, they
bounced for the reason Account Closed. She then sent Potenciana a demand letter to
pay, but she refused.
On July 10, 1997, Elizabeth filed with the Office of the Provincial Prosecutor of
Bulacan a Complaint for Estafa against petitioner and Potenciana. Finding a
probable cause for Estafa against them, the Provincial Prosecutor filed the
corresponding Information for Estafa with the Regional Trial Court (RTC), Branch
8, Malolos, Bulacan. Subsequently, petitioner was arrested but Potenciana has
remained at large. When arraigned, petitioner entered a plea of not guilty to the
charge.

During the hearing, petitioner denied buying a diamond ring from Elizabeth,
maintaining that she signed the receipt and the checks merely as a witness to the
transaction between Elizabeth and Potenciana. Thus, she could not be held liable for
the bounced checks she did not issue.

After hearing, the trial court rendered its Decision finding petitioner guilty as
charged and imposing upon her an indeterminate prison term of six (6) 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, and to indemnify Elizabeth E.
Calderon in the amount of P73,000.00 representing the purchase price of the
diamond ring.
The trial court held that while it was Potenciana who issued the checks, nonetheless,
it was petitioner who induced Elizabeth to accept them and who endorsed the
same.Accordingly, petitioner cannot escape liability.

On appeal, the Court of Appeals rendered its Decision dated July 16, 1998 affirming
with modification the RTC Decision. The maximum penalty imposed was increased
to seventeen (17) years, four (4) months and one (1) day of reclusion temporal and
the indemnity was reduced to P23,000.00 considering the RTCs finding that:
Complainant, however, was able to present in Court only Planters
Development Bank (Check) No. 14173188, dated June 30, 1991, in the
amount of P23,000.00 and the fact of its being dishonored. The other two
checks were neither presented nor the fact of being dishonored
proven. Likewise, the two checks were not mentioned in the demand
letter marked as Exhibit C.Although, therefore, it is clear from the
records, in fact admitted by the accused, that the total amount
of P23,000.00 as purchase price of the diamond ring has not been paid,
the accused should only be held liable for the dishonor of the check
above-stated as the dishonor of the two other checks was not proven in
Court.

Petitioner filed a motion for reconsideration, but this was denied by the Appellate
Court.

Hence, the instant petition raising the following basic issues:

(1) Whether the prosecution has proved petitioners guilt beyond reasonable doubt;
and (2) whether she is entitled to the mitigating circumstance of lack of intention to
commit so grave a wrong.

On the first issue, petitioner contends that not being the drawer of the checks, she
cannot be held criminally liable.
The Solicitor General counters that this issue is not novel, having long been resolved
by this Court in Zagado v. Court of Appeals,[3] thus:
The contention of the petitioner that he did not commit estafa because he
did not issue or indorse the postdated checks is devoid of merit. While it
is true that he did not issue or indorse the postdated checks, his and
Montuertos concerted acts with common design and purpose in
encashing the questioned checks indicate the presence of conspiracy as
charged in the information filed against them.

But as correctly ruled by the Court of Appeals, even without discussing

the existence of conspiracy, appellant cannot escape liability by the fact
alone that he did not ascertain whether or not Montuerto had sufficient
funds to cover the check (Decision, CA-G.R. No. 02173, p. 4, citing
People vs. Isleta, 61 Phil. 332 [1935]).

It must be noted that when the petitioner was in need of money, he asked
the financial assistance of his friend Montuerto, and the latter issued the
two postdated checks. Since the petitioner could not encash the postdated
checks at the banks, he and Montuerto went to another friend, Apolinario
Mercado. Mercado brought and introduced the petitioner and Montuerto
to complainant Josephine Serrano at the latters office. Petitioner and
Montuerto requested the complainant and her husband to exchange with
cash the two postdated checks which they had in their possession. At first,
the Serranos hesitated but with the assurance of Mercado and the
petitioner to the complainant that the checks will be funded when
encashed, the latter exchanged the two postdated checks with cash which
she handed to the petitioner.

This issue has already been laid to rest by this Court in People v. Isleta
and Nuevo (61 Phil. 334 [1935]) where appellant without having issued
or indorsed the checks in question was held liable because of his guilty
knowledge that his co-accused had no funds in the bank when he
negotiated the checks.

In the present case, while Potenciana, who remains at large, was the drawer of the
checks, however, it was petitioner who directly and personally negotiated the
same. It was she who signed the receipt evidencing the sale. It was she who handed
the checks to Elizabeth and endorsed them as payment for the ring. It is thus clear
that petitioner and Potenciana acted in concert for the purpose of inducing and
defrauding Elizabeth to part with her jewelry.

The elements of the offense as defined and penalized by Article 315, paragraph 2(d)
of the Revised Penal Code, as amended, are:

(1) postdating or issuance of a check in payment of an obligation contracted

at the time the check was issued;

(2) lack of or insufficiency of funds to cover the check; and

(3) the payee was not informed by the offender and the payee did not know
that the offender had no funds or insufficient funds.

All these elements are present in this case. The prosecution proved that the checks
were issued in payment of a simultaneous obligation, i.e., the checks were issued in
payment for the ring. The checks bounced when Elizabeth deposited them for the
reason Account Closed. There is no showing whatsoever that before petitioner
handed and endorsed the checks to Elizabeth, she took steps to ascertain that
Potenciana has sufficient funds in her account. Upon being informed that the checks
bounced, she failed to give an adequate explanation why Potencianas account was
closed. In Echaus v. Court of Appeals,[4] we ruled that the fact that the postdated
checkswere not covered by sufficient funds, when they fell due, in the absence of
any explanation or justification by petitioner, satisfied the element of deceit in the
crime of estafa, as defined in paragraph 2 of Article 315 of the Revised Penal Code.[5]

On the second issue, petitioner claims that she is entitled to the mitigating
circumstance of lack of intention to commit so grave a wrong.
Petitioner employed fraud, the reason why Elizabeth parted with her ring
worth P73,000.00. Obviously, such mitigating circumstance has no place here.

WHEREFORE, the petition is DENIED. We AFFIRM the assailed Decision and

the Resolution of the Court of Appeals in CA-G.R. CR No. 18379. Costs against
petitioner.

SO ORDERED.

JORGE SALAZAR, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

We agree with the trial court that the probative value of the said letter is nil.
The trial court correctly ruled:

The court doubts the probative value of the contents of [the letter] because the person
who testified thereon, a certain Atty. Cesar Singson, was not the one who prepared the
document. He was only one [of] those who was furnished a copy thereof. Moreover,
when said piece of evidence was presented, there were inconsistencies in the
testimony of the [petitioner] as to how he was able to procure said documents. In a
hearing he testified that he personally procured said letter from the records of
PHIVIDEC and the person who certified said copy signed the same in his
presence. On cross examination, he testified that he did not personally obtain said
letter and he was not there when the person who authenticated said letter signed it and
that it was only given to him by his former counsel. This is further muddled when
Atty. Singson testified that he was the one who authenticated said document on
December 7, 1987 from his copy upon the request of the accused. Atty. Singson has
already severed his ties with PHIVIDEC on the latter part of the year 1986. This
means that Atty. Singson was no longer connected with PHIVIDEC when he
authenticated said document based on his copy which implies that the document was
not obtained from the records of PHIVIDEC. [37]

Further, even assuming that the letter may be given credence, we are
unable to see any indication that the amount of P850,780.00 or at least a portion
thereof (assuming that the said amount represents the advance payment made
by Skiva) has been received by Aurora and/or Uni-Group from petitioner. At
most, what said letter indicates is that Aurora acknowledges liability to Uni-
Group in the said amount or that said amount has been received by Uni-Group
from Skiva as advance payment which Uni-Group may have, in turn, assigned
to Aurora. The glaring fact remains that nowhere can it be seen from the said
letter that there was actual receipt by Aurora from petitioner of the amount
indicated therein, or at least a portion thereof, after deduction of the cost of the
materials purchased to manufacture the jeans ordered.
Moreover, the prosecution was able to establish that upon withdrawal of the
said amounts, petitioner caused the telegraphic transfer of the amount to
another account prior to petitioners receipt of the amount in pesos. In fact,
[38]

upon being confronted by the prosecution with Exhibits R and T which are
account debit forms showing that certain amounts were deducted by Citibank
N.A. from the joint account as telegraphic transfer fee for the amounts
withdrawn by petitioner, petitioner admitted that upon withdrawal, the dollars
was converted by the bank, remitted abroad, and given to me in pesos. The [39]

act committed by petitioner of remitting the funds abroad constitutes an act of

conversion or misappropriation. This Court has previously held that even a
temporary disturbance of property rights constitutes misappropriation. The [40]

words convert and misappropriate as used in Article 315 paragraph 1 (b) of the
Revised Penal Code, connote an act of using or disposing of anothers property
as if it were ones own, or of devoting it to a purpose or use different from that
agreed upon. To misappropriate a thing of value for ones own use includes, not
only conversion to ones personal advantage but also every attempt to dispose
of the property of another without right. Thus, when petitioner caused the
[41]

remittance of the amount withdrawn to another account, such act constituted

conversion or misappropriation or unauthorized disposition of the property,
contrary to the purpose for which the property was devoted.
Petitioner also claims that the third element of estafa is not present as the
party prejudiced, in accordance with the findings of the trial court and the Court
of Appeals, is Skiva, when petitioner had no obligation to account to Skiva the
proceeds of the amount withdrawn. Petitioner argues that consistent with the
ruling of the lower court that Aurora is the owner of the sum remitted as advance
payment, petitioner had the obligation to account for the proceeds thereof to
Aurora and not to Skiva. Thus, petitioner maintains that a conviction for estafa
[42]

will not hold as no damage to Aurora was alleged in the information nor did the
prosecution present any proof of damage to Aurora.
We are not persuaded.
As held in the case of First Producers Holdings Corporation v. Co, in [43]

estafa, the person prejudiced or the immediate victim of the fraud need not be
the owner of the goods misappropriated. Thus, Article 315 of the Revised Penal
Code provides that any person who shall defraud another by any means
mentioned [in Article 315] may be held liable for estafa.The use by the law of
the word another instead of the word owner means that as an element of the
offense, loss should have fallen upon someone other than the perpetrator of the
crime. Thus, the finding of the trial court that Skiva, the party prejudiced, is
[44]

not the owner of the sum misappropriated will not nullify the conviction of the
petitioner.
Petitioner claims that the element of demand is absent as no demand was
made by Skiva on petitioner. Petitioner argues that although demand was made
by Skiva to Aurora/Uni-Group and/or Mr. Lettmayr, no demand was shown to
have been made on petitioner himself.
We hold that the element of demand was satisfied when demand was made
upon Aurora/Uni-Group. To require Skiva to make a demand on petitioner
himself would be superfluous and would serve no other additional purpose. We
note that at the time when Ms. Tujan was following up on the delivery of the
jeans, except for the advice of Mr. Lettmayr to direct her queries to petitioner
who was in charge of procuring the materials for the jeans, Ms. Tujan could not
have known that petitioner may be primarily responsible for the non-delivery of
the jeans. As far as Skiva/Olivier was concerned, it was the obligation of
Aurora/Uni-Group to deliver the jeans, which at the time of demand, was not
complied with. Thus, Skiva/Olivier acted appropriately when it demanded from
Aurora/Uni-Group the return of the amount advanced.
To require that demand should have been made by Skiva/Olivier upon
petitioner himself to uphold the conviction of the trial court is to sustain a blind
application of the law. In the case of United States v. Ramirez, this Court [45]

held:

The consummation of the crime of estafa does not depend on the fact that a request for
the return of the money is first made and refused in order that the author of the crime
should comply with the obligation to return the sum misapplied. The appropriation or
conversion of money received to the prejudice of the owner thereof are the sole
essential facts which constitute the crime of estafa, and thereupon the author thereof
incurs the penalty imposed by the Penal Code.

Further, in Tubbs v. People and Court of Appeals this Court ruled that
[46]

the law does not require a demand as a condition precedent to the crime of
embezzlement. It so happens only that failure to account, upon demand for
funds and property held in trust, is circumstantial evidence of misappropriation.
In Benito Sy y Ong v. People and Court of Appeals, we also held that
[47]

in a prosecution for estafa, demand is not necessary when there is evidence of

misappropriation.
 Petitioner likewise maintains that Skiva has no authority to institute the
present action as estafa was not committed against Skiva but against
Aurora/Uni-Group on the basis of the finding that the transaction between Skiva
and Aurora/Uni-Group was one of sale. Thus, petitioner argues that pursuant
to Section 3, Rule 110 of the Rules on Criminal Procedure, the complaint [48]

should not have been instituted by Skiva as it is not the offended party
contemplated by the Rules and petitioner had no obligation to account to Skiva
the proceeds of the amount withdrawn from the joint account. [49]

The complaint referred to in Rule 110 contemplates one that is filed in court
to commence a criminal action in those cases where a complaint of the offended
party is required by law, instead of an information which is generally filed by a
fiscal. It is not necessary that the proper offended party file a complaint for
[50]

purposes of preliminary investigation by the fiscal. The rule is that unless the
offense subject of the complaint is one that cannot be prosecuted de oficio, any
competent person may file a complaint for preliminary investigation. [51]

Thus, as a general rule, a criminal action is commenced by a complaint or

information, both of which are filed in court. If a complaint is filed directly in
court, the same must be filed by the offended party and in case of an
information, the same must be filed by the fiscal. However, a complaint filed
with the fiscal prior to a judicial action may be filed by any person. Thus, in the[52]

case at bar, the complaint was validly filed by Skiva despite the finding of the
lower court that petitioner had no obligation to account to Skiva.
WHEREFORE, the instant petition is DENIED and the appealed judgment
of the court a quo finding petitioner guilty beyond reasonable doubt of the crime
of Estafa under Article 315 paragraph 1 (b) of the Revised Penal Code is
AFFIRMED. Costs against appellant.
SO ORDERED.
MANUEL NAGRAMPA, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
In this petition for review on certiorari, petitioner assails his conviction for estafa in
Criminal Case No. Q-90-15797 and for two counts of violation of Batas Pambansa Blg.
22 (Bouncing Checks Law) in Criminal Cases Nos. Q-90-15798 and Q-90-15799.
The accusatory portion of the information in Criminal Case No. Q-90-15797 for estafa
reads as follows:

That on or about the 28th day of July 1989 in Quezon City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to gain by
means of false pretenses or fraudulent acts executed prior to or simultaneously with
the commission of the fraud, did then and there, wilfully, unlawfully and feloniously
defraud FEDCOR TRADING CORPORATION represented by FEDERICO A.
SANTANDER by then and there making, drawing and issuing in favor of the latter
the following checks, to wit:

CHECK NOS. AMOUNT POSTDATED

473477 P75,000.00 August 31, 1989

473478 P75,000.00 September 30, 1989

drawn against the SECURITY BANK AND TRUST COMPANY in payment of an

obligation, knowing fully well at the time of issue that he did not have any funds in
the bank or his funds deposited therein was not sufficient to cover the amount of the
checks that upon presentation of said checks to the said bank for payment, the same
were dishonored for the reason that the drawer thereof, accused MANUEL
NAGRAMPA did not have any funds therein and despite notice of dishonor thereof,
accused failed and refused and still fails and refuses to redeem or make good said
checks, to the damage and prejudice of the said FEDCOR TRADING
CORPORATION in such amount as may be awarded under the provisions of the Civil
Code.

CONTRARY TO LAW. [1]

The accusatory portion of the information in Criminal Case No. Q-90-15798 for
violation of B.P. Blg. 22 reads as follows:

That on or about the 28th day of July, 1989 in Quezon City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there,
willfully, unlawfully and feloniously make, draw and issue in favor of FEDCOR
TRADING CORPORATION represented by FEDERICO A. SANTANDER a check
numbered 473478 drawn against the SECURITY BANK AND TRUST COMPANY,
Escolta Branch, a duly established domestic banking institution, in the amount of
P75,000.00, Philippine Currency, postdated September 30, 1989 in payment of an
obligation, knowing fully well that at the time of issue that she/he did not have ANY
funds in the drawee bank for the payment of such check; that upon presentation of
said check to said bank for payment, the same was dishonored for the reason that the
drawee bank of accused MANUEL NAGRAMPA did not have ANY funds therein
and despite notice of dishonor thereof, accused failed and refused and still fails and
refuses to redeem or make good said check, to the damage and prejudice of the said
FEDCOR TRADING CORPORATION in the amount aforementioned and in such
other amount as may be awarded under the provisions of the Civil Code.
Contrary to law. [2]

The information in Criminal Case No. Q-90-15799 is similarly worded as in Criminal

Case No. Q-90-15798 except as to the date and number of the check.
Upon his arraignment, petitioner entered a plea of not guilty in each case.
At the trial on the merits, the prosecution presented Federico Santander, President
of Fedcor Trading Corporation (hereafter FEDCOR), and Felix Mirano, signature verifier
of the Escolta Branch of the Security Bank and Trust Company.
Federico Santander testified that on 28 July 1989, Corseno Bote, FEDCORs Sales
Manager, brought to FEDCOR petitioner Manuel Nagrampa (hereafter NAGRAMPA),
General Manager of the Nagrampa Asphalt Plant in Montalban, Rizal. NAGRAMPA
purchased a Yutani Poclain Backhoe Excavator Equipment for P200,000 from FEDCOR
and paid in cash the down payment of P50,000. To cover the balance of P150,000, he
issued Check No. 473477[3] postdated 31 August 1989 and Check No. 473478[4] postdated
30 September 1989 in the amount of P75,000 each. The checks were drawn against the
Security Bank and Trust Company. Upon the assurance of FEDCORs salesman that the
checks were good, FEDCOR delivered to petitioner the equipment.[5]
Santander further testified that FEDCOR presented the checks for payment on 22
February 1990; however, they were dishonored on the ground that petitioners account
with the drawee bank, Security Bank, had already been closed. In a letter[6] dated 19
March 1990, sent through registered mail, FEDCOR demanded payment from petitioner;
but the latter failed to pay. Hence, the above cases were filed against petitioner with the
trial court.[7] During his cross-examination, Santander denied that the equipment was
returned to FEDCOR. Ronnie Bote, son of Corseno Bote, was not an employee of
FEDCOR but was merely its sales agent with no authority to receive returned equipment. [8]
Felix Mirano, the second prosecution witness, testified that he had been a signature
verifier of Security Bank for twelve years. His duty was to verify the signatures of the
clients of the bank. He brought with him the signature card for Account No. 0110-4048-
19, petitioners account against which the subject checks were drawn. He identified the
signatures appearing on Checks Nos. 473477 and 473478 to be those of the
petitioner. When asked about the status of said account, he answered that the account
had been closed in May 1985 yet.[9]
For his part, petitioner testified that on 28 July 1989, he bought from Corseno Bote a
backhoe and paid P50,000 cash, as evidenced by an acknowledgment receipt [10] signed
by Corseno Bote. In addition, he issued and handed to Corseno Bote two checks in the
amount of P75,000 each, dated 31 August 1989[11] and 30 September 1989.[12] The
agreement with Corseno Bote was that petitioner would replace the two checks with cash
if the backhoe would be in good running condition. The backhoe was delivered at
petitioners jobsite on 29 July 1989. After five to seven days of use, the backhoe broke
down. Such fact was reported to Ronnie Bote, and the backhoe was thus repaired. After
one day of using it, the backhoe broke down again. Petitioner again reported the matter
to Ronnie Bote, who told him that the equipment should be brought to the latters office
for repair. As evidence of the return of the equipment, petitioner presented a letter dated
3 October 1989[13] addressed to Electrobus Consolidated, Inc., requesting the release of
the backhoe to Ronnie Bote for repair, with the alleged signature [14] of Ronnie Bote
appearing at the bottom thereof to attest to his receipt of the equipment. After a week,
petitioner demanded from Ronnie Bote the return of the backhoe, the P50,000 cash and
the two postdated checks, but to no avail.[15] On cross-examination, he admitted that during
the pendency of the case he paid, upon the advice of his counsel, the amount of P15,000,
which he handed to FEDCORs counsel Atty. Orlando Paray.[16]
On 30 September 1993, the trial court rendered a decision [17] finding petitioner guilty
of two counts of violation of the Bouncing Checks Law and sentencing him to suffer
imprisonment for two years and pay FEDCOR P150,000, with legal interest thereon from
9 October 1990 up to the time of full payment.
Petitioner appealed the decision to the Court of Appeals. The appeal was docketed
as CA-G.R. CR. No. 18082. Upon noticing that the 30 September 1993 Decision of the
trial court did not resolve the issue of petitioners liability for estafa, the Court of Appeals
issued on 19 May 1998 a resolution[18] ordering the return of the entire records of the case
to the trial court for the latter to decide the estafa case against petitioner.
On 8 February 1999, the trial court rendered a decision[19] finding petitioner guilty
beyond reasonable doubt of estafa and sentencing him to suffer imprisonment of seven
years and four months of prision mayor as minimum to twelve years and six months
of reclusion temporal as maximum. As might be expected, petitioner also appealed said
decision to the Court of Appeals.
On 21 July 2000, the Court of Appeals rendered a decision[20] affirming in toto the
decision of the trial court finding petitioner guilty of estafa and violations of the Bouncing
Checks Law.It also denied petitioners motion for reconsideration of the decision.[21] Hence,
this petition.
Petitioner claims that he is not guilty of estafa because no damage was caused to
FEDCOR, considering that the backhoe became unserviceable a few days after delivery
and was eventually returned to FEDCOR through the latters sales agent Ronnie Bote. He
also asserts that he did not violate B.P. Blg. 22 either. The two checks issued by him were
presented for payment only on 22 February 1990, or after more than five months from the
date of the checks. Under Sections 1 and 2 of B.P. Blg. 22 FEDCOR, as payee, had the
duty or obligation to encash or deposit the checks issued in its favor within ninety days
from the date of issue. Since FEDCOR deposited the checks after this period, he cannot
be faulted for their subsequent dishonor.
Alternatively, petitioner prays that in the event that his conviction for violations of
B.P. Blg. 22 is sustained, the rulings in Vaca v. Court of Appeals[22] and Lim v.
People[23] should be given retroactive effect in his favor so that only a fine may be imposed
on him as penalty.
In arguing that petitioners conviction for two counts of violation of B.P. Blg. 22 is
correct, the Office of the Solicitor General relies heavily on the testimony of Felix Mirano
that the account of petitioner had been closed way back in May 1985, or four years prior
to the issuance of the subject checks to FEDCOR. The date when the checks were
encashed or deposited is immaterial because there was no more existing bank account
against which they were drawn, and their dishonor was therefore certain even if the
checks were presented for payment within the 90-day period from their issuance. With
respect to petitioners plea to impose on him the penalty of fine in the event that his
conviction is affirmed, the OSG maintains that the penalty of imprisonment is appropriate
considering petitioners act of issuing worthless checks which showed his culpable
violation of B.P. Blg. 22.
Petitioners argument that the element of damage to private complainant FEDCOR is
lacking is disputed by the OSG by pointing out petitioners failure to prove the return of the
backhoe to FEDCOR. Ronnie Bote, the person to whom the backhoe was allegedly
returned, was not presented as a witness to corroborate petitioners testimony. But even
granting arguendo that the backhoe was indeed received by Ronnie Bote, there is no
showing that he acted for, and on behalf of, FEDCOR in doing so considering that he was
not an employee of FEDCOR.
The petition is without merit.
Section 1 of B.P. Blg. 22 provides:

SECTION 1. Checks without sufficient funds. -- Any person who makes or draws and
issues any check to apply on account or for value, knowing at the time of issue that he
does not have sufficient funds in or credit with the drawee bank for the payment of
such check in full upon its presentment, which check is subsequently dishonored by
the drawee bank for insufficiency of funds or credit or would have been dishonored
for the same reason had not the drawer, without any valid reason, ordered the bank to
stop payment, shall be punished by imprisonment of not less than thirty days but not
more than one (1) year or by a fine of not less than but not more than double the
amount of the check which fine shall in no case exceed Two Hundred Thousand
Pesos, or both such fine and imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person who, having sufficient funds in
or credit with the drawee bank when he makes or draws and issues a check, shall fail
to keep sufficient funds or to maintain a credit or to cover the full amount of the check
if presented within a period of ninety (90) days from the date appearing thereon, for
which reason it is dishonored by the drawee bank.

Two distinct acts are punished under the above-quoted provision:

(1)The making or drawing and issuance of any check to apply on account or for value,
knowing at the time of issue that the drawer does not have sufficient funds in, or credit
with, the drawee bank; and
(2)The failure to keep sufficient funds or to maintain a credit to cover the full amount of
the check if presented within a period of ninety days from the date appearing thereon,
for which reason it is dishonored by the drawee bank.[24]
In the first situation, the drawer knows of the insufficiency of funds to cover the check
at the time of its issuance; while in the second situation, the drawer has sufficient funds
at the time of issuance but fails to keep sufficient funds or maintain credit within ninety
days from the date appearing on the check. The check involved in the first offense is
worthless at the time of issuance, since the drawer has neither sufficient funds in, nor
credit with, the drawee bank at the time; while that involved in the second offense is good
when issued, as the drawer has sufficient funds in, or credit with, the drawee bank when
issued. In both instances, the offense is consummated by the dishonor of the check for
insufficiency of funds or credit.[25]
It can be gleaned from the allegations in the information that petitioner is charged with
the first type of offense under B.P. Blg. 22.
The elements of the first type of offense are as follows:
(1) The making, drawing and issuance of any check to apply for account or for value;
(2) The knowledge of the maker, drawer, or issuer that at the time of issue he does not
have sufficient funds in or credit with the drawee bank for the payment of such check
in full upon its presentment; and
(3) The subsequent dishonor of the check by the drawee bank for insufficiency of funds
or credit or dishonor for the same reason had not the drawer, without any valid cause,
ordered the bank to stop payment.[26]
Petitioner admitted that he issued the two postdated checks worth P75,000 each. He
did not deny that the same were dishonored on the ground that the account from which
they were to be drawn was already closed at the time the checks were presented for
payment. Neither did he rebut the prosecutions evidence that the account against which
he drew his two postdated checks had been closed in May 1985 yet, or more than four
years prior to the drawing and delivery of the checks.
The fact that the checks were presented beyond the 90-day period provided in
Section 2 of B.P. Blg. 22 is of no moment. We held in Wong v. Court of Appeals[27] that the
90-day period is not an element of the offense but merely a condition for the prima
facie presumption of knowledge of the insufficiency of funds; thus:

That the check must be deposited within ninety (90) days is simply one of the
conditions for the prima facie presumption of knowledge of lack of funds to arise. It is
not an element of the offense. Neither does it discharge petitioner from his duty to
maintain sufficient funds in the account within a reasonable time thereof. Under
Section 186 of the Negotiable Instruments Law, a check must be presented for
payment within a reasonable time after its issue or the drawer will be discharged from
liability thereon to the extent of the loss caused by the delay. By current banking
practice, a check becomes stale after more than six (6) months, or 180 days.

In Bautista v. Court of Appeals,[28] we ruled that such prima facie presumption is

intended to facilitate proof of knowledge, and not to foreclose admissibility of other
evidence that may also prove such knowledge; thus, the only consequence of the failure
to present the check for payment within the 90-day period is that there arises no prima
facie presumption of knowledge of insufficiency of funds. [29] The prosecution may still
prove such knowledge through other evidence.
In this case, FEDCOR presented the checks for encashment on 22 February 1990,
or within the six-month period from the date of issuance of the checks, and would not
therefore have been considered stale had petitioners account been existing. Although the
presumption of knowledge of insufficiency of funds did not arise, such knowledge was
sufficiently proved by the unrebutted testimony of Mirano to the effect that petitioners
account with the Security Bank was closed as early as May 1985, or more than four years
prior to the issuance of the two checks in question.
Thus, we find no error in the Court of Appeals affirmation of the trial courts decision
convicting petitioner of violations of B.P. Blg. 22.
Petitioners alternative prayer for the modification of penalty by retroactively
applying Vaca v. Court of Appeals[30] and Lim v. People[31] must likewise be denied. We
quote Administrative Circular No. 13-2001 clarifying Administrative Circular No. 12-2000;
thus:

The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove
imprisonment as an alternative penalty, but to lay down a rule of preference in the
application of the penalties provided for in B.P. Blg. 22.

The pursuit of this purpose clearly does not foreclose the possibility of imprisonment
for violators of B.P. Blg. 22. Neither does it defeat the legislative intent behind the
law.

Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the

application of the penal provisions of B.P. Blg. 22 such that where the circumstances
of both the offense and the offender clearly indicate good faith or a clear mistake of
fact without taint of negligence, the imposition of a fine alone should be considered as
the more appropriate penalty. Needless to say, the determination of whether the
circumstances warrant the imposition of a fine alone rests solely upon the Judge.
Should the Judge decide that imprisonment is the more appropriate penalty,
Administrative Circular No. 12-2000 ought not be deemed a hindrance.

In this case, when petitioner issued the subject postdated checks even though he had
no more account with the drawee bank, having closed it more than four years before he
drew and delivered the checks, he manifested utter lack of good faith or wanton bad
faith. Hence, he cannot avail himself of the benefits under Administrative Circular No. 12-
2000.
We likewise sustain petitioners conviction for the crime of estafa.
The crime of estafa under paragraph 2(d) of Article 315 of the Revised Penal Code,
as amended, has the following elements: (1) postdating or issuance of a check in
payment of an obligation contracted at the time the check was issued; (2) lack or
insufficiency of funds to cover the check; and (3) damage to the payee thereof. [32]
Settled is the rule that, to constitute estafa, the act of postdating or issuing a check in
payment of an obligation must be the efficient cause of defraudation and, as such, it
should be either prior to, or simultaneous with, the act of fraud. The offender must be able
to obtain money or property from the offended party because of the issuance of the check,
or the person to whom the check was delivered would not have parted with his money or
property had there been no check issued to him. Stated otherwise, the check should have
been issued as an inducement for the surrender by the party deceived of his money or
property, and not in payment of a pre-existing obligation.[33]
The existence of the first two elements in the case at bar is not disputed. Petitioner
maintains that the third element is not present.
Damage as an element of estafa may consist in (1) the offended party being deprived
of his money or property as a result of the defraudation; (2) disturbance in property right;
or (3) temporary prejudice.[34]
In this case, the deprivation of the property of FEDCOR is apparent. Undoubtedly,
the reason why FEDCOR delivered the backhoe to petitioner was that the latter paid the
P50,000 down payment and issued two postdated checks in the amount of P75,000 each.
Petitioners claim that he returned the equipment was not duly proved; he never
presented as witness the agent who allegedly received the equipment from
him. Moreover, he admitted that he never wrote FEDCOR about the return of the allegedly
defective backhoe to Ronnie Bote; neither did he go to FEDCOR to claim the return of
the equipment or of the cash down payment and the two checks.[35] Such admissions belie
his allegation that he returned the equipment to FEDCOR. Besides, on cross-examination
he admitted that during the pendency of the case, he paid Santander, through FEDCORs
lawyer, on two separate occasions in the total amount of P15,000 upon the advice of his
own lawyer that he had to pay because he was guilty; thus:
Q During the pendency of this case you paid Engr. Santander cash, is that correct?
A I paid the amount of P10,000.00 and then another P5,000.00 because according to my first
lawyer I have to pay this because I am guilty and this is B.P. case [sic].
Q You delivered the money to Engr. Federico Santander?
A To you Atty. Paray.
Q And I was the lawyer of Engr. Federico Santander?
A Yes, sir.[36]
If indeed petitioner returned the backhoe to Ronnie Bote and yet the latter did not
heed his demands for the return of his cash payment and the checks, he (petitioner)
should have, at the very least, gone to or written FEDCOR itself about the matter. Instead,
he again paid FEDCOR the amount of P15,000 during the pendency of the case. Such
payment to FEDCOR negates his claim that he returned the backhoe; it may even be
tantamount to an offer of compromise. Under Section 27 of Rule 130 of the Rules on
Evidence, an offer of compromise in criminal cases is an implied admission of guilt.
 Finally, by appealing his conviction, petitioner has thrown the whole case open for
review. It becomes the duty of this Court to correct any error as may be found in the
appealed judgment, even though it was not made the subject of assignment of
errors.[37] This Court finds to be erroneous the penalty imposed by the trial court for the
crime of estafa, as affirmed by the Court of Appeals, which is seven years and four months
of prision mayor as minimum to twelve years and six months of reclusion temporal as
maximum. The penalty for estafa committed by means of bouncing checks has been
increased by Presidential Decree No. 818, which took effect on 22 October 1975. Section
1 thereof provides in part as follows:

SECTION 1. Any person who shall defraud another by means of false pretenses or
fraudulent acts as defined in paragraph 2(d) of Article 315 of the Revised Penal Code,
as amended by Republic Act No. 4885, shall be punished by:

1st. The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos
but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the
penalty provided in this paragraph shall be imposed in its maximum period, adding
one year for each additional 10,000 pesos but the total penalty which may be imposed
shall in no case exceed thirty years. In such cases, and in connection with the
accessory penalties which may be imposed under the Revised Penal Code, the penalty
shall be termed reclusion perpetua.

Petitioner NAGRAMPA defrauded FEDCOR in the amount of P135,000 (P150,000

[value of the checks] minus P15,000 [payment made by petitioner during the pendency
of these cases]). Applying P.D. No. 818 and the Indeterminate Sentence Law, the
maximum penalty shall be reclusion temporal in its maximum period, plus one year for
each additional P10,000 of the amount of the fraud; and the minimum shall be prision
mayor, which is the penalty next lower to that prescribed for the offense without first
considering any modifying circumstances or the incremental penalty for the amount of
fraud in excess of P22,000.[38]
WHEREFORE, the instant petition is DENIED. The decision of the Court of Appeals
upholding the decisions of the Regional Trial Court of Quezon City, Branch 80, in Criminal
Cases Nos. Q-90-15797, Q-90-15798 and Q-90-15799 is hereby AFFIRMED, with the
modification that petitioner Manuel Nagrampa is hereby sentenced to suffer (1) an
imprisonment of one year for each of the two counts of violation of B. P. Blg. 22, and (2)
an indeterminate penalty of eight years and one day of prision mayor as minimum to
twenty-eight years, four months and one day of reclusion perpetua as maximum for the
crime of estafa; and to pay private complainant Fedcor Trading Corporation the amount
of P135,000, plus legal interest thereon from 9 October 1990 up to the time of full
payment.
SO ORDERED.
 GLORIA OCAMPO-PAULE, petitioner, vs. HONORABLE COURT OF
APPEALS and PEOPLE OF THE PHILIPPINES, respondents. This is a
petition for review of the Decision dated October 26, 2000 of the Court of
Appeals in CA-G.R. CR No. 22437 affirming petitioner Gloria Ocampo-Paules
[1]

conviction for the crime of estafa by the Regional Trial Court of Guagua,
Pampanga, Branch 49.
During the period August, 1991 to April, 1993, petitioner received from
private complainant Felicitas M. Calilung several pieces of jewelry with a total
value of One hundred Sixty Three Thousand One hundred Sixty Seven Pesos
and Ninety Five Centavos (P163,167.95). The agreement between private
complainant and petitioner was that the latter would sell the same and thereafter
turn over and account for the proceeds of the sale, or otherwise return to private
complainant the unsold pieces of jewelry within two months from receipt
thereof. Since private complainant and petitioner are relatives, the former no
longer required petitioner to issue a receipt acknowledging her receipt of the
jewelry.
When petitioner failed to remit the proceeds of the sale of the jewelry or to
return the unsold pieces to private complainant, the latter sent petitioner a
demand letter. Notwithstanding receipt of the demand letter, petitioner failed to
turn over the proceeds of the sale or to return the unsold pieces of
jewelry. Private complainant was constrained to refer the matter to the
barangay captain of Sta. Monica, Lubao, Pampanga.
During the barangay conciliation proceedings, petitioner acknowledge
having received from private complainant several pieces of jewelry worth
P163,167.95. Both parties eventually executed an agreement
entitled Kasunduan sa Bayaran, whereby petitioner promised to pay private
complainant P3,000.00 every month to answer for the jewelry which she
received from the latter.
When petitioner failed to comply with the terms of the Kasunduan sa
Bayaran, private complainant sent her another demand letter dated March 9,
1994 but she still failed to comply with her obligation.
Private complainant then filed a criminal complaint against petitioner in the
Office of the Provincial Prosecutor. The Provincial Prosecutor recommended
the filing of a criminal case against petitioner. Consequently, an information
charging petitioner with estafa was filed in the Regional Trial Court of Guagua,
Pampanga. The information stated:

That in or about the period comprised from August 1991 to April 1993, in the
Municipality of Lubao, province of Pampanga, Philippines and within the jurisdiction
of this honorable Court, the above-named accused GLORIA OCAMPO-PAULE
received from Felicita[s] M. Calilung various pieces of jewelry with a total value of
ONE HUNDRED SIXTY FIVE (sic) THOUSAND THREE HUNDRED FORTY
SEVEN (P163,347.00) PESOS, Philippine Currency for purposes of selling the same
under the express obligation of turning over and accounting for the proceeds of said
jewelry if not sold, to the said Felicita[s] U. Calilung within two (2) months from
receipt hereof, once in possession of the said jewelry and far from complying with her
obligation aforesaid, the said accused, did then and there willfully, unlawfully and
feloniously, misappropriate, misapply and convert the said amount to her own
personal use and benefit to the damage and prejudice of said complainant in the total
sum of P163,347.00, Philippine currency.

All contrary to law. [2]

Petitioner pleaded Not Guilty to the charge. After trial, the lower court
rendered a Decision on August 17, 1998 finding petitioner guilty of estafa.
Petitioner appealed the lower courts decision to the Court of Appeals, but
the latter dismissed the appeal for lack of merit in its Decision dated October
26, 2000. The dispositive portion thereof reads:
[3]

WHEREFORE, premises considered, the instant appeal is hereby DISMISSED and

the assailed decision is hereby AFFIRMED in toto.

SO ORDERED. [4]

Hence, the instant petition.

Petitioner contends that the appellate court erred in finding that petitioner
had converted or misappropriated the proceeds of the sale of the jewelry, since
the persons to whom she delivered the pieces of jewelry had not yet paid for
the same. Petitioner insists that not having received the payment for said pieces
of jewelry, she had nothing to misappropriate. [5]

Petitioner further argues that the Kasunduan executed by her and private
complainant, which stipulate that she was to pay for the pieces of jewelry
received by her in monthly installments of P3,000.00 resulted in the novation of
her obligation and extinguished her criminal liability. [6]

In his Comment, the Solicitor General argues that during the trial of the
criminal case for estafa, it was established beyond reasonable doubt that
petitioner had committed the crime charged, and that her criminal liability was
not extinguished by the execution of the Kasunduan sa Bayaran. It is further
contended that the petition raises questions of fact which may not be reviewed
in a petition for review on certiorari.[7]

There is no merit in petitioners arguments.

Art. 315, paragraph 1(b) of the Revised Penal Code provides:

Art. 315. Swindling. (estafa).any person who shall defraud another by any of the
means mentioned herein below shall be punished by:

xxx

1. With unfaithfulness or abuse of confidence, namely:

(b) By misappropriating or converting, to the prejudice of another, money, goods, or

any other personal property received by the offender in trust or on commission, or for
administration, or under any other obligation involving the duty to make delivery of or
return the same, even though such obligation be totally or partially guaranteed by a
bond; or by denying having received such money goods or other property.

The elements of estafa with abuse of confidence under this paragraph

are: (1) that money, goods or other personal property be received by the
offender in trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or to return the same; (2) that
there be misappropriation or conversion of such money or property of the
offender; or denial on his part of such receipt; (3) that such misappropriation or
conversion or denial to the prejudice of another; and (4) that there is a demand
made by the offended party to the offender. [8]

Both the trial court and the Court of Appeals found that all the elements of
estafa under Article 315, paragraph 1(b) are present in this case. In its Decision,
the appellate court affirmed the finding of the trial court stating that:

These elements were amply and clearly established in this case, First, accused
received the jewelry for the purpose of selling the same under an express obligation to
remit to complainant the proceeds thereof or to return those she is unable to sell
thereby creating a fiduciary relationship between the[m]. Second, accused
misappropriated the jewelry as shown by the fact that she failed to return the same or
the proceeds thereof despite demand and Third, the misappropriation prejudiced the
private complainant.[9]

The rule is that factual findings of the Court of Appeals are conclusive on
the parties on and this Court, and carry even more weight when the appellate
court affirms the factual findings of the trial court. The Court finds no reason
[10]
to depart from the foregoing rule, considering that the evidence on record
supports the conclusion of both the trial and the appellate courts that petitioner
is liable for estafa with abuse of confidence under Article 315, paragraph 1(b)
of the Revised Penal Code.
Likewise untenable is petitioners argument that there was a novation of her
criminal liability when she and private complainant executed the Kasunduan sa
Bayaran. It is well-settled that the following requisites must be present for
novation to take place: (1) a previous valid obligation; (2) agreement of all the
parties to the new contract; (3) extinguishment of the old contract; and (4)
validity of the new one. [11]

In Quinto vs. People, the Court had occasion to discuss the concept of
[12]

novation, as follows:

Novation, in its broad concept, may either be extinctive or modificatory. It is

extinctive when an old obligation is terminated by the creation of a new obligation
that takes the place of the former; it is merely modificatory when the old obligation
subsists to the extent it remains compatible with the amendatory agreement. xxx

Novation is never presumed, and the animus novandi, whether totally or partially,
must appear by express agreement of the parties, or by their acts that are too clear and
unequivocal to be mistaken.

The extinguishment of the old obligation by the new one is a necessary element of
novation which may be effected either expressly or impliedly. The term expressly
means that the contracting parties incontrovertibly disclose that their object in
executing the new contract is to extinguish the old one. Upon the other hand, no
specific form is required for an implied novation, and all that is prescribed by law
would be an incompatibility between the two contracts. While there is really no hard
and fast rule to determine what might constitute to be a sufficient change that can
bring about novation, the touchstone for contrareity, however, would be an
irreconcilable incompatibility between the old and the new obligations.

xxx The test of incompatibility is whether or not the two obligations can stand
together, each one having its independent existence. If they cannot, they are
incompatible and the latter obligation novates the first. Corollarily, changes that breed
incompatibility must be essential in nature and not merely accidental. The
incompatibility must take place in any of the essential elements of the obligation, such
as its object, cause or principal conditions thereof; otherwise, the change would be
merely modificatory in nature and insufficient to extinguish the original obligation. [13]
 The execution of the Kasunduan sa Bayaran does not constitute a novation
of the original agreement between petitioner and private
complainant. Said Kasunduan did not change the object or principal conditions
of the contract between them. The change in manner of payment of petitioners
obligation did not render the Kasunduan incompatible with the original
agreement, and hence, did not extinguish petitioners liability to remit the
proceeds of the sale of the jewelry or to return the same to private
complainant. As this Court held in Velasquez vs. Court of Appeals: [14]

An obligation to pay a sum of money is not novated, in a new instrument wherein the
old is ratified, by changing only the terms of payment and adding other obligations
not incompatible with the old one, or wherein the old contract is merely supplemented
by the new one.[15]

In any case, novation is not one of the grounds prescribed by the Revised Penal
Code for the guishment of criminal liability. [16]

WHEREFORE, the petition is hereby DENIED and the decision of the Court
of Appeals in CA-G.R. CR No. 22437 is AFFIRMED.
SO ORDERED.

CRISTETA CHUA-BURCE, petitioner, vs. COURT OF APPEALS AND

PEOPLE OF THE PHILIPPINES, respondents. Subject of the present appeal
by certiorari is the decision dated November 27, 1992 of the Court of Appeals
in CA-G.R. CR No. 12037, (a) affirming in toto the trial courts decision finding
petitioner guilty of estafa, and (b) denying her Motion for Reconsideration in a
Resolution dated March 25, 1993. The Regional Trial Court, Calapan, Oriental
Mindoro, Branch 40, rendered a joint decision finding petitioner guilty of estafa
under Article 315, par. 1 (b) of the Revised Penal Code, in Criminal Case No.
C-2313, and likewise found petitioner liable for the amount of P150,000.00 in
Civil Case No. R-3733. Only the criminal case is before us for review. h Y

The uncontroverted facts, as found by the Court of Appeals, are as follows:

On August 16, 1985, Ramon Rocamora, the Manager (of Metropolitan Bank
and Trust Company, Calapan Branch, Oriental Mindoro) requested Fructuoso
Peaflor, Assistant Cashier, to conduct a physical bundle count of the cash
inside the vault, which should total P4,000,000.00, more or less. During this
initial cash count, they discovered a shortage of fifteen bundles of One
Hundred Pesos denominated bills totalling P150,000.00. The One Hundred
Peso bills actually counted was P3,850,000.00 as against the balance of
P4,000,000.00 in the Cash in Vault (CIV) Summary Sheet, or a total shortage
of P150,000.00. The next day, to determine if there was actually a shortage, a
re-verification of the records and documents of the transactions in the bank
was conducted. There was still a shortage of P150,000.00.

The bank initiated investigations totalling four (4) in all. The first was by
Ramon Rocamora, the Manager. The second was by the banks internal
auditors headed by Antonio Batungbakal. Then, the banks Department of
Internal Affairs conducted an independent investigation. Thereafter, the
National Bureau of Investigation (NBI) came in to investigate. All of these
investigations concluded that there was a shortage of P150,000.00, and the
person primarily responsible was the banks Cash Custodian, Cristeta Chua-
Burce, the herein accused. Jksm

On November 4, 1985, unable to satisfactorily explain the shortage of

P150,000.00, the accuseds service with the bank was terminated.

To recover the missing amount, Metropolitan Bank and Trust Company

(Metrobank) filed a Civil Case for Sum of Money and Damages with
Preliminary Attachment and Garnishment docketed as Civil Case No. R-3733
against petitioner and her husband, Antonio Burce. Esm

Prior to the filing of the Answer, the following Information for Estafa was filed
against petitioner:

"That on or about the 16th day of August 1985, and for a period
prior and subsequent thereto, the above-named accused, with
unfaithfulness or abuse of confidence, and with intent to defraud,
did then and there wilfully, unlawfully, and feloniously, in her
capacity as Cash Custodian of the Metrobank, Calapan Branch,
take from the Banks Vault the amount of ONE HUNDRED FIFTY
THOUSAND (P150,000.00) PESOS, which is under her direct
custody and/or accountability, misappropriate and convert to her
own personal use and benefit, without the knowledge and consent
of the offended party, despite repeated demands for her to
account and/or return the said amount, she refused and failed,
and still fails and refuses to the damage and prejudice of the
Metrobank, Calapan Branch, in the aforementioned amount of
ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS.

Contrary to Article 315 of the Revised Penal Code.

Calapan, Oriental Mindoro, November 27, 1985." [1]

Both civil and criminal cases were raffled to the same branch of the Regional
Trial Court of Calapan, Oriental Mindoro, Branch 40. Esmsc

Thereafter, petitioner moved for the suspension of the criminal case on the
ground of the existence of a prejudicial question, viz., that the resolution of the
civil case was determinative of her guilt or innocence in the criminal
case. The trial court, over the vehement opposition of the private and public
[2]

prosecutors, granted the motion and suspended the trial of the criminal
case. On petition for certiorari to the Court of Appeals, the appellate court
[3]

ruled that there was no prejudicial question. [4]

Petitioner was arraigned and assisted by counsel de parte, entered a plea of

not guilty. While the trial of the criminal case was suspended, the trial of the
[5]

civil case continued. At the time of arraignment, the civil case was already
submitted for decision. Hence, during the pre-trial conference of the criminal
case, the parties agreed to adopt their respective evidence in the civil case as
their respective evidence in the criminal case. The trial court ordered the
[6]

parties to submit their written agreement pursuant to Section 4 of Rule 118 of

the Rules of Court. Thereafter, petitioner, duly assisted by her counsel, with
[7]

the conforme of the public prosecutor, entered into the following pre-trial
agreement: [8]

"COMES NOW, the accused, assisted by counsel, and unto this

Honorable Court most respectfully submits this Pre-Trial
agreement:

1. That the evidence already adduced by the plaintiff in Civil Case

No. R-3733 will be adopted by the prosecution as its evidence in
Criminal Case No. C-2313;

2. That the evidence to be adduced by the defendant in Civil Case

No. R-3733 will also be adopted as evidence for the defense in
Criminal Case No. C-2313.

WHEREFORE, premises considered, it is prayed that the

foregoing pre-trial agreement be admitted in compliance with the
Order of this Court dated April 19, 1988.

RESPECTFULLY SUBMITTED.

Calapan, Oriental Mindoro, August 20, 1990.

 CRISTETA CHUA-BURCE (sgd.)

Accused

Assisted By:

RODRIGO C. DIMAYACYAC (sgd.)

Defense Counsel

San Vicente, Calapan

Oriental Mindoro

IBP O.R. No. 292575

May 11, 1990

Quezon City

With Conformity:

EMMANUEL S. PANALIGAN (sgd.)

Prosecuting Fiscal

Pursuant to the pre-trial agreement, the public prosecutor filed a Motion to

Adopt Evidence. Both the pre-trial agreement and said Motion were granted
[9]

by the trial court.

[10]

On March 18, 1991, the trial court rendered a consolidated decision finding
[11]

petitioner (a) guilty of estafa under Article 315 (1) (b) of the Revised Penal
Code in the criminal case, and (b) liable for the amount of P150,000.00 in the
civil case. The dispositive portion of decision provides -

- In Criminal Case No. C-2313 -

WHEREFORE, the Court hereby finds the accused Cristeta Chua-

Burce guilty beyond reasonable doubt of the crime of Estafa,
punishable under Art. 315, paragraph 1 (b) of the Revised Penal
Code, which imposes a penalty of prision correccional in its
maximum period to prision mayor in its minimum period but
considering that the amount involved exceeds P22,000.00, the
 penalty provided for shall be imposed in its maximum period,
adding one year for each additional P10,000.00, but the total
amount not to exceed twenty years. Esmmis

Applying the Indeterminate Sentence Law, the imposable penalty

shall be one degree lower as minimum of arresto mayor with a
penalty range of One Month and One Day to Six Months, as
minimum to prision mayor in its maximum period, as maximum, or
a penalty of Six years to Twelve Years. Considering the mitigating
circumstance of voluntary surrender, the court hereby imposes
upon the accused to suffer imprisonment from SIX (6) MONTHS
of arresto mayor in its maximum period, as minimum, to EIGHT
(8) YEARS of prision mayor, in its minimum period, as maximum.
The civil liability shall not be imposed in this case due to a
separate civil action. Esmso

- In Civil Case No. R-3733 -

WHEREFORE, judgment is hereby rendered in favor of the

plaintiff Metrobank, ordering defendants Cristeta Chua-Burce and
Antonio Burce, spouses, to pay Metrobank the amount of
P150,000.00 representing the amount misappropriated with the
legal rate of six percent (6%) per annum from August 15, 1985
until fully paid and to pay the costs of suit.

SO ORDERED."

Petitioner seasonably appealed her conviction in the criminal case to the

Court of Appeals. Petitioner filed a separate appeal in the civil case.

In a decision dated November 27, 1992, the Court of Appeals affirmed the
[12]

trial courts decision in toto. Petitioners Motion for Reconsideration was

likewise denied. Hence, the recourse to this Court. Msesm
[13]

Petitioner raises the following issues: [14]

1. IS THE RESULT OF POLYGRAPH EXAMINATION

ADMISSIBLE IN EVIDENCE?

2. CAN THE PRESIDING JUDGE OF THE REGIONAL TRIAL

COURT ADMIT IN EVIDENCE THE EVIDENCE WHICH WAS
 ALREADY DENIED ADMISSION IN THE ORDER OF THE
FORMER JUDGE OF THE SAME COURT?

3. DOES PRIMA FACIE PRESUMPTION OF

MISAPPROPRIATION OR CONVERSION EXISTS (sic)
AGAINST THE PETITIONER WHEN THERE WERE OTHER
PERSONS WHO HAD DIRECT AND GREATER ACCESS IN
THE CASH-IN-VAULT?

4. IS RULE 111 SECTION 2 (a) OF THE REVISED RULES ON

CRIMINAL PROCEDURE APPLICABLE IN (sic)THE CASE AT
BAR?

5. WAS THERE A VALID PROCEEDING WHEN THE FISCAL

WAS NOT ACTUALLY PRESENT AND DID NOT CONTROL
AND SUPERVISE THE PROSECUTION OF THE CASE? Exsm

In gist, (1) petitioner contends that the trial court erred in taking into account
the results of the polygraph examination as circumstantial evidence of guilt
considering the inherent unreliability of such tests, and the fact that the
previous trial judge who handled the case already ruled such evidence as
inadmissible; (2) petitioner insists that there can be no presumption of
misappropriation when there were other persons who had access to the cash
in vault; and (3) petitioner questions the validity of the trial of criminal case
considering that the pre-trial agreement dispensed with the intervention of the
public prosecutor in a full-blown trial of the criminal case. Kyle

The Office of the Solicitor General, for the State, contends that the guilt of
petitioner has been proven beyond reasonable doubt by the following facts
which were duly established during trial - first, petitioner was the cash
custodian who was directly responsible and accountable for the cash-in-
vault. Second, the other persons who had access to the vault facilities never
used the duplicate keys to open the safety deposit boxes and the cash safe
from where the P100.00 bill denominations were located. In fact, the duplicate
keys were offered in evidence still in their sealed envelopes. Third, alterations
and superimposition on the cash-in-vault summary sheet were made by
petitioner to cover the cash shortage. Lastly, there was a valid joint trial of the
civil and criminal cases.

The crucial issues, in our mind, are (1) whether there was a valid trial of the
criminal case, and (2) whether the elements of the crime of estafa under
Article 315 (1) (b) of the Revised Penal Code were duly proven beyond
reasonable doubt. Kycalr

First, petitioner assails the validity of the proceedings in the trial court on the
ground that the public prosecutor did not intervene and present any evidence
during the trial of the criminal case. The records clearly show that the pre-trial
agreement was prepared by petitioner with the conforme of the public
prosecutor. Thereafter, petitioner filed a consolidated memorandum
for both civil and criminal cases. Section 5 of Rule 110 requires that all
[15]

criminal actions shall be prosecuted under the direction and control of the
public prosecutor. The rationale behind the rule is "to prevent malicious or
unfounded prosecutions by private persons." The records show that the
[16]

public prosecutor actively participated in the prosecution of the criminal case

from its inception. It was during pre-trial conference when the parties agreed
to adopt their respective evidence in the civil case to the criminal case. This is
allowed under Section 2 (e) of Rule 118 of the Rules of Court which provides
[17]

that during pre-trial conference, the parties shall consider "such other matters
as will promote a fair and expeditious trial." The parties, in compliance with
Section 4 of Rule 118, reduced to writing such agreement. Petitioner, her
[18]

counsel, and the public prosecutor signed the agreement. Petitioner is bound
by the pre-trial agreement, and she cannot now belatedly disavow its
contents.[19]

On the second issue. Petitioner was charged with the crime of estafa under
Article 315 (1) (b) of the Revised Penal Code. In general, the elements of
[20]

estafa are: (1) that the accused defrauded another (a) by abuse of confidence
or (b) by means of deceit; and (2) that damage or prejudice capable of
pecuniary estimation is caused to the offended party or third person. Deceit is
[21]

not an essential requisite of estafa with abuse of confidence, since the breach
of confidence takes the place of the fraud or deceit, which is a usual element
in the other estafas. [22]

The elements of estafa through conversion or misappropriation under Art. 315

(1) (b) of the Revised Penal Code are: [23]

(1) that personal property is received in trust, on commission, for

administration or under any other circumstance involving the duty
to make delivery of or to return the same, even though the
obligation is guaranteed by a bond;
 (2) that there is conversion or diversion of such property by the
person who has so received it or a denial on his part that he
received it;

(3) that such conversion, diversion or denial is to the injury of

another and

(4) that there be demand for the return of the property.

Have the foregoing elements been met in the case at bar? We find the first
element absent. When the money, goods, or any other personal property is
received by the offender from the offended party (1) in trust or (2)
on commission or (3) for administration, the offender acquires both material or
physical possession and juridical possession of the thing received. Juridical
[24]

possession means a possession which gives the transferee a right over the
thing which the transferee may set up even against the owner. In this case,
[25]

petitioner was a cash custodian who was primarily responsible for the cash-in-
vault. Her possession of the cash belonging to the bank is akin to that of a
bank teller, both being mere bank employees. Calrky

In People v. Locson, the receiving teller of a bank misappropriated the

[26]

money received by him for the bank. He was found liable for qualified theft on
the theory that the possession of the teller is the possession of the bank. We
explained in Locson that -

"The money was in the possession of the defendant as receiving

teller of the bank, and the possession of the defendant was the
possession of the bank. When the defendant, with grave abuse of
confidence, removed the money and appropriated it to his own
use without the consent of the bank, there was the taking
or apoderamiento contemplated in the definition of the crime of
theft."
[27]

In the subsequent case of Guzman v. Court of Appeals, a travelling sales

[28]

agent misappropriated or failed to return to his principal the proceeds of things

or goods he was commissioned or authorized to sell. He was, however, found
liable for estafa under Article 315 (1) (b) of the Revised Penal Code, and not
qualified theft. In the Guzman case, we explained the distinction
between possession of a bank teller and an agent for purposes of determining
criminal liability -
 "The case cited by the Court of Appeals (People vs. Locson, 57
Phil. 325), in support of its theory that appellant only had the
material possession of the merchandise he was selling for his
principal, or their proceeds, is not in point. In said case, the
receiving teller of a bank who misappropriated money received by
him for the bank, was held guilty of qualified theft on the theory
that the possession of the teller is the possession of the bank.
There is an essential distinction between the possession by a
receiving teller of funds received from third persons paid to the
bank, and an agent who receives the proceeds of sales of
merchandise delivered to him in agency by his principal. In the
former case, payment by third persons to the teller is payment to
the bank itself; the teller is a mere custodian or keeper of the
funds received, and has no independent right or title to retain or
possess the same as against the bank. An agent, on the other
hand, can even assert, as against his own principal, an
independent, autonomous, right to retain money or goods
received in consequence of the agency; as when the principal
fails to reimburse him for advances he has made, and indemnify
him for damages suffered without his fault (Article 1915, [N]ew
Civil Code; Article 1730, old)." Mesm

Petitioner herein being a mere cash custodian had no juridical possession

over the missing funds. Hence, the element of juridical possession being
absent, petitioner cannot be convicted of the crime of estafa under Article 315,
No. 1 (b) of the Revised Penal Code. [29]

WHEREFORE, the petition is hereby granted and petitioner is ACQUITTED of

the crime of estafa under Article 315 (1) (b) of the Revised Penal Code.
Petitioner is ordered RELEASED from custody unless she is being held for
some other lawful cause. No costs. Slx

SO ORDERED.

SOLEMNIDAD M. BUAYA, petitioner,

vs.
THE HONORABLE WENCESLAO M. POLO, Presiding Judge, Branch XIX, Regional Trial)
Court of Manila and the COUNTRY BANKERS INSURANCE CORPORATION, respondents.

Apolinario M. Buaya for petitioner.

Romeo G. Velasquez for respondent Country Bankers Insurance Corporation.

PARAS, J.:

Petitioner, Solemnidad M. Buaya, in the instant petition for certiorari, seeks to annul and set aside
the orders of denial issued by the respondent Judge of the Regional Trial Court of Manila, Branch
XIX on her Motion to Quash/Dismiss and Motion for Reconsideration in Criminal Case No. L-83-
22252 entitled "People of the Philippines vs. Solemnidad M. Buaya." The Motion to Dismiss was
anchored on the following grounds (a) the court has no jurisdiction over the case and (b) the subject
matter is purely civil in nature.

It appears that petitioner was an insurance agent of the private respondent, who was authorized to
transact and underwrite insurance business and collect the corresponding premiums for and in
behalf of the private respondent. Under the terms of the agency agreement, the petitioner is required
to make a periodic report and accounting of her transactions and remit premium collections to the
principal office of private respondent located in the City of Manila. Allegedly, an audit was conducted
on petitioner's account which showed a shortage in the amount of P358,850.72. As a result she was
charged with estafa in Criminal Case No. 83-22252, before the Regional Trial Court of Manila,
Branch XIX with the respondent Hon. Wenceslao Polo as the Presiding Judge. Petitioner filed a
motion to dismiss. which motion was denied by respondent Judge in his Order dated March 26,
1986. The subsequent motion for reconsideration of this order of denial was also denied.

These two Orders of denial are now the subject of the present petition. It is the contention of
petitioner that the Regional trial Court of Manila has no jurisdiction because she is based in Cebu
City and necessarily the funds she allegedly misappropriated were collected in Cebu City.

Petitioner further contends that the subject matter of this case is purely civil in nature because the
fact that private respondent separately filed Civil Case No. 83-14931 involving the same alleged
misappropriated amount is an acceptance that the subject transaction complained of is not proper
for a criminal action.

The respondents on the other hand, call for adherence to the consistent rule that the denial of a
motion to dismiss or to quash, being interlocutory in character, cannot be questioned
by certiorari and it cannot be the subject of appeal until final judgment or order rendered (See. 2,
Rule 41, Rules of Court). the ordinary procedure to be followed in such a case is to enter a Plea, go
to trial and if the decision is adverse, reiterate the issue on appeal from the final judgment
(Newsweek Inc. v. IAC, 142 SCRA 171).

The general rule is correctly stated. But this is subject to certain exceptions the reason is that it
would be unfair to require the defendant or accused to undergo the ordeal and expense of a trial if
the court has no jurisdiction over the subject matter or offense or it is not the court of proper venue.

Here, petitioner questions the jurisdiction of the Regional Trial Court of Manila to take cognizance of
this criminal case for estafa.

It is well-settled that the averments in the complaint or information characterize the crime to be
prosecuted and the court before which it must be tried (Balite v. People, L-21475, Sept. 30,1966
cited in People v. Masilang, 142 SCRA 680).
In Villanueva v. Ortiz, et al . (L-15344, May 30, 1960, 108 Phil, 493) this Court ruled that in order to
determine the jurisdiction of the court in criminal cases, the complaint must be examined for the
purpose of ascertaining whether or not the facts set out therein and the punishment provided for by
law fall within the jurisdiction of the court where the complaint is filed. The jurisdiction of courts in
criminal cases is determined by the allegations of the complaint or information, and not by the
findings the court may make after the trial (People v. Mission, 87 Phil. 641).

The information in the case at reads as follows:

The undersigned accuses Solemnidad Buaya of the crime of estafa, committed as follows:

That during the period 1980 to June 15, 1982, inclusive, in the City of
Manila, Philippines, the said accused did then and there wilfully,
unlawfully and feloniously defraud the Country Bankers Insurance
Corporation represented by Elmer Banez duly organized and earth
under the laws of the Philippine with principal address at 9th floor,
G.R. Antonio Bldg., T.M. Kalaw, Ermita, in said City, in the following
manner, to wit. the said having been authorized to act as insurance
agent of said corporation, among whose duties were to remit
collections due from customers thereat and to account for and turn
over the same to the said Country Bankers Insurance Corporation
represented by Elmer Banez, as soon as possible or immediately
upon demand, collected and received the amount of P368,850.00
representing payments of insurance premiums from customers, but
herein accused, once in possession of said amount, far from
complying with her aforesaid obligation, failed and refused to do so
and with intent to defraud, absconded with the whole amount thereby
misappropriated, misapplied and converted the said amount of
P358,850.00 to her own personal used and benefit, to the damage
and prejudice of said Country Bankers Insurance Corporation in the
amount of P358,850.00 Philippine Currency.

CONTRARY TO LAW. (p. 44, Rollo)

Section 14(a), Rule 110 of the Revised Rules of Court provides: In all criminal — prosecutions the
action shall be instituted and tried in the court of the municipality or province wherein the offense
was committed or any of the essential elements thereof took place.

The subject information charges petitioner with estafa committed "during the period 1980 to June 15,
1982 inclusive in the City of Manila, Philippines . . . ." (p. 44, Rollo)

Clearly then, from the very allegation of the information the Regional Trial Court of Manila has
jurisdiction.

Besides, the crime of estafa is a continuing or transitory offense which may be prosecuted at the
place where any of the essential elements of the crime took place. One of the essential elements of
estafa is damage or prejudice to the offended party. The private respondent has its principal place of
business and office at Manila. The failure of the petitioner to remit the insurance premiums she
collected allegedly caused damage and prejudice to private respondent in Manila.

Anent petitioners other contention that the subject matter is purely civil in nature, suffice it to state
that evidentiary facts on this point have still to be proved.
WHEREFORE, the petition is DISMISSED for lack of merit The case is remanded to the Regional
Trial Court of Manila, Branch XIX for further proceedings.

SO ORDERED.

ANTI-BOUNCING CHECKS LAW (BP 22)

EUMELIA R. MITRA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and FELICISIMO S. TARCELO, Respondents.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the July 31,
2009 Decision1and the February 11, 2010 Resolution of the Court of Appeals (CA) in CA-G.R. CR
No. 31740. The subject decision and resolution affirmed the August 22, 2007 Decision of the
Regional Trial Court, Branch 2, Batangas City (RTC) which, in turn, affirmed the May 21, 2007
Decision of the Municipal Trial Court in Cities, Branch 2, Batangas City (MTCC).

THE FACTS:

Petitioner Eumelia R. Mitra (Mitra) was the Treasurer, and Florencio L. Cabrera, Jr. (now deceased)
was the President, of Lucky Nine Credit Corporation (LNCC), a corporation engaged in money
lending activities.

Between 1996 and 1999, private respondent Felicisimo S. Tarcelo (Tarcelo) invested money in
LNCC. As the usual practice in money placement transactions, Tarcelo was issued checks
equivalent to the amounts he invested plus the interest on his investments. The following checks,
signed by Mitra and Cabrera, were issued by LNCC to Tarcelo.2

Bank Date Issued Date of Check Amount Check No.

Security Bank September 15, 1998 January 15, 1999 ₱ 3,125.00 0000045804

-do- September 15, 1998 January 15, 1999 125,000.00 0000045805

-do- September 20, 1998 January 20, 1999 2,500.00 0000045809

-do- September 20, 1998 January 20, 1999 100,000.00 0000045810

-do- September 30, 1998 January 30, 1999 5,000.00 0000045814

-do- September 30, 1998 January 30, 1999 200,000.00 0000045815

-do- October 3, 1998 February 3, 1999 2,500.00 0000045875

 -do- October 3, 1998 February 3, 1999 100,000.00 0000045876

-do- November 17, 1998 February17, 1999 5,000.00 0000046061

-do- November 17, 1998 March 17, 1999 5,000.00 0000046062

-do- November 17, 1998 March 17, 1999 200,000.00 0000046063

-do- November 19, 1998 January 19, 1999 2,500.00 0000046065

-do- November 19, 1998 February19, 1999 2,500.00 0000046066

-do- November 19, 1998 March 19, 1999 2,500.00 0000046067

-do- November 19, 1998 March 19, 1999 100,000.00 0000046068

-do- November 20, 1998 January 20, 1999 10,000.00 0000046070

-do- November 20, 1998 February 20, 1999 10,000.00 0000046071

-do- November 20, 1998 March 20, 1999 10,000.00 0000046072

-do- November 20, 1998 March 20, 1999 10,000.00 0000046073

-do- November 30, 1998 January 30, 1999 2,500.00 0000046075

-do- November 30, 1998 February 28, 1999 2,500.00 0000046076

-do- November 30, 1998 March 30, 1999 2,500.00 0000046077

-do- November 30, 1998 March 30, 1999 100,000.00 0000046078

When Tarcelo presented these checks for payment, they were dishonored for the reason "account
closed." Tarcelo made several oral demands on LNCC for the payment of these checks but he was
frustrated. Constrained, in 2002, he caused the filing of seven informations for violation of Batas
Pambansa Blg. 22 (BP 22) in the total amount of ₱925,000.00 with the MTCC in Batangas City.3 1avv phi 1

After trial on the merits, the MTCC found Mitra and Cabrera guilty of the charges. The fallo of the
May 21, 2007 MTCC Decision4 reads:

WHEREFORE, foregoing premises considered, the accused FLORENCIO I. CABRERA, JR., and
EUMELIA R. MITRA are hereby found guilty of the offense of violation of Batas Pambansa Bilang 22
and are hereby ORDERED to respectively pay the following fines for each violation and with
subsidiary imprisonment in all cases, in case of insolvency:

1. Criminal Case No. 43637 - ₱200,000.00

 2. Criminal Case No. 43640 - ₱100,000.00

3. Criminal Case No. 43648 - ₱100,000.00

4. Criminal Case No. 43700 - ₱125,000.00

5. Criminal Case No. 43702 - ₱200,000.00

6. Criminal Case No. 43704 - ₱100,000.00

7. Criminal Case No. 43706 - ₱100,000.00

Said accused, nevertheless, are adjudged civilly liable and are ordered to pay, in solidum, private
complainant Felicisimo S. Tarcelo the amount of NINE HUNDRED TWENTY FIVE THOUSAND
PESOS (₱925,000.000).

SO ORDERED.

Mitra and Cabrera appealed to the Batangas RTC contending that: they signed the seven checks in
blank with no name of the payee, no amount stated and no date of maturity; they did not know when
and to whom those checks would be issued; the seven checks were only among those in one or two
booklets of checks they were made to sign at that time; and that they signed the checks so as not to
delay the transactions of LNCC because they did not regularly hold office there.5

The RTC affirmed the MTCC decision and later denied their motion for reconsideration. Meanwhile,
Cabrera died. Mitra alone filed this petition for review6 claiming, among others, that there was no
proper service of the notice of dishonor on her. The Court of Appeals dismissed her petition for lack
of merit.

Mitra is now before this Court on a petition for review and submits these issues:

1. WHETHER OR NOT THE ELEMENTS OF VIOLATION OF BATAS PAMBANSA

BILANG 22 MUST BE PROVED BEYOND REASONABLE DOUBT AS AGAINST THE
CORPORATION WHO OWNS THE CURRENT ACCOUNT WHERE THE SUBJECT
CHECKS WERE DRAWN BEFORE LIABILITY ATTACHES TO THE SIGNATORIES.

2. WHETHER OR NOT THERE IS PROPER SERVICE OF NOTICE OF DISHONOR AND

DEMAND TO PAY TO THE PETITIONER AND THE LATE FLORENCIO CABRERA, JR.

The Court denies the petition.

A check is a negotiable instrument that serves as a substitute for money and as a convenient form of
payment in financial transactions and obligations. The use of checks as payment allows commercial
and banking transactions to proceed without the actual handling of money, thus, doing away with the
need to physically count bills and coins whenever payment is made. It permits commercial and
banking transactions to be carried out quickly and efficiently. But the convenience afforded by
checks is damaged by unfunded checks that adversely affect confidence in our commercial and
banking activities, and ultimately injure public interest.

BP 22 or the Bouncing Checks Law was enacted for the specific purpose of addressing the problem
of the continued issuance and circulation of unfunded checks by irresponsible persons. To stem the
harm caused by these bouncing checks to the community, BP 22 considers the mere act of issuing
an unfunded check as an offense not only against property but also against public order.7 The
purpose of BP 22 in declaring the mere issuance of a bouncing check as malum prohibitum is to
punish the offender in order to deter him and others from committing the offense, to isolate him from
society, to reform and rehabilitate him, and to maintain social order.8 The penalty is stiff. BP 22
imposes the penalty of imprisonment for at least 30 days or a fine of up to double the amount of the
check or both imprisonment and fine.

Specifically, BP 22 provides:

SECTION 1. Checks Without Sufficient Funds. - Any person who makes or draws and issues any
check to apply on account or for value, knowing at the time of issue that he does not have sufficient
funds in or credit with the drawee bank for the payment of such check in full upon its presentment,
which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or
would have been dishonored for the same reason had not the drawer, without any valid reason,
ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but
not more than one (1) year or by a fine of not less than but not more than double the amount of the
check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and
imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person who, having sufficient funds in or credit with
the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to
maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days
from the date appearing thereon, for which reason it is dishonored by the drawee bank.

Where the check is drawn by a corporation, company or entity, the person or persons who actually
signed the check in behalf of such drawer shall be liable under this Act.

SECTION 2. Evidence of Knowledge of Insufficient Funds. - The making, drawing and issuance of a
check payment of which is refused by the drawee because of insufficient funds in or credit with such
bank, when presented within ninety (90) days from the date of the check, shall be prima facie
evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the
holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of
such check within five (5) banking days after receiving notice that such check has not been paid by
the drawee.

Mitra posits in this petition that before the signatory to a bouncing corporate check can be held
liable, all the elements of the crime of violation of BP 22 must first be proven against the corporation.
The corporation must first be declared to have committed the violation before the liability attaches to
the signatories of the checks.9

The Court finds Itself unable to agree with Mitra's posture. The third paragraph of Section 1 of BP 22
reads: "Where the check is drawn by a corporation, company or entity, the person or persons who
actually signed the check in behalf of such drawer shall be liable under this Act." This provision
recognizes the reality that a corporation can only act through its officers. Hence, its wording is
unequivocal and mandatory - that the person who actually signed the corporate check shall be held
liable for a violation of BP 22. This provision does not contain any condition, qualification or
limitation.

In the case of Llamado v. Court of Appeals,10 the Court ruled that the accused was liable on the
unfunded corporate check which he signed as treasurer of the corporation. He could not invoke his
lack of involvement in the negotiation for the transaction as a defense because BP 22 punishes the
mere issuance of a bouncing check, not the purpose for which the check was issued or in
consideration of the terms and conditions relating to its issuance. In this case, Mitra signed the
LNCC checks as treasurer. Following Llamado, she must then be held liable for violating BP 22.

Another essential element of a violation of BP 22 is the drawer's knowledge that he has insufficient
funds or credit with the drawee bank to cover his check. Because this involves a state of mind that is
difficult to establish, BP 22 creates the prima facie presumption that once the check is dishonored,
the drawer of the check gains knowledge of the insufficiency, unless within five banking days from
receipt of the notice of dishonor, the drawer pays the holder of the check or makes arrangements
with the drawee bank for the payment of the check. The service of the notice of dishonor gives the
drawer the opportunity to make good the check within those five days to avert his prosecution for
violating BP 22.

Mitra alleges that there was no proper service on her of the notice of dishonor and, so, an essential
element of the offense is missing. This contention raises a factual issue that is not proper for review.
It is not the function of the Court to re-examine the finding of facts of the Court of Appeals. Our
review is limited to errors of law and cannot touch errors of facts unless the petitioner shows that the
trial court overlooked facts or circumstances that warrant a different disposition of the case11 or that
the findings of fact have no basis on record. Hence, with respect to the issue of the propriety of
service on Mitra of the notice of dishonor, the Court gives full faith and credit to the consistent
findings of the MTCC, the RTC and the CA.

The defense postulated that there was no demand served upon the accused, said denial deserves
scant consideration. Positive allegation of the prosecution that a demand letter was served upon the
accused prevails over the denial made by the accused. Though, having denied that there was no
demand letter served on April 10, 2000, however, the prosecution positively alleged and proved that
the questioned demand letter was served upon the accused on April 10, 2000, that was at the time
they were attending Court hearing before Branch I of this Court. In fact, the prosecution had
submitted a Certification issued by the other Branch of this Court certifying the fact that the accused
were present during the April 10, 2010 hearing. With such straightforward and categorical testimony
of the witness, the Court believes that the prosecution has achieved what was dismally lacking in the
three (3) cases of Betty King, Victor Ting and Caras - evidence of the receipt by the accused of the
demand letter sent to her. The Court accepts the prosecution's narrative that the accused refused to
sign the same to evidence their receipt thereof. To require the prosecution to produce the signature
of the accused on said demand letter would be imposing an undue hardship on it. As well, actual
receipt acknowledgment is not and has never been required of the prosecution either by law or
jurisprudence.12 [emphasis supplied]

With the notice of dishonor duly served and disregarded, there arose the presumption that Mitra and
Cabrera knew that there were insufficient funds to cover the checks upon their presentment for
payment. In fact, the account was already closed.

To reiterate the elements of a violation of BP 22 as contained in the above-quoted provision, a

violation exists where:

1. a person makes or draws and issues a check to apply on account or for value;

2. the person who makes or draws and issues the check knows at the time of issue that he
does not have sufficient funds in or credit with the drawee bank for the full payment of the
check upon its presentment; and
 3. the check is subsequently dishonored by the drawee bank for insufficiency of funds or
credit, or would have been dishonored for the same reason had not the drawer, without any
valid reason, ordered the bank to stop payment. 13

There is no dispute that Mitra signed the checks and that the bank dishonored the checks because
the account had been closed. Notice of dishonor was properly given, but Mitra failed to pay the
checks or make arrangements for their payment within five days from notice. With all the above
elements duly proven, Mitra cannot escape the civil and criminal liabilities that BP 22 imposes for its
breach.14

WHEREFORE, the July 31, 2009 Decision and the February 11, 2010 Resolution of the Court of
Appeals in CA-G.R. CR No. 31740 are hereby AFFIRMED.

SO ORDERED.

ALBINO JOSEF, G.R. No. 146424

Petitioner,
Present:
PANGANIBAN, J., Chairman
SANDOVAL-GUTIERREZ,*
- v e r s u s - CORONA,
CARPIO MORALES and
GARCIA, JJ.

PEOPLE OF THE PHILIPPINES**

and AGUSTIN ALARILLA,
Respondents. Promulgated:

This is a petition for review on certiorari[1] of a decision of the Court

of Appeals in CA-G.R. CR no. 23234,[2] which affirmed the decision of
the Regional Trial Court of Malolos Bulacan convicting Albino Josef
of 26 counts of violation of BP 22, also known as the Anti-Bouncing
Checks Law.[3]
By way of a preliminary clarification, this is a petition for review
of the CAs decision affirming Albino Josefs conviction for 26 counts
of violation of BP 22. It is therefore a criminal case and the People of
the Philippines should be impleaded as a respondent in line with
Section 2, Rule 125 of the 2000 Rules of Criminal
Procedure.[4] Nonetheless, petitioner, in filing this petition,
incorrectly entitled it Albino Josef v. Agustin Alarilla. In accord with
Section 6, Rule 1 of the Rules of Court,[5] we have allowed petitioner
Josef to subsequently implead the People of the Philippines as
respondent in this case.

Now, the facts.

From June to August, 1991, petitioner, a Marikina-based
manufacturer and seller of shoes, purchased materials from
respondent Agustin Alarilla, a seller of leather products from
Meycauayan, Bulacan, for which the former issued a total of 26
postdated checks against his account with the Associated Bank and
Far East Bank & Trust Company (Marikina Branches). When private
respondent presented these checks for encashment, they were
dishonored because the accounts against which they were drawn
were closed. Private respondent informed petitioner of the dishonor
and demanded payment of their value. After some negotiations,
petitioner drew and delivered a new set of postdated checks in
replacement of the dishonored ones. Private respondent, in turn,
returned to petitioner the originals of the dishonored postdated
checks but retained photocopies thereof. When private respondent
deposited the replacement checks in his account with the Westmont
Bank, these were also dishonored by the drawee bank. As a result,
the private respondent filed criminal complaints against petitioner for
violation of BP 22 with the Office of the Provincial Prosecutor of
Bulacan. After preliminary investigation, the Provincial Prosecutor
filed 26 Informations against petitioner with the RTC of Bulacan for
violation of BP 22, entitled People v. Josef, Criminal Case Nos. 2113-
M-93 to 2138-M-93, for the original 26 postdated checks.[6]

The trial court convicted petitioner on all counts and imposed

the penalty of six months for each conviction. The Court of Appeals,
in the assailed decision, affirmed the trial court.

Petitioner admits having issued the 26 dishonored checks.

However, he claims the following defenses: 1) he has already paid
private respondent the amount of the checks in cash; 2) the trial
court was incorrect to accept as evidence photocopies of the original
checks and 3) he acted in good faith. He likewise adopts the
dissenting opinion of CA Justice Martin Villarama, Jr.,[7] which states
that the penalty of imprisonment was incorrectly imposed on
petitioner in the light of Administrative Circular No. 12-2000.[8]

The petition is without merit.

The elements of violation of BP 22 are:

1) making, drawing and issuing any check to apply on

account or for value;

2) knowledge of the maker, drawer or issuer that at the

time of issue he does not have sufficient funds in or credit
with the drawee bank for the payment of the check in full
upon its presentment; and

3) subsequent dishonor of the check by the drawee bank

for insufficiency of funds or credit, or dishonor of the check
 for the same reason had not the drawer, without any valid
cause, ordered the bank to stop payment.[9]

All three elements are present here.

Petitioner categorically admits the fact of issuance of the checks

and their dishonor,[10] the first and third elements. He has likewise
failed to rebut the statutory presumption[11] of knowledge of
insufficient funds, the second element, which attaches if the check is
presented and dishonored within 90 days from its issuance.[12] While
petitioner alleges to have paid private respondent the amount of the
checks, he failed to specify if he had done so within five banking days
from receiving notice of the checks dishonor and to present any
evidence of such payment. In addition, his unsubstantiated claim of
cash payment contradicts his earlier defense that he had replaced
the checks.

Moving onto the procedural aspects of the case, petitioner

claims that, under the Best Evidence Rule, the trial court should not
have admitted in evidence the photocopies of the checks until after
he had been given reasonable notice to produce the originals. The
Court of Appeals, in disposing of this contention, said:[13]

However, in the light of the factual milieu in the present

recourse, (we) find and so declare that the Court a quo did not
commit any reversible error in admitting in evidence the photostatic
copies of the subject checks in lieu of the originals thereof in the
possession of the [Petitioner]. It bears stressing that the raison
detre of the proscription against the admission of secondary
evidence in lieu or in substitution of the original thereof is to prevent
the commission of fraud on the part of the offeror who is in
possession of the best evidence but, in lieu thereof, adduced
secondary evidence:

xxx xxx xxx

When he testified in the Court a quo, the [Petitioner] brought

out the originals of the checks and even marked the same in
evidence as Exhibits 1 to 21, except five (5) of the subject checks,
which he claimed as missing and the Prosecution even adopted
the original checks as its evidence:

xxx xxx xxx

The [Petitioner] admitted, before the Court a quo, that the originals
of the subject checks were in his possession. The [Petitioner]
never alleged that the photostatic copies of the checks
marked and offered in evidence by the Prosecution were not
faithful copies of the originals of the checks. In point of fact,
when he testified in the Court a quo, he was shown, by his
counsel, the photostatic copies of the subject checks and admitted
that the originals of said checks were in his possession on his claim
that he had paid the Private Complainant the amount
of P600,000.00 in cash and the balance in the form of checks
which he drew and issued to the Private Complainant by way of
replacement of the aforesaid other checks:

xxx xxx xxx

By his testimony, the [Petitioner] thereby admitted that the

photostatic copies of the checks marked and offered in
evidence by the Prosecution were the faithful reproductions
of the originals of the checks in his possession. Hence, the
Prosecution may mark and offer in evidence the photostatic
copies of the checks.

xxx xxx xxx

Having admitted, albeit impliedly, that the photostatic copies of the

checks admitted in evidence by the Court a quo were the faithful
reproduction of the original copies in his possession, the Petitioner
 was thus estopped from invoking Section 3, Rule 130 of the
Revised Rules of Evidence.

We agree with the Court of Appeals. By admitting that the

originals were in his possession and even producing them in open
court, petitioner cured whatever flaw might have existed in the
prosecutions evidence. The fact that these originals were all stamped
account closed merely confirmed the allegations of the respondent
that the checks were dishonored by reason of the account being
closed. Because they were entirely consistent with its main theory,
the prosecution correctly adopted these originals as its own evidence.
In addition, by petitioners own admission, five of the original checks
were lost, thus rendering the photocopies thereof admissible as
exceptions to the Best Evidence Rule.[14]

Regarding petitioners allegation of good faith, suffice it to say

that such a claim is immaterial, the offense in question being malum
prohibitum.[15] The gravamen of the offense is the issuance of a bad
check and therefore, whether or not malice and intent attended such
issuance is unimportant.[16]

In invoking of A.C. No. 12-2000, petitioner adopts the

interpretation of Justice Villarama to the effect that the circular
mandates judges to impose fines rather than imprisonment on
violators of BP 22. In affirming the sentence imposed by the trial
court, the majority pointed out that it is only under certain conditions
that trial court judges may impose fines rather than imprisonment.
The Circular provides, in part:
In its decision in Eduardo Vaca, v. Court of Appeals the Supreme
Court (Second Division) per Mr. Justice V. Mendoza, modified the sentence
imposed for violation of B.P. Blg. 22 by deleting the penalty of imprisonment
and imposing only the penalty of fine in an amount double the amount of
the check. In justification thereof, the Court said:

Petitioners are first-time offenders. They are Filipino

entrepreneurs who presumably contribute to the national
economy. Apparently, they brought this appeal, believing in
all good faith, although mistakenly that they had not
committed a violation of B.P. Blg. 22. Otherwise they could
simply have accepted the judgment of the trial court and
applied for probation to evade a prison term. It would best
serve the ends of criminal justice if in fixing the penalty within
the range of discretion allowed by 1, par. 1, the same
philosophy underlying the Indeterminate Sentence Law is
observed, namely, that of redeeming valuable human
material and preventing unnecessary deprivation of personal
liberty and economic usefulness with due regard to the
protection of the social order. In this case we believe that a
fine in an amount equal to double the amount of the check
involved is an appropriate penalty to impose on each of the
petitioners.

In the recent case of Rosa Lim v. People of the Philippines, the

Supreme Court en banc, applying Vaca also deleted the penalty of
imprisonment and sentenced the drawer of the bounced check to the
maximum of the fine allowed by B.P. Blg. 22, i.e., P200,000, and concluded
that such would best serve the ends of criminal justice.

All courts and judges concerned should henceforth take note of the
foregoing policy of the Supreme Court on the matter of the imposition of
penalties for violations of B.P. Blg. 22.

Considerable confusion arose as a result of this circular. Like

Justice Villarama, many came to believe that the policy enunciated
in this circular was to altogether remove imprisonment as an
alternative penalty for violation of BP 22. The circular created so
much confusion, in fact, that less than three months later, we had to
issue yet another circular, Administrative Circular No. 13-
2001,[17] for the specific purpose of clarifying exactly what the
implications of A.C. No. 12-2000 were. In order to put all doubts to
rest, the second circular provides:
The clear tenor and intention of Administrative Order No. 12-
2000 is not to remove imprisonment as an alternative penalty, but
to lay down a rule of preference in the application of the penalties
provided for in B.P. Blg. 22.

The pursuit of this purpose clearly does not foreclose the

possibility of imprisonment for violators of B.P. Blg. 22. Neither
does it defeat the legislative intent behind the law.

Thus, Administrative Circular No. 12-2000 establishes a rule

of preference in the application of the penal provisions of B.P. Blg.
22 such that where the circumstances of both the offense and the
offender clearly indicate good faith or a clear mistake of fact without
taint of negligence, the imposition of a fine alone should be
considered as the more appropriate penalty. Needless to say, the
determination of whether the circumstances warrant the
imposition of a fine alone rests solely upon the Judge. Should
the Judge decide that imprisonment is the more appropriate
penalty, Administrative Circular No. 12-2000 ought not to be
deemed a hindrance (emphasis ours).

Clearly, the imposition of either a fine or imprisonment remains

entirely within the sound discretion of the judge trying the case,
based on his assessment of the offender and the facts. Justice
Villarama premised his dissent on the absence of a distinction in A.C.
No. 12-2000 between which offenders deserve the relatively lenient
penalty of a fine and which deserve imprisonment. As A.C. No. 13-
2001 states, the application of the circular is selective and it is
entirely up to the trial court judge to make that distinction, given the
circumstances obtaining. This brings us to the factual issue of
petitioners worthiness of the lighter penalty. On this, we see no
reason to disturb the findings of the trial court.

WHEREFORE, the petition is hereby DENIED. The decision of

the Court of Appeals in CA-G.R. CR No. 23234 is hereby AFFIRMED.

Costs against petitioner.

SO ORDERED.
LILANY YULO y BILLONES, petitioner, vs. THE PEOPLE OF THE
PHILIPPINES, respondent.

DECISION
SANDOVAL-GUTIERREZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997

Rules of Civil Procedure, as amended, seeking to reverse the Decision of the
[1]

Court of Appeals dated January 31, 1997 in CA-G.R. CR No. 17513 and its
Resolution dated March 16, 2000.
[2]

The facts, as culled from the findings of the trial court and affirmed by the
Court of Appeals are:
Sometime in August 1992, Lilany B. Yulo, petitioner, and Josefina
Dimalanta went to the house of Myrna Roque, private complainant, in Caloocan
City. Josefina, introduced to Myrna petitioner Yulo as her best friend and a good
payer. Josefina told Myrna that petitioner wanted her checks encashed. In view
of Josefinas assurance that petitioner is trustworthy, Myrna agreed to encash
the checks. Petitioner then issued to Myrna three checks: (a) Equitable Bank
(EB) Check No. 237936 in the amount of P40,000.00, postdated September 30,
1992; (b) EB Check No. 237941 in the amount of P16,200.00; and (c) Bank of
the Philippine Islands (BPI) Check No. 656602 in the amount of P40,000.00,
postdated November 18, 1992.
When Myrna presented the checks for payment to the drawee banks, they
were dishonored. The EB checks were Drawn Against Insufficient Funds, while
the BPI check was stamped Account Closed.
As Myrna did not know petitioners address, she immediately informed
Josefina about the dishonored checks. The latter told Myrna not to worry and
repeated her assurance that petitioner is her best friend and a good payer.
Myrna tried to get petitioners address from Josefina, but the latter refused and
instead made the assurance that she will inform petitioner that the checks were
dishonored.
When no payment was forthcoming, Myrna lodged a complaint against
petitioner with the Office of the City Prosecutor of Caloocan City.
On August 23, 1993, three (3) Informations were filed by the Caloocan City
Prosecutor with the Regional Trial Court, Branch 130, same city, for violation of
Batas Pambansa Blg. 22, docketed as Criminal Cases Nos. C-44774, 44775,
and 44776.
When arraigned with the assistance of counsel de parte, petitioner pleaded
not guilty to the charges. The cases were then consolidated and jointly heard.
Petitioner admitted having issued the checks in question but claimed that
she merely lent them to Josefina. In turn, Josefina delivered the checks to her
friend who showed them to a jeweler as show money. It was understood that
the checks were not to be deposited. Petitioner vehemently denied having any
transaction with Myrna.
Petitioner also claimed that that when she issued the checks, she knew she
had no funds in the banks; and that she was aware that the checks would be
dishonored if presented for payment.
After hearing, the trial court rendered its Decision, the dispositive portion of
which reads:

WHEREFORE, the Court finds the accused LILANY YULO y BILLONES, guilty
beyond reasonable doubt of a violation of Batas Pambansa Blg. 22, and is hereby
sentenced as follows:

(1) In Criminal Case No. C-44774, to an imprisonment of ONE (1) YEAR, and to
indemnify the offended party Myrna Roque in the amount of P16,200.00,
representing the face value of Equitable Bank Check No. 227941, and to pay the
costs;
 (2) In Criminal Case No. C-44775, to an to an imprisonment of ONE (1) YEAR, and to
indemnify the offended party Myrna Roque in the amount of P40,000.00,
representing the face value of Bank of the Philippine Islands Check No. 656602,
and to pay the costs;
(3) In Criminal Case No. C-44776, to an imprisonment of ONE (1) YEAR, and to
indemnify the offended party Myrna Roque in the amount of P40,000.00,
representing the face value of Equitable Bank Check No. 237936, and to pay the
costs.

Pursuant to Rule 114, Section 2(a) of the Rules of Court, as amended, the bail bond of
the accused is cancelled and the accused is hereby committed to the City Jail.

SO ORDERED. [3]

Upon appeal, docketed as CA-G.R. CR No. 17513, the Court of Appeals

affirmed in toto the Decision of the trial court.
Petitioner filed a motion for reconsideration but was denied.
Hence, the instant petition raising the following assignments of error:
I. WHETHER OR NOT THE PETITIONER WAS DEPRIVED OF HER RIGHT TO
SPEEDY DISPOSITION OF CASES;
II. WHETHER OR NOT THE COURT OF APPEALS ERRED IN AFFIRMING THE
CONVICTION FOR VIOLATION OF BATAS PAMBANSA BLG. 22. EVEN IF THE
REQUISITES THEREFORE ARE NOT COMPLETE;
III. WHETHER OR NOT THE COURT OF APPEALS ERRED IN AFFIRMING THE
DECISION OF THE TRIAL COURT ALTHOUGH THE LATTERS DECISION WAS
BASED ON THE UNCORROBORATED, INCREDIBLE, AND UNNATURAL
STATEMENTS OF THE COMPLAINANT AND ALTHOUGH THE TESTIMOMY OF
THE ACCUSED WAS SUPPORTED BY CORROBORATING EVIDENCE.[4]

The issues for our resolution are: (1) whether the Court of Appeals violated
petitioners right to a speedy trial; and (2) whether the same court erred in
holding that the prosecution has proved petitioners guilt beyond reasonable
doubt.
On the first issue, petitioner contends that the Court of Appeals resolved her
motion for reconsideration only after three (3) years from its filing. Such inaction
violates her right to a speedy disposition of her case.
In his comment, the Solicitor General counters that the Appellate Court has
explained satisfactorily why petitioners motion for reconsideration was not
resolved immediately.
Article III, Section 16 of the Constitution provides:
SEC.16. All persons shall have the right to a speedy disposition of their cases before
all judicial, quasi-judicial, or administrative bodies.

Under the foregoing provision, any party to a case has the right to demand
on all officials tasked with the administration of justice to expedite its disposition.
However, the concept of speedy disposition is a relative term and must
necessarily be a flexible concept. A mere mathematical reckoning of the time
[5]

involved is not sufficient. In applying the Constitutional guarantee, particular

[6]

regard must be taken of the facts and circumstances of each case.

The right to a speedy disposition of a case, like the right to speedy trial, is[7]

deemed violated only when the proceedings are attended by vexatious,

capricious, and oppressive delays, or when unjustified postponements of the
trial are asked for and secured, or when without cause or justifiable motive a
long period of time is allowed to elapse without the party having his case
tried. To determine whether the right has been violated, the following factors
[8]

may be considered: (1) the length of the delay; (2) the reasons for such delay;
(3) the assertion or failure to assert such right by the accused; and (4) the
prejudice caused by the delay. [9]

In the instant case, we agree with the Solicitor General that the delay was
sufficiently explained by the Court of Appeals. The ponente of the decision in
CA-G.R. CR No. 17513, Associate Justice Jainal D. Rasul, retired during the
pendency of petitioners motion for reconsideration filed on March 4, 1997.
However, the case was assigned to Associate Justice Mercedes Gozo-Dadole
only on February 28, 2000 and brought to her attention on March 2, 2000. We
note that it took Justice Gozo-Dadole only two (2) weeks from notice to resolve
the motion. Clearly, she did not incur any delay. We, therefore, rule that there
has been no violation of the petitioners right to a speedy trial.
On the second issue, petitioner submits that the prosecution failed to prove
her guilt beyond reasonable doubt. Not all the elements of the offense of
violation of Batas Pambansa Blg. 22 were adequately established. For one,
Myrna Roque, private complainant, did not send her any notice of dishonor. It
was Josefina whom Myrna contacted, not her. For another, petitioner merely
lent the checks to Josefina to be shown by her friend to a jeweler.
Petitioners arguments are simply untenable.
The elements of the offense penalized by Batas Pambansa Blg. 22 are: (1)
the making, drawing, and issuance of any check to apply for account or for
value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue
he does not have sufficient funds in or credit with the drawee bank for the
payment of the check in full upon its presentment; and (3) the subsequent
dishonor of the check by the drawee bank for insufficient funds or credit or
dishonor for the same reason had not the drawer, without any valid cause,
ordered the bank to stop payment. [10]

We agree with the Court of Appeals that the prosecution has proved all the
elements of the offense.
Petitioner admitted having issued the three dishonored checks for value.
Her purpose was to encash them. She also admitted that at the time she issued
the checks, she was aware that she had only P1,000.00 in her account with the
Equitable Bank and that her BPI account was already closed. Significantly, what
Batas Pambansa Blg. 22 penalizes is the issuance of a bouncing check. It is
not the non-payment of an obligation which the law punishes, but the act of
making and issuing a check that is dishonored upon presentment for
payment. The purpose for which the check was issued and the terms and
[11]

conditions relating to its issuance are immaterial. What is primordial is that the
issued checks were worthless and the fact of worthlessness was known to the
petitioner at the time of their issuance, as in this case. This is because under
Batas Pambansa Blg. 22, the mere act of issuing a worthless check is malum
prohibitum. [12]

We likewise find no reason to sustain petitioners contention that she was

not given any notice of dishonor. Myrna had no reason to be suspicious of
petitioner. It will be recalled that Josefina Dimalanta assured Myrna that
petitioner is her best friend and a good payer. Consequently, when the checks
bounced, Myrna would naturally turn to Josefina for help. We note that Josefina
refused to give Myrna petitioners address but promised to inform petitioner
about the dishonored checks.
The Court of Appeals affirmed the findings of the trial court. Settled is the
rule that factual findings of the trial court which have been affirmed in toto by
the Court of Appeals are entitled to great weight and respect by this Court and
will not be disturbed absent any showing that the trial court overlooked certain
facts and circumstances which could substantially affect the outcome of the
case. This exception is not present here. That Myrna was the sole witness for
[13]

the prosecution is of no moment. There is no law requiring that the testimony of

a single witness must be corroborated. The rule in this jurisdiction is that the
testimony of witnesses is weighed, not numbered, and the testimony of a single
witness, if found trustworthy and credible, as in this case, is sufficient to sustain
a conviction. [14]

WHEREFORE, the petition is DENIED. The Decision of the Court of

Appeals dated January 31, 1997 and its Resolution dated March 16, 2000, in
CA-G.R. CR No. 17513, sustaining the Joint Decision of the trial court in
Criminal Cases Nos. C-44774, C-44775, and C-44776 are AFFIRMED. Costs
against petitioner.
SO ORDERED.
ENJAMIN LEE, petitioner, vs. COURT OF APPEALS and PEOPLE OF
THE PHILIPPINES, respondents.

DECISION
AUSTRIA-MARTINEZ, J.:

Petitioner is now before us on a petition for review under Rule 45 of the

Rules of Court seeking the reversal of the Decision[1] of the Court of Appeals
dated July 30, 1999, which affirmed the judgment of the Regional Trial Court,
Branch 79, Quezon City (RTC) convicting him of violating Batas Pambansa Blg.
22 in Criminal Case No. Q-93-50094; and the Resolution[2] dated October 11,
2000, denying his motion for reconsideration.
The facts are as follows:
On October 4, 1993, an Information was filed against petitioner Dr.
Benjamin F. Lee and a certain Cesar Al. Bautista, for violation of B.P. Blg. 22,
which reads:

That on or about the 24th day of July 1993, in Quezon City, Philippines, the said
accused, conspiring together, confederating with, and mutually helping each
other, did then and there willfully, unlawfully and feloniously make or draw and
issue to Rogelio G. Bergado to apply on account or for value United Coconut
Planters Bank Check No. 168341 dated July 24, 1993 payable to the order of
Rogelio G. Bergado in the amount of P980,000.00, Philippine Currency, said
accused well knowing that at the time of issue they did not have sufficient funds
in or credit with the drawee bank for payment of such check in full upon its
presentment, which check when presented for payment was subsequently
dishonored by the drawee bank for Account Closed and despite receipt of notice
of such dishonor, said accused failed to pay said Rogelio G. Bergado the
amount of said check or to make arrangement for full payment of the same
within five (5) banking days after receiving said notice.

CONTRARY TO LAW.[3]

Petitioner pleaded not guilty in his arraignment on February 1,

1995.[4] Presiding Judge Godofredo L. Legaspi noted in the assailed judgment
that trial proceeded insofar only as petitioner is concerned, since accused
Cesar Bautista is presently detained at Municipal Jail at Calapan, Mindoro
where he has a pending case before the Metropolitan Trial Court (MTC),
Calapan, Mindoro and despite several notices to the jail warden of Calapan,
Mindoro, the latter failed to bring the person of said accused to this Court for
arraignment.[5]
For the prosecution, private complainant Rogelio Bergado testified that: on
July 19, 1992, he loaned Unlad Commercial Enterprises (Unlad for brevity),
through its agent Norma Ilagan, the amount of P500,000.00 with an interest of
4% a month; on September 10, 1992, he loaned another P400,000.00 through
Ilagan for the same interest rate; in exchange, he received a total of twenty-six
checks, four of which were dishonored for the reason drawn against insufficient
funds; he went to Calapan, Mindoro and talked to Bautista and the latter
replaced the dishonored checks with United Coconut Planters Bank (UCPB)
Check No. ARA 168341, signed by Bautista and herein petitioner dated July 24,
1993, in the amount of P980,000.00 representing the total amount loaned plus
interests; when Bergado deposited the check at UCPB, the same was
dishonored due to account closed; through his lawyer, he sent demand letters
to Bautista and petitioner, who, despite having received the same still failed and
refused to make any payment. Upon cross-examination, Bergado admitted that
he did not see or meet petitioner prior to July 24, 1993 nor did he go to Calapan,
Mindoro to check the existence of Unlad prior to lending it the amount
of P900,000.00.[6]
The prosecution also presented Zenaida[7] Katigbak, Branch Operations
Officer of UCPB Araneta Avenue, Quezon City, who testified that Bautista and
petitioner are the authorized signatories of Current Account No. 130-000406-2,
against which the check subject of the present criminal case was issued; and
that the account was opened on August 22, 1988 and closed on January 31,
1992 due to mishandling of the account, i.e., a check was previously issued
against it without sufficient funds.[8]
The prosecution presented UCPB Check No. ARA 168341,[9] UCPB Check
Return Slip dated August 5, 1993 stating that Check No. ARA 168341 was
returned unpaid due to account closed;[10] a demand letter addressed to
petitioner dated August 9, 1993;[11] registry return slip;[12] a copy of the complaint
affidavit of private complainant;[13] signature card of the current account of
petitioner and Bautista at UCPB;[14] and the bank statement of the current
account of petitioner and Bautista dated January 31, 1992 reflecting that said
account has been closed on said date.[15]
For the defense, petitioner testified that: it is Bautista who is the sole owner
of Unlad; he knew Bautista and became his compadre because of Bautistas
wife who was his employee; he does not know anything about the check issued
by Bautista in favor of Bergado nor did he receive any amount from Bergado or
any other person; he agreed to open an account with Bautista in 1988 because
Bautista promised to give him 5% interest from the proceeds of loans that will
be made in favor of other people from said account; before July of 1989,
Bautista also asked him to sign several checks in exchange for 2.5% interest a
month from the proceeds of loan to be made in favor of other people; after July
1989, he terminated his accommodation arrangement with Bautista after
learning that Bautista was also giving 5% interest to other investors without any
accommodation agreement; he asked for the checks he previously signed but
Bautista refused to return them saying that he did not have them anymore; and
inspite of these, he continued investing in Bautistas business in the amount of
more than P500,000.00.[16]
On cross-examination, petitioner admitted that he signed several checks in
blank on different occasions; that he was the one who asked and insisted that
Bautista execute Exhs. 1 and 2, affidavits of Bautista stating that Unlad shall be
Bautistas sole responsibility; and that despite having severed his relationship
with Bautista in July of 1989, he did not inform UCPB Araneta, Quezon City
branch of such fact and he continued investing in Unlad, from July 1989 to April
1994.[17]
To bolster his claim, petitioner presented: an affidavit executed by Bautista
dated May 31, 1993 stating that Bautista is the sole proprietor of Unlad and that
any business transaction entered into by Unlad shall be Bautistas personal
responsibility;[18] an affidavit executed by Bautista on June 4, 1990, stating that
petitioner is no longer connected with Unlad and that petitioner should not be
held liable regarding any transaction entered into by Unlad after July 1989 since
petitioner is no longer a signatory;[19] a business permit issued by the
Municipality of Calapan certifying that Bautista has been granted a permit to
operate a general merchandise;[20] a certification from the Department of Trade
and Industry, Oriental Mindoro Provincial Office stating that Unlad is registered
in the name of Cesar Bautista and/or Placer Bautista;[21] orders of attachment
issued by the Regional Trial Court of Oriental Mindoro on the properties of
Bautista and petitioner;[22] and checks issued by Bautista in favor of petitioner
and his wife Amelia Lee.[23]
On July 22, 1997, the RTC promulgated its decision, the dispositive portion
of which reads as follows:

WHEREFORE, judgment is hereby rendered in this case finding accused

Benjamin Lee guilty beyond reasonable doubt of Violation of Batas Pambansa
Blg. 22 and accordingly sentences him to suffer an imprisonment of one (1)
year of prision correccional, and to pay the offended party P980,000.00 and to
pay a fine of P200,000.00 with subsidiary imprisonment in case of insolvency
and non-payment of the fine by the accused.

SO ORDERED.[24]

Petitioner went to the Court of Appeals which modified the trial courts
judgment, thus:

WHEREFORE, the Decision is hereby MODIFIED by imposing a penalty of one

(1) year and for the accused to pay the private party the sum of Nine Hundred
Eighty Thousand Pesos (P980,000.00) as civil indemnity.

With cost against the accused.

SO ORDERED.[25]

Petitioners motion for reconsideration was denied on October 11, 2000.

Hence, the present petition with the following assignment of errors:

1. THE COURT A QUO COMMITTED A REVERSIBLE ERROR OF LAW IN

DISREGARDING PETITIONERS DEFENSE THAT HE HAD ALREADY
SEVERED, SINCE JULY 1989, HIS ACCOMODATION ARRANGEMENT
WITH HIS CO-ACCUSED BAUTISTA WHO WAS SOLELY RESPONSIBLE
FOR ALL THE TRANSACTIONS ENTERED INTO BY UNLAD COMMERCIAL
ENTERPRISES AND THEREFORE PETITIONER HAD NO KNOWLEDGE OF
THE SUFFICIENCY OR INSUFFICIENCY OF FUNDS OF UNLADS BANK
ACCOUNT.

2. THE COURT A QUO HAS DECIDED IN (A) WAY NOT IN ACCORD WITH
LAW IN FAILING TO RULE THAT THE SUBJECT CHECK, UCPB CHECK NO.
ARA 168341, WAS NOT ISSUED BY PETITIONER TO PRIVATE
COMPLAINANT ON ACCOUNT OR FOR VALUE.

3. THE COURT A QUO COMMITTED AN ERROR OF LAW WHEN IT FAILED

TO CONSIDER THAT AT THE TIME THE SUBJECT CHECK WAS ISSUED
BY BAUTISTA IN FAVOR OF PRIVATE COMPLAINANT, THE LATTER WAS
ALREADY AWARE THAT THE RESPECTIVE ESTATES OF THE ACCUSED
WERE ALREADY ATTACHED BY THE REGIONAL TRIAL COURT OF
CALAPAN, ORIENTAL MINDORO.
4. THE COURT A QUO COMMITTED A REVERSIBLE ERROR OF FACT AND
LAW IN NOT ACQUITTING PETITIONER ON GROUND OF REASONABLE
DOUBT.

5. THE COURT A QUO AND THE TRIAL COURT COMMITTED REVERSIBLE

ERROR OF LAW WHEN THEY FAILED TO DISMISS THE INFORMATION
FOR VIOLATION OF B.P. 22 AGAINST THE ACCUSED FOR LACK OF
JURISDICTION.[26]

In support of his first assigned error, petitioner claims that: he had no actual
knowledge of the sufficiency or insufficiency of the funds handled by his co-
accused Bautista; while it is true that he opened a joint account with Bautista at
UCPB Araneta Avenue, Quezon City and that he signed several UCPB checks
in blank to accommodate Bautista, he already severed his accommodation
arrangement with Bautista as early as July of 1989; this is evidenced by the
affidavits executed by Bautista dated June 4, 1990 and May 31, 1993 which the
court a quoignored; the Court of Appeals erroneously held that the affidavits of
Bautista are self-serving since there was no showing that Bautista was lying
when he made the statements therein; also, the declarant in this case is
Bautista and not petitioner, thus the principle of self-serving statements cannot
apply; the affidavits of Bautista are declarations against the interest of the
person making it, which are admissible notwithstanding their hearsay character,
since such declarations are relevant to the case and the declarant is not
available as a witness despite efforts of petitioner to present Bautista in court;
the true test of the reliability of the declaration is not whether it was made ante
litem motam as in this case but whether the declaration was uttered under
circumstances justifying the conclusion that there was no probable motive to
falsify; also, the affidavits of Bautista, having been acknowledged before a
notary public, should be given evidentiary weight.[27]
Petitioner also points out that in Lao vs. Court of Appeals[28] the Court held
that if knowledge of the insufficiency of funds is proven to be actually absent or
non-existent, the accused should not be held liable for the offense defined
under Sec. 1 of B.P. Blg. 22; in said case, petitioner was acquitted, even though
she was still connected with the corporation at the time of the issuance of the
check, since she was not expected or obliged to possess under the
organizational structure of the corporation, knowledge of the insufficiency of
funds; and that in the case at bar, the court a quo affirmed the conviction of
petitioner even though it was established that he had ceased to be connected
with co-accused Bautistas business for more than three years prior to the
issuance of the subject check and even though it was clear from the testimony
of private complainant himself that he had dealt with Bautista and Ilagan only.[29]
 Anent the second and third assigned errors, petitioner argues that: in the
case at bar, there was neither a pre-existing obligation nor an obligation
incurred on the part of petitioner when the subject check was given by Bautista
to private complainant on July 24, 1993 since petitioner was no longer
connected with Unlad or Bautista starting July of 1989; when Bautista issued
the subject check to Bergado on July 24, 1993, Bautista had no more authority
to use petitioners pre-signed checks thus there was no consideration to speak
of; petitioner was deceived by Bautista into believing that all the pre-signed
checks were already used or issued as of 1989; the court a quo should not have
presumed that when petitioner signed the checks and handed the same to
Bautista, petitioner had knowledge that their account had no funds; in all
criminal cases, suspicion, no matter how strong cannot sway judgment; even
assuming that petitioner had issued the subject check when he signed the same
sometime before July 1989 and that he had an undertaking to whoever would
be the payee, still petitioner should be exempted from criminal liability since
petitioner could not comply with the said undertaking due to an insuperable
cause, i.e., as early as June 18, 1993, all the properties of petitioner had already
been attached/garnished by the Regional Trial Court of Oriental Mindoro.[30]
Petitioner further argues that: private complainant is not a holder in due
course because he knew that the account of Bautista and petitioner with UCPB
Araneta branch had been closed at the time that he deposited UCPB Check
No. ARA 168341 on August 5, 1993; Check No. ARA 374058 in the amount
of P500,000.00, which bounced earlier, was drawn from the same UCPB
account of Bautista and petitioner which had already been closed by the UCPB
on January 31, 1992;[31] private complainant also had knowledge that the
respective estates of both accused were already attached by the RTC at the
time the subject check was given to him by Bautista since the first order of
attachment was issued on June 18, 1993 and was recorded with the Registry
of Deeds of Oriental Mindoro on the same date; applying the principle that
registration of instrument is notice to the world, Bergado is presumed to know
the various orders of attachment/garnishment issued by the court.[32]
As to his fourth assigned error, petitioner argues that: the prosecution failed
to prove his guilt beyond reasonable doubt; the prosecution failed to rebut the
allegation of petitioner that he was not anymore connected with the business of
Bautista and therefore he had no knowledge of the insufficiency of the funds
handled by Bautista; and the prosecution and the trial court relied solely on the
authenticity of petitioners signature on the subject check which fact is not
enough to convict petitioner of the offense charged.[33]
Finally, anent his fifth assigned error, petitioner claims that the Regional
Trial Court which tried and convicted petitioner had no jurisdiction over
violations of B.P. Blg. 22 considering that the penalty therefor is imprisonment
of thirty days to one year and/or a fine not less than, and not more than double,
the amount, but not to exceed P200,000.00; and that at the time the Information
was filed on October 4, 1993, violations of B.P. Blg. 22 fell under the jurisdiction
of the MTC in view of Sec. 32 (2) of B.P. Blg. 129 which provides that the MTC
has exclusive original jurisdiction over all offenses punishable with
imprisonment of not more than four years and two months or a fine of not more
than P4,000.00 or both such fine and imprisonment, regardless of other
imposable accessory or other penalties including the civil liability arising from
such offenses or predicated thereon, irrespective of kin, nature, value or amount
thereof.[34]
In his Comment, the Solicitor General contends that: the mere fact that
petitioner was a signatory to the check makes him solidarily liable with his co-
signatory; if it is true that petitioner severed his accommodation arrangement
with Bautista as early as July of 1989, he should have informed the UCPB
Araneta Avenue, Quezon City branch that any check that would be issued
bearing his signature and that of Bautista and drawn against their joint account
after July of 1989 should no longer be honored; the affidavit of Bautista to the
effect that petitioner should not be held answerable for any liability of Unlad
after July 1989 is not admissible as Bautista was not presented in court nor the
prosecution afforded any opportunity to test the veracity of his allegations;
having failed to convincingly establish that petitioner has severed his
accommodation arrangement with his co-accused Bautista, the presumption
stands that he was aware that they no longer had sufficient funds at the time
the check was issued; the presumption also stands that the check was issued
on account or for value; petitioner also cannot claim that private complainant
was aware that petitioner and Bautistas joint account was already closed at the
time the subject check was issued and delivered to complainant since there is
nothing on record to show that the reason for the non-payment of the checks
earlier issued to complainant was due to account closed; Bergado claims that
the earlier checks were dishonored due to lack of sufficient funds; there is also
no merit to the argument of petitioner that private complainant was already
aware that petitioner together with Bautista could no longer make good the
subject check in view of the various writs of attachment issued by the court
against their properties, which writs of attachment were duly recorded with the
Register of Deeds; the registration of the various writs of attachment affected
only the real properties of petitioner and such registration served as warning to
those who may have or intend to have dealings affecting such lands covered
by the attachments; with regard to the attachment of their bank accounts, there
was no showing that private complainant was aware of the same; there is also
no merit to the claim of petitioner that his guilt was not proven beyond
reasonable doubt; the prosecution was able to establish that petitioner, together
with Bautista, issued the subject check to the complainant in payment of the
money loaned by the latter to Unlad; the check bounced for the reason account
closed and despite demand to make good the check, petitioner and his co-
accused failed and refused to pay the complainant; and there is no merit to the
claim of petitioner that the RTC had no jurisdiction over the present case
following Sec. 32 (2) of B.P. Blg. 129 where it is provided that in order that the
offense under the jurisdiction of Municipal Trial Courts, Metropolitan Trial Courts
and Municipal Circuit Trial Courts, the imposable penalty must not exceed four
years and two months or a fine of not more than P4,000.00 or both such fine
and imprisonment; in the case at bar, the imposable fine is way beyond the limit
of P4,000.00 as the amount of the check is P980,000.00 thus the RTC had
jurisdiction over the case.[35]
Simply stated, the issues that need to be resolved are as follows: (1)
whether the RTC, which tried and convicted petitioner, has jurisdiction over the
case; (2) whether petitioner had actual knowledge of the sufficiency or
insufficiency of funds handled by his co-accused; (3) whether the check was
issued on account or for value; (4) whether the private complainant, at the time
of issuance, had knowledge that the check had no sufficient funds; and (5)
whether the guilt of the accused was proven beyond reasonable doubt.
First issue. Whether the RTC, which tried and convicted petitioner, had
jurisdiction over the case.
Petitioner claims that the RTC which tried and convicted him had no
jurisdiction over violations of B.P. Blg. 22 since such jurisdiction is vested on
the MTC in view of Sec. 32 (2) of B.P. Blg. 129.
We do not agree.
As clearly provided by Sec. 32 (2) of B.P. Blg. 129, to wit:

Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts in Criminal Cases.---Except in cases falling within
the exclusive original jurisdiction of Regional Trial Courts and the
Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts shall exercise:

.....

(2) Exclusive original jurisdiction over all offenses punishable with imprisonment
of not exceeding four years and two months, or a fine of not more than four
thousand pesos, or both such fine and imprisonment, regardless of other
imposable accessory or other penalties, including the civil liability arising from
such offenses or predicated thereon, irrespective of kind, nature, value or
amount thereof: Provided, however, That in offenses involving damage to
property through criminal negligence they shall have exclusive original
jurisdiction where the imposable fine does not exceed twenty thousand
pesos. (Emphasis supplied)

the MTC has exclusive jurisdiction over offenses punishable with imprisonment
of not exceeding four years and two months, OR, a fine of not more than four
thousand pesos or both such fine and imprisonment.
The Information in this case was filed on October 4, 1993.
On March 25, 1994, Republic Act No. 7691 took effect and amended Sec.
32 (2) of B.P. Blg. 129 to read as follows:

Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts in Criminal Cases. --- Except in cases falling
within the exclusive original jurisdiction of Regional Trial Courts and of the
Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts shall exercise:

.....

(2) Exclusive original jurisdiction over all offenses punishable

with imprisonment not exceeding six (6) years irrespective of the amount
of fine, and regardless of other imposable accessory or other penalties,
including the civil liability arising from such offenses or predicated thereon,
irrespective of kind, nature, value or amount thereof: Provided, however, that in
offenses involving damage to property through criminal negligence, they shall
have exclusive original jurisdiction thereof. (Emphasis supplied)

Since the Information in the present case was filed prior to the amendment
of R.A. No. 7691, the old rule governs and therefore, considering that the
imposable penalty for violation of B.P. Blg. 22 per Section 1, thereof is
imprisonment of not less than thirty days but not more than one year OR by a
fine of not less than but not more than double the amount of the check which
fine shall in no case exceed P200,000.00, or both fine and imprisonment; and
inasmuch as the fine imposable in the present case is more than P4,000.00 as
the subject amount of the check is P980,000.00, it is the Regional Trial Court
that has jurisdiction over the present case. As we held in People vs. Velasco:[36]
as a general rulethe jurisdiction of a court to try a criminal action is to be
determined by the law in force at the time of the institution of the action. Where
a court has already obtained and is exercising jurisdiction over a controversy,
its jurisdiction to proceed to the final determination of the cause is not affected
by new legislation placing jurisdiction over such proceedings in another tribunal.
The exception to the rule is where the statute expressly provides, or is
construed to the effect that it is intended to operate as to actions pending before
its enactment. Where a statute changing the jurisdiction of a court has no
retroactive effect, it cannot be applied to a case that was pending prior to the
enactment of a statute.

A perusal of R.A. No. 7691 will show that its retroactive provisions apply only to
civil cases that have not yet reached the pre-trial stage. Neither from an express
proviso nor by implication can it be understood as having retroactive application
to criminal cases pending or decided by the Regional Trial Courts prior to its
effectivityAt the time the case against the appellant was commenced by the
filing of the information on July 3, 1991, the Regional Trial Court had jurisdiction
over the offense charged.

.....

In fine, the jurisdiction of the trial court (RTC) over the case of the appellant was
conferred by the aforecited law then in force (R.A. No. 6425 before amendment)
when the information was filed. Jurisdiction attached upon the commencement
of the action and could not be ousted by the passage of R.A. No. 7691
reapportioning the jurisdiction of inferior courts, the application of which to
criminal cases is, to stress, prospective in nature.[37]

Second issue. Whether petitioner had actual knowledge of the insufficiency

of funds.
We have held that knowledge involves a state of mind difficult to establish,
thus the statute itself creates a prima facie presumption that the drawer had
knowledge of the insufficiency of his funds in or credit with the bank at the time
of the issuance and on the checks presentment for payment if he fails to pay
the amount of the check within five banking days from notice of dishonor.[38]
Sec. 2 of B.P. Blg. 22, provides:

Section 2. Evidence of knowledge of insufficient funds.  The making, drawing

and issuance of a check payment of which is refused by the drawee bank
because of insufficient funds in or credit with such bank, when presented within
ninety (90) days from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such maker or drawer
pays the holder thereof the amount due thereon, or makes arrangements for
payment in full by the drawee of such check within five (5) banking days after
receiving notice that such check has not been paid by the drawee.

As a rule, the prosecution has a duty to prove all the elements of the crime,
including the acts that give rise to the prima facie presumption. Petitioner, on
the other hand, has a right to rebut such presumption. Thus, if such knowledge
of insufficiency of funds is proven to be actually absent or inexistent, the
accused should not be held liable for the offense defined under the first
paragraph of Sec. 1 of B.P. Blg. 22,[39] thus:

SECTION 1. Checks without sufficient funds. Any person who makes or draws
and issues any check to apply on account or for value, knowing at the time of
issue that he does not have sufficient funds in or credit with the drawee bank
for the payment of such check in full upon its presentment, which check is
subsequently dishonored by the drawee bank for insufficiency of funds or credit
or would have been dishonored for the same reason had not the drawer, without
any valid reason, ordered the bank to stop payment, shall be punished by
imprisonment of not less than thirty days but not more than one (1) year or by
a fine of not less than but not more than double the amount of the check which
fine shall in no case exceed Two hundred thousand pesos, or both such fine
and imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person who having sufficient
funds in or credit with the drawee bank when he makes or draws and issues a
check, shall fail to keep sufficient funds or to maintain a credit or to cover the
full amount of the check if presented within a period of ninety (90) days from the
date appearing thereon, for which reason it is dishonored by the drawee bank.

....

In the present case, the prosecution has established

the prima facie presumption of knowledge of petitioner of insufficient funds
through the demand letter sent to petitioner, Exhibit C[40] which was duly
received by petitioner as shown by the registry return receipt, Exhibit D.[41]
Petitioner tried to rebut the prima facie presumption by insisting that he is
not an owner of Unlad and he has already severed his accommodation
arrangement with Bautista as early as 1989. He argues that the affidavits of
Bautista exonerating him from any responsibility as well as the private
complainants own testimony that he never dealt with petitioner, should be given
weight.
We are not persuaded.
It is a hornbook doctrine that unless the affiant himself takes the witness
stand to affirm the averments in his affidavits, the affidavits must be excluded
from the judicial proceeding, being inadmissible hearsay.[42] The trial court and
the Court of Appeals were correct in considering the same as hearsay evidence
and in not giving probative weight to such affidavits.
Moreover, petitioner had admitted that he continued investing in Unlad until
April 1994. Hence, he now cannot claim that he has completely severed his ties
with Bautista as of 1989. With nothing but his bare assertions, which are
ambiguous at best, petitioner has failed to rebut the prima facie presumption
laid down by the statute and established by the prosecution.
Petitioners insistence that since he is not an owner of Unlad, he could not
have had any knowledge as to the insufficiency of funds is devoid of merit. As
clarified in Lao vs. Court of Appeals,[43] the very case petitioner is invoking, the
doctrine that a mere employee tasked to sign checks in blanks may not be
deemed to have knowledge of the insufficiency of funds applies only
to corporate checks and not to personal checks.[44] In this case, what is involved
is a personal and not a corporate check.
Worth mentioning also is the fact that in the Lao case, the notice of dishonor
was never personally received by petitioner, thus the prima facie presumption
of knowledge of insufficiency of funds never arose. Here, as correctly found by
the RTC, petitioner was duly notified of the dishonor of the subject check as
shown by Exh. C,[45] a letter, specifically mentioning that the subject check was
dishonored for reason Account Closed, with the corresponding registry return
receipt showing that petitioner received the notice on August 16, 1993 which
petitioner did not impugn.[46]
Third issue. Whether or not the check was issued on account or for value.
Petitioners claim is not feasible. We have held that upon issuance of a
check, in the absence of evidence to the contrary, it is presumed that the same
was issued for valuable consideration.[47] Valuable consideration, in turn, may
consist either in some right, interest, profit or benefit accruing to the party who
makes the contract, or some forbearance, detriment, loss or some
responsibility, to act, or labor, or service given, suffered or undertaken by the
other side. It is an obligation to do, or not to do in favor of the party who makes
the contract, such as the maker or indorser.[48]
 In this case, petitioner himself testified that he signed several checks in
blank, the subject check included, in exchange for 2.5% interest from the
proceeds of loans that will be made from said account. This is a valuable
consideration for which the check was issued. That there was neither a pre-
existing obligation nor an obligation incurred on the part of petitioner when the
subject check was given by Bautista to private complainant on July 24, 1993
because petitioner was no longer connected with Unlad or Bautista starting July
1989, cannot be given merit since, as earlier discussed, petitioner failed to
adequately prove that he has severed his relationship with Bautista or Unlad.
At any rate, we have held that what the law punishes is the mere act of
issuing a bouncing check, not the purpose for which it was issued nor the terms
and conditions relating to its issuance. This is because the thrust of the law is
to prohibit the making of worthless checks and putting them into circulation.[49]
Fourth issue. Whether the private complainant, at the time of issuance, had
knowledge that the checks had no sufficient funds.
We have held that knowledge of the payee that the drawer did not have
sufficient funds with the drawee bank at the time the check was issued is
immaterial as deceit is not an essential element of the offense under B.P. Blg.
22.[50] This is because the gravamen of the offense is the issuance of a bad
check, hence, malice and intent in the issuance thereof are inconsequential.[51]
In Yu Oh vs. Court of Appeals[52] the Court held that there is no violation
of B.P. Blg. 22, if complainant was actually told by the drawer that he has no
sufficient funds in the bank.[53] In the present case, since there is no evidence
that a categorical statement was given to private complainant when the subject
check was issued to him, the above ruling cannot apply.
Fifth issue. Whether the guilt of the accused was proved beyond reasonable
doubt.
Petitioner maintains that the prosecution has failed to prove his guilt beyond
reasonable doubt since the prosecution failed to rebut his allegation that he was
not anymore connected with the business of Bautista and the trial court relied
solely on the authenticity of petitioners signature on the subject check to convict
him of the offense charged. We are not convinced.
Proof beyond reasonable doubt does not mean absolute certainty. Suffice
it to say the law requires only moral certainty or that degree of proof which
produces conviction in a prejudiced mind.[54]
After reviewing the entire records of this case, we find that there is no reason
to depart from the trial courts judgment of conviction. The weight and quantum
of evidence needed to prove the guilt of petitioner beyond reasonable doubt
were met and established by the prosecution and correctly affirmed by the Court
of Appeals.
However, in view of Supreme Court Administrative Circular No. 12-2000, as
clarified by Administrative Circular No. 13-2001, establishing a rule of
preference in the application of the penalties provided for in B.P. Blg. 22; and
the recommendation of the Solicitor General in its Comment that the policy laid
down in Vaca vs. Court of Appeals,[55] and Lim vs. People,[56] of redeeming
valuable human material and preventing unnecessary deprivation of personal
liberty and economic usefulness, be considered in favor of petitioner who is not
shown to be a habitual delinquent or a recidivist,[57] we find that the penalty
imposed by the Court of Appeals should be modified by deleting the penalty of
imprisonment and imposing only a fine of P200,000.00.
An appeal in a criminal case throws the entire case for review and it
becomes our duty to correct any error, as may be found in the appealed
judgment, whether assigned as an error or not.[58] Considering that the civil
aspect of the case is deemed instituted with the criminal case and considering
that the trial court and the Court of Appeals failed to award, in their respective
judgments, the interest on the amount due to private complainant, it is
incumbent upon us to correct the patent error of the lower courts. Private
complainant is entitled to a 12% legal interest per annum from the date of finality
of judgment.[59]
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the
following MODIFICATIONS: The sentence of imprisonment is deleted. Instead,
petitioner is ordered to pay a fine of P200,000.00, subject to subsidiary
imprisonment in case of insolvency pursuant to Article 39 of the Revised Penal
Code; and petitioner is ordered to pay the private complainant the amount
of P980,000.00 with 12% legal interest per annum from the date of finality of
herein judgment.
SO ORDERED.
IRIAM ARMI JAO YU, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.

DECISION
SANDOVAL-GUTIERREZ, J.:

May an accused found guilty of violations of Batas Pambansa Blg. 22 be [1]

made to suffer subsidiary imprisonment in case he fails to pay the fines imposed
by the trial court for such violations? This is the lone issue raised in this petition
for review on certiorari. [2]
 On March 25, 1991, petitioner was charged with 19 counts of violation
of Batas Pambansa Blg. 22 before the Regional Trial Court, Branch 91, Quezon
City, docketed as Criminal Cases Nos. 19468 to 19486.
Upon arraignment, petitioner entered a plea of not guilty. After hearing, the
trial court rendered a Decision finding her guilty of the charges and imposing
upon her the following penalties:

WHEREFORE, premises considered, judgment is hereby rendered finding accused

Miriam Armi Jao Yu guilty beyond reasonable doubt of violation of Batas Pambansa
Blg. 22 and sentencing her as follows:

to pay a fine of P200,000.00 and

1. Crim. Case No. 19468
indemnify Susan Andaya in the
amount of P300,000.00;
to pay a fine of P150,000.00 and
2. Crim. Case No. 19469
indemnify Susan Andaya in the
amount of P150,000.00;
to pay a fine of P200,000.00 and
3. Crim. Case No. 19470
indemnify Susan Andaya in the
amount of P200,000.00;
to pay a fine of P200,000.00 and
4. Crim. Case No. 19471
indemnify Susan Andaya in the
amount of P385,000.00;
to pay a fine of P15,000.00 and
5. Crim. Case No. 19472
indemnify Susan Andaya in the
amount of P15,000.00;
to pay a fine of P15,000.00 and
6. Crim. Case No. 19473
indemnify Susan Andaya in the
amount of P300,000.00;
to pay a fine of P200,000.00 and
7. Crim. Case No. 19474
indemnify Susan Andaya in the
amount of P350,000.00;
to pay a fine of P200,000.00 and
8. Crim. Case No. 19475
indemnify Susan Andaya in the
amount of P385,000.00;
to pay a fine of P200,000.00 and
9. Crim. Case No. 19476
indemnify Susan Andaya in the
amount of P300,000.00;
to pay a fine of P200,000.00 and
10. Crim. Case No. 19477
indemnify Susan Andaya in the
amount of P300,000.00;
to pay a fine of P15,000.00 and
11. Crim. Case No. 19478
indemnify Susan Andaya in the
amount of P15,000.00;
 to pay a fine of P15,000.00 and
12. Crim. Case No. 19479
indemnify Susan Andaya in the
amount of P15,000.00;
to pay a fine of P200,000.00 and
13. Crim. Case No. 19480
indemnify Susan Andaya in the
amount of P450,000.00;
to pay a fine of P25,000.00 and
14. Crim. Case No. 19481
indemnify Susan Andaya in the
amount of P25,000.00;
to pay a fine of P200,000.00 and
15. Crim. Case No. 19482
indemnify Susan Andaya in the
amount of P500,000.00;
to pay a fine of P17,500.00 and
16. Crim. Case No. 19483
indemnify Susan Andaya in the
amount of P17,500.00;
to pay a fine of P13,475.00 and
17. Crim. Case No. 19484
indemnify Susan Andaya in the
amount of P13,475.00;
to pay a fine of P15,000.00 and
18. Crim. Case No. 19485
indemnify Susan Andaya in the
amount of P15,000.00;
to pay a fine of P15,000.00 and
19. Crim. Case No. 19486
indemnify Susan Andaya in the
amount of P15,000.00;

to suffer subsidiary imprisonment in case of non-payment of the fine in each of

the above-entitled cases and to pay the costs of suit.

SO ORDERED. (Underscoring ours)

Upon appeal, the Court of Appeals affirmed in toto the trial courts Decision.
Petitioner then filed a motion for reconsideration but was denied by the
Appellate Court in its Resolution dated May 29, 1998.
In the instant petition, petitioner contends that Section 1 of Batas Pambansa
Blg. 22, which reads:

Section 1. Checks without sufficient funds. Any person who makes or draws and
issues any check to apply on account or for value, knowing at the time of issue that he
does not have sufficient funds in or credit with the drawee bank for the payment of
such check in full upon its presentment, which check is subsequently dishonored by
the drawee bank for insufficiency of funds or credit or would have been dishonored
for the same reason had not the drawer, without any valid reason, ordered the bank to
stop payment, shall be punished by imprisonment of not less than thirty days but
not more than one (1) year or by a fine of not less than but not more than double
the amount of the check which fine shall in no case exceed Two Hundred
Thousand Pesos, or both such fine and imprisonment at the discretion of the
court.

The same penalty shall be imposed upon any person who, having sufficient funds in
or credit with the drawee bank when he makes or draws and issues a check, shall fail
to keep sufficient funds or to maintain a credit to cover the full amount of the check if
presented within a period of ninety (90) days from the date appearing thereon, for
which reason it is dishonored by the drawee bank. Where the check is drawn by a
corporation, company or entity, the person or persons who actually signed the check
in behalf of such drawer shall be liable under this Act.

Where the check is drawn by a corporation, company or entity, the person or persons
who actually signed the check in behalf of such drawer shall be liable under this Act.
(Underscoring ours)

provides only the imposition of imprisonment or fine, or both, in cases of

violation of Batas Pambansa Blg. 22. Thus, she should not suffer subsidiary
imprisonment in case of non-payment of the fines imposed by the trial court.
The Solicitor General disagrees with petitioner and prays that the Decision
of the Court of Appeals be affirmed.
The petition must fail.
The imposition of subsidiary imprisonment is expressly provided under
Articles 38 and 39 of the Revised Penal Code, thus:

ART. 38. Pecuniary liabilities Order of payment. In case the property of the offender
should not be sufficient for the payment of all his pecuniary liabilities, the same shall
be met in the following order:

1. The preparation of the damage caused.

2. Indemnification of consequential damages.
3. The fine.
4. The costs of the proceedings. (Underscoring ours)

ART. 39. Subsidiary penalty. If the convict has no property with which to meet the
fine mentioned in paragraph 3 of the next preceding article, he shall be subject to
a subsidiary personal liability at the rate of one day for each eight pesos, subject
to the following rules:
1. If the principal penalty imposed be prision correccional or arresto and fine, he
shall remain under confinement until his fine referred in the preceding paragraph is
satisfied, but his subsidiary imprisonment shall not exceed one-third of the term of the
sentence, and in no case shall it continue for more than one year, and no fraction or
part of a day shall be counted against the prisoner.

2. When the principal penalty imposed be only a fine, the subsidiary

imprisonment shall not exceed six months, if the culprit shall have been
prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if
for a light felony.

3. When the principal penalty imposed is higher than prision correccional no

subsidiary imprisonment shall be imposed upon the culprit.

4. If the principal penalty imposed is not to be executed by confinement in a penal

institution, but such penalty is of fixed duration, the convict, during the period of time
established in the preceding rules, shall continue to suffer the same deprivation as
those of which the principal penalty consists.

5. The subsidiary personal liability which the convict may have suffered by reason of
his insolvency shall not relieve him from the fine in case his financial circumstances
should improve. (Underscoring ours)

We hold that the above provisions on subsidiary imprisonment can be

applied suppletorily to Batas Pambansa Blg. 22 pursuant to Article 10 of the
same Code, which provides:

ART. 10. Offenses not subject to the provisions of this Code. Offenses which are or in
the future may be punishable under special laws are not subject to the provisions of
this Code. This Code shall be supplementary to such laws, unless the latter should
specially provide the contrary. (Underscoring ours)

As early as 1959, this Court, in People vs. Cubelo, held: [3]

Appellants contention that the trial court committed error in ordering him to serve
subsidiary imprisonment in case of insolvency in the payment of fine with the reason
that Act No. 4003, which prohibits fishing with the use of explosive, fails to provide
for such subsidiary imprisonment, and that being a special law, it is not subject to the
provisions of the Revised Penal Code, is untenable. The second paragraph of Article
10 of the said Code provides that this Code shall be supplementary to such laws,
unless the latter should specially provide the contrary. Articles 100 (civil liability) and
39 (subsidiary penalty) are applicable to offenses under special laws (People vs.
Moreno, 60 Phil. 178; Copiaco vs. Luzon Brokerage, 66 Phil. 184).

Indeed, the absence of an express provision on subsidiary imprisonment

in Batas Pambansa Blg. 22 does not and cannot preclude its imposition in
cases involving its violations.
It bears stressing that on February 14, 2001, we issued Administrative
Circular No. 13-2001 clarifying the imposition of imprisonment for violations
of Batas Pambansa Blg. 22 and subsidiary imprisonment upon the accused
found guilty but is unable to pay the fine he is sentenced to pay. In clarifying the
imposition of subsidiary imprisonment, the Circular states that if the accused is
unable to pay the fine imposed by the trial court, there is no legal obstacle to
the application of the Revised Penal Code provisions on subsidiary
imprisonment. The full text of the Circular reads:

ADMINISTRATIVE CIRCULAR NO. 13-2001

TO : ALL JUDGES

SUBJECT : CLARIFICATION OF ADMINISTRATIVE CIRCULAR NO. 12-

2000 ON THE PENALTY FOR VIOLATION OF BATAS
PAMBANSA BLG. 22, OTHERWISE KNOWN AS THE
BOUNCING CHECKS LAW

Clarification has been sought by concerned Judges and other parties regarding the
operation of Administrative Circular 12-2000 issued on 21 November 2000. In
particular, queries have been made regarding the authority of Judges to

1. Impose the penalty of imprisonment for violations of Batas Pambansa Blg. 22; and

2. Impose subsidiary imprisonment in the event that the accused, who

is found guilty of violating the provisions of B.P. Blg. 22, is
unable to pay the fine which he is sentenced to pay

considering that Administrative Circular No. 12-2000 adopted the rulings in Eduardo
Vaca v. Court of Appeals (G.R. No. 131714, 16 November 1998, 298 SCRA 656)
and Rosa Lim v. People of the Philippines (G.R. No. 130038, 18 September 2000) as a
policy of the Supreme Court on the matter of the imposition of penalties for violations
of B.P. Blg. 22, without mentioning whether subsidiary imprisonment could be
resorted to in case of the accuseds inability to pay the fine.
The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove
imprisonment as an alternative penalty, but to lay down a rule of preference in the
application of the penalties provided for in B.P. Blg. 22.

The pursuit of this purpose clearly does not foreclose the possibility of imprisonment
for violators of B.P. Blg. 22. Neither does it defeat the legislative intent behind the
law.

Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the

application of the penal provisions of B.P. Blg. 22 such that where the circumstances
of both the offense and the offender clearly indicate good faith or a clear mistake of
fact without taint of negligence, the imposition of a fine alone should be considered as
the more appropriate penalty. Needless to say, the determination of whether the
circumstances warrant the imposition of a fine alone rests solely upon the
Judge. Should the Judge decide that imprisonment is the more appropriate penalty,
Administrative Circular No. 12-2000 ought not be deemed a hindrance.

It is, therefore, understood that

1. Administrative Circular 12-2000 does not remove imprisonment as an

alternative penalty for violations of B.P. Blg. 22;

2. The Judges concerned may, in the exercise of sound discretion, and taking
into consideration the peculiar circumstances of each case, determine
whether the imposition of a fine alone would best serve the interests of
justice or whether forbearing to impose imprisonment would depreciate
the seriousness of the offense, work violence on the social order, or
otherwise be contrary to the imperatives of justice;

3. Should only a fine be imposed and the accused be unable to pay the
fine, there is no legal obstacle to the application of the Revised Penal
Code provisions on subsidiary imprisonment.

The issuance of this Administrative Circular was authorized by the Court En Banc in
A.M. No. 00-11-01-SC at its session of 13 February 2001.

The Clerk of Court of the Supreme Court and the Court Administrator shall
immediately cause the implementation of this Administrative Circular.

This Administrative Circular shall be published in a newspaper of general circulation

not later than 20 February 2001.
Issued this 14th day of February, 2001.

(Sgd.)
HILARIO G. DAVIDE, JR.
Chief Justice (Underscoring
ours)
In Felicito Abarquez vs. Court of Appeals and People of the
Philippines promulgated on August 7, 2003 a case which involves the
[4]

application of penalties for violations of Batas Pambansa Blg. 22 we did not only
modify the amount of the fines imposed by the Court of Appeals in Criminal
Cases Nos. D-8137, D-8176 and D-8177, but also imposed subsidiary
imprisonment in case of insolvency in accordance with Article 39 of the Revised
Penal Code in each case.
Administrative Circular No. 13-2001 and our Decision in Felicito Abarquez
vs. Court of Appeals and People of the Philippines should now lay to rest
the controversy at bar.
WHEREFORE, the petition is DENIED.
SO ORDERED.
LEODEGARIO BAYANI, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
This is a petition for review on certiorari of the Decision[1] of the Court of
Appeals in CA-G.R. CR No. 22861 affirming on appeal the Decision[2] of the
Regional Trial Court of Lucena City, Branch 59, in Criminal Case No. 93-135
convicting the accused therein, now the petitioner, for violation of Batas
Pambansa (B.P.) Blg. 22.
On February 9, 1993, Leodegario Bayani was charged with violation of B.P.
Blg. 22 in an Information which reads:

That on or about the 20th day of August 1992, in the Municipality of Candelaria,
Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused did then and there willfully, unlawfully and feloniously
issue and make out Check No. 054936 dated August 29, 1992, in the amount of
FIFTY-FIVE THOUSAND PESOS (P55,000.00) Philippine Currency, drawn against
the PSBank, Candelaria Branch, Candelaria, Quezon, payable to Cash and give the
said check to one Dolores Evangelista in exchange for cash although the said accused
knew fully well at the time of issuance of said check that he did not have sufficient
funds in or credit with the drawee bank for payment of said check in full upon
presentment; that upon presentation of said check to the bank for payment, the same
was dishonored and refused payment for the reason that the drawer thereof, the herein
accused, had no sufficient fund therein, and that despite due notice, said accused
failed to deposit the necessary amount to cover said check or to pay in full the amount
of said check, to the damage and prejudice of said Dolores Evangelista in the
aforesaid amount.

Contrary to law.[3]

The Case for the Prosecution

At about noon on August 20, 1992, Alicia Rubia arrived at the grocery store
of Dolores Evangelista in Candelaria, Quezon, and asked the latter to
rediscount Philippine Savings Bank (PSBank) Check No. 054936 in the amount
of P55,000.00. The check was drawn by Leodegario Bayani against his account
with the PSBank and postdated August 29, 1992.[4] Rubia told Evangelista that
Bayani asked her to rediscount the check for him because he needed the
money.[5] Considering that Rubia and Bayani were long-time customers at the
store and she knew Bayani to be a good man, Evangelista agreed to rediscount
the check.[6] After Rubia endorsed the check, Evangelista gave her the amount
of P55,000.00.[7] However, when Evangelista deposited the check in her
account with the Far East Bank & Trust Company on September 11, 1992, it
was dishonored by the drawee bank for the reason that on September 1, 1992,
Bayani closed his account with the PSBank.[8] The reason for the dishonor of
the check was stamped at its dorsal portion. As of August 27, 1992, the balance
of Bayanis account with the bank was P2,414.96.[9] Evangelista then informed
Rubia of the dishonor of the check and demanded the return of her P55,000.00.
Rubia replied that she was only requested by Bayani to have the check
rediscounted and advised Evangelista to see him. When Evangelista talked to
Bayani, she was told that Rubia borrowed the check from him.[10]
Thereafter, Evangelista, Rubia, Bayani and his wife, Aniceta, had a
conference in the office of Atty. Emmanuel Velasco, Evangelistas lawyer. Later,
in the Office of the Barangay Captain Nestor Baera, Evangelista showed Bayani
a photocopy of the dishonored check and demanded payment thereof. Bayani
and Aniceta, on one hand, and Rubia, on the other, pointed to each other and
denied liability thereon. Aniceta told Rubia that she should be the one to pay
since the P55,000.00 was with her, but the latter insisted that the said amount
was in payment of the pieces of jewelry Aniceta purchased from her.[11] Upon
Atty. Velascos prodding, Evangelista suggested Bayani and Rubio to
pay P25,000.00 each. Still, Bayani and Rubio pointed to the other as the one
solely liable for the amount of the check.[12] Rubia reminded Aniceta that she
was given the check as payment of the pieces of jewelry Aniceta bought from
her.

The Case for the Petitioner

Bayani testified that he was the proprietor of a funeral parlor in Candelaria,

Quezon. He maintained an account with the PSBank in Candelaria, Quezon,
and was issued a checkbook which was kept by his wife, Aniceta
Bayani. Sometime in 1992, he changed his residence. In the process, his wife
lost four (4) blank checks, one of which was Check No. 054936[13] which formed
part of the checks in the checkbook issued to him by the PSBank.[14] He did not
report the loss to the police authorities. He reported such loss to the bank after
Evangelista demanded the refund of the P55,000.00 from his wife.[15] He then
closed his account with the bank on September 11, 1992, but was informed that
he had closed his account much earlier.He denied ever receiving the amount
of P55,000.00 from Rubia.[16]
Bayani further testified that his wife discovered the loss of the checks when
he brought his wife to the office of Atty. Emmanuel Velasco.[17] He did not see
Evangelista in the office of the lawyer, and was only later informed by his wife
that she had a conference with Evangelista. His wife narrated that according to
Evangelista, Rubia had rediscounted a check he issued, which turned out to be
the check she (Aniceta) had lost. He was also told that Evangelista had
demanded the refund of the amount of the check.[18] He later tried to contact
Rubia but failed. He finally testified that he could not recall having affixed his
signature on the check.[19]
Aniceta Bayani corroborated the testimony of her husband. She testified
that she was invited to go to the office of Atty. Velasco where she, Rubia and
Evangelista had a conference. It was only then that she met Evangelista. Rubia
admitted that she rediscounted the complainants check with Evangelista. When
Evangelista asked her to pay the amount of the check, she asked that the check
be shown to her, but Evangelista refused to do so. She further testified that her
husband was not with her and was in their office at the time.
At the conclusion of the trial, the court rendered judgment finding Bayani
guilty beyond reasonable doubt of violation of Section 1 of B.P. Blg. 22. The
decretal portion of the decision reads:

WHEREFORE, premises considered, the Court finds the accused Leodegario Bayani
guilty beyond reasonable doubt of violation of Section 1, Batas Pambansa Bilang 22
and hereby sentences him to suffer an imprisonment of ONE (1) YEAR, or to pay a
fine of ONE HUNDRED TEN THOUSAND PESOS (P110,000.00), to pay to
complaining witness Dolores Evangelista the sum of FIFTY-FIVE THOUSAND
PESOS (P55,000.00), the value of the check and to pay the costs.

SO ORDERED.[20]

On appeal, the petitioner averred that the prosecution failed to adduce

evidence that he affixed his signature on the check, or received from Rubia the
amount of P55,000.00, thus negating his guilt of the crime charged.
The petitioner asserts that even Teresita Macabulag, the bank manager of
PSB who authenticated his specimen signatures on the signature card he
submitted upon opening his account with the bank, failed to testify that the
signature on the check was his genuine signature.
On January 30, 2002, the Court of Appeals rendered judgment[21] affirming
the decision of the RTC with modification as to the penalty imposed on the
petitioner.
The petitioner asserts in the petition at bar that

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING

WITH MODIFICATION THE CONVICTION OF PETITIONER BY THE TRIAL
COURT FOR ALLEGED VIOLATION OF BATAS PAMBANSA BLG. 22
NOTWITHSTANDING THAT THE PROSECUTION MISERABLY FAILED TO
PROVE THAT THE CHECK WAS ISSUED FOR A VALUABLE
CONSIDERATION.[22]

The petitioner contends that the prosecution failed to prove all the essential
elements of the crime of violation of Section 1, B.P. Blg. 22. He asserts that the
prosecution failed to prove that he issued the check. He avers that even
assuming that he issued the check, the prosecution failed to prove that it was
issued for valuable consideration, and that he received the amount
of P55,000.00 from Rubia. Hence, in light of the ruling of this Court in Magno
vs. Court of Appeals,[23] he is entitled to an acquittal on such grounds.
The petitioner further contends that Evangelistas testimony, that Rubia told
her that it was the petitioner who asked her to have the check rediscounted, is
hearsay and, as such, even if he did not object thereto is inadmissible in
evidence against him. He avers that the prosecution failed to present Rubia as
a witness, depriving him of his right to cross-examine her. He contends that any
declaration made by Rubia to Evangelista is inadmissible in evidence against
him.
 The petition is denied.
We agree with the submission of the petitioner that Evangelistas testimony,
that Rubia told her that the petitioner requested that the subject check be
rediscounted, is hearsay.Evangelista had no personal knowledge of such
request of the petitioner to Rubia. Neither is the information relayed by Rubia
to Evangelista as to the petitioners request admissible in evidence against the
latter, because the prosecution failed to present Rubia as a witness, thus,
depriving the petitioner of his right of cross-examination.
However, the evidence belies the petitioners assertion that the prosecution
failed to adduce evidence that he issued the subject check. Evangelista testified
that when she talked to the petitioner upon Rubias suggestion, the petitioner
admitted that he gave the check to Rubia, but claimed that the latter borrowed
the check from him.
Q When this check in question was returned to you because of the closed account, what
did you do, if you did anything?
A I talked to Alicia Rubia, Sir.
Q And what did Alicia Rubia tell you in connection with the check in question?
A Alicia Rubia told me that she was just requested by Leodegario Bayani, Sir.
Q And what else did she tell you?
A She advised me to go to Leodegario Bayani, Sir.
Q Did you go to Leodegario Bayani as per instruction of Alicia Rubia?
A Yes, Sir.
Q And what did Leodegario Bayani tell you in connection with this check?
A He told me that Alicia Rubia borrowed the check from him, Sir.[24]

Evangelista testified that she showed to the petitioner and his wife, Aniceta,
a photocopy of the subject check in the office of Atty. Velasco, where they
admitted to her that they owned the check:
ATTY. ALZAGA (TO WITNESS)
Q When you shown (sic) the check to Leodegario Bayani and his wife in the law office
of Atty. Velasco, what did they tell you?
ATTY. VELASCO:
Misleading. The question is misleading because according to the question, Your
Honor, he had shown the check but that was not the testimony. The testimony was the
xerox copy of the check was the one shown.
ATTY. ALZAGA
The xerox copy of the check.
 COURT
As modified, answer the question.
WITNESS
A They told me they owned the check but they were pointing to each other as to who will
pay the amount, Sir.[25]

The petitioner cannot escape criminal liability by denying that he received

the amount of P55,000.00 from Rubia after he issued the check to her. As we
ruled in Lozano vs. Martinez:[26]

The gravamen of the offense punished by BP 22 is the act of making and issuing a
worthless check or a check that is dishonored upon its presentation for payment. It is
not the non-payment of an obligation which the law punishes. The law is not intended
or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit,
under pain of penal sanctions, the making of worthless checks and putting them in
circulation. Because of its deleterious effects on the public interest, the practice is
proscribed by the law. The law punishes the act not as an offense against property, but
an offense against public order.[27]

The evidence on record shows that Evangelista rediscounted the check and
gave P55,000.00 to Rubia after the latter endorsed the same. As such,
Evangelista is a holder of the check in due course.[28] Under Section 28 of the
Negotiable Instruments Law (NIL), absence or failure of consideration is a
matter of defense only as against any person not a holder in due course, thus:

SECTION 28. Effect of want of consideration. Absence or failure of consideration is a

matter of defense as against any person not a holder in due course; and partial failure
of consideration is a defense pro tanto, whether the failure is an ascertained and
liquidated amount or otherwise.

Moreover, Section 24 of the NIL provides the presumption of

consideration, viz:

SECTION 24. Presumption of consideration. Every negotiable instrument is

deemed prima facie to have been issued for a valuable consideration; and every
person whose signature appears thereon to have become a party thereto for value.

Such presumption cannot be overcome by the petitioners bare denial of

receipt of the amount of P55,000.00 from Rubia.
The petitioner cannot, likewise, seek refuge in the ruling of this Court
in Magno vs. Court of Appeals[29] because the facts and issues raised therein
are substantially different from those extant in this case. Indeed, the Court ruled
in the said case that:

It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was
she who accommodated petitioners request for Joey Gomez, to source out the needed
funds for the warranty deposit. Thus, it unfolds the kind of transaction that is shrouded
with mystery, gimmickry and doubtful legality. It is in simple language, a scheme
whereby Mrs. Teng as the supplier of the equipment in the name of her corporation,
Mancor, would be able to sell or lease its goods as in this case, and at the same time,
privately financing those who desperately need petty accommodations as this
one. This modus operandihas in so many instances victimized unsuspecting
businessmen, who likewise need protection from the law, by availing of the
deceptively called warranty deposit not realizing that they also fall prey to leasing
equipment under the guise of lease-purchase agreement when it is a scheme designed
to skim off business clients.[30]

Equally futile is the petitioners contention that the prosecution failed to prove
the crime charged. For the accused to be guilty of violation of Section 1 of B.P.
Blg. 22, the prosecution is mandated to prove the essential elements thereof,
to wit:

1. That a person makes or draws and issues any check.

2. That the check is made or drawn and issued to apply on account or for value.

3. That the person who makes or draws and issues the check knows at the time of
issue that he does not have sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment.

4. That the check is subsequently dishonored by the drawee bank for insufficiency of
funds or credit, or would have been dishonored for the same reason had not the
drawer, without any valid reason, ordered the bank to stop payment.[31]

In this case, the prosecution adduced documentary evidence that when the
petitioner issued the subject check on or about August 20, 1992, the balance of
his account with the drawee bank was only P2,414.96. During the conference
in the office of Atty. Emmanuel Velasco, Evangelista showed to the petitioner
and his wife a photocopy of the subject check, with the notation at its dorsal
portion that it was dishonored for the reason account closed. Despite
Evangelistas demands, the petitioner refused to pay the amount of the check
and, with his wife, pointed to Rubia as the one liable for the amount. The
collective evidence of the prosecution points to the fact that at the time the
petitioner drew and issued the check, he knew that the residue of the funds in
his account with the drawee bank was insufficient to pay the amount of the
check.
IN LIGHT OF ALL THE FOREOING, the petition is DENIED DUE COURSE.
The decision of the Court of Appeals is AFFIRMED.
No costs.
SO ORDERED.
JOY LEE RECUERDO, petitioner, vs. PEOPLE OF THE PHILIPPINES
AND THE COURT OF APPEALS, respondents. Before us for review is the
July 16, 1997 decision of the Court of Appeals in CA-G.R. No. 20577 affirming
that rendered by the Regional Trial Court (RTC), Branch 150, Makati City which
in turn affirmed that of the Metropolitan Trial Court (MeTC) of Makati City,
Branch 67 convicting Joy Lee Recuerdo (petitioner) for violation of Batas
Pambansa Blg. 22 (The Bouncing Checks Law) on 5 counts.
From the evidence of the prosecution, the following facts are established:
Sometime in the first week of December 1993, Yolanda Floro (Yolanda) who
is engaged in jewelry business sold a 3-karat loose diamond stone valued
at P420,000.00 to petitioner who gave a downpayment of P40,000.00. In
settlement of the balance of the purchase price, petitioner issued 9 postdated
checks, 8 of which in the amount of P40,000.00, and 1 in the amount
of P20,000.00, all drawn against her account at the Prudential Bank. [1]

When Yolanda deposited 8 of the 10 checks to her depository bank, Liberty

Savings and Loan Association, only 3, those dated December 25, 1993,
January 25, 1994, and February 25, 1994, were cleared. The remaining 5 were
dishonored due to the closure of petitioners account. [2]

Yolanda thus went to petitioners dental clinic and advised her to change the
dishonored checks to cash. Petitioner promised alright but she welshed on it. [3]

A demand letter was thereupon sent to petitioner for her to settle her
[4]

obligation but she failed to heed the same, hence, the filing of 5
[5]

informations against her for violation of B. P. 22 at the Makati MeTC, the

[6]

accusatory portion of the first of which reads:

That sometime in the first week of December, 1993, in the Municipality of Makati,
Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and feloniously make
out, drawn (sic) and issue to YOLANDA G. FLORO to apply on account or for value
the check described below:
Check No. - 008789

Drawn Against - Prudential Bank

In the Amount of - P40,000.00

Postdated/dated - July 25, 1994

Payable to - Cash

said accused well knowing that at the time of issue thereof, said account did not have
sufficient funds in or credit with the drawee bank for the payment in full of the face
amount of such check upon its presentment, which check when presented for payment
within ninety (90) days from the date thereof was subsequently dishonored by the
drawee bank for the reason ACCOUNT CLOSED and despite receipt of notice of
such dishonor, the accused failed to pay said payee the face amount of said check or
to make arrangement for full payment within five (5) banking days after receiving
said notice.

Except for the check numbers and dates of maturity, the four other
informations are similarly worded.
After trial, Branch 67 of the Makati MeTC convicted petitioner in a Joint
Decision the dispositive portion of which reads:
[7]

Wherefore, in view of the foregoing, the court finds the accused guilty beyond
reasonable doubt of Violation of Batas Pambansa Bilang 22 on five (5) counts and
therefore sentences the accused to suffer an imprisonment of 30 days for each count
and to restitute the amount of P 200,000.00 to Miss Yolanda G. Floro, which is the
total amount of the five (5) checks, and to pay her also the amount of P20,000.00 as
damages to compensate the payment of attorneys fees.

SO ORDERED. [8]

As stated early on, the RTC, on appeal, affirmed the decision of the
MeTC. And the Court of Appeals affirmed that of the RTC.
[9] [10]

In the petition for review on certiorari at bar, petitioner proffers as follows:

1. Petitioner was convicted by an invalid law which is Batas Pambansa Blg. 22 for
being an unconstitutional law.
2. Petitioner was denied her constitutional right to due process for failure of the courts
a quo to uphold her presumption of innocence and for convicting her even if the
prosecution evidence does not prove her guilt beyond reasonable doubt.

3. The findings of fact of the courts a quo, primarily the Court of Appeals, are based
on surmises, conjectures and speculations.

4. The Court of Appeals was biased against petitioner when it denied the petition moto
propio (sic) without the comment of the Office of the Solicitor General. [11]

Petitioner contends that since banks are not damaged by the presentment
of dishonored checks as they impose a penalty for each, only creditors/payees
are unduly favored by the law;that the law is in essence a resurrected form of
19th century imprisonment for debt since the drawer is coerced to pay his debt
on threat of imprisonment even if his failure to pay does not arise from malice
or fraud or from any criminal intent to cause damage; and that the law is a bill
[12]

of attainder as it does not leave much room for judicial determination, the guilt
[13]

of the accused having already been decided by the legislature. [14]

These matters subject of petitioners contention have long been settled in

the landmark case of Lozano v. Martinez where this Court upheld the
[15]

constitutionality of B. P. 22:

The gravamen of the offense punished by BP 22 is the act of making and issuing a
worthless check or a check that is dishonored upon its presentation for payment. It is
not the non-payment of an obligation which the law punishes. The law is not
intended or designed to coerce a debtor to pay his debt. The thrust of the law is to
prohibit, under pain of penal sanctions, the making of worthless checks and putting
them in circulation. Because of its deleterious effects on the public interest, the
practice is proscribed by law. The law punishes the act not as an offense against
property, but an offense against public order. (Emphasis supplied)
[16]

The contention that B. P. 22 is a bill of attainder, one which inflicts

punishment without trial and the essence of which is the substitution of a
legislative for a judicial determination of guilt, fails. For under B. P. 22, every
[17]

element of the crime is still to be proven before the trial court to warrant a
conviction for violation thereof.
Reinforcing her thesis, petitioner cites the speech made by now Vice-
President Teofisto Guingona delivered before the Philippine Bar Association
wherein he stressed the need to review the law since it has not prevented the
proliferation of bouncing checks. [18]
 As correctly argued by the Solicitor General, however, while due deference
is given to the opinion of the Vice-President, the same should properly be
addressed to the legislature which is in a better position to review the
effectiveness and usefulness of the law. As held in the case of Lozano, it is
[19] [20]

not for the Court to question the wisdom or policy of the statute. It is sufficient
that a reasonable nexus exists between the means and the end.
Petitioner further claims that the dishonored checks were not issued for
deposit and encashment, nor was there consideration therefor, in support of
[21]

which she cites her alleged agreement with Yolanda that she could have the
stone appraised to determine the purchase price, and since she found out that
[22]

it is only worth P160,000.00, there was no longer any need to fund the
[23]

remaining checks which should be returned to her. Yolanda, however, so

[24]

petitioner adds, could no longer be reached. Petitioner thus concludes that

[25]

she had already paid in full the purchase price of the stone, she having
paid P40,000.00 cash plus the P120,000.00 proceeds of the three cleared
checks. [26]

Petitioners submission does not lie. Such alleged agreement does not
inspire belief. The terms and conditions surrounding the issuance of the checks
are irrelevant.[27]

A check issued as an evidence of debt, though not intended for encashment, has the
same effect like any other check. It is within the contemplation of B.P. 22, which is
explicit that any person who makes or draws and issues any check to apply for an
account or for value, knowing at the time of issue that he does not have sufficient
funds in or credit with the drawee bank x x x which check is subsequently
dishonored x x x shall be punished by imprisonment. (Emphasis supplied.)
[28]

BP 22 does not appear to concern itself with what might actually be envisioned
by the parties, its primordial intention being to instead ensure the stability and
commercial value of checks as being virtual substitutes for currency. It is a policy that
can be easily eroded if one has yet to determine the reason for which checks are
issued, or the terms and conditions for their issuance, before an appropriate
application of the legislative enactment can be made. (Emphasis supplied)
[29]

Additionally, petitioner argues that as no bank representative testified as to

whether the questioned checks were dishonored due to insufficiency of funds
(sic), such element was not clearly and convincingly proven, hence, the trial
[30]

court failed to uphold her right to presumption of innocence when she was
convicted based on the sole testimony of Yolanda.
 Whether the checks were dishonored due to insufficiency of funds, or
Account Closed as alleged in the informations and testified on by
Yolanda, petitioners argument is untenable.
[31]

It is not required much less indispensable, for the prosecution to present the drawee
banks representative as a witness to testify on the dishonor of the checks because of
insufficiency of funds. The prosecution may present, as it did in this case, only
complainant as a witness to prove all the elements of the offense charged. She is
competent and qualified witness to testify that she deposited the checks to her account
in a bank; that she subsequently received from the bank the checks returned unpaid
with a notation drawn against insufficient funds stamped or written on the dorsal side
of the checks themselves, or in a notice attached to the dishonored checks duly given
to the complainant, and that petitioner failed to pay complainant the value of the
checks or make arrangements for their payment in full within five (5) banking days
after receiving notice that such checks had not been paid by the drawee
bank. (Emphasis supplied)
[32]

Yolandas testimony that when she deposited the checks to her depository
bank they were dishonored due to Account Closed thus sufficed. In fact, even
[33]

petitioners counsel during trial admitted the dishonor, and on that ground. [34]

Finally, petitioner imputes bias on the part of the appellate court when it
decided her petition for review without the comment of the Office of the Solicitor
General.
The rendition of the decision by the appellate court without the comment of
the People-Appellee is not by itself proof of bias. In any event, the Office of the
Solicitor General gave its comment on petitioners Motion for Reconsideration
of the appellate courts decision.
In fine, the affirmance of petitioners conviction is in order.
Under Administrative Circular No. 12-2000, imprisonment need not be
imposed on those found guilty of violating B.P. Blg. 22. Administrative Circular
No. 13-2001 issued on February 14, 2001 vests in the courts the discretion to
determine, taking into consideration the peculiar circumstances of each case,
whether the imposition of fine alone would best serve the interests of justice, or
whether forbearing to impose imprisonment would depreciate the seriousness
of the offense, work violence on the social order, or otherwise contrary to the
imperatives of justice. [35]

In the case at bar, this Court notes that no proof, nay allegation, was
proffered that petitioner was not a first time offender. Considering this and the
correctness of the case, it would best serve the interests of justice if petitioner
is just fined to enable her to continue her dental practice so as not to deprive
her of her income, thus insuring the early settlement of the civil aspect of the
case, not to mention the FINE.
WHEREFORE, the assailed decision of the Court of Appeals finding
petitioner JOY LEE RECUERDO guilty of violating Batas Pambansa Blg. 22 is
AFFIRMED with MODIFICATION.
In lieu of imprisonment, accused-herein petitioner JOY LEE RECUERDO,
is ordered to pay a FINE equivalent to double the amount of each dishonored
check subject of the five cases at bar. And she is also ordered to pay private
complainant, Yolanda Floro, the amount of Two Hundred Thousand
(P200,000.00) Pesos representing the total amount of the dishonored checks.
SO ORDERED.
BEN B. RICO, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
For review on certiorari is the decision dated June 15, 1998 of the Court of
[1]

Appeals in CA-G.R. CR No. 19764, affirming the judgment of the Regional

[2]

Trial Court of Laoag City which found the petitioner guilty of five counts of
violation of Batas Pambansa Blg. 22 (the Bouncing Checks Law), and the
resolution dated January 7, 1999 denying petitioners motion for
[3]

reconsideration.
Petitioner Ben Rico was a pakyaw contractor who used to purchase
construction materials on credit from private complainant Ever Lucky
Commercial (ELC), represented by Victor Chan, Manager. Petitioner made
payments either in cash or by postdated checks. On several occasions, he
issued checks to ELC, which were dishonored by the bank upon presentment
for payment for insufficiency of funds or closed account, as follows:
CHECK NO. DATE DATE REASON AMOUNT
OF DISHONOR FOR DISHONOR
04142 Nov. 5, 1990 Nov. 13, 1990 Insufficient funds P 81,800.00
1759806 Apr. 19, 1990 Apr. 20, 1990 Insufficient funds 25,000.00
1759808 Apr. 20, 1990 Apr. 23, 1990 Account Closed 4,834.00
1759810 Apr. 11, 1990 Apr. 16, 1990 Insufficient funds 39,000.00
1759812 Apr. 11, 1990 Apr. 16, 1990 Insufficient funds 15,250.00
1759811 May 2, 1990 May 3, 1990 Account Closed 12,550.00
TOTAL P178,434.00

Consequently, petitioner was charged under several informations docketed

as Criminal Cases Nos. 5796, 5797, 5798, 5799 and 5800 for violation of Batas
Pambansa Blg. 22. The information in Criminal Case No. 5796 reads:
That on or about the 27th day of October, 1990, in the City of Laoag, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused did then and
there wilfully, unlawfully and feloniously draw and issue Check No. 04142 in the
amount of Eighty One Thousand Eight Hundred Pesos (P81,800.00), dated November
5, 1990, drawn against the Philippine Commercial and International Bank, Laoag City
Branch, in favor of the Ever Lucky Commercial, as payee, in payment of construction
materials which he purchased on credit from the said Ever Lucky Commercial,
located at Brgy. No. 12, Gen. Segundo Ave., Laoag City, of which Mr. Victor Chan is
the Gen. Manager, knowing fully well that he had no sufficient funds deposited with
the drawee bank to cover the payment thereof, as in fact it was dishonored when
presented for payment to the drawee bank on November 13, 1990, on the ground that
it was drawn against insufficient funds, and the accused, despite due notice to him of
the dishonor of said check had not paid the amount thereof nor had he made
arrangements for its payment in full by the drawee bank within five (5) banking days
from receipt of the notice of dishonor, to the damage and prejudice of the Ever Lucky
Commercial in the amount of P81,800.00, Philippine Currency.

CONTRARY TO LAW. [4]

The other informations are similarly worded, except for the check number
and their amounts and the dates of issue which are hereunder itemized as
follows:
CRIMINAL CASE CHECK NO. DATE AMOUNT
NO.
5797 1759806 Apr. 19, 1990 P 25,000.00
5798 1759808 Apr. 20, 1990 P 4,834.00
5799 1759810 Apr. 11, 1990 P 39,000.00
1759812 Apr. 11, 1990 P 15,250.00
5800 1759811 May 2, 1990 P 12,550.00
The five informations were consolidated by the lower court. Upon
arraignment, petitioner pleaded not guilty to all the charges, and trial on the
merits ensued.
The prosecution established that petitioner, who used to purchase
construction materials on credit from ELC, issued the above-cited checks as
payment for the materials and that they were dishonored upon presentment for
payment to the bank either for insufficient funds or account closed. After the
checks were dishonored, ELC demanded payments from petitioner, who failed
to make good his undertaking to replace the checks. No formal written demand
letter or notice of dishonor, however, was sent to the petitioner. It was also
established by the prosecution that ELC, through its manager, issued several
receipts covering several payments in various amounts made by petitioner as
replacement of some dishonored but returned checks as well as for payment of
materials purchased. No official receipts covering the materials purchased,
however, were presented in court as evidence. [5]

In his defense, petitioner did not deny that he issued the subject checks and
that they were dishonored upon presentment for payment with the drawee
bank. He claimed, however, that he already paid the amounts covered by the
checks, totalling P284,340.50, including interest. In support thereof, he
submitted as evidence the following official receipts issued by ELC [6]

OFFICIAL RECEIPT NO. DATE AMOUNT

3290 Apr. 24, 1990 P 65,000.00
3298 Apr. 27, 1990 90,733.50
3411 May 3, 1990 10,000.00
3683 Sept. 4, 1990 68,607.00
3866 Jan. 5, 1991 50,000.00
TOTAL P284,340.50

According to petitioner, the difference between the total amount as reflected

in the receipts and the total amount covered by the subject checks represented
interest. He also admitted that he did not retrieve the dishonored checks as
[7]

they were not yet fully paid. [8]

On March 13, 1996, the trial court rendered its judgment as follows:

(1) In Criminal Case No. 5796, the accused is hereby found guilty beyond reasonable
doubt of the violation of BP Bilang 22. He is sentenced to suffer the straight penalty
of ONE (1) YEAR imprisonment and to indemnify the offended party in the amount
of P81,800.00;

(2) In Criminal Case No. 5797, the accused is hereby found guilty beyond reasonable
doubt of the violation of BP Bilang 22. He is sentenced to suffer the straight penalty
of SIX (6) MONTHS imprisonment and to indemnify the offended party in the
amount of P25,000.00;

(3) In Criminal Case No. 5798, the accused is hereby found guilty beyond reasonable
doubt of the violation of BP Bilang 22. He is sentenced to suffer the straight penalty
of THREE (3) MONTHS imprisonment and to indemnify the offended party in the
amount of P4,834.00;

(4) In Criminal Case No. 5799, the accused is hereby found guilty beyond reasonable
doubt of the violation of BP Bilang 22. He is sentenced to suffer the straight penalty
of ONE (1) YEAR Imprisonment and to indemnify the offended party in the amount
of P54,250.00; and
(5) In Criminal Case No. 5800, the accused is hereby found guilty beyond reasonable
doubt of the violation of BP Bilang 22. He is sentenced to suffer the straight penalty
of SIX (6) MONTHS imprisonment and to indemnify the offended party in the
amount of P12,550.00.

Costs against the accused.

SO ORDERED. [9]

In convicting petitioner, the trial court noted that petitioner had admitted the
issuance and dishonor of the subject checks, and he could not escape criminal
liability as it found his defense of payment off-tangent. It ruled that the alleged
[10]

payments do not apply to the subject checks but for the other materials
purchased, and granting they were applicable, they could only affect his civil
liability. Further, the trial court concluded that a mathematical computation of
[11]

the payments made by the petitioner vis-a-vis the subject checks did not give
credence to the stance of petitioner. The trial court found it illogical for petitioner
to have paid more than the amounts covered by the subject checks without a
single alleged payment matching any of the amounts written in the subject
checks, and with petitioner paying more than his outstanding liabilities at some
point.[12]

Aggrieved, petitioner filed an appeal before the Court of Appeals, which

affirmed the trial courts decision. The Court of Appeals found petitioners
defense of payment untenable and not proven by clear and convincing
evidence. It further stated that even if there were payment, petitioner failed to
prove that it was made within five days from receipt of notice of dishonor. In [13]

relation thereto, it ruled that the testimonial evidence of private complainant

declaring that immediate demands to pay were made on petitioner is in
themselves notices of dishonor. Petitioners motion for reconsideration was
[14]

denied in a resolution dated January 7, 1999.

Hence, this petition raising issues based on the alleged errors of the
appellate court.

MAIN ISSUE:

THE APPELLATE COURT COMMITTED A GRAVE MISTAKE IN AFFIRMING

THE TRIAL COURTS FINDING THAT THE PETITIONER IN THE FIVE (5)
CRIMINAL CASES IS GUILTY BEYOND REASONABLE DOUBT OF THE
VIOLATION OF BP BILANG 22 AND SENTENCING HIM TO SUFFER THE
PENALTY IMPOSED THEREIN.
 SUB-ISSUES

THE APPELLATE COURT ERRED IN SHIFTING UNTO THE PETITIONER THE

BURDEN OF PROVING HIS OWN INNOCENCE INSTEAD OF LAYING THE
BURDEN UPON THE PROSECUTION TO PROVE THE GUILT OF PETITIONER
BEYOND REASONABLE DOUBT.

II

THE APPELLATE COURT ERRED IN FINDING THAT DEFENSE OF

PAYMENT BY PETITIONER DID NOT OVERTHROW THE PRIMA FACIE
EVIDENCE OF KNOWLEDGE OF THE INSUFFICIENCY OF FUNDS AT THE
TIME OF ISSUANCE OF THE CHECKS AND THAT THE DEMANDS FOR
PAYMENT MADE TO PETITIONER ARE IN THEMSELVES NOTICES OF
DISHONOR.

III

THE APPELLATE COURT ERRED IN AFFIRMING THE TRIAL COURTS

FINDING THAT THE PAYMENTS MADE BY THE PETITIONER TO THE EVER
LUCKY COMMERCIAL (ELC) AS EVIDENCED BY OFFICIAL RECEIPT
ISSUED BY ELC REFER TO OTHER TRANSACTIONS BETWEEN THE
PETITIONER AND ELC AND NOT TO THE DISHONORED CHECKS.

IV

THE APPELLATE COURT ERRED IN AFFIRMING THE TRIAL COURTS

ANALYSIS DEBUNKING PETITIONERS DEFENSE OF PAYMENTS. [15]

In our view, the principal issue for our resolution is whether or not petitioners
guilt has been established beyond reasonable doubt.
Petitioner contends that he should be acquitted of all charges because he
already paid his obligations to Ever Lucky Commercial. He likewise avers that
the prosecution failed to establish all the elements of the crime, particularly that
he had knowledge of the insufficiency of his funds in the bank at the time he
issued the checks. This failure, according to petitioner, can be traced to the
prosecutions inability to prove that notices of dishonor were sent to him.
The Office of the Solicitor General (OSG), for appellee, argues that the
payments made by petitioner refer to different transactions and not to those
covered by the checks subject matter of this case. The OSG also avers that the
verbal demands made by private complainant are more than enough to prove
that petitioner had knowledge of the insufficiency of his funds in the bank at the
time he issued the checks.
At the outset, we must stress that as a general rule, the factual findings of
the trial court, when affirmed by the Court of Appeals, are accorded respect and
finality, unless tainted with arbitrariness or palpable error, or when the trial
[16]

court failed to appreciate certain facts and circumstances which, if taken into
account, would materially affect the result of the case. We find that the
[17]

exceptions rather than the general rule apply in this case. We also find the
petition meritorious.
The law enumerates the elements of violation of B.P. 22, namely (1) the
making, drawing and issuance of any check to apply for account or for value;
(2) the knowledge of the maker, drawer, or issuer that at the time of issue he
does not have sufficient funds in or credit with the drawee bank for the payment
of the check in full upon its presentment; and (3) the subsequent dishonor of
the check by the drawee bank for insufficiency of funds or credit or dishonor for
the same reason had not the drawer, without any valid cause, ordered the bank
to stop payment. [18]

The first and third elements of the offense are present and proved in these
consolidated cases. But we find that the second element was not sufficiently
established.
Knowledge of insufficiency of funds or credit in the drawee bank for the
payment of a check upon its presentment is an essential element of the
offense. In several cases, we have ruled that to hold a person liable under
[19] [20]

B.P. 22, it is not enough to establish that a check was dishonored upon
presentment. It must be shown further that the person who issued the check
knew at the time of issue that he does not have sufficient funds in or credit with
the drawee bank for the payment of such check in full upon its
presentment. Because this element involves a state of mind which is difficult to
establish, Section 2 of the law creates a prima facie presumption of such
knowledge.

SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing and

issuance of a check payment of which is refused by the drawee because of insufficient
funds or credit with such bank, when presented within ninety (90) days from the date
of the check, shall be prima facie evidence of knowledge of such insufficiency of
funds or credit unless such maker or drawer pays the holder thereof the amount due
thereon, or makes arrangements for payment in full by the drawee of such check
within five (5) banking days after receiving notice that such check has not been paid
by the drawee. (Italics and underscoring supplied)

In King vs. People, we held:

[21]

The prima facie presumption arises when a check is issued. But the law also provides
that the presumption does not arise when the issuer pays the amount of the check or
makes arrangement for its payment within five banking days after receiving notice
that such check has not been paid by the drawee.

Thus, the presumption that the issuer had knowledge of the insufficiency of
funds is brought into existence only after it is proved that the issuer had
received a notice of dishonor and that, within five days from receipt thereof, he
failed to pay the amount of the check or to make arrangement for its payment. [22]

Here, both the Court of Appeals and the trial court relied solely on the
testimony of prosecution witness Danilo Cac to the effect that private
complainant immediately demanded payment of the value of the checks after
they were dishonored. Aside from this self-serving testimony, no other evidence
was presented to prove the giving and receiving of such notice. The nature and
content of said demands were not clarified. Even the date when and the manner
by which these alleged demands were made upon and received by petitioner
were not specified. Worse, the records do not show that formal and written
demand letters or notices of dishonor were ever sent to petitioner.
Where the presumption of knowledge of insufficiency of funds does not arise
due to the absence of notice of dishonor of the check, the accused should not
be held liable for the offense defined under the first paragraph of Section 1 of
B.P. 22.[23]

As held in the case of Lao vs. Court of Appeals a notice of dishonor

[24]

personally sent to and received by the accused is necessary before one can be
held liable under B.P. 22. In that case, we stated thus:

Because no notice of dishonor was actually sent to and received by the petitioner, the
prima facie presumption that she knew about the insufficiency of funds cannot
apply. Section 2 of BP Blg. 22 clearly provides that this presumption arises not from
the mere fact of drawing, making, and issuing a bum check; there must also be a
showing that, within five banking days from receipt of the notice of dishonor, such
maker or drawer failed to pay the holder of the check the amount due thereon or to
make arrangement for its payment in full by the drawee of such check.
It has been observed that the State, under this statute, actually offers the violator a
compromise by allowing him to perform some act which operates to preempt the
criminal action, and if he opts to perform it the action is abated. xx xx The absence of
a notice of dishonor necessarily deprives an accused an opportunity to preclude a
criminal prosecution. Accordingly, procedural due process clearly enjoins that a
notice of dishonor be actually served on petitioner. Petitioner has a right to demand -
and the basic postulates of fairness require - that the notice of dishonor be actually
sent to and received by her to afford her the opportunity to avert prosecution under BP
Blg. 22. (Underscoring supplied.)

In other words, if such notice of non-payment by the drawee bank is not sent
to the maker or drawer of the bum check, or if there is no proof as to when such
notice was received by the drawer, then the presumption of knowledge as
provided in Section 2 of B.P. 22 cannot arise, since there would simply be no
way of reckoning the crucial five-day period. [25]

As stated earlier, the prosecution not only failed to prove the receipt by
petitioner of any notice of dishonor, the records are also bereft of any indication
that written formal demand letters or notice of dishonor were actually sent to
petitioner. In recent cases, we had the occasion to emphasize that not only
must there be a written notice of dishonor or demand letters actually received
by the drawer of a dishonored check, but there must also be proof of
receipt thereof that is properly authenticated, and not mere registered receipt
and/or return receipt.
Thus, as held in Domagsang vs. Court of Appeals, while Section 2 of B.P.
[26]

22 indeed does not state that the notice of dishonor be in writing, this must be
taken in conjunction with Section 3 of the law, i.e., that where there are no
sufficient funds in or credit with such drawee bank, such fact shall always be
explicitly stated in the notice of dishonor or refusal. A mere oral notice or
demand to pay would appear to be insufficient for conviction under the law. In
our view, both the spirit and the letter of the Bouncing Checks Law require for
the act to be punished thereunder not only that the accused issued a check that
is dishonored, but also that the accused has actually been notified in writing of
the fact of dishonor. The consistent rule is that penal statutes must be construed
strictly against the State and liberally in favor of the accused. In Victor Ting vs.
Court of Appeals, we stated that when service of a notice is sought to be made
[27]

by mail, it should appear that conditions exist on which the validity of such
service depends. Otherwise, the evidence is insufficient to establish the fact of
service. Receipts for registered letters and return receipts do not by themselves
prove receipt; they must be properly authenticated to serve as proof of receipt
of the letters.
 In fine, the failure of the prosecution to prove the existence and receipt by
petitioner of the requisite written notice of dishonor and that he was given at
least five banking days within which to settle his account constitutes sufficient
ground for his acquittal.
However, while petitioner is acquitted for violation of B.P. 22, he should be
ordered to pay the face value of the five dishonored checks plus legal interest
in accordance with our ruling in Domagsang vs. Court of Appeals. There, the
[28]

prosecution failed to sufficiently establish a case to warrant conviction, but

clearly proved petitioners failure to pay a just debt owing to the private
complainant. Thus, petitioner was ordered to pay the face value of the check
with 12 percent legal interest per annum, reckoned from the filing of the
information until the finality of the decision. It is well settled that an acquittal
based on reasonable doubt does not preclude the award of civil damages. The
judgment of acquittal extinguishes the liability of the accused for damages only
when it includes a declaration that the facts from which the civil liability might
arise did not exist. Thus, the civil liability is not extinguished by acquittal where
the acquittal is based on lack of proof beyond reasonable doubt, since only
preponderance of evidence is required in civil cases. There appears to be no
sound reason to require that a separate civil action be still filed considering that
the facts to be proved in the civil case have already been established in the
criminal proceedings where the accused was acquitted. To require a separate
civil action would mean needless clogging of court dockets and unnecessary
duplication of litigation with all its attendant loss of time, effort, and money on
the part of all concerned.[29]

Finally, we agree that petitioners alleged prior payment is untenable. As

found by the trial court and by the Court of Appeals, it is unnatural and illogical
for petitioner to have paid more than his outstanding obligations. It is also
unlikely that he would pay substantial amounts of interest when nothing had
been agreed upon on this matter. It is quite striking how he could have
generously paid more than what was due from him when he could hardly pay
private complainant in cash, and had to issue post-dated checks. Moreover, he
could have asked for the return of the checks as a matter of sound business
practice and procedure if indeed he already paid all the dishonored checks. The
fact that these checks remained in the possession of private complainant
contradicts petitioners allegation of payment. [30]

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

19764 is MODIFIED. Petitioner BEN RICO is ACQUITTED of the charge for
violation of B.P. 22 on the ground of reasonable doubt. However, he is ordered
to pay private complainant the face value of the checks in the total amount
of P178,434.00, with 12 percent interest per annum, from the filing of the
informations until the amount due is fully paid.
No pronouncement as to costs.
SO ORDERED.
GEOFFREY F. GRIFFITH, petitioner, vs. HON. COURT OF APPEALS,
RTC JUDGE EDWIN A. VILLASOR, MTC JUDGE MANUEL D.L.
VILLAMAYOR and PHELPS DODGE PHILS., INC., respondents.
Assailed in this petition is the decision[1] dated March 14, 1997 of the Court of
Appeals in CA-G.R. SP No. 19621, affirming the Regional Trial Courts
decision[2] finding petitioner Geoffrey F. Griffith guilty on two counts for violation of
Batas Pambansa Blg. 22 (the Bouncing Checks Law), and sentencing him to suffer
imprisonment for a period of six months on each count, to be served consecutively.Also
assailed is the Court of Appeals resolution[3] dated July 8, 1997 denying petitioners
motion for reconsideration.
The facts are as follows:
In 1985, Phelps Dodge Philippines, Inc. leased its lot and factory building to
Lincoln Gerard, Inc. for a term of two years at a monthly rental of P75,000. When
Lincoln Gerard, Inc. incurred rental arrearages, Geoffrey F. Griffith, in his capacity as
president of Lincoln Gerard, Inc., issued the following checks:

Far East Bank and Trust Co. Check No. 06B-C-075065, dated April 15, 1986
for P100,000.00, payable to Phelps Dodge Phils. Inc.; and

Far East Bank and Trust Co. Check No. 06B-C-075066, dated May 1, 1986
for P115,442.65, payable to Phelps Dodge Phils. Inc.[4]

The voucher for these checks contained the following instruction:

These checks are not to be presented without prior approval from this Corporation to
be given not later than May 30, 1986.

Also written on the face of the voucher was the following note:

However, if written approval of Lincoln Gerard, Inc. is not given before May 30,
1986, Phelps Dodge, Phils. shall present the cheques for payment. This is final and
irrevocable.[5]
 On May 29, 1986, Griffith wrote Phelps Dodge not to present the said checks for
payment on May 30, 1986 because they could not be funded due to a four-week labor
strike that had earlier paralyzed the business operations of Lincoln Gerard.[6]
Previously, in a letter dated May 20, 1986, Phelps Dodge, through its treasurer
Ricardo R. Manarang, advised Lincoln Gerard that it was transferring the contents of
the Lincoln Gerard warehouse in the leased premises since a new tenant was moving
in. Phelps Dodge told Lincoln Gerard that its properties would be placed in our
compound and under our custody.[7]
On June 2, 1986,[8] when no further communication was received from Lincoln
Gerard, Phelps Dodge presented the two checks for payment but these were dishonored
by the bank for having been drawn against insufficient funds. Three days later, Phelps
Dodge sent a demand letter to Lincoln Gerard, apprising Griffith of the dishonor of the
checks and asking him to fund them within the time prescribed by law.[9] Lincoln Gerard
still failed to fund the checks but Griffith sent a letter to Phelps Dodge, explaining
Lincolns inability to fund said checks due to the strike. [10] Subsequently, on June 19,
1986, Phelps Dodge notified Lincoln Gerard that its properties would be
foreclosed. Phelps Dodge went ahead with the foreclosure and auction sale on June 20,
1986,[11] despite Lincoln Gerards protest.[12]
On May 10, 1988, two informations for violation of B.P. 22 docketed as Criminal
Cases Nos. 73260 and 73261 were filed against petitioner before the Regional Trial
Court. The motion for reconsideration filed by Griffith was dismissed, and so were his
petition for review filed before the Department of Justice and later on his motion to
quash filed before the RTC. Griffith then filed a petition forcertiorari before the Court
of Appeals that was likewise denied.
Meanwhile, on November 6, 1987, Lincoln Gerard lodged a complaint for damages
docketed as Civil Case No. 55276 before the Regional Trial Court of Pasig, Branch 69,
against Phelps Dodge and the notary public who conducted the auction sale.[13] On July
19, 1991, the trial court ruled that the foreclosure and auction sale were invalid, but
applied the proceeds thereof to Lincoln Gerards arrearages. It also ordered Phelps
Dodge to return to Lincoln Gerard the P1,072,586.88 as excess.[14] The court stated:

The evidence shows that defendant corporation had already received the amount
of P254,600 as a result of the invalid auction sale. The latter amount should be applied
to the rental in arrears owed by the plaintiff corporation to the defendant corporation
(P301,953.12). Thus, the plaintiff corporation still owes the defendant corporation the
amount of P47,953.12 as rental arrears. In order to get the true and real damages that
defendant corporation should pay the plaintiff corporation, the balance of the rental
arrears should be deducted from the amount of P1,120,540.00, the total value of the
items belonging to the plaintiff corporation and sold by the defendant corporation at a
public auction. The net result is P1,072,586.88. [15]

On appeal, the Court of Appeals affirmed the RTC decision, and this became final
and executory.[16]
On August 25, 1994, the criminal cases against Griffith pending before the RTC
were remanded to the Metropolitan Trial Court (MeTC), in view of Republic Act No.
7691 that expanded the jurisdiction of the MeTC.
On July 25, 1995, the MeTC, in Criminal Cases Nos. 41678 and 41679, found
Griffith guilty on both counts for violation of B.P. 22, [17] and sentenced him to suffer
imprisonment for six months on each count, to be served consecutively. Thus:

WHEREFORE, premises considered, this court finds the accused GEOFFREY F.

GRIFFITH, GUILTY OF VIOLATION of Section 1 of Batas Pambansa Blg. 22,
otherwise known as the Bouncing Checks Law on two counts.

The accused is therefore hereby sentence (sic) to suffer imprisonment for a period of
SIX (6) MONTHS in Criminal Case No. 41678 and another SIX (6) MONTHS in
Criminal Case No. 41679, both of which shall be served consecutively.

Considering that the civil aspect of these cases has already been decided by the
Regional Trial Court Branch 69, Pasig, regardless of its finality, of which this court
has no record, this Court shall not resolve the same because they are either Res
Judicata or Pendente Litis.

SO ORDERED.[18]

On appeal, the RTC affirmed in toto the lower courts decision.

Petitioner then appealed his conviction to the Court of Appeals. In a consolidated
decision dated March 14, 1997, the appellate court ruled:

WHEREFORE, absent any prima facie merit in it, the Petition for Review under
consideration is hereby DENIED DUE COURSE. Costs against petitioner.

SO ORDERED. [19]

Petitioner moved for a reconsideration of said decision but this was denied by the
appellate court in a resolution dated July 8, 1997.[20] Hence, this petition seeking reversal
of the CA decision and resolution on the criminal cases, anchored on the following
grounds:
 I. THE COURT OF APPEALS DECISION DATED 14 MARCH 1997 AND ITS RESOLUTION
DATED 8 JULY 1997 ARE CONTRARY TO THE RULING IN MAGNO V. COURT OF
APPEALS, WHERE THIS HONORABLE COURT LAID DOWN THE DOCTRINE THAT
A CONVICTION UNDER B.P. 22 CANNOT BE BASED ON AN INVERSE
APPLICATION OF THE ELEMENT OF KNOWLEDGE.
II. THE COURT OF APPEALS DECISION DATED 14 MARCH 1997 AND ITS RESOLUTON
DATED 8 JULY 1997 RESULT IN AN UNCONSTITUTIONAL APPLICATION OF THE
PROVISIONS OF B.P. 22.
III. THE COURT OF APPEALS DECISION DATED 14 MARCH 1997 AND ITS
RESOLUTION DATED 8 JULY 1997 STATING THAT PAYMENT THROUGH
NOTARIAL FORECLOSURE BEFORE THE FILING OF THE CRIMINAL
INFORMATIONS UNDER B.P. 22 DOES NOT ABATE CRIMINAL LIABILITY, ARE
ERRONEOUS AND RESULT IN THE INIQUITOUS INTERPRETATION OF THE LAW.
IV. THE COURT OF APPEALS DECISION DATED 14 MARCH 1997 AND ITS
RESOLUTION DATED 8 JULY 1997 ARE INCONSISTENT WITH ITS OWN FINDINGS
AND CONCLUSIONS IN A RELATED CASE (CA-G.R. NO. 20980) INVOLVING THE
SAME PETITIONER AND RESPONDENT AND THE SAME TRANSACTION SUBJECT
OF THIS CASE.
V. THE COURT OF APPEALS DECISION DATED 14 MARCH 1997 AND ITS
RESOLUTION DATED 8 JULY 1997 WHICH RELIED ON THE RULING IN THE
CASE OF LIM V. COURT OF APPEALS ON VENUE TO JUSTIFY ITS FINDING
THAT PETITIONER HAS COMMITTED TWO COUNTS OF VIOLATION OF
B.P. 22, ARE CONTRAY TO LAW AND JURISPRUDENCE. [21]
Petitioner points out that he communicated to Phelps Dodge through a note on the
voucher attached to the checks, the fact that said checks were unfunded at the time of
their issuance. Petitioner contends that this good faith on his part negates any intent to
put worthless checks in circulation, which is what B.P. 22 seeks to penalize. Moreover,
as regards the second check that was postdated, petitioner contends that there could not
be any violation of B.P. 22 with said check since the element of knowledge of
insufficiency of funds is absent. Petitioner could not have known at the time of its
issuance that the postdated check would be dishonored when presented for payment
later on.
Petitioner argues that his conviction in this case would be violative of the
constitutional proscription against imprisonment for failure to pay a debt, since
petitioner would be punished not for knowingly issuing an unfunded check but for
failing to pay an obligation when it fell due.
Petitioner also asserts that the payment made by Lincoln Gerard through the
proceeds of the notarial foreclosure and auction sale extinguished his criminal liability.
On the other hand, private respondent contends that all the elements that comprise
violation of B.P. 22 are present in this case. Moreover, the payment in this case was
made beyond the five-day period, counted from notice of dishonor, provided by the law
and thus did not extinguish petitioners criminal liability.
For the State, the Solicitor General contends that Lincoln Gerard assured Phelps
Dodge, through the note on the voucher attached to the checks, that said checks would
be covered with sufficient funds by May 30, 1996, which assurance was final and
irrevocable.[22] The OSG also argues that B.P. 22 does not distinguish between a check
that is postdated and one that is not, for as long as the drawer issued the checks with
knowledge of his insufficient funds and the check is dishonored upon presentment.
There is no unconstitutional punishment for failure to pay a debt in this case, since
according to the OSG, what B.P. 22 penalizes is the act of making and issuing a
worthless check that is dishonored upon presentation for payment, not the failure to pay
a debt.[23]
The OSG asserts that the supposed payment that resulted from Phelps Dodges
notarial foreclosure of Lincoln Gerards properties could not bar prosecution under B.P.
22, since damage or prejudice to the payee is immaterial. Moreover, said payment was
made only after the violation of the law had already been committed. It was made
beyond the five-day period, from notice of dishonor of the checks, provided under B.P.
22.
The principal issue in this case is whether petitioner Geoffrey F. Griffith, president
of Lincoln Gerard, Inc., has been erroneously convicted and sentenced for violation of
the Bouncing Checks Law (Batas Pambansa Blg. 22). His conviction on two counts and
sentence of six months imprisonment for each count by the respondent MTC Judge
Manuel Villamayor was upheld by respondent RTC Judge Edwin Villasor and affirmed
by the respondent Court of Appeals. But private respondent appears to have collected
more than the value of the two checks in question before the filing in the trial court of
the case for violation of B.P. 22. Hence, petitioner insists he has been wrongfully
convicted and sentenced. To resolve this issue, we must determine whether the alleged
payment of the amount of the checks two years prior to the filing of the information for
violation of B.P. 22 justifies his acquittal.
Whether there is an unconstitutional application of the provisions of B.P. 22 in this
case, however, does not appear to us an appropriate issue for consideration now. A
purported constitutional issue raised by petitioner may only be resolved if essential to
the decision of a case and controversy. But here we find that this case can be resolved
on other grounds. Well to remember, courts do not pass upon constitutional questions
that are not the very lis mota of a case.[24]
In the present case, the checks were conditionally issued for arrearages on rental
payments incurred by Lincoln Gerard, Inc. The checks were signed by petitioner, the
president of Lincoln Gerard. It was a condition written on the voucher for each check
that the check was not to be presented for payment without clearance from Lincoln
Gerard, to be given at a specific date. However, Lincoln Gerard was unable to give such
clearance owing to a labor strike that paralyzed its business and resulted to the
companys inability to fund its checks. Still, Phelps Dodge deposited the checks, per a
note on the voucher attached thereto that if written approval was not received from
Lincoln Gerard before May 30, 1986, the checks would be presented for payment. This
is final and irrevocable, according to the note that was written actually by an officer of
Phelps Dodge, not by petitioner. The checks were dishonored and Phelps Dodge filed
criminal cases for violation of B.P. 22 against petitioner. But this filing took place only
after Phelps Dodge had collected the amount of the checks, with more than one million
pesos to spare, through notarial foreclosure and auction sale of Lincoln Gerards
properties earlier impounded by Phelps Dodge.
In our view, considering the circumstances of the case, the instant petition is
meritorious.
The Bouncing Checks Law was devised to safeguard the interest of the banking
system and the legitimate public checking account user.[25] It was not designed to favor
or encourage those who seek to enrich themselves through manipulation and
circumvention of the purpose of the law.[26] Noteworthy, in Administrative Circular No.
12-2000, this Court has expressed a policy preference for fine as penalty in cases of
B.P. 22 violations rather than imprisonment to best serve the ends of criminal justice.
Moreover, while the philosophy underlying our penal system leans toward the
classical school that imposes penalties for retribution,[27] such retribution should be
aimed at actual and potential wrongdoers.[28] Note that in the two criminal cases filed by
Phelps Dodge against petitioner, the checks issued were corporate checks that Lincoln
Gerard allegedly failed to fund for a valid reason duly communicated to the
payee. Further, it bears repeating that Phelps Dodge, through a notarial foreclosure and
auction that were later on judicially declared invalid, sold Lincoln Gerards property for
cash amounting to P1,120,540[29] to satisfy Phelps Dodge claim for unpaid rentals. Said
property was already in Phelps Dodges custody earlier, purportedly because a new
tenant was moving into the leased premises. The obligation of Lincoln Gerard to Phelps
Dodge for said rentals was only P301,953.12.[30] Thus, by resorting to the remedy of
foreclosure and auction sale, Phelps Dodge was able to collect the face value of the two
checks, totalling P215,442.65. In fact, it impounded items owned by Lincoln Gerard
valued far in excess of the debt or the checks. This was the situation when, almost two
years after the auction sale, petitioner was charged with two counts of violation of B.P.
22. By that time, the civil obligation of Lincoln Gerard, Inc. to Phelps Dodge Phils. Inc.
was no longer subsisting, though respondent Court of Appeals calls the payment thereof
as involuntary.[31] That the money value of the two checks signed by petitioner was
already collected, however, could not be ignored in appreciating the antecedents of the
two criminal charges against petitioner. Because of the invalid foreclosure and sale,
Phelps Dodge was ordered to pay or return P1,072,586.88 to Lincoln Gerard, per
decision of the Regional Trial Court of Pasig, Branch 69, which became final after it
was affirmed by the appellate court. We cannot, under these circumstances, see how
petitioners conviction and sentence could be upheld without running afoul of basic
principles of fairness and justice. For Phelps Dodge has, in our view, already exacted
its proverbial pound of flesh through foreclosure and auction sale as its chosen remedy.
That is why we find quite instructive the reasoning of the Court of Appeals earlier
rendered in deciding the petition for Certiorari and Injunction, Griffith v. Judge
Milagros Caguioa, CA-G.R. SP No. 20980, in connection with the petitioners motion
to quash the charges herein before they were tried on the merits.[32]
Said Justice C. Francisco with the concurrence of Justices Reynato S. Puno and
Asaali S. Isnani:

We are persuaded that the defense has good and solid defenses against both charges in
Criminal Cases Nos. 73260-61. We can even say that the decision rendered in Branch
69 in Civil Case No. 55276, well-written as it is, had put up a formidable obstacle to
any conviction in the criminal cases with the findings therein made that the sale by
public auction of the properties of Lincoln was illegal and had no justification under
the facts; that also the proceeds realized in the said sale should be deducted from the
account of Lincoln with Phelps, so that only P47,953.12 may only be the rentals in
arrears which Lincoln should pay, computed at P301,953.12 less P254,600.00; that
out of what had happened in the case as the trial court had resolved in its decision,
Phelps is duty bound to pay Lincoln in damages P1,072,586.88 from which had been
deducted the amount of P47,953.12 representing the balance of the rental in
arrearages; and that consequently, there is absolutely no consideration remaining in
support of the two (2) subject checks.[33]

Petitioners efforts to quash in the Court of Appeals the charges against him was
frustrated on procedural grounds because, according to Justice Francisco, appeal and
not certiorari was the proper remedy.[34] In a petition for certiorari, only issues of
jurisdiction including grave abuse of discretion are considered, but an appeal in a
criminal case opens the entire case for review.
While we agree with the private respondent that the gravamen of violation of B.P.
22 is the issuance of worthless checks that are dishonored upon their presentment for
payment, we should not apply penal laws mechanically.[35] We must find if the
application of the law is consistent with the purpose of and reason for the law. Ratione
cessat lex, et cessat lex. (When the reason for the law ceases, the law ceases.) It is not
the letter alone but the spirit of the law also that gives it life. This is especially so in this
case where a debtors criminalization would not serve the ends of justice but in fact
subvert it. The creditor having collected already more than a sufficient amount to cover
the value of the checks for payment of rentals, via auction sale, we find that holding the
debtors president to answer for a criminal offense under B.P. 22 two years after said
collection, is no longer tenable nor justified by law or equitable considerations.
In sum, considering that the money value of the two checks issued by petitioner has
already been effectively paid two years before the informations against him were filed,
we find merit in this petition.We hold that petitioner herein could not be validly and
justly convicted or sentenced for violation of B.P. 22. Whether the number of checks
issued determines the number of violations of B.P. 22, or whether there should be a
distinction between postdated and other kinds of checks need no longer detain us for
being immaterial now to the determination of the issue of guilt or innocence of
petitioner.
WHEREFORE, the petition is hereby GRANTED. The decision of the Court of
Appeals in CA-G.R. No. 19621 dated March 14, 1997, and its resolution dated July 8,
1997, are REVERSED and SET ASIDE. Petitioner Geoffrey F. Griffith is
ACQUITTED of the charges of violation of B.P. 22 in Criminal Cases Nos. 41678 and
41679.
Costs de officio.
SO ORDERED.
EVANGELINE DANAO, petitioner, vs. COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES, respondents
Before this Court is a Petition for Review on Certiorari assailing the Decision of
the Court of Appeals in CA-G.R. CR No. 15031, "The People of the Philippines vs.
Evangeline Claire Danao," for violation of Batas Pambansa Blg. 22, and its Resolution
denying her motion for reconsideration.
On December 18, 1992, Evangeline Danao was charged in Criminal Case Nos. 92-
8385 and 92-8386 for violation of Batas Pambansa Blg. 22 (the Bouncing Checks Law)
before the Regional Trial Court, Branch 60, Makati City. Except as to the numbers,
amounts and dates of the two (2) checks issued by Evangeline, the two (2) Informations
in said criminal cases are similarly worded, thus:

"That on or about the 23rd day of December 1991, in the Municipality of Makati,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused did then and there willfully, unlawfully and feloniously make
or draw and issue to Luviminda Macasieb, to apply on account or for value, the
checks described below:

Crim. Case Crim. Case

No. 92-8385 No. 92-8386

Check No. 128796 130851

Drawn Against PCI Bank PCI Bank

In the Amount of P14,500.00 P15,000.00

Dated/Postdated Jan. 23, 1992 Jan. 24, 1992

Payable to Cash Cash

said accused well knowing that at the time of issue thereof, accused did not have
sufficient funds in or credit with the drawee bank for the payment in full of the
face amount of such check upon its presentment, which check when presented for
payment within ninety (90) days from the date thereof, was subsequently
dishonored by the drawee bank for the reason 'ACCOUNT CLOSED' and, despite
receipt of notice of such dishonor, the said accused failed to pay said payee the
face amount of said check or to make arrangement for full payment thereof within
five (5) banking days after receiving notice.

"Contrary to law."[1]

Upon arraignment on January 27, 1993, Evangeline pleaded "not guilty" to both
charges. Trial ensued thereafter.
The respective versions of the prosecution and the defense are summarized by the
Court of Appeals in its assailed Decision as follows:

"Private complainant Luviminda Macasieb is in the business of rediscounting

checks. Arturo Estrada, the branch manager of the Monte de Piedad bank at Pasay
City was one of her agents, authorized to transact rediscounting business with any
person for and in behalf of the private complainant.

"Sometime in December 1991, appellant (Evangeline Danao) went to see Arturo

Estrada at his office to seek an additional loan, being a depositor and borrower of the
bank. Estrada had to refuse appellant's request, considering that her existing loan had
not yet been fully liquidated.

Appellant then asked Estrada if he knew a private lender. Estrada informed appellant
that he knew one who lends money with postdated checks as security. Appellant
agreed to the arrangement, Estrada phoned private complainant Luviminda Macasieb
and told her of appellant's desire to get a loan with postdated checks as security.
Macasieb talked with appellant over the phone and explained that the checks would be
subject to a 10% interest every month. After the telephone conversation with
appellant, Macasieb instructed Estrada to release the amount of P29,750.00 (Exh.
"A") from the petty cash fund entrusted by her to Estrada. After appellant received the
said amount from Estrada, she issued two postdated checks in the total amount of
P29,750.00. The checks were Monte de Piedad Check No. 128796 dated 25 January
1992 in the amount of P14,750.00 (Exh. B); and the other check No. 130851 dated 24
January 1992 in the amount of P15,000.00 (Exh. C).

"On the maturity dates of the two checks, private complainant deposited the same at
the PCIB Branch at Heroes Hill, Quezon City. However, the checks were dishonored
for the reason that the account of appellant had already been closed. Macasieb later
received check slips (Exhs. D and E) together with the returned checks. The returned
checks bear the stamped words "ACCOUNT CLOSED". Estrada informed appellant
of the dishonor of the checks and asked her to redeem the same but to no avail. A
letter was sent by Atty. Jose S. Padolina, counsel for private complainant, demanding
that appellant settle her obligation (Exh. F, p. 62, rec.). Appellant, however, failed to
heed the demand letter.

"The appellant does not deny that she issued the two postdated checks. She claims,
however, that she has fully paid private complainant."[2]

The trial court did not give credence to Evangeline's defense.

On August 3, 1993, the trial court convicted her as charged, thus:

"V

ADJUDICATION

"26. The PROSECUTION has proven beyond reasonable doubt, the guilt of DANAO
of the crime charged in each of the INFORMATIONS. Her constitutionally-presumed
innocence has been overcome.

"27. WHEREFORE, the Court hereby renders judgment as follows:

"27.1. The accused EVANGELINE CLAIRE DANAO is found guilty to violation of

Section 2, B.P. 22 in each of the above-entitled cases:

"27.2. Accordingly, the accused is sentenced in:

CRIM. CASE NO. 92-8385

"27.2.1. To suffer the penalty of imprisonment of FOUR (4) MONTHS and ONE (1)
day and a fine of FOURTEEN THOUSAND SEVEN HUNDRED FIFTY PESOS
(P14,750.00) with subsidiary imprisonment in case of insolvency.

"27.2.2. To indemnify the private offended party, LUVIMINDA MACASIEB, the

sum of FOURTEEN THOUSAND SEVEN HUNDRED FIFTY PESOS (P14,750.00).

"27.2.3. To pay the said offended party damages at the rate of six (6) percent per
annum on the P14,750.00 from December 18, 1991 until the said amount is fully paid.

CRIM. CASE NO. 92-8385

"27.2.4. To suffer the penalty of imprisonment of FOUR (4) MONTHS and ONE (1)
day and a fine of FIFTEEN THOUSAND PESOS (P15,000.00) with subsidiary
imprisonment in case of insolvency.

"27.2.5. To indemnify the private offended party, LUVIMINDA MACASIEB, the

sum of FIFTEEN THOUSAND PESOS (P15,000.00).

"27.2.6. To pay the said offended party damages at the rate of six (6) percent per
annum on the (P15,000.00) from December 18, 1991 until the said amount is fully
paid.

x x x x x x x x x"[3]
On appeal, the Court of Appeals, in CA-G.R. CR No. 15031, rendered its
Decision[4] on April 19, 1995 affirming in toto the trial court's Decision. Evangeline
filed a motion for reconsideration but was denied by the Court of Appeals in a
Resolution dated August 28, 1995.
Hence the instant petition wherein Evangeline contends that the respondent Court
of Appeals erred -
"A.

x x x IN NOT HOLDING THAT AN ESSENTIAL ELEMENT OF BOUNCING

CHECK LAW VIOLATION IS ABSENT, BECAUSE THE PRESUMPTION OR
PRIMA FACIE EVIDENCE OF KNOWLEDGE OF INSUFFICIENCY OF FUNDS
DID NOT ARISE, SINCE THE PROSECUTION FAILED TO PROVE
EVANGELINE'S RECEIPT OF, AS WELL AS THE DATE WHEN SHE
RECEIVED, THE COMPLAINANT'S LETTER OF DEMAND.
B.
x x x IN NOT HOLDING THAT THE ACCUSED EVANGELINE HAD ALREADY
PAID THE SUBJECT ACCOUNT EVEN BEFORE THE COMPLAINANT'S
LETTER OF DEMAND, AS SHOWN BY COMPLAINANT'S STATEMENT OF
ACCOUNT, EXH. "1".
C.

x x x IN REJECTING AS EVIDENCE THE STATEMENT OF ACCOUNT, EXH.

"1", ON THE GROUND THAT IT IS INCOMPETENT, THAT IT DID NOT
COMPLY WITH THE REQUIREMENTS FOR PROOF OF PRIVATE
DOCUMENT AND OF SECONDARY EVIDENCE, DESPITE AND IN SPITE OF
THE COMPLAINANT'S ADMISSION, IN OPEN COURT UNDER OATH, THAT
SHE WROTE IT IN HER OWN HANDWRITING AND THAT ITS CONTENTS
ARE TRUE.
D.

x x x IN HOLDING THAT, EVEN IF THE STATEMENT OF ACCOUNT, EXH.

"1", WERE COMPETENT AND ADMISSIBLE, IT APPLIED TO OTHER
ACCOUNTS, DESPITE AND IN SPITE OF THE COMPLAINANT'S ADMISSION,
IN OPEN COURT UNDER OATH, THAT THE SUBJECT CHECKS WERE THE
ONLY LOAN TRANSACTION BETWEEN THE COMPLAINANT AND THE
ACCUSED EVANGELINE, AND NOTWITHSTANDING THAT UNDER THE
LAW THE APPLICATION OF PAYMENT SHOULD BE TO THE SUBJECT
ACCOUNT.
E.

x x x IN FURTHER ANCHORING THE CONVICTION OF THE ACCUSED

EVANGELINE TO PATENT CONJECTURES, UNWARRANTED INFERENCES
AND PALPABLE NON-SEQUITURS THAT CANNOT CURE THE
PROSECUTION'S FAILURE TO PROVE KNOWLEDGE OF INSUFFICIENCY OF
FUNDS AS AN ESSENTIAL ELEMENT OF THE OFFENSE, NOR NEGATE THE
LEGAL EFFECT OF PAYMENT OF THE SUBJECT ACCOUNT BY THE
ACCUSED BEFORE DEMAND.

xxx xxx xxx"[5]

It is settled that factual findings of the trial court are accorded great weight, even
finality on appeal, except when it has failed to appreciate certain facts and
circumstances which, if taken into account, would materially affect the result of the
case. This exception is present here.
 We find that the totality of the evidence presented does not support petitioner's
conviction for violation of B.P. Blg. 22, since the prosecution failed to prove beyond
reasonable doubt all the elements of the offense.
The Information in each of the two criminal cases charges that petitioner
Evangeline issued the subject check, "knowing that at the time of issue thereof," she
"did not have sufficient funds in or credit with the drawee bank for the payment in full
of the face amount of the check upon its presentment," and that "despite receipt of notice
of dishonor, the said accused failed to pay the payee the face amount of the check or to
make arrangement for full payment thereof within five (5) banking days after receiving
notice."
Petitioner was specifically charged with violation of the first paragraph of Section
1 of BP Blg. 22, which provides:

"SECTION 1. Checks without sufficient funds. - Any person who makes or draws and
issues any check to apply on account or for value, knowing at the time of issue that
he does not have sufficient funds in or credit with the drawee bank for the payment
of such check in full upon its presentment, which check is subsequently dishonored
by the drawee bank for insufficiency of funds or credit or would have been dishonored
for the same reason had not the drawer, without any valid reason, ordered the bank to
stop payment, shall be punished by imprisonment of not less than thirty days but not
more than one (1) year or by a fine of not less than but not more than double the
amount of the check which fine shall in no case exceed Two Hundred Thousand
Pesos, or both such fine and imprisonment at the discretion of the court."
(Underscoring supplied)

The elements[6] of the offense under the abovequoted provision are:

1. The accused makes, draws or issues any check to apply to account or for value;

2. The accused knows at the time of the issuance that he or she does not have
sufficient funds in, or credit with, the drawee bank for the payment of the check in
full upon its presentment; and

3. The check is subsequently dishonored by the drawee bank for insufficiency of

funds or credit, or it would have been dishonored for the same reason had not the
drawer, without any valid reason, ordered the bank to stop payment.

In King vs. People,[7] this Court, through Justice Artemio V. Panganiban, held: "To
hold a person liable under B.P. Blg. 22, it is not enough to establish that a check issued was
subsequently dishonored. It must be shown further that the person who issued the check knew 'at the time of
issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in
 Because this element involves a state of mind which is difficult to
full upon its presentment.'
establish, Section 2 of the law creates a prima facie presumption of such knowledge, as
follows:

'SEC. 2. Evidence of knowledge of insufficient funds. - The making, drawing and

issuance of a check payment of which is refused by the drawee because of insufficient
funds in or credit with such bank, when presented within ninety (90) days from the
date of the check, shall be prima facie evidence of knowledge of such insufficiency of
funds or credit unless such maker or drawer pays the holder thereof the amount due
thereon, or makes arrangements for payment in full by the drawee of such check
within five (5) banking days after receiving notice that such check has not been paid
by the drawee.'

Thus, this Court further ruled in King, "in order to create the prima
facie presumption that the issuer knew of the insufficiency of funds, it must be shown
that he or she received a notice of dishonor and, within five banking days thereafter,
failed to satisfy the amount of the check or make arrangement for its payment."[8]
Indeed, the prima facie presumption in Section 2 of B.P. Blg. 22 "gives the accused
an opportunity to satisfy the amount indicated in the check and thus avert
prosecution."[9] This opportunity, as this Court stated in Lozano vs. Martinez,[10] serves
to "mitigate the harshness of the law in its application.
In other words, if such notice of non-payment by the drawee bank is not sent to
the maker or drawer of the bum check, or if there is no proof as to when such notice
was received by the drawer, then the presumption or prima facie evidence as provided
in Section 2 of B.P. Blg. 22 cannot arise, since there would simply be no way of
reckoning the crucial 5-day period.
In the present case, no proof of receipt by petitioner of any notice of non-payment
of the checks was ever presented during the trial. As found by the trial court
itself, "(t)he evidence however is not clear when Macasieb (private complainant)
made the demands. There is no proof of the date when DANAO received the
demand letter (Exh. F)."[11]
Obviously, in the instant case, there is no way of determining when the 5-day period
prescribed in Section 2 of B.P. Blg. 22 would start and end. Thus, the presumption
or prima facie evidence of knowledge by the petitioner of the insufficiency of funds or
credit at the times she issued the checks did not arise.
It is clear that the essential element of knowledge of insufficiency of funds or credit
on the part of petitioner is absent in the case at bar, not having been proved by the
prosecution. On this ground alone, petitioner should be acquitted.
Again, the ruling of this Court in King[12] bears repeating:
"Under Batas Pambansa Blg. 22 (BP 22), the prosecution must prove not only that the
accused issued a check that was subsequently dishonored. It must also establish that
the accused was actually notified that the check was dishonored, and that he or she
failed, within five banking days from receipt of the notice, to pay the holder of the
check the amount due thereon or to make arrangement for its payment.Absent proof
that the accused received such notice, a prosecution for violation of the Bouncing
Checks Law cannot prosper.

In the same vein, we clarified in Lao vs. Court of Appeals[13] that "(a)lthough the
offense charged is a malum prohibitum, the prosecution is not thereby excused from its
responsibility of proving beyond reasonable doubt all the elements of the offense, one
of which is knowledge of the insufficiency of funds."
The remaining assigned errors raised by petitioner are closely interrelated since they
pertain to her payment of the amounts of the subject checks even prior to complainants
letter of demand. We shall discuss them jointly.
Petitioner contends that while the demand letter is dated June 17, 1992 (Exh. F), the
Statement of Account (Exhs. 1 & 1-A) shows that as of June 5, 1992, she had paid to
complainant Macasieb P30,514.00, thus covering the amount of P29,500.00 of the two
checks.
We find that the payment made by Evangeline in the total amount of P30,514.00
has been sufficiently and convincingly established by the very testimony of complainant
herself. The respondents, through the Solicitor General, argued that petitioner's
payments were for "other accounts". But that is not so, as can be clearly gleaned from
the following testimony of complainant Macasieb:
"Q: Regarding those other transactions, was Evangeline Danao ever able to make good those other
transactions as you mentioned several transactions?
"A: I do not think so because what she is using is the check of her mother. I forgot the name -
Samonte I think."[14]
"Q: How much was the partial payment?
"A: More or less I think P30,000.00 something but that is for the other accounts with me using the
other checks of her clients."[15]
"Q: You mean to say, after filing these cases or before filing these cases and after the first
transaction was not made good you still continue doing business with her in the
rediscounting business?
"A: Not anymore because what she was furnishing before are I think the checks of the customers and
through the checks of the customers I accepted."[16]
"Q: Going back to this particular transaction - is this the only transaction of Evangeline Danao
which is under her name made between you and her?
"A: Yes, sir."[17]
 "Q: But you still remember that statement of account in your own handwriting which was given to
her?
"A: Yes, Attorney. This is my handwriting because sometime in June 1992 she asked for an audience
with me. This is the statement of account and these are the payments that she was able to
make from February to June.
"Q: Under your oath you will affirm that you have issued this statement of account?
"A: Yes.
"Q: And to the total amount of P30,514.00?
"A: Yes.
"ATTY. DY:
I am presenting this as evidence for the accused. I request that the same be marked as Exh. 1 for the
accused and then the amount of P30,514.00 be enclosed in parenthesis and to be marked as
our Exh. 1-A."[18] (Emphasis supplied)
It is plain that complainant established by her own admission that the subject checks
are the only particular transactions between her and petitioner and that the so-called
"other transactions" or checks are in the names of the latter's mother, clients or
customers. There can be no other conclusion then than that petitioner's payment of
P30,514.00 pertains only to the subject checks.
In sum, we find that the prosecution failed to prove by evidence beyond reasonable
doubt the guilt of herein petitioner for violations of B.P. 22.
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are
hereby REVERSED and SET ASIDE. Petitioner Evangeline Danao is ACQUITTED of
the offense of violation of B.P. Blg. 22 on two counts for insufficiency of evidence. No
pronouncement as to costs.
SO ORDERED.
JOSEPHINE DOMAGSANG, petitioner, vs. THE HONORABLE
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
Petitioner was convicted by the Regional Trial Court of Makati, Branch 63,
of having violated Batas Pambansa ("B.P.") Blg. 22 (Anti-Bouncing Check
Law), on eighteen (18) counts, and sentenced to "suffer the penalty of One (1)
Year imprisonment for each count (eighteen [18] counts)." Petitioner was
likewise ordered to pay the private complainant the amount of
P573,800.00. The judgment, when appealed to the Court of Appeals (CA-G.R.
[1]

CR No. 18497), was affirmed in toto by the appellate court.

It would appear that petitioner approached complainant Ignacio Garcia, an
Assistant Vice President of METROBANK, to ask for financial
assistance. Garcia accommodated petitioner and gave the latter a loan in the
sum of P573,800.00. In exchange, petitioner issued and delivered to the
complainant 18 postdated checks for the repayment of the loan. When the
checks were, in time, deposited, the instruments were all dishonored by the
drawee bank for this reason: Account closed. The complainant demanded
payment allegedly by calling up petitioner at her office. Failing to receive any
payment for the value of the dishonored checks, the complainant referred the
matter to his lawyer who supposedly wrote petitioner a letter of demand but that
the latter ignored the demand.
On 08 May 1992, Criminal Case No. 92-4465 was lodged against petitioner
before the Regional Trial Court ("RTC") of Makati. The Information read:

"That on or about the 24th day of June, 1991, in the Municipality of Makati,
Metro Manila, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, did then and there willfully, unlawfully and
feloniously make out, draw and issue to complainant Ignacio H. Garcia, Jr., to
apply on account or for value the dated check/described below:

"Check No. : 149900

Drawn Against : Traders Royal Bank

In the Amount of : P50,000.00

Dated/Postdated : June 24, 1991

Payable to : Ignacio H. Garcia, Jr.

"said accused well knowing that at the time of issue thereof, she did not
have sufficient funds in or credit with the drawee bank for the payment in
full of the face amount of such check upon its presentment, which check
when presented for payment within ninety (90) days from the date thereof
was subsequently dishonored by the drawee bank for the reason
`ACCOUNT CLOSED' and despite receipt of notice of such dishonor, the
accused failed to pay said payee the face amount of said check or to
make arrangement for full payment thereof within five (5) banking days
after receiving notice.

"CONTRARY TO LAW."[2]

Subsequent Informations, docketed Criminal Cases No. 92-4466 to No. 92-

4482, inclusive, similarly worded as in Criminal Case No. 92-4465 except as to
the dates, the number, and the amounts of the checks hereunder itemized -
"Check Number Dated/Postdated Amount
TRB No. 161181 July 18, 1991 P6,000.00
TRB No. 149906 July 24, 1991 3,000.00
No. 182074 July 30, 1991 29,700.00
No. 182084 August 30, 1991 9,300.00
No. 182078 September 15, 1991 6,000.00
No. 161183 September 18, 1991 6,000.00
No. 161177 September 18, 1991 100,000.00
No. 182085 September 30, 1991 9,000.00
No. 182079 October 15, 1991 6,000.00
No. 182086 October 30, 1991 10,500.00
No. 182080 November 15, 1991 6,000.00
No. 182087 November 30, 1991 11,400.00
No. 182081 December 15, 1991 6,000.00
No. 182082 December 15, 1991 100,000.00
No. 182088 December 30, 1991 12,000.00
No. 182089 December 30, 1991 100,000.00
No. 182090 December 30, 1991 100,000.00" [3]

were also filed against petitioner. The cases were later consolidated and jointly
tried following the "not guilty" plea of petitioner when arraigned on 02 November
1992.
On 07 September 1993, petitioner filed a demurrer to the evidence, with
leave of court, premised on the absence of a demand letter and that the checks
were not issued as payment but as evidence of indebtedness of petitioner or as
collaterals of the loans obtained by petitioner. Opposed by the prosecution, the
demurrer was denied by the trial court. In the hearing of 17 February 1994,
petitioner, through counsel, waived her right to present evidence in her
defense. Relying solely then on the evidence submitted by the prosecution, the
lower court rendered judgment convicting petitioner. The decision, as
heretofore stated, was affirmed by the Court of Appeals in its decision of 15
February 1999. Reconsideration was also denied in the resolution, dated 09
July 1999, of the appellate court.
Hence, the instant petition where petitioner raised the following issues for
resolution by the Court -

"1. Whether or not an alleged verbal demand to pay sufficient to convict herein
petitioner for the crime of violation of B.P. Blg. 22;

"2. Whether or not the Honorable Court of Appeals committed reversible error
when it affirmed the judgment of conviction rendered by the trial court, on the
ground that a written notice of dishonor is not necessary in a prosecution for
violation of B.P. Blg. 22, contrary to the pronouncement of the Supreme Court
in the case of Lao vs. Court of Appeals, 274 SCRA 572; (and)

"3. Whether or not the Honorable Court of Appeals erred in considering the
alleged written demand letter, despite failure of the prosecution to formally
offer the same." [4]

The pertinent provisions of B.P. Blg. 22 "Bouncing Checks Law," provide:

"SECTION 1. Checks without sufficient funds. Any person who makes or

draws and issues any check to apply on account or for value, knowing at the
time of issue that he does not have sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its presentment,
which check is subsequently dishonored by the drawee bank for insufficiency
of funds or credit or would have been dishonored for the same reason had not
the drawer, without any valid reason, ordered the bank to stop payment, shall
be punished by imprisonment of not less than thirty days but not more than
one (1) year or by fine of not less than but not more than double the amount of
the check which fine shall in no case exceed Two Hundred Thousand pesos,
or both such fine and imprisonment at the discretion of the court.

"The same penalty shall be imposed upon any person who having sufficient
funds in or credit with the drawee bank when he makes or draws and issues a
check, shall fail to keep sufficient funds or to maintain a credit to cover the full
amount of the check if presented within a period of ninety (90) days from the
date appearing thereon, for which reason it is dishonored by the drawee bank.

"Where the check is drawn by a corporation, company or entity, the person or

persons who actually signed the check in behalf of such drawer shall be liable
under this Act.

"SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing

and issuance of a check payment of which is refused by the drawee because
of insufficient funds in or credit with such bank, when presented within ninety
(90) days from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such maker or
drawer pays the holder thereof the amount due thereon, or makes
arrangements for payment in full by the drawee of such check within five (5)
banking days after receiving notice that such check has not been paid by the
drawee.
"SEC. 3. Duty of drawee; rules of evidence. It shall be the duty of the drawee
of any check, when refusing to pay the same to the holder thereof upon
presentment, to cause to be written, printed or stamped in plain language
thereon, or attached thereto, the reason for drawee's dishonor or refusal to
pay the same: Provided, That where there are no sufficient funds in or credit
with such drawee bank, such fact shall always be explicitly stated in the notice
of dishonor or refusal. In all prosecutions under this Act, the introduction in
evidence of any unpaid and dishonored check, having the drawee's refusal to
pay stamped or written thereon, or attached thereto, with the reason therefor
as aforesaid, shall be prima facie evidence of the making or issuance of said
check, and the due presentment to the drawee for payment and the dishonor
thereof, and that the same was properly dishonored for the reason written,
stamped or attached by the drawee on such dishonored check.

"Notwithstanding receipt of an order to stop payment, the drawee shall state in

the notice that there were no sufficient funds in or credit with such bank for the
payment in full of such check, if such be the fact." (Underscoring supplied.)
[5]

The law enumerates the elements of the crime to be (1) the making, drawing
and issuance of any check to apply for account or for value; (2) the knowledge
of the maker, drawer, or issuer that at the time of issue he does not have
sufficient funds in or credit with the drawee bank for the payment of the check
in full upon its presentment; and (3) the subsequent dishonor of the check by
the drawee bank for insufficiency of funds or credit or dishonor for the same
reason had not the drawer, without any valid cause, ordered the bank to stop
payment. [6]

There is deemed to be a prima facie evidence of knowledge on the part of

the maker, drawer or issuer of insufficiency of funds in or credit with the drawee
bank of the check issued if the dishonored check is presented within 90 days
from the date of the check and the maker or drawer fails to pay thereon or to
make arrangement with the drawee bank for that purpose.The statute has
created the prima facie presumption evidently because "knowledge" which
involves a state of mind would be difficult to establish. The presumption does
[7]

not hold, however, when the maker, drawer or issuer of the check pays the
holder thereof the amount due thereon or makes arrangement for payment in
full by the drawee bank of such check within 5 banking days after receiving
notice that such check has not been paid by the drawee bank.
In Lao vs. Court of Appeals, this Court explained:
[8]

x x x. Section 2 of B.P. Blg. 22 clearly provides that this presumption arises

not from the mere fact of drawing, making and issuing a bum check; there
must also be a showing that, within five banking days from receipt of the
notice of dishonor, such maker or drawer failed to pay the holder of the check
the amount due thereon or to make arrangement for its payment in full by the
drawee of such check.

It has been observed that the State, under this statute, actually offers the
violator `a compromise by allowing him to perform some act which operates to
preempt the criminal action, and if he opts to perform it the action is abated.
This was also compared `to certain laws allowing illegal possessors of
firearms a certain period of time to surrender the illegally possessed firearms
to the Government, without incurring any criminal liability. In this light, the full
payment of the amount appearing in the check within five banking days from
notice of dishonor is a `complete defense. The absence of a notice of
dishonor necessarily deprives an accused an opportunity to preclude a
criminal prosecution. Accordingly, procedural due process clearly enjoins that
a notice of dishonor be actually served on petitioner. Petitioner has a right to
demand and the basic postulates of fairness require that the notice of
dishonor be actually sent to and received by her to afford her the opportunity
to avert prosecution under B.P. Blg. 22. [9]

In the assailed decision, the Court of Appeals predicated the conviction of

petitioner on the supposed fact that petitioner was informed of the dishonor of
the checks through verbal notice when the complainant had called her up by
telephone informing her of the dishonor of the checks and demanding payment
therefor. The appellate court said:

"The maker's knowledge of the insufficiency of his funds is legally presumed

from the dishonor of his check (People vs. Laggui, 171 Phil. 305). The law
does not require a written notice of the dishonor of such check.

"In the instant case, appellant had knowledge that her checks were
dishonored by the bank when complainant Garcia made several oral demands
upon her to pay the value of the checks in the amount of
P573,800.00. Despite said demands, appellant failed and refused to pay the
same. Moreover, complaining witness further testified that his lawyer made a
written demand upon appellant but the latter ignored said demand (tsn., May
27, 1993, pp. 13-14). In this connection, appellant waived her right to present
evidence or rebut complainant's testimony that he made oral demands upon
appellant to make good the dishonored checks and his lawyer wrote her a
demand letter.
"Likewise, appellant did not object to the admission of the complainant's
testimony with regard to the written demand by moving that it be stricken off
the record for being hearsay, hence, the same is admissible evidence. In the
case of People vs. Garcia, 89 SCRA 440, the Supreme court ruled:

"`x x x (It) must be noted that neither the defendant nor his counsel below
objected to the admission of the testimonies which are now being assailed as
hearsay. This is fatal to defendant-appellant's present posture since the failure
to object to hearsay evidence constitutes a waiver of the x x right to cross-
examine the actual witness to the occurrence, rendering the evidence
admissible.'" [10]

Petitioner counters that the lack of a written notice of dishonor is fatal. The
Court agrees.
While, indeed, Section 2 of B.P. Blg. 22 does not state that the notice of
dishonor be in writing, taken in conjunction, however, with Section 3 of the
law, i.e., "that where there are no sufficient funds in or credit with such drawee
bank, such fact shall always be explicitly stated in the notice of dishonor
or refusal," a mere oral notice or demand to pay would appear to be
[11]

insufficient for conviction under the law. The Court is convinced that both the
spirit and letter of the Bouncing Checks Law would require for the act to be
punished thereunder not only that the accused issued a check that is
dishonored, but that likewise the accused has actually been notified in writing
of the fact of dishonor. The consistent rule is that penal statutes have to be
[12]

construed strictly against the State and liberally in favor of the accused.
[13]

Evidently, the appellate court did not give weight and credence to the
assertion that a demand letter was sent by a counsel of the complainant
because of the failure of the prosecution to formally offer it in evidence. Courts
are bound to consider as part of the evidence only those which are formally
offered for judges must base their findings strictly on the evidence submitted
[14]

by the parties at the trial. Without the written notice of dishonor, there can be
[15]

no basis, considering what has heretofore been said, for establishing the
presence of "actual knowledge of insufficiency of funds." [16]

The prosecution may have failed to sufficiently establish a case to warrant

conviction, however, it has clearly proved petitioner's failure to pay a just debt
owing to the private complainant. The total face value of the dishonored checks,
to wit-
Check Number Dated/Postdated Amount
TRB No. 149900 June 24, 1991 P50,000.00
TRB No. 161181 July 18, 1991 6,000.00
TRB No. 149906 July 24, 1991 3,000.00
No. 182074 July 30, 1991 29,700.00
No. 182084 August 30, 1991 1,300.00
No. 182078 September 15, 1991 6,000.00
No. 161183 September 18, 1991 6,000.00
No. 161171 September 18, 1991 100,000.00
No. 182085 September 30, 1991 9,900.00
No. 182079 October 15, 1991 6,000.00
No. 182086 October 30, 1991 10,500.00
No. 182080 November 15, 1991 6,000.00
No. 182087 November 30, 1991 11,400.00
No. 182081 December 15, 1991 6,000.00
No. 182082 December 15, 1991 100,000.00
No. 182088 December 30, 1991 12,000.00
No. 182089 December 30, 1991 100,000.00
No. 182090 December 30, 1991 100,000.00" [17]

or the sum of P563,800, has yet to be made good by petitioner. This amount,
with 12% legal interest per annum from the filing of the information until the
finality of this decision, must be forthwith settled.
WHEREFORE, the decision of the Court of Appeals is
MODIFIED. Petitioner Josephine Domagsang is acquitted of the crime charged
on reasonable doubt. She is ordered, however, to pay to the offended party the
face value of the checks in the total amount of P563,800.00 with 12% legal
interest, per annum, from the filing of the informations until the finality of this
decision, the sum of which, inclusive of the interest, shall be subject thereafter
to 12%, per annum, interest until the due amount is paid. Costs against
petitioner.
SO ORDERED.
VICTOR TING SENG DEE and EMILY CHAN-
AZAJAR, petitioners, vs. COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
Before us is a petition for certiorari under Rule 45 seeking the reversal of the February
12, 1999 decision of the Court of Appeals which affirmed that of the Regional Trial Court
of the National Capital Judicial Region (Manila, Branch 45) finding petitioners guilty of
seven (7) counts of violation of Batas Pambansa Blg. 22.
Petitioners version of the background events is as follows:
From 1991 to 1992, Juliet Ting Chan Sioc Hiu obtained loans, in the aggregate
amount of P2,750,000.00, from private complainant Josefina K. Tagle for use in Juliets
furniture business. As payment thereof, Juliet issued eleven (11) post-dated checks
which, upon maturity, were dishonored for reasons of Closed Account or Drawn Against
Insufficient Funds. Juliet was subsequently prosecuted for violation of Batas Pambansa
Blg. 22.
Due to her financial difficulties, Juliet requested her husband Victor Ting Seng Dee
and her sister Emily Chan-Azajar (petitioners herein) to take over her furniture business,
including the obligations appurtenant thereto. Agreeing to Juliets request, petitioners
issued nineteen (19) checks in replacement of the eleven (11) checks earlier issued by
Juliet. The planned take-over, however, never materialized since the Naga Hope
Christian School, petitioner Emily Chan-Azajars employer in Naga, refused to let her
resign to attend to her sisters business. Since the planned take-over did not take place,
petitioners requested Juliet to reassume her obligation to private complainant Tagle by
replacing the checks they had previously issued to the latter. Thus, Juliet replaced the
nineteen (19) checks issued by petitioners with twenty-three (23) Far East Bank checks
in favor of Tagle. Petitioners then requested private complainant Tagle to return the
nineteen (19) checks they had issued to her. Instead of returning the checks, Tagle
deposited seven of the checks with MetroBank where they were dishonored for being
Drawn Against Insufficient Funds.
On the other hand, private complainant Tagle alleged that sometime in April 1993,
petitioners obtained a loan of P950,000.00 from her, issuing several post-dated checks
in payment thereof. When the checks were deposited by Tagle with MetroBank, they were
dishonored for having been drawn against insufficient funds. Tagle alleged that despite
verbal and written demands, petitioners failed to pay her the value of the dishonored
checks.
Consequently, seven informations for violation of Batas Pambansa Blg. 22 were filed
against petitioners. Said informations are similarly worded except with respect to the
check number, the amount involved, and the date the check was issued. The information
in Criminal Case No. 94-131945 (the other cases are Criminal Case No. 94-131946,
Criminal Case No. 94-131947, Criminal Case No. 94-131948, Criminal Case No. 94-
131949, Criminal Case No. 94-131950, and Criminal Case No. 94-131951) charged:

That sometime prior to May 27, 1993, in the City of Manila, Philippines, the
said accused, conspiring and confederating together and mutually helping
each other, did then and there wilfully, unlawfully and feloniously make or
draw and issue to JOSEPHINE K. TAGLE, to apply on account or for value
Producers Bank of the Philippines, Check No. 946072 dated May 27, 1993
payable to CASH in the amount of P250,000.00 said accused well knowing
that at the time of issue they did not have sufficient funds in or credit with the
drawee bank for payment of such check in full upon its presentment, which
check when presented for payment within ninety (90) days from the date
thereof, was subsequently dishonored by the drawee bank for Drawn Against
Insufficient Funds and despite receipt of notice of such dishonor, said accused
failed to pay said JOSEFINA K. TAGLE the amount of the check or to make
arrangements for full payment of the same within five (5) banking days after
receiving said notice.

(p. 2, Original Records.)

Criminal Cases No. 94-131945 to 94-131951 were consolidated and jointly tried.
When arraigned, petitioners, assisted by counsel, pleaded not guilty. During trial, the
prosecution presented only one witness, the private complainant, the testimony of
Producers Bank representative Ferdinand Lazo being dispensed with after counsel for
petitioners admitted the dishonor of the checks subject matter of the action.
On March 16, 1995, the trial court found petitioners guilty of violating Batas
Pambansa Blg. 22 in each of the seven cases, disposing as follows:

WHEREFORE, in view of the foregoing, accused VICTOR TING and EMILY

CHAN AZAJAR are hereby found GUILTY beyond reasonable doubt of all the
charges contained in Criminal Case Nos. 94-131945; 94-131946; 94-131947;
94-131948; 94-131949; 94-131950 and 94-131951 and for each count, they
are hereby sentenced to suffer the penalty of one (1) year imprisonment; to
pay Josefina K. Tagle the total amount of P950,000.00; and to pay the cost.

(p. 294, Rollo.)

Aggrieved, petitioners filed an appeal with the Court of Appeals which was docketed
therein as C.A.-G.R. No. 18054. However, the appellate court, on February 12, 1999,
affirmed.Petitioners motion for reconsideration was, likewise, denied for lack of
merit. Hence, the instant petition.
Petitioners claim that the Court of Appeals erred in affirming the decision of the trial
court, given the absence of proof beyond reasonable doubt or in the presence of facts
creating reasonable doubt.
The petition has merit.
Section 1 of Batas Pambansa Blg. 22, otherwise known as the Bouncing Checks Law,
provides:

Section 1. Checks without sufficient funds. Any person who makes or draws
and issues any check to apply on account or for value, knowing at the time of
issue that he does not have sufficient funds in or credit with the drawee bank
for the payment of such check in full upon its presentment, which check is
subsequently dishonored by the drawee bank for insufficiency of funds or
credit or would have been dishonored for the same reason had not the
drawer, without any valid reason, ordered the bank to stop payment, shall be
punished by imprisonment of not less than thirty days but not more than one
(1) year or by a fine of not less than but not more double the amount of the
check which fine shall in no case exceed Two hundred thousand pesos, or
both such fine and imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person who having sufficient
funds in or credit with the drawee bank when he makes or draws and issues a
check, shall fail to keep sufficient funds or to maintain a credit to cover the full
amount of the check if presented within a period of ninety (90) days from the
date appearing thereon, for which reason it is dishonored by the drawee bank.

Where the check is drawn by a corporation, company or entity, the person or

persons who actually signed the check in behalf of such drawer shall be liable
under this Act.

For a violation of Batas Pambansa Blg. 22 to be committed, the following elements

must be present:
(1) the making, drawing, and issuance of any check to apply for account or for value;
(2) the knowledge of the maker, drawer, or issuer that at the time of issue there are no
sufficient funds in or credit with the drawee bank for the payment of such check in full
upon is presentment; and
(3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds
or credit or dishonor for the same reason had not the drawer, without any valid cause,
ordered the bank to stop payment (Sycip, Jr. vs. CA, G.R. No. 125059, March 17,
2000).
An analysis of the evidence presented, however, shows that not all the
aforementioned elements have been established by the prosecution beyond reasonable
doubt.
That the seven checks in question were issued by petitioners is beyond dispute. Not
only were the dishonored checks presented in court, but petitioners even admitted signing
the checks and issuing them to private complainant. From the evidence on record, it is
clear that petitioners signed and issued the seven checks in question.
That the checks were dishonored is also clearly established. Section 3 of Batas
Pambansa Blg. 22 provides that the introduction in evidence of any unpaid and
dishonored check, having the drawees refusal to pay stamped or written thereon, or
attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of
the making or issuance of said check, and the due presentment to the drawee for payment
and the dishonor thereof, and that the same was properly dishonored for the reason
written, stamped, or attached by the drawee on such dishonored check. In the instant
case, the fact of the checks dishonor is sufficiently shown by the return slips issued by
MetroBank, the depository bank, stating that the checks had been returned for the reason
DAIF Drawn Against Insufficient Funds. Not only are these check return slips prima
facie evidence that the drawee bank dishonored the checks, but the defense did not
present any evidence to rebut these documents. In fact, counsel for petitioners even
admitted the fact of the checks dishonor, agreeing to dispense with the presentation of
the bank representative who was supposed to prove the fact of dishonor of said checks
(p. 162, Rollo.).
However, for liability to attach under Batas Pambansa Blg. 22, it is not enough that
the prosecution establishes that a check was issued and that the same was subsequently
dishonored. The prosecution must also prove the second element, that is, it must further
show that the issuer, at the time of the checks issuance, had knowledge that he did not
have enough funds or credit in the bank for payment thereof upon its presentment. Since
the second element involves a state of mind which is difficult to verify, Section 2 of Batas
Pambansa Blg. 22 creates a presumption juris tantum that the second element prima
facie exists when the first and third elements of the offense are present (Magno v. People,
210 SCRA 471 [1992]).Section 2 provides:

Section 2. Evidence of knowledge of insufficient funds. The making, drawing,

and issuance of a check payment of which is refused by the drawee because
of insufficient funds or credit with such bank, when presented within ninety
days from the date of the check, shall be prima facie evidence of knowledge
of such insufficiency of funds or credit unless such maker or drawer pays the
holder thereof the amount due thereon, or makes arrangements for payment
in full by the drawee of such check within five (5) banking days after receiving
notice that such check has not been paid by the drawee.

In truth, this Court declared in King v. People (G.R. No. 131540, December 2, 1999)
that the prima facie presumption arises when the check is issued. But the law also
provides that the presumption does not arise when the issuer pays the amount of the
check or makes arrangement for its payment within five banking days after receiving
notice that such check has not been paid by the drawee. Verily, BP 22 gives the accused
an opportunity to satisfy the amount indicated in the check and thus avert prosecution
This opportunity, however, can be used only upon receipt by the accused of a notice of
dishonor. Thus, the presumption that the issuer had knowledge of the insufficiency of
funds is brought into existence only after it is proved that the issuer had received a notice
of dishonor and that, within five days from receipt thereof, he failed to pay the amount of
the check or to make arrangement for its payment.
King v. People, decided by this Division, involves a set of facts similar to the case at
bar. In said case, the accused therein was proven to have issued eleven checks, all of
which were duly filled up and signed by her. It was also clearly established that these
eleven checks were dishonored, as shown by the checks themselves which were
stamped ACCOUNT CLOSED and further supported by the return tickets issued by PCI
Bank stating that the checks had been dishonored. Yet, even if the prosecution had
already established the issuance of the checks and their subsequent dishonor, this Court
still required the prosecution to show that the issuer knew of the insufficiency of funds by
proving that he or she received a notice of dishonor and, within five banking days
thereafter, failed to satisfy the amount of the check or make arrangement for its payment.
Moreover, in Lina Lim Lao v. CA (274 SCRA 572 [1997]), we emphasized that the full
payment of the amount appearing in the check within five banking days from notice of
dishonor is a complete defense. The absence of a notice of dishonor necessarily deprives
an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural
due process clearly enjoins that a notice of dishonor be actually served on
petitioner. Petitioner has a right to demand and the basic postulate of fairness require that
the notice of dishonor be actually sent to and received by her to afford her the opportunity
to avert prosecution under BP 22.
To prove that petitioners received a notice of dishonor, the prosecution presented a
copy of the demand letter allegedly sent to petitioners through registered mail and its
corresponding registry receipt. Private complainant Josefina Tagle, the sole witness for
the prosecution, testified thus:
Q: Now, when these seven (7) checks bounced for insufficiency of funds, what step did you
take?
A: I demanded the return of my money from them.
Q: Now, what was the reply of the two accused?
A: They kept on promising that they will pay but up to now they have not paid any single
centavo.
Q: What other step did you take?
A: I requested my lawyer to write a demand letter.
Q: And that demand letter was sent to the accused?
A: Yes, Sir.
Q: In what manner?
A: By registered mail.
Q: Now, was that demand letter received by the two accused?
A: Yes, Sir.
Q: What is your evidence?
A: The return card.
Q: If you are shown anew the copy of the demand letter which is already marked as Exhibit B,
would you be able to recognize the same?
A: Yes, Sir.
Q: Is that the one that you are referring to?
A: Yes, Sir.
Q: How about the return card, is that correct?
A: Yes, Sir, this is the one.
Q: Now, upon receipt of this letter by the two accused, did the two accused pay the amount of
the said check?
A: No, Sir.
 Q: So what did you do next?
A: I told my lawyer to file charges against them.
Q: You mean the present charge?
A: Yes, Sir.
Atty. Acuesta:
That is all, Your Honor.

(TSN, Aug. 24, 1994, p. 8-9.)

Aside from the above testimony, no other reference was made to the demand letter
by the prosecution. As can be noticed from the above exchange, the prosecution alleged
that the demand letter had been sent by mail. To prove mailing, it presented a copy of the
demand letter as well as the registry return receipt. However, no attempt was made to
show that the demand letter was indeed sent through registered mail nor was the
signature on the registry return receipt authenticated or identified. It cannot even be
gleaned from the testimony of private complainant as to who sent the demand letter and
when the same was sent. In fact, the prosecution seems to have presumed that the
registry return receipt was proof enough that the demand letter was sent through
registered mail and that the same was actually received by petitioners or their agents.
As adverted to earlier, it is necessary in cases for violation of Batas Pambansa Blg.
22, that the prosecution prove that the issuer had received a notice of dishonor. It is a
general rule that when service of notice is an issue, the person alleging that the notice
was served must prove the fact of service (58 Am Jur 2d, Notice, 45). The burden of
proving notice rests upon the party asserting its existence. Now, ordinarily,
preponderance of evidence is sufficient to prove notice. In criminal cases, however, the
quantum of proof required is proof beyond reasonable doubt. Hence, for Batas Pambansa
Blg. 22 cases, there should be clear proof of notice. Moreover, it is a general rule that,
when service of a notice is sought to be made by mail, it should appear that the conditions
on which the validity of such service depends had existence, otherwise the evidence is
insufficient to establish the fact of service (C.J.S., Notice, 18). In the instant case, the
prosecution did not present proof that the demand letter was sent through registered mail,
relying as it did only on the registry return receipt. In civil cases, service made through
registered mail is proved by the registry receipt issued by the mailing office and an
affidavit of the person mailing of facts showing compliance with Section 7 of Rule 13 (See
Section 13, Rule 13, 1997 Rules of Civil Procedure). If, in addition to the registry receipt,
it is required in civil cases that an affidavit of mailing as proof of service be presented,
then with more reason should we hold in criminal cases that a registry receipt alone is
insufficient as proof of mailing. In the instant case, the prosecution failed to present the
testimony, or at least the affidavit, of the person mailing that, indeed, the demand letter
was sent.
Moreover, petitioners, during the pre-trial, denied having received the demand letter
(p. 135, Rollo.). Given petitioners denial of receipt of the demand letter, it behooved the
prosecution to present proof that the demand letter was indeed sent through registered
mail and that the same was received by petitioners. This, the prosecution miserably failed
to do. Instead, it merely presented the demand letter and registry return receipt as if mere
presentation of the same was equivalent to proof that some sort of mail matter was
received by petitioners.Receipts for registered letters and return receipts do not prove
themselves; they must be properly authenticated in order to serve as proof of receipt of
the letters (Central Trust Co. v. City of Des Moines, 218 NW 580).
Likewise, for notice by mail, it must appear that the same was served on the
addressee or a duly authorized agent of the addressee. In fact, the registry return receipt
itself provides that [a] registered article must not be delivered to anyone but the
addressee, or upon the addressees written order, in which case the authorized agent
must write the addressees name on the proper space and then affix legibly his own
signature below it. In the case at bar, no effort was made to show that the demand letter
was received by petitioners or their agent. All that we have on record is an illegible
signature on the registry receipt as evidence that someone received the letter. As to
whether this signature is that of one of the petitioners or of their authorized agent remains
a mystery. From the registry receipt alone, it is possible that petitioners or their authorized
agent did receive the demand letter. Possibilities, however, cannot replace proof beyond
reasonable doubt. There being insufficient proof that petitioners received notice that their
checks had been dishonored, the presumption that they knew of the insufficiency of the
funds therefor cannot arise.
As we stated in Savage v. Taypin (G.R. No. 134217, May 11, 2000), penal statutes
must be strictly construed against the State and liberally in favor of the accused. Likewise,
the prosecution may not rely on the weakness of the evidence for the defense to make
up for its own blunders in prosecuting an offense. Having failed to prove all the elements
of the offense, petitioners may not thus be convicted for violation of Batas Pambansa Blg.
22.
That petitioners are civilly liable to private complainant is also doubtful. Private
complainant claims that petitioners borrowed Nine Hundred Fifty Thousand
(P950,000.00) Pesos from her on or about the end of April 1993, in payment of which
petitioners issued several post-dated checks in her favor. The seven checks issued by
petitioners as payment for the amount borrowed add up to P950,000.00. If private
complainant is the businesswoman that she claims to be, she should be collecting interest
on the loan she granted to petitioners. In other words, the amount to be repaid by
petitioners should be more than P950,000.00, to account for interest on the loan. The
checks issued by petitioners, however, do not provide for interest. It is thus more credible
that the seven checks involved in this case form part of nineteen checks issued to replace
the checks issued by Juliet Ting to private complainant. This conclusion is bolstered by
private complainants admission in her reply-affidavit that more than seven checks were
issued by petitioners (p. 11, Original Records). In said reply-affidavit, private complainant
states that respondents issued and delivered to me in Manila several checks, which
partially include their seven (7) bouncing checks herein. I say partially because I will have
to file additional bouncing check cases against them, as these other checks likewise
bounced. Furthermore, in the same reply-affidavit, private complainant claims that the
checks in question were not replaced, allegedly because the replacement checks must
first be cleared, which did not happen in this case. By implication, had the 23 Far East
Bank checks issued by Juliet Ting to replace the nineteen checks issued by petitioners
been cleared, then private complainant would have considered the checks in question as
having been replaced. This only supports our conclusion that it was Juliet Ting who owed
money to private complainant, not petitioners.
Moreover, the original debtor Juliet Ting was convicted by the Regional Trial Court of
Manila in Criminal Cases 93-126581-91 for eleven counts of violation of Batas Pambansa
Blg. 22.These eleven bouncing check cases involved the same obligation being sued
upon by private complainant Tagle herein. The trial court expressly acknowledged in said
cases that nineteen (19) checks were issued by petitioners as payment for Juliet Tings
obligation. In its August 7, 1997 decision convicting Juliet Ting for violation of Batas
Pambansa Blg. 22, the trial court declared that to cover the additional loans, accused
(Juliet Ting) delivered 19 post-dated checks issued by Victor Ting and Emily Azajar (p.
55, Rollo.). The trial courts decision further provides:

Since she could not fund the other checks (Exhs. B to K), she replaced the
same with 19 post-dated checks of her husband Victor Ting and her sister
Emily Azajar totaling P2,450,000.00. They issued the checks as they would
take over her furniture business. The intended partnership of Victor and Emily
was aborted as the latter was not allowed to resign from her teaching post in
Naga City. She then replaced the checks issued by Victor and Emily with her
own checks 23 FEB post-dated checks per list (Exh. 9) prepared by Suzanne
Azajar.

Despite receipt of the replacement checks, complainant refused to return the

checks of Victor and Emily and even filed cases against them.

(p. 56, Rollo.)

Not having borrowed the amount of Nine Hundred Fifty Thousand (P950,000.00) from
private complainant, petitioners may not thus be held liable therefor.
WHEREFORE, premises considered, the instant petition is GRANTED and the
assailed decision of the Court of Appeals dated February 12, 1999 REVERSED and SET
ASIDE.Petitioners Victor Ting Seng Dee and Emily Chan-Azajar are hereby ACQUITTED
of the charges against them for violation of Batas Pambansa Blg. 22, for lack of sufficient
evidence to prove the offenses charged beyond reasonable doubt. No special
pronouncement is made as to costs.
SO ORDERED.

BETTY KING, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.
 Under Batas Pambansa Blg. 22 (BP 22), the prosecution must prove not only that the accused
issued a check that was subsequently dishonored. It must also establish that the accused
was actually notifiedthat the check was dishonored, and that he or she failed, within five banking
days from receipt of the notice, to pay the holder of the check the amount due thereon or to make
arrangement for its payment.Absent proof that the accused received such notice, a prosecution for
violation of the Bouncing Checks Law cannot prosper.

The Case

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
assailing the January 30, 1997 Decision[1] of the Court of Appeals[2] (CA) in CA-GR CR No. 18226
and its November 5, 1997 Resolution[3] denying reconsideration. The CA affirmed the June 14,
1994 Decision[4] of the Regional Trial Court (RTC) of Makati, Metro Manila[5] in Criminal Case
Nos. 93-3335 to 93-3345 which convicted petitioner of 11 counts of violation of BP 22, otherwise
known as the Bouncing Checks Law.
On April 28, 1993, Second Assistant Provincial Prosecutor Jaime A. Adoc filed against
petitioner eleven separate Informations,[6] which are identically worded, except for the check
number, the amount and the date, as follows:

That in or about the month of January, 1992 in the Municipality of Las Pias, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, did, then and there willfully, unlawfully and feloniously make or
draw and issue to EILEEN FERNANDEZ herein represented by ________ to apply
on account or for value the check described below:

EQUITABLE BANK
Check No. 021711
In the amount of P50,000.00
Postdated July 24, 1992

said accused well knowing that at the time of issue she/he did not have sufficient funds in or
credit with the drawee bank for the payment in full of the face amount of such check upon their
presentment, which check when presented for payment within ninety (90) days from the date
thereof were subsequently dishonored by the drawee bank for the reason Account Closed and
despite receipt of notice of such dishonor the accused failed to pay the face amount thereof or
make arrangement for the full payment thereof within five (5) working days after receiving
notice.[7]

When arraigned, petitioner, assisted by counsel, pleaded not guilty. After the prosecution
presented its evidence and rested its case, petitioner filed a Demurrer to Evidence without leave of
court, on the ground that the prosecution failed to prove her guilt beyond reasonable doubt. The
trial court denied the Demurrer in its assailed Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, the demurrer to evidence without prior leave of
court is DENIED for lack of merit.

Since accused has waived her right to present evidence, judgment is hereby rendered
finding accused guilty beyond reasonable doubt of Violation of Batas Pambansa
Bilang 22 in the eleven (11) above-entitled cases and is ordered to:

1. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P50,000.00,
and to pay complainant Eileen Fernandez the amount of P50,000.00 as actual damages
in Criminal Case No. 93-3335;

2. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P50,000.00,
and to pay complainant Eileen Fernandez the amount of P50,000.00 as actual damages
in Criminal Case No. 93-3336;

3. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P50,000.00,
and to pay complainant Eileen Fernandez the amount of P50,000.00 as actual damages
in Criminal Case No. 93-3337;

4. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P64,200.00,
and to pay complainant Eileen Fernandez the amount of P64,200.00 as actual damages
in Criminal Case No. 93-3338;

5. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P66,000.00,
and to pay complainant Eileen Fernandez the amount of P66,000.00 as actual damages
in Criminal Case No. 93-3339;

6. Suffer imprisonment for thirty (30) days, to pay a fine in the amount
of P100,000.00, and to pay complainant Eileen Fernandez the amount of P100,000.00
as actual damages in Criminal Case No. 93-3340;

7. Suffer imprisonment for thirty (30) days, to pay a fine in the amount
of P150,000.00, and to pay complainant Eileen Fernandez the amount of P150,000.00
as actual damages in Criminal Case No. 93-3341;

8. Suffer imprisonment for thirty (30) days, to pay a fine in the amount
of P150,000.00, and to pay complainant Eileen Fernandez the amount of P150,000.00
as actual damages in Criminal Case No. 93-3342;

9. Suffer imprisonment for thirty (30) days, to pay a fine in the amount
of P130,000.00, and to pay complainant Eileen Fernandez the amount of P130,000.00
as actual damages in Criminal Case No. 93-3343;
10. Suffer imprisonment for thirty (30) days, to pay a fine in the amount
of P130,000.00, and to pay complainant Eileen Fernandez the amount of P130,000.00
as actual damages in Criminal Case No. 93-3344; and,

11. Suffer imprisonment for thirty (30) days, to pay a fine in the amount of P130,000.00, and to
pay complainant Eileen Fernandez the amount of P130,000.00 as actual damages in Criminal
Case No. 93-3345.[8]

As already stated, the Court of Appeals affirmed the RTC in this wise:[9]

WHEREFORE, the appealed decision is hereby affirmed [I]N TOTO. Costs against
appellant.

Hence, this Petition.[10]

The Facts
Evidence for the Prosecution

The Office of the Solicitor General[11] summarized the facts, as viewed by the prosecution, in
this wise:

On several occasions in January, 1992, at Las Pias, Metro Manila, petitioner

discounted with complainant Ellen Fernandez several Equitable Bank checks
postdated from July 23 to 29, 1992 in the total amount of P1,070,000.00 in exchange
for cash in the amount of P1,000,000.00. When the checks were deposited for
payment, they were dishonored by the drawee bank because they were drawn against
an account without sufficient funds. Petitioner failed to make good the checks despite
demand. (Memorandum dated April 7, 1993 of Assistant Provincial Prosecutor to the
Rizal Provincial Prosecutor)

During the hearing on the merits of this case on September 17, 1998, the prosecution offered in
evidence its documentary evidence. Petitioner admitted the genuineness and due execution of the
documents presented.[12]

Evidence for the Defense

As noted earlier, petitioner filed a Demurrer to Evidence without leave of court. In doing so,
she waived her right to present evidence and submitted the case for judgment on the basis of the
documentary exhibits adduced by the prosecution.[13]

Ruling of the Court of Appeals

 In affirming the trial court, the Court of Appeals explained that the prosecution proved all the
elements of the crime. The CA also pointed out that the failure of petitioner to sign the pretrial
order was not fatal to the prosecution, because her conviction was based on the evidence presented
during the trial.

The Issues

Petitioner submits the following issues for the Court's consideration:

Whether or not the trial court and the Court of Appeals gravely erred in admitting in
evidence all the documentary evidence of the prosecution though their due execution
and genuineness were not duly established in evidence pursuant to the provisions of
the Rules of Court and prevailing jurisprudence;

II

Whether or not the trial court and the Court of Appeals gravely erred in declaring that
Rule 118, Section 4 of the Rules of Court, as applied in the case of Fule vs. Court of
Appeals, 162 SCRA 446, which states that no agreement or admission made or
entered during the pre-trial conference shall be used in evidence against the accused
unless reduced to writing and signed by him and his counsel, is inapplicable in the
case at bar;

III

Whether or not the trial court and the Court of Appeals gravely erred in ruling that the
burden of evidence has already been shifted from the prosecution to the defense
despite the definite factual issues in the pre-trial order; and

IV

Whether or not the trial court and the Court of Appeals erred in ruling that the prosecution has
proven the guilt of the accused beyond reasonable doubt albeit the prosecution did not produce
any evidence.[14]

In the main, the resolution of the Petition hinges on (1) the admissibility and (2) the sufficiency
of the prosecution evidence.

This Courts Ruling

 The Petition has merit insofar as it contends that the elements of the crime charged have not
all been proven beyond reasonable doubt.
First Issue:
Admissibility of Documentary Evidence

Because the first, the second and the third issues raised by petitioner all refer to the same
matter, they will be discussed together. She contends that the pieces of documentary evidence
presented by the prosecution during pretrial are inadmissible, because she did not sign the pretrial
agreement as required under Section 4 of Rule 118 of the Rules of Court.[15] Hence, she argues that
there is no basis for her conviction.
True, a pretrial agreement not signed by a party is inadmissible. However, the conviction of
petitioner was based not on that agreement but on the documents submitted during the trial, all of
which were admitted without any objection from her counsel. During the hearing on September
17, 1993, the prosecution offered as evidence the dishonored checks, the return check tickets
addressed to private complainant, the notice from complainant addressed to petitioner that the
checks had been dishonored, and the postmasters letter that the notice had been returned to
sender. Petitioner's counsel did not object to their admissibility. This is shown by the transcript of
stenographic notes taken during the hearing on September 17, 1993:
COURT:
You have no objection to the admissibility, not that the Court will believe it.
ATTY. MANGERA
No, Your Honor.
COURT:
Exhibits A to A to K are admitted.
ATTY. MAKALINTAL:
We offer Exhibit L, the return-check ticket dated July 27, 1992, relative to checks No. 021745 and
021746 indicating that these checks were returned DAIF, drawn against insufficient funds; Exh.
M, returned check ticket dated July 28, 1992, relative to Check No. 021727, 021711 and 021720
likewise indicating the said checks to have been drawn against insufficient funds, Your
Honor. Exhibit N, returned check ticket dated July 29, 1992, relative to Check Nos. 021749 and
021748, having the same indications;
Exhibits O, returned check ticket dated July 29, 1992 relative to Check Nos. 021750 and 021753,
with the same indications;
Exhibits P, returned check ticket dated August 4, 1992 relative to Check No. 021752, having the
same indication as being drawn against insufficient funds;
Exhibit Q, the demand letter sent to the accused by Atty. Horacio Makalintal dated August 3, 1992;
Exhibit R, the letter-request for certification addressed to the Postmaster General sent by the same
law office dated 17 September 1992, showing that the said letter was dispatched properly by the
Central Post Office of Makati;
Exhibit S, 1st Indorsement of the Makati Central Post Office dated 21 September 1992;
 Exhibit T, the Philippine Postal Corporation Central Post Office letter dated 24 September 1992,
addressed to this representation showing that there were 3 notices sent to the herein accused who
received the said letter.
COURT:
Lets go to the third check slip; any objection to the third slip?
ATTY. MANGERA:
We have no objection as to the due execution and authenticity.
COURT:
Admitted.
ATTY. MAKALINTAL:
We are offering Exhibits Q, R, S and T, for the purpose of showing that there was demand duly
made on the accused and that the same had been appropriately served by the Central Post Office
Services of Manila.
ATTY. MANGERA:
We admit as to the due execution and authenticity only as to that portion, Your Honor.
COURT:
We are talking of admissibility now, so admitted. In other words, at this point, he makes an offer
and the Court will either grant admission, [admit] it in evidence or deny it. It can deny admission
if it is not properly identified etcetera.
ATTY. MANGERA:
I think it is already provided.
COURT:
So, admitted.
ATTY. MAKALINTAL:
With the admission of our offer, Your Honor, the prosecution rests.[16]
From the foregoing, it is clear that the prosecution evidence consisted of documents offered
and admitted during the trial. In view of this, the CA correctly ruled that Fule v. Court of
Appeals[17] would not apply to the present controversy. In that case, a hearing was conducted during
which the prosecution presented three exhibits. However, Fule's conviction was based solely on
the stipulation of facts made during the pre-trial on August 8, 1985, which was not signed by the
petitioner, nor by his counsel. Because the stipulation was inadmissible in evidence under Section
4 of Rule 118, the Court held that there was no proof of his guilt.
In the present case, petitioners conviction was based on the evidence presented during trial,
and not on the stipulations made during the pretrial. Hence, petitioners admissions during the
trial are governed not by the Fule ruling or by Section 4 of Rule 118, but by Section 4 of Rule 129
which reads:
SEC. 4. Judicial Admissions. --- An admission, verbal or written, made by a party in
the course of the proceedings in the same case, does not require proof. The admission
may be contradicted only by showing that it was made through palpable mistake or
that no such admission was made.

Hence, the trial court and the Court of Appeals did not err in taking cognizance of the said
documentary evidence.
Second Issue:
Sufficiency of Prosecution Evidence

Petitioner argues that the prosecution failed to prove beyond reasonable doubt the elements of
the offense. After a careful consideration of the records of this case, we believe and so rule that
the totality of the evidence presented does not support petitioners conviction for violation of BP
22.
Section 1 of BP 22 defines the offense as follows:

Section 1. Checks without sufficient funds. -- Any person who makes or draws and
issues any check to apply on account or for value, knowing at the time of issue that he
does not have sufficient funds in or credit with the drawee bank for the payment of
such check in full upon its presentment, which check is subsequently dishonored by
the drawee bank for insufficiency of funds or credit or would have been dishonored
for the same reason had not the drawer, without any valid reason, ordered the bank to
stop payment, shall be punished by imprisonment of not less than thirty days but not
more than one (1) year or by a fine of not less than but not more than double the
amount of the check which fine shall in no case exceed Two hundred thousand pesos,
or both such fine and imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person who having sufficient funds in or
credit with the drawee bank when he makes or draws and issues a check, shall fail to
keep sufficient funds or to maintain a credit to cover the full amount of the check if
presented within a period of ninety (90) days from the date appearing thereon, for
which reason it is dishonored by the drawee bank.

Where the check is drawn by a corporation, company or entity, the person or persons
who actually signed the check in behalf of such drawer shall be liable under this Act.

Accordingly, this Court has held that the elements of the crime are as follows:[18]
1. The accused makes, draws or issues any check to apply to account or for value.
2. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit;
or it would have been dishonored for the same reason had not the drawer, without any valid
reason, ordered the bank to stop payment.
 3. The accused knows at the time of the issuance that he or she does not have sufficient funds in,
or credit with, drawee bank for the payment of the check in full upon its presentment.
We shall analyze the evidence, purportedly establishing each of the aforementioned elements
which the trial and the appellate courts relied upon.

Issuance of the Questioned Checks

Contending that the prosecution failed to prove the first element, petitioner maintains that she
merely signed the questioned checks without indicating therein the date and the amount
involved. She adds that they were improperly filled up by Eileen Fernandez. Thus, she concludes,
she did not issue the dishonored checks in the context of the Negotiable Instruments Law, which
defines issue as the first delivery of the instrument complete in form to a person who takes it as a
holder.[19]
Petitioners contentions are not meritorious. The questioned checks, marked as Exhibits A to
K, contained the date of issue and the amount involved. In fact, petitioner even admitted that she
signed those checks. On the other hand, no proof was adduced to show that petitioner merely
signed them in blank, or that complainant filled them up in violation of the former's instructions
or their previous agreement.The evidence on record is clear that petitioner issued eleven checks,
all of which were duly filled up and signed by her.

Checks Dishonored

Neither are we persuaded by petitioners argument that there appears no evidence on record
that the subject checks were unpaid and dishonored.[20] Under Section 3 of BP 22, the introduction
in evidence of any unpaid and dishonored check, having the drawees refusal to pay stamped or
written thereon, or attached thereto, with the reason therefor as aforesaid, shall be prima
facie evidence of the making or issuance of said check, and the due presentment to the drawee for
payment and the dishonor thereof, and that the same was properly dishonored for the reason
written, stamped, or attached by the drawee on such dishonored check.
In the present case, the fact that the checks were dishonored was sufficiently shown by the
checks themselves, which were stamped with the words ACCOUNT CLOSED. This was further
supported by the returned check tickets issued by PCI Bank, the depository bank, stating that the
checks had been dishonored.
Clearly, these documents constitute prima facie evidence that the drawee bank dishonored the
checks. Again, no evidence was presented to rebut the prosecutions claim.

Knowledge of Insufficiency of Funds

To hold a person liable under BP 22, it is not enough to establish that a check issued was
subsequently dishonored. It must be shown further that the person who issued the check knew at
the time of issue that that he does not have sufficient funds in or credit with the drawee bank for
the payment of such check in full upon its presentment. Because this element involves a state of
mind which is difficult to establish, Section 2 of the law creates a prima facie presumption of such
knowledge, as follows:[21]

Sec. 2. Evidence of knowledge of insufficient funds. --- The making, drawing and
issuance of a check payment of which is refused by the drawee because of insufficient
funds in or credit with such bank, when presented within ninety (90) days from the
date of the check, shall be prima facie evidence of knowledge of such insufficiency of
funds or credit unless such maker or drawer pays the holder thereof the amount due
thereon, or makes arrangements for payment in full by the drawee of such check
within five (5) banking days after receiving notice that such check has not been paid
by the drawee.

In other words, the prima facie presumption arises when a check is issued. But the law also
provides that the presumption does not arise when the issuer pays the amount of the check or makes
arrangement for its payment within five banking days after receiving notice that such check has
not been paid by the drawee. Verily, BP 22 gives the accused an opportunity to satisfy the amount
indicated in the check and thus avert prosecution. As the Court held in Lozano v. Martinez, the
aforecited provision serves to mitigate the harshness of the law in its application.[22] This
opportunity, however, can be used only upon receipt by the accused of a notice of dishonor. This
point was underscored by the Court in Lina Lim Lao v. Court of Appeals:[23]

It has been observed that the State, under this statute, actually offers the violator a
compromise by allowing him to perform some act which operates to preempt the
criminal action, and if he opts to perform it the action is abated. This was also
compared to certain laws allowing illegal possessors of firearms a certain period of
time to surrender the illegally possessed firearms to the Government, without
incurring any criminal liability. In this light, the full payment of the amount appearing
in the check within five banking days from notice of dishonor is a complete defense.
The absence of a notice of dishonor necessarily deprives an accused an opportunity to
preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins
that a notice of dishonor be actually served on petitioner. Petitioner has a right to
demand and the basic postulates of fairness require -- that the notice of dishonor be
actually sent to and received by her to afford her the opportunity to avert prosecution
under BP 22.

Thus, in order to create the prima facie presumption that the issuer knew of the insufficiency
of funds, it must be shown that he or she received a notice of dishonor and, within five banking
days thereafter, failed to satisfy the amount of the check or make arrangement for its payment.
To prove that petitioner knew of the insufficiency of her funds, the prosecution presented
Exhibits Q to T. Based on these documents, the Court of Appeals concluded that [p]rivate
complainant sent a demand letter to appellant to make good said checks x x x. Appellant failed to
pay the face value of the eleven checks or make arrangement for the full payment thereof within
90 days after receiving the notice.[24]
Upon closer examination of these documents, we find no evidentiary basis for the holding of
the trial court and the Court of Appeals that petitioner received a notice that the checks had been
dishonored.
True, complainant sent petitioner a registered mail, as shown in Exhibit "Q," informing the
latter that the checks had been dishonored. But the records show that
petitioner did not receive it. In fact, Postmaster Wilfredo Ulibarris letter addressed to
complainants counsel certified that the subject registered mail was returned to sender on September
22, 1992 x x x.[25]
Notwithstanding the clear import of the postmasters certification, the prosecution failed to
adduce any other proof that petitioner received the post office notice but unjustifiably refused to
claim the registered mail. It is possible that the drawee bank sent petitioner a notice of dishonor,
but the prosecution did not present evidence that the bank did send it, or that petitioner actually
received it. It was also possible that she was trying to flee from complainant by staying in different
addresses. Speculations and possibilities, however, cannot take the place of proof. Conviction
must rest on proof beyond reasonable doubt. Clearly, the evidence on hand demonstrates the
indelible fact that petitioner did not receive notice that the checks had been
dishonored. Necessarily, the presumption that she knew of the insufficiency of funds cannot arise.
Be that as it may, the Court must point out that it cannot rule on petitioners civil liability, for
the issue was not raised in the pleadings submitted before us.
We must stress that BP 22, like all penal statutes, is construed strictly against the State and
liberally in favor of the accused.[26] Likewise, the prosecution has the burden to prove beyond
reasonable doubt each element of the crime. Hence, the prosecutions case must rise or fall on the
strength of its own evidence, never on the weakness or even absence of that of the defense.
WHEREFORE, the assailed Decision of the Court of Appeals is
hereby REVERSED and SET ASIDE. Petitioner Betty King is ACQUITTED for failure of the
prosecution to prove all the elements of the crimes charged. No pronouncement as to costs.
SO ORDERED.
OTHER DECEITS
JAIME GUINHAWA, G.R. No. 162822
Petitioner,
Present:
PUNO, J., Chairman,
AUSTRIA-MARTINEZ,
- versus - CALLEJO, SR.,
TINGA, and
Jaime Guinhawa was engaged in the business of selling brand new motor
vehicles, including Mitsubishi vans, under the business name of Guinrox Motor
Sales. His office and display room for cars were located along Panganiban Avenue,
Naga City. He employed Gil Azotea as his sales manager.

On March 17, 1995, Guinhawa purchased a brand new Mitsubishi L-300

Versa Van with Motor No. 4D56A-C8929 and Serial No. L069WQZJL-07970 from
the Union Motors Corporation (UMC) in Paco, Manila. The van bore Plate No. DLK
406. Guinhawas driver, Leopoldo Olayan, drove the van from Manila to Naga City.
However, while the van was traveling along the highway in Labo, Daet, Camarines
Norte, Olayan suffered a heart attack. The van went out of control, traversed the
highway onto the opposite lane, and was ditched into the canal parallel to the
highway.[1] The van was damaged, and the left front tire had to be replaced.

The incident was reported to the local police authorities and was recorded in
the police blotter.[2] The van was repaired and later offered for sale in Guinhawas
showroom.[3]

Sometime in October 1995, the spouses Ralph and Josephine Silo wanted to
buy a new van for their garment business; they purchased items in Manila and sold
them in Naga City.[4] They went to Guinhawas office, and were shown the L-300
Versa Van which was on display. The couple inspected its interior portion and found
it beautiful. They no longer inspected the under chassis since they presumed that the
vehicle was brand new.[5] Unaware that the van had been damaged and repaired on
account of the accident in Daet, the couple decided to purchase the van
for P591,000.00. Azotea suggested that the couple make a downpayment
of P118,200.00, and pay the balance of the purchase price by installments via a loan
from the United Coconut Planters Bank (UCPB), Naga Branch, with the L-300 Versa
Van as collateral. Azotea offered to make the necessary arrangements with the
UCPB for the consummation of the loan transaction. The couple agreed. On
November 10, 1995, the spouses executed a Promissory Note[6] for the amount
of P692,676.00 as payment of the balance on the purchase price, and as evidence of
the chattel mortgage over the van in favor of UCPB.

On October 11, 1995, the couple arrived in Guinhawas office to take delivery
of the van. Guinhawa executed the deed of sale, and the couple paid the P161,470.00
downpayment, for which they were issued Receipt No. 0309.[7] They were furnished
a Service Manual[8] which contained the warranty terms and conditions. Azotea
instructed the couple on how to start the van and to operate its radio. Ralph Silo no
longer conducted a test drive; he and his wife assumed that there were no defects in
the van as it was brand new.[9]

On October 12, 1995, Josephine Silo, accompanied by Glenda Pingol, went

to Manila on board the L-300 Versa Van, with Glendas husband, Bayani Pingol III,
as the driver. Their trip to Manila was uneventful. However, on the return trip to
Naga from Manila on October 15 or 16, 1995, Bayani Pingol heard a squeaking
sound which seemed to be coming from underneath the van. They were in Calauag,
Quezon, where there were no humps along the road.[10] Pingol stopped the van in
Daet, Camarines Norte, and examined the van underneath, but found no
abnormalities or defects.[11] But as he drove the van to Naga City, the squeaking
sound persisted.
Believing that the van merely needed grease, Pingol stopped at a Shell gasoline
station where it was examined. The mechanic discovered that some parts underneath
the van had been welded. When Pingol complained to Guinhawa, the latter told him
that the defects were mere factory defects. As the defects persisted, the spouses Silo
requested that Guinhawa change the van with two Charade-Daihatsu vehicles within
a week or two, with the additional costs to be taken from their downpayment.
Meanwhile, the couple stopped paying the monthly amortization on their loan,
pending the replacement of the van. Guinhawa initially agreed to the couples
proposal, but later changed his mind and told them that he had to sell the van first.
The spouses then brought the vehicle to the Rx Auto Clinic in Naga City for
examination. Jesus Rex Raquitico, Jr., the mechanic, examined the van and
discovered that it was the left front stabilizer that was producing the annoying sound,
and that it had been repaired.[12] Raquitico prepared a Job Order containing the
following notations and recommendations:

1. CHECK UP SUSPENSION (FRONT)

2. REPLACE THE ROD END
3. REPLACE BUSHING

NOTE: FRONT STEP BOARD HAS BEEN ALREADY DAMAGED

AND REPAIRED.

NOTE: FRONT LEFT SUSPENSION MOUNTING IS NOT ON

SPECIFIED ALIGNMENT/MEASUREMENT[13]

Josephine Silo filed a complaint for the rescission of the sale and the refund
of their money before the Department of Trade and Industry (DTI). During the
confrontation between her and Guinhawa, Josephine learned that Guinhawa had
bought the van from UMC before it was sold to them, and after it was damaged in
Daet. Subsequently, the spouses Silo withdrew their complaint from the DTI.

On February 14, 1996, Josephine Silo filed a criminal complaint for violation
of paragraph 1, Article 318 of the Revised Penal Code against Guinhawa in the
Office of the City Prosecutor of Naga City. After the requisite investigation, an
Information was filed against Guinhawa in the Municipal Trial Court (MTC) of
Naga City. The inculpatory portion reads:

The undersigned Assistant Prosecutor of Naga City accuses Jaime

Guinhawa of the crime of OTHER DECEITS defined and penalized under
Art. 318, par. 1 of the Revised Penal Code, committed as follows:

That on or about October 11, 1995, in the City of

Naga, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, being a motor vehicle
dealer using the trade name of Guinhawa Motor Sales at
Panganiban Avenue, Naga City, and a dealer of brand new
cars, by means of false pretenses and fraudulent acts, did
then and there willfully, unlawfully and feloniously defraud
private complainant, JOSEPHINE P. SILO, as follows: said
accused by means of false manifestations and fraudulent
representations, sold to said private complainant, as brand
new, an automobile with trade name L-300 Versa Van
colored beige and the latter paid for the same in the amount
of P591,000.00, when, in truth and in fact, the same was not
brand new because it was discovered less than a month after
it was sold to said Josephine P. Silo that said L-300 Versa
Van had defects in the underchassis and stepboard and
repairs had already been done thereat even before said sale,
as was found upon check-up by an auto mechanic; that
private complainant returned said L-300 Versa Van to the
accused and demanded its replacement with a new one or the
return of its purchase price from said accused but despite
follow-up demands no replacement was made nor was the
purchase price returned to private complainant up to the
present to her damage and prejudice in the amount
of P591,000.00, Philippine Currency, plus other damages
that may be proven in court.[14]

Guinhawa testified that he was a dealer of brand new Toyota, Mazda, Honda
and Mitsubishi cars, under the business name Guinrox Motor Sales. He purchased
Toyota cars from Toyota Philippines, and Mitsubishi cars from UMC in Paco,
Manila.[15] He bought the van from the UMC in March 1995, but did not use it; he
merely had it displayed in his showroom in Naga City.[16] He insisted that the van
was a brand new unit when he sold it to the couple.[17] The spouses Silo bought the
van and took delivery only after inspecting and taking it for a road tests.[18] His sales
manager, Azotea, informed him sometime in November 1995 that the spouses Silo
had complained about the defects under the left front portion of the van. By then, the
van had a kilometer reading of 4,000 kilometers.[19] He insisted that he did not make
any false statement or fraudulent misrepresentation to the couple about the van,
either before or simultaneous with its purchase. He posited that the defects noticed
by the couple were not major ones, and could be repaired. However, the couple
refused to have the van repaired and insisted on a refund of their payment for the
van which he could not allow. He then had the defects repaired by the UMC.[20] He
claimed that the van was never involved in any accident, and denied that his driver,
Olayan, met an accident and sustained physical injuries when he drove the van from
Manila to Naga City.[21] He even denied meeting Bayani Pingol.

The accused claimed that the couple filed a Complaint[22] against him with the
DTI on January 25, 1996, only to withdraw it later.[23] The couple then failed to pay
the amortizations for the van, which caused the UCPB to file a petition for the
foreclosure of the chattel mortgage and the sale of the van at public auction.[24]

Azotea testified that he had been a car salesman for 16 years and that he sold
brand new vans.[25] Before the couple took delivery of the vehicle, Pingol inspected
its exterior, interior, and underside, and even drove it for the couple.[26] He was
present when the van was brought to the Rx Auto Clinic, where he noticed the dent
on its front side.[27] He claimed that the van never figured in any vehicular accident
in Labo, Daet, Camarines Norte on March 17, 1995.[28] In fact, he declared, he found
no police record of a vehicular accident involving the van on the said date.[29] He
admitted that Olayan was their driver, and was in charge of taking delivery of cars
purchased from the manufacturer in Manila.[30]

On November 6, 2001, the trial court rendered judgment convicting

Guinhawa. The fallo of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered

declaring the accused, JAIME GUINHAWA, guilty of the crime of Other
Deceits defined and penalized under Art. 318(1) of the Revised Penal
Code, the prosecution having proven the guilt of the accused beyond
reasonable doubt and hereby imposes upon him the penalty of
imprisonment from 2 months and 1 day to 4 months of Arresto Mayor and
a fine of One Hundred Eighty Thousand Seven Hundred and Eleven Pesos
(P180,711.00) the total amount of the actual damages caused to private
complainant.

As to the civil aspect of this case which have been deemed

instituted with this criminal case, Articles 2201 and 2202 of the Civil Code
provides:

Art. 2201. In contracts and quasi-contracts, the

damages for which the obligor who acted in good faith is
liable shall be those that are the natural and probable
consequences of the breach of the obligation, and which the
parties have foreseen or could have reasonably foreseen at
the time the obligation was constituted.

In case of fraud, malice or wanton attitude, the obligor

shall be responsible for all damages which may be
reasonably attributed to the non-performance of the
obligation.

Art. 2202. In crimes and quasi-delicts, the defendant

shall be liable for all damages which are the natural and
probable consequences of the act or omission complained of.
 It is not necessary that such damages have been foreseen or
could have reasonably been foreseen by the defendant.

Thus, accused is condemned to pay actual damages in the amount

of One Hundred Eighty Thousand Seven Hundred and Eleven Pesos
(Php180,711.00), which represents the 20% downpayment and other
miscellaneous expenses paid by the complainant plus the amount of
Nineteen Thousand Two Hundred Forty-One (Php19,241.00) Pesos,
representing the 1st installment payment made by the private complainant
to the bank. Accused is, likewise, ordered to pay moral damages in the
amount of One Hundred Thousand Pesos (Php100,000.00) in view of the
moral pain suffered by the complainant; for exemplary damages in the
amount of Two Hundred Thousand Pesos (Php200,000.00) to serve as
deterrent for those businessmen similarly inclined to take undue
advantage over the publics innocence. As for attorneys fees, the
reasonable amount of One Hundred Thousand Pesos (Php100,000.00) is
hereby awarded.

SO ORDERED.[31]

The trial court declared that the accused made false pretenses or
misrepresentations that the van was a brand new one when, in fact, it had figured in
an accident in Labo, Daet, Camarines Norte, and sustained serious damages before
it was sold to the private complainant.

Guinhawa appealed the decision to the Regional Trial Court (RTC) of Naga
City, Branch 19, in which he alleged that:

1. The lower court erred in its finding that the repair works on the
left front portion and underchassis of the van was the result of the accident
in Labo, Camarines Norte, where its driver suffered an attack of
hypertension.

2. The lower court erred in its four (4) findings of fact that accused-
appellant made misrepresentation or false pretenses that the van was a
brand new car, which constituted deceit as defined in Article 318,
paragraph 1 of the Revised Penal Code.
 3. The lower court erred in finding accused-appellant civilly liable
to complainant Josephine Silo. But, even if there be such liability, the
action therefor has already prescribed and the amount awarded was
exhorbitant, excessive and unconscionable.[32]

Guinhawa insisted that he never talked to the couple about the sale of the van;
hence, could not have made any false pretense or misrepresentation.

On August 1, 2002, the RTC affirmed the appealed judgment.[33]

Guinhawa filed a petition for review with the Court of Appeals (CA), where
he averred that:

I
THE COURT A QUO ERRED IN CONVICTING PETITIONER OF
THE CRIME OF OTHER DECEITS AND SENTENCING HIM TO
SUFFER IMPRISONMENT OF TWO MONTHS AND ONE DAY TO
FOUR MONTHS OF ARRESTO MAYOR AND TO PAY FINE IN THE
AMOUNT OF P180,711.00.

II
THE COURT A QUO ERRED IN ORDERING PETITIONER TO PAY
PRIVATE COMPLAINANT P180,711.00 AS
DOWNPAYMENT, P19,241.00 AS FIRST INSTALLMENT WITH
UCPB NAGA, P100,000.00 AS MORAL DAMAGES, P200,000.00 AS
EXEMPLARY DAMAGES AND P100,000.00 AS ATTORNEYS
FEES.[34]

On January 5, 2004, the CA rendered judgment affirming with modification

the decision of the RTC. The fallo of the decision reads:

WHEREFORE, premises considered, the instant petition is hereby

partially granted insofar as the following are concerned: a) the award of
 moral damages is hereby REDUCED to P10,000.00 and b) the award of
attorneys fees and exemplary damages are hereby DELETED for lack of
factual basis. In all other respects, We affirm the decision under review.

Costs against petitioner.

SO ORDERED.[35]

The CA ruled that the private complainant had the right to assume that the van was
brand new because Guinhawa held himself out as a dealer of brand new vans.
According to the appellate court, the act of displaying the van in the showroom
without notice to any would-be buyer that it was not a brand new unit was
tantamount to deceit. Thus, in concealing the vans true condition from the buyer,
Guinhawa committed deceit.

The appellate court denied Guinhawas motion for reconsideration, prompting

him to file the present petition for review on certiorari, where he contends:

I
THE COURT A QUO ERRED IN NOT HOLDING THAT THE
INFORMATION CHARGED AGAINST PETITIONER DID NOT
INFORM HIM OF A CHARGE OF OTHER DECEITS.

II
THE COURT A QUO ERRED IN HOLDING THAT PETITIONER
EMPLOYED FRAUD OR DECEIT AS DEFINED UNDER ARTICLE
318, REVISED PENAL CODE.

III
THE COURT A QUO ERRED IN NOT CONSIDERING THE
CIRCUMSTANCES POINTING TO THE INNOCENCE OF THE
PETITIONER.[36]
 The issues for resolution are (1) whether, under the Information, the petitioner
was charged of other deceits under paragraph 1, Article 318 of the Revised Penal
Code; and (2) whether the respondent adduced proof beyond reasonable doubt of the
petitioners guilt for the crime charged.

The petitioner asserts that based on the allegations in the Information, he was
charged with estafa through false pretenses under paragraph 2, Article 315 of the
Revised Penal Code. Considering the allegation that the private complainant was
defrauded of P591,000.00, it is the RTC, not the MTC, which has exclusive
jurisdiction over the case. The petitioner maintains that he is not estopped from
assailing this matter because the trial courts lack of jurisdiction can be assailed at
any time, even on appeal, which defect cannot even be cured by the evidence
adduced during the trial. The petitioner further avers that he was convicted of other
deceits under paragraph 1, Article 318 of the Revised Penal Code, a crime for which
he was not charged; hence, he was deprived of his constitutional right to be informed
of the nature of the charge against him. And in any case, even if he had been charged
of other deceits under paragraph 1 of Article 318, the CA erred in finding him guilty.
He insists that the private complainant merely assumed that the van was brand new,
and that he did not make any misrepresentation to that effect. He avers that deceit
cannot be committed by concealment, the absence of any notice to the public that
the van was not brand new does not amount to deceit. He posits that based on the
principle of caveat emptor, if the private complainant purchased the van without first
inspecting it, she must suffer the consequences. Moreover, he did not attend to the
private complainant when they examined the van; thus, he could not have deceived
them.
 The petitioner maintains that, absent evidence of conspiracy, he is not
criminally liable for any representation Azotea may have made to the private
complainant, that the van was brand new. He insists that the respondent was
estopped from adducing evidence that the vehicle was involved in an accident in
Daet, Camarines Norte on March 17, 1995, because such fact was not alleged in the
Information.

In its comment on the petition, the Office of the Solicitor General avers that,
as gleaned from the material averments of the Information, the petitioner was
charged with other deceits under paragraph 1, Article 318 of the Revised Penal Code,
a felony within the exclusive jurisdiction of the MTC. The petitioner was correctly
charged and convicted, since he falsely claimed that the vehicle was brand new when
he sold the same to the private complainant. The petitioners concealment of the fact
that the van sustained serious damages as an aftermath of the accident in Daet,
Camarines Norte constituted deceit within the meaning of paragraph 1 of Article
318.

The Information filed against the petitioner reads:

That on or about October 11, 1995, in the City of Naga, Philippines,

and within the jurisdiction of this Honorable Court, the said accused,
being a motor vehicle dealer using the trade name of Guinhawa Motor
Sales at Panganiban Avenue, Naga City, and dealer of brand new cars, by
means of false pretenses and fraudulent acts, did then and there, willfully,
unlawfully and feloniously defraud private complainant, JOSEPHINE P.
SILO, as follows: said accused by means of false manifestations and
fraudulent representations, sold to said private complainant, as brand new,
an automobile with trade name L-300 Versa Van colored beige and the
latter paid for the same in the amount of P591,000.00, when, in truth and
in fact, the same was not brand new because it was discovered less than a
 month after it was sold to said Josephine P. Silo that said L-300 Versa Van
had defects in the underchassis and stepboard and repairs have already
been done thereat even before said sale, as was found upon check-up by
an auto mechanic; that private complainant returned said L-300 Versa Van
to the accused and demanded its replacement with a new one or the return
of its purchase price from said accused but despite follow-up demands no
replacement was made nor was the purchase price returned to private
complainant up to the present to her damage and prejudice in the amount
of P591,000.00, Philippine Currency, plus other damages that may be
proven in court.

CONTRARY TO LAW.[37]

Section 6, Rule 110 of the Rules of Criminal Procedure requires that the
Information must allege the acts or omissions complained of as constituting the
offense:

SEC. 6. Sufficiency of complaint or information. A complaint or

information is sufficient if it states the name of the accused; the
designation of the offense given by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended party;
the approximate date of the commission of the offense; and the place
where the offense was committed.

When an offense is committed by more than one person, all of them

shall be included in the complaint or information.

The real nature of the offense charged is to be ascertained by the facts alleged
in the body of the Information and the punishment provided by law, not by the
designation or title or caption given by the Prosecutor in the Information. [38] The
Information must allege clearly and accurately the elements of the crime charged.[39]

As can be gleaned from its averments, the Information alleged the essential
elements of the crime under paragraph 1, Article 318 of the Revised Penal Code.
 The false or fraudulent representation by a seller that what he offers for sale
is brand new (when, in fact, it is not) is one of those deceitful acts envisaged in
paragraph 1, Article 318 of the Revised Penal Code. The provision reads:

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

This provision was taken from Article 554 of the Spanish Penal Code which
provides:

El que defraudare o perjudicare a otro, usando de cualquier engao que

no se halle expresado en los artculos anteriores de esta seccin, ser
castigado con una multa del tanto al duplo del perjuicio que irrogare; y
en caso de reincidencia, con la del duplo y arresto mayor en su grado
medio al mximo.

For one to be liable for other deceits under the law, it is required that the
prosecution must prove the following essential elements: (a) false pretense,
fraudulent act or pretense other than those in the preceding articles;
(b) such false pretense, fraudulent act or pretense must be made or executed prior to
or simultaneously with the commission of the fraud; and (c) as a result, the offended
party suffered damage or prejudice.[40] It is essential that such false statement or
fraudulent representation constitutes the very cause or the only motive for the private
complainant to part with her property.
 The provision includes any kind of conceivable deceit other than those
enumerated in Articles 315 to 317 of the Revised Penal Code.[41] It is intended as the
catchall provision for that purpose with its broad scope and intendment. [42]

Thus, the petitioners reliance on paragraph 2(a), Article 315 of the Revised
Penal Code is misplaced. The said provision reads:

2. By means of any of the following false pretenses or fraudulent acts

executed prior to or simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess

power, influence, qualifications, property, credit, agency,
business or imaginary transactions; or by means of other
similar deceits.

The fraudulent representation of the seller, in this case, that the van to be sold
is brand new, is not the deceit contemplated in the law. Under the principle
of ejusdem generis, where a statement ascribes things of a particular class or kind
accompanied by words of a generic character, the generic words will usually be
limited to things of a similar nature with those particularly enumerated unless there
be something in the context to the contrary.[43]

Jurisdiction is conferred by the Constitution or by law. It cannot be conferred

by the will of the parties, nor diminished or waived by them. The jurisdiction of the
court is determined by the averments of the complaint or Information, in relation to
the law prevailing at the time of the filing of the criminal complaint or Information,
and the penalty provided by law for the crime charged at the time of its commission.
 Section 32 of Batas Pambansa Blg. 129, as amended by Republic Act No.
7691, provides that the MTC has exclusive jurisdiction over offenses punishable
with imprisonment not exceeding six years, irrespective of the amount of the fine:

Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial

Courts and Municipal Circuit Trial Courts in Criminal Cases. Except in
cases falling within the exclusive original jurisdiction of Regional Trial
Courts and of the Sandiganbayan, the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:

(1) Exclusive original jurisdiction over all violations

of city or municipal ordinances committed within their
respective territorial jurisdiction; and

(2) Exclusive original jurisdiction over all offenses

punishable with imprisonment not exceeding six (6) years
irrespective of the amount of fine, and regardless of other
imposable accessory or other penalties, including the civil
liability arising from such offenses or predicated thereon,
irrespective of kind, nature, value or amount
thereof: Provided, however, That in offenses involving
damage to property through criminal negligence, they shall
have exclusive original jurisdiction thereof.

Since the felony of other deceits is punishable by arresto mayor, the MTC had
exclusive jurisdiction over the offense lodged against the petitioner.

On the merits of the petition, the Court agrees with the petitioners contention
that there is no evidence on record that he made direct and positive representations
or assertions to the private complainant that the van was brand new. The record
shows that the private complainant and her husband Ralph Silo were, in fact,
attended to by Azotea. However, it bears stressing that the representation may be in
the form of words, or conduct resorted to by an individual to serve as an advantage
over another. Indeed, as declared by the CA based on the evidence on record:

Petitioner cannot barefacedly claim that he made no personal

representation that the herein subject van was brand new for the simple
reason that nowhere in the records did he ever refute the allegation in the
complaint, which held him out as a dealer of brand new cars. It has thus
become admitted that the petitioner was dealing with brand new vehicles
a fact which, up to now, petitioner has not categorically denied. Therefore,
when private complainant went to petitioners showroom, the former had
every right to assume that she was being sold brand new vehicles there
being nothing to indicate otherwise. But as it turned out, not only did
private complainant get a defective and used van, the vehicle had also
earlier figured in a road accident when driven by no less than petitioners
own driver.[44]

Indeed, the petitioner and Azotea obdurately insisted in the trial court that the
van was brand new, and that it had never figured in vehicular accident. This
representation was accentuated by the fact that the petitioner gave the Service
Manual to the private complainant, which manual
contained the warranty terms and conditions, signifying that the van was brand new.
Believing this good faith, the private complainant decided to purchase the van for
her buy-and-sell and garment business, and even made a downpayment of the
purchase price.

As supported by the evidence on record, the van was defective when the
petitioner sold it to the private complainant. It had ditched onto the shoulder of the
highway in Daet, Camarines Norte on its way from Manila to Naga City. The van
was damaged and had to be repaired; the rod end and bushing had to be replaced,
while the left front stabilizer which gave out a persistent annoying sound was
repaired. Some parts underneath the van were even welded together. Azotea and the
petitioner deliberately concealed these facts from the private complainant when she
bought the van, obviously so as not to derail the sale and the profit from the
transaction.

The CA is correct in ruling that fraud or deceit may be committed by omission.

As the Court held in People v. Balasa:[45]

Fraud, in its general sense, is deemed to comprise anything

calculated to deceive, including all acts, omissions, and concealment
involving a breach of legal or equitable duty, trust, or confidence justly
reposed, resulting in damage to another, or by which an undue and
unconscientious advantage is taken of another. It is a generic term
embracing all multifarious means which human ingenuity can device, and
which are resorted to by one individual to secure an advantage over
another by false suggestions or by suppression of truth and includes all
surprise, trick, cunning, dissembling and any unfair way by which another
is cheated. On the other hand, deceit is the false representation of a matter
of fact whether by words or conduct, by false or misleading allegations,
or by concealment of that which should have been disclosed which
deceives or is intended to deceive another so that he shall act upon it to
his legal injury.[46]

It is true that mere silence is not in itself concealment. Concealment which the
law denounces as fraudulent implies a purpose or design to hide facts which the other
party sought to know.[47] Failure to reveal a fact which the seller is, in good faith,
bound to disclose may generally be classified as a deceptive act due to its inherent
capacity to deceive.[48] Suppression of a material fact which a party is bound in good
faith to disclose is equivalent to a false representation.[49] Moreover, a representation
is not confined to words or positive assertions; it may consist as well of deeds, acts
or artifacts of a nature calculated to mislead another and thus allow the fraud-feasor
to obtain an undue advantage.[50]
 Fraudulent nondisclosure and fraudulent concealment are of the same genre.
Fraudulent concealment presupposes a duty to disclose the truth and that disclosure
was not made when opportunity to speak and inform was presented, and that the
party to whom the duty of disclosure, as to a material fact was due, was induced
thereby to act to his injury.[51]

Article 1389 of the New Civil Code provides that failure to disclose facts
when there is a duty to reveal them constitutes fraud. In a contract of sale, a buyer
and seller do not deal from equal bargaining positions when the latter has knowledge,
a material fact which, if communicated to the buyer, would render the grounds
unacceptable or, at least, substantially less desirable.[52] If, in a contract of sale, the
vendor knowingly allowed the vendee to be deceived as to the thing sold in a material
matter by failing to disclose an intrinsic circumstance that is vital to the contract,
knowing that the vendee is acting upon the presumption that no such fact exists,
deceit is accomplished by the suppression of the truth.[53]

In the present case, the petitioner and Azotea knew that the van had figured in an
accident, was damaged and had to be repaired. Nevertheless, the van was placed in
the showroom, thus making it appear to the public that it was a brand new unit. The
petitioner was mandated to reveal the foregoing facts to the private complainant. But
the petitioner and Azotea even obdurately declared when they testified in the court a
quo that the vehicle did not figure in an accident, nor had it been repaired; they
maintained that the van was brand new, knowing that the private complainant was
going to use it for her garment business. Thus, the private complainant bought the
van, believing it was brand new.
 Significantly, even when the petitioner was apprised that the private
complainant had discovered the vans defects, the petitioner agreed to replace the
van, but changed his mind and insisted that it must be first sold.

The petitioner is not relieved of his criminal liability for deceitful concealment of
material facts, even if the private complainant made a visual inspection of the vans
interior and exterior before she agreed to buy it and
failed to inspect its under chassis. Case law has it that where the vendee made only
a partial investigation and relies, in part, upon the representation of the vendee, and
is deceived by such representation to his injury, he may maintain an action for such
deceit.[54] The seller cannot be heard to say that the vendee should not have relied
upon the fraudulent concealment; that negligence, on the part of the vendee, should
not be a defense in order to prevent the vendor from unjustifiably escaping with the
fruits of the fraud.

In one case,[55] the defendant who repainted an automobile, worked it over to

resemble a new one and delivered it to the plaintiff was found to have warranted and
represented that the automobile being sold was new. This was found to be a false
representation of an existing fact; and, if it was material and induced the plaintiff to
accept something entirely different from that which he had contracted for, it clearly
was a fraud which, upon its discovery and a tender of the property back to the seller,
[it] entitled the plaintiff to rescind the trade and recover the purchase money.[56]

On the petitioners insistence that the private complainant was proscribed from
charging him with estafa based on the principle of caveat emptor, case law has it
that this rule only requires the purchaser to exercise such care and attention as is
usually exercised by ordinarily prudent men in like business affairs, and only applies
to defects which are open and patent to the service of one exercising such care. [57] In
an avuncular case, it was held that:

The rule of caveat emptor, like the rule of sweet charity, has often been
invoked to cover a multitude of sins; but we think its protecting mantle
has never been stretched to this extent. It can only be applied where it is
shown or conceded that the parties to the contract stand on equal footing
and have equal knowledge or equal means of knowledge and there is no
relation of trust or confidence between them. But, where one party
undertakes to sell to another property situated at a distance and of which
he has or claims to have personal knowledge and of which the buyer
knows nothing except as he is informed by the seller, the buyer may
rightfully rely on the truth of the sellers representations as to its kind,
quality, and value made in the course of negotiation for the purpose of
inducing the purchase. If, in such case, the representations prove to be
false, neither law nor equity will permit the seller to escape responsibility
by the plea that the buyer ought not to have believed him or ought to have
applied to other sources to ascertain the facts. [58]

It bears stressing that Azotea and the petitioner had every opportunity to reveal to
the private complainant that the van was defective. They resolved to maintain their
silence, to the prejudice of the private complainant, who was a garment merchant
and who had no special knowledge of parts of motor vehicles. Based on the
surrounding circumstances, she relied on her belief that the van was brand new. In
fine, she was the innocent victim of the petitioners fraudulent nondisclosure or
concealment.

The petitioner cannot pin criminal liability for his fraudulent omission on his
general manager, Azotea. The two are equally liable for their collective fraudulent
silence. Case law has it that wherever the doing of a
certain act or the transaction of a given affair, or the performance of certain business
is confided to an agent, the authority to so act will, in accordance with a general rule
often referred to, carry with it by implication the authority to do all of the collateral
acts which are the natural and ordinary incidents of the main act or business
authorized.[59]

The MTC sentenced the petitioner to suffer imprisonment of from two months and
one day, as minimum, to four months of arresto mayor, as maximum. The CA
affirmed the penalty imposed by the trial court. This is erroneous. Section 2 of Act
4103, as amended, otherwise known as the Indeterminate Sentence Law, provides
that the law will not apply if the maximum term of imprisonment does not exceed
one year:

SEC. 2. This Act shall not apply to persons convicted of offenses punished
with death penalty or life-imprisonment; to those convicted of treason,
conspiracy or proposal to commit treason; to those convicted of misprision
of treason, rebellion, sedition or espionage; to those convicted of piracy;
to those who are habitual delinquents; to those who shall have escaped
from confinement or evaded sentence; to those who having been granted
conditional pardon by the Chief Executive shall have violated the terms
thereof; to those whose maximum term of imprisonment does not exceed
one year, not to those already sentenced by final judgment at the time of
approval of this Act, except as provided in Section 5 hereof. (As amended
by Act No. 4225.)

In this case, the maximum term of imprisonment imposed on the petitioner was four
months and one day of arresto mayor. Hence, the MTC was proscribed from
imposing an indeterminate penalty on the petitioner. An indeterminate penalty may
be imposed if the minimum of the penalty is
one year or less, and the maximum exceeds one year. For example, the trial court
may impose an indeterminate penalty of six months of arresto mayor, as minimum,
to two years and four months of prision correccional, as maximum, since the
maximum term of imprisonment it imposed exceeds one year. If the trial court opts
to impose a penalty of imprisonment of one year or less, it should not impose an
indeterminate penalty, but a straight penalty of one year or less instead. Thus, the
petitioner may be sentenced to a straight penalty of one year, or a straight penalty of
less than one year, i.e., ten months or eleven months. We believe that considering
the attendant circumstances, a straight penalty of imprisonment of six months is
reasonable.

Conformably with Article 39 in relation to paragraph 3, Article 38 of the

Revised Penal Code, the petitioner shall suffer subsidiary imprisonment if he has no
property with which to pay the penalty of fine.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed

Decision and Resolution are AFFIRMED WITH MODIFICATION. Considering
the surrounding circumstances of the case, the petitioner is hereby sentenced to
suffer a straight penalty of six (6) months imprisonment. The petitioner shall suffer
subsidiary imprisonment in case of insolvency.

Costs against the petitioner.

SO ORDERED.
ARSON
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERIGEL
OLIVA, accused-appellant.
The case is an appeal from the decision of the Regional Trial Court, Branch
12, Sanchez Mira, Cagayan[1] finding accused Ferigel Oliva (hereinafter referred
to as "Ferigel") guilty beyond reasonable doubt of arson and
murder,[2] sentencing him to seventeen (17) years, four (4) months and one (1)
day of reclusion temporal, for arson, and to reclusion perpetua for murder,
ordering him to pay Avelino Manguba damages of two hundred pesos
(P200.00), and to pay indemnity of fifty thousand pesos (P50,000.00) to the
heirs of Benjamin Estrellon.[3]

The Facts

On August 23, 1993, at around eleven o'clock in the evening, Avelino

Manguba (hereinafter referred to as "Avelino") and his family were sleeping in
their house in San Jose, Claveria, Cagayan. Avelino went out of the house to
urinate.[4] He saw Ferigel set the roof of their house on fire with a lighted match.[5]
Awakened by the loud barking of dogs, Avelino's wife sensed danger and
peeped through a hole in their wall. She also saw Ferigel burn the roof of their
house.[6] She shouted, "Perry is burning our house!" and called out to the
neighbors for help.[7]
While the fire razed Avelino's house, Ferigel and three others, Dominador
Oliva, Marcos Paderan and Arnel Domingo watched at a distance of about five
(5) meters.[8]
One of the neighbors, Benjamin Estrellon (hereinafter referred to as
"Benjamin") went to the nearby river and fetched water with a pail. As Benjamin
was helping put out the fire, he was shot by Ferigel at close range.[9] Benjamin
tried to run, but he slumped and fell to the ground. The gunshot wound caused
Benjamin's death.[10]
Avelino, his wife, and Benjamin's son, Noel, witnessed the shooting since
they were only about five (5) to six (6) meters away from Ferigel when the
incident occurred.[11] The place was brightly lit by the burning roof and visibility
was not a problem.[12] On August 24, 1993, a post-mortem report was made on
Benjamin's cadaver,[13] revealing the following:[14]

"II POSTMORTEM FINDINGS:

"Cadaver is in a state of rigor mortis and with postmortem lividity at back.

"Gunshot wound of entrance 0.9 cm. at left lateral mid-scapular area going medially
and anterosuperiorily, 10 cms. deep without exit."

"III. CAUSE OF DEATH

"Internal Hemorrhage due to gunshot wound at back."

 On October 4, 1993, an information for murder was filed[15] against accused-
appellant Ferigel Oliva and co-accused Dominador Oliva, Marcos Paderan and
Arnel Domingo, to wit:[16]

"That on or about August 23, 1993, in the municipality of Claveria, province of

Cagayan, and within the jurisdiction of this Honorable Court, the said accused Ferigel
Oliva, Dominador Oliva, Marcos Paderan and Arnel Domingo, armed with a gun,
conspiring together and helping one another, with intent to kill, with treachery, with
evident premeditation and with abuse of superior strength, did then and there wilfully
(sic), unlawfully and feloniously assault, attack and shoot one Benjamin Estrellon,
inflicting upon him gunshot wound on his body, which caused his death.

"CONTRARY TO LAW."

On the same day, the accused were also charged with arson, as follows:[17]

"That on or about August 23, 1993, in the municipality of Claveria, province of

Cagayan, and within the jurisdiction of this Honorable Court, the said accused Ferigel
Oliva, Marcos Paderan, Arnel Domingo and Dominador Oliva, conspiring together
and helping one another, with intent to destroy and to cause damage, did then and
there wilfully (sic), unlawfully and feloniously set on fire the house of one Avelino B.
Manguba in the total amount of FIFTY THOUSAND (P50,000.00) pesos, Philippine
currency.

Contrary to law.

On October 20, 1993, the accused were arraigned. With the assistance of
their respective counsel, they pleaded "not guilty" to the two crimes.[18]
On July 21, 1994, accused Ferigel escaped while in the custody of P/G-1
Joaquin P. Garingan. At the time of his escape, Ferigel was a detention prisoner
at the Provincial Jail Extension of Sanchez Mira, Cagayan.[19]
On January 3, 1995, Ferigel was apprehended at Angadanan, Isabela by
prison guards Joaquin P. Garingan and Angelino M. Cacatian, members of the
Scout Ranger regiment and members of the PNP of Angadanan, Isabela.[20]
The cases for arson and murder were tried jointly.[21] In view of the common
evidence presented coupled with the difficulty of distinguishing which evidence
was for a particular case, only one decision was rendered.[22]
On August 23, 1995, the trial court rendered a decision, the dispositive
portion of which reads:[23]
"WHEREFORE, premises all considered, judgment is hereby rendered as follows, to
wit:

"l. Acquitting accused Marcos Paderan, Arnel Domingo and Dominador Oliva of the
crime of Arson and Murder for lack of evidence and hereby orders for their immediate
release from detention;

"2. Finding the accused Ferigel Oliva guilty beyond reasonable doubt of the crime of
Arson penalized under par. 2, Sec. 3 of PD 1613 and hereby sentences him to suffer
imprisonment of seventeen (17) years, four (4) months and one (1) day of reclusion
temporal;

"3. Finding the accused Ferigel Oliva guilty beyond reasonable doubt of the crime of
Murder penalized under Art. 248 of the Revised Penal Code and hereby sentences him
to suffer imprisonment of reclusion perpetua;

"4. Ordering the accused Ferigel Oliva to pay P200 to Avelino Manguba as damages
for the burning of the roof of his house that was burned (sic);

"5. Ordering the accused Ferigel Oliva to pay P50,000 to the heirs of Benjamin
Estrellon as indemnity for the latter's death.

"SO ORDERED."

The Appeal

Hence, this appeal.[24]

Ferigel argues that the trial court erred when: first, it ignored glaring
inconsistencies in the testimonies of prosecution witnesses;[25] second, it totally
disregarded the defense of alibi; and third, it took into account the qualifying
circumstance of treachery in the commission of murder and the fact that the
house was inhabited when it was burned.[26]

The Court's Ruling

We find no reversible error and affirm the conviction.

Whether or not Benjamin was shot while he was on the street[27] or when he
was in the act of pouring water on the burning roof[28] is irrelevant to the
crime. We agree with the Solicitor General that Benjamin could have been on
the street while pouring water on the burning roof.[29] The two testimonies were
not inconsistent.
Also whether or not Benjamin immediately fell or tried to run away after he
was shot is not important. The fact is that he was shot; any act of his after he
was shot would not change the shooting, which at that point was fait accompli.
Equally insignificant is whether the gun used was a long firearm or a short
firearm. Identification of the weapon only becomes critical when there is doubt
as to the identity of the assailant. In this case, the trial court did not doubt the
identity, and neither would we.
The fact is that Benjamin was shot and that it was Ferigel who shot him. This
was the categorical, straightforward and unbiased testimony of the prosecution
witnesses. The settled rule is that the trial court's assessment of the credibility
of witnesses is entitled to great respect.[30] Absent any indication that the trial
court overlooked some material fact or gravely abused its discretion, we find no
compelling reason to interfere with its assessment of the credibility of the
eyewitnesses.[31]
The "inconsistencies" pointed out by accused-appellant are on minor
details. To acquit one who was positively identified on the basis of
inconsequential matters would result in mischief and injustice.[32] We have held
that minor inconsistencies are not enough to impair the essential integrity of the
prosecution's evidence as a whole.[33]
Ferigel harps on the testimony of acting Barangay Captain of Filomena,
Calanasan, Kalinga-Apayao, which he avers must not be disregarded. He
feebly argues that the testimony of Barangay Captain Isabel Ramos
conclusively established the impossibility of the presence of accused
Dominador Oliva at the time of the commission of the crimes. From this,
accused-appellant reasons that it "follows that the testimonies of prosecution
witnesses pointing to the accused-appellant as the assailant should not be
believed." This is non-sequitur.
Even assuming that Dominador Oliva's presence was impossible, such has
no bearing in this appeal. Here, it is the guilt of Ferigel Oliva that is in issue. The
trial court acquitted Dominador of the charges, but convicted Ferigel. Ferigel's
innocence cannot be deduced from Dominador's acquittal.
Further, we note that Ferigel escaped during the trial. Flight is an indication
of guilt.[34]
 The Conviction for Arson

When Ferigel burned Avelino's house, the law applicable was P. D. No.
1613.[35] Under Section 3 (2) of the law, the penalty of reclusion
temporal to reclusion perpetua shall be imposed if the property burned is "any
inhabited house or dwelling." Under the amendment, it is the fact that the house
burned is inhabited that qualifies the crime. There is no need to prove that the
accused had actual knowledge that the house was inhabited.[36]
Under Section 3 (2) of Presidential Decree No. 1613, the elements of arson
are: (1) that there is intentional burning; and (2) that what is intentionally burned
is an inhabited house or dwelling.[37] The records show that when Ferigel willfully
set fire to the roof of Avelino's house, Avelino's wife and children were asleep
therein.
Proof of corpus delicti is indispensable in prosecutions for felonies and
offenses. Corpus delicti is the body or substance of the crime.[38] It refers to the
fact that a crime has been actually committed. Corpus delicti is the fact of the
commission of the crime that may be proved by the testimonies of
witnesses.[39] In murder, the fact of death is the corpus delicti.[40] In arson,
the corpus delicti rule is satisfied by proof of the bare occurrence of the fire and
of its having been intentionally caused. The uncorroborated testimony of a
single eyewitness, if credible, may be enough to prove the corpus delicti and to
warrant conviction.[41] Here, corpus delicti of the arson and murder was duly proven
beyond reasonable doubt.
Convicting Ferigel Oliva of arson, the trial court imposed the straight penalty
of seventeen (17) years, four (4) months and one (1) day of reclusion temporal.
This is an error. An indeterminate penalty must be imposed. This is
mandatory.[42] Thus, we modify the penalty.
In People v. Omotoy,[43] we stated that in the absence of mitigating or
aggravating circumstances proven, the prescribed penalty shall be imposed in
its medium period.[44] Applying the Indeterminate Sentence Law, the imposable
penalty is prision mayor, in any of its periods, as minimum, to twenty (20) years
of reclusion temporal, as maximum.

The Conviction for Murder

As to whether the shooting was attended with treachery, we find that it was.
Treachery qualified the crime to murder. In crimes against persons, treachery
exists when the accused employs means, methods and forms which directly
and specially ensure its execution, without risk to himself arising from the
defense which the offended party might make.[45] When Benjamin was shot, he
was merely acting as a good neighbor, innocently helping the Mangubas put
out the fire that was razing the roof of their house.[46] At that moment, Benjamin
was unaware of the fatal attack on him. He was not given an opportunity to
defend himself or to retaliate. This clearly establishes the treacherous manner
of the killing.[47]
At the time of the commission of the offense,[48] the penalty for murder under
Article 248 of the Revised Penal Code was reclusion temporal in its maximum
period to death.[49] There being no aggravating or mitigating circumstance that
attended the killing, the proper imposable penalty is reclusion perpetua.[50]

Award of Damages as to Arson

Avelino testified that the value of the portion of the house that was burned
was two hundred pesos (P200.00).[51] This was not rebutted by the defense and
was even reiterated on cross examination when Avelino was permitted to
elaborate on the number of palma Brava pieces that were burned.[52] This was
the amount awarded by the trial court. We affirm this award.
Since there is no evidence to award moral damages to Avelino's family, we
decline to grant such award.

Damages Connected to Murder

The trial court awarded Benjamin's heirs the amount of fifty thousand pesos
(P50,000.00) as indemnity for his death. We affirm this award. Indemnity may
be awarded without need of further proof other than the death of the
victim.[53] However, there is a need to add an award for moral damages.
Benjamin's wife, Nelia Estrellon testified that she was only three (3) meters
away from her husband when he was shot. Benjamin was in her embrace when
he died. At this point, she lost consciousness.[54] We thus find that an award of
fifty thousand pesos (P50,000.00) is adequate and reasonable, taking the pain
and anguish of Benjamin's wife and six (6) children into consideration.[55]

The Fallo
 WHEREFORE, the decision of the Regional Trial Court, Branch 12,
Sanchez Mira, Cagayan is AFFIRMED with MODIFICATION.
Accused-appellant Ferigel Oliva is found guilty beyond reasonable doubt of
ARSON, defined and penalized under P. D. No. 1613, Section 3 (2). In the
absence of any modifying circumstance, he is sentenced to an intermediate
penalty of ten (10) years and one (1) day of prision mayor, as minimum, to
twenty (20) years of reclusion temporal, as maximum. Accused-appellant is
further ordered to pay Avelino Manguba actual damages in the amount of two
hundred pesos (P200.00).
Accused-appellant is found guilty beyond reasonable doubt of MURDER,
defined and penalized under Article 248 of the Revised Penal Code.[56] In the
absence of aggravating and mitigating circumstances, he is sentenced
to reclusion perpetua. Accused appellant is further ordered to pay the heirs of
Benjamin Estrellon moral damages of fifty thousand pesos (P50,000.00) and
civil indemnity for wrongful death of fifty thousand pesos (P50,000.00).
Costs against accused-appellant.
SO ORDERED.
MALICIOUS MISCHIEF
ROBERT TAGUINOD, G.R. No. 185833
Petitioner,
Present:

VELASCO, JR., J., Chairperson,

-versus- PERALTA,
ABAD,
MENDOZA, and
PERLAS-BERNABE, JJ.

PEOPLE OF Promulgated:
THE PHILIPPINES,
Respondent. October 12, 2011
For this Court's consideration is the petition for review[1] dated February 5, 2009 of
petitioner Robert Taguinod seeking to reverse the Decision[2] of the Court of Appeals
(CA) dated September 8, 2008 and its Resolution[3] dated December 19, 2008
affirming the Decisions of the Regional Trial Court of Makati City (RTC)[4] and the
Metropolitan Trial Court of Makati City (MeTC)[5] dated September 6, 2007 and
November 8, 2006, respectively.
The following are the antecedent facts:

This case started with a single incident on May 26, 2002 at the parking area of the
Rockwell Powerplant Mall. Pedro Ang (private complainant) was driving his Honda
CRV (CRV) from the 3rd basement parking, while Robert Taguinod (petitioner) was
driving his Suzuki Vitara (Vitara) from the 2nd basement parking. When they were
about to queue at the corner to pay the parking fees, the respective vehicles were
edging each other. The CRV was ahead of the queue, but the Vitara tried to overtake,
which resulted the touching of their side view mirrors. The side view mirror of the
Vitara was pushed backward and naturally, the side view mirror of the CRV was
pushed forward. This prompted the private complainant's wife and daughter,
namely, Susan and Mary Ann, respectively, to alight from the CRV and confront the
petitioner. Petitioner appeared to be hostile, hence, the private complainant
instructed his wife and daughter to go back to the CRV. While they were returning
to the car, petitioner accelerated the Vitara and moved backward as if to hit
them. The CRV, having been overtaken by the Vitara, took another lane. Private
complainant was able to pay the parking fee at the booth ahead of petitioner. When
the CRV was at the upward ramp leading to the exit, the Vitara bumped the CRV's
rear portion and pushed the CRV until it hit the stainless steel railing located at the
exit portion of the ramp.

As a result of the collision, the CRV sustained damage at the back bumper spare tires
and the front bumper, the repair of which amounted to P57,464.66. The insurance
company shouldered the said amount, but the private complainant paid P18,191.66
as his participation. On the other hand, the Vitara sustained damage on the right side
of its bumper.

Thereafter, an Information[6] was filed in the MeTC of Makati City against petitioner
for the crime of Malicious Mischief as defined in and penalized under Article
327[7] of the Revised Penal Code (RPC). The Information reads as follows:

That on or about the 26th day of May, 2002, in the City of Makati,
Philippines, a place within the jurisdiction of this Honorable Court, the
above-named accused, with deliberate intent to cause damage, and
motivated by hate and revenge and other evil motives, did then and there
 willfully, unlawfully and feloniously bump the rear portion of a Honda
CRV car bearing Plate No. APS-222 driven by Pedro N. Ang, thus,
causing damage thereon in the amount of P200.00.

CONTRARY TO LAW.

Petitioner pleaded Not Guilty during the arraignment on March 10,

2003. Consequently, the trial on the merits ensued. The prosecution presented the
testimony of private complainant. The defense, on the other hand, presented the
testimonies of Mary Susan Lim Taguinod, the wife of petitioner, Jojet N. San
Miguel, Jason H. Lazo and Engr. Jules Ronquillo.

Afterwards, the MeTC, in its Decision dated November 8, 2006, found petitioner
guilty of the crime charged in the Information, the dispositive portion of which,
reads:

WHEREFORE, premises considered, judgment is hereby rendered

finding the accused ROBERT TAGUINOD y AYSON GUILTY of
Malicious Mischief penalized under Article 329 of the Revised Penal
Code, and sentencing accused to FOUR (4) MONTHS imprisonment.

Accused Robert Taguinod y Ayson is likewise ordered to pay

complainant Pedro Ang the amount of P18,191.66, representing
complainant's participation in the insurance liability on the Honda CRV,
the amount of P50,000.00 as moral damages, and the amount
of P25,000.00 as attorney's fees; and to pay the costs.

SO ORDERED.[8]

The case was appealed to the RTC of Makati City, which rendered its Decision
dated September 6, 2007, affirming the decision of the MeTC, disposing the
appealed case as follows:
WHEREFORE, premises considered, the Decision dated 8 November
2006 is AFFIRMED in all respects.

SO ORDERED.[9]
Undaunted, petitioner filed a petition for review with the CA, praying for the
reversal of the decision of the RTC. The CA partly granted the petition in its
Decision dated September 8, 2008, ruling that:

WHEREFORE, in view of the foregoing premises, the petition for review

filed in this case is hereby PARTLY GRANTED. The assailed decision
dated September 6, 2007 of Branch 143 of the Regional Trial Court
in Makati City in Criminal Case No. 07-657 is hereby MODIFIED as
follows:

1. The petitioner is penalized to suffer the penalty of 30 days

imprisonment;
2. The award of moral damages is reduced to P20,000.00; and
3. The award of attorney's fee is reduced to P10,000.00.

SO ORDERED.[10]

Petitioner filed with this Court a petition for review on certiorari dated February 5,
2009. On March 16, 2009, this Court denied[11] the said petition. However, after
petitioner filed a motion for reconsideration[12] dated May 14, 2009, this Court
reinstated[13] the present petition and required the Office of the Solicitor General to
file its Comment.[14]

The grounds relied upon are the following:

A. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE

REVERSIBLE ERROR IN UPHOLDING PETITIONER'S
CONVICTION.

B. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE

REVERSIBLE ERROR IN AWARDING MORAL DAMAGES AND
ATTORNEY'S FEES TO PRIVATE COMPLAINANT.[15]

This Court finds the petition partly meritorious.

The first argument of the petitioner centers on the issue of credibility of the
witnesses and the weight of the evidence presented. Petitioner insists that between
the witness presented by the prosecution and the witnesses presented by the defense,
the latter should have been appreciated, because the lone testimony of the witness
for the prosecution was self-serving. He also puts into query the admissibility and
authenticity of some of the pieces of evidence presented by the prosecution.

Obviously, the first issue raised by petitioner is purely factual in nature. It is well
entrenched in this jurisdiction that factual findings of the trial court on the credibility
of witnesses and their testimonies are entitled to the highest respect and will not be
disturbed on appeal in the absence of any clear showing that it overlooked,
misunderstood or misapplied some facts or circumstances of weight and substance
that would have affected the result of the case.[16] This doctrine is premised on the
undisputed fact that, since the trial court had the best opportunity to observe the
demeanor of the witnesses while on the stand, it was in a position to discern whether
or not they were telling the truth.[17]Moreover, the testimony of a witness must be
considered and calibrated in its entirety and not by truncated portions thereof or
isolated passages therein.[18]

It is apparent in this present case that both the RTC and the CA accorded respect to
the findings of the MeTC; hence, this Court finds no reason to oppose the other two
courts in the absence of any clear and valid circumstance that would merit a review
of the MeTC's assessment as to the credibility of the witnesses and their
testimonies. Petitioner harps on his contention that the MeTC was wrong in not
finding the testimony of his own witness, Mary Susan Lim Taguinod, to be credible
enough. However, this Court finds the inconsistencies of said petitioner's witness to
be more than minor or trivial; thus, it does not, in any way, cast reasonable doubt. As
correctly pointed out by the MeTC:

Defense witness Mary Susan Lim Taguinod is wanting in credibility. Her

recollection of the past events is hazy as shown by her testimony on cross-
examination. While she stated in her affidavit that the Honda CRV's left
side view mirror hit our right side view mirror, causing our side view
mirror to fold (par. 4, Exhibit 3), she testified on cross-examination that
the right side view mirror of the Vitara did not fold and there was only a
slight dent or scratch. She initially testified that she does not recall having
submitted her written version of the incident but ultimately admitted
having executed an affidavit. Also, while the Affidavit stated that Mary
Susan Lim Taguinod personally appeared before the Notary Public, on
 cross-examination, she admitted that she did not, and what she only did
was to sign the Affidavit in Quezon City and give it to her husband. Thus,
her inaccurate recollection of the past incident, as shown by her testimony
on cross-examination, is in direct contrast with her Affidavit which
appears to be precise in its narration of the incident and its details. Such
Affidavit, therefore, deserves scant consideration as it was apparently
prepared and narrated by another.

Thus, the Court finds that the prosecution has proven its case against the
accused by proof beyond reasonable doubt.[19]

What really governs this particular case is that the prosecution was able to prove the
guilt of petitioner beyond reasonable doubt. The elements of the crime of malicious
mischief under Article 327 of the Revised Penal Code are:

(1) That the offender deliberately caused damage to the property

of another;
(2) That such act does not constitute arson or other crimes
involving destruction;
(3) That the act of damaging another's property be committed merely for
the sake of damaging it.[20]

In finding that all the above elements are present, the MeTC rightly ruled that:

The following were not disputed: that there was a collision between the
side view mirrors of the two (2) vehicles; that immediately thereafter, the
wife and the daughter of the complainant alighted from the CRV and
confronted the accused; and, the complainant, in view of the hostile
attitude of the accused, summoned his wife and daughter to enter the CRV
and while they were in the process of doing so, the accused moved and
accelerated his Vitara backward as if to hit them.
The incident involving the collision of the two side view mirrors is
proof enough to establish the existence of the element of hate, revenge
and other evil motive. Here, the accused entertained hate, revenge
and other evil motive because to his mind, he was wronged by the
complainant when the CRV overtook his Vitara while proceeding
toward the booth to pay their parking fee, as a consequence of which,
their side view mirrors collided. On the same occasion, the hood of his
Vitara was also pounded, and he was badmouthed by the complainant's
 wife and daughter when they alighted from the CRV to confront him for
the collision of the side view mirrors. These circumstances motivated the
accused to push upward the ramp complainant's CRV until it reached the
steel railing of the exit ramp. The pushing of the CRV by the Vitara is
corroborated by the Incident Report dated May 26, 2002 prepared by SO
Robert Cambre, Shift-In-Charge of the Power Plant Mall, as well as the
Police Report. x x x[21]

The CA also accurately observed that the elements of the crime of malicious
mischief are not wanting in this case, thus:

Contrary to the contention of the petitioner, the evidence for the

prosecution had proven beyond reasonable doubt the existence of the
foregoing elements. First, the hitting of the back portion of the CRV
by the petitioner was clearly deliberate as indicated by the evidence
on record. The version of the private complainant that the petitioner
chased him and that the Vitara pushed the CRV until it reached the
stairway railing was more believable than the petitioner's version that it
was private complainant's CRV which moved backward and deliberately
hit the Vitara considering the steepness or angle of the elevation of the P2
exit ramp. It would be too risky and dangerous for the private
complainant and his family to move the CRV backward when it would
be hard for him to see his direction as well as to control his speed in view
of the gravitational pull. Second, the act of damaging the rear bumper
of the CRV does not constitute arson or other crimes involving
destruction. Lastly, when the Vitara bumped the CRV, the petitioner
was just giving vent to his anger and hate as a result of a heated
encounter between him and the private complainant.
In sum, this Court finds that the evidence on record shows that the
prosecution had proven the guilt of the petitioner beyond reasonable
doubt of the crime of malicious mischief. This adjudication is but an
affirmation of the finding of guilt of the petitioner by both the lower
courts, the MeTC and the RTC.[22]

Petitioner likewise raises the issue that the CA was wrong in awarding moral
damages and attorney's fees to the private complainant claiming that during the trial,
the latter's entitlement to the said monetary reliefs was not substantiated. This Court
finds petitioner's claim, with regard to the award of moral damages, unmeritorious.
In Manuel v. People,[23] this Court tackled in substance the concept of the award of
moral damages, thus:

Moral damages include physical suffering, mental anguish, fright, serious

anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the proximate
result of the defendant's wrongful act or omission. An award for moral
damages requires the confluence of the following conditions: first, there
must be an injury, whether physical, mental or psychological, clearly
sustained by the claimant; second, there must be culpable act or
omission factually established; third, the wrongful act or omission of
the defendant is the proximate cause of the injury sustained by the
claimant; and fourth, the award of damages is predicated on any of
the cases stated in Article 2219 or Article 2220 of the Civil Code.[24]

It is true that the private complainant is entitled to the award of moral damages under
Article 2220[25] of the New Civil Code because the injury contemplated by the law
which merits the said award was clearly established. Private complainant testified
that he felt bad[26] and lost sleep.[27] The said testimony is substantial to prove the
moral injury suffered by the private complainant for it is only him who can
personally approximate the emotional suffering he experienced. For the court to
arrive upon a judicious approximation of emotional or moral injury, competent and
substantial proof of the suffering experienced must be laid before it.[28] The same
also applies with private complainant's claim that his wife felt dizzy after the incident
and had to be taken to the hospital.[29]

However, anent the award of attorney's fees, the same was not
established. In German Marine Agencies, Inc. v. NLRC,[30] this Court held that there
must always be a factual basis for the award of attorneys fees. This present case does
not contain any valid and factual reason for such award.

WHEREFORE, the petition for review dated February 5, 2009 of petitioner Robert
Taguinod is DENIED. The Decision of the Court of Appeals dated September 8,
2008 and its Resolution dated December 19, 2008 are hereby AFFIRMED with
the MODIFICATION that the attorneys fees are OMITTED.

SO ORDERED.

ADULTERY/CONCUBINAGE
MEYNARDO L. BELTRAN, petitioner, vs. PEOPLE OF THE
PHILIPPINES, and HON. JUDGE FLORENTINO TUAZON, JR., being the
Judge of the RTC, Branch 139, Makati City, respondents.

This petition for review, filed under Rule 45 of the 1997 Rules of Civil
Procedure, seeks to review and set aside the Order dated January 28, 1999
issued by Judge Florentino A. Tuazon, Jr. of the Regional Trial Court of
Makati City, Branch 139 in Special Civil Case No. 98-3056, entitled "Meynardo
Beltran vs. People of the Philippines and Hon. Judge Alden Cervantes of the
Metropolitan Trial Court of Makati city, Branch 61." The said Order denied
petitioners prayer for the issuance of a writ of preliminary injunction to enjoin
Judge Cervantes from proceeding with the trial of Criminal Case No. 236176,
a concubinage case against petitioner on the ground that the pending petition
for declaration of nullity of marriage filed by petitioner against his wife
constitutes a prejudicial question.

The antecedent facts of the case are undisputed:

Petitioner Meynardo Beltran and wife Charmaine E. Felix were married on

June 16, 1973 at the Immaculate Concepcion Parish Church in Cubao,
Quezon City. [1]

On February 7, 1997, after twenty-four years of marriage and four

children, petitioner filed a petition for nullity of marriage on the ground of
[2]

psychological incapacity under Article 36 of the Family Code before Branch 87

of the Regional Trial Court of Quezon City. The case was docketed as Civil
Case No. Q-97-30192. [3]

In her Answer to the said petition, petitioner's wife Charmaine Felix alleged
that it was petitioner who abandoned the conjugal home and lived with a
certain woman named Milagros Salting. Charmaine subsequently filed a
[4]

criminal complaint for concubinage under Article 334 of the Revised Penal
[5]

Code against petitioner and his paramour before the City Prosecutor's Office
of Makati who, in a Resolution dated September 16, 1997, found probable
cause and ordered the filing of an Information against them. The case,
[6]

docketed as Criminal Case No. 236176, was filed before the Metropolitan Trial
Court of Makati City, Branch 61.

On March 20, 1998, petitioner, in order to forestall the issuance of a warrant

for his arrest, filed a Motion to Defer Proceedings Including the Issuance of
the Warrant of Arrest in the criminal case. Petitioner argued that the pendency
of the civil case for declaration of nullity of his marriage posed a prejudicial
question to the determination of the criminal case. Judge Alden Vasquez
Cervantes denied the foregoing motion in the Order dated August 31, 1998.
[7]

Petitioner's motion for reconsideration of the said Order of denial was likewise
denied in an Order dated December 9, 1998.

In view of the denial of his motion to defer the proceedings in the concubinage
case, petitioner went to the Regional Trial Court of Makati City, Branch 139
on certiorari, questioning the Orders dated August 31, 1998 and December 9,
1998 issued by Judge Cervantes and praying for the issuance of a writ of
preliminary injunction. In an Order dated January 28, 1999, the Regional
[8] [9]

Trial Court of Makati denied the petition for certiorari. Said Court subsequently
issued another Order dated February 23, 1999, denying his motion for
[10]

reconsideration of the dismissal of his petition.

Undaunted, petitioner filed the instant petition for review.

Petitioner contends that the pendency of the petition for declaration of nullity
of his marriage based on psychological incapacity under Article 36 of the
Family Code is a prejudicial question that should merit the suspension of the
criminal case for concubinage filed against him by his wife.

Petitioner also contends that there is a possibility that two conflicting decisions
might result from the civil case for annulment of marriage and the criminal
case for concubinage. In the civil case, the trial court might declare the
marriage as valid by dismissing petitioner's complaint but in the criminal case,
the trial court might acquit petitioner because the evidence shows that his
marriage is void on ground of psychological incapacity. Petitioner submits that
the possible conflict of the courts' ruling regarding petitioner's marriage can be
avoided, if the criminal case will be suspended, until the court rules on the
validity of marriage; that if petitioner's marriage is declared void by reason of
psychological incapacity then by reason of the arguments submitted in the
subject petition, his marriage has never existed; and that, accordingly,
petitioner could not be convicted in the criminal case because he was never
before a married man.
Petitioner's contentions are untenable.

The rationale behind the principle of prejudicial question is to avoid two

conflicting decisions. It has two essential elements: (a) the civil action involves
an issue similar or intimately related to the issue raised in the criminal action;
and (b) the resolution of such issue determines whether or not the criminal
action may proceed. [11]

The pendency of the case for declaration of nullity of petitioner's marriage is

not a prejudicial question to the concubinage case. For a civil case to be
considered prejudicial to a criminal action as to cause the suspension of the
latter pending the final determination of the civil case, it must appear not only
that the said civil case involves the same facts upon which the criminal
prosecution would be based, but also that in the resolution of the issue or
issues raised in the aforesaid civil action, the guilt or innocence of the
accused would necessarily be determined.

Article 40 of the Family Code provides:

"The absolute nullity of a previous marriage may be invoked for

purposes of remarriage on the basis solely of a final judgment
declaring such previous marriage void."

In Domingo vs. Court of Appeals, this Court ruled that the import of said
[12]

provision is that for purposes of remarriage, the only legally acceptable basis
for declaring a previous marriage an absolute nullity is a final judgment
declaring such previous marriage void, whereas, for purposes of other than
remarriage, other evidence is acceptable. The pertinent portions of said
Decision read:

"xxx Undoubtedly, one can conceive of other instances where a

party might well invoke the absolute nullity of a previous marriage
for purposes other than remarriage, such as in case of an action
for liquidation, partition, distribution and separation of property
between the erstwhile spouses, as well as an action for the
custody and support of their common children and the delivery of
the latters' presumptive legitimes. In such cases, evidence needs
must be adduced, testimonial or documentary, to prove the
existence of grounds rendering such a previous marriage an
absolute nullity. These needs not be limited solely to an earlier
final judgment of a court declaring such previous marriage void."
So that in a case for concubinage, the accused, like the herein petitioner need
not present a final judgment declaring his marriage void for he can adduce
evidence in the criminal case of the nullity of his marriage other than proof of a
final judgment declaring his marriage void.

With regard to petitioner's argument that he could be acquitted of the charge

of concubinage should his marriage be declared null and void, suffice it to
state that even a subsequent pronouncement that his marriage is void from
the beginning is not a defense.

Analogous to this case is that of Landicho vs. Reloval cited in Donato vs.
[13]

Luna where this Court held that:

[14]

"xxx Assuming that the first marriage was null and void on the
ground alleged by petitioner, that fact would not be material to the
outcome of the criminal case. Parties to the marriage should not
be permitted to judge for themselves its nullity, for the same must
be submitted to the judgment of the competent courts and only
when the nullity of the marriage is so declared can it be held as
void, and so long as there is no such declaration the presumption
is that the marriage exists. Therefore, he who contracts a second
marriage before the judicial declaration of nullity of the first
marriage assumes the risk of being prosecuted for bigamy."

Thus, in the case at bar it must also be held that parties to the marriage
should not be permitted to judge for themselves its nullity, for the same must
be submitted to judgment of the competent courts and only when the nullity of
the marriage is so declared can it be held as void, and so long as there is no
such declaration the presumption is that the marriage exists for all intents and
purposes. Therefore, he who cohabits with a woman not his wife before the
judicial declaration of nullity of the marriage assumes the risk of being
prosecuted for concubinage. The lower court therefore, has not erred in
affirming the Orders of the judge of the Metropolitan Trial Court ruling that
pendency of a civil action for nullity of marriage does not pose a prejudicial
question in a criminal case for concubinage.

WHEREFORE, for lack of merit, the instant petition is DISMISSED.

SO ORDERED.
G.R. No. 96602 November 19, 1991
EDUARDO ARROYO, JR., petitioner,
vs.
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

G.R. No. 96715 November 19, 1991

RUBY VERA-NERI, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF
APPEALS, respondents.

In G.R. No. 96602, the Court summarized the facts of the case in this manner:

Dr. Jorge B. Neri filed a criminal complaint for adultery before the Regional Trial
Court (RTC), Branch 4, of Benguet against his wife, Ruby Vera Neri, and
Eduardo Arroyo committed on 2 November 1982 in the City of Baguio.

Both defendants pleaded not guilty and after trial, the RTC convicted petitioner
and Mrs. Ruby Vera Neri of adultery as defined under Article 333 of the Revised
Penal Code.

The essential facts of the case, as found by the trial court and the Court of
Appeals, are as follows:

... On November 2, 1982, accused, Mrs. Ruby Vera Neri in the company
of Mrs. Linda Sare and witness Jabunan, took the morning plane to
Baguio. Arriving at around 11:00 a.m., they dropped first at the house of
Mrs. Vera, mother of Ruby Vera at Crystal Cave, Baguio City then
proceeded to the Mines View Park Condominium of the Neri spouses. At
around 7:00 o' clock in the evening, accused Eduardo Arroyo arrived at
the Neris' condominium. Witness opened the door for Arroyo who entered,
he went down to and knocked at the master's bedroom where accused
Ruby Vera Neri and her companion Linda Sare were. On accused Ruby
Vera Neri's request, Linda Sare left the master's bedroom and went
upstairs to the sala leaving the two accused. About forty-five minutes later,
Arroyo Jr. came up and told Linda Sare that she could already come
down. Three of them, thereafter, went up to the sala then left the
condominium. (Court of Appeals Decision, p. 4) 1

Petitioner Arroyo filed a Motion for Reconsideration of the Court of Appeals' Decision. Petitioner Ruby Vera Neri also
moved for reconsideration or a new trial, contending that a pardon had been extended by her husband, private complain
ant Dr. Jorge B. Neri, and that her husband had later con traded marriage with another woman with whom he is presently
co-habiting. Both motions were denied by the Court of Appeals.
Petitioner Arroyo filed a Petition for Review (G.R. No. 96602) dated 8 February 1991 which this court denied in a
Resolution dated 24 April 1991.

In the meantime, petitioner Neri filed a separate Petition for Review (G.R. No. 96715) dated 19 February 1991.

Petitioner Arroyo filed a motion for reconsideration dated 1 May 1991 and a motion dated 23 May 1991 for consolidation o
G.R. No. 96602 with G.R. No. 96715.

On 3 June 1991, G.R. No. 96715 was consolidated with G.R No. 96602 in the Third Division in accordance with long-
stand ing practice of the Court.

On 29 July 1991, the Third Division deliberated upon the case which was then assigned to the ponente for the writing of
the Court's Resolution. 2

On 26 August 1991, Dr. Neri filed a manifestation, dated 14 May 1991, 3

praying that the case against
petitioners be dismissed as he had "tacitly consented" to his wife's infidelity. 4

Petitioners then filed their respective motions praying for the dismissal or for the
granting of new trial of the case claiming a basis for their motions Dr. Neri's
manifestation. The Solicitor General was then asked to comment on the
manifestation; hi comment was filed with this Court on 18 October 1991. 5

In October 1991, the consolidated cases were, again in accordance with long-standing practice of the Court, assigned to
the First Division upon the assignment of the ponente to that division. On 4 November 1991, the consolidated cases were
re deliberated upon by the members of the First Division who reached the same conclusion as the members of the Third
Division of the Court.

In his Motion for Reconsideration in G.R. No. 96602, petitioner Arroyo made the following contentions:

1. Dr. Neri's affidavit of desistance which states that the case was filed out of "pure misunderstanding' raises
questions as to the truth of the alleged admission made by Mrs. Neri;

2. The other prosecution witnesses' corroborative testimonies merely proved the existence of an illicit affair but
not that adultery was committed on the date and place in question;

3. Mrs. Neri's separate petition for review raised the issue of Dr. Neri's alleged subsequent marriage to another
woman which, if proven would preclude either of the spouses from filing charges of adultery or concubinage
against each other.

In G.R. No. 96715, petitioner Neri imputes the following errors to the Court of Appeals:
 1. The Honorable Court of Appeals gravely erred in not granting the motion for reconsideration and/or new trial
of the petitioner;

2. The Honorable Court of Appeals gravely erred by violating the constitutional rights of petitioner against self-
incrimination;

3. The Honorable Court of Appeals erred in failing to take into consideration the material inconsistencies of the
testimony of the complaining witness; and

4. The Honorable Court of Appeals gravely erred in discarding medical testimony as to the physical impossibility
of the petitioner to have committed the crime charged. 6

The issues in the consolidated cases may be summarized as follows:

1. Whether or not Dr. Neri's affidavit of desistance is sufficient to cast reasonable doubts on his credibility;

2. Whether or not Mrs. Neri's constitutional right against self-incrimination had been violated;

3. Whether or not Dr. Neri's alleged extra-marital affair precludes him from filing the criminal complaint on the
ground of pari delicto; and

4. Whether or not Dr. Neri's manifestation is sufficient basis for the granting of a new trial.

Deliberating on the:

1. Motion for Reconsideration in G.R. No. 96602, the Court believes that petitioner Arroyo has failed to show any ground
that would warrant the Court reversing its Resolution dated 24 April 1991; and on the

2. Petition for Review docketed as G.R. No. 96715, the Court considers that petitioner Ruby Vera Neri has failed to show
reversible error on the part of the Court of Appeals in issuing its Decision dated 21 May 1990 and its Resolution, dated 18
December 1990.

Petitioner Arroyo did not convince this Court in G.R. No. 96602 to dismiss the criminal case on the basis of Dr. Neri's
pardon. He, together with petitioner Neri, now cites the same affidavit in the effort to cast doubts on the credibility of Dr.
Neri's testimony given before the trial court. However, in the Court's Resolution, dated 24 April 1991, dismissing the
Petition for certiorari in G.R. No. 96602, the Court held that:
 It has been our constant holding that:

In certiorari proceedings under Rule 45, the findings of fact of the lower court as well its conclusions
on credibility of witnesses are generally not disturbed, the question before the court being limited to
questions of law (Rule 45, Sec. 2). Specifically, the conclusions of the trial court on the credibility of
witnesses are given considerable weight, since said court is in the best position to observe the
demeanor, conduct and attitude of witnesses at the trial. (Aguirre v. People, 155 SCRA 337 [1987];
emphasis supplied)

Thus, the claim that Dr. Neri's testimony is incredible is unavailing at this stage. Besides, the Court does not
believe that such an admission by an unfaithful wife was inherently improbable or impossible. 7 (Emphasis
supplied)

The Court, in the said Resolution of 24 April 1991, had likewise ruled on the claim that Mrs. Neri's constitutional right
against self-incrimination had been disregarded when her admission to her husband in the privacy of their conjugal home
that she had indeed lain with petitioner Arroyo was taken into account by the trial court, to wit:

Dr. Jorge Neri was also presented as a witness and he testified that sometime in December of 1982, he
surprised his wife while she was looking at some photographs in their bedroom in their house in Dasmariñas
Village, Makati. Accused Ruby Vera Neri then turned pale and started for the door. Struck by this unusual
behavior, Dr. Neri started looking around the dressing room and he came upon a Kodak envelope with film
negatives inside. He took the negatives for printing and a few days later, armed with the photographs which
showed his wife in intimate bedroom poses with another man, confronted Ruby Vera Neri. It was at this point
that Ruby Vera Neri admitted to her husband that Eduardo Arroyo was her lover and that they went to bed in
Baguio on 2 and 3 November 1982.

xxx xxx xxx

As to the constitutional issue, we held in Gamboa v. Cruz (162 SCRA 642 [1988]) that:

The right to counsel attaches upon the start of an investigation, i.e., when the investigating
officer starts to ask questions to elicit information and/or confession or admissions from respondent-
accused.(emphasis supplied)

In the present case, Dr. Neri was not a peace officer nor an investigating officer conducting a custodial
interrogation, hence, petitioner cannot now claim that Mrs. Neri's admission should have been rejected.

In the case of Aballe v. People (183 SCRA 196 [1990]), the Court held:
 The declaration of an accused expressly acknowledging his guilt of the offense may be given in
evidence against him.

The rule is that any person, otherwise competent as witness, who heard the confession, is competent
to testify as to substance of what he heard if he heard and understood all of it. An oral confession
need not be repeated verbatim, but in such case it must be given in its substance.

Compliance with the constitutional procedures on custodial investigation is not applicable to a

spontaneous statement, not elicited through questioning, but given in an ordinary manner, whereby
the accused orally admitted having slain the victim.

We also note that the husband is not precluded under the Rules of Court from testifying against his wife in
criminal cases for a crime committed by one against the other (Section 22, Rule 129, Revised Rules of Court).

In short, the trial court and the Court of Appeals did not err in admitting Dr. Neri's testimony as he was a
competent witness. Neither was said testimony rendered inadmissible by the constitutional provision on the
right to remain silent and the right to counsel of a "person under investigation for the commission of an offense."

Petitioner next claims that the trial court erred in convicting him on the basis of the failure of Ruby Vera Neri to
take the witness stand. In People v. Gargoles (83 SCRA 282 [1978]), it was held that:

We have held that an accused has the right to decline to testify at the trial without having any
inference of guilt drawn from his failure to go on the witness stand. Thus, a verdict of conviction on
the basis, solely or mainly, of the failure or refusal of the accused to take the witness stand to deny
the charges against him is a judicial heresy which cannot be countenanced. Invariably, any such
verdict deserves to be reserved.

Such situation does not obtain, however, in the case at bar. For while the trial court took note of the
failure of defendant to take the witness stand to deny the charge against him, the same was not the
main reason, much less the sole basis, of the trial court in holding, as credible the testimony of
complainant, and in ultimately concluding that the crime of rape had been committed by the accused-
appellant. (Emphasis supplied)

Examination of the trial court decision here shows that said failure to testify was not the sole nor the main basis
of the conviction. Aside from accused's failure to deny Dr. Neri's testimony, the trial court also considered the
testimonies of Dr. Neri and other prosecution witnesses and the photographs of the two accused in intimate
poses (and three of which showed them half naked in bed). 8 (Emphasis supplied)

We turn to the contention that pari-delicto "is a valid defense to a prosecution for adultery and concubinage and that in
such a case "it would be only a hypocritical pretense for such spouse to appear in court as the offended spouse." 9
In the first place, the case cited does not support petitioner Neri's position. In the Guinucud case, the Court found that the
complaining husband, by entering into an agreement with his wife that each of them were to live separately and could
marry other persons and by filing complaint only about a year after discovering his wife's infidelity, had "consented to, and
acquiesced in, the adulterous relations existing between the accused, and he is, therefore, not authorized by law to
institute the criminal proceedings." In fine, the Guinucud case refers not to the notion of pari delicto but to consent as a
bar to the institution of the criminal proceedings. In the present case, no such acquiescence can be implied: the accused
did not enter into any agreement with Dr. Neri allowing each other to marry or cohabit with other persons; and Dr. Neri
promptly filed his complaint after discovering the illicit affair.

Moreover, the concept of pari delicto is not found in the Revised Penal Code, but only in Article 1411 of the Civil Code.
The Court notes that Article 1411 of the Civil Code relates only to contracts with illegal consideration. 10
The case
at bar does not involve any illegal contract which either of the contracting parties
is now seeking to enforce.

Petitioners also contend that Dr. Neri's manifestation which reads:

2. Even before I filed the complaint in court and before the pardon that I
had extended to my wife and her co-accused, I was in reality aware of
what was going on between and therefore, tacitly consented to my wife's
infidelity, ...

should result in the dismissal of the case or, at the very least, in the remand of
the case for new trial claiming that in People v. Camara 11 it was held that "the
consent of the spouse is valid defense to a prosecution for adultery and/or
concubinage." 12

Dr. Neri's manifestation amounts in effect to an attempted recantation of

testimony given by him before the trial court. It is settled that not all recantations
by witnesses should result in the granting of a new trial. 13 In People v. Follantes
and Jacinto, 14 it was held that:

... [R]ecantation by witnesses called on behalf of the prosecution does not

necessarily entitle defendant to a new trial. The question whether a new
trial shall be granted on this ground depends on all the circumstances of
the case, including the testimony of the witnesses submitted on the motion
for the new trial. Moreover, recanting testimony is exceedingly unreliable,
and it is the duty of the court to deny a new trial where it is not satisfied
that such testimony is true. ... 15 (Emphasis supplied)

Succinctly put, the Court doubts the truthfulness and reliability of Dr. Neri's belated recantation. Dr. Neri had two (2)
previous occasions to make the claim contained in his manifestation: first, in the compromise agreement 16
dated 16
February 1989 submitted before the Regional Trial Court of Makati, Branch 149
in relation to Civil Case No. M-001; and second, his affidavit 17 dated 23
November 1988 submitted to the Court of Appeals. Instead, however, these two
(2) documents merely stated that Dr. Neri had pardoned petitioners 18 and the
complaint was filed out of "pure misunderstanding" 19 without hinting that Dr. Neri
knew of the adulterous relations. It appears to the Court that Dr. Neri's
manifestation was so worded as to attempt to cure the deficiency noted by the
Court in the two (2) previous documents in the disposition of the petition in G.R.
No. 96602:

Petitioner will find no solace in the cases he cites, in support of his prayer
to dismiss the case based on Dr. Neri's pardon. People v. Camara (100
Phil. 1098 (1957) is inapplicable as the affidavit there expressly stated that
the wife had consented to the illicit relationship. In Gomez v. Intermediate
Appellate Court (135 SCRA 620 [1985]) a case involving estafa, the
criminal case was dismissed as the affidavit of desistance specifically
stated that the accused had nothing to do whatsoever with the crime
charged. In the present case, the pardon did not state that Dr. Neri had
consented to the illicit relationship petitioner and Mrs. Neri. Neither did it
state that the case was filed against the wrong parties. 20

Moreover, while the manifestation is dated 14 May 1991, which incidentally is also the date of petitioner Arroyo's motion
for reconsideration, it was subscribed to only on 23 August 1991.

Petitioner Neri also contends that Dr. Neri's affidavit of desistance and the compromise agreement operate as a pardon
meriting a new trial. The Court notes that the cases of People v. Camara (supra) and Gomez v. Intermediate Appellate
Court (supra) were the very same cases which petitioner Arroyo cited in G.R. No. 96602 which the Court has already held
to be inapplicable in the present case.

The rule on pardon is found in Article 344 of the Revised Penal Code which provides:

ART. 344. ... — The crime of adultery and concubinage shall not be prosecuted except upon a complaint filed
by the offended spouse.

The offended party cannot institute criminal prosecution without including both parties, if they are both alive, nor
in any case, if he shall have consented or pardoned the offenders.

xxx xxx xxx

While there is a conceptual difference between consent and pardon in the sense that consent is granted prior to the
adulterous act while pardon is given after the illicit affair, 21
nevertheless, for either consent or
pardon to benefit the accused, it must be given prior to the filing of a criminal
complaint. 22 In the present case, the affidavit of desistance was executed only
on 23 November 1988 while the compromise agreement was executed only on
16 February 1989, after the trial court had already rendered its decision dated 17
December 1987 finding petitioners guilty beyond reasonable doubt. Dr. Neri's
manifestation is both dated and signed after issuance of our Resolution in G.R.
No. 96602 on 24 April 1991.

It should also be noted that while Article 344 of the Revise Penal Code provides
that the crime of adultery cannot be prosecuted without the offended spouse's
complaint, once the complaint has been filed, the control of the case passes to
the public prosecutor. 23 Enforcement of our law on adultery is not exclusively,
nor even principally, a matter of vindication of the private honor of the offended
spouse; much less is it a matter merely of personal or social hypocrisy. Such
enforcement relates, more importantly, to protection of the basic social
institutions of marriage and the family in the preservation of which the State has
the strongest interest; the public policy here involved is of the most fundamental
kind. In Article II, Section 12 of the Constitution there is set forth the following
basic state policy:

The State recognizes the sanctity of family life and shall protect find
strengthen the family as a basic autonomous social institution ...

The same sentiment has been expressed in the Family Code o the Philippines in
Article 149:

The family, being the foundation of the ration, is a basic social institution
which public policy cherishes and protects. Consequently, family relations
are governed by law and no custom, practice or agreement destructive of
the family shall be recognized or given effect.

In U.S. v. Topiño, 24 the Court held that:

... The husband being the head of the family and the only person who
could institute the prosecution and control its effects, it is quite clear that
the principal object in penalizing the offense by the state was to protect
the purity of the family and the honor of the husband, but now the conduct
of the prosecution, after it is once commenced by the husband, and the
enforcement of the penalties imposed is also a matter of public policy in
which the Government is vitally interested to the extent of preserving the
public peace and providing for the general welfare of the community. ... 25
(Emphasis supplied)

As to the claim that it was impossible for petitioner Neri to engage in sexual intercourse a month after her ceasarian
operation, the Court agrees with the Solicitor General that this is a question of fact which cannot be raised at this stage. In
any case, we find no reason to overturn the Court of Appeals' finding that "a woman who has the staying power to volley
tennis bags for fifteen minutes at the [John Hay] tennis court would not be incapable of doing the sexual act" which ball
play was followed, as noted by the Court of Appeals "by a picture taking of both accused in different intimate poses." 26
 ACCORDINGLY, the Motion for Reconsideration in G.R. No. 96602 is hereby DENIED for lack of merit and this denial is
FINAL. The Petition for Review in G.R. No. 96715 is hereby similarly DENIED for lack of merit. Costs against petitioners.

Let a copy of this Resolution and of Dr. Neri's Manifestation and Motion subscribed on 23 August 1991 be forwarded to
the Department of Justice for inquiry into the possible liability of Dr. Neri for perjury.

Narvasa (Chairman), Cruz, Griño-Aquino and Medialdea, JJ., concur.

ACTS OF LASCIVIOUSNESS

JAREN TIBONG y CULLA-AG, G.R. No. 191000

Petitioner,
Present:

CARPIO MORALES, Chairperson,

- versus - BERSAMIN,
DEL CASTILLO,*
VILLARAMA, JR., and
SERENO, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. September 15, 2010
Jaren Tibong y Culla-ag (petitioner) was indicted for attempted rape allegedly
committed as follows:

That on or about the 14th [sic][1] day of April 2006, at Betag,

Municipality of La Trinidad, Province of Benguet, Philippines and within
the jurisdiction of this Honorable Court, the above-named
accused, with lewd designs, did then and there willfully, unlawfully and
feloniously try and attempt to rape [AAA[2]] while the latter was sleeping
and therefore
unconscious, byremoving the latters pajama and panty, and thereafter hol
ding her vagina and fondling her breasts, and endeavor to have sexual int
ercourse with her against her will and consent, thereby commencing in
the execution of the crime of rape but did not perform all the acts of
execution which should have produced the felony as a consequence by
reason that the offended party was awakened, defended herself and
escaped from him, which cause is not his spontaneous desistance, to the
damage and prejudice of the said [AAA].

That the accused and [AAA] are relatives within the 3 rd civil
degree.[3] (Underscoring supplied)
 On April 17, 2006, then 18-year-old AAA, a college student at the Benguet
State University, was at the house owned by petitioners parents at Betag, La
Trinidad, Benguet where she was boarding. She occupied a room at the 3-bedroom
basement.[4] One of the rooms was occupied by petitioner and his wife. The third
room was unoccupied.

From the account of AAA, the following transpired:

Days before the incident, petitioners wife left the house after a
misunderstanding with him. Before midnight of April 17,[5] 2006, petitioner arrived
and repaired to the sofa at the basements living room. AAA thereafter fell asleep but
was awakened at about midnight as she felt someone was undressing [her].[6] She
saw petitioner, her first cousin (her father and his mother being siblings), wearing
only briefs and crouching over [her], on top of [her] bed, and pulling down her
pajamas and panties.[7] She asked appellant why he was doing that, to which he
replied that [they] will have sexual intercourse and keep it a secret. She retorted if
he was not sickened about it, to which he replied that she need not be bothered about
their being cousins.[8]

Continuing, AAA narrated:

She resisted and pulled up her pajamas and panties, but appellant pulled them
down to her knees and mashed her breasts. He soon told her that they would watch
a bold movie and apply what they watched.[9] She struggled to free herself, but he
forced her to lie down. She tried to shout for help, but he covered her mouth.

AAA further recounted:

Petitioner thereafter went towards the compact disc (CD) player which was in
front of the door of [her] room to insert/play a CD. Finding the opportunity to escape,
she grabbed her cell phone and bag which were placed on top of a table at her
bedside, ran out of the house after appellant failed to restrain her, headed towards
the highway, took a taxicab and proceeded to the house of her elder brother
BBB[10] in Bahong, La Trinidad where she sought refuge.
 The following morning (April 18), AAA, accompanied by BBB and an uncle,
reported the incident to the La Trinidad Police Station where P03 Chona P. Bugnay
took down her sworn complaint.[11]

The presentation of prosecution witnesses BBB and P03 Chona Bugnay was
dispensed with, the defense having admitted the corroborative nature of their
respective testimonies.

Upon the other hand, petitioner whose wife, as earlier reflected, left the house
days before the incident after a quarrel with him, denied the accusation. He claimed
that in the afternoon of April 17, 2006 until past 1:00 A.M. of the following day
(April 18), he was drinking liquor with his friend Benny Malao (Malao) in three
places first at his (petitioners) fathers house, then at Maryland, and finally at Malaos
boarding house, all located at La Trinidad; and on returning home drunk early
morning of April 18, he immediately went to sleep at the living room adjacent to
AAAs room.[12]

Branch 62 of the Regional Trial Court (RTC) of La Trinidad, Benguet found

petitioner guilty of attempted rape, as charged, disposing as follows:

WHEREFORE, the accused must be, as he is hereby found guilty

beyond reasonable doubt of the crime of attempted rape.

Applying the Indeterminate Sentence Law, there being no

modifying circumstance established, he is hereby imposed a penalty of
imprisonment ranging from three (3) years and four (4) months of prision
correccional medium, as minimum, to eight (8) years and six (6) months
of prision mayor medium, as maximum.

The accused is hereby ordered to pay the private complainant moral

damages in the amount of Twenty Five Thousand Pesos (P25,000.00) and
to pay the costs.

SO ORDERED.[13]
 The Court of Appeals affirmed petitioners conviction, hence, the present
petition for review on certiorari, contending that the prosecution failed to prove
petitioners guilt beyond reasonable doubt.

Petitioner cites Perez v. Court of Appeals[14] which held:

Petitioners acts of lying on top of the complainant, embracing and kissing

her, mashing her breasts, inserting his hand inside her panty and touching
her sexual organ, while admittedly obscene and detestable acts, do not
constitute attempted rape absent any showing that
petitioner actually commenced to force his penis into the complainan
ts sexual organ. Rather, these acts constitute acts of lasciviousness. x x
x.[15] (Emphasis and underscoring supplied)

Insisting that there was no attempted rape, petitioner argues that AAA merely
testified that he told her that they would have sexual intercourse; and that this is not
equivalent to carnal knowledge, or even an attempt to have carnal knowledge, since
there is no showing that he had commenced or attempted to insert his penis into her
sexual organ before she fled.[16]

Under Article 6 of the Revised Penal Code, there is an attempt to commit a

felony when the offender commences its commission directly by overt acts but does
not perform all the acts of execution which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance.

Article 336 of the Revised Penal Code provides:

Any person who shall commit any act of lasciviousness upon the
other person of either sex, under any of the circumstances mentioned in
the preceding article [referring to Article 335 on rape], shall be punished
by prision correccional.

While rape and acts of lasciviousness have the same nature, they are
fundamentally
different. For in rape, there is the intent to lie with a woman, whereas in acts of
lasciviousness, this element is absent.[17]

Ironically, during the defenses cross examination of AAA, the existence of

petitioners overt acts showing his intent to lie with her was put to light. Consider the
following testimony of AAA on cross examination:

Atty. Santos [defense counsel, to witness AAA]:

xxxx

Q He did not try to insert his penis into your vagina, Madam
Witness?
A He was trying to force it on me but I covered my vagina.

Q Is it not a fact that when he put down your pajama and underwear down
to your knee, he was still wearing his brief?
A Sir, his brief was already lowered down to the middle of his upper
leg (witness was illustrating by touching the middle of her upper
legs).

Q When he tried to lie on top of you, you wrestled and you tried to
run out from your room. Is that correct?
A Yes, sir.

xxxx

Q And that was the time that when he opened the CD player, you took
your cell phone and ran out from your room?
A Yes, sir.

Q So in other words, Mr. Jaren Tibong had no chance of inserting his

penis in your vagina because you ran out of your room
already. Correct?
A Yes, sir.[18] (Emphasis and underscoring supplied)

Petitioners acts, as narrated by AAA, far from being mere obscene or lewd,
indisputably show that he intended to have, and was bent on consummating, carnal
knowledge of AAA.
WHEREFORE, the petition is DENIED. The assailed Court of Appeals
Decision[19] of October 12, 2009 in CA-G.R. CR No. 31644 is AFFIRMED. Costs
against petitioner.

SO ORDERED.

QUALIFIED SEDUCTION

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AMADO SANDRIAS

JAVIER, accused-appellant.
Once again, we are given the heavy task of reviewing a judgment of conviction imposing the
death penalty in a crime so dastardly and repulsive incestuous rape. Considering that a persons life
is at stake, we are burdened to come up with an error-free judgment amidst our frailties and
imperfections, lest our conscience be bothered for rendering an irrevocable and irreversible error.
In the case under review, three separate complaints were filed against accused-appellant
charging him with rape committed on October 20, 1994 and sometime on November, 1994 and
December, 1994, against his daughter, Julia Ratunil Javier. The first complaint charged:

CRIMINAL CASE NO. 95-136

The undersigned complainant, who is a minor of 16 years of age, single, herein

assisted by her grandmother, Mrs. Librada Ratunil, after being duly sworn to law,
hereby accuses her father AMADO SANDRIAS JAVIER, who is detained under
Illegal Possession of Firearm charge, of the crime of RAPE, committed as follows:

That in or about October 20, 1994, at more or less 1 oclock in the afternoon, at Zone
5, Baikingon, Cagayan de Oro City, Philippines, and within the jurisdiction of the
Honorable Court, the above-named accused, as father of herein complainant, by
means of force, violence, and intimidation, while inside our dwelling house at the
afore-mentioned place, and when said accused and herein aggrieved party were alone
in their said dwelling house as the undersigned aggrieved-party-complainants mother
was out doing laundry work as a laundry woman, held and pulled undersigned
complainant to accuseds bedroom in said dwelling house and as the undersigned
refused, wrestled and shouted for help, accused boxed and hit undersigneds stomach
to unconsciousness and did then and there, against complainants will and consent,
wilfully, unlawfully and feloniously have carnal knowledge of the undersigned who
noticed upon regaining consciousness that she was already stripped of her pairs of
panty and pants and feeling extreme pain of her private parts, and then and there
accused threatened the undersigned of death if undersigned complainant would reveal
the incident to undersigneds mother or to anybody else, thus, resulting to undersigneds
pregnancy as examined and found out by the doctor, all against the will and consent of
the undersigned, to her great damage and prejudice.

Contrary to and in Violation of Article 335 of the Revised Penal Code, as amended by
Section 11 of Republic Act No. 7659.

(p. 7, Rollo.)

The two other complaints were identically worded as the above complaint except that they
respectively charged that the rape therein alleged occurred in November and December 1994.
Upon arraignment, accused-appellant pleaded not guilty. Thereafter, the cases were jointly
tried.
As principal witness for the prosecution, Julia recounted her harrowing experience at the
hands of her father. Her testimony was capsulized by the trial court in this wise:

At about 1:00 oclock in the afternoon of October 20, 1994, while her mother was out
doing some laundry for neighbors, thus she and the accused were left alone in their
house at Zone 5, Baikingon, Cagayan de Oro City, and while she was at the porch of
their house, accused called for her to the conjugal room and while thereat grabbed her
right hand. She shouted for help but nobody came to her rescue from neighbors, the
nearest of whom was about 60 meters away. Accused continued his sexual assault on
her by boxing her abdomen resulting to her unconsciousness. When she regained
consciousness, she felt pain in her vagina which was bleeding and wet with some
sticky fluids. She cried but was warned by the accused that should she make an outcry
and report the incident to her mother, he will kill her. Out of fear, and knowing that
accused has a handgun, she held her outcry.

Parenthetically, the accused was also charged of Illegal Possession of Firearm in

Criminal Case No. 95-141 committed on March 20, 1995 also raffled to this branch,
to which he pleaded guilty and was sentenced accordingly on May 8, 1996.

Complainant further declared that applying practically the same force and intimidation
and about the same time (1:00 P.M.) and again while complainants mother was out
doing some laundry for neighbors, accused repeated the sexual assault on her on
November 18, 1994 and December 19, 1994.

Complainant testifying further declared that she has three older brothers and a
sister. That she is the youngest and the only one who lived with her parents. Her three
older brothers lived in Manila, Cotabato and the last one with her grandmother, Vda.
De Librada Ratunil.
Out of fear, she kept the incident to herself until she felt some unusual pain in her
body and when she can no longer manage said situation, she finally broke her silence
by going to her grandmother, Librada Vda. De Ratunil at 165 Capistrano Street,
Cagayan de Oro City in the evening of March 15, 1995. She was asked by her
grandmother about the author of her pregnancy, she answered that it was her father,
the herein accused.

Complainant on cross examination, admitted having a sweetheart and were engaged

for one year already prior to the incident. Her sweetheart, whom she identified as
Michael Apduhan pays her a visit at times but on Saturday afternoon only with her
mother around. Consequently, there was no occasion that she met her sweetheart
alone for either her mother is around in the house or went out with her sweetheart with
her barkada during disco dances on the eve of fiestas.

(pp. 24-26, Rollo.)

Julias grandmother, Librada Vda. De Ratunil, corroborated Julias story and narrated that on
March 15, 1995, Julia arrived at her house and upon knowing the things that happened to her
granddaughter, she wrote Julias mother, Emma, her daughter, and informed her of the matter. They
decided to report the matter to the police authorities at the Bulua Police Station in Cagayan de Oro
City where they executed the complaints (tsn, October 11, 1995, pp. 19-20).
Dr. Tammy Uy of the National Bureau of Investigation, Region 10, examined the victim and
made the following findings:

GENITAL EXAMINATION

Pubic hairs, fully grown, abundant. Labiae mejora and minor, both gaping. Fourchete,
moderately lax. Vestibular mucusae, violaceous and with engorded veins. Hymen,
tall, thick, fleshy, with old healed complete laceration at 9:00 oclock position, and an
old healed deep incomplete lacerations at 6:00 non-coaptable. Hymenal orifice,
originally annular, admits a glass tube of 2.5 cms. Diameter with slight
resistance. Vaginal walls, lax; rugosities obliterated. Uterus, enlarged with palpable
fundus and with a fundic height of 12 cms. (between the umbilicus and sumphysis
pubs). Cervix, soft, non-tender, enlarged, bluish-purpole. Light yellow muccoid
cervical discharge is noted.

CONCLUSION

1. Genital findings present, compatible with sexual intercourse with man on or about
20 October 1994 as alleged and subsequently thereafter.
2. Probable signs of pregnancy present, consistent with the early part of the second
trimester of pregnancy,

REMARKS:

Pregnancy Test gave + sign.

(pp. 23-24, Rollo.)

Meanwhile, the Department of Social Welfare and Development (DSWD) took custody of
Julia who gave birth to a baby boy on August 22, 1995 but whom she would like to put up for
adoption because he is a reminder of what her father did to her (tsn, Oct. 11, 1995, pp. 14-15).
Likewise, Julia was examined by DSWD Psychologist Ma. Lavern Labitad Jabien who found
her to be suffering from inferiority complex and exhibiting feelings of inadequacy and
insecurity. Julia was also said to lack security in human relations because of her experience and
the brutal treatment she received from her father, and mentally deficient as a result of poor
parenting or parental deprivation (tsn, October 18, 1995, pp. 7-9).
Accused-appellant vehemently disputed the charges against him, alleging that the same were
engineered by his mother-in-law, Librada Vda. De Ratunil, who despises him for being a
drunkard. He further declared that Julia is an errant daughter, who after reaching the age of 14,
started attending dances and acquired several sweethearts but only one of them paid visits at their
house. Thus, he beat her, especially when he discovered her to be pregnant (tsn, December 6, 1995,
pp. 14-18, 26).
Accused-appellant claimed that from October to November, 1994, he was working as a mason
in the house of Bernabe Granada which is about 200 meters from his house. Among his co-workers
were a certain Bermon, Dayata, and Dudong Granada, the son of Bernabe Granada. His working
hours were from 6 A.M. to 6 P.M. Likewise, from December 1994 to February 1995, he said he
was working at Carlito Caudors house, also spending the same working hours therein. At the same
time, he was also a member of the Barangay Tanod of Baikingon (tsn, supra, pp. 9-13).
To bolster accused-appellants contention that he was working at the time the rape incidents
happened, the defense presented his employers, Bernabe Granada and Carlito Caudor. Granada
testified that in October 1994, he engaged accused-appellant for masonry work in the lay-outing
of his house. Accused-appellant worked from 8 to 11:30 oclock in the morning and from 1 to 4
oclock in the afternoon and oftentimes took his lunch at the workplace. His house is located in
Zone 6 while that of accused-appellant is in Zone 5. Accused-appellant stopped working for
Granada on January 20, 1995 (tsn, March 13, 1996, pp. 4-5). On the other hand, Caudor testified
that he had known accused-appellant for 15 years and that for the months of October and
November, accused-appellant worked in Caudors house from 8 to 11:30 oclock in the morning and
from 1 to 4:30 oclock in the afternoon. Among his co-workers were Matias Remerane, Julieto
Dayata, and Danilo Caudor (tsn, January 31, 1996, pp. 3-6).
After trial, on June 8, 1996, the Regional Trial Court of the 10th Judicial Region, Branch 21,
in Cagayan de Oro City, presided over by the Honorable Arcadio D. Fabria rendered judgment
finding accused-appellant Amado Sandrias Javier guilty of Rape under Criminal Case No. 95-136
and of Qualified Seduction in Criminal Cases No. 95-147 and 95-148, and disposed as follows:

WHEREFORE, the Court hereby finds the accused guilty beyond reasonable doubt of
the crime of RAPE in Criminal Case No. 95-136 defined and penalized by Art. 335 of
the Revised Penal Code as amended by R.A. No. 7659, and hereby sentences him to
death and in Criminal Cases Nos. 95-147 and 95-148 finds him guilty of Qualified
Seduction under Article 337 of Paragraph 2 of the Revised Penal Code and sentences
him to an indeterminate penalty in each case of (5) years, (5) months and (11) days
of Prision Correccional as minimum to (6) years, (8) Months and 20 days of Prision
Mayor as maximum and to indemnify the offended party the sum of P50,000 as moral
and exemplary damages, to support the child until he shall have reached the age of
majority and to pay the costs.

The accused is further ordered to recognize and acknowledge the said child as his son.

SO ORDERED.

(p. 35, Rollo.)

Accused-appellant assails said judgment and anchors his appeal on the general and catch-all
argument that the trial court erred in convicting him despite the failure of the prosecution to prove
his guilt beyond reasonable doubt.
Accused-appellant questions the credibility of complainant mainly because she has a
sweetheart and used to attend discos and benefit dances which lasted until midnight. He vainly
tries to portray a picture of complainant as an unchaste and impure woman who was impregnated
by her sweetheart at the tender age of 16. However, this Court believes that vilifying aspersion
need not necessarily cast doubt on complainants credibility nor would it negate conclusively the
existence of rape. It should be pointed out that the moral character of the victim is immaterial in
the prosecution and conviction of the accused.The Court has ruled that even a prostitute can be the
victim of rape (People vs. Edualino, 271 SCRA 189 [1997]) for she can still refuse a mans lustful
advances (People vs. Iglanes, 272 SCRA 113 [1997]). In the case at bench, complainant is
certainly not a prostitute. She even clarified on cross-examination that she was always in the
company of friends whenever she attended discos and fiesta celebrations and that she never went
out alone with her sweetheart. She likewise stressed that whenever her sweetheart visited her at
their house on Saturdays, her mother and father were always present (tsn, October 4, 1995, pp. 5-
11). Indeed, accused-appellants self-serving and unsubstantiated slur that his daughter is a woman
of loose morals betrays his desperation to exculpate himself from liability. Against complainants
positive testimony, accused-appellants self-exculpatory aspersion that complainant may have had
sexual intercourse with other males simply cannot prevail.
Likewise, accused-appellants contention that the filing of the case was instigated by
complainants grandmother fails to sway the Court from lending full credence to the testimony of
complainant who remained steadfast throughout her direct and cross-examination. Even in these
trying times of poverty and greed, it is difficult to believe that the grandparents of a child would
allow her to be subjected to the ordeal and embarrassment of a public trial and to expose her private
parts to examination just because they do not approve of accused-appellant as their daughters
husband (People vs. Perez, 270 SCRA 526 [1997]). On the contrary, accused-appellant admitted
that his relationship with complainants grandmother is not strained, as in fact, his mother-in-law
used to extend assistance to his family (tsn, December 6, 1995, pp. 23-24).
Accused-appellant also claims that complainant was merely impelled by revenge in filing the
case as he used to scold and beat her for her disobedience, especially after coming to know of her
pregnancy.It is highly inconceivable that complainant would impute a crime so serious as rape
against her own father, if this were not the plain truth. The Court has oft repeated that it takes a
certain amount of psychological depravity for a young woman to concoct a story which would put
her own father to jail for the rest of his remaining life and drag the rest of the family including
herself to a lifetime of shame (People vs. Sangil, Sr., 276 SCRA 532 [1997]; People vs.
Fuensalida, 281 SCRA 452 [1997]).
Complainant cannot be faulted for her delay in reporting the three instances of rape. Delay in
reporting rape does not undermine the charge where it is grounded on the accuseds death threats
(People vs. Talabac, 256 SCRA 441 [1996]; People vs. Gecomo, 254 SCRA 82 [1996]).
Complainant satisfactorily explained her hesitation in reporting the incidents, thus:
Prosecutor Tagarda
xxxx
Q: And you said you cried, what happened?
A: I kept on crying and he came to me and admonished me that he will kill me if I will report the matter
to my mother.
Q: And when he warned you that he will kill you if you report the matter to your mother, what did you
feel?
A: I was not able to reveal to my mother because I know that he has pistola in his possession.
xxxx
(tsn, September 27, 1995, p. 10)
More importantly, the aggressor was none other than her father with whom she lived. Thus,
not much explanation is needed to understand the prolonged silence of the victim.
Accused-appellants defense of alibi was properly rejected by the trial court. He insisted that
at the time the rape incidents happened, he was in his working place. However, considering that
the place where he supposedly was is merely 200 meters from his own house (tsn, December 6,
1995; p. 10; January 31, 1996, p. 8), a distance which could be covered by a 5-minute leisurely
walk, this defense cannot prevail over complainants positive identification of accused-appellant
(People vs. Escober, 281 SCRA 498 [1997]; People vs. Parrazo, 272 SCRA 512 [1997]).
Courts have always looked upon the defense of alibi with suspicion and have invariably
received it with caution not only because it is inherently weak and unreliable but also because it is
easily fabricated. For alibi to serve as basis for acquittal, it must be established with clear and
convincing evidence. The requisites of time and place must be strictly met (People vs. Caada, 253
SCRA 277 [1996]).Where the accused fails to convincingly demonstrate that it was physically
impossible for him to have been at the scene of the crime at the time of its commission, as in this
case, the defense of alibi must be rejected.
The trial court correctly convicted accused-appellant of the crime of rape in Criminal Case
No. 95-136. However, we cannot agree with its judgment insofar as Criminal Cases No. 95-147
and 95-148 are concerned.
The trial court concluded:

While the court is convinced that there was sufficient force and intimidation employed
by the accused in committing sexual intercourse on complainant in the October 20,
1994 incident, it entertains some doubts about the degree of force and intimidation as
would warrant a finding of rape for the sexual intercourses committed on November
18 and December 19, 1994.

(p. 34, Rollo.)

The trial court proceeded to convict accused-appellant merely of qualified seduction under
Article 337 of the Revised Penal Code in the aforementioned cases.
A careful perusal of the record would disclose that accused-appellant employed practically
the same force and intimidation in committing the crime on October 20, 1994, November 18, 1994
and December 19, 1994. The commission of rape with force and intimidation under Article 335
(par. 2) of the Revised Penal Code is clearly established by the testimony of complainant herself,
thus:
Prosecutor Tagada
Q: After you shouted, what happened?
A: My father boxed my stomach or abdomen kuto-kuto.
Q: After your stomach or abdomen was boxed by your father the accused in this case, what happened to
you?
A: I lost consciousness.
Q: Now when you regain(ed) consciousness what happened?
A: I noticed that I have no more short pants and panty.
Q: What else did you notice?
A: I felt pain at my vagina.
Q: What else?
A: And my vagina was bleeding.
Q: What else did you observe?
A: I cried.
Q: Aside from the bleeding oozing from your vagina, what else did you observe?
A: I noticed that there was something when I touched there is sticky fluids.
Q: And you said you cried, what happened?
A: I kept on crying and he came to me and admonished me that he will kill me if I will report the matter
to my mother.
Q: And when he warned you that he will kill you if you report the matter to your mother, what did you
feel?
A: I was not able to reveal to my mother because I know that he has pistol in his possession.
Q: Did you report when your mother came, did you report the incident?
A: I did not.
Q: Now that happened on October 20, 1994 after same date, what happened next?
A: There was something that happened to me after October 20, 1994 to December.
Q: December of 19?
A: 1994.
Q: What did your father do to you after that incident of October 20, 1994 to December 19, 1994?
A: He again raped me.
Q: And what time your father raped you again?
A: At 1:00 oclock in the afternoon more or less.
Q: Why, do you know the reason?
A: Because that was the schedule when my mother wash(es) clothes.
Q: How about in the month of November 1994?
A: He again raped me.
Q: What date in November?
A: November 18.
Q: The time is?
A: 1:00 oclock in the afternoon.
Q: And the place is ?
A: At Baikingon.
Q: Where at Baikingon?
A: At Zone 5 in our house.
Q: Will you please narrate to the Honorable Court how did your father rape you on November 18, 1994?
A: He again called me at their conjugal bedroom of my mother.
Q: What happened when he called you?
A: I refused to do so but there is nothing I could do because nobody heard my shout.
Q: After you shouted?
A: He again boxed my abdomen.
Q: What happened when you were boxed by your father?
A: I was unconscious.
Q: When you regained consciousness, what did you observe?
A: I dont have panty anymore and no short pants.
Q: What else did you discover?
A: I felt pain in my vagina.
Q: And what else happened?
A: Blood was oozing with my vagina.
Q: What happened after that?
A: When I touched my vagina, there was a sticky fluid.
Q: What did you feel, tell us if any?
A: He frightened me that if I will tell everything to (an)other person I will be killed.
Q: And when your father frightened you, what did you feel?
A: I was afraid because I was not able to reveal to my mother, I know that he has a pistola.
Q: Now, in the month of December what happened in December 1994?
A: About the end of December.
Q: What about in December 1994?
A: He again raped me.
Q: Where did he rape you?
A: In the same place in his bedroom.
Q: Will you please narrate before the Honorable Court what happened before, what time was that?
A: At 1:00 oclock In the afternoon.
Q: And who were in the house when that incident happened at the end of December 1994, who were the
persons in the house?
A: We were only two.
Q: Where was your mother then?
A: She was washing clothes.
Q: Will you narrate before the Honorable court the incident leading to the rape that occurred to you the
last portion of December 1994?
A: Almost at the end of December 1994, I was, at around 1:00 oclock in the afternoon, again I was raped
by my father.
Q: What happened at 1:00 oclock in the afternoon at the end of the last portion of December 1994?
 A: At around 1:00 oclock in the afternoon at the end of December 1994, I was again called by my father
to enter his bedroom.
Q: And did you enter his bedroom when you were called by your father?
A: I did not.
Q: What happened?
A: He pulled my right hand.
Q: And then after that?
A: I shouted but nobody answered.
Q: After that?
A: My panty and my short pant were no longer in my body.
Q: What did you observe?
A: I felt the pain in my vagina.
Q: What else did you observe?
A: My whole body feel the pain.
Q: After that, what else happened. Where was your father when you felt that your whole body was
aching?
A: My father was already outside the bedroom.
Q: What did he tell you if any?
A: He will kill me if I will report to anybody.
(tsn, September 27, 1995, pp. 9-12)
The above testimony plainly shows how accused-appellant took advantage of his moral
ascendancy over complainant despite her struggle and resistance.
The force and violence required in rape cases is relative and need not be overpowering or
irresistible when applied (People vs. vs. Errojo, 229 SCRA 49 [1994]). For rape to exist, it is not
necessary that the force or intimidation be so great or be of such character as could not be resisted
it is only necessary that the force or intimidation be sufficient to consummate the purpose which
the accused had in mind (People vs. Caada (253 SCRA 277 [1996]; People vs. Antonio, 233 SCRA
283 [1994]). Accused-appellant, being the father, undoubtedly exerted a strong moral influence
over complainant. In rape committed by a father against his own daughter, the formers moral
ascendancy and influence over the latter may substitute for actual physical violence and
intimidation (People vs. Casil, 241 SCRA 285 [1995]; People vs. Burce, 269 SCRA 2293 [1997]).
Well-settled is the rule that physical resistance need not be established in rape when
intimidation is exercised upon the victim and the latter submits herself against her will to the rapists
embrace because of fear for life and personal safety (People vs. Dones, 254 SCRA 696
[1996]; People vs. Ramos, 245 SCRA 405 [1996]). Obviously, the use of threat of death by
accused-appellant against complainant constituted sufficient intimidation to cow her into
obedience. Finally, this Court has also ruled that if resistance would nevertheless be futile because
of a continuing intimidation, then offering none at all would not mean consent to the assault as to
make the victims participation in the sexual act voluntary (People vs. Pamor, 237 SCRA 462
[1994]).
Moreover, assuming that the prosecution failed to prove the use of force by accused-appellant,
the latter cannot be convicted of qualified seduction. It is only when the complaint for rape contains
allegations for qualified seduction that the accused may be convicted of the latter in case the
prosecution fails to prove the use of force by the accused (People vs. Antido, 278 SCRA 425
[1997]). To do otherwise would be violating the constitutional rights of the accused to due process
and to be informed of the accusation against him. The accused charged with rape cannot be
convicted of qualified seduction under the same information (People vs. Ramirez, 69 SCRA 144
[1976]). Then, too, rape and qualified seduction are not identical offenses. While the two felonies
have one common element which is carnal knowledge of a woman, they significantly vary in all
other respects (Gonzales vs. Court of Appeals, 232 SCRA 667 [1994]).
What the trial court should have done was to dismiss the charges for rape in Criminal Cases
No. 95-147 and 95-148, if indeed, in its opinion, the prosecution failed to sufficiently establish the
existence of force and intimidation, and order instead the filing of the appropriate information. Be
that as it may, this Court believes otherwise and is fully convinced that accused-appellant is guilty
as well of these two other counts of rape.
The trial court ordered accused-appellant to recognize the child born to complainant despite
the fact that said accused-appellant is a married man. The rule is that if the rapist is a married man,
he cannot be compelled to recognize the offspring of the crime as his child, as the character of its
origin legally prevents him from doing so (People vs. Guerrero, 242 SCRA 606 [1995],
citing People vs. De Guzman, 217 SCRA 395 [1993] and People vs. Rizo, 189 SCRA 265
[1990]). Thus, the order of the court a quo pertaining thereto must be deleted.
Critical and more substantial, however, are certain misgivings we entertain with respect to the
propriety of imposition of death penalty as there is one facet of the case which necessitates
elucidation.Accused-appellant is being charged under Section 11 of Republic Act No. 7659 which
amended Art. 335 of the Revised Penal Code and which reads:

SEC. 11. Article 335 of the same Code (Revised Penal Code, as amended) is hereby
amended to read as follows:

ART. 335. When and how rape is committed.- Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

xxx
xxx
xxx

The death penalty shall also be imposed if the crime of rape is committed with any of
the following attendant circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent of the victim.

In the case at hand, the complaints stated that the rape victim is 16 years old which therefore
qualified her under the aforequoted provision. However, it is significant to note that the
prosecution failed to present the birth certificate of the complainant. Although the victims age was
not contested by the defense, proof of age of the victim is particularly necessary in this case
considering that the victims age which was then 16 years old is just two years less than the majority
age of 18. In this age of modernism, there is hardly any difference between a 16-year old girl and
an 18-year old one insofar as physical features and attributes are concerned. A physically
developed 16-year old lass may be mistaken for an 18-year old young woman, in the same manner
that a frail and young looking 18-year old lady may pass as a 16-year old minor. Thus, it is in this
context that independent proof of the actual age of a rape victim becomes vital and essential so as
to remove an iota of doubt that the victim is indeed under 18 years of age as to fall under the
qualifying circumstances enumerated in Republic Act No. 7659. In a criminal prosecution
especially of cases involving the extreme penalty of death, nothing but proof beyond reasonable
doubt of every fact necessary to constitute the crime with which an accused is charged must be
established by the prosecution in order for said penalty to be upheld. We have meticulously
examined the records of the case and we are convinced that the evidence for the prosecution falls
short of the required quantum of proof for the proper imposition and carrying out of the death
penalty. Verily, the minority of the victim must be proved with equal certainty and clearness as
the crime itself. Otherwise, failure to sufficiently establish the victims age is fatal and consequently
bars conviction for rape in its qualified form.
In view of the foregoing consideration, we are constrained to hold accused-appellant liable
only of simple rape, and to reduce the penalty to the lower indivisible penalty of reclusion
perpetua.
Inasmuch as the rape in this case is not qualified by any of the circumstances under which the
death penalty is to be imposed, the civil indemnity to be awarded to the offended party should
remain to be P50,000.00 for each count. In line with the case of People of the Philippines vs. Senen
Prades (293 SCRA 411 [1998]), accused-appellant should indemnify the victim the sum of
P50,000.00 as moral damages without need for proof of the basis thereof. Lastly, accused-
appellant is liable to pay complainant the sum of P20,000.00 as exemplary damages to deter other
fathers with perverse tendencies or aberrant sexual behavior from sexually abusing their own
daughters (People vs. Lao, 249 SCRA 137 [1995]; People vs. Sangil, Sr., 276 SCRA 532 [1997]).
WHEREFORE, the judgment appealed from is hereby MODIFIED, to wit:
1. Accused-appellant is found guilty beyond reasonable doubt of three counts of crime of simple
rape, and is hereby sentenced to suffer the penalty of reclusion perpetua for each count.
2. Accused-appellant shall indemnify the victim for each count of rape the following: (1)
P50,000.00 as civil indemnity; (2) P50,000.00 as moral damages; and (3) P20,000.00 as
exemplary damages.
3. The portion of the judgment of the trial court ordering accused-appellant to recognize and
acknowledge the child as his son, is deleted.
 SO ORDERED.
SIMPLE SEDUCTION

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FERNANDO TEODOSIO Y CARREON, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Lazaro Law Firm for defendant-appellant.

GANCAYCO, J.:

The crime of rape is a heinous offense. Its commission must be established by clear and convincing
evidence. Invariably, the prosecution must rely on the sole testimony of the offended party. If her
version proves to be weak if not credible, then the conviction for the offense charged cannot follow.
This is the status of the instant case.

Fernando Teodosio y Carreon was charged of the crime of rape in a sworn complaint that was filed
by Elaine R. Cesar in the Regional Trial Court (Special Criminal Court) in Manila which reads as
follows:

The undersigned accuses FERNANDO TEODOSIO Y CARREON of the crime of rape,

committed as follows:

That on or about December 19, 1985, in the City of Manila, Philippines, the said accused, by
means of force, violence and intimidation, to wit: by then and there dragging the
undersigned, more than 12 years of age, inside the room at the Champion Lodge Inn,
located at Sta. Cruz, this City and thereafter, she was made to drink the softdrink which
rendered her dizzy and unconscious, did then and there wilfully, unlawfully and feloniously
have carnal knowledge with the undersigned while she was deprived of reason or otherwise
unconscious, against her will.

Contrary to law.

(SGD.) ELAINE R. CESAR

Complainant1

Upon arraignment the accused entered a plea of not guilty, after which a trial on the merits was
conducted. On May 17, 1988 a decision was rendered by the trial court convicting the accused of the
offense charged as penalized under Article 335 of the Revised Penal Code. The trial court
sentenced him to imprisonment for a term of twenty (20) years, one (1) month and one (1) day
of reclusion perpetua and to pay the offended party Elaine Cesar the sum of P15,000.00 as actual
damages and P50,000.00 as moral damages.

An appeal therefrom was interposed by the accused to the Court of Appeals alleging that the trial
court committed the following errors:
 I

THE LOWER COURT ERRED IN FINDING THAT THE CRIME OF RAPE DEFINED AND
PENALIZED UNDER ART. 335 OF THE REVISED PENAL CODE WAS PROVEN BEYOND
REASONABLE DOUBT BY THE PROSECUTION.

II

THE LOWER COURT ERRED IN GIVING CREDIBILITY TO THE TESTIMONY OF THE

COMPLAINANT AND HER OTHER WITNESSES.2

Pursuant to Section 13, Rule 124 of the 1985 Rules on Criminal Procedure, the Court of Appeals
resolved to certify this case to this Court for decision. The resolution of the appellate court is
accompanied by a report recommending affirmance of the appealed decision, and the imposition of
the penalty of reclusion perpetua.

The findings of facts of the court a quo are as follows:

In the case at bar, it was established that at time of the incident on December 19, 1985, the
offended party, Elaine Cesar, was only 12 years and 6 months old and a mere 6th grader
while the accused was already 20 years old and a 4th year college student; and that the
accused is a sexually hot individual as borne by the fact that he admittedly masturbates at
least once a week. The offended party, Elaine Cesar, testified in a simple, honest and
straight-forward manner whereas the accused testified in an evasive and sometimes
incredible and inconsistent manner. Elaine, at the time of the incident, being only 12 years
and 6 months old and a mere Grade 6 student, was quite gullible and easily deceived by the
accused. This court also noted that the accused admitted, on cross-examination, that he and
Elaine agreed that they would stay in the Champion Lodging House for only 'a short time
which would be for 3 to 4 hours' only.

It also appeared from the testimony of the accused that they left Lyceum at about 3:25 P.M.
and then took the LRT at the Central Station and alighted at the LRT Station at Doroteo Jose
St., and then they proceeded on foot to the Champion Lodging House which is located along
Rizal Avenue between Doroteo Jose and Zurbaran Street, so that the accused and Elaine
must have arrived at the said motel between 4 to 5 P.M. on December 19, 1985. The
accused failed to explain why they overstayed and left that motel only at about 7:30 A.M. on
the following day, December 20, 1985. The accused claimed that when they first arrived at
that motel in the afternoon of December 19, 1985, he phoned his house and talked to her
sister, Imelda, to tell his family that he would arrive home late that day. In order to satisfy his
lustful desires, the accused who is a sexually hot person, drugged the softdrink or pineapple
juice which Elaine later drank inside the room in that motel so that she became dizzy and
eventually lost consciousness. Once Elaine was unconscious, the accused raped her.
According to the accused, they were very tired after walking so much on December 19, 1985
so that when they arrived inside the room of the Champion Lodging House in the afternoon
of that day, the first thing they did was to order two glasses of pineapple juice to quench their
thirst. And yet according to the accused he alone drank the two glasses of pineapple juice
while Elaine did not, so that his testimony on that point is incredible, being against the
common experience of mankind. They were both tired and thirsty after having walked around
so much and they both needed a drink badly.

When she woke up at 5:00 A.M. on the following morning, December 20, 1985, Elaine found
blood on her private part or vagina and she felt pain in her body; when she asked the
 accused what happened, the accused lied by saying that nothing happened. On the following
day, December 21, 1985, when Elaine told her mother what happened at the motel, her
mother got angry and lost no time in bringing her to the PC Crime Laboratory before 5:00
o'clock in the afternoon to have Elaine physically examined by the expert Medico-Legal
Examiner, Col./Dr. Gregorio Blanco. Dr. Blanco testified positively that in the course of his
physical examination of Elaine, he found her hymen to have a fresh laceration at 5:00 o'clock
and that said fresh laceration meant that there was a very recent sexual intercourse, and he
also concluded that the child, Elaine Cesar, was therefore in a non-virgin state because of
that fact. Considering that the accused first met Elaine Cesar only on September 11, 1985, it
is difficult to believe that the said young girl, being only 12 years and 6 months old at that
time, would have consented to go with the accused to a motel on December 19, 1985 for the
purpose of submitting her virginity to him. The accused also admitted on cross-examination
that while he and Elaine were inside the room in that motel that he kissed and embraced
Elaine and that he asked Elaine to give her virginity to him "three times". The accused, being
much older than Elaine, took advantage of, deceived and abused the latter sexually by
raping her when she was unconscious on account of her having drunk the drugged softdrink
or pineapple juice. The defense's evidence, more particularly the two pictures (Exh. 1 and 2)
of Elaine Cesar including the tenderly-worded handwritten dedication (Exh. 1-A) at the back
of Exh. 1, did not disprove the fact that the accused raped the child, Elaine Cesar, while she
was unconscious inside the room of the Champion Lodging House.

The straight-forward testimony of Elaine Cesar as well as the testimony of the disinterested
witness, Col./Dr. Blanco, that his physical examination of Elaine Cesar on December 20,
1985 at the PC Crime Laboratory revealed that her hymen had a fresh laceration at 5 o'clock
and which indicated recent sexual intercourse was not over-turned by the evidence of the
defense.

In this connection, it has been held that absence of spermatozoa does not disprove rape.
(People vs. Calainquim, 125 SCRA 655). If the ability to resist is taken away by
1âwphi 1

administering drugs, even though the woman may be conscious, sexual intercourse with her
is rape. (People vs. Lintag, 126 SCRA 511). In rape, there must be sexual intercourse.
Penetration even partial, is necessary. The slightest penetration is enough. Proof of emission
is not necessary. (People vs. Selfaison, et al. L-14732, Jan. 28, 1961). Every person
criminally liable for a felony is also civilly liable (Art. 100, Revised Penal Code).3

Upon a careful review of the records of the case there is no question that on that fateful day of
December 19, 1985 Elaine and appellant were together from 7:00 o'clock in the morning when they
met in front of the Fargo Department Store in Caloocan City when they attended the Christmas party
at the Manila Central University, where Elaine was enrolled, up to 10:00 A.M. Thereafter, they
proceeded to the Luneta where they took a stroll. Then they went to the Fiesta Carnival at Cubao,
Quezon City and they ate at a nearby McDonald's restaurant. They later proceeded to Lyceum
where appellant took his examinations at about 2:30 P.M. Then he fetched Elaine at the canteen
where she was waiting. They rode the metropolitan light rail transit at the Central Station up to
Doroteo Jose Street. Upon alighting therefrom, they walked to the Champion Lodging House. After
drinking two glasses of pineapple juice, they had sexual intercourse. They stayed overnight in the
said motel.

The focal question is whether the account of Elaine in that she was only forced to go to the motel
and that she was made to drink the soft drink so that she lost consciousness is true and supported
by the evidence.
Elaine admitted that she knew appellant some three months before the alleged incident took place
because they were neighbors, i.e., she resided with her grandmother in Caloocan City during her
school days. Apparently, they fell in love with each other for Elaine gave appellant her photograph
marked Exhibit 1 with her handwritten dedication.

12-6-86

Love, may this picture serve as remembrance for someone special. This shows how much I
love you. Take care, study hard, I love you. Please take care of this picture. I trust and love
you. Between us remember me always. Love.

I love you

Elaine4

This picture was given by Elaine to appellant while they were inside the Luneta Theater on
December 16, 1985 and because of this memento, he kissed her out of joy, according to appellant.
He said he courted Elaine for a few weeks and she accepted his proposal by phone. They went out
three times to see a movie, that is, in October, 1985, December 16, 1985 and December 18, 1985. It
was while at Luneta Theater on December 18 that Elaine invited appellant to accompany her to her
class Christmas party. Thus the following day, appellant informed his mother of the invitation and
she permitted him and gave him P50.00 pocket money. From 7:00 A.M. of December 19, 1985 to
the following morning, they were together, going from one place to the other, until they slept together
in the lodging house. There was no force or compulsion involved. It was a day of joy for the two
young lovers. Appellant did not drug Elaine to lay with her. She was in love with him and did not
hesitate to surrender her virginity to her sweetheart upon a promise of marriage.

The contradictions in the testimony of Elaine where she attempted to prove that their coition was
involuntary rather than fortify the case of the prosecution, served to demolish the same.

Firstly, while Elaine claimed she was dragged to the hotel, her medical examination did not reveal
any contusions on her body showing use of any force on her. Indeed, if she was under any
compulsion, she could easily have escaped during the many hours they were together going from
one place to another, but she did not. She was enjoying their tryst.

Secondly, if she was really drugged she should have been given at least a blood and urine test to
determine if there were any remaining chemicals in her system. This was not done.

Thirdly, after the incident, Elaine was composed and was not disturbed at all. She did not show any
sign of having had a traumatic experience. It was only when her mother scolded her that she
contrived her story.

Fourthly, in one part of her Sagot Salaysay submitted to the fiscal's office, she said she did not
accept the invitation of appellant for them to go to the Luneta.5 In another part thereof, she said she
accepted the same.6 In court, she said she agreed to go to the Luneta7 and thereafter she said she
was forced.8

She also stated in her Sagot Salaysay that she was only persuaded to give appellant her photograph
and appellant dictated what she wrote thereon.9 In court she admitted she gave the photograph to
appellant and that appellant did not ask her to write the dedication thereon.10
Verily, the foregoing circumstances effectively disproves the theory of force and involuntariness in
the sexual interlude of the two. 1âw phi 1

What is obvious and clear is that these two young lovers, carried by their mutual desire for each
other, in a moment of recklessness, slept together and thus consummated the fruition of their brief
love affair. Appellant cannot be held liable for rape as there was none committed. It was a
consensual affair.

Nevertheless, based on the evidence the crime committed by appellant is simple seduction. Article
338 of the Revised Penal Code provides:

Art. 338. Simple seduction. — The seduction of a woman who is single or a widow of good
reputation, over twelve but under eighteen years of age, committed by means of deceit, shall
be punished by arresto mayor.

All the elements of the offense are present.

Frankly —

1. Elaine was over 12 and under 18 years of age.

2. She is single and of good reputation.

3. The offender had sexual intercourse with her.

4. It was committed by deceit.

Appellant said he planned to marry Elaine and for this reason he successfully persuaded her to give
up her virginity. This is the deceit contemplated by law that attended the commission of the offense.11

Section 4, Rule 120 of the 1985 Rules on Criminal Procedure provides:

Sec. 4. Judgment in case of variance between allegation and proof. — When there is
variance between the offense charged in the complaint or information, and that proved or
established by the evidence, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense proved included in
that which is charged, or of the offense charged included in that which is proved.

Unfortunately, the essential ingredients of simple seduction are not alleged nor necessarily included
in the offense charged in the information. The only elements of the offense alleged in the sworn
complaint of the offended party is that she is over 12 years of age when appellant had carnal
knowledge of her. Thus, appellant cannot be convicted even for simple seduction either.12

WHEREFORE, the appealed judgment is hereby REVERSED AND SET ASIDE and another
judgment is hereby rendered ACQUITTING appellant of the offense charged, with costs de oficio.
Let a copy of the decision be furnished the Honorable Secretary of Justice for his appropriate action.

SO ORDERED.

FORCIBLE ABDUCTION
 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LITO EGAN
alias AKIAO, accused-appellant.
The universal puff about love being free, doubtless a stale statement, remains a useful piece
of legal advice yet for the roaming lothario, to stress that money in all its forms, the dowry
included, is not the legitimate consideration for passion and affection which ordinarily spring from
courtship and requited love, nor does it endow a license to subject the object of his affection to
lewd desires, as the 36-year old Manobo would have now realized.
Lito Egan alias Akiao, thirty-six (36) years old, was an avid admirer of a twelve (12)-year
old girl named Lenie T. Camad.[1] Since both the accused and Lenie were members of
the Manobo indigenous cultural community in Mindanao and residents of Sitio Salaysay, Marilog,
Davao City,[2] he had convenient access to courting her but his love was instantly and decidedly
spurned.[3] Between despair and the impossibility of a passionate affair, his unreciprocated love
would soon become the frailty of his distressed mind. He was convicted of forcible abduction with
rape of Lenie and was meted the penalty of reclusion perpetua and was ordered to pay her the
amounts of P30,000.00 for moral damages and P20,000.00 for exemplary
damages.[4] The Decision was seasonably appealed to this Court.[5]
On 6 January 1997 Lenie and her cousin Jessica Silona[6] were fetching water at a deep well
several meters from Lenies house in Sitio Salaysay. At around 2:00 o'clock in the afternoon, the
accused appeared from nowhere and forcibly dragged and pushed Lenie towards Sitio Dalag,
Arakan, Cotabato.[7] He threatened to kill her if she resisted.[8] Before leaving the site of the deep
well, he likewise terrorized Jessica by brandishing his hunting knife which forced the girl to
scamper for safety.[9] About 5:00 o'clock that same afternoon, Jessica was able to report to Lenies
father, Palmones Camad, the abduction of his daughter.[10] Palmones immediately borrowed
the horse of a neighbor and together with a friend proceeded to Sitio Dalag
to look for Lenie. They sought the help of the barangay captain of Sitio Dalag and then returned
[11]

to Sitio Salaysay to rest for the night. For their part, the accused and Lenie stayed that same night
in a house in Sitio Dalag.[12]
On 7 January 1997 accused Lito Egan forced Lenie to escort him to Sitio Sayawan, Miokan,
Arakan, Cotabato, still threatening to kill her if she shouted or resisted,[13] and there stayed in the
house of a sister of Lito.[14] It was in this place where under the cover of darkness and desolation
he allegedly raped Lenie.[15] (She would however change her recollection of the alleged rape when
she later testified that the crime had happened on 6 January 1997 at the house where they lodged
in Sitio Dalag and that no other incidents of rape subsequently took place).[16] On the same day,
Palmones Camad continued the search for his daughter in Miokan.[17] With the help of village
elders, he was able to talk to Datu Salimbag Paguyan of Sitio Sayawan who confirmed that Lenie
and Lito were seen in the sitio.[18] As Palmones was running out of daily provisions, he returned to
Sitio Salaysay.[19] Thereafter, the mission to rescue Lenie was continued by the three (3) datus of
Sitio Salaysay[20] who, like potentates of a sovereign kingdom, interceded in his behalf with
the Datu of Sitio Sayawan for Lenie's safe release.
For four (4) months[21] the datus attempted a customary settlement of the abduction in
accordance with Manobo traditions.[22] It appears that the accused agreed to give two (2) horses to
the family of Lenie in exchange for her hand in marriage.[23] Since the accused however reneged
on his promise to give two (2) horses,[24] Palmones thus insisted on the unconditional return of his
daughter to his custody.[25] Neither did the accused appear before the datus of Sitio Salaysay when
he was asked to explain himself before them.[26] Since the amicable settlement was not realized,
the accused forcibly relocated Lenie to Cabalantian, Kataotao, Bukidnon, where she was
eventually rescued on 15 May 1997.[27]
Lenie lost no time in denouncing the accused and exposing to her village elders the disgrace
that had befallen her.[28] She and her father also reported the crime at the police station in
Lamundao, Marilog, Davao City.[29] She was turned over to the Balay Dangupan, a shelter house
of the Department of Social Welfare and Development,[30] which helped her in obtaining a medico-
legal examination[31] and executing the necessary affidavit-complaint against accused Lito Egan.[32]
On 12 August 1997 the Information for forcible abduction with rape was filed against the
accused.[33] On 9 July 1998,after several warrants of arrest and attempts to arrest him, he was finally
arrested at Arakan, Cotabato.[34] On 28 July 1998 he pleaded not guilty to the crime charged.[35]
When trial ensued, the accused tried to prove that he and Lenie had actually been living
together under Manobo rites in the house of her father Palmones Camad since 2 September 1996
after giving dowry or, in the indigenous language, bagay[36] to Lenie's family consisting of one (1)
horse, two (2) pigs, ten (10) sacks of palay and P2,000.00.[37] It was also his allegation that after
the dowry had been offered and accepted, Palmones demanded one (1) wild horse from him, which
forced him and Lenie, who he claimed voluntarily went with him, to depart on 1 January 1997 for
Sitio Dalag, Arakan, Cotabato, to capture one.[38] They allegedly stayed in Sitio Dalag at the house
of Lenie's aunt, Imbing Camad, until 7 January 1997 when it was evident that they could not find
any horse there.[39] He further averred that they went to Sitio Sayawan, Miokan, Arakan, Cotabato,
to seek the help of Datu Salimbag Paguyan who fortunately had one (1) wild horse in his
stable.[40] The accused allegedly delivered the horse to heed Palmones' command but was again
refused when Lenie's father increased the number of horses he was asking from one (1) to two
(2).[41] The accused concluded that because he failed to deliver two (2) wild horses which Palmones
required, the instant case was filed against him.[42] The accused finally posited that Lenie was aware
of the entire situation as she in fact helped him do household chores during their tryst and that she
could have shouted or complained to call people's attention while they were walking or when they
stayed in populated communities such as Sitio Dalag and Sitio Sayawan, or that she could even
have escaped to her father if she really wanted to do so.[43] To prove that he and Lenie were destined
for marriage, accused presented a letter dated 4 February 1997 (Exh. "2") addressed to one Apo
Boyilon Awe and written by Berting Bayaan purportedly detailing the delivery of two (2) horses
to Palmones.[44]
On 5 May 1999 the trial court rejected the defenses of accused Lito Egan and convicted him
of forcible abduction with rape;[45] hence, this appeal.
The only issue before us is the calibration of the competing evidence for the prosecution and
the defense - verily, our resolution would hinge on whose version is more credible, more plausible
and more trustworthy considering the circumstances surrounding the commission of the crime
charged.
Accused-appellant Lito Egan was charged with forcible abduction with rape of twelve (12)-
year old Lenie T. Camad. Although from the records it appears that Lenie was less than twelve
(12) years old as shown by her birth certificate (Exh. "B")[46] when the abduction took place on 6
January 1997 and the alleged rape was perpetrated a day after, the criminal liability of accused-
appellant would nevertheless be confined only to the crime alleged in the Information. Hence, a
judgment of conviction is proper only where the prosecution was able to prove the elements of the
complex crime of forcible abduction with rape -

x x x x Article 342 of the Revised Penal Code defines and penalizes the crime of
forcible abduction. The elements of forcible abduction are (a) that the person abducted
is a woman, regardless of her age, civil status, or reputation; (b) that the abduction is
against her will; and, (c) that the abduction is with lewd designs. On the other hand,
Art. 335 of the same Code defines the crime of rape and provides for its penalty. The
elements of rape pertinent to this case are: (a) that the offender had carnal knowledge
of a woman; and, (b) that such act is accomplished by using force or intimidation.[47]

All the elements of forcible abduction were proved in this case. The victim, who is a young
girl, was taken against her will as shown by the fact that at knife-point she was dragged and taken
by accused-appellant to a place far from her abode. At her tender age, Lenie could not be expected
to physically resist considering the fact that even her companion, Jessica Silona, had to run home
to escape accused-appellant's wrath as he brandished a hunting knife. Fear gripped and paralyzed
Lenie into helplessness as she was manhandled by accused-appellant who was armed and twenty-
four (24) years her senior.What we held in People v. Rapisora[48] could be said in the case at bar -

Appellant would urge the Court to ignore the testimony of complainant for her alleged
failure to call for help. In People vs. Akhtar, similarly involving the crime of forcible
abduction with rape, the same contention was raised. This Court, rejecting the
proposition made by the alleged offender, held that '[c]omplainant's failure to ask for
help when she was abducted, or to escape from appellant's house during her detention,
should not be construed as a manifestation of consent to the acts done by
appellant. For her life was on the line. Against the armed threats and physical abuses
of appellant, she had no defense.Moreover, at a time of grave peril, to shout could
literally be to court disaster. Her silence was born out of fear for her safety, to say the
least, not a sign of approval' x x x x This Court, in several cases, has observed that
behavioral psychology would indicate that most people, confronted by unusual events,
react dissimilarly to like situations. Intimidation, more subjective than not, is
peculiarly addressed to the mind of the person against whom it may be employed, and
its presence is basically incapable of being tested by any hard and fast
rule. Intimidation is normally best viewed in the light of the perception and judgment
of the victim at the time and occasion of the crime.

The evidence likewise shows that the taking of the young victim against her will was done con
miras deshonestas or in furtherance of lewd and unchaste designs. The word lewd is defined as
obscene, lustful, indecent, lascivious, lecherous. It signifies that form of immorality which has
relation to moral impurity; or that which is carried on in a wanton manner.[49] Such lewd designs
were established by the prurient and lustful acts which accused-appellant displayed towards the
victim after she was abducted. This element may also be inferred from the fact that while Lenie
was then a naive twelve (12)-year old, accused-appellant was thirty-six (36) years old and although
unmarried was much wiser in the ways of the world than she.[50]
Given the straightforward and candid testimony of Lenie and her father Palmones as well as
the absence of any motive to testify falsely against accused-appellant, the logical conclusion is that
there was no improper motive on their part, and their respective testimonies as to facts proving
forcible abduction are worthy of full faith and credit.[51] We generally sustain the factual findings
of the trial court on account of its strategic access to circumstances decisive of the question of
credibility as it saw and heard the witnesses themselves and
observed their behavior and manner of testifying. In the instant case, there is no reason to depart
from the rule since no fact or circumstance of weight and influence proving that accused-appellant
had abducted Lenie against her will and with lewd designs has been overlooked or the significance
of which has been misinterpreted by the court a quo.[52] Significantly, accused-appellant has not
even challenged the unequivocal pronouncement of the trial court that the complainant testified in
a spontaneous and straightforward manner which thus leaves no doubt in the mind of this Court
that she was telling the truth and that her declarations were positive, clear and convincing. The
best that he could do to assail the conviction was, unfortunately, to state mere speculations of
inconsistencies in the testimonies of the prosecution witnesses without however substantiating by
specific examples such conjecture. We have no doubt that his studied silence on the evaluation of
evidentiary matters unmistakably preserves the integrity of the decision of the trial court.
Accused-appellant would however insist that he and Lenie had been engaged
under Manobo rituals to marry each other and that her companionship was willful and
voluntary. Proof of this, he said, was the alleged dowry of one (1) horse, two (2) pigs, ten (10)
sacks of palay, and P2,000.00, with two (2) wild horses forthcoming, he had given her father in
exchange for her hand in marriage. In moving from one place to another to look for the horses
which the old man Palmones had demanded, it was allegedly only his intention to realize his
matrimonial aspiration with Lenie.
The testimony of the victim negated this contrived posture of accused-appellant which in
reality is simply a variation of the sweetheart defense. If they were, surely, Lenie would not have
jeopardized their relationship by accusing him of having held her against her will and molesting
her and, on top of it all, by filing a criminal charge against him. If it had been so, Lenie could have
easily told her father after the latter had successfully traced their whereabouts that nothing
untoward had happened between her and the accused. Her normal reaction would have been to
cover-up for the man she supposedly loved and with whom she had a passionate affair. But, on the
contrary, Lenie lost no time in denouncing accused-appellant and exposing to her family and the
authorities the disgrace that had befallen her. If they had indeed been lovers, Lenie's father would
not have shown so much concern for her welfare and safety by searching for the couple for four
(4) months, desperately wanting to rescue her from captivity and seeking the intervention of
the datus in resolving the matter.
Neither was accused-appellant able to present any convincing evidence to substantiate his
claim, like love letters, notes and other symbols of affection attesting to a consensual
relationship.[53] In fact, none of the persons he and Lenie supposedly lived with during the period
that he was allegedly looking for two (2) wild horses could corroborate his claim of engagement
under the traditions of the Manobos.Imbing Camad was not summoned to testify and Datu
Salimbag Paguyan who took the supposed couple under custody would even admit in his testimony
that he knew nothing about the relationship between them.[54] Furthermore, Exh. "2," the letter
which allegedly details the matrimonial offer of accused-appellant to Lenie, is inadmissible and
otherwise barren of probative value. For one, the letter is hearsay being as it is an out-of-court
statement of a person who did not testify; moreover, it was not authenticated during the trial by
either its author or its recipient. Nor is it in any manner conclusive of any wedding plans prior
to the abduction of Lenie on 6 January 1997, as Exh. "2" is explicitly dated 4 February 1997 and
significantly coincides with the attempts of the several datus to rescue Lenie from the hands of
accused-appellant. Indubitably, all that was done and said in the letter with reference to marrying
the girl was clearly an afterthought.[55]
Verily it is evident that accused-appellant was a rejected suitor of Lenie with no hope of
having her in marriage and whose persistent offers of love and marriage had been decidedly
spurned. It was in the sleepy mid-afternoon of 6 January 1997 when he took the girl by force and
at that time no marriage was proved to have been offered by accused-appellant much less
considered by Lenie or her elders. The accused dragged the victim to walk with him and to proceed
to unknown destinations by warning her of a present and grave danger to her life should she
refuse. In the night which followed, he forcibly embraced, kissed, and handled her against her
will. No protestation of noble intentions can obviate the conclusion that all these acts proved lewd
designs.
To be sure, several acts of accused-appellant would betray his criminal intentions. For one he
offered in evidence, partly through Exh. "2" and to a degree by his testimony, the
settlement which he together with Datu Salimbag Paguyan tried to broker with the family of Lenie
to suppress the criminal act he had done. The putative agreement was for the accused to deliver a
horse to Lenie's father to settle the matter amicably but the agreement did not push through. Since
this offer of compromise was sponsored by accused-appellant himself, it clearly amounts to an
implied admission of guilt which remains uncontested.[56] Moreover, if he were truly engaged to
marry the victim he would not have eluded arrest for one (1) year and dodged several warrants for
his arrest. The flight of accused-appellant indubitably proves an awareness of guilt and a
consciousness that he had no tenable defense to the crime charged. [57]
Nonetheless even assuming that the accused and the complainant were engaged by virtue of
the dowry he had offered, this fact alone would not negate the commission of forcible
abduction. An indigenous ritual of betrothal, like any other love affair, does not justify forcibly
banishing the beloved against her will with the intention of molesting her. It is likewise well-settled
that the giving of money does not beget an unbridled license to subject the assumed fiance to carnal
desires. By asserting the existence of such relationship, the accused seeks to prove that the victim
willingly participated in the act.But, as shown above, she certainly did not. Lenie was
a Manobo with whom the accused ardently fell in love but was never her lover. The evidence
clearly does not speak of consensual love but of criminal lust which could not be disguised by the
so-called sweetheart defense or its variant as in the instant case. Finally, as held in People v.
Crisostomo,[58] the intention to marry may constitute unchaste designs not by itself but by the
concurring circumstances which may vitiate such an intention, as in the case of abduction of a
minor with the latter's consent, in which the male knows that she cannot legally consent to the
marriage and yet he elopes with her. In the case at bar, there is no denying the fact that Lenie was
incapacitated to marry accused-appellant under Manobo or Christian rites since she was still a
minor[59]thereby demonstrating the existence of lewd designs.
 Coming now to the charge of rape, we rule that although the prosecution has proved that Lenie
was sexually abused, the evidence proffered is inadequate to establish carnal knowledge. Indeed
the victim could only guarantee that "[the accused] had his penis placed between my legs," the gist
of which may refer to things both incriminatory or non-incriminatory of rape although equally
perverse -
Q: The following day, January 7, 1997, where did Lito Egan bring you?
A: To a certain place called [Miokan] x x x x
Q: During that night, that night when on the second day, where Lito Egan brought you? Where did you
sleep?
A: In a certain uninhabited house.
Q: What did Lito Egan do to you if any?
A: He removed my panty.
Q: What else?
A: Including my short pants.
Q: After removing your short pants, what did Lito Egan do?
xxx
A: He placed himself on top of me.
Q: What happened when he placed himself on top of you?
A: I kept on crying
Q: You said, he placed himself on top of you, please tell us what exactly happened?
A: He had his penis placed between my legs.
Q: What did you feel because of that?
A: I felt pain x x x x
Q: What was your reaction when Lito Egan placed himself on top of you as well as his penis placed in
your private parts?
[Defense Counsel]: The question is misleading. Complainant said, not on her private parts but
only on her legs.
A: I felt pain.
Q: What did you do when at that time when he placed himself on top of you?
A: I kept on moving my body.
Q: And what was the result of your opposition?
A: I felt great pain x x x x[60]
Sexual abuse cannot be equated with rape.[61] In the case at bar, there is no evidence of entrance
or introduction of the male organ into the labia of the pudendum. Lenie's testimony did not
establish that there was penetration by the sex organ of the accused or that he tried to penetrate
her. The doctor who examined Lenie's vagina on 28 May 1997 would in fact admit upon
questioning of the trial judge that "there was no interlabia contact."[62] The medico-legal report
would then reflect our statement in People v. Tayag[63] "that considering the age of the victim and
the condition of her hymen, there should be laceration if there was penetration by an adult male
sex organ" when it reported that the hymen was still intact and impenetrable without causing the
least hymenal injury. The medico-legal report concluded that there were no evident signs of
extragenital physical injuries on the body of the subject at the time of the examination, and her
hymen was intact with her orifice small (1.5 cms. in diameter) as to preclude complete penetration
by an average-sized male organ in erection without causing hymenal injury.[64]
While it is true that Lenie subsequently testified that there was "intercourse" between her and
the accused-appellant, her testimony cannot be accorded such credence as to outweigh her original
declarations. For one, there is an irreconcilable contradiction between her two (2) testimonies as
to the place and date of the alleged rape. While initially she declared that the alleged rape took
place in Miokan on 7 January 1997 she thereafter changed this statement with the allegation that
the rape occurred in Sitio Dalag on 6 January 1997. Significantly, the testimony that there was
"intercourse" between her and accused-appellant was elicited through leading questions of the trial
judge after Lenie had placed on record that accused-appellant after undressing and kissing her and
touching her nipples did nothing more.
As we have held in People v. Tayag,[65] speculations and probabilities cannot take the place of
proof required to establish the guilt of the accused beyond reasonable doubt, and suspicion, no
matter how strong, must not sway judgment. Courts cannot function to supply missing links in the
prosecution evidence which otherwise insufficiently proves carnal knowledge. "Criminal cases are
decided not on the basis of the weakness of the defense but on the strength of the evidence mustered
by the prosecution. This is founded on the presumption of innocence accorded to every
accused."[66] In the case at bar, the ambivalent declarations of the victim are testaments to
prosecutorial inadequacy. Thus instead of clarifying what she meant by "[the accused] had his
penis placed between my legs," the prosecution would itself testify through misleading question
that her answer meant that the accused-appellant placed his penis into her private part, to which
defense counsel correctly objected and would thereafter leave such important matter hanging by
the thread.
Even if we have to assume that Lenies statement, "[the accused-appellant] had his penis placed
between my legs," meant that the penis was "placed in her private part" as the prosecution
inappropriately sought to introduce, the statement would still be speculative as to whether the penis
of accused-appellant in reality entered the labial threshold of the female organ to accurately
conclude that rape was committed. The ambiguity in the case at bar would in fact be even more
uncertain than those we have come across and declared unanimously as insufficient to prove carnal
knowledge. In People v. Francisco[67] we found the testimony of the victim that "(h)indi po sa
butas pero sa aking pepe lang" to be inconclusive as it was "shrouded in ambiguity," and further
declared -

The prosecution has the onus probandi of establishing the precise degree of
culpability of the accused. It must demonstrate in sufficient detail the manner by
which the crime was perpetrated. Certainly, the testimony of the victim to the effect
that the accused repeatedly poked her vagina and that she felt pain as a consequence
thereof, would not be enough to warrant the conclusion that a consummated rape had
indeed been committed. The quantum of evidence in criminal cases requires more
than that.

Prior to Francisco, we ruled in People v. Tolentino[68] that the testimony, "binundul-bundol

ang kanyang ari," did not conclusively prove that rape was committed to the exclusion of other
offenses and further held that "this testimony is subject to different interpretations and will not
lead to the conclusion that [the accused's] intent was to have carnal knowledge of her." No
consummated rape took place in People v. Arce[69] on account of the victims claim that the
accused "attempted to touch her vagina with his penis or 'idinidikit yung ari niya.'" In these cases
where the victim herself, as Lenie in the instant case, failed to state for the record that there was
insertion of the penis into her vagina, rape was deemed not to have been committed. Together with
the absolutely non-incriminating medical certificate, which is the only corroborative evidence
available, the likelihood for the consummation of rape in the instant case was nil. In People v.
Campuhan[70] we held -

In cases of rape where there is a positive testimony and a medical certificate, both
should in all respects complement each other; otherwise, to rely on the testimonial
evidence alone, in utter disregard of the manifest variance in the medical certificate,
would be productive of unwarranted or even mischievous results. It is necessary to
carefully ascertain whether the penis of the accused in reality entered the labial
threshold of the female organ to accurately conclude that rape was
consummated. Failing in this, the thin line that separates attempted rape from
consummated rape will significantly disappear.

Under the circumstances, the criminal liability of accused-appellant is only for forcible
abduction under Art. 342 of The Revised Penal Code. The sexual abuse which accused-appellant
forced upon Lenie constitutes the lewd design inherent in forcible abduction and is thus absorbed
therein. The indecent molestation cannot form the other half of a complex crime[71] since the record
does not show that theprincipal purpose of the accused was to commit any of the crimes against
chastity and that her abduction would only be a necessary means to commit the same.[72] Surely it
would not have been the case that accused-appellant would touch Lenie only once during her four
(4)-month captivity, as she herself admitted, if his chief or primordial intention had been to lay
with her. Instead, what we discern from the evidence is that the intent to seduce the girl forms part
and parcel of her forcible abduction and shares equal importance with the other element of the
crime which was to remove the victim from her home or from whatever familiar place she may be
and to take her to some other.[73] Stated otherwise, the intention of accused-appellant as the
evidence shows was not only to seduce the victim but also to separate her from her family,
especially from her father Palmones, clearly tell-tale signs of forcible abduction -

Both the civil and the common law authorities agree in the conclusion that the crime
of abduction is one sumamente grave y odioso (highly serious and detestable). The
penal law regarding abduction, says the supreme court of Spain, was intended to
punish the offense against public morality and the insult to the family of the abducted
girl. (Decisions of the supreme court of Spain of November 30, 1876; June 19, 1891;
and June 15, 1895; U. S. vs. Bernabe [1912], 23 Phil., 154.) The abduction statutes,
say the American authorities, were intended for the preservation of the peace of the
home and the virtue of inexperienced females, and to save the members of the family
from sorrow and disgrace. (People vs. Fowler [1891], 88 Cal., 136; State vs.
Overstreet [1890], 43 Kan., 299; People vs. Bristol [1871], 23 Mich., 118; State vs.
Chisenhall [1890], 106 N. C., 676; Rex vs. Pigot, 12 Modern 516, 88 Reprint, 1488.)
The three elements in the crime punished by article 445 of the Penal Code are: (1)
That the person abducted be a woman; (2) that the abduction must have been against
the will of the woman; and (3) that the abduction must have been for lewd or unchaste
designs. (5 Viada, Codigo Penal, 143; U. S. vs. Borromeo [1912], 23 Phil.,
279)[74] (underscoring supplied).

Verily the single sexual abuse of Lenie although accused-appellant had other opportunities to
do so was itself the external manifestation of his lewd design, and hence he could not be punished
for it either separately or as part of a complex crime. The overt acts in the case at bar are clearly
unlike the actus reus in a complex crime of forcible abduction with rape where the preparatory
sexual advances upon the victim constitute the lewd designs which consummate the forcible
abduction with the ensuing rape transpiring as another crime (although rape is itself the grossest
manifestation of lewd designs) that may no longer be absorbed in but must be complexed with
forcible abduction. As further illustrated by Prof. Luis B. Reyes

The act of appellant in grabbing the victim while she was walking towards barrio San
Agustin, and dragging her into the cornfields, some 40 meters away from the footpath,
where by means of force he tried to have sexual intercourse with her but did not
perform all the acts necessary to consummate such purpose, only constitutes
abduction and not abduction complexed with attempted rape, because said appellant
took away the victim for the purpose of corrupting her. In other words, the attempt to
rape her is absorbed by the abduction, being the element of lewd design of the latter.[75]

In People v. Tayag[76] where there was insufficient evidence to prove carnal knowledge despite
a charge of forcible abduction with rape, we convicted the accused only of forcible abduction -

Although the prosecution has proven that Lazel was sexually abused, the evidence
proffered is inadequate to prove she was raped x x x x Accused-appellant is not,
however, off the hook. The prosecution proved the crime of forcible abduction. It
established that accused-appellant took Lazel against her will and with lewd designs.
The word "lewd" is defined as obscene, lustful, indecent, lascivious, lecherous. It
signifies that form of immorality which has relation to moral impurity; or that which
is carried on in a wanton manner. The medico-legal finding and Lazel's testimony
although insufficient to prove rape, buttress the conclusion that accused-appellant had
lewd designs when he abducted Lazel. Article 342 of the Revised Penal Code defines
and punishes forcible abduction x x x x IN VIEW WHEREOF, the decision
convicting accused-appellant of forcible abduction with rape is modified. Accused-
appellant is convicted for forcible abduction and is sentenced to suffer 12 years
of prision mayor to 17 years and 4 months of reclusion temporal and to pay the
victim P30,000.00 as moral damages. No costs.

Significantly, we cannot consider any aggravating circumstance since under Sec. 8 of Rule
110 of the Revised Rules of Criminal Procedure, effective 1 December 2000 but applicable to the
instant case,[77] the complaint or information must not only state the designation of the offense
given by statute and aver the acts or omissions constituting the offense, but also "specify its
qualifying and aggravating circumstances." The Information against accused-appellant does not
specify any of the circumstances which would have aggravated the offense charged or its penalty.
In hindsight, one may say that the instant case is all about love extending beyond the realm of
law and morality. The titillation which this abstraction brings forth, however, should not gloss over
the fact that a young innocent girl was ruthlessly torn from the side of her family, overpowered by
superior strength, her cries for help stifled, and rushed to an unknown house and there
defiled. Certainly, there is something more to be endured by her than mere physical pain although
that may not be inconsiderable. In justifying the penalty imposed upon such misguided act, even
if it was done purportedly to soothe the indignity of an unrequited love, we said in United States
v. Borromeo:[78] "[W]hen such an occurrence ceases to be a reality to her and becomes a memory,
if it ever does, she may derive no comfort, no pride, no satisfaction by recalling it. Shame, misery,
mortification, are her lot. Nor can she, if she would, banish the dreadful occurrence from her
thoughts. The story has spread like wildfire. Pitying looks, pointing fingers, and morbid stares
remind her everywhere she goes of her terrible experience x x x x In the case of the girl, the effects
are permanent and far-reaching. Time may lessen but can never annul her sufferings. Nor is she
the only sufferer. Her whole family, to a lesser degree, shares in her humiliation."
WHEREFORE, the Decision of the court a quo convicting accused-appellant LITO EGAN
alias Akiao of forcible abduction with rape is MODIFIED. Accused-appellant is instead declared
guilty ofForcible Abduction only under Art. 342 of The Revised Penal Code and is sentenced to
an indeterminate prison term ranging from six (6) years, two (2) months and ten (10) days
of prision mayor minimum as minimum, to fourteen (14) years, eight (8) months and twenty (20)
days of reclusion temporal medium as maximum. Accused-appellant is further ordered to pay
moral damages in the amount of P30,000.00 and exemplary damages in the amount of P20,000.00
as fixed by the court a quo to be paid to private complainant Lenie T. Camad. Costs against
accused-appellant.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SHAREFF ALI EL AKHTAR, accused-appellant.

QUISUMBING, J.:
The Regional Trial Court of Quezon City, Branch 103,1 in Criminal Case No. Q-96-67171, convicted
accused-appellant of the crime of Rape and sentenced him to death by lethal injection. The case is
now before us on automatic review.

Accused-appellant is a 30 year old Libyan national, a student of Oriental Institute in its electronic
technician's course, a resident of Lagro Subdivision, Quezon City,2 and married to a Filipina nurse
working in Libya3 with whom he has a one-and-a-half year old son.

Complainant is Gina Rozon y Freo, aged 17, having been born on May 30, 19794 in Sta. Barbara,
Bulusan, Sorsogon. At the time of the alleged offense she was newly graduated from high school.
Her complaint told of a harrowing tale of abduction, starting from the Lagro Post Office and ending in
her alleged detention for ten days at appellant's house where he forced her to take drugged drinks,
while he repeatedly abused her.

The facts of the case as found by the trial court and on record are as follows:

Prior to the incident, complainant was on vacation and staying with her aunt, Francia. Her aunt's
family occupied the second floor of an apartment unit in San Jose del Monte, Bulacan.5 Appellant
and his son occupied the ground floor. Being neighbors, Gina and appellant became acquainted with
each other. 6 However, on July 14, 1996, appellant transferred to another house in Lagro
Subdivision, Quezon City.

In the morning of July 17, 1996, complainant asked permission from her aunt to mail a letter at the
Lagro Post Office.7 By chance, she saw appellant walking behind her.8 Suddenly, appellant grabbed
her hand,9 placed his right arm on her back and pushed her inside a waiting tricycle that was parked
some meters away from the "paradahan" of tricycles.10 While holding complainant with one arm, he
barricaded the tricycle door with his other hand. The tricycle sped off.11 Complainant was overcome
by nervousness and was unable to shout for help.12 The tricycle driver stopped in front of a house in
Lagro Subdivision. Appellant asked complainant to step down and pushed open the gate of the
house and asked her to get inside. He pushed her towards a chair, then padlocked the
room.13Appellant got a glass of softdrink and forced Gina to drink it. Thereafter, Gina became drowsy
and fell asleep.14 She woke up the next morning and stood up. To her utter shock, she saw herself
completely naked in bed, feeling weak and her vagina in pain.15 She saw plenty of blood on the
bedsheet. Because she was still feeling weak, she fell down on the bed.16 Appellant later entered the
room and asked if she was all right. She pleaded with him to let her go home. Appellant did not
respond, but stood up and changed the bedsheets. He then left and locked the door. After about an
hour, appellant came back and brought with him macaroni and orange juice. Complainant noticed
some white sediments floating on the orange juice, but appellant told her they were vitamins and
forced her to drink the juice. This caused her to fall asleep again for a long time. When she woke up
afterwards, she was naked again and her vagina was in pain. Appellant was inside the room sitting
on a chair. Complainant got the bedsheet to cover her body, and appellant went out of the room.
Complainant opened the window jalousies in the hope of calling the attention of the neighbors but
appellant, who was outside fetching water, saw her and went back to the room with a kitchen knife.
Appellant pushed a cabinet to cover the window and threatened to kill her if the neighbors saw her.
Drained, she sat on the bed. Appellant went out and came back with some juice and forced her to
drink again, causing her to fall asleep once more. When she woke up, she tried to open the bedroom
door, but it was locked.17She went back to the bed and again fell asleep. Thereafter, appellant came
into the room and fed her Jollibee chicken chili wings with rice. 18 Appellant changed his clothes and
went out.19 She then attempted to go out of the room but appellant was outside, in the sala. Appellant
pulled her back to the room, then poked a knife at her, threatening to kill her if she went out of the
room again.20 Appellant then asked her to drink two types of medicine, one was Propan and the other
a white tablet. 21 She did not want to drink the white tablet but appellant pushed it inside her mouth
for her to swallow it. Then she fell asleep and when she woke up, her private part was in renewed
pain ("Mahapding-mahapdi at nanghihina").22 During her incarceration in the house of appellant, he
asked her to take a bath around three times and dressed her in his clothes.23 She became so weak
("hinang-hina") that she could hardly shout for help. Nor could she go to the comfort room without
being carried by appellant. 24 When she urinated, her private part was painful and when she checked
it, she saw a big wound.25

At one point, appellant went inside the room and told complainant that her aunt was outside, but
threatened her not to shout, otherwise, he would kill her. 26 She was then shaking with
fear.27 Appellant changed his clothes and went out. When he came back, he told her that if her aunt
came back, he would also kill her aunt.28

When complainant failed to return home on July 17, 1996, her aunt (Francia) became worried. She
called up their relatives asking for her, but no one knew her whereabouts.29 Francia told her husband,
Joseph, about her suspicion that appellant might have something to do with complainant's
disappearance because the aunt had seen him suspiciously looking at their house prior thereto.
Joseph and a brother of complainant immediately went to appellant's house in Lagro.30 They saw that
the doors and windows of appellant's house were padlocked,31 so they knocked on the main door.
Appellant peeped through the windows and told them to enter through the side door.32They informed
him about complainant's disappearance, but he denied any knowledge regarding her whereabouts.
They nonetheless noticed that the house was in disarray. One of the rooms was padlocked.
Suspecting that complainant was inside the padlocked room, they insisted on getting inside, but
appellant warned them against intruding into his privacy. Fearing that they would be accused of
trespassing, they immediately left, but reported complainant's disappearance to the nearby Lagro
police station. They also reported their suspicion about appellant's possible involvement in her
disappearance.33 The police were alerted and together with complainant's relatives, they went to
appellant's house, but no one opened the door.34

On the tenth day of her abduction (July 26, 1996), appellant informed her that there were policemen
outside. For reasons known only to appellant, he immediately got some love letters from his cabinet.
He ordered her to copy them on several pieces of paper and affix her signature in every letter to
make it appear that the same were her love letters to him. She complied, literally at knife-point. Only
then did appellant release her.35 Appellant waited until there were no people outside the house, then
he hailed a cab and brought complainant somewhere in Blumentritt, Manila, where he hailed another
taxi. He boarded her in the taxi, paid the fare, and instructed the driver to bring her to Lagro. He told
her that he would be going to the embassy. 36

Though still very weak, complainant went to her brother, Arnold, who worked in a barber shop in
Lagro and told him what happened. He then went to fetch their uncle for help. Together, they went
home to the aunt's house in San Jose del Monte, where they arrived at around 8:00 in the evening.
The aunt asked complainant what happened and where she had been, but she merely cried and
cried and cried. When asked during the trial to describe complainant's appearance at that time, the
aunt said that she looked dazed and very tired. ("Pagod na pagod, mga mata ay maga at parang
wala sa sarili.") Complainant still felt very weak but she narrated to her relatives her ordeal. The
following morning, accompanied with her aunt and uncle, complainant reported the incident to the
Lagro police station.37 Then, they went to the NBI for her medical examination.

On August 2, 1996, complainant filed charges against appellant for the crime of Forcible Abduction
with Rape committed as follows:

The undersigned complainant accuses SHAREFF ALI EL AKHTAR of the crime of

FORCIBLE ABDUCTION WITH RAPE, committed as follows:
 That on or about the 17th day of July 1996, in Quezon City, Philippines, the above-
named accused, an Arab National, did, then and there, wilfully, unlawfully and
feloniously with lewd design forcibly abduct one GINA ROZON Y FREO, a minor, 17
years of age, a student, by forcing her to board a tricycle along Assession Road,
Post Office, Barangay Pasong Putik, Quezon City, and brought her to his apartment
also at Lagro, Quezon City, where accused locked her, then made her drink Coke, a
softdrink, that made her feel dizzy and thereafter accused sexually abused her
repeatedly up to the time she was released on July 26, 1996, all against her will and
without her consent, to the damage and prejudice of said GINA ROZON Y FREO.

CONTRARY TO LAW.

Quezon City, Philippines, July 30, 1996.

Appellant entered a plea of "not guilty" on arraignment.38

During trial, the prosecution presented the following witnesses: complainant herself, her aunt Francia
Rozon, her uncle Joseph Rozon, and Dr. Erlinda R. Marfil, the Chief Psychiatrist of the National
Bureau of Investigation.

The defense presented the appellant and his counsel, Atty. Manuel de Jesus. Appellant's version of
the incident, as set out in his Brief, is as follows: 39

[O]n July 17, 1996 — the date of the supposed forcible abduction with rape — he
was in the Libyan Embassy where he repaired the Embassy's television set (t.v.)
(tsn, pp. 8-12, April 10, 1997). It was a certain Mr. Aghila Gheldan, head of the
Consular section, who requested him to do such work. He left his residence at the
Lagro Subdivision at around 8:00 o'clock in the morning, and finished the repair at
about 6:00 o'clock in the evening. (tsn, pp. 4-9, April 17, 1997). Appellant also
submitted a Certification dated August 19, 1996, signed by a forementioned Mr.
Gheldan, that the accused "has visited the Bureau (referring to the Libyan People's
Bureau, or the Libyan Embassy) twice (d), dated July 12 and July 17, 1996
respectively") Exh. 36, p. 86, records).

Appellant also testified that before he transferred residence to Lagro Subdivision,

Quezon City on July 14, 1996, he lived in the ground floor of an apartment in
Pecsonville Subdivision, San Jose del Monte, Bulacan. The complainant lived with
her aunt Francia Rozon in the second floor of the same apartment and it was in that
apartment that appellant came to know complainant since September 3, 1995 (TSN,
pp. 10-11, April 10, 1997; pp. 30-32, April 24, 1997). Appellant likewise claimed that
the complainant is his girlfriend and that as a consequence of that relationship, he
had had several sexual contacts with her prior to his transfer to the Lagro
Subdivision. As evidence of that relationship, he submitted several love letters which
were signed by the complainant (TSN, pp. 10-16, 22, April 10, 1997; Exhibits "3" to
"35," inclusive, pp. 196-A to 231, folder of exhibits). Asked why Gina filed the case
against him, he answered that "Auntie and Uncle discovered our relations and Gina
was compelled to file this case," and "they were asking P500,000 from me in order to
drop the case" (TSN, pp. 21-22, April 10, 1997)."

On July 24, 1997, after due trial, the trial court rendered judgment, disposing as follows:
 ACCORDINGLY, the court renders judgment finding accused SHAREFF ALI
AKHTAR GUILTY beyond reasonable doubt as principal of the crime of rape charged
in this case and hereby sentences him to suffer the penalty of DEATH by lethal
injection.

On the civil aspect, the accused is ordered to pay GINA ROZON y FREO the sum of
P50,000.00 as compensatory damages and P100,000.00 as moral damages.

SO ORDERED.

In his bid for acquittal, appellant now makes the following assignment of errors:

I. THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE
TESTIMONY OF THE COMPLAINANT NOTWITHSTANDING ITS
IMPROBABILITIES AND INCONSISTENCIES WITH ORDINARY HUMAN
BEHAVIOR AND EXPERIENCE, THEREBY IMPAIRING HER OWN CREDIBILITY
AS WELL.

II. THE TRIAL COURT ERRED IN MANIFESTING BIAS AGAINST THE ACCUSED-
APPELLANT AND THEREBY TOTALLY

DISREGARDING HIS DEFENSES.

III. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF

THE CRIME OF RAPE AND IMPOSING THE PENALTY OF DEATH, INSTEAD OF
ACQUITTING HIM.

Appellant assails the credibility of the complainant considering her conduct during the alleged
abduction wherein she did not even resist nor shout for help from the tricycle driver or the other
people around the highly-populated area of Lagro during her alleged captivity inside his house. He
stresses that she made no strong efforts to thwart him from making her drink the supposedly
drugged softdrinks or juice. He contends that they already had prior sexual relations since they were
"sweethearts".

It is well settled doctrine that in a prosecution for rape, the complainant's credibility becomes the
single most important issue. Thus, if her testimony meets the test of credibility, the accused may be
convicted on the basis thereof.40 Assessing the credibility of the witnesses is a function that is best
discharged by trial courts.41 Factual findings of trial courts are accorded the highest respect unless it
is shown that certain facts of value have been plainly overlooked which if considered could affect the
result of the case.42 After a thorough review of the records of the case, we see no reason to depart
from this rule.

Complainant's failure to ask for help when she was abducted, or to escape from appellant's house
during her detention, should not be construed as a manifestation of consent to the acts done by
appellant. For her life was on the line. Against the armed threats and physical abuses of appellant,
she had no defense. Moreover, at a time of grave peril, to shout could literally be to court disaster.
Her silence was born out of fear for her safety, to say the least, not a sign of approval.

Behavioral psychology, moreover, teaches us that people react to similar situations

dissimilarly.43 There is no standard form of behavior when one is confronted by a shocking incident.
The workings of the human mind when placed under emotional stress are unpredictable. This Court
indeed has not laid down any rule on how a rape victim should behave immediately after she has
been abused. This experience is relative and may be dealt with in any way by the victim depending
on the circumstances, but her credibility should not be tainted by any modicum of doubt.44Thus,
physical resistance is not the sole test to determine whether or not a woman involuntary succumbed
to the lust of an accused,45 particularly where accused employed drugs inorder to render the woman
unconscious during coitus.

In People v. Santiago, 197 SCRA 556, 566-567 (1991), we ruled that —

The appellant's submission that the victim failed to raise an outcry or offer serious
resistance when she was abducted and later raped has no merit. The suggestion of
the victim that she was drugged after drinking the lemon juice given by the appellant
explains why the victim was unable to resist the accused effectively or make an
outcry. While no chemical test was undertaken to concretely prove that the juice she
drank actually contained drugs, the fact remains uncontroverted as appellant did not
even take the witness stand in order to deny that after the victim drank the lemon
juice already prepared for her, she began to feel weak and dizzy. . . . . It is clear that
the acts of appellant were deliberately done to deprive the victim of reason and the
will to resist his sexual assault. The effect is thus similar to that of violence in
overcoming resistance with which she could very well have successfully thwarted the
lustful act. Appellant undoubtedly had clearly committed the crime charged by
depriving complainant of reason to be able to have carnal knowledge of her without
the latter having in least shown any sign of consent. (People v. Bautista, No. L-
49778, January 27, 1981, 102 SCRA 483). In a rape of a woman deprived of reason
or who is unconscious, the victim has no will. In that case, it is not necessary that she
should offer real opposition or constant resistance to the sexual intercourse.

Moreover, the physical examination of her person supports the testimony of the victim that she has
been raped. The medico-legal report dated July 26, 1996, by Dr. Floreto D. Arzala, Jr. of National
Bureau of Investigation reveals that, while there were no extra-genital physical injuries on
complainant, recent genital trauma was present (Exhibit "C"). After the examination, the medico-legal
officer told complainant that her private part had lacerations ("Maraming gasgas at mga sugat.")
whereupon she again burst into tears.46 Physical injuries such as bruises or bleeding tend to confirm
the fact that a violent assault did take place.47 Further, after the medico-legal department of the NBI
had referred complainant to the Psychiatric Section of the NBI for a neuro-psychiatric examination
on December 6, 1996, witness Dra. Erlinda Marfil testified that as a result of said examination, she
concluded that complainant was suffering from post-traumatic stress reaction as a result of what
happened to her person.48

Appellant claims that on the day of the abduction, July 17, 1996, he was at the Libyan embassy
fixing a television set. He even presented a certification that he indeed visited the embassy on said
date. However, this preferred defense of alibi could not overcome the overwhelming evidence
against him. Alibi is inherently a weak defense whose value loses a lot when time and distance do
not make the imputed offense impossible of commission. In this case, more than a certification of an
embassy visit is needed to overthrow the positive evidence on hand.

Appellant makes much of the love letters allegedly sent by complainant to him with her protestations
of love and devotion. Complainant's testimony negated this contrived posture known as the
"sweetheart defense". Even assuming that appellant and complainant were lovers, however, this fact
alone would not negate the commission of rape, especially where coitus occurred when the woman
was drugged. We have repeatedly declared that "a love affair does not justify rape, for the beloved
cannot be sexually violated against her will.49 A man does not have an unbridled license to subject
his beloved to his carnal desires.50 By asserting the existence of such a relationship, appellant seeks
to prove that the victim willingly participated in the sexual act. But she did not. Complainant was just
a former neighbor, not a lover of the appellant. The evidence in this case clearly shows that she
could not resist the sexual assault upon her person because she was made to drink liquids which
rendered her unconscious and a defenseless prey to the repeated sexual assault of appellant. The
situation in this case does not speak of consensual love but of criminal lust which could not be
disguised by the so-called "sweetheart defense".

While appellant was charged with the crime of Forcible Abduction with Rape, he was convicted by
the trial court of the crime of rape under Article 335 of the Revised Penal Code, as amended by
Section 11 of R.A. No. 7659 which provides:

Art. 335. When and how rape is committed. — Rape is committed by having carnal
knowledge of woman under any of the following circumstances:

(1) By using force or intimidation;

(2) When the woman is deprived of reason or otherwise unconscious; and

(3) When the woman is under twelve years of age or is demented. . . .

As to the crime committed by the appellant, we have held that "forcible abduction is absorbed in the
crime of rape if the main objective of the appellant is to rape the victim. 51 As can be gleaned from the
testimony of complainant, she was raped by appellant no less than three times. The first rape
occurred as follows: 52

FISCAL RAMOS: After that what else did he do?

COMPLAINANT: He forced me to drink the coke. He inserted the mouth of the bottle
inside my mouth so I could drink it maam (sic).

Q: Were you able to drink the coke?

A: Yes, because he was forcing me to drink it.

Q: After that, how did you feel?

A: I fell asleep, "walang malay po."

Q: After that, when did you regain your senses?

A: When I woke up it was already the next morning, maam.

Q: And what did you do when you wake up (sic) the following
morning?

A: I was trying to remember the room where I am, maam.

Q: Did you finally come to your senses?

 A: Yes, and I became afraid, maam.

Q: Why?

A: Because I know I was not in the house of my auntie when I woke

up.

Q: What did you do?

A: I stood up from the bed and I felt that my private part was aching.

Q: What private part?

A: My vagina was aching.

Q: How did you find yourself when you wake up?

A: I was naked, completely naked when I woke up.

Q: What did you see in your vagina, you said it was painful, what did
you see if any?

A: I saw plenty of blood on the bedsheet when I stood up, sir.

Q: What did you do?

A: Because I was feeling weak, I fell down.

Q: Where did you fall down?

A: On the bed, maam.

Q: Thereafter, what else if anything, happened?

A: He went inside, maam.

Q: After that, what did he do?

A: He asked me if I am okay.

Q: What did you tell him?

A: I pleaded with him to allow me to go home, maam.

Q: What did he say?

A: He did not speak or say anything, maam.

From the testimony of the complainant, the second rape occurred as follows: 53
FISCAL RAMOS: After one hour what happened next?

COMPLAINANT: The accused went inside the bedroom bringing with

him food to eat.

Q: What did you do?

A: He brought with him macaroni with plenty of pepper that is why I

did not eat it.

Q: After that what else happened?

A: That same time he also asked me to drink softdrinks.

Q: How did he tell you to drink softdrinks?

A: He told me that is vitamins and asked me to take it.

Q: Did you take it?

A: Yes, because he was forcing me to take it, maam.

Q: Is that in a bottle?

A: Yes,sir.

Q: What kind?

A: Glass, maam.

Q: Is it Coca-cola or what?

A: Glass bottle, maam.

Q: What color, is that?

A: Color orange.

Q: And he said, he told you it's vitamins, what is that he told you
vitamins?

A: That orange colored liquid, there was something floating colored

white and I asked him about it and he said that's vitamins.

Q: Did you drink that?

A: Yes,sir.

Q: After that, how did you feel?

 A: I fell asleep, maam.

Q: Did you regain your senses again after that?

A: Yes, maam.

Q: Would you know what time was that when you wake up after
getting another sleep?

Q: Do you have wrist watch?

A: None sir.

Q: No clock there?

A: No clock, maam.

Q: What time was that when you woke up again?

A: It took a long time before I woke up again.

Q: When you woke up, what happened?

A: I saw I was naked again, maam.

Q: And how about your private part, what did you feel?

A: It was painful, maam.

The third rape occurred as follows: 54

FISCAL RAMOS: After that what else happened after he went out of
the bedroom?

COMPLAINANT: He returned and asked me to drink two types of

medicines.

Q: What medicine?

A: I know the other one is vitamins, but the other one I don't know,
but it's a tablet colored white.

Q: Why do you know the other one as vitamins?

A: I saw in the packet the name of the vitamins, maam.

Q: What is the name?

A: Propan, maam.
 Q: He came in bringing those two tablets, what did he do with it?

A: He asked me to drink them.

Q: How did he ask you to drink the white tablet?

A: I did not want to drink the white tablet, but he pushed it inside my
mouth, maam.

Q: After that, what else happened?

A: I fell asleep again. When I woke up I was again naked, maam.

Q: How about your body, was there anything unusual upon your body
when you woke up?

A: "Mahapding-mahapdi at nanghi-hina."

Q: What is that part of your body which you said mahapding-

mahapdi?

A: My vagina, sir.

In this connection, Section 3 of Rule 120 of the Rules of Court provides that —

Sec. 3. Judgment for two ar more offenses. — When two or more offenses are
charged in a single complaint or information, and the accused fails to object to it
before trial, the court may convict the accused of as many offenses as are charged
and proved, and impose on him the penalty for each and everyone of them setting
out separately the findings of fact and law in each case.

Appellant should therefore be held responsible for as many rapes as were committed by him which
were duly proven during trial.

As to the proper penalty, the trial court imposed the supreme penalty on death on the appellant for
the following reason:

And since it appears that Shareff did not hesistate twice to threaten Gina with a
kitchen knife during her detention and likewise Gina being a minor was forced by the
accused to drink certain liquids to render her unconscious thereby adding ignominy
to her long ordeal, the penalty should be imposed in the maximum.

However, we find that appellant was convicted under Article 335, No. 2 of the Revised Penal Code,
as amended by R.A. No. 7659, wherein the penalty for simple rape is reclusion perpetua. Appellant
used the knife not to consummate the crime of rape but to threaten Gina not to leave the bedroom
where she was locked up. Hence, we find appellant herein guilty of three (3) counts of simple rape.

WHEREFORE, the appealed judgment of the court a quo finding accused-appellant Shareff Ali El
Akhtar guilty beyond reasonable doubt of the crime charged is hereby AFFIRMED with the
MODIFICATIONS that the death sentence imposed by the court a quo is hereby reduced
to reclusion perpetua for each of the three counts of rape, and that appellant is hereby ordered to
pay complainant the amount of P50,000.00 as indemnity and P100,000.00 as moral damages for
each count of rape.

Costs against appellant.

1âw phi1.nêt

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

PERMONETTE JOY FORTICH and RUDY GAID, accused-
appellants.
Accused-appellants Permonette Joy Fortich and Rudy Gaid were each
charged with two counts of forcible abduction with rape, one count of robbery
[1]

with frustrated homicide and one count of robbery.

[2] [3]

I. In Criminal Case No. 3809 - Forcible Abduction with Rape

That on or about March 31, 1983 in the evening, in the City of Cagayan de Oro,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with violence and intimidation, and with the use of an unlicensed firearm,
conspiring, confederating together with one Rudy Gaid alias Boy Gaid, who is
presently at large, and mutually helping one another, did then and there wilfully,
unlawfully and feloniously abduct the herein complainant, Marilou Nobleza by then
and there taking and carrying her away with her sister, Maritess Nobleza, and loading
said complainant on board a stolen pick-up, against her will and consent and with
lewd designs, and brought her from Alta Tierra, Carmen Hill, this city, to Malasag,
this city, and while at Malasag, did then and there wilfully, unlawfully and feloniously
have carnal knowledge (by accused Permonette Joy Fortich) of the herein
complainant, against her will and consent, to her great damage and prejudice.

Contrary to Article 342 in relation to Article 335 of the Revised Penal Code.

II. In Criminal Case No. 3877 - Forcible Abduction with Rape

That on or about March 31, 1983, in the evening, in the City of Cagayan de Oro,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with violence and intimidation and with the use of an unlicensed firearm,
conspiring, confederating together and mutually helping one another, did then and
there wilfully, unlawfully and feloniously abduct the complainant Maritess Nobleza,
by then and there taking and carrying her away with her sister, Marilou Nobleza, and
loading in a stolen pick-up with her sister, against her will and consent and and (sic)
with lewd designs, and brought her from Alta Tierra, Carmen Hill, this City, to
Malasag, this city, and while at Malasag, this city (sic) did then and there wilfully,
unlawfully and feloniously by means of violence and intimidation have carnal
knowledge (by accused Permonette Joy Fortich) of the complainant, against her will
and consent, to her great damage and prejudice.

Contrary to Article 342 in relation to Article 335 of the Revised Penal Code.

III. In Criminal Case No. 3878 - Forcible Abduction with Rape

That on or about March 31, 1983, in the evening, in the City of Cagayan de Oro,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
(accused), with violence and intimidation, and with the use of an unlicensed firearm,
and a motor vehicle, conspiring, confederating together and mutually helping one
another did then and there wilfully, unlawfully and feloniously abduct the
complainant Maritess Nobleza, by then and there taking and carrying her away with
her sister, Marilou Nobleza, and loading in a stolen pick-up with her sister, against her
will and consent and with lewd designs, and brought her from Alta Tierra, Carmen
Hill, this city, to Malasag, this city, and while at Malasag, this city (sic), did then and
there wilfully, unlawfully and feloniously by means of violence and intimidation have
carnal knowledge (by accused Rudy Gaid alias Boy) of the said complainant, against
her will and consent, to her great damage and prejudice.

Contrary to Article 342 in relation to Article 335 of the Revised Penal Code.

IV. In Criminal Case No. 3896 - Forcible Abduction with Rape

That on or about March 11, 1983 (sic), in the evening, in the City of Cagayan de Oro,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with violence and intimidation and with the use of an unlicensed firearm, and
motor vehicle, conspiring, confederating together and mutually helping with (sic) one
another, did then and there wilfully, unlawfully and feloniously abduct the
complainant Marilou Nobleza, by then and there taking and carrying her away with
her sister, Maritess Nobleza, and loading in a stolen pick-up with her sister, against
her will and consent and with lewd designs, and brought her from Alta Tierra, Carmen
Hill, this city to Malasag, this city (sic), and while at Malasag, this city, did then and
there wilfully, unlawfully and feloniously by means by violence and intimidation have
carnal knowledge (by accused Rudy Gaid alias Boy) of the complainant, against her
will and consent, to her great damage and prejudice.

Contrary to Article 342 in relation to Article 335 of the Revised Penal Code.

V. In Criminal Case No. 3977 - Robbery with Frustrated Homicide

That on or about March 31, 1983, at Carmen Hill, Cagayan de Oro City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, armed
with firearms, with violence and intimidation upon persons, with intent of gain and
against the will of the owner thereof, conspiring, confederating together with one
Rudy Gaid alias Boy Gaid, and mutually helping one another, did then and there
wilfully, unlawfully and feloniously take, rob and carry away a polo shirt, pants while
being worn by Luis S. Tumang and a cash worth P160.00, a wrist watch (Elgin)
worth P500.00, valued all in all in the total amount of P660.00, to the damage and
prejudice of the said owner in the aforesaid sum; that on the occasion of the robbery
and to enable them to facilitate the taking and robbing (sic) the offended party, and to
carry out with ease the commission of the offense, accused Permonette Joy Fortich
with intent to kill, did then and there wilfully, unlawfully and feloniously attacked and
mauled the said Luis S. Tumang, struck and hit him with a firearm, thereby inflicting
the following injuries, to wit: fracture depressed type left perietat (sic) bone;
contussion (sic) hematoma left temporal area; abrasion behind left ear; multiple linear
abrasion both thigh and leg, which ordinarily would cause the death of the said
offended party, thus performing all the acts of execution which would produce the
crime of Homicide, as a consequence, but nevertheless, did not produce it by reason
of some cause independent of his will, that is, by the timely and able medical
attendance rendered to the offended party which prevented his death.

Contrary to Article 294 in relation to Article 249 and Article 6 of the Revised Penal
Code.

VI. In Criminal Case No. 4162 - Robbery

That on or about March 31, 1983, more or less 10:30 in the evening at Carmen Hill,
Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating together and mutually helping
one another, did then and there wilfully, unlawfully and feloniously with intent of
gain by means of violence and intimidation on the person take, steal and carry away
polo shirt and pants while being worn by one Rolly (I)mperio and a wallect (sic)
contained (sic) P85.00 in cash, who was at the same time attacked and beaten up by
the said accused, inflicting upon him physical injuries, to wit: Laceration of parietal
area, 2 cm. in length, to the damage and prejudice of the said offended party.

Contrary to Article 294 of the Revised Penal Code.

Upon arraignment, accused-appellants pleaded not guilty to all the charges.

On November 25, 1983, the six criminal cases, upon agreement of the
prosecution and the defense, were consolidated and tried jointly.
 The evidence for the prosecution elicited the following facts:
On March 31, 1983, at about 8:00 oclock in the evening, after attending
mass at St. Augustine Church, Cagayan de Oro City, sisters Marilou and
Maritess Nobleza, together with their friends Rolly Imperio and Luis Tumang,
proceeded to Alta Tierra Hotel in Carmen Hill using an Isuzu pick-up owned by
the latters mother. After a while the group decided to go home.Suddenly, two
men armed with handguns who were later identified as appellants emerged
from the rear end of the vehicle and fired a single shot which hit the left side of
the pick-up. They introduced themselves as members of the New Peoples Army
(NPA) and ordered the sisters to get inside the vehicle while Imperio and
Tumang were instructed to strip.
Gaid thumped Imperio on the head with a .38 caliber revolver causing him
to fall down, while Tumang was hit several times by Fortich in various parts of
the body and momentarily lost consciousness. Tumang was divested of his
wallet containing one hundred sixty pesos (P160.00) in cash, five U.S. dollars
(P70.00), six Saudi Arabian Riyals (P30.42), one 12K gold wristwatch
worth P500.00, pants valued at P140.00, and shoes worth P125.00. All of these
items were not recovered. Imperio, on the other hand, was stripped of his pants
[4]

valued at P135.00, a wallet worth P45.00 containing P85.00 in cash, a pair of

shoes, and one t-shirt.[5]

Appellants drove the pick-up, with Marilou and Maritess at the back seat,
towards Acua Beach some ten kilometers away from the city, but found it to be
closed for the night. While traversing the highway leading to Barangay Puerto,
appellants spotted a military checkpoint along the highway, made a hasty U-
turn, and returned to the city. All the time, the sisters were consistently
threatened with summary execution. Marilou pleaded for their freedom and told
them to just take the pick-up. The plea, however, fell on deaf ears. Appellants
detoured and entered a dirt road leading to Malasag where they parked the
vehicle. At this juncture, Gaid had transferred to the backseat with Marilou while
Maritess was made to sit up in front with Fortich. Gaid poked his gun at the right
side of Marilous neck and ordered her to remove her pants under pain of
death. Aware that she was biding her time, he himself removed her pants with
the gun still pointed at her. She implored that she be spared but Gaid, who was
obviously much stronger, forced her legs apart, positioned himself on top of her,
kissed and fondled her, and succeeded in consummating his bestial
act. Maritess, on the other hand, was ravaged by Fortich. Appellants switched
victims twice before divesting them of their watches, a handbag
containing P15.00 in cash, a shirt, toilet tissue and toothbrush, and the pick-ups
stereo and tools. They then drove down the highway and left the sisters at a
gasoline station some three kilometers from the city. Unable to contact the
police, the victims proceeded to the Cagayan de Oro Medical Center (CMC)
and submitted themselves to medical examination.
Meanwhile, soon after appellants left Carmen Hill with the two sisters,
Imperio and Tumang ran to the City Hall and reported the robbery
incident. Acting on this report, the police immediately scoured the city for the
suspects but this proved unavailing. The victims proceeded to the Northern
Mindanao Regional Training Hospital in Cagayan de Oro City where Imperios
injury was examined and treated.
Prosecution witness Jaime Rivera testified that appellants went to his house
at about 4:00 oclock in the morning of April 1, 1983, bringing with them a
revolver and a bag containing a car stereo, watch and wallet. He was apparently
asked to sell the revolver for not less than P300.00, with a promise that he
would receive a fifty percent commission. In the course of selling the firearm,
he was apprehended by the police and detained at the City Hall for six days.
Police investigator Eulalio Rafesora of the Cagayan de Oro Integrated
National Police (INP) testified that upon Fortichs arrest, the latter was apprised
of his constitutional rights which he, however, expressly waived. Accordingly,
on April 4, 1983, an interrogation conducted by the police ensued and
statements elicited therein were reduced to writing and sworn to before another
prosecution witness, Deputy City Clerk of Court Aurelio I. Zaldivar, who also
reminded him of his rights.
Dr. Socrates Sabanal of CMC declared that he examined Marilou Nobleza
and found her to be suffering from the following injuries, viz.: superficial
abrasions (R) inner aspect, labia minora, hematoma, antero-medial aspect P/3
(R) thigh. He stated that the abrasions on the labia minora were caused by the
forceful penetration of a penis into the vagina. As regards Maritess, Dr. Sabanal
revealed the extent of her injuries suffered as labial skin discoloration, probably
caused by a penis or a finger.
CMC Medical Director Dr. Francisco L. Oh testified that he treated Luis
Tumang for the following injuries, to wit: (1) fracture, depressed type left parietal
bone; (2) contusion hematoma left temporal area; (3) abrasion behind left ear;
and (4) multiple linear abrasions on both thighs and legs. A neuro-surgeon of
CMC, a certain Dr. Valmores, advised Tumang to seek further treatment in
another hospital as the head injury could have fatally affected the brain.
Tumang was admitted at the Medical City General Hospital in Mandaluyong,
Metro Manila, from April 7 to 16, 1983, under the care of Dr. Bienvenido B.
Aldanese, incurring a total expense of P22,603.85.
 Contrary to the foregoing facts, the defense relied on the uncorroborated
testimonies of appellants.
Appellant Fortich, a 20-year old driver residing at Buenavista Village,
Cagayan de Oro City, recounted that at about 8:30 in the evening of March 31,
1983, he left Barangay Gusa for the city and there met Gaid with whom he has
applied for a driving job. He was invited to dinner and a few drinks at Gaids
house. After sometime, they allegedly got drunk and hied off to Carmen Hill to
appreciate its cool and breezy atmosphere. Thereafter, a pick-up arrived from
which a group of two men and two women alighted. They then laid a mat on the
grass behind their vehicle. Appellants were ten meters away from them when
suddenly the two men, piqued by their presence, furiously rushed towards them.
Fortich allegedly defended himself by striking one of them with a flashlight
causing the latter to fall down.
To escape the wrath of the two men, appellants drove the pick-up with the
two sisters and headed towards Acua beach which, however, was closed for
the night. Fortich alleged that after conversing with the sisters for some time,
the latter alighted at Marcos Bridge while Gaid drove him to his house in Patag.
Fortich denied, among other things, that he sexually violated Marilou or that
he even possessed a firearm, as alleged by Tumang and Imperio. As regards
the affidavit taken during the custodial investigation, he admitted that the
signature appearing therein was his but the same was obtained through duress.
Appellant Gaid had a slightly different version of what transpired on March
31, 1983. He narrated that after consuming hard liquor, both of them proceeded
to Carmen Hill. Upon reaching said place, they noticed a pick-up with a male
and female inside and another couple at the open rear end of the vehicle. As
the two pairs were allegedly caressing and kissing, they stood watching for
almost thirty minutes. Later, the couple inside emerged from the vehicle and
joined the other two at the back. All of them were naked and engaged in sexual
congress on a mat lying on the grassy spot. The women, later identified as
sisters Marilou and Maritess, noticed them and immediately grabbed their
clothing and scampered inside the pick-up, while their male partners confronted
the appellants. A scuffle ensued. After throwing several punches, Gaid darted
towards the pick-up and saw Fortich already seated on the drivers seat with the
sisters at the back seat.
Fortich drove towards Acua beach at Baloy. During the trip, Gaid chatted
with Maritess who appeared to be an old acquaintance of his. Apparently, it was
Maritess who urged them to proceed to Acua beach. The sisters even drank
bottles of beer and smoked three sticks of marijuana.
 It was past midnight when they reached Acua beach and after having gone
through a horrible night, they decided to park the vehicle to rest. Fortich fell
asleep while Maritess vomitted.When the latter felt better, Gaid drove the sisters
to somewhere in Licoan and Fortich, to his house in Patag. While traversing the
Patag-Carmen road, he observed that a police vehicle was following
him. Alarmed, he hurriedly accelerated his speed. When he passed a military
check-point, he was fired upon. Fortunately, only the rear portion of the vehicle
was hit.
Gaid reached Kamarok, an interior barangay of Opol, at about 2:00 oclock
in the morning and repaired to the house of his mother-in-law Beatrice
Rivera. He told his brother-in-law Jaime Rivera, a witness for the prosecution,
the details of what allegedly transpired in the night. Two days thereafter, he
slipped back into the city by passing through another town and resumed driving
his passenger jeep.
In its decision dated August 15, 1984, the trial court convicted appellants
[6]

in the following manner:

WHEREFORE, in view of all the foregoing consideration, the court(:)

(1) FINDS, in CRIMINAL CASE NO. 3977 both accused PERMONETTE JOY
FORTICH and RUDY (Boy) GAID, guilty beyond reasonable doubt as principals, of
the crime of simple ROBBERY as defined and penalized under Article 294, paragraph
five (5) of the Revised Penal Code, with the mitigating circumstance of drunkenness,
which is not habitual and not offset by any aggravating circumstance, and applying
the INDETERMINATE SENTENCE LAW, hereby imposes upon each of them the
indeterminate penalty of Four (4) Years and Two (2) Months of PRISION
CORRECCIONAL, as minimum, to Six (6) Years, One (1) Month and Ten (10) Days,
of PRISION MAYOR, as maximum, and to pay the costs; and to indemnify Luis S.
Tumang, the amounts of One Thousand Twenty-Five (P1,025.42) Pesos and Forty-
two Centavos, for the cash and articles stolen; and the total amount of Twenty Two
Thousand Six Hundred Three Pesos and 85/100 (P22,603.85) for plane fare,
hospitalization and medical expenses; and the further sum of P5,000.00, for moral
damages. Accused shall be credited with the period of their preventive
imprisonment. The home-made revolver .22 cal., (Exh. A) is hereby forfeited in favor
of the Government;

(2) FINDS, in CRIMINAL CASE NO. 4162, both accused Permonette Joy Fortich
and Rudy (Boy) Gaid, guilty beyond reasonable doubt, as principals of the crime of
Simple ROBBERY, as defined and penalized under Article 294, paragraph five (5) of
the Revised Penal Code, with the sole mitigating circumstance of drunkenness, which
is not habitual, and not offset by any aggravating circumstance, and applying the
Indeterminate Sentence Law, hereby imposes upon each of them the indeterminate
penalty of Four (4) Years and Two (2) Months of PRISION CORRECCIONAL, as
minimum, to Six (6) Years, One (1) Month and Ten (10) Days of PRISION MAYOR,
as maximum; and to pay the costs; and to indemnify ROLLY IMPERIO the amount of
Two Hundred Sixty Five (P265.00), value of the cash and articles stolen; and Two
Thousand Pesos (P2,000.00) for moral damages. Accused shall be credited with the
full period of their preventive imprisonment. The .22 caliber homemade Revolver
(Exh. A) is hereby confiscated in favor of the Government; likewise, the
ammunitions, Exhs. A-1 to A-8.

(3) FINDS, in CRIMINAL CASE NO. 3809, both accused PERMONETTE JOY
FORTICH and RUDY (Boy) GAID guilty beyond reasonable doubt as principals of
the crime of FORCIBLE ABDUCTION WITH RAPE, with the use of a deadly
weapon as defined and penalized in Article 342, in relation to Article 335 of the
Revised Penal Code, with the lone mitigating circumstance of drunkenness, which is
not habitual and with no aggravating circumstance to offset the same, hereby imposes
upon each of them the penalty of RECLUSION PERPETUA; and to indemnify
MARILOU NOBLEZA, the amount of Twenty Four (P24,000) Thousand Pesos; and
the costs. The .22 cal. Revolver (Exh. A) is hereby forfeited in favor of the
Government. Accused shall be credited with the period of their preventive
imprisonment. Likewise, the ammunitions, Exhs. A-1 to A-8 are confiscated in favor
of the government.

(4) FINDS, in CRIMINAL CASE NOS. (sic) 3896, that the crime herein charged is
already included in the aforementioned Crim. Case No. 3809, hence the same is
dismissed, with costs de oficio.

(5) FINDS, in CRIMINAL CASE NO. 3877, both accused PERMONETTE JOY
FORTICH AND RUDY (Boy) GAID guilty beyond reasonable doubt as principals of
the crime of FORCIBLE ABDUCTION, as defined and penalized under Article 342
of the Revised Penal Code, with the sole mitigating circumstance of drunkenness,
which is not habitual, and with no aggravating circumstance to offset the same, and
applying the Indeterminate Sentence Law, hereby imposes upon each of them the
indeterminate penalty of EIGHT (8) YEARS and ONE (1) DAY, of PRISION
MAYOR, as minimum, to TWELVE (12) YEARS and ONE (1) DAY
OF RECLUSION TEMPORAL, as maximum; and to pay the costs; and to indemnify
MARITESS NOBLEZA the amount of TWELVE THOUSAND (P12,000.00)
Pesos. The Revolver (Exh. A) is forfeited in favor of the Government; likewise the
ammunitions, Exhs. A-1 to A-8.
(6) FINDS, in CRIMINAL CASE NO. 3878, that the crime charged herein is already
included in the aforementioned Criminal Case No. 3877, hence the same is hereby
DISMISSED, with costs de oficio.

SO ORDERED. [7]

From this judgment, appellants interposed the instant appeal, raising the
following assignment of errors:

1. The trial court erred in admitting the extrajudicial confession of accused-appellant

Permonette Joy Fortich despite the fact that it was taken in violation of his
constitutional right to counsel.

2. The trial court erred in convicting herein accused-appellants despite failure of the
prosecution to prove their guilt beyond reasonable doubt. [8]

We find no reversible error impelling a reversal of the trial courts decision.

We cannot sustain the argument for the defense that the extra-judicial
confession of Fortich obtained without the assistance of counsel is inadmissible
in evidence.
The doctrine that an uncounseled waiver of the right to counsel is not to be
given legal effect was first pronounced on April 26, 1983, in Morales v.
Enrile and reiterated in People v. Galit on March 20, 1985. While
[9] [10]

the Morales-Galit doctrine eventually became part of Section 12(1) of the 1987
Constitution, it affords no relief to appellants, for the requirements and
restrictions outlined therein have no retroactive effect and do not affect waivers
made prior to April 26, 1983.
In the instant case, the extra-judicial confession and waiver were executed
on April 4, 1983. The trial court correctly admitted the same for there was at that
time no pronounced guidelines requiring that the waiver of counsel by accused
can be properly made only with the presence and assistance of counsel. If [11]

indeed Fortichs confession was extracted from him as a result of coercion by

policemen at the police station, he could have informed Deputy Clerk of Court
Zaldivar and his counsel Atty. Leo Roa of the maltreatment he suffered.
Thus, the Court has ruled that where one who has made a confession fails
to present any evidence of compulsion or duress or violence on his person for
purposes of extracting a confession; where he failed to complain to the officers
who administered the oaths, such as the fiscal in this case; where he did not
institute any criminal or administrative action for maltreatment against his
alleged intimidators; where he did not have himself examined by a reputable
physician to buttress his claim of maltreatment; and where the assailed
confession is replete with details which could not have been known to the police
officers if they had merely concocted the confession, since the statements were
inculpatory in character, the extrajudicial confession may be admitted, with the
above circumstances being considered as factors indicative of
voluntariness. Accordingly, the extra-judicial confession and waiver voluntarily
[12]

and intelligently made by Fortich are admissible in evidence.

Appellants anchor their defense solely on the denial of the charges imputed
to them.
It is an established doctrine that the defense of denial cannot prevail over
the positive identification of the accused. The court is convinced that Marilou
[13]

did recognize the physical features of her tormentors as she was in a supine
position when appellants successively mounted her. The victims recognition of
appellant as her attacker cannot be doubted for she had ample opportunity to
see the face of the man who ravaged her during the carnal act. She was as
[14]

close to the appellants as was physically possible, for a man and a woman
cannot be physically closer to each other than during a sexual act. Marilou [15]

had ample opportunity to observe appellants while she was being terrorized
and, subsequently raped. Thus, there is no reason to doubt the veracity of her
statement where she declared that she recognized appellants as her
transgressors. Moreover, the latter failed to show any reason why Marilou
would impute such a serious charge against them. Needless to state, a
straightforward, clear and positive testimony, coupled with the absence of any
motive to fabricate or to falsely implicate the accused, may be enough to convict
the appellant. [16]

Aside from being positively identified, the different versions presented by

appellants are contrary to ordinary human experience.
The following declaration of the trial court that the testimonies of appellants
are incredulous is well taken.

The claim of the accused that the departure from Alta Tierra, on the pick-up to Acua
beach was the idea of Maritess Nobleza does not inspire belief. Marilou testified that
it was the idea of one of the two accused. The sisters, Marilou and Maritess, are
single, presumably virgins, and absent contrary proof, (the accused having adduced
none) are presumed to be modest and chaste in keeping with traditional Filipina
disposition. The court cannot believe that in a gunshot-filled atmosphere, almost
chameleon-like (-) the girls would transfer their promiscuous desires (if ever they
were) from their erstwhile male companions (Tumang and Imperio) in a brief
encounter and stoically abandon the two companions and in turn seek pleasure
somewhere with new partners who had earlier allegedly come upon them in the act of
making love on a mat behind the pick-up. The court cannot believe that Maritess and
Marilou - sisters as they are - would be so promiscuous and profiligately (sic)
libidinous that they would make love with two male companions, in the presence, and
within sight of each other.
[17]

It should be noted that Maritess Nobleza, for unknown reasons, did not
testify for the prosecution. Marilous assertion that her sister was simultaneously
violated, however, supports a finding of appellants guilt. Time and again, the
Court has declared that in crimes of rape, conviction or acquittal virtually
depends entirely on the credibility of the victims testimony because of the fact
that usually only the participant can testify to its occurrence. The case at bar
[18]

presents an unlikely situation wherein two sisters were simultaneously ravaged

in the presence of, and in plain view, of the other. Accordingly, the failure of one
to declare in court her ordeal may be adequately proved by the other. In light of
this factual setting, there is, therefore, no doubt that Maritess was likewise a
victim of multiple rapes.
As regards Criminal Cases No. 3977 and 4162 for robbery with frustrated
homicide and robbery, respectively, Article 293 of the Revised Penal Code
provides:

Article 293. Who are guilty of robbery. - Any person who, with intent to gain, shall
take any personal property belonging to another, by means of violence against or
intimidation of any person or using force upon anything shall be guilty of robbery.

The trial court, however, erred in designating the crime committed as

robbery with frustrated homicide. There is no such crime. There should have
[19]

been two separate informations: one for robbery and another for frustrated
homicide. Notwithstanding the erroneous charge in the information, the Court
finds no reason to overturn the conviction of appellants for the crime of simple
robbery.
The asportation by appellants of the personal properties was done by
means of violence against or intimidation upon the persons of Imperio and
Tumang. It appears further that Imperio suffered cranial injury which allegedly
required three stitches to repair. Inasmuch as the doctor who issued the
medical certificate did not testify thereon, said certificate is hearsay evidence
as to the nature of the injuries inflicted and, therefore, inadmissible in
evidence. In People v. Pesena, it was ruled that when there is no evidence of
[20]

actual incapacity of the offended party for labor or of the required medical
attendance, it is only slight physical injuries.
 As regards the injuries suffered by Tumang, we subscribe to the finding of
the lower court that, notwithstanding the non-presentation of Dr. Aldanese of
the Medical City General Hospital at the trial, Tumangs credible testimony
bolstered by documentary evidence, such as progress payments and
professional fees for neurological management and craniatomy excision of
depressed fracture, proved that the latter suffered less serious physical injuries,
as defined in Article 265 of the Revised Penal Code.
[21]

With respect to the charge of frustrated homicide in Criminal Case No. 3977,
the trial court correctly observed that the element of intent to kill was not
present. It must be stressed that while Fortich was armed with a handgun, he
never shot Tumang but merely hit him on the head with it. In Mondragon v.
People, it was held that the intent to kill being an essential element of the
[22]

offense of frustrated or attempted homicide, said element must be proved by

clear and convincing evidence and with the same degree of certainty as is
required of the other elements of the crime. The inference of intent to kill should
not be drawn in the absence of circumstances sufficient to prove such intent
beyond reasonable doubt.
The physical injuries inflicted upon Imperio and Tumang by reason of or on
the occasion of the robbery are penalized under Article 294, paragraph 5 of the
Revised Penal Code which provides:

Art. 294. Robbery with violence against or intimidation of persons. - Penalties. - Any
person guilty of robbery with the use of violence against or intimidation of any person
shall suffer.

xxxxxxxxx

5. The penalty of prision correccional in its maximum period to prision mayor in its
medium period in other cases. [23]

The trial court correctly disregarded the aggravating circumstances of

nighttime, uninhabited place, and use of a motor vehicle. The mitigating
circumstance of intoxication, however, was erroneously appreciated in favor of
both appellants.
Nocturnity is an aggravating circumstance when it is deliberately sought to
prevent the accused from being recognized or to ensure his unmolested
escape. There must be proof that this was intentionally sought to insure the
[24]

commission of the crime and that appellants took advantage thereof. In the
instant case, there is paucity of evidence that the peculiar advantage of
nighttime was purposely and deliberately sought by the accused; the fact that
the offense was committed at night will not suffice to sustain nocturnidad. [25]

Neither can the use of a motor vehicle be appreciated as an aggravating

circumstance. In the case at bar, the offenses of robbery and forcible abduction
with rape could have been effected even without the aid of a motor vehicle. In
the case of People v. Mil, it was held that use of a motor vehicle is not
[26]

aggravating where it was not used to facilitate the crime or that the crime could
not have been committed without it. In People v. Garcia, the use of motor
[27]

vehicle was deemed unaggravating if its use was merely incidental and was not
purposely sought to facilitate the commission of the offense or to render the
escape of the offender easier and his apprehension difficult.
As regards the aggravating circumstance of uninhabited place, the records
do not show that appellants actually sought an isolated place to better execute
their purpose. The evidence needed to support its application are
insufficient. Accordingly, this circumstance should not be considered against
appellants.
The lower court, however, erred in appreciating intoxication as a generic
mitigating circumstance. Under the Revised Penal Code, intoxication is
mitigating when it is not habitual or delinquent, that is, not subsequent to the
plan to commit the crime. In People v. Apduhan, Jr., it was held that to be
[28]

mitigating, the accuseds state of intoxication must be proved. Once intoxication

is established by satisfactory evidence, in the absence of proof to the contrary,
it is presumed to be non-habitual or unintentional. In the case at bar, appellants
merely alleged that when the offenses were committed, they were already
drunk. This self-serving statement stands uncorroborated. Obviously, it is
devoid of any probative value. [29]

The trial court found ample evidence to support a finding of

conspiracy. Conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit
it. Direct proof is not essential to show conspiracy as its existence could be
[30]

inferred from the conduct of the accused before, during and after the
commission of the crime, showing that the accused had acted in unison with
each other, evincing a common purpose or design. It is not necessary to show
[31]

that two or more persons met together and entered into an explicit agreement
setting out the details of an unlawful scheme or the details by which an illegal
objective is to be carried out. Conviction is proper upon evidence showing that
[32]

appellants acted in concert, each of them doing his part in the commission of
the offense. In People v. Gundran, it was held that in such a case, the act of
[33]
one becomes the act of all and each of the accused will thereby be deemed
equally guilty of the crime committed.
In the case at bar, the evidence revealed that appellants arrived together at
Carmen Hill and, at gunpoint, forcibly took Imperio and Tumangs personal
belongings and fled with the sisters on board the stolen pick-up. After fleeing,
appellants successively abused Marilou and Maritess inside the vehicle. These
acts manifestly disclose their joint purpose and design, concerted action and
community of interest. [34]

The Court is, therefore, convinced that appellants criminal culpability of

every charge was proved beyond reasonable doubt.
In the case of People v. Julian, however, it was ruled that when the first
[35]

act of rape was committed by appellant, the complex crime of forcible abduction
with rape was then consummated. Any subsequent acts of intercourse would
be only separate acts of rape and can no longer be considered separate
complex crimes of forcible abduction with rape.Accordingly, a modification of
trial courts decision is in order.
WHEREFORE, the decision of the trial court dated August 15, 1984 is
hereby MODIFIED as follows:
In Criminal Case No. 3809: Forcible Abduction with Rape
Appellants Permonette Joy Fortich and Rudy Gaid are hereby convicted of
the crime of forcible abduction with rape and, likewise, of three counts of rape
as defined and penalized in Article 342, in relation to Article 335, of the Revised
Penal Code. Accordingly, appellants shall each suffer four terms of reclusion
perpetua. In line with recent jurisprudence, appellants are further ordered to
[36]

indemnify Marilou Nobleza in the amount of P200,000.00 each as moral

damages.
In Criminal Case No. 3877: Forcible Abduction with Rape
Appellants Permonette Joy Fortich and Rudy Gaid are hereby convicted of
the crime of forcible abduction with rape and, likewise, of three counts of rape
as defined and penalized in Article 342, in relation to Article 335, of the Revised
Penal Code. Accordingly, appellants shall each suffer four terms of reclusion
perpetua. In line with recent jurisprudence, appellants are further ordered to
indemnify Maritess Nobleza in the amount of P200,000.00 each as moral
damages.
In Criminal Cases No. 3977 and 4162: Robbery
Appellants Permonette Joy Fortich and Rudy Gaid are hereby convicted of
the crime of simple robbery as defined and penalized under Article 294,
paragraph 5 of the Revised Penal Code. Applying the Indeterminate Sentence
Law, appellants shall each suffer twice the penalty of four (4) years and two (2)
months of prision correccional, as minimum, to six (6) years, one (1) month and
ten (10) days, of prision mayor and shall solidarily indemnify Luis S. Tumang in
the amount of (1) P1,025.42 for the cash and articles stolen; (2) the aggregate
amount of P22,603.85 for the plane fare and medical expenses; (3) and the
further sum of P10,000.00 as moral damages. Appellants shall likewise pay
Rolly Imperio the amount of P265.00 for the cash and articles stolen and
P10,000.00 as moral damages.
The .22 caliber revolver and ammunitions are FORFEITED in favor of the
Government. Costs against appellants.
SO ORDERED.
PROSECUTION OF CRIMES AGAINST CHASTITY

BELTRAN VS PEOPLE

IMELDA MANALAYSAY PILAPIL, petitioner,

vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court
of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila;
and ERICH EKKEHARD GEILING, respondents.

REGALADO, J.:

An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to
be followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to
lay down a decisional rule on what hitherto appears to be an unresolved jurisdictional question.

On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private
respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of Births,
Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started
auspiciously enough, and the couple lived together for some time in Malate, Manila where their only
child, Isabella Pilapil Geiling, was born on April 20, 1980. 1

Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a
separation de facto between them.

After about three and a half years of marriage, such connubial disharmony eventuated in private
respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg
Local Court in January, 1983. He claimed that there was failure of their marriage and that they had
been living apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal separation, support and separation of property
before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still
pending as Civil Case No. 83-15866. 3

On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany,
promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of
the child was granted to petitioner. The records show that under German law said court was locally
and internationally competent for the divorce proceeding and that the dissolution of said marriage
was legally founded on and authorized by the applicable law of that foreign jurisdiction. 4

On June 27, 1986, or more than five months after the issuance of the divorce decree, private
respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while still
married to said respondent, petitioner "had an affair with a certain William Chia as early as 1982 and
with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los
Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases on the
ground of insufficiency of evidence. 5 However, upon review, the respondent city fiscal approved a
resolution, dated January 8, 1986, directing the filing of two complaints for adultery against the
petitioner. 6 The complaints were accordingly filed and were eventually raffled to two branches of the
Regional Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and
William Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by
the respondent judge; while the other case, "People of the Philippines vs. Imelda Pilapil and James
Chua", docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch
XXV, of the same court. 7

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid
resolution of respondent fiscal be set aside and the cases against her be dismissed. 8 A similar
petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of
Justice, through the Chief State Prosecutor, gave due course to both petitions and directed the
respondent city fiscal to inform the Department of Justice "if the accused have already been
arraigned and if not yet arraigned, to move to defer further proceedings" and to elevate the entire
records of both cases to his office for review. 9

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend
further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in
Criminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the
arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date, petitioner
moved for the cancellation of the arraignment and for the suspension of proceedings in said Criminal
Case No. 87-52435 until after the resolution of the petition for review then pending before the
Secretary of Justice. 11 A motion to quash was also filed in the same case on the ground of lack of
jurisdiction, 12 which motion was denied by the respondent judge in an order dated September 8,
1987. The same order also directed the arraignment of both accused therein, that is, petitioner and
William Chia. The latter entered a plea of not guilty while the petitioner refused to be arraigned. Such
refusal of the petitioner being considered by respondent judge as direct contempt, she and her
counsel were fined and the former was ordered detained until she submitted herself for
arraignment. 13 Later, private respondent entered a plea of not guilty. 14

On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a
prayer for a temporary restraining order, seeking the annulment of the order of the lower court
denying her motion to quash. The petition is anchored on the main ground that the court is without
jurisdiction "to try and decide the charge of adultery, which is a private offense that cannot be
prosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as an
offended spouse having obtained a final divorce decree under his national law prior to his filing the
criminal complaint." 15

On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from
implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal
Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoñez
acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations, issued a
resolution directing the respondent city fiscal to move for the dismissal of the complaints against the
petitioner. 16

We find this petition meritorious. The writs prayed for shall accordingly issue.

Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes
against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended
spouse. It has long since been established, with unwavering consistency, that compliance with this
rule is a jurisdictional, and not merely a formal, requirement. 18 While in point of strict law the
jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a
sworn written complaint is just as jurisdictional a mandate since it is that complaint which starts the
prosecutory proceeding 19 and without which the court cannot exercise its jurisdiction to try the case.

Now, the law specifically provides that in prosecutions for adultery and concubinage the person who
can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of
seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of
the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended
party. The so-called exclusive and successive rule in the prosecution of the first four offenses above
mentioned do not apply to adultery and concubinage. It is significant that while the State, as parens
patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate
the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction,
abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such
amendment did not include the crimes of adultery and concubinage. In other words, only the
offended spouse, and no other, is authorized by law to initiate the action therefor.

Corollary to such exclusive grant of power to the offended spouse to institute the action, it
necessarily follows that such initiator must have the status, capacity or legal representation to do so
at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in
fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as
of the filing of the complaint or petition.

The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that
the same requirement and rationale would not apply. Understandably, it may not have been found
necessary since criminal actions are generally and fundamentally commenced by the State, through
the People of the Philippines, the offended party being merely the complaining witness therein.
However, in the so-called "private crimes" or those which cannot be prosecuted de oficio, and the
present prosecution for adultery is of such genre, the offended spouse assumes a more predominant
role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his
power and option.

This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the
outrage in silence rather than go through the scandal of a public trial. 20 Hence, as cogently argued
by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is
still subsisting at the time of the institution of the criminal action for, adultery. This is a logical
consequence since the raison d'etre of said provision of law would be absent where the supposed
offended party had ceased to be the spouse of the alleged offender at the time of the filing of the
criminal case. 21

In these cases, therefore, it is indispensable that the status and capacity of the complainant to
commence the action be definitely established and, as already demonstrated, such status or
capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacity
to bring the action would be determined by his status beforeor subsequent to the commencement
thereof, where such capacity or status existed prior to but ceased before, or was acquired
subsequent to but did not exist at the time of, the institution of the case. We would thereby have the
anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to
do so.

To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as
to when precisely the status of a complainant as an offended spouse must exist where a criminal
prosecution can be commenced only by one who in law can be categorized as possessed of such
status. Stated differently and with reference to the present case, the inquiry ;would be whether it is
necessary in the commencement of a criminal action for adultery that the marital bonds between the
complainant and the accused be unsevered and existing at the time of the institution of the action by
the former against the latter.

American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with
ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the
right to institute proceedings against the offenders where the statute provides that the innocent
spouse shall have the exclusive right to institute a prosecution for adultery. Where, however,
proceedings have been properly commenced, a divorce subsequently granted can have no legal
effect on the prosecution of the criminal proceedings to a conclusion. 22

In the cited Loftus case, the Supreme Court of Iowa held that —

'No prosecution for adultery can be commenced except on the complaint of the
husband or wife.' Section 4932, Code. Though Loftus was husband of defendant
when the offense is said to have been committed, he had ceased to be such when
the prosecution was begun; and appellant insists that his status was not such as to
entitle him to make the complaint. We have repeatedly said that the offense is
against the unoffending spouse, as well as the state, in explaining the reason for this
provision in the statute; and we are of the opinion that the unoffending spouse must
be such when the prosecution is commenced. (Emphasis supplied.)

We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction,
considering our statutory law and jural policy on the matter. We are convinced that in cases of such
nature, the status of the complainant vis-a-vis the accused must be determined as of the time the
complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse,
and by this is meant that he is still married to the accused spouse, at the time of the filing of the
complaint.

In the present case, the fact that private respondent obtained a valid divorce in his country, the
Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in
the Philippines insofar as private respondent is concerned 23 in view of the nationality principle in our
civil law on the matter of status of persons.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United
States court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil
case in a trial court here alleging that her business concern was conjugal property and praying that
she be ordered to render an accounting and that the plaintiff be granted the right to manage the
business. Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance,
thus:

There can be no question as to the validity of that Nevada divorce in any of the
States of the United States. The decree is binding on private respondent as an
American citizen. For instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. ...

It is true that owing to the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy against absolute divorces
the same being considered contrary to our concept of public policy and morality.
However, aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law. ...

Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's
husband entitled to exercise control over conjugal assets. ... 25

Under the same considerations and rationale, private respondent, being no longer the husband of
petitioner, had no legal standing to commence the adultery case under the imposture that he was
the offended spouse at the time he filed suit.

The allegation of private respondent that he could not have brought this case before the decree of
divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case.
When said respondent initiated the divorce proceeding, he obviously knew that there would no
longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed.
Neither would there be a danger of introducing spurious heirs into the family, which is said to be one
of the reasons for the particular formulation of our law on adultery, 26 since there would thenceforth
be no spousal relationship to speak of. The severance of the marital bond had the effect of
dissociating the former spouses from each other, hence the actuations of one would not affect or
cast obloquy on the other.

The aforecited case of United States vs. Mata cannot be successfully relied upon by private
respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of
the Revised Penal Code, which punished adultery "although the marriage be afterwards declared
void", the Court merely stated that "the lawmakers intended to declare adulterous the infidelity of a
married woman to her marital vows, even though it should be made to appear that she is entitled to
have her marriage contract declared null and void, until and unless she actually secures a formal
judicial declaration to that effect". Definitely, it cannot be logically inferred therefrom that the
complaint can still be filed after the declaration of nullity because such declaration that the marriage
is void ab initio is equivalent to stating that it never existed. There being no marriage from the
beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg
to stand on. Moreover, what was consequently contemplated and within the purview of the decision
in said case is the situation where the criminal action for adultery was filed beforethe termination of
the marriage by a judicial declaration of its nullity ab initio. The same rule and requisite would
necessarily apply where the termination of the marriage was effected, as in this case, by a valid
foreign divorce.

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer
the same fate of inapplicability. A cursory reading of said case reveals that the offended spouse
therein had duly and seasonably filed a complaint for adultery, although an issue was raised as to its
sufficiency but which was resolved in favor of the complainant. Said case did not involve a factual
situation akin to the one at bar or any issue determinative of the controversy herein.

WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and
another one entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of
jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby made
permanent.

SO ORDERED.

LIBEL

G.R. No. 189754 : October 24, 2012

LITO BAUTISTA and JIMMY ALCANTARA, Petitioners, v. SHARON G. CUNETA-

PANGILINAN,Respondent.

DECISION

PERALTA, J.:

Before the Court is the petition for review on certiorari seeking to set aside the Decision1 elated May 19, ς rν ll

2009 and Resolution2 dated September 28, 2009 of the Court of Appeals (CA), in CA-G.R. SP No. 104885,
ς rνll

entitled Sharon G. Cuneta-Pangilinan v. lion. Rizalina T Capco-Urnali, in her capacity as Presiding Judge of
the Regional Trial Court in Mandaluyong City, Branch 212, Lito Bautista, and Jimmy Alcantara, which
granted the

petition for certiorari of respondent Sharon G. Cuneta-Pangilinan. TheCA Decision reversed and set aside the
Order3 dated April 25, 2008 of the Regional Trial Court (RTC), Branch 212, Mandaluyong City, but only
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insofar as it pertains to the granting of the Demurrer to Evidence filed by petitioners Lito Bautista (Bautista)
and Jimmy Alcantara (Alcantara), and also ordered that the case be remanded to the trial court for reception
of petitioners' evidence.

The antecedents are as follows: chanroblesv irt uallawl ibra ry

On February 19, 2002, the Office of the City Prosecutor of Mandaluyong City filed two (2) informations, both
dated February 4, 2002, with the RTC, Branch 212, Mandaluyong City, against Pete G. Ampoloquio, Jr.
(Ampoloquio), and petitioners Bautista and Alcantara, for the crime of libel, committed by publishing
defamatory articles against respondent Sharon Cuneta-Pangilinan in the tabloid Bandera.

In Criminal Case No. MC02-4872, the Information dated February 4, 2002 reads: chanrob lesvi rtual lawlib rary

That on or about the 24th day of April, 2001, in the City of Mandaluyong, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with
Jane/John Does unknown directors/officer[s] of Bandera Publishing Corporation, publisher of Bandera,
whose true identities are unknown, and mutually helping and aiding one another, with deliberate intent to
bring SHARON G. CUNETA-PANGILINAN into public dishonor, shame and contempt, did then and there
wilfully, unlawfully and feloniously, and with malice and ridicule, cause to publish in Bandera (tabloid), with
circulation in Metro Manila, which among others have the following insulting and slanderous remarks, to wit:

MAGTIGIL KA, SHARON!

Sharon Cuneta, the mega-taba singer-actress, Id like to believe, is really brain-dead. Mukhang totoo yata
yung sinasabi ng kaibigan ni Pettizou Tayag na ganyan siya.
Hayan at buong ingat na sinulat namin yung interview sa kaibigan ng may-ari ng Central Institute of
Technology at ni isang side comment ay wala kaming ginawa and all throughout the article, weve
maintained our objectivity, pero sa interview sa aparadoric singer- actress in connection with an album
launching, ay buong ningning na sinabi nitong shes supposedly looking into the item that weve written and
most probably would take some legal action.

xxx

Magsalita ka, Missed Cuneta, at sabihin mong hindi ito totoo.

Ang hindi lang namin nagustuhan ay ang pagbintangan kaming palagi naman daw namin siyang

sinisiraan, kaya hindi lang daw niya kami pinapansin, believing na part raw siguro yun ng aming trabaho.

Dios mio perdon, what she gets to see are those purportedly biting commentaries about her katabaan and
kaplastikan but she has simply refused to acknowledge the good reviews weve done on her.

xxx

Going back to this seemingly disoriented actress whos desperately trying to sing even if she truly cant,
itanggi mo na hindi mo kilala si Pettizou Tayag gayung nagkasama raw kayo ng tatlong araw sa mother's
house ng mga Aboitiz sa Cebu more than a month ago, in connection with one of those political campaigns
of your husband.

xxx

thereby casting publicly upon complainant, malicious contemptuous imputations of a vice, condition or
defect, which tend to cause complainant her dishonor, discredit or contempt.

CONTRARY TO LAW.4 ςrνll

In Criminal Case No. MC02-4875, the Information dated February 4, 2002 reads: chanrob lesvi rtual lawlib rary

That on or about the 27th day of March, 2001, in the City of Mandaluyong, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with
Jane/John Does unknown directors/officers of Bandera Publishing Corporation, publisher of Bandera, whose
true identities are unknown, and mutually helping, and aiding one another, with deliberate intent to bring
SHARON G. CUNETA-PANGILINAN into public dishonor, shame and contempt did, then and there wilfully,
unlawfully and feloniously, and with malice and ridicule, cause to publish in Bandera (tabloid), with
circulation in Metro Manila, which, among others, have the following insulting and slanderous remarks, to
wit:

NABURYONG SA KAPLASTIKAN NI SHARON ANG MILYONARYANG SUPPORTER NI KIKO!

FREAKOUT pala kay Sharon Cuneta ang isa sa mga loyal supporters ni Kiko Pangilinan na si Pettizou Tayag,
a multi-millionaire who owns Central Institute of Technology College in Sampaloc, Manila (it is also one of
the biggest schools in Paniqui, Tarlac).

xxx

Which in a way, she did. Bagama't busy siya (she was having a meeting with some business associates), she
went out of her way to give Sharon security.

So, ang ginawa daw ni Ms. Tayag ay tinext nito si Sharon para mabigyan ito ng instructions para
kumportable itong makarating sa Bulacan.
She was most caring and solicitous, pero tipong na-offend daw ang megastar at nagtext pang "You dont
need to produce an emergency SOS for me, Ill be fine."

Now, nang makara[t]ing na raw sa Bulacan si Mega nagtatarang daw ito at binadmouth si Pettizou. Kesyo
ang kulit-kulit daw nito, atribida, mapapel at kung anu-ano pang mga derogatory words na nakarating
siyempre sa kinauukulan.

Anyhow, if its true that Ms. Pettizou has been most financially supportive of Kiko, how come Sharon seems
not to approve of her?

"She doesnt want kasi her husband to win as a senator because when that happens, mawawalan siya ng
hold sa kanya," our caller opines.

Pettizou is really sad that Sharon is treating her husband like a wimp.

"In public," our source goes on tartly, "pa kiss-kiss siya. Pa-embrace-embrace pero kung silang dalawa na
lang parang kung sinong sampid kung i-treat niya si Kiko."

My God Pete, Harvard graduate si Kiko. Hes really intelligent as compared to Sharon who appears to be
brain dead most of the time.

Yung text message niyang "You dont need to produce an emergency SOS for me," hindi bat she was being
redundant?

Another thing, I guess its high time that she goes on a diet again. Jesus, she looks 611 crosswise!

xxx

Kunsabagay, she was only being most consistent. Yang si Sharon daw ay talagang mega-brat, mega-sungit.
But who does she think she is? Her wealth, dear, would pale in comparison with the Tayags millions.
Kunsabagay, shes brain dead most of the time.

xxx

thereby casting publicly upon complainant, malicious contemptuous imputation of a vice, condition or defect,
which tend to cause complainant her dishonor, discredit or contempt.

CONTRARY TO LAW.5 ςrνll

Upon arraignment, petitioners, together with their co-accused Ampoloquio, each entered a plea of not guilty.
Thereafter, a joint pre-trial and trial of the case ensued.6
ςrν ll

Respondents undated Complaint-Affidavit7 alleged that Bautista and Alcantara were Editor and Associate
ςrνll

Editor, respectively, of the publication Bandera, and their co-accused, Ampoloquio, was the author of the
alleged libelous articles which were published therein, and subject of the two informations. According to
respondent, in April 2001, she and her family were shocked to learn about an article dated March 27, 2001,
featured on page 7 of Bandera (Vol. 11, No. 156), in the column Usapang Censored of Ampoloquio, entitled
Naburyong sa Kaplastikan ni Sharon ang

Milyonaryang Supporter ni Kiko, that described her as plastic (hypocrite), ingrate, mega-brat, mega-sungit,
and brain dead, which were the subject of Criminal Case No. MC02-4875.8 Another article, with the same
ςrνl l

title and similar text, also featured on the same date, appeared on page 6 of Saksi Ngayon, in the column
Banatan of Ampoloquio.9 Moreover, respondent averred that on April 24, 2001, Ampoloquio wrote two
ςrνll

follow-up articles, one appeared in his column Usapang Censored, entitled Magtigil Ka, Sharon!, stating that
she bad-mouthed one Pettizou Tayag by calling the latter kulit-kulit (annoyingly persistent), atribida
(presumptuous), mapapel (officious or self-important), and other derogatory words; that she humiliated
Tayag during a meeting by calling the latter bobo (stupid); that she exhibited offensive behavior towards
Tayag; and that she was a dishonest person with questionable credibility, which were the subject of Criminal
Case No. MC02-4872.10 Another article, entitled Magtigil Ka, Sharon Cuneta!!!!, also featured on the same
ςrν ll

date with similar text, and appeared on page 7 of Saksi Ngayon (Vol. 3, No. 285), in the column Banatan of
Ampoloquio,11 with the headline in bold letters, Sharon Cuneta, May Sira? on the front page of the said
ς rν ll

issue.12 Respondent added that Ampoloquios articles impugned her character as a woman and wife, as they
ς rν ll

depicted her to be a domineering wife to a browbeaten husband. According to Ampoloquio, respondent did
not want her husband (Senator Francis Pangilinan) to win (as Senator) because that would mean losing hold
over him, and that she would treat him like a wimp and sampid (hanger-on) privately, but she appeared to
be a loving wife to him in public. Respondent denied that Tayag contributed millions to her husbands
campaign fund. She clarified that Tayag assisted during the campaign and was one of the volunteers of her
husbands Kilos Ko Movement, being the first cousin of one Atty. Joaquinito Harvey B. Ringler (her husbands
partner in Franco Pangilinan Law Office); however, it was Atty. Ringler who asked Tayag to resign from the
movement due to difficulty in dealing with her.

After presenting respondent on the witness stand, the prosecution filed its Formal Offer of Documentary
Exhibits dated October 11, 2006, which included her undated Complaint-Affidavit.13 ςrν ll

On November 14, 2006, petitioners filed a Motion for Leave of Court to File the Attached Demurrer to
Evidence.14 In their Demurrer to Evidence,15 which was appended to the said Motion, Bautista and
ς rνll ς rνll

Alcantara alleged that the prosecution's evidence failed to establish their participation as Editor and
Associate Editor, respectively, of the publication Bandera; that they were not properly identified by
respondent herself during her testimony; and that the subject articles written by Ampoloquio were not
libelous due to absence of malice.

On April 25, 2008, the RTC issued an Order16 granting petitioners Demurrer to Evidence and dismissed
ςrνl l

Criminal Case Nos. MCO2-4872 and MCO2-4875. The trial court opined, among others, that since the
prosecution did not submit its Comment/Opposition to the petitioners' Demurrer to Evidence, the averments
therein thus became unrebutted; that the testimonial and documentary evidence adduced by the
prosecution failed to prove the participation of petitioners as conspirators of the crime charged; and that
during the direct examination on July 27, 2004 and cross-examination on August 1, 2006, respondent
neither identified them, nor was there any mention about their actual participation.

As a consequence, the prosecution filed a Motion to Admit17 dated May 29, 2008, with the attached
ς rνll

Comment (to Accused Lito Bautista and Jimmy Alcantara's Demurrer to Evidence)18 dated March 24, 2008,
ςrνl l

stating that during the pendency of the trial court's resolution on the petitioners' Motion for Leave of Court
to File the Attached Demurrer to Evidence, with the attached Demurrer to Evidence, the prosecution
intended to file its Comment, by serving copies thereof, through registered mail, upon counsels for the
petitioners, including the other accused, and the respondent; however, said Comment was not actually filed
with the trial court due to oversight on the part of the staff of the State Prosecutor handling the
case.19 Claiming that it was deprived of due process, the prosecution prayed that its Comment be admitted
ςrνll

and that the same be treated as a reconsideration of the trial court's Order dated April 25, 2008.

In an Order dated June 3, 2008, the RTC granted the prosecutions' Motion to Admit, with the attached
Comment, and ruled that its Comment be admitted to form part of the court records.

On August 19, 2008, respondent filed a Petition for Certiorari with the CA, seeking to set aside the RTC
Orders dated April 25, 2008 (which granted petitioners' Demurrer to Evidence and ordered the dismissal of
the cases against them) and June 3, 2008 (which noted and admitted respondent's Comment to form part of
the records of the case).

In a Decision dated May 19, 2009, the CA granted respondent's petition, thereby reversing and setting aside
the RTC Order dated April 25, 2008, but only insofar as it pertains to the grant of petitioners' Demurrer to
Evidence, and ordered that the case be remanded to the trial court for reception of petitioners' evidence.

Aggrieved, petitioners filed a Motion for Reconsideration dated June 7, 2009 which, however, was denied by
the CA in a Resolution dated September 28, 2009.

Hence, petitioners filed this present petition, raising the following arguments:
 I.

RESPONDENT'S PETITION FOR CERTIORARI BEFORE THE COURT OF APPEALS IS BARRED BY THE
PETITIONERS' RIGHT AGAINST DOUBLE JEOPARDY.

II.

RESPONDENT'S PETITION FOR CERTIORARI BEFORE THE COURT OF APPEALS DOES NOT LIE TO CORRECT
ALLEGED ERRORS OF JUDGMENT COMMITTED BY THE REGIONAL TRIAL COURT.

III.

THE COURT OF APPEALS ERRED IN FINDING THAT THE TRIAL COURT COMMITTED GRAVE ABUSE OF
DISCRETION IN GRANTING PETITONERS' DEMURRER TO EVIDENCE.

Petitioners allege that the Order of the RTC, dated April 25, 2008, granting the Demurrer to Evidence was
tantamount to an acquittal. As such, the prosecution can no longer interpose an appeal to the CA, as it
would place them in double jeopardy. Petitioners contend that respondent's petition for certiorari with the
CA should not have prospered, because the allegations therein, in effect, assailed the trial court's judgment,
not its jurisdiction. In other words, petitioners posit that the said Order was in the nature of an error of
judgment rendered, which was not correctible by a petition for certiorari with the CA.

Petitioners aver that although the CA correctly ruled that the prosecution had not been denied due process,
however, it erred in ruling that the trial court committed grave abuse of discretion in granting petitioners'
Demurrer to Evidence, on the basis that the prosecution failed to prove that they acted in conspiracy with
Ampoloquio, the author of the questioned articles. They added that what the prosecution proved was merely
their designations as Editor and Associate Editor of the publication Bandera, but not the fact that they had
either control over the articles to be published or actually edited the subject articles.

Respondent counters that petitioners failed to show special and important reasons to justify their invocation
of the Court's power to review under Rule 45 of the Rules of Court. She avers that the acquittal of
petitioners does not preclude their further prosecution if the judgment acquitting them is void for lack of
jurisdiction. Further, she points out that contrary to petitioners contention, the principle of double jeopardy
does not attach in cases where the court's judgment acquitting the accused or dismissing the case is void,
either for having disregarded the State's right to due process or for having been rendered by the trial court
with grave abuse of discretion amounting to lack or excess of jurisdiction, and not merely errors of
judgment.

Respondent also avers that even if the prosecution was deemed to have waived its right to file a Comment
on the petitioners Motion for Leave of Court to File the Attached Demurrer to Evidence, this did not give the
trial court any reason to deprive the prosecution of its right to file a Comment on the petitioners Demurrer
to Evidence itself, which was a clear violation of the due process requirement. By reason of the foregoing,
respondent insists that petitioners cannot invoke violation of their right against double jeopardy.

The petition is impressed with merit.

At the onset, it should be noted that respondent took a procedural misstep, and the view she is advancing is
erroneous. The authority to represent the State in appeals of criminal cases before the Supreme Court and
the CA is solely vested in the Office of the Solicitor General (OSG). Section 35 (1), Chapter 12, Title III,
Book IV of the 1987 Administrative Code explicitly provides that the OSG shall represent the Government of
the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding,
investigation or matter requiring the services of lawyers. It shall have specific powers and functions to
represent the

Government and its officers in the Supreme Court and the CA, and all other courts or tribunals in all civil
actions and special proceedings in which the Government or any officer thereof in his official capacity is a
party.20 The OSG is the law office of the Government.21
ςrνl l ςrνl l
To be sure, in criminal cases, the acquittal of the accused or the dismissal of the case against him can only
be appealed by the Solicitor General, acting on behalf of the State. The private complainant or the offended
party may question such acquittal or dismissal only insofar as the civil liability of the accused is concerned.
In a catena of cases, this view has been time and again espoused and maintained by the Court. In
Rodriguez v. Gadiane,22 it was categorically stated that if the criminal case is dismissed by the trial court or
ς rνll

if there is an acquittal, the appeal on the criminal aspect of the case must be instituted by the Solicitor
General in behalf of the State. The capability of the private complainant to question such dismissal or
acquittal is limited only to the civil aspect of the case. The same determination was also arrived at by the
Court in Metropolitan Bank and Trust Company v. Veridiano II.23 In the recent case of Bangayan, Jr. v. ςrνl l

Bangayan,24 the Court again upheld this guiding principle.

ςrνl l

Worthy of note is the case of People v. Santiago,25 wherein the Court had the occasion to bring this issue to
ςrνl l

rest. The Court elucidated: chanrob lesvi rt uallawlib ra ry

It is well-settled that in criminal cases where the offended party is the State, the interest of the private
complainant or the private offended party is limited to the civil liability. Thus, in the prosecution of the
offense, the complainant's role is limited to that of a witness for the prosecution. If a criminal case is
dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be
undertaken only by the State through the Solicitor General. Only the Solicitor General may represent the
People of the Philippines on appeal. The private offended party or complainant may not take such appeal.
However, the said offended party or complainant may appeal the civil aspect despite the acquittal of the
accused.

In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is alleged
that the trial court committed a grave abuse of discretion amounting to lack of jurisdiction or on other
jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved. In such case,
the aggrieved parties are the State and the private offended party or complainant. The complainant has an
interest in the civil aspect of the case so he may file such special civil action questioning the decision or
action of the respondent court on jurisdictional grounds. In so doing, complainant should not bring the
action in the name of the People of the Philippines. The action may be prosecuted in name of said
complainant.26 ςrνll

Thus, the Court has definitively ruled that in a criminal case in which the offended party is the State, the
interest of the private complainant or the private offended party is limited to the civil liability arising
therefrom. If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal of the
criminal aspect may be undertaken, whenever legally feasible, only by the State through the solicitor
general. As a rule, only the Solicitor General may represent the People of the Philippines on appeal. The
private offended party or complainant may not undertake such appeal.27 ςrνll

In the case at bar, the petition filed by the respondent before the CA essentially questioned the criminal
aspect of the Order of the RTC, not the civil aspect of the case. Consequently, the petition should have been
filed by the State through the OSG. Since the petition for certiorari filed in the CA was not at the instance of
the OSG, the same should have been outrightly dismissed by the CA. Respondent lacked the personality or
legal standing to question the trial courts order because it is only the Office of the Solicitor General (OSG),
who can bring actions on behalf of the State in criminal proceedings, before the Supreme Court and the
CA.28 Thus, the CA should have denied the petition outright.
ςrνl l

Moreover, not only did the CA materially err in entertaining the petition, it should be stressed that the
granting of petitioners Demurrer to Evidence already amounted to a dismissal of the case on the merits and
a review of the order granting the demurrer to evidence will place the accused in double jeopardy.
Consequently, the Court disagrees with the CAs ruling reversing the trial courts order dismissing the criminal
cases against petitioners.

Under Section 23,29 Rule 119 of the Rules of Court on Demurrer to Evidence, after the prosecution
ςrνl l

terminates the presentation of evidence and rests its case, the trial court may dismiss the case on the
ground of insufficiency of evidence upon the filing of a Demurrer to Evidence by the accused with or without
leave of court. If the accused files a Demurrer to Evidence with prior leave of court and the same is denied,
he may adduce evidence in his defense. However, if the Demurrer to Evidence is filed by the accused
without prior leave of court and the same is denied, he waives his right to present evidence and submits the
case for judgment on the basis of the evidence for the prosecution.
Corollarily, after the prosecution rests its case, and the accused files a Demurrer to Evidence, the trial court
is required to evaluate whether the evidence presented by the prosecution is sufficient enough to warrant
the conviction of the accused beyond reasonable doubt. If the trial court finds that the prosecution evidence
is not sufficient and grants the accused's Demurrer to Evidence, the ruling is an adjudication on the merits
of the case which is tantamount to an acquittal and may no longer be appealed. Any further prosecution of
the accused after an acquittal would, thus, violate the constitutional proscription on double jeopardy.30 ςrν ll

Anent the prosecutions claim of denial of due process. As correctly found by the CA, the prosecution was not
denied due process. Suffice it to state that the prosecution had actively participated in the trial and already
rested its case, and upon petitioners' filing of their Demurrer to Evidence, was given the opportunity to file
its Comment or Opposition and, in fact, actually filed its Comment thereto, albeit belatedly. The CA
emphasized that the word "may" was used in Section 23 of Rule 119 of the Revised Rules of Criminal
Procedure, which states that if leave of court is granted, and the accused has filed the Demurrer to Evidence
within a non-extendible period of ten (10) days from notice, the prosecution "may" oppose the Demurrer to
Evidence within a similar period from its receipt. In this regard, the CA added that the filing of a Comment
or Opposition by respondent is merely directory, not a mandatory or jurisdictional requirement, and that in
fact the trial court may even proceed with the resolution of the petitioners' Demurrer to Evidence even
without the prosecution's Comment.

One final note. Article 360 of the Revised Penal Code specifies the persons that can be held liable for libel. It
provides:c han roblesv irt uallawl ibra ry

ART. 360. Persons responsible. Any person who shall publish, exhibit or cause the publication or exhibition
of any defamation in writing or by similar means, shall be responsible for the same.

The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper,
magazine or serial publication, shall be responsible for the defamation contained therein to the same extent
as if he were the author thereof.31 ς rνll

From the foregoing, not only is the person who published, exhibited or caused the publication or exhibition
of any defamation in writing shall be responsible for the same, all other persons who participated in its
publication are liable, including the editor or business manager of a daily newspaper, magazine or serial
publication, who shall be equally responsible for the defamations contained therein to the same extent as if
he were the author thereof. The liability which attaches to petitioners is, thus, statutory in nature.

In Fermin v. People,32 therein petitioner argued that to sustain a conviction for libel under Article 360 of the
ςrν ll

Code, it is mandatory that the publisher knowingly participated in or consented to the preparation and
publication of the libelous article. She also averred that she had adduced ample evidence to show that she
had no hand in the preparation and publication of the offending article, nor in the review, editing,
examination, and approval of the articles published in Gossip Tabloid. The Court struck down her erroneous
theory and ruled that therein petitioner, who was not only the Publisher of Gossip Tabloid but also its
President and Chairperson, could not escape liability by claiming lack of participation in the preparation and
publication of the libelous article.

Similarly, in Tulfo v. People,33 therein petitioners, who were Managing Editor, National Editor of Remate
ς rν ll

publication, President of Carlo Publishing House, and one who does typesetting, editing, and layout of the
page, claim that they had no participation in the editing or writing of the subject articles which will hold
them liable for the crime of libel and, thus, should be acquitted. In debunking this argument, the Court
stressed that an editor or manager of a newspaper, who has active charge and control over the publication,
is held equally liable with the author of the libelous article. This is because it is the duty of the editor or
manager to know and control the contents of the paper, and interposing the defense of lack of knowledge or
consent as to the contents of the articles or publication definitely will not prosper.

The rationale for the criminal culpability of those persons enumerated in Article 360 was already elucidated
as early as in the case of U.S. v. Ocampo,34 to wit: ςrνl l c hanro blesvi rt uallawl ibra ry

According to the legal doctrines and jurisprudence of the United States, the printer of a publication
containing libelous matter is liable for the same by reason of his direct connection therewith and his
cognizance of the contents thereof. With regard to a publication in which a libel is printed, not only is the
publisher but also all other persons who in any way participate in or have any connection with its publication
are liable as publishers.35ς rνll

Accordingly, Article 360 would have made petitioners Bautista and Alcantara, being the Editor and Assistant
Editor, respectively, of Bandera Publishing Corporation, answerable with Ampoloquio, for the latters alleged
defamatory writing, as if they were the authors thereof. Indeed, as aptly concluded by the court a quo: chanroblesv irtuallawl ib rary

The aforestated provision is clear and unambiguous. It equally applies to an editor of a publication in which
a libelous article was published and states that the editor of the same shall be responsible for the
defamation in writing as if he were the author thereof. Indeed, when an alleged libelous article is published
in a newspaper, such fact alone sufficient evidence to charge the editor or business manager with the guilt
of its publication. This sharing of liability with the author of said article is based on the principle that editors
and associate editors, by the nature of their positions, edit, control and approve the materials which are to
be published in a newspaper. This means that, without their nod of approbation, any article alleged to be
libelous would not be published.

Hence, by virtue of their position and the authority which they exercise, newspaper editors and associate
editors are as much critical part in the publication of any defamatory material as the writer or author
thereof.36ς rν ll

Nevertheless, petitioners could no longer be held liable in view of the procedural infirmity that the petition
for certiorari was not undertaken by the OSG, but instead by respondent in her personal capacity. Although
the conclusion of the trial court may be wrong, to reverse and set aside the Order granting the demurrer to
evidence would violate petitioners constitutionally-enshrined right against double jeopardy. Had it not been
for this procedural defect, the Court could have seriously considered the arguments advanced by the
respondent in seeking the reversal of the Order of the RTC.

The granting of a demurrer to evidence should, therefore, be exercised with caution, taking into
consideration not only the rights of the accused, but also the right of the private offended party to be
vindicated of the wrongdoing done against him, for if it is granted, the accused is acquitted and the private
complainant is generally left with no more remedy. In such instances, although the decision of the court
may be wrong, the accused can invoke his right against double jeopardy. Thus, judges are reminded to be
more diligent and circumspect in the performance of their duties as members of the Bench, always bearing
in mind that their decisions affect the lives of the accused and the individuals who come to the courts to
seek redress of grievances, which decision could be possibly used by the aggrieved party as basis for the
filing of the appropriate actions against them.

Perforce, the Order dated April 25, 2008 of the Regional Trial Court, Branch 212, Mandaluyong City, in
Criminal Case Nos. MC02-4872 and MC02-4875, which dismissed the actions as against petitioners Lito
Bautista and Jimmy Alcantara, should be reinstated. ςηα οb lεν ιrυαll αωl ιb rα r

WHEREFORE, the petition is GRANTED. The Decision dated May 19, 2009 and Resolution dated September
28, 2009 of the Court of Appeals, in CA-G.R. SP No. 104885, are REVERSED AND SET ASIDE. The portion of
the Order dated April 25, 2008 of the Regional Trial Court, Branch 212, Mandaluyong City, in Criminal Case
Nos. MC02-4872 and MC02-4875, which dismissed the actions as against petitioners Lito Bautista and
Jimmy Alcantara, is REINSTATED. ςrαl αωlιb rα r

SO ORDERED.

ERWIN TULFO, G.R. No. 161032

Petitioner,
Present:
- versus - QUISUMBING, J., Chairperson,
CARPIO MORALES,
VELASCO, JR.,
PEOPLE OF THE PHILIPPINES NACHURA, and
and ATTY. CARLOS T. SO, BRION, JJ.
Respondents.
x-------------------------------------------x

SUSAN CAMBRI, REY SALAO, G.R. No. 161176

JOCELYN BARLIZO, and
PHILIP PICHAY,
Petitioners,

- versus -
COURT OF APPEALS, PEOPLE
OF THE PHILIPPINES, and Promulgated:
CARLOS SO,
Respondents. September 16, 2008
x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

The freedom of the press is one of the cherished hallmarks of our democracy; but
even as we strive to protect and respect the fourth estate, the freedom it enjoys must
be balanced with responsibility. There is a fine line between freedom of expression
and libel, and it falls on the courts to determine whether or not that line has been
crossed.

The Facts

On the complaint of Atty. Carlos Ding So of the Bureau of Customs, four (4) separate
informations were filed on September 8, 1999 with the Regional Trial Court in
(RTC) PasayCity. These were assigned to Branch 112 and docketed as Criminal
Case Nos. 99-1597 to 99-1600, and charged petitioners Erwin Tulfo, as
author/writer, Susan Cambri, as managing editor, Rey Salao, as national editor,
Jocelyn Barlizo, as city editor, and Philip Pichay, as president of the Carlo
Publishing House, Inc., of the daily tabloid Remate, with the crime of libel in
connection with the publication of the articles in the column Direct Hit in the issues
of May 11, 1999; May 12, 1999; May 19, 1999; and June 25, 1999. [1] The four
informations read as follows:

Criminal Case No. 99-1598

That on or about the 11th day of May, 1999 in Pasay City, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating together and
mutually helping one another, being then the columnist, publisher and
managing editor, respectively of REMATE, a tabloid published daily and
of general circulation in the Philippines, did then and there willfully,
unlawfully and feloniously and with malicious intent to discredit or
dishonor complainant, ATTY. CARLOS DING SO, and with the
malicious intent of injuring and exposing said complainant to public
hatred, contempt and ridicule, write and publish in the regular issue of said
publication on May 11, 1999, its daily column DIRECT HIT, quoted
hereunder, to wit:

PINAKAMAYAMAN SA CUSTOMS

Ito palang si Atty. Ding So ng Intelligence Division ng

Bureau of Customs and [sic] pinakamayaman na yata na
government official sa buong bansa sa pangungurakot
lamang diyan sa South Harbor.

Hindi matibag ang gagong attorney dahil malakas daw ito sa

Iglesia ni Kristo.

Hoy, So! . . nakakahiya ka sa mga INC, ikaw na yata ang

pinakagago at magnanakaw na miyembro nito.

Balita ko, malapit ka nang itiwalag ng nasabing simbahan

dahil sa mga kalokohan mo.

Abangan bukas ang mga raket ni So sa BOC.

WHEREIN said complainant was indicated as an extortionist, a

corrupt public official, smuggler and having illegally acquired wealth, all
as already stated, with the object of destroying his reputation, discrediting
and ridiculing him before the bar of public opinion.[2]
 Criminal Case No. 99-1599

That on or about the 12th day of May, 1999 in Pasay City, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating together and
mutually helping one another, being then the columnist, publisher and
managing editor, respectively of REMATE, a tabloid published daily and
of general circulation in the Philippines, did then and there willfully,
unlawfully and feloniously and with malicious intent to discredit or
dishonor complainant, ATTY. CARLOS DING SO, and with the
malicious intent of injuring and exposing said complainant to public
hatred, contempt and ridicule, write and publish in the regular issue of said
publication on May 12, 1999, in daily column DIRECT HIT, quoted
hereunder, to wit:

SI ATTY. SO NG BOC

LINTEK din sa pangungurakot itong Ding So ng

Bureau of Customs Intelligence Unit sa South Harbor.

Daan-daang libong piso ang kinikita ng masiba at matakaw

na si So sa mga importer na ayaw ideklara ang totoong laman
ng mga container para makaiwas sa pagbayad ng malaking
customs duties at taxes.

Si So ang nagpapadrino sa mga pag-inspection ng mga

container na ito. Siyempre-binibigyan din niya ng salapi
yung ibang mga ahensiya para pumikit na lang at itikom ang
kanilang nga [sic] bibig diyan sa mga buwayang taga BOC.

Awang-awa ako sa ating gobyerno. Bankrupt na nga,

ninanakawan pa ng mga kawatan tulad ni So.

Ewan ko ba rito kay Atty. So, bakit hindi na lang tumayo ng

sarili niyang robbery-hold-up gang para kumita ng mas
mabilis.

Hoy So.. hindi bagay sa iyo ang pagiging attorney . . . Mas

bagay sa iyo ang pagiging buwayang naka korbata at
holdaper. Magnanakaw ka So!!
 WHEREIN said complainant was indicated as an extortionist, a
corrupt public official, smuggler and having illegally acquired wealth, all
as already stated, with the object of destroying his reputation, discrediting
and ridiculing him before the bar of public opinion.[3]

Criminal Case No. 99-1600

That on or about 19th day of May, 1999 in Pasay City, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating together and
mutually helping one another, being then the columnist, publisher and
managing editor, respectively of REMATE, a tabloid published daily and
of general circulation in the Philippines, did then and there willfully,
unlawfully and feloniously and with malicious intent to discredit or
dishonor complainant, ATTY. CARLOS DING SO, and with the
malicious intent of injuring and exposing said complainant to public
hatred, contempt and ridicule, write and publish in the regular issue of said
publication on May 19, 1999, in daily column DIRECT HIT, quoted
hereunder, to wit:

xxxx

Tulad ni Atty. Ding So ng Bureau of Customs Intelligence

Division, saksakan din ng lakas itong si Daniel Aquino ng
Presidential Anti-Smuggling Unit na nakatalaga
sa SouthHarbor.
Tulad ni So, magnanakaw na tunay itong si Aquino.

Panghihingi ng pera sa mga brokers, ang lakad nito.

Pag hindi nagbigay ng pera ang mga brokers, maiipit ang
pagre-release ng kanilang kargamento.

WHEREIN said complainant was indicated as an extortionist, a corrupt

public official, smuggler and having illegally acquired wealth, all as
already stated, with the object of destroying his reputation, discrediting
and ridiculing him before the bar of public opinion.[4]

Criminal Case No. 99-1597

That on or about 25th day of June, 1999 in Pasay City, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating together and
mutually helping one another, being then the columnist, publisher and
 managing editor, respectively of REMATE, a tabloid published daily and
of general circulation in the Philippines, did then and there willfully,
unlawfully and feloniously and with malicious intent to discredit or
dishonor complainant, ATTY. CARLOS DING T. SO, and with the
malicious intent of injuring and exposing said complainant to public
hatred, contempt and ridicule, write and publish in the regular issue of said
publication on June 25, 1999, its daily column DIRECT HIT, quoted
hereunder, to wit:

xxxx

Nagfile ng P10 M na libel suit itong si Atty. Carlos So

ng Bureau of Customs laban sa inyong lingkod at ilang
opisyales ng Remate sa Pasay City Court. Nagalit itong
tarantadong si Atty. So dahil binanatan ko siya at inexpose
ang kagaguhan niya sa BOC.

Hoy, So . . . dagdagan mo pa ang pagnanakaw mo

dahil hindi kita tatantanan. Buhay ka pa sinusunog na ang
iyong kaluluwa sa impyerno.

WHEREIN said complainant was indicated as an extortionist, a

corrupt public official, smuggler and having illegally acquired wealth, all
as already stated, with the object of destroying his reputation, discrediting
and ridiculing him before the bar of public opinion.[5]

On November 3, 1999, Tulfo, Salao, and Cambri were arraigned, while

Barlizo and Pichay were arraigned on December 15, 1999. They all pleaded not
guilty to the offenses charged.

At pre-trial, the following were admitted by petitioners: (1) that during the
four dates of the publication of the questioned articles, the complaining witness was
not assigned at South Harbor; (2) that the accused and complaining witness did not
know each other during all the time material to the four dates of publication; (3)
that Remate is a newspaper/tabloid of general circulation in the Philippines; (4) the
existence and genuineness of the Remate newspaper; (5) the column therein and its
authorship and the alleged libelous statement as well as the editorial post containing
the designated positions of the other accused; and (6) the prosecutions qualified
admission that it is the duty of media persons to expose corruption.[6]

The prosecution presented four witnesses, namely: Oscar M. Ablan, Atty.

James Fortes, Jr., Gladys Fontanilla, and complainant Atty. So. The prosecution
presented documentary evidence as well.

Ablan testified that he had read the four columns written by Tulfo, and that
the articles were untrue because he had known Atty. So since 1992 and had worked
with him in the Customs Intelligence and Investigation Service Division of the
Bureau of Customs. He further testified that upon reading the articles written by
Tulfo, he concluded that they referred to Atty. So because the subject articles
identified Atty. Carlos as Atty. Ding So of the Customs Intelligence and
Investigation Service Division, Bureau of Customs and there was only one Atty.
Carlos Ding So of the Bureau of Customs.[7]

Fontanilla, Records Officer I of the Bureau of Customs, testified that she

issued a certification in connection with these cases upon the request of Atty.
So.[8] This certification stated that as per records available in her office, there was
only one employee by the name of Atty. Carlos T. So who was also known as Atty.
Ding So in the Intelligence Division of the Customs Intelligence and Investigation
Service or in the entire Bureau of Customs.[9]

Atty. Fortes testified that he knew Atty. So as a fellow member of the Iglesia
Ni Kristo and as a lawyer, and that having read the articles of Tulfo, he believed that
these were untrue, as he knew Atty. Carlos Ding So.[10]

Atty. So testified that he was the private complainant in these consolidated

cases. He further testified that he is also known as Atty. Ding So, that he had been
connected with the Bureau of Customs since October 1981, and that he was assigned
as Officer-in-Charge (OIC) of the Customs Intelligence and Investigation Service
Division at the Manila International Container Port since December 27, 1999. He
executed two complaint-affidavits, one dated June 4, 1999 and the other dated July
5, 1999, for Criminal Case Nos. 99-1598 to 99-1600. Prior to this, he also filed 14
cases of libel against Raffy Tulfo, brother of petitioner Erwin Tulfo. He testified that
petitioner Tulfos act of imputing upon him criminality, assailing his honesty and
integrity, caused him dishonor, discredit, and contempt among his co-members in
the legal profession, co-officers of the Armed Forces of the Philippines, co-members
and peers in the Iglesia ni Kristo, his co-officers and employees and superior officers
in the Bureau of Customs, and among ordinary persons who had read said
articles. He said it also caused him and his family sleepless nights, mental anguish,
wounded feelings, intrigues, and embarrassment. He further testified that he
included in his complaint for libel the officers of Remate such as the publisher,
managing editor, city editor, and national editor because under Article 360 of the
Revised Penal Code (RPC), they are equally responsible and liable to the same extent
as if they were the author of the articles. He also testified that Ding is his nickname
and that he is the only person in the entire Bureau of Customs who goes by the name
of Atty. Carlos T. So or Atty. Carlos Ding So.[11]

In his defense, petitioner Tulfo testified that he did not write the subject
articles with malice, that he neither knew Atty. So nor met him before the publication
of the articles. He testified that his criticism of a certain Atty. So of
the South Harbor was not directed against the complainant, but against a person by
the name of Atty. Ding So at the South Harbor. Tulfo claimed that it was the practice
of certain people to use other peoples names to advance their corrupt practices. He
also claimed that his articles had neither discredited nor dishonored the complainant
because as per his source in the Bureau of Customs, Atty. So had been promoted. He
further testified that he did not do any research on Atty. So before the subject articles,
because as a columnist, he had to rely on his source, and that he had several sources
in the Bureau of Customs, particularly in the SouthHarbor.[12]
Petitioner Salao testified that he came to know Atty. Carlos Ding So when the
latter filed a case against them. He testified that he is an employee of Carlo
Publishing House, Inc.; that he was designated as the national editor of the
newspaper Remate since December 1999; that the duties of the position are to edit,
evaluate, encode, and supervise layout of the news from the provinces; and that Tulfo
was under the supervision of Rey Briones, Vice President for Editorial and Head of
the Editorial Division. Salao further testified that he had no participation in the
subject articles of Tulfo, nor had he anything to do with the latters column. [13]

Petitioner Cambri, managing editor of Remate, testified that she classifies the
news articles written by the reporters, and that in the Editorial Division, the officers
are herself; Briones, her supervisor; Lydia Bueno, as news and city editor; and Salao
as national editor. She testified that petitioner Barlizo is her subordinate, whose
duties and responsibilities are the typesetting, editing, and layout of the page
assigned to her, the Metro page. She further testified that she had no participation in
the writing, editing, or publication of the column of Tulfo because the column was
not edited. She claimed that none among her co-accused from the Remate newspaper
edited the columns of Tulfo, that the publication and editing of the subject articles
were the responsibility of Tulfo, and that he was given blanket authority to write
what he wanted to write. She also testified that the page wherein Tulfos column
appeared was supervised by Bueno as news editor.[14]

Petitioner Pichay testified that he had been the president of Carlo Publishing
House, Inc. since December 1998. He testified that the company practice was to have
the columnists report directly to the vice-president of editorials, that the columnists
were given autonomy on their columns, and that the vice-president for editorials is
the one who would decide what articles are to be published and what are not. He
further testified that Tulfo was already a regular contributor.[15]

The Ruling of the RTC

In a Decision dated November 17, 2000, the RTC found petitioners guilty of the
crime of Libel. The dispositive portion reads as follows:

WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN

CAMBRI, REY SALAO, JOCELYN BARLIZO and PHILIP PICHAY
guilty beyond reasonable doubt of four (4) counts of the crime of LIBEL,
as defined in Article 353 of the Revised Penal Code, and penalized by
prision correccional in its minimum and medium periods, or a fine ranging
from P200.00 Pesos to P6,000.00 Pesos or both, under Article 355 of the
same Code.

Applying the Indeterminate Sentence Law, the Court hereby sentences

EACH of the accused to suffer imprisonment of SIX (6) MONTHS of
arresto mayor, as minimum, to FOUR (4) YEARS and TWO (2)
MONTHS of prision correccional, as maximum, for EACH count with
accessory penalties provided by law.

Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao,
Jocelyn Barlizo and Philip Pichay wrote and published the four (4)
 defamatory articles with reckless disregard, being, in the mind of the
Court, of whether it was false or not, the said articles libelous per se, they
are hereby ordered to pay, jointly and severally, the sum of EIGHT
HUNDRED THOUSAND (P800,000.00) PESOS, as actual damages, the
sum of ONE MILLION PESOS (P1,000,000.00), as moral damages, and
an additional amount of FIVE HUNDRED THOUSAND PESOS
(P500,000.00), by way of exemplary damages, all with subsidiary
imprisonment, in case of insolvency, and to pay the costs.

SO ORDERED.[16]

The Ruling of the Court of Appeals

Before the Court of Appeals (CA), Tulfo assigned the following errors:

1. THE LOWER COURT ERRED IN IGNORING THE

UNREBUTTED TESTIMONY OF THE APPELLANT THAT HE
DID NOT CRITICIZE THE PRIVATE COMPLAINANT
WORKING AT THE NAIA. HE CRITICIZED ANOTHER PERSON
WORKING AT THE SOUTH HARBOR. HENCE, THE ELEMENT
OF IDENTITY IS LACKING.
2. THE LOWER COURT ERRED IN IGNORING THE LACK OF
THE ESSENTIAL ELEMENT OF DISCREDIT OR DISHONOR, AS
DEFINED BY JURISPRUDENCE.
3. THERE WAS NO MALICE AGAINST THE PRIVATE
COMPLAINANT ATTY. CARLOS DING SO.[17]
His co-accused assigned the following errors:

The trial court seriously erred in holding accused Susan Cambri, Rey
Salao, Jocelyn Barlizo and Philip Pichay liable for the defamations
contained in the questioned articles despite the fact that the trial court did
not have any finding as to their participation in the writing, editing and/or
publication of the questioned articles.

B
 The trial court seriously erred in concluding that libel was committed by
all of the accused on the basis of its finding that the elements of libel have
been satisfactorily established by evidence on record.

The trial court seriously erred in considering complainant to be the one

referred to by Erwin Tulfo in his articles in question.[18]

In a Decision[19] dated June 17, 2003, the Eighth Division of the CA dismissed the
appeal and affirmed the judgment of the trial court. A motion for reconsideration
dated June 30, 2003 was filed by Tulfo, while the rest of his co-accused filed a
motion for reconsideration dated July 2, 2003. In a Resolution dated December 11,
2003, both motions were denied for lack of merit.[20]

Petitions for Review on Certiorari under Rule 45

Tulfo brought this petition docketed as G.R. No. 161032, seeking to reverse the
Decision of the CA in CA-G.R. CR No. 25318 which affirmed the decision of the
RTC.Petitioners Cambri, Salao, Barlizo, and Pichay brought a similar petition
docketed as G.R. No. 161176, seeking the nullification of the same CA decision.

In a Resolution dated March 15, 2004, the two cases were consolidated since both
cases arise from the same set of facts, involve the same parties, assail the same
decision of the CA, and seek identical reliefs.[21]

Assignment of Errors

Petitioner Tulfo submitted the following assignment of errors:

Assuming that the Prosecution presented credible and relevant evidence,

the Honorable CA erred in not declaring the assailed articles as privileged;
 the CA erred in concluding that malice in law exists by the courts having
incorrectly reasoned out that malice was presumed in the instant case.

II

Even assuming arguendo that the articles complained of are not

privileged, the lower court, nonetheless, committed gross error as defined
by the provisions of Section 6 of Rule 45 by its misappreciation of the
evidence presented on matters substantial and material to the guilt or
innocence of the petitioner.[22]

Petitioners Cambri, Salao, Barlizo, and Pichay submitted their own

assignment of errors, as follows:

A - The Court of Appeals Seriously Erred In Its Application of Article 360

Of The Revised Penal Code By Holding Cambri, Salao And Barlizo
Liable For The Defamatory Articles In The May 11, 12, 19 And June 25,
1999 Issues Of Remate Simply Because They Were Managing Editor,
National Editor And City Editor Respectively Of Remate And By Holding
Pichay Also Liable For Libel Merely Because He Was The President Of
Carlo Publishing House, Inc. Without Taking Into Account The
Unrebutted Evidence That Petitioners Had No Participation In The
Editing Or Publication Of The Defamatory Articles In Question.

B - The Court Of Appeals Committed Grave Abuse Of Discretion In

Manifestly Disregarding The Unrebutted Evidence That Petitioners Had
No Participation In The Editing Or Publication Of The Defamatory
Articles In Question.

C - The Court Of Appeals Seriously Misappreciated The Evidence

In Holding That The Person Referred To In The Published Articles Was
Private Complainant Atty. Carlos So.[23]

Our Ruling
The petitions must be dismissed.

The assignment of errors of petitioner Tulfo shall be discussed first.

In his appeal, Tulfo claims that the CA erred in not applying the ruling in Borjal v.
Court of Appeals.[24] In essence, he argues that the subject articles fall under
qualifiedly privileged communication under Borjal and that the presumption of
malice in Art. 354 of the RPC does not apply. He argues that it is the burden of the
prosecution to prove malice in fact.

This case must be distinguished from Borjal on several points, the first being
that Borjal stemmed from a civil action for damages based on libel, and was not a
criminal case.Second, the ruling in Borjal was that there was no sufficient
identification of the complainant, which shall be differentiated from the present case
in discussing the second assignment of error of Tulfo. Third, the subject
in Borjal was a private citizen, whereas in the present case, the subject is a public
official. Finally, it was held in Borjal that the articles written by Art Borjal were fair
commentaries on matters of public interest.[25] It shall be discussed and has yet to be
determined whether or not the articles fall under the category of fair commentaries.

In passing, it must be noted that the defense of Tulfos articles being qualifiedly
privileged communication is raised for the first time in the present petition, and this
particular issue was never brought before either the RTC or the CA. Thus, neither
the RTC nor the CA had a chance to properly consider and evaluate this
defense. Tulfo now draws parallels between his case and that of Art Borjal, and
argues that the prosecution should have proved malice in fact, and it was error on
the part of the trial and appellate courts to use the presumption of malice in law in
Art. 354 of the RPC. This lays an unusual burden on the part of the prosecution, the
RTC, and the CA to refute a defense that Tulfo had never raised before
them. Whether or not the subject articles are privileged communications must first
be established by the defense, which it failed to do at the level of the RTC and the
CA. Even so, it shall be dealt with now, considering that an appeal in a criminal
proceeding throws the whole case open for review.

There is no question of the status of Atty. So as a public official, who served as the
OIC of the Bureau of Customs Intelligence and Investigation Service at the Ninoy
Aquino International Airport (NAIA) at the time of the printing of the allegedly
libelous articles. Likewise, it cannot be refuted that the goings-on at the Bureau of
Customs, a government agency, are matters of public interest. It is now a matter of
establishing whether the articles of Tulfo are protected as qualified privileged
communication or are defamatory and written with malice, for which he would be
liable.

Freedom of the Press v. Responsibility of the Press

The Court has long respected the freedom of the press, and upheld the same when it
came to commentaries made on public figures and matters of public interest. Even
in cases wherein the freedom of the press was given greater weight over the rights
of individuals, the Court, however, has stressed that such freedom is not absolute
and unbounded. The exercise of this right or any right enshrined in the Bill of Rights,
indeed, comes with an equal burden of responsible exercise of that right. The
recognition of a right is not free license for the one claiming it to run roughshod over
the rights of others.

The Journalists Code of Ethics adopted by the National Union of Journalists of

the Philippines shows that the press recognizes that it has standards to follow in the
exercise of press freedom; that this freedom carries duties and responsibilities. Art.
I of said code states that journalists recognize the duty to air the other side and the
duty to correct substantive errors promptly. Art. VIII states that journalists shall
presume persons accused of crime of being innocent until proven otherwise.

In the present case, it cannot be said that Tulfo followed the Journalists Code of
Ethics and exercised his journalistic freedom responsibly.

In his series of articles, he targeted one Atty. Ding So of the Bureau of Customs as
being involved in criminal activities, and was using his public position for personal
gain. He went even further than that, and called Atty. So an embarrassment to his
religion, saying ikaw na yata ang pinakagago at magnanakaw sa miyembro
nito.[26] He accused Atty. So of stealing from the government with his alleged corrupt
activities.[27] And when Atty. So filed a libel suit against him, Tulfo wrote another
article, challenging Atty. So, saying, Nagalit itong tarantadong si Atty. So dahil
binabantayan ko siya at in-expose ang kagaguhan niya sa [Bureau of Customs].[28]
In his testimony, Tulfo admitted that he did not personally know Atty. So, and had
neither met nor known him prior to the publication of the subject articles. He also
admitted that he did not conduct a more in-depth research of his allegations before
he published them, and relied only on his source at the Bureau of Customs.

In his defense before the trial court, Tulfo claimed knowledge of people using the
names of others for personal gain, and even stated that he had been the victim of
such a practice. He argued then that it may have been someone else using the name
of Atty. So for corrupt practices at the South Harbor, and this person was the target
of his articles.This argument weakens his case further, for even with the knowledge
that he may be in error, even knowing of the possibility that someone else may have
used Atty. Sos name, as Tulfo surmised, he made no effort to verify the information
given by his source or even to ascertain the identity of the person he was accusing.

The trial court found Tulfos accusations against Atty. So to be false, but Tulfo argues
that the falsity of contents of articles does not affect their privileged character. It
may be that the falsity of the articles does not prove malice. Neither did Borjal give
journalists carte blanche with regard to their publications. It cannot be said that a
false article accusing a public figure would always be covered by the mantle of
qualified privileged communication. The portion of Borjal cited by Tulfo must be
scrutinized further:

Even assuming that the contents of the articles are false, mere error,
inaccuracy or even falsity alone does not prove actual malice. Errors or
misstatements are inevitable in any scheme of truly free expression and
debate. Consistent with good faith and reasonable care, the press
should not be held to account, to a point of suppression, for honest
mistakes or imperfections in the choice of language. There must be some
room for misstatement of fact as well as for misjudgment. Only by giving
them much leeway and tolerance can they courageously and effectively
function as critical agencies in our democracy. In Bulletin Publishing
Corp. v. Noel we held

A newspaper especially one national in reach and

coverage, should be free to report on events and
developments in which the public has a legitimate interest
with minimum fear of being hauled to court by one group or
another on criminal or civil charges for libel, so long as the
 newspaper respects and keeps within the standards of
morality and civility prevailing within the general
community.

To avoid the self-censorship that would necessarily accompany strict

liability for erroneous statements, rules governing liability for injury to
reputation are required to allow an adequate margin of error by protecting
some inaccuracies. It is for the same reason that the New York
Times doctrine requires that liability for defamation of a public official or
public figure may not be imposed in the absence of proof of actual malice
on the part of the person making the libelous statement.[29] (Emphasis
supplied.)

Reading more deeply into the case, the exercise of press freedom must be done
consistent with good faith and reasonable care. This was clearly abandoned by Tulfo
when he wrote the subject articles. This is no case of mere error or honest mistake,
but a case of a journalist abdicating his responsibility to verify his story and instead
misinforming the public. Journalists may be allowed an adequate margin of error in
the exercise of their profession, but this margin does not expand to cover every
defamatory or injurious statement they may make in the furtherance of their
profession, nor does this margin cover total abandonment of responsibility.

Borjal may have expanded the protection of qualified privileged communication

beyond the instances given in Art. 354 of the RPC, but this expansion does not cover
Tulfo. The addition to the instances of qualified privileged communications is
reproduced as follows:
To reiterate, fair commentaries on matters of public interest are privileged
and constitute a valid defense in an action for libel or slander. The doctrine
of fair comment means that while in general every discreditable
imputation publicly made is deemed false, because every man is presumed
innocent until his guilt is judicially proved, and every false imputation is
deemed malicious, nevertheless, when the discreditable imputation is
directed against a public person in his public capacity, it is not necessarily
actionable. In order that such discreditable imputation to a public
official may be actionable, it must either be a false allegation of fact
or a comment based on a false supposition. If the comment is an
expression of opinion, based on established facts, then it is immaterial that
 the opinion happens to be mistaken, as long as it might reasonably be
inferred from the facts.[30] (Emphasis supplied.)

The expansion speaks of fair commentaries on matters of public

interest. While Borjal places fair commentaries within the scope of qualified
privileged communication, the mere fact that the subject of the article is a public
figure or a matter of public interest does not automatically exclude the author from
liability. Borjal allows that for a discreditable imputation to a public official to be
actionable, it must be a false allegation of fact or a comment based on a false
supposition. As previously mentioned, the trial court found that the allegations
against Atty. So were false and that Tulfo did not exert effort to verify the
information before publishing his articles.

Tulfo offered no proof for his accusations. He claimed to have a source in the Bureau
of Customs and relied only on this source for his columns, but did no further research
on his story. The records of the case are bereft of any showing that Atty. So was
indeed the villain Tulfo pictured him to be. Tulfos articles related no specific details
or acts committed to prove Atty. So was indeed a corrupt public official. These
columns were unsubstantiated attacks on Atty. So, and cannot be countenanced as
being privileged simply because the target was a public official. Although wider
latitude is given to defamatory utterances against public officials in connection with
or relevant to their performance of official duties, or against public officials in
relation to matters of public interest involving them, such defamatory utterances do
not automatically fall within the ambit of constitutionally protected
speech.[31] Journalists still bear the burden of writing responsibly when practicing
their profession, even when writing about public figures or matters of public
interest.As held in In Re: Emil P. Jurado:

Surely it cannot be postulated that the law protects a journalist who

deliberately prints lies or distorts the truth; or that a newsman may ecape
liability who publishes derogatory or defamatory allegations against a
person or entity, but recognizes no obligation bona fide to establish
beforehand the factual basis of such imputations and refuses to submit
proof thereof when challenged to do so. It outrages all notions of fair play
and due process, and reduces to uselessness all the injunctions of the
Journalists Code of Ethics to allow a newsman, with all the potential of
 his profession to influence popular belief and shape public opinion, to
make shameful and offensive charges destructive of personal or
institutional honor and repute, and when called upon to justify the same,
cavalierly beg off by claiming that to do so would compromise his sources
and demanding acceptance of his word for the reliability of those
sources.[32]

The prosecution showed that Tulfo could present no proof of his allegations against
Atty. So, only citing his one unnamed source. It is not demanded of him that he name
his source. The confidentiality of sources and their importance to journalists are
accepted and respected. What cannot be accepted are journalists making no efforts
to verify the information given by a source, and using that unverified information to
throw wild accusations and besmirch the name of possibly an innocent
person. Journalists have a responsibility to report the truth, and in doing so must at
least investigate their stories before publication, and be able to back up their stories
with proof. The rumors and gossips spread by unnamed sources are not
truth. Journalists are not storytellers or novelists who may just spin tales out of
fevered imaginings, and pass them off as reality. There must be some foundation to
their reports; these reports must be warranted by facts.

Jurado also established that the journalist should exercise some degree of care even
when writing about public officials. The case stated:
Clearly, the public interest involved in freedom of speech and the
individual interest of judges (and for that matter, all other public officials)
in the maintenance of private honor and reputation need to be
accommodated one to the other. And the point of adjustment or
accommodation between these two legitimate interests is precisely found
in the norm which requires those who, invoking freedom of speech,
publish statements which are clearly defamatory to identifiable judges or
other public officials to exercise bona fide care in ascertaining the truth of
the statements they publish. The norm does not require that a journalist
guarantee the truth of what he says or publishes. But the norm does
prohibit the reckless disregard of private reputation by publishing or
circulating defamatory statements without any bona fide effort to
ascertain the truth thereof. That this norm represents the generally
accepted point of balance or adjustment between the two interests
involved is clear from a consideration of both the pertinent civil law norms
 and the Code of Ethics adopted by the journalism profession in
the Philippines.[33]

Tulfo has clearly failed in this regard. His articles cannot even be considered
as qualified privileged communication under the second paragraph of Art. 354 of the
RPC which exempts from the presumption of malice a fair and true report, made in
good faith, without any comments or remarks, of any judicial, legislative, or other
official proceedings which are not of confidential nature, or any statement, report,
or speech delivered in said proceedings, or of any other act performed by public
officers in the exercise of their functions. This particular provision has several
elements which must be present in order for the report to be exempt from the
presumption of malice. The provision can be dissected as follows:

In order that the publication of a report of an official proceeding

may be considered privileged, the following conditions must exist:

(a) That it is a fair and true report of a judicial, legislative, or

other official proceedings which are not of confidential
nature, or of a statement, report or speech delivered in said
proceedings, or of any other act performed by a public
officer in the exercise of his functions;
(b) That it is made in good faith; and
(c) That it is without any comments or remarks.[34]
The articles clearly are not the fair and true reports contemplated by the
provision. They provide no details of the acts committed by the subject, Atty.
So. They are plain and simple baseless accusations, backed up by the word of one
unnamed source. Good faith is lacking, as Tulfo failed to substantiate or even
attempt to verify his story before publication. Tulfo goes even further to attack the
character of the subject, Atty. So, even calling him a disgrace to his religion and the
legal profession. As none of the elements of the second paragraph of Art. 354 of the
RPC is present in Tulfos articles, it cannot thus be argued that they are qualified
privileged communications under the RPC.

Breaking down the provision further, looking at the terms fair and true, Tulfos
articles do not meet the standard. Fair is defined as having the qualities of
impartiality and honesty.[35] True is defined as conformable to fact; correct; exact;
actual; genuine; honest.[36] Tulfo failed to satisfy these requirements, as he did not
do research before making his allegations, and it has been shown that these
allegations were baseless. The articles are not fair and true reports, but merely wild
accusations.

Even assuming arguendo that the subject articles are covered by the shield of
qualified privileged communication, this would still not protect Tulfo.

In claiming that his articles were covered by qualified privileged

communication, Tulfo argues that the presumption of malice in law under Art. 354
of the RPC is no longer present, placing upon the prosecution the burden of proving
malice in fact. He then argues that for him to be liable, there should have been
evidence that he was motivated by ill will or spite in writing the subject articles.

The test to be followed is that laid down in New York Times Co. v.
Sullivan,[37] and reiterated in Flor v. People, which should be to determine whether
the defamatory statement was made with actual malice, that is, with knowledge that
it was false or with reckless disregard of whether it was false or not.[38]

The trial court found that Tulfo had in fact written and published the subject
articles with reckless disregard of whether the same were false or not, as proven by
the prosecution. There was the finding that Tulfo failed to verify the information on
which he based his writings, and that the defense presented no evidence to show that
the accusations against Atty. So were true. Tulfo cannot argue that because he did
not know the subject, Atty. So, personally, there was no malice attendant in his
articles. The test laid down is the reckless disregard test, and Tulfo has failed to meet
that test.

The fact that Tulfo published another article lambasting respondent Atty. So
can be considered as further evidence of malice, as held in U.S. vs.
Montalvo,[39] wherein publication after the commencement of an action was taken as
further evidence of a malicious design to injure the victim. Tulfo did not relent nor
did he pause to consider his actions, but went on to continue defaming respondent
Atty. So. This is a clear indication of his intent to malign Atty. So, no matter the
cost, and is proof of malice.
 Leaving the discussion of qualified privileged communication, Tulfo also
argues that the lower court misappreciated the evidence presented as to the identity
of the complainant: that Tulfo wrote about Atty. Ding So, an official of the Bureau
of Customs who worked at the South Harbor, whereas the complainant was Atty.
Carlos So who worked at the NAIA. He claims that there has arisen a cloud of doubt
as to the identity of the real party referred to in the articles.
This argument is patently without merit.

The prosecution was able to present the testimonies of two other witnesses
who identified Atty. So from Tulfos articles. There is the certification that there is
only one Atty. So in the Bureau of Customs. And most damning to Tulfos case is the
last column he wrote on the matter, referring to the libel suit against him by Atty. So
of the Bureau of Customs. In this article, Tulfo launched further attacks against Atty.
So, stating that the libel case was due to the exposs Tulfo had written on the corrupt
acts committed by Atty. So in the Bureau of Customs. This last article is an
admission on the part of Tulfo that Atty. So was in fact the target of his attacks. He
cannot now point to a putative Atty. Ding So at South Harbor, or someone else using
the name of Atty. So as the real subject of his attacks, when he did not investigate
the existence or non-existence of an Atty. So at South Harbor, nor investigate the
alleged corrupt acts of Atty. So of the Bureau of Customs. Tulfo cannot say that
there is doubt as to the identity of the Atty. So referred to in his articles, when all the
evidence points to one Atty. So, the complainant in the present case.

Having discussed the issue of qualified privileged communication and the

matter of the identity of the person referred to in the subject articles, there remains
the petition of the editors and president of Remate, the paper on which the subject
articles appeared.

In sum, petitioners Cambri, Salao, Barlizo, and Pichay all claim that they had
no participation in the editing or writing of the subject articles, and are thus not
liable.

The argument must fail.

The language of Art. 360 of the RPC is plain. It lists the persons responsible
for libel:
 Art. 360. Persons responsible.Any person who shall publish, exhibit, or
cause the publication or exhibition of any defamation in writing or by
similar means, shall be responsible for the same.

The author or editor of a book or pamphlet, or the editor or business

manager of a daily newspaper, magazine or serial publication, shall be
responsible for the defamations contained therein to the same extent as if
he were the author thereof.

The claim that they had no participation does not shield them from
liability. The provision in the RPC does not provide absence of participation as a
defense, but rather plainly and specifically states the responsibility of those involved
in publishing newspapers and other periodicals. It is not a matter of whether or not
they conspired in preparing and publishing the subject articles, because the law
simply so states that they are liable as they were the author.

Neither the publisher nor the editors can disclaim liability for libelous articles
that appear on their paper by simply saying they had no participation in the
preparation of the same. They cannot say that Tulfo was all alone in the publication
of Remate, on which the subject articles appeared, when they themselves clearly
hold positions of authority in the newspaper, or in the case of Pichay, as the president
in the publishing company.

As Tulfo cannot simply say that he is not liable because he did not fulfill his
responsibility as a journalist, the other petitioners cannot simply say that they are not
liable because they did not fulfill their responsibilities as editors and publishers. An
editor or manager of a newspaper, who has active charge and control of its
management, conduct, and policy, generally is held to be equally liable with the
owner for the publication therein of a libelous article.[40] On the theory that it is the
duty of the editor or manager to know and control the contents of the paper,[41] it is
held that said person cannot evade responsibility by abandoning the duties to
employees,[42] so that it is immaterial whether or not the editor or manager knew the
contents of the publication.[43] In Fermin v. People of the Philippines,[44] the Court
held that the publisher could not escape liability by claiming lack of participation in
the preparation and publication of a libelous article. The Court cited U.S. v. Ocampo,
stating the rationale for holding the persons enumerated in Art. 360 of the RPC
criminally liable, and it is worth reiterating:

According to the legal doctrines and jurisprudence of the United

States, the printer of a publication containing libelous matter is liable for
the same by reason of his direct connection therewith and his cognizance
of the contents thereof. With regard to a publication in which a libel is
printed, not only is the publisher but also all other persons who in any way
participate in or have any connection with its publication are liable as
publishers.

xxxx

In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46
Am. St. Rep., 629), the question of the responsibility of the manager or
proprietor of a newspaper was discussed. The court said, among other
things (pp. 782, 783):

The question then recurs as to whether the manager or proprietor of

a newspaper can escape criminal responsibility solely on the ground that
the libelous article was published without his knowledge or
consent. When a libel is published in a newspaper, such fact alone is
sufficient evidence prima facie to charge the manager or proprietor with
the guilt of its publication.

The manager and proprietor of a newspaper, we think ought to be

held prima facie criminally for whatever appears in his paper; and it
should be no defense that the publication was made without his knowledge
or consent, x x x.

One who furnishes the means for carrying on the publication of a

newspaper and entrusts its management to servants or employees whom
he selects and controls may be said to cause to be published what actually
appears, and should be held responsible therefore, whether he was
individually concerned in the publication or not, x x x. Criminal
responsibility for the acts of an agent or servant in the course of his
employment necessarily implies some degree of guilt or delinquency on
the part of the publisher; x x x.
 We think, therefore, the mere fact that the libelous article was
published in the newspaper without the knowledge or consent of its
proprietor or manager is no defense to a criminal prosecution against such
proprietor or manager.

In the case of Commonwealth vs. Morgan (107 Mass., 197), this

same question was considered and the court held that in the criminal
prosecution of a publisher of a newspaper in which a libel appears, he
is prima facie presumed to have published the libel, and that the exclusion
of an offer by the defendant to prove that he never saw the libel and was
not aware of its publication until it was pointed out to him and that an
apology and retraction were afterwards published in the same paper, gave
him no ground for exception. In this same case, Mr. Justice Colt, speaking
for the court, said:

It is the duty of the proprietor of a public paper, which may be used

for the publication of improper communications, to use reasonable caution
in the conduct of his business that no libels be published. (Whartons
Criminal Law, secs. 1627, 1649; 1 Bishops Criminal Law, secs. 219, 221;
People vs. Wilson, 64 Ill., 195; Commonwealth vs. Damon, 136 Mass.,
441.)

The above doctrine is also the doctrine established by the English

courts. In the case of Rex vs. Walter (3 Esp., 21) Lord Kenyon said that
he was clearly of the opinion that the proprietor of a newspaper was
answerable criminally as well as civilly for the acts of his servants or
agents for misconduct in the management of the paper.

This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr.
Justice Foster.

Lofft, an English author, in his work on Libel and Slander, said:

An information for libel will lie against the publisher of a papers,

although he did not know of its being put into the paper and stopped the
sale as soon as he discovered it.

In the case of People vs. Clay (86 Ill., 147) the court held that
 A person who makes a defamatory statement to the agent of a
newspaper for publication, is liable both civilly and criminally, and his
liability is shared by the agent and all others who aid in publishing it.[45]

Under Art. 360 of the RPC, as Tulfo, the author of the subject articles, has
been found guilty of libel, so too must Cambri, Salao, Barlizo, and Pichay.

Though we find petitioners guilty of the crime charged, the punishment must
still be tempered with justice. Petitioners are to be punished for libel for the first
time. They did not apply for probation to avoid service of sentence possibly in the
belief that they have not committed any crime. In Buatis, Jr. v. People,[46] the Court,
in a criminal case for libel, removed the penalty of imprisonment and instead
imposed a fine as penalty. In Sazon v. Court of Appeals,[47] the accused was merely
fined in lieu of the original penalty of imprisonment and fine. Freedom of expression
as well as freedom of the press may not be unrestrained, but neither must it be reined
in too harshly. In light of this, considering the necessity of a free press balanced with
the necessity of a responsible press, the penalty of a fine of PhP 6,000 for each count
of libel, with subsidiary imprisonment in case of insolvency, should
suffice.[48] Lastly, the responsibilities of the members of the press notwithstanding,
the difficulties and hazards they encounter in their line of work must also be taken
into consideration.

The award of damages by the lower court must be modified. Art. 2199 of the
Civil Code provides, Except as provided by law or by stipulation, one is entitled to
an adequate compensation only for such pecuniary loss suffered by him as he has
duly proved. Such compensation is referred to as actual or compensatory
damages. There was no showing of any pecuniary loss suffered by the complainant
Atty. So. Without proof of actual loss that can be measured, the award of actual
damages cannot stand.

In Del Mundo v. Court of Appeals, it was held, as regards actual and moral
damages:

A party is entitled to an adequate compensation for such pecuniary

loss actually suffered by him as he has duly proved. Such damages, to be
recoverable, must not only be capable of proof, but must actually be
 proved with a reasonable degree of certainty. We have emphasized that
these damages cannot be presumed, and courts, in making an award must
point out specific facts which could afford a basis for measuring whatever
compensatory or actual damages are borne.

Moral damages, upon the other hand, may be awarded to

compensate one for manifold injuries such as physical suffering, mental
anguish, serious anxiety, besmirched reputation, wounded feelings and
social humiliation. These damages must be understood to be in the
concept of grants, not punitive or corrective in nature, calculated to
compensate the claimant for the injury suffered. Although incapable of
exactness and no proof of pecuniary loss is necessary in order that moral
damages may be awarded, the amount of indemnity being left to the sound
discretion of the court, it is imperative, nevertheless, that (1) injury must
have been suffered by the claimant, and (2) such injury must have sprung
from any of the cases expressed in Article 2219 and Article 2220 of the
Civil Code. A causal relation, in fine, must exist between the act or
omission referred to in the Code which underlies, or gives rise to, the case
or proceeding on the one hand, and the resulting injury, on the other hand;
i.e. the first must be the proximate cause and the latter the direct
consequence thereof.[49]

It was the articles of Tulfo that caused injury to Atty. So, and for that Atty. So
deserves the award of moral damages. Justification for the award of moral damages
is found in Art. 2219(7) of the Civil Code, which states that moral damages may be
recovered in cases of libel, slander, or any other form of defamation. As the cases
involved are criminal cases of libel, they fall squarely within the ambit of Art.
2219(7).

Moral damages can be awarded even in the absence of actual or compensatory

damages. The fact that no actual or compensatory damage was proven before the
trial court does not adversely affect the offended partys right to recover moral
damages.[50]

And while on the subject of moral damages, it may not be amiss to state at
this juncture that Tulfos libelous articles are abhorrent not only because of its
vilifying and demeaning effect on Atty. So himself, but also because of their impact
on members of his family, especially on the children and possibly even the childrens
children.

The Court can perhaps take judicial notice that the sense of kinship runs
deeply in a typical Filipino family, such that the whole family usually suffers or
rejoices at the misfortune or good fortune, as the case may be, of any of its
member. Accordingly, any attempt to dishonor or besmirch the name and reputation
of the head of the family, as here, invariably puts the other members in a state of
disrepute, distress, or anxiety. This reality adds an imperative dimension to the
award of moral damages to the defamed party.

The award of exemplary damages, however, cannot be justified. Under Art.

2230 of the Civil Code, In criminal offenses, exemplary damages as a part of the
civil liability may be imposed when the crime was committed with one or more
aggravating circumstances. Such damages are separate and distinct from fines and
shall be paid to the offended party. No aggravating circumstances accompanied the
commission of the libelous acts; thus, no exemplary damages can be awarded.

Conclusion

The press wields enormous power. Through its widespread reach and the
information it imparts, it can mold and shape thoughts and opinions of the people. It
can turn the tide of public opinion for or against someone, it can build up heroes or
create villains.

It is in the interest of society to have a free press, to have liberal discussion

and dissemination of ideas, and to encourage people to engage in healthy debate. It
is through this that society can progress and develop.

Those who would publish under the aegis of freedom of the press must also
acknowledge the corollary duty to publish responsibly. To show that they have
exercised their freedom responsibly, they must go beyond merely relying on
unfounded rumors or shadowy anonymous sources. There must be further
investigation conducted, some shred of proof found to support allegations of
misconduct or even criminal activity. It is in fact too easy for journalists to destroy
the reputation and honor of public officials, if they are not required to make the
slightest effort to verify their accusations. Journalists are supposed to be reporters of
facts, not fiction, and must be able to back up their stories with solid research. The
power of the press and the corresponding duty to exercise that power judiciously
cannot be understated.

But even with the need for a free press, the necessity that it be free does not
mean that it be totally unfettered. It is still acknowledged that the freedom can be
abused, and for the abuse of the freedom, there must be a corresponding sanction. It
falls on the press to wield such enormous power responsibly. It may be a clich that
the pen is mightier than the sword, but in this particular case, the lesson to be learned
is that such a mighty weapon should not be wielded recklessly or thoughtlessly, but
always guided by conscience and careful thought.

A robust and independently free press is doubtless one of the most effective
checks on government power and abuses. Hence, it behooves government
functionaries to respect the value of openness and refrain from concealing from
media corruption and other anomalous practices occurring within their backyard. On
the other hand, public officials also deserve respect and protection against false
innuendoes and unfounded accusation of official wrongdoing from an abusive press.
As it were, the law and jurisprudence on libel heavily tilt in favor of press freedom.
The common but most unkind perception is that government institutions and their
officers and employees are fair game to official and personal attacks and even
ridicule. And the practice on the ground is just as disconcerting. Reports and
accusation of official misconduct often times merit front page or primetime
treatment, while defenses set up, retraction issued, or acquittal rendered get no more,
if ever, perfunctory coverage. The unfairness needs no belaboring. The balm of clear
conscience is sometimes not enough.
Perhaps lost in the traditional press freedom versus government impasse is the
fact that a maliciously false imputation of corruption and dishonesty against a public
official, as here, leaves a stigmatizing mark not only on the person but also the office
to which he belongs. In the ultimate analysis, public service also unduly suffers.
WHEREFORE, in view of the foregoing, the petitions in G.R. Nos. 161032
and 161176 are DISMISSED. The CA Decision dated June 17, 2003 in CA-G.R.
CR No. 25318 is hereby AFFIRMED with the MODIFICATIONS that in lieu of
imprisonment, the penalty to be imposed upon petitioners shall be a fine of six
thousand pesos (PhP 6,000) for each count of libel, with subsidiary imprisonment in
case of insolvency, while the award of actual damages and exemplary damages
is DELETED. The Decision dated November 17, 2000 of the RTC, Branch 112
in Pasay City in Criminal Case Nos. 99-1597 to 99-1600 is modified to read as
follows:

WHEREFORE, the Court finds the accused ERWIN TULFO,

SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO, and PHILIP
PICHAY guilty beyond reasonable doubt of four (4) counts of the crime
of LIBEL, as defined in Article 353 of the Revised Penal Code, and
sentences EACH of the accused to pay a fine of SIX THOUSAND
PESOS (PhP 6,000) per count of libel with subsidiary imprisonment,
in case of insolvency.

Considering that the accused Erwin Tulfo, Susan Cambri, Rey

Salao, Jocelyn Barlizo, and Philip Pichay wrote and published the four (4)
defamatory articles with reckless disregard whether it was false or not, the
said articles being libelous per se, they are hereby ordered to pay
complainant Atty. Carlos T. So, jointly and severally, the sum of ONE
MILLION PESOS (PhP 1,000,000) as moral damages. The claim of
actual and exemplary damages is denied for lack of merit.

Costs against petitioners.

SO ORDERED.
CRISTINELLI S. FERMIN, G.R. No. 157643
Petitioner,
Present:

AUSTRIA-MARTINEZ, J.,
Acting Chairperson,
- versus - TINGA,*
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. March 28, 2008

x------------------------------------------------------------------------------------x
 DECISION

NACHURA, J.:

Before us is a petition[1] for review on certiorari, under Rule 45 of the Rules of

Court, of the Decision[2] dated September 3, 2002 and the Resolution[3] dated March
24, 2003of the Court of Appeals (CA) in CA-G.R. CR No. 20890 entitled People of
the Philippines v. Cristenelli S. Fermin and Bogs C. Tugas.

On complaint of spouses Annabelle Rama Gutierrez and Eduardo (Eddie) Gutierrez,

two (2) criminal informations for libel[4] were filed against Cristinelli[5] S. Fermin
and Bogs C. Tugas before the Regional Trial Court (RTC) of Quezon City, Branch
218. Except for the name of the complainant,[6] the informations uniformly read

That on or about the 14th day of June, 1995 in Quezon City, Philippines,
the above-named accused CRISTENELLI SALAZAR FERMIN,
publisher, and BOGS C. TUGAS, Editor-in-Chief of Gossip Tabloid with
offices located at 68-A Magnolia Tulip St., Roxas District, Quezon City,
and circulated in Quezon City and other parts of Metro Manila and the
whole country, conspiring together, confederating with and mutually
helping each other, publicly and acting with malice, did then and there
willfully, unlawfully and feloniously print and circulate in the headline
and lead story of the said GOSSIP TABLOID issue of June 14, 1995 the
following material, to wit:

MAS MALAKING HALAGA ANG NADISPALKO NILA

SA STATES, MAY MGA NAIWAN DING
ASUNTO DOON SI ANNABELLE

IMPOSIBLENG NASA AMERIKA NGAYON SI

ANNABELLE DAHIL SA KALAT DIN ANG ASUNTO
NILA DUN, BUKOD PA SA NAPAKARAMING PINOY
NA HUMAHANTING SA KANILA MAS MALAKING
PROBLEMA ANG KAILANGAN NIYANG HARAPIN
SA STATES DAHIL SA PERANG NADISPALKO NILA,
 NAGHAHANAP LANG NG SAKIT NG KATAWAN SI
ANNABELLE KUNG SA STATES NGA NIYA
MAIISIPANG PUMUNTA NGAYON PARA LANG
TAKASAN NIYA SI LIGAYA SANTOS AT ANG
SINTENSIYA SA KANYA

when in truth and in fact, the accused very well knew that the same are
entirely false and untrue but were publicly made for no other purpose than
to expose said ANNABELLE RAMA GUTIERREZ to humiliation and
disgrace, as it depicts her to be a fugitive from justice and a swindler,
thereby causing dishonor, discredit and contempt upon the person of the
offended party, to the damage and prejudice of the said ANNABELLE
RAMA GUTIERREZ.

CONTRARY TO LAW.[7]

Upon arraignment, petitioner and co-accused Bogs C. Tugas (Tugas) both pleaded
not guilty. Thereafter, a joint trial ensued.

After trial on the merits, the RTC of Quezon City, Branch 218, in its Joint
Decision[8] dated January 27, 1997, found petitioner and Tugas guilty of libel. The
dispositive portion of the Joint Decision reads

WHEREFORE, prosecution having established the guilt of the accused,

judgment is hereby rendered finding CRISTENELLI S. FERMIN and
BOGS C. TUGAS GUILTY beyond reasonable doubt, of libel, punishable
under Art. 355 of the Revised Penal Code and sentences them to an
indeterminate penalty of three (3) months and eleven (11) days of arresto
mayor, as minimum, to one (1) year, eight (8) months and twenty-one (21)
days of prision correccional, as maximum, for each case.

Likewise, accused Cristenelli S. Fermin and Bogs Tugas are sentenced to

pay jointly and solidarily:

a) moral damages of:

1. P500,000.00 to Annabelle Rama in Criminal Case
No. Q-95-62823; and
 2. P500,000.00 to Eddie Gutierrez in Criminal Case
No. Q-95-62824;

b) attorneys fees of P50,000.00.

SO ORDERED.[9]

Aggrieved, petitioner and Tugas appealed to the CA. The appellate court, in its
Decision dated September 3, 2002, affirmed the conviction of petitioner, but
acquitted Tugas on account of non-participation in the publication of the libelous
article. The fallo of the Decision reads

WHEREFORE, judgment is hereby rendered as follows:

1. The appealed decision as against the accused-appellant BOGS

C. TUGAS is REVERSED and SET ASIDE, and another is
entered ACQUITTING him of the crime charged and
ABSOLVING him from any civil liability; and
2. The same appealed decision as against accused-appellant
CRISTENELLI S. FERMIN is AFFIRMED, with the
MODIFICATION that the award of moral damages is
REDUCED to P300,000.00 for EACH offended party, and the
award of attorneys fees is DELETED.

Costs against the appellant FERMIN.

SO ORDERED.[10]

The CA denied petitioners motion for reconsideration for lack of merit in the
Resolution dated March 24, 2003. Hence, this petition, raising the following
arguments:

I.

THE RULING IN U.S. VS. TAYLOR, PEOPLE VS. TOPACIO

AND SANTIAGO, U.S. VS. MADRIGAL
 AND U.S. VS. SANTOS AND THE HOLDING IN U.S. VS. OCAMPO
AS CLARIFIED BY THE COURT OF APPEALS IN PEOPLE VS.
BELTRAN AND SOLIVEN REQUIRING KNOWLEDGE,
PARTICIPATION AND COMPLICITY BY THE PUBLISHER IN THE
PREPARATION AND APPROVAL OF THE LIBELOUS ARTICLE TO
SUSTAIN THE LATTERS CONVICTION FOR LIBEL ARE
APPLICABLE IN THE PRESENT CASE.

II.

ART. 360 OF THE REVISED PENAL CODE WHICH MAKES A

PUBLISHER LIABLE FOR LIBEL TO THE SAME EXTENT AS IF HE
WERE THE AUTHOR THEREOF MERELY CREATES A
DISPUTABLE PRESUMPTION WHICH MAY BE REBUTTED BY
CONTRARY EVIDENCE.

III.

THE QUESTIONED ARTICLE IS NOT LIBELOUS.

IV.

THE QUESTIONED ARTICLE IS PROTECTED BY THE MANTLE

OF THE FREEDOM OF THE PRESS AND IS WITHIN THE REALM
OF FAIR AND HONEST COMMENT.[11]

Being interrelated, we shall discuss the first and the second issues jointly, then the
third and the fourth issues together.

Petitioner posits that, to sustain a conviction for libel under Article 360 of the
Revised Penal Code, it is mandatory that the publisher knowingly participated in or
consented to the preparation and publication of the libelous article. This principle is,
allegedly, based on our ruling in U.S. v. Taylor,[12] People v. Topacio
and Santiago,[13] U.S. v. Madrigal,[14]U.S. v. Abad Santos,[15] and U.S. v.
Ocampo,[16] as purportedly clarified in People v. Beltran and Soliven.[17] She submits
that these cases were applied by the CA in acquitting her co-accused Tugas, and
being similarly situated with him, she is also entitled to an acquittal. She claims that
she had adduced ample evidence to show that she had no hand in the preparation and
publication of the offending article, nor in the review, editing, examination, and
approval of the articles published in Gossip Tabloid.

The arguments are too simplistic and the cited jurisprudence are either misplaced or,
in fact, damning.

Foremost, U.S. v. Madrigal and U.S. v. Abad Santos are not applicable to the present
case. U.S. v. Madrigal pertains to a criminal prosecution under Section 30 of Act
No. 1519 for fraudulently representing the weight or measure of anything to be
greater or less than it is, whereas U.S. v. Abad Santos refers to criminal responsibility
under the Internal Revenue Law (Act. No. 2339).

The other cases are more in point, but they serve to reinforce the conviction of, rather
than absolve, petitioner.

In U.S. v. Taylor, the accused was indicted under Section 6 of Act No. 277 which
provides that: Every author, editor or proprietor of any book, newspaper, or serial
publication is chargeable with the publication of any words contained in any part of
said book or number of each newspaper or serial as fully as if he were the author of
the same. However, proof adduced during the trial showed that accused was
the manager of the publication without the corresponding evidence that, as such, he
was directly responsible for the writing, editing, or publishing of the matter
contained in the said libelous article.[18]

In People v. Topacio and Santiago, reference was made to the Spanish text of Article
360 of the Revised Penal Code which includes the verb publicar. Thus, it was held
that Article 360 includes not only the author or the person who causes the libelous
matter to be published, but also the person who prints or publishes it.

Based on these cases, therefore, proof of knowledge of and participation in the

publication of the offending article is not required, if the accused has been
specifically identified as author, editor, or proprietor or printer/publisher of the
publication, as petitioner and Tugas are in this case.
The rationale for the criminal culpability of those persons enumerated in Article 360
of the Revised Penal Code[19] was enunciated in U.S. v. Ocampo,[20] to wit:

According to the legal doctrines and jurisprudence of the United

States, the printer of a publication containing libelous matter is liable for
the same by reason of his direct connection therewith and his cognizance
of the contents thereof. With regard to a publication in which a libel is
printed, not only is the publisher but also all other persons who in any way
participate in or have any connection with its publication are liable as
publishers.

xxxx
In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46
Am. St. Rep., 629), the question of the responsibility of the manager or
proprietor of a newspaper was discussed. The court said, among other
things (pp. 782, 783):
The question then recurs as to whether the manager or proprietor of
a newspaper can escape criminal responsibility solely on the ground that
the libelous article was published without his knowledge or
consent. When a libel is published in a newspaper, such fact alone is
sufficient evidence prima facie to charge the manager or proprietor with
the guilt of its publication.
The manager and proprietor of a newspaper, we think ought to be
held prima facie criminally for whatever appears in his paper; and it
should be no defense that the publication was made without his knowledge
or consent, x x x
One who furnishes the means for carrying on the publication of a
newspaper and entrusts its management to servants or employees whom
he selects and controls may be said to cause to be published what actually
appears, and should be held responsible therefore, whether he was
individually concerned in the publication or not, x x x. Criminal
responsibility for the acts of an agent or servant in the course of his
employment necessarily implies some degree of guilt or delinquency on
the part of the publisher; x x x.

We think, therefore, the mere fact that the libelous article was published
in the newspaper without the knowledge or consent of its proprietor or
manager is no defense to a criminal prosecution against such proprietor or
manager.
 In the case of Commonwealth vs. Morgan (107 Mass., 197), this same
question was considered and the court held that in the criminal prosecution
of a publisher of a newspaper in which a libel appears, he is prima
facie presumed to have published the libel, and that the exclusion of an
offer by the defendant to prove that he never saw the libel and was not
aware of its publication until it was pointed out to him and that an apology
and retraction were afterwards published in the same paper, gave him no
ground for exception. In this same case, Mr. Justice Colt, speaking for the
court, said:

It is the duty of the proprietor of a public paper, which may be used for
the publication of improper communications, to use reasonable caution in
the conduct of his business that no libels be published. (Whartons
Criminal Law, secs. 1627, 1649; 1 Bishops Criminal Law, secs. 219, 221;
People vs. Wilson, 64 Ill., 195; Commonwealth vs. Damon, 136 Mass.,
441.)

The above doctrine is also the doctrine established by the English

courts. In the case of Rex vs. Walter (3 Esp., 21) Lord Kenyon said that
he was clearly of the opinion that the proprietor of a newspaper was
answerable criminally as well as civilly for the acts of his servants or
agents for misconduct in the management of the paper.

This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr.
Justice Foster.

Lofft, an English author, in his work on Libel and Slander, said:

An information for libel will lie against the publisher of a paper, although
he did not know of its being put into the paper and stopped the sale as soon
as he discovered it.

In the case of People vs. Clay (86 Ill., 147) the court held that

A person who makes a defamatory statement to the agent of a newspaper

for publication, is liable both civilly and criminally, and his liability is
shared by the agent and all others who aid in publishing it.

It is worthy to note that petitioner was not only the publisher, as shown by the
editorial box of Gossip Tabloid,[21] but also its president and chairperson as she
herself admitted on the witness stand.[22] She also testified that she handled the
business aspect of the publication, and assigns editors to take charge of
everything.[23] Obviously, petitioner had full control over the publication of articles
in the said tabloid. Her excuse of lack of knowledge, consent, or participation in the
release of the libelous article fails to persuade.Following our ruling
in Ocampo, petitioners criminal guilt should be affirmed, whether or not she had
actual knowledge and participation, having furnished the means of carrying on the
publication of the article purportedly prepared by the members of the Gossip
Reportorial Team, who were employees under her control and supervision.

Petitioner argues that Ocampo has been clarified by the CA in People v. Beltran and
Soliven such that Maximo V. Soliven, as publisher of The Philippine Star, was
acquitted by the appellate court in view of the lack of evidence that he knew and
approved the article written by Luis D. Beltran about then President Corazon C.
Aquino in the newspapers October 12, 1987 issue. Petitioner submits that People v.
Beltran and Soliven serves as a guide to this Court regarding the criminal liability of
the publisher of the newspaper where a libelous article is published. Put differently,
it appears that petitioner wants this Court to follow the CA decision and adopt it as
judicial precedent under the principle of stare decisis.

The doctrine of stare decisis, embodied in Article 8[24] of the Civil Code, is
enunciated, thus:

The doctrine of stare decisis enjoins adherence to judicial precedents. It

requires courts in a country to follow the rule established in a decision
of the Supreme Court thereof. That decision becomes a judicial
precedent to be followed in subsequent cases by all courts in the land. The
doctrine of stare decisis is based on the principle that once a question of
law has been examined and decided, it should be deemed settled and
closed to further argument.[25] (Emphasis supplied)

Unfortunately, the Beltran decision attained finality at the level of the CA.
Thus, if the CA seemingly made a new pronouncement regarding the criminal
liability of a publisher under Article 360 of the Revised Penal Code, that ruling
cannot bind this Court unless we purposely adopt the same. Be that as it may, we
find no compelling reason to revisit U.S. v. Ocampo; to modify it would amount to
judicial legislation. Article 360 is clear and unambiguous, and to apply People v.
Beltran and Soliven, which requires specific knowledge, participation, and approval
on the part of the publisher to be liable for the publication of a libelous article, would
be reading into the law an additional requirement that was not intended by it.

In the same vein, we note that the CA erred in acquitting Tugas. Tugas cannot
feign lack of participation in the publication of the questioned article as was evident
from his and petitioners Joint Counter-Affidavit,[26] and as gleaned from his
testimony before the trial court, to wit:

WITNESS: As editor-in-chief, I have no participation in the writing of the

questioned article and my only participation in the
publication is the handling of the physical lay-outing,
indication and allocation of type-size of the body of the
article, before the same was printed and published in
GOSSIP Tabloid.

Q: You do not deny the statements in this publication as executed by you

in the counter-affidavit and sworn in before the City
Prosecutor, is this correct?
A: Yes, that is correct.

ATTY. ALENTAJAN:

That is all for the witness, your Honor.

COURT: Do we get it right from you, if you were acting as you were, you
will not allow the said publication of this same article or
same stories?

A: If I were, if I was physically present, honestly I will because if you can

see the article, your Honor, it is according to our source, it is
not a direct comment.

COURT: So whether you are there or not, [the] same article leading to
them (sic) will still find its way to come out?

A: Yes, your honor.[27]

Tugas testimony, in fact, confirms his actual participation in the preparation and
publication of the controversial article and his approval thereof as it was
written. Moreover, his alibi, which was considered meritorious by the CA, that he
was confined at the Mother of Perpetual Help Clinic in Angeles City, is unavailing,
in view of the testimony of his attending physician that Tugas medical condition did
not prevent him from performing his work, thus

Q: How would you describe the condition of the patient on June 13, 1995?
A: He is in stable condition.

Q: You said he was in severe pain, from your opinion, was that condition
sufficient to enable him to work?
A: Yes, in my opinion.[28]

Q: You said your impression of the patient was urethral colic and this was
caused by spasm?
A: Yes, sir.

Q: When you say spasm, it is not sustained, it comes every now and then
and [intermittently], it is not sustained?
A: Yes, sir.

Q: Now you said he was in stable condition?

A: Yes, sir.

Q: That means that his ailment is not life-threatening?

A: Correct.

Q: In fact, visitors were allowed to see him?

A: Yes, sir.

Q: He can also write?

A: Yes, sir.

Q: He was allowed to [receive] friends?

A: Yes, sir.
 Q: According to you, he was able to work also, he is not totally
incapacitated in performing certain chores in the hospital room?
A: No, sir.

Q: Now, prior to 7:10 oclock in the morning of June 13, 1995, you did not
see Mr. Bogs Tugas?
A: I saw him, he was admitted at 7:00 oclock but I saw him before.

Q: How long before 7:10 were you able to see him?

A: That is about 2 hours.

Q: About 5:00 oclock in the morning?

A: Yes, sir.

Q: Who was his companion when you saw him?

A: He was boarding in my place.

Q: So, you brought him to the hospital?

A: Both of us went to the hospital.

Q: Which boarding house are you referring [to]? In Angeles City?

A: Yes, sir.

Q: Do you know that Mr. Bogs Tugas works here in Quezon City as
editor-in-chief of a newspaper tabloid?
A: Yes, sir.

Q: And some of his work is done in your boarding house?

A: I do not know about it.

Q: How did you know that he is working on his paper works in Quezon
City? Did you see him do that?
A: I only know he goes to Manila everyday.

Q: In your boarding house, you saw him read and write?

A: Probably yes.[29]

But, of course, we cannot reinstate the ruling of the trial court convicting Bogs
Tugas because with his acquittal by the CA, we would run afoul of his constitutional
right against double jeopardy.
 Anent the third and fourth issues, petitioner argues that the subject article in
the June 14, 1995 issue of Gossip Tabloid is not libelous, is covered by the mantle
of press freedom, and is merely in the nature of a fair and honest comment. We
disagree.

The banner headlines of the offending article read:

KUNG TOTOONG NAKATAKAS NA SI ANNABELLE RAMA,

IMPOSIBLENG SA STATES SIYA NAGPUNTA!

MAS MALAKING HALAGA ANG NADISPALKO NILA SA STATES,

MAY MGA NAIWAN DING ASUNTO DUN SI ANNABELLE!

On the first page of the same issue of Gossip Tabloid, written in smaller but bold
letters, are:

HINDI SIYA MAKAKAPUNTA SA AMERIKA DAHIL

NAPAKARAMI RIN NIYANG ASUNTONG INIWAN DUN NOON
PA, NAKAPAG-ABROAD MAN SIYA, E, PIHADONG HINDI SIYA
SA AMERIKA NAGTULOY, SA AMERIKA PA KAYA SIYA
MAGTATAGO, E, ILANG TAON NA RIN SIYANG INAABANGAN
DUN NG NGA KABABAYAN NATING NILOKO NIYA, IN ONE
WAY OR ANOTHER?... NAAALALA PA BA NINYO YUNG MGA
MAMAHALING KALDERO NA IBINEBENTA NILA NOON SA
AMERIKA, DUN SILA NAGKAPROBLEMA, MILYON-MILYON
ANG INVOLVED, KAYA KINAILANGAN NILANG UMUWI SA
PILIPINAS NOON!

The rest of the article, which continued to the entire second page of the tabloid,
follows

Mainit na pinag-uusapan ngayon ang ibat ibang posibilidad na maaaring

gawin ni Annabelle Rama Gutierrez para lang hindi matuloy ang pag-
aresto at pagkukulong sa kanya ng mga awtoridad kaugnay ng
sintensiyang ipinapataw sa kanya ni Manila-RTC Judge Rodolfo Palattao.
Mula noong June 8, nabatid ng Gossip Tabloid, ay wala pang sinumang
nakapagtuturo kung saan talaga naroon ang ina ni Ruffa Gutierrez na hindi
pinayagang makapagpiyansa ng Branch 33 para sa pansamantala niyang
kalayaan.

May mga nagpapalagay na sa pamamagitan ng tinatawag na back-door

exit, ang pag-alis ng bansa sa paraang hindi na kailangan pang dumaan sa
NAIA, ay nakaalis na si Annabelle noon pang nakaraang Biyernes, June
9, patungong Amerika.

Pero isang mapagkakatiwalaang source ng Gossip Tabloid ang nagsabing

napaka-imposibleng sa Amerika nagtungo si Annabelle dahil doon man
ay may mga nakahanda nang awtoridad na handang magkulong kay
Annabelle, sakaling mapatunayang naroon nga siya.

Hindi siya makapupunta sa Amerika dahil napakarami rin niyang

asuntong iniwan doon noon pa!

Nag-abroad man siya, e pihadong hindi siya sa Amerika nagtuloy dahil

nakaabang na rin ang sangkatutak niyang maniningil dun ngayon!

Sa Amerika pa kaya siya magtatago, samantalang ilang taon na rin siyang

inaabangan dun ng mga kababayan nating niloko niya, in one way or
another? simula ng source ng Gossip Tabloid.

Niliwanag ng naturang source na ang dahilan ng biglaang pag-uwi ng

pamilya Gutierrez sa bansa ilang taon na ang nakararaan ay may
kinalaman sa malaking halagang hindi nabayaran nina Eddie at Annabelle
sa ilang kababayan natin sa Amerika.

Naaalala pa ba ninyo yung mga kalderong ibinebenta noon nina Eddie at

Annabelle sa States?

Mga mamahaling kaldero yun, hindi basta-basta kaldero ang ibinebenta

nila dun, kaya talagang ang ganda-ganda na sana ng buhay nilang mag-
anak dun hanggang sa dumating yung point na sinisingil na sila nung
mismong kompanya ng kaldero!

Malaki ang halagang involved, milyon-milyon, kaya nung kinasuhan na

sila, e kinailangan nilang umalis sa Amerika para bumalik na dito.
Isa si Bert Leroy, Jr. sa mga Pilipinong nagkaroon ng malaking problema
kina Eddie at Annabelle, alam ba nyo yun?

Ang ganda-ganda ng samahan nila nung una sa Amerika, yumaman sila

nang dahil sa mga mamahaling kaldero na ibinebenta nila, kaso, sumabit
sina Eddie at Annabelle dun sa mismong company na pinagkukunan nila
ng produkto!

Bukod sa napakarami na nilang isinabit na Pinoy sa Amerika dahil sa mga

kalderong yun, e sumabit pa sila nang malaking halaga sa mismong
manufacturer nung mga ibinebenta nilang mamahaling kaldero!

Yun ang dahilan kung bakit bigla-biglang umuwi sa Pilipinas ang pamilya
ni Eddie!

Ang ikinakatwiran nilang mag-asawa noon, e gusto raw kasi nilang

lumaking Pilipinong-Pilipino ang kanilang mga anak, pero ang totoo, e,
napakalaki ng problemang iniwan nila sa Amerika! mahabang simula ng
source ng Gossip Tabloid.

Masamang-masama diumano ang loob ng mga Pilipinong kinatalo roon

nina Eddie at Annabelle, lalo na si Annabelle, na bukod sa mataray na ay
may kayabangan pa.

Dati nang ganyan si Annabelle! Mataray siya na wala sa lugar. Nung nasa
Amerika pa silang mag-anak, e, yun din ang madalas nilang pag-awayan
dun ni Eddie!

Madalas silang magkagalit, kaya si Eddie, para lang makapagpalipas ng

mga sama niya ng loob, e, dun nag-i-stay sa bahay ng mga kaibigan niyang
Pinoy!

Grabe ang naging problema nila dun, kaya wala silang choice that time
kung di ang umuwi na lang sa Pilipinas!

Ang halagang involved sa pagbebenta nila ng kaldero, e, hindi basta-basta,

milyunan yon!

Kaso yung pinagbebentahan nila, yung halagang dapat sana, e, ibigay nila
sa kompanya dahil porsiyentuhan lang naman sila dun, nagastos nila!
Nawala ang pera, at ang balita nga sa States, e, si Annabelle ang dahilan
kung bakit nalubog sila noon sa utang sa States!

Nag-casino pala si Annabelle! Grabe raw kung magpatalo siya, kaya pati
yung kinita nila sa pagbebenta ng mamahaling kaldero, e, natunaw! sabi
uli ng source ng Gossip Tabloid.

Maraming Pilipino ang sinabitan doon ng mag-asawa, ayon pa sa source

ng Gossip Tabloid, kaya ngayong may asunto naman si Annabelle dito sa
Pilipinas ay napaka-imposibleng sa Amerika pa rin siya tatakbo.

Paano siya magpupunta dun para tuluyan nang manirahan, e, ang dami-
dami ring Pinoy na naghihintay sa kanya dun para maningil sa kanya?

Alam nyo ba, bukod sa galit na galit na sa kanila ang mga Pinoy na
nandun, e, may mga nakaabang na ring asunto para kay Annabelle.

So, malabong sa Amerika pa siya tumuloy ngayong napapabalitang nasa

abroad siya dahil sa mga naghihintay na kaso sa kanya dun.

Ang alam namin, e, sa Europe nagbabalak pumunta ang pamilya ni Eddie.

Di bat ilang beses nang nagpapabalik-balik dun sina Ruffa. Noon pa, e,
pinag-aralan na nina Eddie at Annabelle ang posibilidad ng mga gagawin
nila!

Alam nila na hindi sila puwedeng mag-stay sa States dahil kalat din ang
asunto nila dun, bukod pa sa napakaraming Pinoy na huma-hunting sa
kanila!

Kaya kung totoong nakalusot na nga si Annabelle ngayon para makatakas

siya sa pagkakulong, imposibleng sa States siya nagpunta!

Mas malaking problema ang kailangan niyang harapin sa States dahil sa

perang nadispalko nila, bukod pa sa asuntong iniwan nilang
nakatiwangwang dun!

Naghahanap ng sakit ng katawan si Annabelle kung sa States nga niya

maisipang pumunta ngayon para lang malusutan si Ligaya Santos at ang
sintensiya sa kanya ni Judge Palattao! madiin pang pahayag ng
mapagkakatiwalaang source ng Gossip Tabloid.[30]
A libel is defined as a public and malicious imputation of a crime, or of a vice or
defect, real or imaginary; or any act, omission, condition, status, or circumstance
tending to cause the dishonor, discredit, or contempt of a natural or juridical person,
or to blacken the memory of one who is dead.[31] In determining whether a statement
is defamatory, the words used are to be construed in their entirety and should be
taken in their plain and ordinary meaning as they would naturally be understood by
persons reading them, unless it appears that they were used and understood in
another sense.[32]

To say that the article, in its entirety, is not libelous disturbs ones sensibilities;
it would certainly prick ones conscience. There is evident imputation of the crime of
malversation (that the complainants converted for their personal use the money paid
to them by fellow Filipinos in America in their business of distributing high-end
cookware); of vices or defects for being fugitives from the law (that complainants
and their family returned to the Philippines to evade prosecution in America); and
of being a wastrel (that Annabelle Rama Gutierrez lost the earnings from their
business through irresponsible gambling in casinos). The attribution was made
publicly, considering that Gossip Tabloidhad a nationwide circulation. The victims
were identified and identifiable. More importantly, the article reeks of malice, as it
tends to cause the dishonor, discredit, or contempt of the complainants.

Petitioner claims that there was no malice on her part because, allegedly, the
article was merely a fair and honest comment on the fact that Annabelle Rama
Gutierrez was issued a warrant of arrest for her conviction for estafa before then
Judge Palattaos court. She even cited as proof of her lack of malice the purported
absence of any ill will against complainants, as shown by the article she wrote about
complainants daughter Sharmaine Ruffa Gutierrez in the June 15, 1995 issue of the
same tabloid where she expressed her sympathy and admiration for the latter.

Notably, however, the complainants successfully refuted the imputations

during the trial. Complainants proved that they could return anytime to the United
States of America after the publication of the article,[33] and that they remained on
good terms with the manufacturing company of the cookware.[34] To the contrary,
both petitioner and Tugas failed to adduce evidence to show the truth of the
allegations in the article despite the opportunity to do so.

Further worthy of mention is the admission of petitioner before the trial court
that she had very close association with then Congressman Golez and mayoralty
candidate Joey Marquez, and that she would use her skills as a writer to campaign
for them. Complainant Eddie Gutierrez ran against then incumbent Golez for the
congressional seat in Paraaque City. Petitioner testified in this wise

Q: When you acted as writer during the campaign, as you said, for Joey
Marquez and Golez, of course you did not give your services for
free to these candidates, were you paid?
A: I was not paid, Sir.

Q: You just wanted to help them, am I correct?

A: Yes, because they are my friends, Sir.

Q: And you wanted them to win the election, thru your being a writer, is
that correct?
A: Yes, Sir.

Q: You were campaigning hard for Golez and Marquez, right?

A: Right, Sir.

Q: When you say hard, you wanted your candidates to win, is it not?
A: Yes, Sir.

Q: Who was the opponent of Joey Marquez at that time?

A: The former Mayor Olivares, Sir.

Q: How about the opponent of Congressman Golez?

A: One of them is Eddie Gutierrez, Sir.

Q: And the tandem of Marquez and Golez versus the tandem of Olivares
and Eddie Gutierrez, am I correct?
A: Actually, that was the situation at that time, Sir.

Q: Of course, the tandem of Joey Marquez was working hard to win over
their opponent, is it not?
A: Whatever their problems were, I am out.
 Q: As a hard campaigner, you wanted your team to win over the other, is
this correct?
A: Yes, Sir.

Q: Of course you understand what PRO work is, it includes propaganda,

is that correct?
A: I am sorry I dont accept PR work, Sir.

Q: Do you understand PRO work?

A: Yes, Sir, I know.

Q: In propaganda, for your side, you promote it as against the other, right?
A: Yes, Sir.[35]

It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by simply
making a general denial, convince us that there was no malice on her part. Verily,
not only was there malice in law, the article being malicious in itself, but there was
also malice in fact, as there was motive to talk ill against complainants during the
electoral campaign.

Neither can petitioner take refuge in the constitutional guarantee of freedom of

speech and of the press. Although a wide latitude is given to critical utterances made
against public officials in the performance of their official duties, or against public
figures on matters of public interest, such criticism does not automatically fall within
the ambit of constitutionally protected speech. If the utterances are false, malicious
or unrelated to a public officers performance of his duties or irrelevant to matters of
public interest involving public figures, the same may give rise to criminal and civil
liability.[36] While complainants are considered public figures for being personalities
in the entertainment business, media people, including gossip and intrigue writers
and commentators such as petitioner, do not have the unbridled license to malign
their honor and dignity by indiscriminately airing fabricated and malicious
comments, whether in broadcast media or in print, about their personal lives. [37]

We must however take this opportunity to likewise remind media

practitioners of the high ethical standards attached to and demanded by
 their noble profession. The danger of an unbridled irrational exercise of
the right of free speech and press, that is, in utter contempt of the rights of
others and in willful disregard of the cumbrous responsibilities inherent in
it, is the eventual self-destruction of the right and the regression of human
society into a veritable Hobbesian state of nature where life is short, nasty
and brutish. Therefore, to recognize that there can be no absolute
unrestraint in speech is to truly comprehend the quintessence of freedom
in the marketplace of social thought and action, genuine freedom being
that which is limned by the freedom of others.If there is freedom of the
press, ought there not also be freedom from the press? It is in this sense
that self-regulation as distinguished from self-censorship becomes the
ideal mean for, as Mr. Justice Frankfurter has warned, [W]ithout x x x a
lively sense of responsibility, a free press may readily become a powerful
instrument of injustice.

Lest we be misconstrued, this is not to diminish nor constrict that space in

which expression freely flourishes and operates. For we have always
strongly maintained, as we do now, that freedom of expression is mans
birthright constitutionally protected and guaranteed, and that it has
become the singular role of the press to act as its defensor fidei in a
democratic society such as ours.But it is also worth keeping in mind
that the press is the servant, not the master, of the citizenry, and its
freedom does not carry with it an unrestricted hunting license to prey on
the ordinary citizen.[38]

In view of the foregoing disquisitions, the conviction of petitioner for libel should
be upheld.

With respect to the penalty to be imposed for this conviction, we note that on January
25, 2008, the Court issued Administrative Circular No. 08-2008, entitled Guidelines
in the Observance of a Rule of Preference in the Imposition of Penalties in Libel
Cases. The Circular expresses a preference for the imposition of a fine rather than
imprisonment, given the circumstances attendant in the cases[39] cited therein in
which only a fine was imposed by this Court on those convicted of libel. It also states
that, if the penalty imposed is merely a fine but the convict is unable to pay the same,
the Revised Penal Code provisions on subsidiary imprisonment should apply.
However, the Circular likewise allows the court, in the exercise of sound discretion,
the option to impose imprisonment as penalty, whenever the imposition of a fine
alone would depreciate the seriousness of the offense, work violence on the social
order, or otherwise be contrary to the imperatives of justice.

In the case at bench, the Court considers the publics speculations as to the
whereabouts of Annabelle Rama Gutierrez with the issuance of the warrant of arrest
after her initial conviction for estafa. Petitioner fueled these speculations through her
article. However, her article went overboard and exceeded the bounds of fair
comment. This warrants her conviction. Nonetheless, in light of the relatively wide
latitude given to utterances against public figures such as private complainants, and
consonant with Administrative Circular No. 08-2008, the Court deems it proper to
modify the penalty of imprisonment to a fine in the amount of P6,000.00, with
subsidiary imprisonment in case of insolvency, in each case. But the award of moral
damages for each of the private complainants in the amount of P500,000.00, as
ordered by the trial court, should be restored on account of the serious anxiety and
the wounded feelings suffered by complainants from the libelous article, particularly
taking into account the fact that petitioner and the private complainants were on
relatively good terms with each other, and complainants gave no cause or offense
which could have provoked the malicious publication.
WHEREFORE, the Decision dated September 3, 2002 of the Court of Appeals in
CA-G.R. CR No. 20890 is AFFIRMED with the MODIFICATION that in lieu of
imprisonment, petitioner Cristinelli S. Fermin is sentenced to pay a fine in the
amount of P6,000.00, with subsidiary imprisonment in case of insolvency, in each
case. The award of moral damages, in the amount of P300,000.00 each in favor of
complainants Annabelle Rama Gutierrez and Eduardo Gutierrez, is increased
to P500,000.00. Costs against petitioner.

SO ORDERED.

G.R. No. 170643 September 8, 2006

JEJOMAR C. BINAY, for and in behalf of his minor daughter, JOANNA* MARIE BIANCA S.
BINAY, petitioner,
vs.
THE SECRETARY OF JUSTICE, GENIVI V. FACTAO and VICENTE G. TIROL, respondents.
 DECISION

YNARES-SANTIAGO, J.:

This petition for review assails the November 22, 2004 Decision1 of the Court of Appeals in CA-G.R.
SP No. 75989, which affirmed the Resolutions dated July 2, 20022 and January 8, 20033 of the
Secretary of Justice reversing the Makati City Prosecutor’s finding of probable cause against private
respondents and ordering the withdrawal of the information for libel filed in court against them, as
well as the November 25, 2005 Resolution,4 denying petitioner’s**motion for reconsideration.

In the April 15-21, 2001 issue of Pinoy Times Special Edition, an article entitled "ALYAS ERAP JR."
was published regarding the alleged extravagant lifestyle of the Binays and the assets that they
acquired while in public office. Paragraph 25 of the article reads:

Si Joanne Marie Bianca, 13 ang sinasabing ampong anak ng mga Binay, ay bumibili ng
panty na nagkakahalaga ng P1,000 ang isa, ayon sa isang writer ni Binay. Magarbo ang
pamumuhay ng batang ito dahil naspoiled umano ng kanyang ama.

Based on this article, Elenita S. Binay, mother of the minor Joanna Marie Bianca,5 filed a
complaint6 for libel against private respondents Vicente G. Tirol as publisher, and Genivi V. Factao
as writer of the article, with the Office of the City Prosecutor of Makati. The pertinent portions of the
complaint read:

xxxx

5. GENIVI V. FACTAO, as writer of the said article, voluntarily, illegally, and with the object to
insinuate and made it understood, and was in effect understood and interpreted by the public
who read it, that the young lady referred to therein can be no other than my daughter
Joanne, in this manner transmitting maliciously and intentionally to the public the impression
that Joanne is a spoiled, spendthrift brat who would not mind or care to spend P1,000 for her
underwear, all as already stated, with the object of destroying her reputation and discrediting
and ridiculing her before the bar of public opinion.

6. The said article, for whatever its avowed purpose may be, is clearly aimed at scurrilously
attacking my husband Jejomar C. Binay. In which case, the insinuations directed at Joanne
are clearly pointless and was done only for purposes of exposing Joanne to public contempt.

6.1. That the said article should specifically focus in on Joanne’s panty is a clear and
malicious invasion of her privacy and calculated to heap scorn and ridicule upon her. On top
of this, there is no connection whatsoever to her being an adopted child despite which this
was needlessly and maliciously highlighted.7

Joanna also submitted an affidavit8 where she claimed that:

4. The article was completely unmindful of the hurt and anguish I felt after it needlessly and
maliciously highlighted my being an adopted daughter. Furthermore, the article is a blatant
lie. I have never in my life bought an underwear costing P1,000.00 or more. On the contrary,
I have always maintained to keep a simple and modest life as it is how my parents had
brought me up. The questioned article has no valid object except to destroy my reputation
and to discredit and to bring ridicule upon me before my peers and that of the public.
Private respondents did not file their counter-affidavits.

The City Prosecutor found a prima facie case for libel and recommended the filing of information
against private respondents. The case9 was filed with the Regional Trial Court of Makati City.

Alleging that they did not receive the subpoena and copy of the complaint, private respondents filed
an omnibus motion to re-open the preliminary investigation. The City Prosecutor, however, denied
private respondents’ motion for reconsideration,10 thus they filed a petition for review11 with the
Secretary of Justice.

On July 2, 2002, then Acting Justice Secretary Merceditas N. Gutierrez12 reversed the City
Prosecutor’s findings and directed the withdrawal of the information filed in court.13 Elenita’s motion
for reconsideration was denied in the Resolution14 dated January 8, 2003, hence a petition for
certiorari and prohibition15 was filed with the Court of Appeals which rendered the assailed Decision
dated November 22, 2004, denying the petition and sustaining the Justice Secretary’s ruling that
there was nothing libelous in the subject article. The dispositive portion of the Decision reads:

WHEREFORE, the present petition is dismissed for lack of merit and the Resolutions dated
July 2, 2002 and January 8, 2003 of public respondent are affirmed in toto.

SO ORDERED.16

The Court of Appeals also denied Elenita’s motion for reconsideration, hence this petition, raising the
following issues:

I. The CA erred in not holding that public respondent acted with grave abuse of discretion
tantamount to lack or excess of jurisdiction.

II. The CA erred in not holding that the public respondent gravely abused its discretion for not
abiding by the ruling in Sazon vs. Court of Appeals which states that an attack upon the
private character of a public officer on matters which are not related to the discharge of his
official functions may be libelous.

III. The CA erred in not holding that there is probable cause to indict private respondents for
the crime of libel and that they are probably guilty thereof.17

In a resolution dated March 20, 2006, the Court granted the motion of Jejomar C. Binay to replace
his wife, Elenita S. Binay, as petitioner and representative of their minor daughter Joanna.18

The issue to be resolved is whether there is prima facie evidence showing that the subject article
was libelous.

Petitioner claims that the article is defamatory as it tends to, if not actually, injure Joanna’s reputation
and diminish the esteem, respect, and goodwill that others have of her. Petitioner alleges that there
is no good intention or justifiable motive in publishing Joanna’s status as an adopted child which is
essentially a private concern and the purchase of an expensive intimate apparel, but to ridicule and
to induce readers to lower their perception of Joanna.

On the other hand, private respondents allege that they did not harp on Joanna’s status as an
adopted child as the same was mentioned only once in the article; that they did not intend to injure
her reputation or diminish her self-esteem; that they referred to the price of the underwear not for the
purpose of maligning her or to make her look frivolous in the public’s eyes, but to show that
petitioner and his family lead lavish and extravagant lives; and that this matter is within the realm of
public interest given that petitioner is an aspirant to a public office while his wife is an incumbent
public official.

We grant the petition.

Under Article 353 of the Revised Penal Code, libel is defined as "a public and malicious imputation
of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or
to blacken the memory of one who is dead." Its elements are as follows: (a) an imputation of a
discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person
defamed; and (d) the existence of malice.19 Thus, for an imputation to be libelous, it must be
defamatory, malicious, published, and the victim is identifiable.20

The elements of publication and identity of the person defamed are present in this case. Thus, in
resolving the issue at hand, we limit our discussion on whether paragraph 25 of the subject article
contains the two other elements of libel, to wit: (a) imputation of a discreditable act or condition to
another, i.e., whether the paragraph is defamatory; and (b) existence of malice.

In MVRS Pub. Inc. v. Islamic Da'wah Council of the Phils., Inc.,21 we defined defamatory language in
this wise:

Defamation, which includes libel and slander, means the offense of injuring a person's
character, fame or reputation through false and malicious statements. It is that which tends
to injure reputation or to diminish the esteem, respect, good will or confidence in the
plaintiff or to excite derogatory feelings or opinions about the plaintiff. It is the
publication of anything which is injurious to the good name or reputation of another or
tends to bring him into disrepute. Defamation is an invasion of a relational interest since it
involves the opinion which others in the community may have, or tend to have, of the
plaintiff.

It must be stressed that words which are merely insulting are not actionable as libel or
slander per se, and mere words of general abuse however opprobrious, ill-natured, or
vexatious, whether written or spoken, do not constitute a basis for an action for
defamation in the absence of an allegation for special damages. The fact that the
language is offensive to the plaintiff does not make it actionable by itself. (Emphasis
added)

In determining whether a statement is defamatory, the words used are construed in their entirety and
taken in their plain, natural and ordinary meaning as they would naturally be understood by persons
reading them, unless it appears that they were used and understood in another sense.22

Tested against the foregoing, we find that there is prima facie showing that paragraph 25 of the
subject article is defamatory. It is opprobrious, ill-natured, and vexatious as it has absolutely nothing
to do with petitioner's qualification as a mayoralty candidate or as a public figure. It appears that
private respondents’ only purpose in focusing on Joanna’s status as an adopted child and her
alleged extravagant purchases was to malign her before the public and to bring her into disrepute.
This is a clear and simple invasion of her privacy.

In Buatis, Jr. v. People,23 the Court found libelous a letter addressed to a lawyer for using words
such as "lousy," "inutile," "carabao English," "stupidity," and "satan." It cast aspersion on the
character, integrity and reputation of respondent as a lawyer and exposed him to public ridicule.
Evidence aliunde was found unnecessary to prove libel.

In the same manner, we need not require any evidence aliunde to prove that paragraph 25 is
defamatory. It has exposed Joanna to the public at large as a spoiled and spendthrift adopted
daughter and a compulsive buyer who has no qualms buying expensive lingerie.

Private respondents argue that paragraph 25 constitutes privileged communication because it was a
fair comment on the fitness of petitioner to run for public office, particularly on his lifestyle and that of
his family. As such, malice cannot be presumed. It is now petitioner’s burden to prove malice in fact.

We are not convinced.

In the first place, paragraph 25 does not qualify as a conditionally or qualifiedly privileged
communication, which Article 354 of the Revised Penal Code limits to the following instances: (1) A
private communication made by a person to another in the performance of any legal, moral, or social
duty; and (2) A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative, or other official proceedings which are not of confidential nature, or of any
statement, report, or speech delivered in said proceedings, or of any act performed by public officers
in the exercise of their functions.

To qualify under the first category of a conditionally or qualifiedly privileged communication,

paragraph 25 must fulfill the following elements: (1) the person who made the communication had a
legal, moral, or social duty to make the communication, or at least, had an interest to protect, which
interest may either be his own or of the one to whom it is made; (2) the communication is addressed
to an officer or a board, or superior, having some interest or duty in the matter, and who has the
power to furnish the protection sought; and (3) the statements in the communication are made in
good faith and without malice. 24

Whichever way we view it, we cannot discern a legal, moral, or social duty in publishing Joanna's
status as an adopted daughter. Neither is there any public interest respecting her purchases of
panties worth P1,000.00. Whether she indeed bought those panties is not something that the public
can afford any protection against. With this backdrop, it is obvious that private respondents' only
motive in inserting paragraph 25 in the subject article is to embarrass Joanna before the reading
public.

In addition, the claim that paragraph 25 constitutes privileged communication is a matter of

defense, 25 which is can only be proved in a full-blown trial. It is elementary that "a preliminary
investigation is not the occasion for the full and exhaustive display of the parties’ evidence. It is for
the presentation of such evidence only as may engender a well-grounded belief that an offense has
been committed and the accused is probably guilty thereof."26

Moreover, under Article 354 of the Revised Penal Code, every defamatory imputation is presumed to
be malicious, even if it be true, if no good intention and justifiable motive for making it is shown. It is
thus incumbent upon private respondents to prove that "good intention and justifiable motive"
attended the publication of the subject article.

WHEREFORE, the petition is GRANTED. The Court of Appeals’ Decision in CA-G.R. SP No. 75989
dated November 22, 2004, upholding the Justice Secretary’s Resolutions dated July 2, 2002 and
January 8, 2003, ordering the withdrawal of the information filed against private respondents Genivi
V. Factao and Vicente G. Tirol and the Resolution dated November 25, 2005, denying petitioner’s
motion for reconsideration, are REVERSED AND SET ASIDE. The City Prosecutor of Makati City
is ORDERED to continue and proceed with the case for libel against private respondents Vicente G.
Tirol and Genivi V. Factao.

SO ORDERED.

CIRIACO BOY GUINGGUING, G.R. No. 128959

Petitioner,
Present:
PUNO, J.,
Chairman,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.

THE HONORABLE COURT

OF APPEALS and THE
PEOPLE OF THE PHILIPPINES, Promulgated:
Respondents.
TINGA, J.:

The liberty of the press is indeed essential. Whoever would

overthrow the liberty of a nation must begin by subduing the
freeness of speech.

- Benjamin Franklin[1]

The right of free expression stands as a hallmark of the modern

democratic and humane state.[2] Not only does it assure a persons
right to say freely what is thought freely, it likewise evinces the politys
freedom from psychological insecurity. This fundamental liberty is
translated into the constitutional guarantee that no law shall be
passed abridging the freedom of speech, of expression, or the
press,[3] contained in the Bill of Rights,[4] which itself obtains a
position of primacy in our fundamental law.[5]

Criminal libel laws present a special problem. At face value, they

might strike as laws passed that abridge the freedom of speech,
expression, or the press. Whatever seeming conflict between these
two precepts has long been judicially resolved with the doctrine that
libelous speech does not fall within the ambit of constitutional
protection. Nonetheless, in ascertaining what class of materials may
be considered as libelous, the freedom of expression clause, its
purposes as well as the evils it guards against, warrant primordial
consideration and application.

Before this Court is a Petition for Review under Rule 45 of the 1997
Rules of Civil Procedure, assailing the Decision[6] and
the Resolution[7] of the Court of Appeals (CA) dated 29 July 1996 and
3 October 1996, respectively, in CA-G.R. CR No. 16413. The CA
affirmed with modification[8] the decision[9] rendered by the Regional
Trial Court (RTC), Branch 7 of Cebu City, finding Ciriaco Boy
Guingguing (petitioner) and Segundo Lim (Lim) guilty beyond
reasonable doubt of the crime of libel. This petition for certiorari was
filed by petitioner alone, hence the verdict of guilt with respect to Lim
had already become final and executory.

The antecedent facts follow.

This case originated from a criminal complaint for libel filed by

Cirse Choy Torralba (complainant) against Lim and petitioner under
Criminal Case No. CBU-26582. Complainant was a broadcast
journalist who handled two programs for radio stations DYLA and
DYFX. The radio stations were based in Cebu City but the programs
were aired over a large portion of the Visayas and Mindanao.[10]

On 13 October 1991, Lim caused the publication of records of

criminal cases filed against complainant as well as photographs[11] of
the latter being arrested. These were published by means of a one-
page advertisement paid for by Lim in the Sunday Post, a weekly
publication edited and published by petitioner. The Sunday Post was
circulated in the province of Bohol, as well as in the Visayas and
Mindanao.[12] The full text of the advertisement which was the basis
of the information[13] for libel reads:

REQUEST FOR PUBLIC SERVICE

ATTN: RADIOMAN CHOY TORRALBA, STATION DYFX, CEBU CITY

TEXT: IN THE INTEREST OF PUBLIC SERVICE, PLEASE DO

ENLIGHTEN ME REGARDING THE DISPOSITION OF THE
FOLLOWING WHICH APPEAR HEREUNDER. THE CASES WERE
FOUND IN THE BLOTTER OF THE CEBU CITY POLICE
DEPARTMENT. PLEASE DO TELL ME THE STATUS OF THOSE
CASES, WHETHER THEY HAVE BEEN DISMISSED, ARCHIVED
AND/OR PENDING.

Name: CIRSE CHOY TORRALBA

CRIM. CASE NO. R-43035

FOR: MALICIOUS MISCHIEF
DATE FILED: MAY 10, 1979
COMPLAINANTS: DR. JOVENAL ALMENDRAS
ADDRESS: ALMENDRAS ST., MABOLO, CEBU CITY
MR. VICTORIANO VELOSO
ADDRESS: 117 HIPODROMO, MABOLO, CEBU CITY
DISPOSITION: PENDING ARREST

CRIM. CASE NO. 17984-R

FOR : ESTAFA
DATE FILED: July 12, 1982
COMPLAINANTS: MR. PIO Y. GO AND
MRS. ROSALITA R. ROLDAN
ADDRESS: c/o 2nd Floor Martinez Bldg.
(ALPHA MKTG., INC.),
Jones Ave., Cebu City
DISPOSITION: PENDING ARREST

CRIM. CASE NO. 14843-R

FOR: SERIOUS PHYSICAL INJURIES
DATED FILED: APRIL 28, 1980
COMPLAINANTS:
ADDRESS:
DISPOSITION: PROVISIONALLY DISMISSED
DATED: APRIL 14, 1991

NOT TOO LONG AGO, I RECEIVED THE FOLLOWING NEWSPAPER

CLIPPING COURTESY OF A CEBU CITY CONCERNED CITIZEN. THE
CAPTION STORY BELOW TELLS ALL. IF YOU KNOW WHO THE
 BUSINESSMAN ALLUDED TO IN THE CAPTION, PLEASE DO TELL
ME.
[Thereafter followed by a picture of a person with face
blotted out being arrested and an inset picture of the same
person with face likewise blotted out, being detained, these
pictures being followed by the caption, which states]:

ESTAFA CASE. Members of Cebu City Police Intelligence group

under Lt. Col. Eduardo Ricardo arrested last night a businessman
(extreme left) for his alleged involvement in estafa case filed by
APOCEMCO. Left photo a member of the team serves the warrant of
arrest order issued by CEBU RTC Judge German Lee.

ANOTHER CLIPPING WHICH IDENTIFIED BUSINESSMAN CHOY

TORRALBA TO HAVE BEEN SERVED A WARRANT OF ARREST IN
A (P)LUSH UPTOWN HOTEL IN CEBU CITY BY OPERATIVES OF
THE CEBU CITY POLICE. NOW TELL ME, IS IT YOU THE SAME
CHOY TORRALBA REFERRED TO IN THE CAPTION STORY. IF
INDEED YOU ARE THE ONE AND THE SAME WHO APPEARED IN
THE PICTURE BELOW, PLEASE TO (sic) INFORM ME.:

[Thereafter followed by another picture, this time, the

face of the person being arrested is clearly shown to be
that of Cirse Choy Torralba, followed by this caption.]

SERENE EVENING: The otherwise serene evening enjoyed by

businessman Choy Torralba (left) in a plush uptown Hotel was
disturbed by operatives (right) of the Cebu City Police under
P/Lt/Col. Eduardo Ricardo just to serve on the former a warrant of
arrest issued by Cebu RTC Judge German Lee relative to the suit
filed by Apocemco against the businessman (PR)

THANK YOU, AND MY BEST REGARDS.

PAID SPACE BY: (sgd.) SEGUNDO LIM[14]

Asserting inter alia that he had been acquitted and the case/s
referred to had already been settled, complainant sought Lim and
petitioners conviction for libel. At the same time, he asked for moral,
compensatory and exemplary damages as well as attorneys fees
because the publication allegedly placed him in public contempt and
ridicule. It was claimed that the publication was also designed to
degrade and malign his person and destroy him as a broadcast
journalist.[15]
Lim, in his defense, claimed that complainant was allegedly making
scurrilous attacks against him and his family over the airwaves.
Since Lim had no access to radio time, he opted for paid
advertisements via newspaper to answer the attacks,[16] as a measure
of self-defense. Lim also argued that complainant, as a media man
and member of the fourth estate, occupied a position almost similar
to a public functionary and should not be onion-skinned and be able
to absorb the thrust of public scrutiny.[17]

After trial, the lower court concluded that the publication

complained of was indeed libelous.[18] Declaring that malice is the
most important element of libel, it held that the same was present in
the case because every defamatory publication prima facie implies
malice on the part of the author and publisher towards the person
subject thereof.[19] The lower court gave no credence to Lim and
petitioners argument that the publication was resorted to in self-
defense.

The trial court likewise disregarded the insulative effects of

complainants status as a mediaman to the prosecution of the
criminal libel charge. The publication of a calumny even against
public officers or candidates for public office, according to the trial
court, is an offense most dangerous to the people. It deserves
punishment because the latter may be deceived thereby and reject
the best and deserving citizens to their great injury.[20] It further held
that a private reputation is as constitutionally protected as the
enjoyment of life, liberty and property such that anybody who attacks
a persons reputation by slanderous words or libelous publications is
obliged to make full compensation for the damage done.[21]

On appeal, the CA modified the penalty imposed but it affirmed

the RTCs finding of guilt. The CA likewise held that self-defense was
unavailing as a justification since the defendant should not go
beyond explaining what was previously said of him. The appellate
court asserted that the purpose of self-defense in libel is to repair,
minimize or remove the effect of the damage caused to him but it does
not license the defendant to utter blow-for-blow scurrilous language
in return for what he received. Once the defendant hits back with
equal or more scurrilous remarks unnecessary for his defense, the
retaliation becomes an independent act for which he may be
liable.[22] For this reason, the CA refused to sanction the invocation
of self-defense.

Petitioner now comes before this Court praying for the reversal of the
judgment against him. Petitioner contends inter alia that as editor-
publisher of the Sunday Post and as a member of the fourth estate,
the lower courts finding of guilt against him constitutes an
infringement of his constitutional right to freedom of speech and of
the press.[23] Petitioner likewise faults the lower courts failure to
appreciate their invocation of self-defense.

For resolution of this Court, therefore, is the fundamental question

of whether the publication subject matter of the instant case is indeed
libelous. While the findings and conclusions of the lower courts are
rigid in their application of the strict letter of the law, the issue seems
more complex than it appears at first blush. The Court is compelled
to delve deeper into the issue considering that libel principles
formulated at one time or another have waxed and waned through
the years, in the constant ebb and flow of judicial review.[24] A change
in the factual milieu of a case is apt to evoke a change in the judgment
applicable. Viewed in this context, the petition has merit and the
judgment appealed from must be reversed.

Criminal Libel vis--vis the

Guarantee of Free Speech
Under our law, criminal libel is defined as a public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or any
act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical person,
or to blacken the memory of one who is dead.[25] Thus, the elements
of libel are: (a) imputation of a discreditable act or condition to
another; (b) publication of the imputation; (c) identity of the person
defamed; and, (d) existence of malice.[26]

Originally, the truth of a defamatory imputation was not considered

a defense in the prosecution for libel. In the landmark opinion of
England's Star Chamber in the Libelis Famosis case in 1603, two
major propositions in the prosecution of defamatory remarks were
established: first, that libel against a public person is a greater
offense than one directed against an ordinary man, and second, that
it is immaterial that the libel be true.[27] These propositions were due
to the fact that the law of defamatory libel was developed under the
common law to help government protect itself from criticism and to
provide an outlet for individuals to defend their honor and reputation
so they would not resort to taking the law into their own hands.[28]
Our understanding of criminal libel changed in 1735 with the trial
and acquittal of John Peter Zenger for seditious libel in the then
English colony of New York. Zenger, the publisher of the New-York
Weekly Journal, had been charged with seditious libel, for his papers
consistent attacks against Colonel William Cosby, the Royal Governor
of New York. In his defense, Zengers counsel, Andrew Hamilton,
argued that the criticisms against Governor Cosby were the right of
every free-born subject to make when the matters so published can
be supported with truth.[29] The jury, by acquitting Zenger,
acknowledged albeit unofficially the defense of truth in a libel action.
The Zenger case also laid to rest the idea that public officials were
immune from criticism.[30]
The Zenger case is crucial, not only to the evolution of the doctrine of
criminal libel, but also to the emergence of the American democratic
ideal. It has been characterized as the first landmark in the tradition
of a free press, then a somewhat radical notion that eventually
evolved into the First Amendment[31] in the American Bill of Rights
and also proved an essential weapon in the war of words that led into
the American War for Independence.[32]

Yet even in the young American state, the government paid less than
ideal fealty to the proposition that Congress shall pass no law
abridging the freedom of speech. The notorious Alien and Sedition
Acts of 1798[33] made it a crime for any person who, by writing,
speaking or printing, should threaten an officer of the government
with damage to his character, person, or estate. The law was passed
at the insistence of President John Adams, whose Federalist Party
had held a majority in Congress, and who had faced persistent
criticism from political opponents belonging to the Jeffersonian
Republican Party. As a result, at least twenty-five people, mostly
Jeffersonian Republican editors, were arrested under the law. The
Acts were never challenged before the U.S. Supreme Court, but they
were not subsequently renewed upon their expiration.[34]

The massive unpopularity of the Alien and Sedition Acts contributed

to the electoral defeat of President Adams in 1800. In his stead was
elected Thomas Jefferson, a man who once famously opined, Were it
left to me to decide whether we should have a government without
newspapers, or newspapers without a government, I should not
hesitate a moment to prefer the latter.[35]

There is an important observation to be made about the quality of the

American press during the time of Jefferson, one that is crucial to the
contemporaneous understanding of the freedom of expression clause
at the time of its inception. The tenor of the public debate during that
era was hardly polite. About the impending election of Jefferson, the
New England Courant predicted that murder, robbery, rape and
adultery and incest will be openly taught and practiced, the air will
be rent with cries of distress, the soil soaked with blood and the
nation black with crimes.[36] After Jefferson was elected, rumors
spread about his dalliances with his slave, Sally Hemmings, adding
more fodder to his critics. The thirteen-year old William Cullen
Bryant, who would grow up to become a prominent poet and
abolitionist, published the following doggerel: Thy countrys ruin and
thy countrys shame!/ Go wretch! Resign the Presidential
chair/Disclose thy secret measures foul and fair/ Go scan,
philosophist, thy [Sallys] charms/And sink supinely in her sable
arms.[37]

Any comprehensive history of the American media during the first

few decades of the existence of the United States would reveal a
similar preference in the media for such mad-dog rhetoric.[38] These
observations are important in light of the misconception that freedom
of expression extends only to polite, temperate, or reasoned
expression. The assailed decision of the RTC betrays such a
perception, when it opined that the subject advertisement was
libelous because by the language used, it had passed from the
bounds of playful gist, and intensive criticism into the region of
scurrilous calumniation and intemperate personalities.[39] Evidently,
the First Amendment was designed to protect expression even at its
most rambunctious and vitriolic form as it had prevalently taken
during the time the clause was enacted.

Nonetheless, juristic enforcement of the guarantee of freedom of

expression was not demonstrably prominent in the United States
during most of the 1800s. Notably, the prevalent philosophy then was
that the Bill of Rights did not apply to the different federal
states.[40] When the US Supreme Court was confronted with
substantial First Amendment issues in the late 1800s and early
1900s, it responded by repeatedly declining to protect free
speech.[41] The subsequent enactment of the due process clause in
the Fourteenth Amendment eventually allowed the U.S. Supreme
Court to accept, in Gitlow v. New York[42] that the First Amendment
was protected from impairment by the States, thus allowing for a
more vigorous enforcement of the freedom of expression clause in the
twentieth century.[43]
The most important American ruling on libel, arguably from which
modern libel law emerged[44] was New York Times v.
Sullivan,[45] penned by the liberal lion Justice William Brennan, Jr. In
ascertaining whether the New York Times was liable for damages in
a libel action, the U.S. Supreme Court had acknowledged that the
writing in question, an advertisement published in the
paper[46] extolling the virtues of the civil rights movement, had
contained several factual inaccuracies in describing actions taken by
Montgomery, Alabama officials on civil rights protesters.[47]The Court
even concluded that at most, there was a finding against the New
York Times of negligence in failing to discover the misstatements
against the news stories in the newspapers own files.[48]

Nonetheless, the U.S. Supreme Court squarely assessed the import

of the First Amendment freedoms in the prosecution of criminal libel.
Famously, the precedent was established that a public official may
not successfully sue for libel unless the official can prove actual
malice, which was defined as with knowledge that the statement was
false or with reckless disregard as to
whether or not it was true.[49] By this standard, it was concluded that
factual errors aside, actual malice was not proven to sustain the
convictions for libel. Moreover, leeway was allowed even if the
challenged statements were factually erroneous if honestly made.[50]
Shortly after New York Times was promulgated, its principles were
extended by the U.S. Supreme Court to criminal libel actions
in Garrison v. Louisiana.[51] The decision, also penned by Justice
Brennan, commented on the marked decline in the common resort to
criminal libel actions:

Where criticism of public officials is concerned, we see no merit in

the argument that criminal libel statutes serve interests distinct
from those secured by civil libel laws, and therefore should not be
subject to the same limitations. At common law, truth was no
defense to criminal libel. Although the victim of a true but
defamatory publication might not have been unjustly damaged in
reputation by the libel, the speaker was still punishable since the
remedy was designed to avert the possibility that the utterance
would provoke an enraged victim to a breach of peace . . .

[However], preference for the civil remedy, which enabled the

frustrated victim to trade chivalrous satisfaction for damages, has
substantially eroded the breach of peace justification for criminal
libel laws. In fact, in earlier, more violent times, the civil remedy had
virtually pre-empted the field of defamation; except as a weapon
against seditious libel, the criminal prosecution fell into virtual
desuetude.[52]

Then, the Court proceeded to consider whether the historical

limitation of the defense of truth in criminal libel to utterances
published with good motives and for justifiable ends:[53]

. . . The good motives restriction incorporated in many state

constitutions and statutes to reflect Alexander Hamiltons
unsuccessfully urged formula in People v. Croswell, liberalized the
common-law rule denying any defense for truth. . . . In any event,
where the criticism is of public officials and their conduct of
public business, the interest in private reputation is overborne
by the larger public interest, secured by the Constitution, in the
dissemination of truth. . . .

Moreover, even where the utterance is false, the great

principles of the Constitution which secure freedom of
expression in this area preclude attaching adverse
 consequences to any except the knowing or reckless
falsehood. Debate on public issues will not be uninhibited if the
speaker must run the risk that it will be proved in court that he
spoke out of hatred; even if he did speak out of hatred, utterances
honestly believed contribute to the free interchange of ideas and the
ascertainment of truth. . . .[54]

Lest the impression be laid that criminal libel law was rendered
extinct in regards to public officials, the Court made this important
qualification in Garrison:

The use of calculated falsehood, however, would put a different

cast on the constitutional question. Although honest utterance,
even if inaccurate, may further the fruitful exercise of the right of
free speech, it does not follow that the lie, knowingly and deliberately
published about a public official, should enjoy a like immunity. At
the time the First Amendment was adopted, as today, there
were those unscrupulous enough and skillful enough to use the
deliberate or reckless falsehood as an effective political tool to
unseat the public servant or even topple an administration.
That speech is used as a tool for political ends does not
automatically bring it under the protective mantle of the
Constitution. For the use of the known lie as a tool is at once with
odds with the premises of democratic government and with the
orderly manner in which economic, social, or political change is to
be effected.[55]

Another ruling crucial to the evolution of our understanding

was Curtis Publishing Co. v. Butts,[56] which expanded the actual
malice test to cover not just public officials, but also public figures.
The U.S. Supreme Court, speaking through Chief Justice Warren,
stated that:

[D]ifferentiation between public figures and public officials and

adoption of separate standards of proof for each have no basis in
law, logic, or First Amendment policy. Increasingly in this country,
the distinctions between governmental and private sectors are
blurred. . . . [I]t is plain that although they are not subject to the
restraints of the political process, public figures, like public officials,
often play an influential role in ordering society. And surely as a
class these public figures have as ready access as public officials to
 mass media of communication, both to influence policy and to
counter criticism of their views and activities. Our citizenry has a
legitimate and substantial interest in the conduct of such persons,
and freedom of the press to engage in uninhibited debate about their
involvement in public issues and events is as crucial as it is in the
case of public officials. The fact that they are not amenable to the
restraints of the political process only underscores the legitimate
and substantial nature of the interest, since it means that public
opinion may be the only instrument by which society can attempt to
influence their conduct.[57]

The public figure concept was later qualified in the case of Gertz v.
Welch, Inc.,[58] which held that a private person should be able to
recover damages without meeting the New York Times standard.[59] In
doing so, the US Supreme Court recognized the legitimate state
interest in compensating private individuals for wrongful injury to
reputation.[60]

The prominent American legal commentator, Cass Sunstein, has

summarized the current American trend in libel law as follows:

[C]onsider the law of libel. Here we have an explicit system of

free speech tiers. To simplify a complex body of law: In the highest,
most-speech protective tier is libelous speech directed against a
public figure. Government can allow libel plaintiffs to recover
damages as a result of such speech if and only if the speaker had
actual malicethat is, the speaker must have known that the speech
was false, or he must have been recklessly indifferent to its truth or
falsity. This standard means that the speaker is protected against
libel suits unless he knew that he was lying or he was truly foolish to
think that he was telling the truth. A person counts as a public figure
(1) if he is a public official in the sense that he works for the
government, (2) if, while not employed by government, he otherwise
has pervasive fame or notoriety in the community, or (3) if he has
thrust himself into some particular controversy in order to influence
its resolution. Thus, for example, Jerry Falwell is a public figure and,
as a famous case holds, he is barred from recovering against a
magazine that portrays him as having had sex with his mother. Movie
stars and famous athletes also qualify as public figures. False speech
 directed against public figures is thus protected from libel actions
except in quite extreme circumstances.[61]

It may also be noted that this heightened degree of protection afforded

to free expression to comment on public figures or matters against
criminal prosecution for libel has also gained a foothold in Europe.
Article 10 of the European Convention on Human Rights and
Fundamental Freedoms provides that [e]veryone has the right to
freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers.[62] The
European Court of Human Rights applied this provision in Lingens v.
Austria,[63] in ruling that the Republic of Austria was liable to pay
monetary damages as just satisfaction to a journalist who was found
guilty for defamation under the Austrian Criminal Code.[64] The
European Court noted:

[Article 10] is applicable not only to information or ideas that

are favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb. Such
are the demands of that pluralism, tolerance and broadmindedness
without which there is no democratic society. . . . These principles
are of particular importance as far as the press is concerned. Whilst
the press must not overstep the bounds set, inter alia, for the
protection of the reputation of others, it is nevertheless incumbent
on it to impart information and ideas on political issues just as on
those in other areas of public interest. Not only does the press have
the task of imparting such information and ideas: the public also
has the right to receive them. . . .[65]

The international trend in diminishing the scope, if not the viability,

of criminal libel prosecutions is clear. Most pertinently, it is also
evident in our own acceptance in this jurisdiction of the principles
applied by the U.S. Supreme Court in cases such as New York
Times and Garrison.
Particularly, this Court has accepted the proposition that the actual
malice standard governs the prosecution of criminal libel cases
concerning public figures. In Adiong v. COMELEC,[66] the Court
cited New York Times in noting that [w]e have adopted the principle
that debate on public issues should be uninhibited, robust, and wide
open and that it may well include vehement, caustic and sometimes
unpleasantly sharp attacks on government and public
officials.[67] The Court was even more explicit in its affirmation of New
York Times in Vasquez v. Court of Appeals.[68]Speaking through
Justice Mendoza:

For that matter, even if the defamatory statement is false, no liability

can attach if it relates to official conduct, unless the public official
concerned proves that the statement was made with actual malice
that is, with knowledge that it was false or with reckless disregard
of whether it was false or not. This is the gist of the ruling in the
landmark case of New York Times v. Sullivan, which this Court has
cited with approval in several of its own decisions.[[69]] This is the
rule of "actual malice." In this case, the prosecution failed to prove
not only that the charges made by petitioner were false but also that
petitioner made them with knowledge of their falsity or with reckless
disregard of whether they were false or not.[70]

The Court has likewise extended the actual malice rule to apply not
only to public officials, but also to public

figures. In Ayer Productions Pty. Ltd. v. Capulong,[71] the Court cited

with approval the following definition of a public figure propounded
by an American textbook on torts:

A public figure has been defined as a person who, by his

accomplishments, fame, or mode of living, or by adopting a
profession or calling which gives the public a legitimate interest in
his doings, his affairs, and his character, has become a 'public
personage.' He is, in other words, a celebrity. Obviously to be
 included in this category are those who have achieved some degree
of reputation by appearing before the public, as in the case of an
actor, a professional baseball player, a pugilist, or any other
entertainer. The list is, however, broader than this. It includes
public officers, famous inventors and explorers, war heroes and
even ordinary soldiers, an infant prodigy, and no less a personage
than the Grand Exalted Ruler of a lodge. It includes, in short,
anyone who has arrived at a position where public attention is
focused upon him as a person.[72]

Ayer did not involve a prosecution for libel, but a complaint for
injunction on the filming of a dramatized account of the 1986 EDSA
Revolution. Nonetheless, its definition of a public figure is important
to this case, as it clearly establishes that even non-governmental
officials are considered public figures. In fact, the definition
propounded in Ayer was expressly applied by the Court in Borjal v.
Court of Appeals[73] in ascertaining whether the complainant therein
was a public figure, thus warranting the application of the actual
malice test.[74]

We considered the following proposition as settled in this

jurisdiction: that in order to justify a conviction for criminal libel
against a public figure, it must be established beyond reasonable
doubt that the libelous statements were made or published with
actual malice, meaning knowledge that the statement was false or
with reckless disregard as to whether or not it was true. As applied
to the present petition, there are two main determinants: whether
complainant is a public figure, and assuming that he is, whether the
publication of the subject advertisement was made with actual
malice. Sadly, the RTC and the CA failed to duly consider both
propositions.

Complainant Is a Public Figure

There should be little controversy in holding that complainant is a
public figure. He is a broadcast journalist hosting two radio programs
aired over a large portion of the Visayas and Mindanao. Measured
against the definition provided in Ayer, complainant would definitely
qualify as a public figure. Complainant even asserted before the trial
court that his broadcast was listened to widely, hence, his notoriety
is unquestionable.

Complainants standing as a public figure is further militated by the

contextual circumstances of the case. The newspaper in question, the
Sunday Post, is particularly in circulation in the areas where
complainants broadcasts were aired. Certainly, it cannot be denied
that the target audience of the newspaper were the same persons who
may have listened regularly to the complainants broadcast. Even if
the sphere of complainants renown is limited in geography, it is in
the same plane as the circulation of the offending newspaper. The
extent of complainants ability to influence hearts and minds through
his broadcasts need not be established, only that he has such
capacity and willingness to exert an influence. Complainants volition
to practice the radio broadcasting profession necessarily thrusts him
in the public sphere.

Actual Malice Not Proven

As it has been established that complainant was a public figure, it

was incumbent upon the prosecution to prove actual malice on the
part of Lim and petitioner when the latter published the article
subject matter of the complaint. Set otherwise, the prosecution must
have established beyond reasonable doubt that the defendants knew
the statements in the advertisement was false or nonetheless
proceeded with reckless disregard as to publish it whether or not it
was true.
It should thus proceed that if the statements made against the public
figure are essentially true, then no conviction for libel can be had.
Any statement that does not contain a provably false factual
connotation will receive full constitutional protection.[75] An
examination of the records of this case showed that the prcis of
information contained in the questioned publication were actually
true. Thus, complainant himself testified:

Q But is it true that these cases published in Exhibit F-1 are

actually existing or previous cases?
A At the time of the publication those cases were terminated, long
terminated.

Q But is it true that in fact, there was a criminal case No. R-43035
for Malicious Mischief filed May 10, 1979 against you?

FISCAL ROCAMORA:

Your Honor, I believe the witness did not understand the question.

COURT: (to Stenographer)

Read back the question.

Q Is it true that in fact, there was a criminal case No. R-43035 for
Malicious Mischief filed May 10, 1979, against you?
A I really do not know about that accusation.

COURT:

Proceed.

ATTY. FLORIDO:

Q When you came across the publication, did you check if in fact
there was a case docketed with that number against you? Did
you check?
A I did not.
Q: Now, is it true that there was a criminal case against you for
Estafa docketed as criminal case No. 17984-R filed July 21,
1982 where the complaints were Pio Go and Mrs. Rosalita
Roldan?
A: Yes.

Q: Is it true that there was also a criminal case filed against you
numbered 14843-R for Serious Physical Injuries, date filed
April 28, 1980 which in this publication appears provisionally
dismissed April 14, 1991?
A: That case, I do not have any idea about it.

Q: Did you inquire from the appropriate Court when you received a
copy of this to find out if it is true that these cases were filed
against you?
A: As far as I know, in fact, I never received any subpoena or
anything about this case.

Q: Yes, but did you upon receipt of Exhibit F-1, did you inquire
from the Court whether it is true that these cases had been
recorded as filed against you?
A: Well, as far as I know like the Estafa case, I was already long
been acquitted in that case.

Q: You did not answer the question. Will you please answer.

COURT: (to witness)

Q: The question is, did you inquire from the Court concerned
whether that case exist?
A: Yes.

COURT:

Proceed.

ATTY. FLORIDO:

Q: And you discovered that they were true that this was
provisionally dismissed with reference to 14843-R for Serious
Physical Injuries. You made inquiries?
A: Yes.
Q: And you also know that Dr. Jovenal Almendras your godfather
in the wedding had also filed a case of Malicious Mischief
against you?
A: I know but that was in the past.

Q: Yes, I know that that was in the past, but that is true?
A: Yes.

Q: So, there is nothing false so far as Exhibit F-1?

A: There is no question about that but that is malicious.

Q: Let me see. On the lefthand side of the bottom it says. Not too
long ago, I received the following newspaper clippings
courtesy of the Cebu City concerned citizens. The caption
story below tells all. If you know who the businessman
alluded to in the caption. Please do tells me and then, there
is a photograph a reprint from Sun Star publication. Do you
confirm that?[76]

xxx

Q: But is it true that you were arrested per this photograph and I
quote. In a plush uptown hotel was disturbed by operatives
(right) of the Cebu City Police under Police Lieutenant Col.
Eduardo Ricardo just to serve on the former a warrant of
arrest issued by the Cebu RTC Judge German Lee relative to
the suit filed by Apocemco against a businessman. Is it true
that you were arrested?
A: Yes.

Q: So this photograph is genuine photograph?

A: Yes.

Q: And you claimed that you have a good reputation and that good
reputation had been soiled by the accused in this case. Let
me ask you concerning your reputation then. Is it not a fact
that aside from this record of criminal cases appearing in
Exhibit F-1, you have also been at one time or another been
accused of several other criminal cases both in and out of the
City of Cebu?
A: Yes, before, 10 years, 15 years ago.

Q: And in the Municipal Trial Court in Cities alone in Cebu City,

you have the following per certificate which we marked as
 Exhibit 2. Criminal Case Nos. 14843-R for Serious Physical
Injuries, Torralba Cirse Choy; 17984-R, for Estafa; Torralba
Cirse R. R-43035 for Malicious Mischief. You will confirm that
the same Cirse Torralba and/or Choy Torralba and/or Cirse
R. Torralba mentioned in this certificate refer to your person?
A: Yes.

Q: Now, aside from these criminal cases in the Municipal Trial

Courts in Cities, in Cebu City, you also have 1, 2, 3, 4, 5, 6,
7, 8, 9 criminal cases before the Regional Trial Court of Cebu
per certificate that I marked as Exhibit 3. Is that correct?
A: Yes, but all those cases have already been either acquitted or
dismissed. I will present the certification.

Q: Specifically, these cases has something to do with your

character. Let me count 1, 2, 3, 4, 5 cases for Estafa, the
6th case for issuance of a bouncing check, the 7th case is a
case for issuance of a bouncing check; and the 9th is also for
issuance of a bouncing check. You will confirm that?

....

COURT: (to witness)

Q: What happened to those cases?

A: I was acquitted your Honor. I was acquitted in all those cases,
some are dismissed, and fortunately, your Honor, I do not
have any conviction.[77]

From the foregoing, it is clear that there was nothing untruthful

about what was published in the Sunday Post. The criminal cases
listed in the advertisement as pending against the complainant had
indeed been filed. It may have been inconvenient for the complainant
that these matters may have been divulged, yet such information
hardly falls within any realm of privacy complainant could invoke,
since the pendency of these criminal charges are actually matters of
public record.

The information, moreover, went into the very character and

integrity of complainant to which his listening public has a very
legitimate interest. Complainant hosts a public affairs program, one
which he himself claimed was imbued with public character since it
deals with corruptions in government, corruptions by public officials,
irregularities in government in comrades.[78] By entering into this line
of work, complainant in effect gave the public a legitimate interest in
his life. He likewise gave them a stake in finding out if he himself had
the integrity and character to have the right to criticize others for
their conduct.

In convicting the defendants, the lower courts paid particular

heed to Article 354 of the Revised Penal Code, which provides that
every defamatory imputation is presumed to be malicious, even if it
be true, if no good intention and justifiable motive for making it is
shown. We hold that this provision, as applied to public figures
complaining of criminal libel, must be construed in light of the
constitutional guarantee of free expression, and this Courts
precedents upholding the standard of actual malice with the
necessary implication that a statement regarding a public figure if
true is not libelous. The provision itself allows for such leeway,
accepting as a defense good intention and justifiable motive. The
exercise of free expression, and its concordant assurance of
commentary on public affairs and public figures, certainly qualify as
justifiable motive, if not good intention.

It cannot be helped if the commentary protected by the Bill of

Rights is accompanied by excessive color or innuendo. Certainly,
persons in possession of truthful facts are not obliged to present the
same in bland fashion. These true facts may be utilized to convince
the listener/reader against a particular position, or to even dissuade
one against accepting the credibility of a public figure. Dry facts, by
themselves, are hardly stirring. It is the commentary thereupon that
usually animates the discourse which is encouraged by the
Constitution as integral to the democratic way of life. This is replete
in many components of our daily life, such as political addresses,
televised debates, and even commercial advertisements.

As adverted earlier, the guarantee of free speech was enacted

to protect not only polite speech, but even expression in its most
unsophisticated form. Criminal libel stands as a necessary
qualification to any absolutist interpretation of the free speech
clause, if only because it prevents the proliferation of untruths which
if unrefuted,
would gain an undue influence in the public discourse. But in order
to safeguard against fears that the public debate might be muted due
to the reckless enforcement of libel laws, truth has been sanctioned
as a defense, much more in the case when the statements in question
address public issues or involve public figures.

In ascertaining the degree of falsity that would constitute actual

malice, the Court, citing New York Times, has even gone so far as
acknowledging:

Even assuming that the contents of the articles are false,

mere error, inaccuracy or even falsity alone does not prove actual
malice. Errors or misstatements are inevitable in any scheme of truly
free expression and debate. Consistent with good faith and
reasonable care, the press should not be held to account, to a point
of suppression, for honest mistakes or imperfections in the choice of
language. There must be some room for misstatement of fact as well
as for misjudgment. Only by giving them much leeway and tolerance
can they courageously and effectively function as critical agencies in
our democracy. In Bulletin Publishing Corp. v. Noel we held

A newspaper especially one national in reach and

coverage, should be free to report on events and
developments in which the public has a legitimate interest
with minimum fear of being hauled to court by one group or
another on criminal or civil charges for libel, so long as the
newspaper respects and keeps within the standards of
morality and civility prevailing within the general community.
 To avoid the self-censorship that would necessarily
accompany strict liability for erroneous statements, rules governing
liability for injury to reputation are required to allow an adequate
margin of error by protecting some inaccuracies. It is for the same
reason that the New York Times doctrine requires that liability for
defamation of a public official or public figure may not be imposed
in the absence of proof of "actual malice" on the part of the person
making the libelous statement.[79]

To this end, the publication of the subject advertisement by

petitioner and Lim cannot be deemed by this Court to have been done
with actual malice. Aside from the fact that the information contained
in said publication was true, the intention to let the public know the
character of their radio commentator can at best be subsumed under
the mantle of having been done with good motives and for justifiable
ends. The advertisement in question falls squarely within the bounds
of constitutionally protected expression under Section 4, Article III,
and thus, acquittal is mandated.

WHEREFORE, premises considered, the petition is GRANTED.

The assailed Decision and Resolution of the Court of Appeals dated
29 July 1996 and 3 October 1996, respectively, in CAG.R. CR No.
16413 are REVERSED and SET ASIDE insofar as they affect
petitioner. The Decision of the Regional Trial Court of Cebu City,
promulgated on 17 May 1994, as regards petitioner is likewise
REVERSED and SET ASIDE and petitioner is ACQUITTED of the
charge of libel therein. No costs.

SO ORDERED.
ALLEN A. MACASAET, NICOLAS V. QUIJANO, JR., and ALFIE
LORENZO, petitioners, vs. THE PEOPLE OF THE PHILIPPINES
and JOSELITO TRINIDAD, respondents.
ROBERTO BRILLANTE, petitioner, vs. COURT OF APPEALS and THE
PEOPLE OF THE PHILIPPINES, respondents.
 DECISION
TINGA, J.:

Good name in man and woman, dear my Lord,

Is the immediate jewel of their souls:
Who steals my purse steals trash; tis
Something, nothing;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.
- Shakespeare: Othello, III, iii, 155.

Every man has a right to build, keep and be favored with a good name. This
right is protected by law with the recognition of slander and libel as actionable
wrongs, whether as criminal offenses or tortious conduct.
In these consolidated petitions for review on certiorari,[1] petitioner Roberto
Brillante (Brillante), also known as Bobby Brillante, questions his convictions for
libel for writing and causing to be published in 1988 an open letter addressed
to then President of the Republic of the Philippines Corazon C. Aquino
discussing the alleged participation of Atty. Jejomar Binay (Binay), then the OIC
Mayor[2] and a candidate for the position of Mayor in the Municipality (now City)
of Makati, and Dr. Nemesio Prudente (Prudente), then President of the
Polytechnic University of the Philippines, in an assassination plot against
Augusto Syjuco (Syjuco), another candidate for Mayor of Makati at that time.
On January 7, 1988, Brillante, then a candidate for the position of Councilor
in Makati, held a press conference at the Makati Sports Club which was
attended by some 50 journalists. In the course of the press conference, Brillante
accused Binay of plotting the assassination of Syjuco. He further accused Binay
of terrorism, intimidation and harassment of the Makati electorate. Brillante also
circulated among the journalists copies of an open letter to President Aquino
which discussed in detail his charges against Binay.[3]
Several journalists who attended the press conference wrote news articles
about the same. Angel Gonong, a writer for the Peoples Journal, wrote a news
article entitled Binay Accused of Plotting Slays of Rivals. It was cleared for
publication by Max Buan, Jr. (Buan), and Luis Camino (Camino), Editor-in-Chief
and News Editor, respectively, of the Peoples Journal. Gloria Hernandez
(Hernandez) wrote a similar article entitled Binay Slay Plan on Syjuco which
was cleared for publication by Augusto Villanueva (Villanueva) and Virgilio
Manuel (Manuel), Editor-in-Chief and News Editor, respectively, of the News
Today.[4]
 The open letter was subsequently published under the title Plea to Cory--
Save Makati in newspapers such as the Peoples Journal, Balita,
Malaya and Philippine Daily Inquirer.[5] The pertinent portions of the open letter
read:

4. We have received reports that Atty. Binay and his group are plotting the
assassination of Mr. Augusto Bobby Syjuco, now frontrunner in the Makati mayoralty
race.

These reports are:

1. On December 14, 1987, Atty. Binay and Dr. Nemesio Prudente, president of the
Polytechnic University of the Philippines (PUP), met at Puerto Azul in Cavite with,
among others, a Commander Luming, a Major Rafael Nieva, and a commander
Francis Baloloy. Subject of the meeting was Winning the Election at all Costs.

xxxxxxxxx

3. On December 17, 1987, Dr. Prudente, Atty. Binay and others including some
unidentified government officials discussed operation Dirty Fingers after the ASEAN
Summit Meeting. The operation involves terrorism, the use of public school teachers,
the threat to kill or hurt political ward and precinct leaders not supporting or opposed
to Atty. Binay, and to use these as samples to show rivals that his group is capable of
doing so, the planting of his squads in places close to potential targets, the
mobilization of marshals who will bring firearms and to ferry hitmen to target points.
The marshals will also be used as pointers and to shelter the hitmen after
accomplishing or performing their missions.

xxx xxx xxx

4. On December 8, 1987, a certain Emilio Anecito, tagged as a hitman in the group of

Dr. Prudente, has been specifically assigned to assassinate Mr. Syjuco, Aniceto has
been described as Iranian mestizo looking, about five (5) feet in height, fair
complexioned curly haired, sporting a mustache, and fairly built bodily. He is said to
be a silent person and supposedly has a perfect score in hit missions assigned to him.

xxx xxx xxx

5. On December 10, 1987, it was reported that Major Rafael Nieva had been assigned
to work with Mr. Aniceto, Nievas background report is that he:

xxx xxx xxx

 c. Was hired by Dr. Prudente as security officer and personal bodyguard.
d. Is a notorious killer used by the PUP forces and only his employer can control or
stop him.[6]
As a result of the publication of the open letter, Binay filed with the Makati
fiscals office four complaints for libel against Brillante, as the author of the letter;
Gonong, Buan and Camino for writing and publishing the news article on
Brillantes accusations against him in the Peoples Journal;[7] Hernandez,
Villanueva and Manuel for writing and publishing a similar news article in
the News Today;[8] and for publishing the open letter, Buan and Camino of
the Peoples Journal;[9] and Arcadio A. Sison (Sison) as President of A. Sison
and Associates, an advertising agency.[10]
Francisco Baloloy (Baloloy), who was identified in the open letter as among
the persons who attended the meeting organized by Binay and Prudente to plan
the assassination of Syjuco, likewise filed a criminal complaint for libel against
Brillante, Domingo Quimlat (Quimlat), Publisher and Editor-in-Chief
of Balita, and Sison as President of A. Sison and Associates.[11]
Subsequently, five Informations for libel against Brillante were filed with the
Regional Trial Court (RTC) of Makati.
Similarly, on January 15, 1988, Prudente filed four complaints for libel
against Brillante and the editors and publishers of the newspapers where the
open letter was published. On January 16, 1989, four Informations for libel were
filed against Brillante and several co-accused with the RTC of Manila. Brillantes
co-accused in these cases were: (i) Buan, Editor-in-Chief of the Peoples
Journal;[12] (ii) Amado P. Macasaet (Macasaet), Publisher, and Noel Albano
(Albano), Editor, of the Malaya;[13] (iii) Sison, Public Relations Officer and
Federico D. Pascual (Pascual), Publisher and Executive Editor of the Philippine
Daily Inquirer;[14] and (iv) Sison, Public Relations Officer and Quimlat, Publisher
and Editor-in-Chief of Balita.[15]
Buan was not included in the trial of the cases in the RTC-Manila because
he eluded arrest and was not arraigned. The charges against Pascual and
Quimlat were dropped upon motion of the Assistant Prosecutor. The charges
against Macasaet and Albano were also eventually dismissed upon motion of
the prosecution. Only Brillante and Sison remained as accused.[16] Both pleaded
not guilty to the charges against them.
On January 25, 1993, the RTC-Manila acquitted Sison but found Brillante
guilty of libel on four counts. The dispositive portion of the trial
courts Decision in the consolidated cases reads:
WHEREFORE, judgment is rendered pronouncing accused Bobby Brillante, also
known as Roberto Brillante, guilty beyond reasonable doubt on four (4) counts, as
author or writer, of LIBEL defined under Article 353 of the Revised Penal Code and
penalized under Article 355 of the same code, and sentencing him in each count to the
indeterminate penalty of FOUR (4) MONTHS of arresto mayor, as minimum, to
TWO (2) YEARS of prision mayor, as maximum, and to pay a fine of P2,000.00 with
subsidiary imprisonment in case of insolvency at the rate of ONE (1) DAY for
every P8.00 that he is unable to pay, but which subsidiary imprisonment shall not
exceed EIGHT (8) months.

Accused Bobby Brillante is ordered to pay the private offended party, Dr. Nemesio
Prudente, the total sum of P1,000,000.00 in these four (4) cases for moral damages
which the latter suffered.

Accused Arcadio Sison is acquitted in the two cases against him, his guilt of the
charges against him not having been established beyond reasonable [doubt].

Two-third (2/3) of the costs is assessed against accused Bobby Brillante while the
remaining one-third (1/3) is charged de oficio.[17]

Subsequently, Brillante appealed the Decision of the RTC-Manila to the

Court of Appeals.[18] Brillante contended that when the Informations in Criminal
Cases No. 89-69614 to 17 were filed by the prosecutor on January 16, 1989,
the offense had already prescribed because more than one year had elapsed
since the publication of the open letter on January 10, 11 and 12, 1988. He also
averred that the open letter which he wrote and caused to be published was not
defamatory and was without malice. Brillante also claimed that the publication
is considered privileged communication. Finally, he argued that he is entitled to
equal protection of the laws and should be acquitted of the offenses charged
like his co-accused.[19]
On September 27, 1994, the Court of Appeals promulgated its Decision in
CA-G.R. No. 14475 affirming the decision of the RTC-Manila. The appellate
court held that the offense of libel had not yet prescribed because the one-year
prescription period should be reckoned from the time that the private
complainant Prudente filed his complaint with the fiscals office on January 15,
1988 and not when the Informations were filed by the prosecutor on January
16, 1989. The Court of Appeals added that under Section 1, Rule 110, which
took effect during the pendency of the cases against Brillante, the institution of
the complaint before the fiscals office or the courts for preliminary investigation
interrupts the prescriptive period of the offense charged. It held that being a
procedural rule, Section 1, Rule 110, applies to the cases against Brillante.[20]
 The Court of Appeals further held that the RTC-Manila did not err in finding
that Brillante had committed libel against Prudente. It explained that the open
letter, when read in its entirety, gives the impression that Prudente is part of a
purported criminal conspiracy to kill Syjuco. According to the appellate court,
the open letter is a malicious defamation which produced in the minds of the
readers Brillantes intent and purpose to injure the reputation of Prudente,
thereby exposing him to public hatred, contempt and ridicule.[21] The Court of
Appeals rejected Brillantes argument that the open letter may be considered
privileged communication because the evidence does not show that Brillante
wrote and published it out of a legal, moral or social duty.[22]
The appellate court also debunked Brillantes allegation that he was denied
the equal protection of the laws because while the charges against his co-
accused were dropped, those against him were not. According to the appellate
court, he and his co-accused are not similarly situated because he was
convicted of libel upon a finding that there existed evidence beyond reasonable
doubt to sustain his conviction. In contrast, the charges against his co-accused
were dismissed and their guilt was not proven beyond reasonable doubt.[23]
Brillantes contention that his conviction for libel on four counts gave rise to
double jeopardy because under our jurisdiction protection against double
jeopardy may be invoked only for the same offense or identical offenses was
also overruled by the appellate court. It held that each and every publication of
the same libel constitutes a separate distinct offense and the charge for one
instance of publication shall not bar a charge for subsequent and separate
publications.[24]
Brillante filed a Motion for Reconsideration of the decision of the Court of
Appeals, but the motion was denied in a Resolution dated January 19, 1995.[25]
In the meantime, Brillante was likewise convicted for libel on five counts by
the RTC-Makati in Criminal Cases Nos. 88-1410, 88-1411, 88-1412, 88-3060
and 89-721. The dispositive portion of the Decision dated March 22, 1993 of
the RTC-Makati reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Cases Nos. 88-1410, 88-1411, 88-1412, 88-3060 and 89-721, finding
accused Bobby Brillante, also known as Roberto Brillante, GUILTY beyond
reasonable doubt of the offense of libel charged in each of these five (5) cases, and
sentencing him in each of the cases to suffer imprisonment of FOUR (4) MONTHS
of arresto mayor, as minimum, to TWO (2) YEARS prision correccional, as
maximum, and to pay fine, likewise in each of these (5) cases, of Four Thousand
(P4,000.00) Pesos, Philippine Currency, with subsidiary imprisonment in case of
insolvency pursuant to Article 39, paragraph 1, of the Revised Penal Code.

2. As to moral damages, said accused is also ordered to pay complainant, Jejomar C.

Binay, the sum of One Million Pesos (P1,000,000.00), Philippine Currency, in all the
four (4) charges (Crim. Cases Nos. 88-410, 88-1411, 88-1412 and 89-721),
considering the latters professional and political standing in society, he being a lawyer
and former Governor of the Metro Manila Commission as well as director of various
government agencies.

3. As to moral damages, said accused is also ordered to pay complainant, Francisco

Baloloy, the sum of Fifty Thousand Pesos (P50,000.00), Philippine Currency, in
Criminal Case No. 88-3060.

4. In Criminal Cases Nos. 88-1410 and 88-1412, ACQUITTING accused Max Buan,
Jr., Angel Gonong and Louie Camino, of the two charges against them on the ground
that their guilt has not been proven beyond reasonable doubt.

5. In Criminal Case No. 88-1411 (except for accused Brillante) ordering the same
ARCHIVED on the ground that the other accused herein, Gloria Hernandez, Augusto
Villanueva and Virgilio Manuel, have not been brought to the jurisdiction of this
Court; let alias warrant issue for their arrest.

6. In Criminal Cases Nos. 88-3060 and 89-721, likewise ordering the same
ARCHIVED ONLY WITH RESPECT TO accused Arcadio Sison, who has not been
brought to the jurisdiction of this Court; let alias warrant issue for his arrest.

7. In all these cases, ordering accused Bobby Brillante, also known as Roberto
Brillante, to pay the proportionate costs.

SO ORDERED.[26]

Brillante appealed the Decision of the RTC-Makati to the Court of

Appeals,[27] raising essentially the same arguments in his appeal in CA-G.R. CR
No. 14475.
On February 28, 1995, the Court of Appeals rendered its Decision in CA-
G.R. CR No. 15174 affirming the decision of the RTC-Makati. It held that the
filing of the complaint before the fiscals office interrupts the period of
prescription because Article 91 of the Revised Penal Code did not make any
distinction whether the complaint is filed in court for preliminary investigation or
for trial on the merits, because the filing of the complaint for preliminary
investigation is the initial step of criminal proceedings. It added that it would be
unfair to deprive the injured party of the right to obtain vindication on account of
delays which are not within his control.[28]
The appellate court also ruled that the open letter cannot be considered
privileged communication because it contains libelous matter and was
circulated to the public. Citing U.S. v. Galeza,[29] it held that while it is the right
and duty of a citizen to file a complaint regarding a misconduct on the part of a
public official, such complaint must be addressed solely to the officials having
jurisdiction to inquire into the charges.[30]
Lastly, the Court of Appeals sustained the trial courts observation that unlike
Brillante, his co-accused editors and publishers could not be held liable for libel
because the news reports regarding the January 7, 1988 press conference
which were published in their respective newspapers sufficiently informed the
readers that the reference to Binays involvement in the assassination plot were
allegations made by Brillante during the press conference and that said
allegations were reported for the sole purpose of informing the public of the
news regarding the candidates adverted to in the report.[31]
Brillante filed a Motion for Reconsideration of the appellate courts decision,
but the motion was denied in a Resolution dated August 17, 1995.[32]
Thereafter, Brillante filed the present Petitions for Review on March 13,
1995 in G.R. No. 118757 and on October 10, 1995 in G.R. No. 121571. In G.R.
No. 118757, he raises the following arguments:
I

THE OFFENSE OF LIBEL CHARGED IN THE INFORMATION (sic) HAD

ALREADY PRESCRIBED WHEN THE SAID INFORMATION (sic) WAS FILED.

II

HE IS NOT GUILTY OF LIBEL HE IS CHARGED WITH, BECAUSE THE

LETTER HE CAUSED TO BE PUBLISHED WAS WRITTEN AND PUBLISHED
WITHOUT ANY MALICE [N]OR MALICIOUS INTENT TO MALIGN THE
PERSON, HONOR AND REPUTATION OF THE COMPLAINANT
[PRUDENTE/BINAY] BUT SOLELY FOR THE JUSTIFIED AND HONEST
PURPOSE OF BRINGING TO THE ATTENTION OF ALL AUTHORITIES
CONCERNED THE REPORTS THEREIN MENTIONED FOR APPROPRIATE
ACTION. WHERE THERE IS NO MALICE, THERE IS NO LIBEL.

III
IN TRUTH, PUBLICLY KNOWN PARAMILITARY ACTIVITIES OF
COMPLAINANT, DR. NEMESIO PRUDENTE, ALREADY IN OPERATION
LONG BEFORE JANUARY 12, 1988, INDICATE THAT HE WAS NOT
INCAPABLE OF NOURISHING VIOLENT INTENTIONS AGAINST THE
POLITICAL OPPONENTS OF MAYOR BINAY.

IV

MOREOVER, CONSIDERING THAT THE MATTER REFERRED TO IN THE

LETTER INDUBITABLY RELATES TO THE ELECTION CAMPAIGN THEN
GOING ON AS WELL AS THE PARTICIPATION OF PETITIONER AND
COMPLAINANT THEREIN, WHATEVER IS CONTAINED IN SAID LETTER
CAN AT MOST BE NO MORE THAN A POLITICAL LIBEL, WHICH IS NOT
PUNISHABLE.

WE EARNESTLY URGE THAT THIS PROPOSITION BE ENUNCIATED AS A

FUNDAMENTAL PRINCIPLE IN THE LAW ON LIBEL.

IN THE REMOTE POSSIBILITY THAT THIS HONORABLE COURT MAY

PERCEIVE ANY CRIMINAL LIBEL IN THIS CASE, THE PENALTY IMPOSED
UPON PETITIONER IS CRUEL AND EXCESSIVE, PARTICULARLY, AS TO
THE AMOUNT OF DAMAGES AWARDED TO COMPLAINANT.[33]

In G.R. No. 121571, he makes the following assignments of error:

I

THE OFFENSE HAD PRESCRIBED

II

THE PUBLICATION WAS A PRIVILEGED COMMUNICATION

III

THE PUBLICATION WAS MADE WITHOUT MALICE

IV

IT MAY, AT MOST, ALSO BE CONSIDERED A POLITICAL LIBEL WHICH IS

NOT PUNISHABLE
 V

THE DECISION VIOLATES PETITIONERS RIGHT TO EQUAL PROTECTION

OF THE LAWS

VI

THE PENALTY IS CRUEL AND EXCESSIVE[34]

With respect to the issue of prescription, Brillante anchors his claim on the
Courts ruling in People v. Tayco[35] that the prescriptive period of a crime is
interrupted only upon the filing of the complaint in court and not the filing thereof
with the fiscals office. According to Brillante, the ruling in People v. Olarte[36] did
not modify the doctrine in Tayco because in Olarte, the Court referred to a
complaint filed in court, not in the fiscals office. The ruling in Francisco v. Court
of Appeals[37] that a complaint filed with the fiscals office also interrupts the
prescriptive period of a criminal offense allegedly cannot overturn the ruling
in Olarte because the latter was decided by the Court En
Banc while Francisco was decided by a mere division of the Court. [38]

It is further asserted by Brillante that the rule in the 1985 Rules on Criminal
Procedure that the filing of the criminal complaint with the fiscals office
interrupts the prescriptive period, cannot be applied retroactively to the cases
against him because it impairs his vested right to have the cases against him
dismissed on the ground of prescription.[39] In addition, he claims that Section
6(b), Rule 3 of the 1985 Rules on Criminal Procedure which states that [t]he
pendency of a petition for suspension of the criminal action still undergoing
preliminary investigation in the fiscals office shall interrupt the prescriptive
period for filing the corresponding complaint of information supports his position
that prior to the amendment of the Rules on Criminal Procedure in 1985, the
prevailing rule was that only the filing of the complaint or information in court
tolls the prescriptive period for a criminal offense.[40]
Brillante denies that he is liable for libel for causing to be published his open
letter implicating Binay, Prudente and their associates in a planned
assassination of Syjuco as well as election-related terrorism, and in uttering
remarks against Binay and his associates during the January 7, 1988 press
conference. According to Brillante, his statements and utterances were
privileged communication because he made them public out of a legal, moral
and social duty to safeguard the sanctity of the elections to be held on January
18, 1988, and to avoid the unnecessary loss of life.[41] Since his statements were
privileged communication, malice cannot be presumed from them.[42] Brillante
adds that at the time he made the statements, he honestly believed that they
were true. Citing an American case, Bays v. Hunt,[43] he contends that where
there is an honest belief in the truth of the charges made, and the publication is
in good faith, one is not responsible even for publishing an untruth.[44]
It is further asserted by Brillante that since Binay, the subject of the allegedly
defamatory statements is a public figure, his (Brillantes) comments affecting
Binays reputation is constitutionally protected speech.[45]
Brillante also urges the Court to reverse his convictions, reasoning that at
most, what he may have committed is political libel which should exempt him
form criminal liability, considering that election campaigns can become very
heated and candidates from rival camps often make charges and
countercharges which are offensive to the name, honor and prestige of their
opponents. He contends that statements made by a candidate against his
rivals, although derogatory, are for the purpose of convincing the electorate to
prevent suspicious characters from holding public office. In essence, he posits
the view that political libel should be deemed constitutionally protected
speech.[46]
Brillante likewise argues that the multiple publication rule, i.e., that each
publication constitutes one offense of libel, should not have been applied to him,
considering the factual background of the open letter and the statements
uttered by him during the press conference.[47]
Anent the issue of equal protection, Brillante contends that he should have
been acquitted like his co-accused Angel Gonong who wrote the news article
in the Peoples Journalregarding the January 7, 1988 press conference and
Buan and Camino who were the editors of that publication.[48]
The Solicitor General filed a Comment on each of the petitions.
The Solicitor General insists that the one-year prescriptive period for libel
should be reckoned from the date of filing of the complaints with the office of
the prosecutor as clarified by the Court in Olarte and Francisco and as stated
in the 1985 Rules on Criminal Procedure, as amended in 1988, which applies
to the complaints filed against Brillante as of October 1988.[49]
On the issue of libel, the Solicitor General insists that Brillantes statements
in the open letter clearly impute upon Prudente and Binay a criminal conspiracy
to assassinate Syjuco.[50]The Solicitor General also maintains that contrary to
Brillantes claims, the open letter cannot be considered privileged
communication because it was published without justifiable motives and it was
circulated for the information of the general public instead of addressing the
letter solely to the authorities who had the power to curb the dangers alleged
by Brillante in the letter.[51]
 The Solicitor General disagrees with Brillantes contention that his
statements are constitutionally protected because they are criticisms of official
conduct and deal with public figures. According to the Solicitor General, the
record shows that Brillante did not have enough basis to pass off his
accusations as true considering that he admitted to relying on unnamed
intelligence sources.[52]
It is also argued by the Solicitor General that Brillantes statements cannot
be exempt from criminal liability on the ground that such statements were
political libel. Brillantes claim, the Solicitor General asserts, has no basis in law
or jurisprudence.[53]
With respect to the issue of equal protection, the Solicitor General avers that
Brillante cannot be acquitted like his co-accused publishers, editors and writers
because their alleged participation in the commission of the libel are different
from Brillante who is the author of the libelous statements. The writers of the
news reports were only narrating what took place during the January 7, 1988
press conference, and wrote the news articles to inform the public of Brillantes
statements. In the case of the editors and publishers who published the open
letter, they indicated in their respective publications that the open letter was a
paid advertisement. The publication of the news reports in the newspapers was
also done to inform the public of what transpired during the January 7, 1988
press conference.[54]
The Solicitor General further argues that the penalty imposed upon Brillante
is not excessive but is in accordance with law, which considers one publication
of a libelous statement as a distinct offense from another publication of the
same statement.[55]
Thus, the Solicitor General prays that Brillantes petitions be denied.[56]
Brillante thereafter filed a Reply to each of the Solicitor
Generals Comments. The replies reiterate Brillantes arguments in his
petitions.[57]
The Court is tasked to resolve the following issues: (1) whether the offense
of libel had already prescribed when the Informations were filed with the RTC-
Manila and RTC-Makati; (2) whether Brillante is guilty beyond reasonable doubt
of libel; (3) whether Brillante was denied the equal protection of the laws; and
(4) whether the penalty imposed upon him is excessive.
Save for the issue on the amount of moral damages, there is no merit in the
petitions.
With respect to the issue of prescription, the fourth paragraph of Article 90
of the Revised Penal Code provides that the crime of libel or other similar
offenses shall prescribe in one year. In determining when the one-year
prescriptive period should be reckoned, reference must be made to Article 91
of the same code which sets forth the rule on the computation of prescriptive
periods of offenses:

Computation of prescription of offenses.The period of prescription shall commence to

run from the day on which the crime is discovered by the offended party, the
authorities, or their agents, and shall be interrupted by the filing of the complaint or
information, and shall commence to run again when such proceedings terminate
without the accused being convicted or acquitted, or are unjustifiably stopped for any
reason not imputable to him.

The aforequoted provision expressly states that prescriptive period shall be

interrupted by the filing of the complaint or information. The meaning of the
phrase shall be interrupted by the filing of the complaint or information in Article
91 has been settled in the landmark case of People v. Olarte,[58] where the Court
settled divergent views as to the effect of filing a complaint with the Municipal
Trial Court for purposes of preliminary investigation on the prescriptive period
of the offense. The Court therein held that the filing of the complaint for
purposes of preliminary investigation interrupts the period of prescription of
criminal responsibility. It explained thus:

the filing of the complaint with the Municipal Court, even if it be merely for purposes
of preliminary examination or investigation, should, and does, interrupt the period of
prescription of the criminal responsibility, even if the court where the complaint or
information is filed can not try the case on its merits. Several reasons buttress this
conclusion: first, the text of Article 91 of the Revised Penal Code, in declaring that the
period of prescription shall be interrupted by the filing of the complaint or information
without distinguishing whether the complaint is filed in the court for preliminary
examination or investigation merely, or for action on the merits. Second, even if the
court where the complaint or information is filed may only proceed to investigate the
case, its actuations already represent the initial step of the proceedings against the
offender. Third, it is unjust to deprive the injured party the right to obtain vindication
on account of delays that are not under his control. All that the victim of the offense
may do on his part to initiate the prosecution is to file the requisite complaint.

And it is no argument that Article 91 also expresses that the interrupted prescription
shall commence to run again when such proceedings terminate without the accused
being convicted or acquitted, thereby indicating that the court in which the complaint
or information is filed must have the power to convict or acquit the accused. Precisely,
the trial on the merits usually terminates in conviction or acquittal, not otherwise. But
it is in the court conducting a preliminary investigation where the proceedings may
terminate without conviction or acquittal, if the court should discharge the accused
because no prima faciecase had been shown.[59]

Thereafter, the Court in Francisco v. Court of Appeals[60] clarified that the

filing of the complaint with the fiscals office also suspends the running of the
prescriptive period of a crime:

As is a well-known fact, like the proceedings in the court conducting a preliminary

investigation, a proceeding in the Fiscal's Office may terminate without conviction or
acquittal.

As Justice Claudio Teehankee has observed:

To the writer's mind, these reasons logically call with equal force, for the express
overruling also of the doctrine in People vs. Tayco, 73 Phil. 509, (1941) that the filing
of a complaint or denuncia by the offended party with the City Fiscal's Office which is
required by law to conduct the preliminary investigation does not interrupt the period
of prescription. In chartered cities, criminal prosecution is generally initiated by the
filing of the complaint or denuncia with the city fiscal for preliminary investigation. In
the case of provincial fiscals, besides being empowered like municipal judges to
conduct preliminary investigations, they may even reverse actions of municipal judges
with respect to charges triable by Courts of First instance . . ..[61]

There is no conflict in the pronouncements of the Court

in Olarte and Francisco as Brillante erroneously suggests. Olarte laid down the
doctrine that a complaint filed for purposes of preliminary investigation tolls the
running of the prescriptive period of a criminal offense. The criminal complaint
for libel in that case was filed, for the purpose of preliminary investigation, with
the Justice of the Peace Court in Pozorrubio, Pangasinan. Hence, in setting the
doctrine, the Court referred to the filing of the complaint in the Municipal
Court.[62] The question of whether the doctrine laid down in Olarte also applies
to criminal complaints filed with the prosecutors office was settled in Francisco.
Specifically, the Court in Francisco amplified the Olartedoctrine when it
categorically ruled that the filing of a complaint with the fiscals office suspends
the running of the prescriptive period of a criminal offense.
Thus, the Court of Appeals committed no reversible error in ruling that the
offense of libel had not yet prescribed when the informations against Brillante
and his co-accused were filed in the RTC-Manila and RTC-Makati.
Neither did the appellate court err in sustaining Brillantes conviction for libel.
 Libel is defined under Article 353 of the Revised Penal Code as a public and
malicious imputation of a crime, or of a vice or defect, real or imaginary, or any
act, omission, condition, status, or circumstance tending to cause the dishonor,
discredit or contempt of a natural or juridical person, or to blacken the memory
of one who is dead.
To be liable for libel, the following elements must be shown to exist: (a) the
allegation of a discreditable act or condition concerning another; (b) publication
of the charge; (c) identity of the person defamed; and (d) existence of malice.[63]
There could be no dispute as to the existence of the first three elements of
libel in the cases at bar.
An allegation made by a person against another is considered defamatory
if it ascribes to the latter the commission of a crime; the possession of a vice or
defect, whether real or imaginary; or any act, omission, condition, status or
circumstance which tends to dishonor or discredit or put him in contempt, or
which tends to blacken the memory of one who is dead.[64]Brillantes statements
during the January 7, 1988 press conference and in the open letter explicitly
referred to reprehensible acts allegedly committed by Binay, Prudente and their
associates, such as the use of goons to threaten Binays opponents in the
election and the plotting of Syjucos assassination.
The element of publication was likewise established. There is publication if
the defamatory material is communicated to a third person, i.e., a person other
than the person to whom the defamatory statement refers.[65] In the cases at
bar, it was proven that Brillante uttered defamatory statements during the press
conference attended by some fifty journalists and caused the open letter to be
published in several newspapers, namely, News Today, Peoples Journal,
Balita, Malaya and Philippine Daily Inquirer.
Further, Brillante himself admitted that he named Binay, Prudente and their
associates as the persons who participated in the planning of the election-
related terrorism and the assassination of Syjuco not only in his open letter but
also during the press conference.
Thus, the determination of Brillantes culpability for libel hinges on the
question of whether his statements were made with malice.
Malice is a term used to indicate the fact that the offender is prompted by
personal ill-will or spite and speaks not in response to duty, but merely to injure
the reputation of the person defamed; it implies an intention to do ulterior and
unjustifiable harm.[66] It is present when it is shown that the author of the libelous
remarks made such remarks with knowledge that it was false or with reckless
disregard as to the truth or falsity thereof.[67]
 Article 354 of the Revised Penal Code states, as a general rule, that every
defamatory imputation is presumed to be malicious, even if true, if no good
intention and justifiable motive is shown.[68]
As an exception to the rule, the presumption of malice is done away with
when the defamatory imputation qualifies as privileged communication.[69]
Privileged communication may either be absolutely privileged or
conditionally privileged. The Court in Orfanel v. People of the
Philippines[70] differentiated absolutely privileged communication from
conditionally privileged communication in this manner:

A communication is said to be absolutely privileged when it is not actionable, even if

its author acted in bad faith. This class includes statements made by members of
Congress in the discharge of their functions as such, official communications made by
public officers in the performance of their duties, and allegations or statements made
by the parties or their counsel in their pleadings or motions or during the hearing of
judicial proceedings, as well as the answers given by witnesses in reply to questions
propounded to them, in the course of said proceedings, provided that said allegations
or statements are relevant to the issues, and the answers are responsive or pertinent to
the questions propounded to said witnesses. Upon the other hand, conditionally or
qualifiedly privileged communications are those which, although containing
defamatory imputations, would not be actionable unless made with malice or bad
faith.[71] (Emphasis supplied.)

Conditionally or qualifiedly privileged communications are those mentioned

in, Article 354 of the Revised Penal Code, to wit:

1. A private communication made by a person to another in the performance of any

legal, moral, or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of
any judicial, legislative, or other official proceedings which are not of confidential
nature, or of any statement, report, or speech delivered in said proceedings, or of any
act performed by public officers in the exercise of their functions.[72]

Brillante claims that he wrote the open letter and uttered the statement
complained of during the January 7, 1988 press conference out of a social duty
to disclose to all concerned the dangers to which he and his fellow candidate
Syjuco were exposed in view of the concerted actions of Binay and
Prudente.[73] In effect, he argues that his defamatory statements and utterances
fall under Article 354, No. 1 and are in the nature of privileged communication;
hence, malice cannot be presumed but must be established beyond reasonable
doubt.
The Court is not convinced.
In order to prove that a statement falls within the purview of a qualifiedly
privileged communication under Article 354, No. 1, the following requisites must
concur: (1) the person who made the communication had a legal, moral, or
social duty to make the communication, or at least, had an interest to protect,
which interest may either be his own or of the one to whom it is made; (2) the
communication is addressed to an officer or a board, or superior, having some
interest or duty in the matter, and who has the power to furnish the protection
sought; and (3) the statements in the communication are made in good faith
and without malice.[74]
With respect to the first requisite, the Court in U.S. v. Caete[75] clarified that
the interest sought to be protected by the person making the communication
need not be his own, but may refer to an interest shared by the other members
of society.
It may therefore be argued that Brillantes statements, which according to
him were made in order to protect himself and Syjuco as Binays rivals in the
1988 elections, as well as to protect the electorate from possible acts of
terrorism by Binay, Prudente and their associates and from casting their votes
for undeserving candidates, satisfy the first requisite.
However, as the Solicitor General noted, Brillantes statements were based
merely on unconfirmed intelligence reports. His belief in such intelligence
reports hardly justifies the publication of such serious imputations against his
political rivals. As a journalist and as a candidate for public office, Brillante
should have known that it is necessary to further verify the truth or at least the
reliability of the intelligence reports before making them public. His hasty
publication thereof negates the existence of good faith and justifiable motives.
The pronouncement of the Court in U.S. v. Galeza[76] is enlightening:

Every communication is privileged which is made in good faith with a view to obtain
redress for some injury received or to prevent or punish some public abuse. The
privilege should not be abused. If such communication be made maliciously and
without probable cause, the pretense under which it is made, instead of furnishing a
defense, will aggravate the case of the defendant. And a party will be taken to have
acted maliciously if he eagerly seizes on some slight and frivolous matter, and without
any inquiry into the merits, without even satisfying himself that the account of the
matter that has reached him is correct, hastily concludes that a great public scandal
has been brought to light which calls for the immediate intervention of the people.
(Citations omitted.)[77]

It is, however, the absence of the second element of a privileged

communication that unequivocally negates the characterization of Brillantes
statements as privileged communication. The law requires that for a defamatory
imputation made out of a legal, moral or social duty to be privileged, such
statement must be communicated only to the person or persons who have
some interest or duty in the matter alleged, and who have the power to furnish
the protection sought by the author of the statement.
In the cases at bar, although the open letter was primarily addressed to then
President Aquino, the communication thereof was not limited to her alone. It
was also published in several newspapers of general circulation and was thus
made known to the general public. Even if the interest sought to be protected
belongs not just to Brillante but to the public in general, certainly, the general
public does not have the power to remedy the alleged dangers sought to be
prevented by Brillante in publishing the open letter or in uttering similar
statements during the January 7, 1988 press conference. Brillante employed
the shotgun approach to disseminate the information which essentially
destroyed the reputations of the complainants. His lack of selectivity is
indicative of malice and is anathema to his claim of privileged communication.
In Daez v. Court of Appeals,[78] Daez was charged with libel for publishing a
letter which accused the Mayor of Meycauayan, Bulacan of corruption. The
letter addressed to the Mayor was sent not only to him but also to the Municipal
Court, Municipal Council and Chief of Police of Meycauayan, Bulacan. Daez
contended therein that he was not guilty of libel because he was not motivated
by malice or ill-will in publishing the letter, but rather, he did it out of good
intentions and a social duty to bring about reforms in the administration of the
municipal government of Meycauayan, Bulacan. The Court affirmed his
conviction for libel and held:

The goodness of the intention is not always sufficient by itself to justify the
publication of an injurious fact; thus the goodness of the end is not a sufficient motive
to warrant the employment of illicit means to obtain it. The existence of justifiable
motives is a question which has to be decided by taking into consideration not only
the intention of the author of the publication but all the other circumstances of each
particular case. A communication made bona fide upon any subject matter in which
the party communicating has an interest, or in reference to which he has a duty, is
privileged, if made to a person having a corresponding interest or duty, although it
contained criminatory matter which without this privilege would be slanderous and
actionable. However, a written letter containing libelous matter cannot be classified as
privileged when it is published and circulated among the public.As a rule, it is the
right and duty of a citizen to make a complaint of any misconduct on the part of
public officials, which comes to his notice, to those charged with supervision over
them. Such a communication is qualifiedly privileged and the author is not guilty of
libel. The rule on privilege, however, imposes an additional requirement. Such
complaints should be addressed solely to some official having jurisdiction to inquire
into the charges, or power to redress the grievance or has some duty to perform or
interest in connection therewith. In the instant case, none of the persons to whom the
letter was sent, was vested with the power of supervision over the mayor or the
authority to investigate the charges made against the latter. (Citations omitted.)[79]

Thus, the Court agrees with the finding of the Court of Appeals that the
statements made by Brillante during the press conference and in the open letter
do not qualify as privileged communication.
Indeed, the purpose of affording protection to privileged communication is
to permit all interested persons or citizens with grievances to freely
communicate, with immunity, to the persons who could furnish the protection
asked for. However, to shield such privilege from abuse, the law itself requires
at all times that such petitions or communications shall be made in good faith
or with justifiable motives. If it is established that the communication was made
maliciously or to persons who could not furnish the protection sought, then the
author thereof cannot seek protection under the law.[80] As was explained by the
Court in Caete:

The plainest principles of natural right and sound public policy require that the utmost
possible freedom should be accorded every citizen to complain to the supervising,
removing and appointing authorities of the misconduct of the public officials with
whom he comes into contact, and like considerations make it equally proper that
members of a religious organization should enjoy equal freedom in bringing to the
attention of the church authorities the misbehavior of their spiritual leaders or of
fellow-members. Manifestly, the right must be exercised in good faith, and may not
with impunity be made the occasion for the venting of private spite. It is subject to the
limitation and restriction that such complaints must be made to a functionary having
authority to redress the evils complained of; that they must be made in good faith and
that they must not be actuated by malice.[81]

The Court in Lu Chu Sing v. Lu Tiong Gui[82] clarified that the fact that a
communication is privileged does not mean that it is not actionable; the
privileged character of the communication simply does away with the
presumption of malice, and the plaintiff has to prove the fact of malice in such
case.
 However, since the open letter and the statements uttered by Brillante
during the January 7, 1988 press conference are defamatory and do not qualify
as conditionally privileged communication, malice is presumed and need not be
proven separately from the existence of the defamatory statement.[83]
Considering that all the elements of libel are present in the cases against
Brillante, the Court finds that no reversible error was committed by the Court of
Appeals in affirming his convictions by the RTC-Manila and RTC-Makati.
Neither does the Court find any basis in law to uphold Brillantes proposition
that his statements made during the January 7, 1988 press conference and
those in his open letter constitute political libel and should thus be exempt from
liability. Unfounded and malicious statements made by one against another in
the course of an election campaign, or by reason of differences in political views
are not per se constitutionally protected speech. Our laws on
defamation[84] provide for sanctions against unjustified and malicious injury to a
persons reputation and honor. Although wider latitude is given to defamatory
utterances against public officials in connection with or relevant to their
performance of official duties,[85] or against public figures in relation to matters
of public interest involving them,[86] such defamatory utterances do not
automatically fall within the ambit of constitutionally protected speech. If the
utterances are false, malicious or unrelated to a public officers performance of
his duties, the same may give rise to criminal and civil liability.
With respect to the third issue, the Court agrees with the appellate court that
Brillantes right to equal protection of the laws was not violated when he was
convicted of libel while his co-accused were acquitted.
The equal protection clause is not absolute; rather, it permits of reasonable
classification. If the classification is characterized by real and substantial
differences, one class may be treated differently from another.[87] It is sufficient
that the law operates equally and uniformly on all persons under similar
circumstances or that all persons are treated in the same manner, the
conditions not being different, both in the privileges conferred and the liabilities
imposed.[88]
As mentioned earlier, the cases against some of some of Brillantes co-
accused were dismissed during the pendency of the cases before the trial
courts.[89] Still, some of his co-accused remained at large,[90] leaving the trial
courts with no option but to archive the case as against them. Brillantes other
co-accused were acquitted since, unlike Brillante, their guilt was not proven
beyond reasonable doubt.[91]
 The foregoing clearly shows that Brillante was in a situation different from
his co-accused. The prosecution was able to prove beyond reasonable doubt
his liability for libel, as the author of the open letter and the source of the
defamatory statements uttered against Binay, et al. during the January 7, 1988
press conference.
As such, his conviction for libel was not violative of the equal protection
clause.
The Court likewise finds no error on the part of the Court of Appeals in
affirming the penalties imposed upon him by the trial courts of Manila and
Makati.
The penalty for libel by means of writing or similar means is prision
correccional in its minimum and medium periods, or a fine ranging from 200 to
6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.[92] It is likewise settled that a single defamatory statement, if
published several times, gives rise to as many offenses as there are
publications. This is the multiple publication rule which is followed in our
jurisdiction, as explained in Soriano v. Intermediate Appellate Court:[93]

We follow the "multiple publication" rule in the Philippines. Thus, in the cases of
Montinola D. Montalvo (34 Phil. 662, [1916]) and United States v. Sotto (36 Phil. 389
[1917]), this Court ruled that each and every publication of the same libel constitutes a
distinct offense. Stated more succinctly for purposes of ascertaining jurisdiction under
Art. 360 of the Revised Penal Code, as amended, every time the same written matter
is communicated such communication is considered a distinct and separate
publication of the libel.

We explained this as follows:

"The common law as to causes of action for tort arising out of a single publication
was to the effect that each communication of a written or printed matter was a distinct
and separate publication of a libel contained therein, giving rise to a separate cause of
action. This rule ('multiple publication' rule) is still followed in several American
jurisdictions, and seems to be favored by the American Law Institute. Other
jurisdictions have adopted the 'single publication' rule which originated in New York,
under which any single integrated publication, such as one edition of a newspaper,
book, or magazine, or one broadcast, is treated as a unit, giving rise to only one cause
of action, regardless of the number of times it is exposed to different people. . .(50
Am. Jur. 2d 659 cited in Time, Inc. v. Reyes)" (39 SCRA 301, 313 [1971]).[94]
 There is therefore no legal basis for Brillantes claim that the penalties
imposed upon him are excessive.
The Court however agrees with Brillante that the awards of moral damages
in the two cases to private complainants Binay, Prudente and Baloloy are
excessive considering the circumstances surrounding the making and the
publication of the defamatory statements. Accordingly, the award of moral
damages in favor of private complainant Prudente is reduced to a total of Five
Hundred Thousand Pesos (P500,000.00) in Criminal Cases No. 89-69614, 89-
69615, 89-69616 and 89-69617; and the award of moral damages to private
complainant Binay is reduced to Five Hundred Thousand Pesos (P500,000.00)
in Criminal Cases No. 88-1410, 88-1411, 88-1412 and 89-721. The award of
moral damages to private complainant Baloloy in Criminal Case No. 88-3060 is
likewise reduced to Twenty Five Thousand Pesos (P25,000.00).
WHEREFORE, in view of the foregoing, the petitions are GRANTED in part.
The Decision of the Court of Appeals in CA-G.R. CR No. 14475 is
AFFIRMED with the MODIFICATION that the award of moral damages to
private complainant Dr. Nemesio Prudente in Criminal Cases No. 89-69614,
89-69615, 89-69616 is reduced to Five Hundred Thousand Pesos
(P500,000.00). The Decision of the Court of Appeals in CA G.R. CR No. 15174
is likewise AFFIRMED with the MODIFICATION that the award of moral
damages to private complainants Atty. Jejomar Binay and Francisco Baloloy is
reduced to Five Hundred Thousand Pesos (P500,000.00) in Criminal Cases
No. 88-1410, 88-1411, 88-1412 and 89-721, and Twenty Five Thousand Pesos
(P25,000.00) in Criminal Case No. 88-3060, respectively.
SO ORDERED.

MARIO C.V. JALANDONI, petitioner, vs. HON. SECRETARY OF JUSTICE

FRANKLYN M. DRILON, HONORABLE PROVINCIAL PROSECUTOR OF
RIZAL, ROBERT COYIUTO, JR., JAIME LEDESMA, RAMON GARCIA,
ANTONIO OZAETA, AMPARO BARCELON and CARLOS
DYHONGPO, respondents. This is a petition for certiorari seeking to nullify
and set aside the orders of the Honorable Secretary of Justice Franklin M.
Drilon, to wit: DOJ Resolution No. 211 Series of 1994 dated March 15, 1994
and the letter-order dated April 20, 1994. DOJ Resolution No. 211 Series of
1994 instructed the Provincial Prosecutor of Rizal to withdraw the informations
in I.S. Nos. 93-6228 and 93-6422 while the letter-order denied the motion for
reconsideration filed by herein petitioner Mario C.V. Jalandoni. Miso

The antecedent facts of the case are as follows:

(a)......In I.S. No. 93-6228

On July 15, 1992, Jaime Ledesma, private respondent herein, filed an

administrative complaint for violation of the Revised Penal Code and the Anti-
Graft and Corrupt Practices Act against the petitioner with the Presidential
Commission on Good Government (PCGG).

On the two succeeding days, July 16 and July 17, 1992, news articles thereon
appeared in various daily newspapers. [1]

A full-page paid advertisement was caused to be published on July 16, 1992

by private respondents Robert Coyiuto, Jr., Jaime Ledesma, Ramon Garcia,
Amparo Barcelon, Antonio Ozaeta, and Carlos Dyhongpo. The
advertisements were published in five (5) major daily newspapers, to wit: Manikx

1.......The Manila Chronicle

2.......Business World

3.......Malaya

4.......Philippine Daily Globe, and

5.......The Manila Times

Exactly a year thereafter or on July 16, 1993, petitioner Jalandoni filed a

complaint for the crime of libel before the Provincial Prosecutor of Rizal
designated as I.S. No. 93-6228 against officials/directors of Oriental
Petroleum & Minerals Corporation (OPMC, for brevity), namely, Coyiuto, Jr.,
Ledesma, Garcia, Barcelon, Ozaeta, and Dyhongpo.

The publication in question was the July 16, 1992 full-page advertisements
simultaneously published in five major dailies. These advertisements
contained allegations naming herein petitioner who was then a PCGG
Commissioner of having committed illegal and unauthorized acts, and other
wrongdoings constituting graft and corruption, relative to the dacion en
pagofinancing arrangement entered into by Piedras Petroleum Co., Inc. with
Rizal Commercial Banking Corporation.

Quoted in full below is the said advertisement:

"My administration will prove that government is not avoidly
corrupt and that bureaucracy is not necessarily corrupt. Graft and
corruption, we will confront more with action than with words.

-- PRESIDENT FIDEL V. RAMOS, Inaugural Address, June 30,

1992

"AN URGENT APPEAL TO JUSTICE SECRETARY FRANKLIN

DRILON (and) PCGG CHAIRMAN MAGTANGGOL GUNIGUNDO

"Please stop the unauthorized and illegal acts of PCGG officials

led by former Chairman DAVID CASTRO and Commissioner
MARIO JALANDONI which will allow the attempt of hostile vested
interest groups to gain entry into the board of Oriental Petroleum
& Minerals Corporation.

"1. The PCGG openly defied Malacaang orders issued by former

Executive Secretary Franklin Drilon on the sale of Oriental
Petroleum shares.

"In spite of its claims that the disposal of OPMC shares held by
Piedras Petroleum was approved by the Office of the President,
documented proofs belie the PCGGs statements. Maniks

"No less than Justice Secretary Franklin Drilon, who was

Executive Secretary at the time PCGG Chairman David Castro
sought approval for the OPMC-Piedras Petroleum deal, thumbed
down Castros request. Clearly, the sale of OPMC shares held by
Piedras Petroleum to the RCBC-Yuchengco Group for P101
million was unauthorized and illegal.

"2. The PCGG officials involved in the unauthorized and illegal

sale of Oriental Petroleum shares committed grave abuse of
authority. Their acts defrauded government of better prices for
Oriental Petroleum shares which they undervalued and sold to
favored buyers Pacific Basin and RCBC, both identified with the
Yuchengco group.

"At the time the Piedras deal was closed the PCGG as evidenced
by the minutes of the Board Meeting of Piedras Petroleum on
October 31, 1991, with PCGG Commissioner Mario Jalandoni as
acting Chairman, the sale of 2.054 billion OPMC Class A shares
and 789.45 million B shares, OPMC shares were sold for the give-
away price of P0.035/share. This compares with prevailing market
price of P0.042 for A shares and P0.049 for the B shares. This
means that the RCBC-Yuchengco Group already earned P25
million at the time of the transaction.

"3. The PCGG proceeded without any legal authority to sell

Oriental Petroleum shares in total violation of the Public Bidding
Law and other government rules and regulations pertaining to the
disposal of government assets.

"The PCGG, particularly Commissioner Mario Jalandoni, should

be made to account for the PCGG-Piedras-RCBC transaction as it
was consummated without transparency, in violation of the Public
Bidding Law and without approval from the government.

"4. The PCGG last year illegally used Philcomsat cash dividends
to avail itself of an OPMC stock subscription to pay for the
subscription rights of JY Campos and Piedras Petroleum.

"Even before the PCGG transacted the questionable Piedras-

RCBC deal, it was sued by a Philcomsat stockholder before the
Sandiganbayan for diverting P76 million in cash dividends. The
anti-graft court ordered the cash dividends deposited in an escrow
account in 1989. However, the funds were used by the PCGG to
pay for subscription rights for OPMC shares.

"This case is related to the Piedras deal because the additional

OPMC shares were part of those sold to the RCBC-Yuchengco
Group. Manikanx

"5. The PCGG diverted the proceeds on the authorized sale of

Oriental Petroleum shares in violation of the law requiring
proceeds of the sale of assets by the PCGG going to the
Comprehensive Agrarian Reform Program (CARP).

"In addition to the litany of illegal transactions entered into by the

PCGG, the officials of the anti-graft body also violated provisions
of the Comprehensive Agrarian Reform Law of 1988, specifically
Section 63, which states that the following shall serve as source
of funding or appropriations for the implementation of the said law;
 "b) All receipts from assets recovered and sales of ill-gotten
wealth recovered through the Presidential Commission on Good
Government."

"The Management & Board of Directors of Oriental Petroleum and

Minerals Corporation believe that the fruits of oil exploration and
development in the country must be shared by the largest
possible number of Filipinos. It urgently seeks the intervention of
the National Leadership to immediately step in and prevent a
large-scale take-over attempt on the Company by selfish and
hostile vested interest groups under highly-questionable,
unauthorized and illegal circumstances." [2]

(b) In I.S. No. 93-6422

On July 22, 1993, petitioner filed a complaint for libel before the Provincial
Prosecutor of Rizal designated as I.S. No. 93-6422 against then OPMC
Chairman and President, private respondent Robert Coyiuto, Jr.

An open letter dated August 14, 1992 addressed to the stockholders of OPMC
is the subject of this case. Coyiuto, Jr., wrote it in his capacity as Chairman of
the Board and President of OPMC. The paragraph objected to is quoted
hereunder:

"Conclusion

"It has been suggested that this barrage of charges and press
releases against the Corporation, and myself, were really
intended to create a smokescreen to cover up the sweetheart deal
between Commissioner Mario Jalandoni of the Presidential
Commission on Good Government (PCGG) and Rizal
Commercial Banking Corp. (RCBC) to the prejudice of the
Government and/or that it is a part of a dubious proxy solicitation
strategy by these persons. It seems to me that there is more to
that transaction than meets the eye." Oldmiso
[3]

After the affidavits and counter-affidavits were filed, 3rd Assistant Prosecutor
Edgardo C. Bautista issued a Memorandum dated November 26, 1993 in I.S.
No. 93-6228, approved by Rizal Provincial Prosecutor Mauro M. Castro on
December 13, 1993, recommending the indictment of private respondents
Coyiuto, Jr., Ledesma, Garcia, Ozaeta, Barcelon and Dyhongpo in complicity
in the crime of libel. An information for the crime of libel docketed as Criminal
[4]
Case No. 93-10987 was filed with the Regional Trial Court of Makati, Branch
138.

A Memorandum in I.S. No. 93-6422 dated November 8, 1993 was issued by

3rd Assistant Prosecutor Bautista, approved by Rizal Provincial Prosecutor
Mauro M. Castro on December 13, 1993, recommending the indictment of
private respondent Coyiuto, Jr. An Information for libel docketed as Criminal
[5]

Case No. 93-10986 was filed thereafter with the Regional Trial Court of
Makati, Branch 137.

All of the respondents in the two aforementioned cases appealed to then

Secretary of Justice, Franklin M. Drilon. [6]

On March 15, 1994, Secretary Drilon issued the questioned DOJ Resolution
No. 211, Series of 1994. The dispositive portion thereof reads as follows:
[7]

"WHEREFORE, premises considered, the questioned resolutions

are hereby SET ASIDE and the complaints DISMISSED. You are
hereby directed to immediately withdraw the informations filed in
court against respondents Robert Coyiuto, Jr., Jaime L. Ledesma,
Ramon Garcia, Amparo Barcelon, Antonio Ozaeta and Carlos
Dyhongpo. Report of action taken within ten (10) days from
receipt hereof is desired." [8]

A motion for reconsideration was filed but the same was denied in a letter-
[9]

order dated April 20, 1994. [10]

Hence this petition.

The petition is without merit. Ncm

Section 4, Rule 112 of the New Rules on Criminal Procedure ruled that:

"Sec. 4. Duty of investigating fiscal. -- If the investigating fiscal

finds cause to hold the respondent for trial, he shall prepare the
resolution and corresponding information. He shall certify under
oath that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses, that
there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof, that the
accused was informed of the complaint and of the evidence
submitted against him and that he was given an opportunity to
 submit controverting evidence. Otherwise, he shall recommend
dismissal of the case.

"In either case, he shall forward the records of the case to the
provincial or city fiscal or chief state prosecutor within five (5) days
from his resolution. The latter shall take appropriate action
thereon within ten (10) days from receipt thereof, immediately
informing the parties of said action.

"No complaint or information may be filed or dismissed by an

investigating fiscal without the prior written authority or approval of
the provincial or city fiscal or chief state prosecutor.

"Where the investigating assistant fiscal recommends the

dismissal of the case but his findings are reversed by the
provincial or city fiscal or chief state prosecutor on the ground that
a probable cause exists, the latter may, by himself, file the
corresponding information against the respondent or direct any
other assistant fiscal or state prosecutor to do so, without
conducting another preliminary investigation.

"If upon petition by a proper party, the Secretary of Justice

reverses the resolution of the provincial or city fiscal or chief state
prosecutor, he shall direct the fiscal concerned to file the
corresponding information without conducting another preliminary
investigation or to dismiss or move for dismissal of the complaint
or information."

Section 1 (d) of P.D. No. 911 likewise empowers the Secretary of Justice,
where he finds that no prima facie case exists, to authorize and direct the
investigating fiscal concerned or any other fiscal or state prosecutor to cause
or move for the dismissal of the case, or, where he finds a prima facie case, to
cause the filing of an information in court against the respondent, based on
the same sworn statements of evidence submitted, without the necessity of
conducting another preliminary investigation. Ncmmis

"The power of supervision and control by the Minister of Justice over the
fiscals cannot be denied. As stated in Noblejas vs. Salas, 67 SCRA 47,
'Section 79 (c) of the Revised Administrative Code defines the extent of a
department secretary's power. The power of control therein contemplated
"means the power (of the department head) to alter, modify or nullify or set
aside what a subordinate officer had done in the performance of his duties
and to substitute the judgment of the former for that of the latter." "The power
of control implies the right of the President (and, naturally, of his alter ego) to
interfere in the exercise of such discretion as may be vested by law in the
officers of the national government, as well as to act in lieu of such officers."'
For, while it is the duty of the fiscal to prosecute persons who, according to
evidence received from the complainant, are shown to be guilty of a crime, the
Minister of Justice is likewise bound by his oath of office to protect innocent
persons from groundless, false or serious prosecution. He would be
committing a serious dereliction of duty if he orders or sanctions the filing of
an information based upon a complaint where he is not convinced that the
evidence would warrant the filing of the action in court. As he has the power of
supervision and control over prosecuting officers, the Minister of Justice has
the ultimate power to decide which as between conflicting theories of the
complainant and the respondents should be believed." [11]

It is a well-settled rule that the Secretary of Justice has the power to review
resolutions or decisions of provincial or city prosecutors or the Chief State
Prosecutor upon petition by a proper party. Under the Revised Administrative
Code, the secretary of justice exercises the power of direct control and
supervision over said prosecutors. He may thus affirm, nullify, reverse or
modify their rulings as he may deem fit.

Section 39, Chapter 8, Book IV in relation to Sections 5, 8, and 9, Chapter 2,

Title III of the Code gives the secretary of justice supervision and control over
the Office of the Chief State Prosecutor and the Provincial and City
Prosecution Offices. The scope of his power of supervision and control is
delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code: Scncm

"(1) Supervision and Control. -- Supervision and control shall

include authority to act directly whenever a specific function is
entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate
officials or units; determine priorities in the execution of plans and
programs; and prescribe standards, guidelines, plans and
programs. Unless a different meaning is explicitly provided in the
specific law governing the relationship of particular agencies, the
word control shall encompass supervision and control as defined
in this paragraph."

In the case of Ledesma vs. Court of Appeals, it was held that:

[12]
 "Supervision and control of a department head over his
subordinates have been defined in administrative law as follows:

"In administrative law, supervision means overseeing or the power

or authority of an officer to see that subordinate officers perform
their duties. If the latter fail or neglect to fulfill them, the former
may take such action or step as prescribed by law to make them
perform such duties. Control, on the other hand, means the power
of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and
to substitute the judgment of the former for that of the latter.
(Mondano vs. Silvosa, 97 Phil. 143, 148 (1955)

"Review as an act of supervision and control by the justice

secretary over the fiscals and prosecutors finds basis in the
doctrine of exhaustion of administrative remedies which holds that
mistakes, abuses or negligence committed in the initial steps of
an administrative activity or by an administrative agency should
be corrected by higher administrative authorities, and not directly
by courts. As a rule, only after administrative remedies are
exhausted may judicial recourse be allowed."

We have taken the liberty to review the "libelous" articles complained of. We
however do not find them to be such.

The questioned "conclusion" in the open letter addressed to the stockholders

of the OPMC merely stated the insinuations going on about the deal
[13]

between petitioner Jalandoni, in his capacity as PCGG Commissioner and

RCBC and the explanation for the press releases concerning the writer,
respondent Coyiuto, Jr. and the OPMC.

In the recent case of Vasquez vs. Court of Appeals, et. al., we ruled
[14]

that: Sdaamiso

"The question is whether from the fact that the statements were
defamatory, malice can be presumed so that it was incumbent
upon petitioner to overcome such presumption. Under Art. 361 of
the Revised Penal Code, if the defamatory statement is made
against a public official with respect to the discharge of is official
duties and functions and the truth of the allegation is shown, the
accused will be entitled to an acquittal even though he does not
 prove that the imputation was published with good motives and for
justifiable ends."

Moreover, this Court has ruled in a plethora of cases that in libel cases
[15]

against public officials, for liability to arise, the alleged defamatory statement
must relate to official conduct, even if the defamatory statement is false,
unless the public official concerned proves that the statement was made with
actual malice, that is, with knowledge that it was false or not. Here petitioner
failed to prove actual malice on the part of the private respondents.

Nor are we of the opinion that the same was written to cast aspersion on the
good name of the petitioner. In our view, the paid advertisement merely
[16]

served as a vehicle to inform the stockholders of the going-ons in the

business world and only exposed the irregularities surrounding the PCGG and
RCBC deal and the parties involved.

The statements embodied in the advertisement and the open letter are
protected by the constitutional guarantee of freedom of speech. This carries
[17]

the right to criticize the action and conduct of a public official. The extent of
the exercise of this right has been interpreted and defined in U.S. vs.
Bustos which held:
[18]

"The interest of society and the maintenance of good government

demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of
free speech. The sharp incision of its probe relieves the
abscesses of officialdom. Men in public life may suffer under a
hostile and an unjust accusation; the wound can be assuaged
with the balm of a clear conscience. A public officer must not be
too thin-skinned with reference to comment upon his official acts.
Only thus can the intelligence and dignity of the individual be
exalted. Of course, criticism does not authorize defamation.
Nevertheless, as the individual is less than the State, so must
expected criticism be born for the common good. Rising superior
to any official or set of officials, to the Chief Executive, to the
Legislature, to the Judiciary -- to any or all the agencies of
Government public opinion should be the constant source of
liberty and democracy." Sdaad

The extraordinary writ of certiorari is issued only when it is sufficiently shown

that "any tribunal, board, or officer exercising judicial functions, has acted
without or in excess of its or his jurisdiction, or with grave abuse of
discretion." [19]

In the case of Building Care Corporation vs. National Labor Relations

Commission, it was held:
[20]

"The sole office of the writ of certiorari is the correction of errors of

jurisdiction including the commission of grave abuse of discretion
amounting to lack of jurisdiction, and does not include correction
of public respondent's evaluation of the evidence and factual
findings based thereon."

Petitioner herein desires that we make a correction of the findings of the

Secretary of Justice. This we cannot do for we do not find it needing of any
correction.

A special civil action for certiorari will prosper only if a grave abuse of
discretion is manifested. And this is defined in the case of Republic vs.
Villarama, Jr. which held that for an abuse to be grave the power is
[21]

exercised in an arbitrary or despotic manner by reason of passion or personal

hostility.

This petitioner failed to prove. Scsdaad

Moreover a petition for certiorari, in order to prosper, must be based on

jurisdictional grounds because, as long as the respondent acted with
jurisdiction, any error committed by him or it in the exercise thereof will
amount to nothing more than an error of judgment which may be reviewed or
corrected only by appeal. Even an abuse of discretion is not sufficient by itself
to justify the issuance of a writ of certiorari. [22]

The petitioner failed to point out the specific instances where public
respondent had committed a grave abuse of discretion when the latter issued
the questioned orders. Failing this the petition for certiorari must fall.

Assuming arguendo that the extraordinary writ of certiorari must prosper, we

must point out to the petitioner the oft-cited ruling in the case of Crespo vs.
Mogul, [23]

"Once a complaint or information is filed in court, any disposition

of the case such as its dismissal or its continuation rests on the
sound discretion of the court. Trial judges are thus required to
 make their own assessment of whether the secretary of justice
committed grave abuse of discretion in granting or denying the
appeal, separately and independently of the prosecution's or the
secretary's evaluation that such evidence is insufficient or that no
probable cause to hold the accused for trial exists."

It is therefore imperative upon the trial judge to make an assessment of the

motion to withdraw before granting or denying the same for he is in the best
position to rule on the same.

Finally, we have to make the pronouncement that public respondent was not
remiss in his sworn duty to prosecute violators of the law and to keep the
innocent from behind bars.

WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby

DISMISSED.

SO ORDERED. olanov

RODOLFO R. VASQUEZ, petitioner, vs. COURT OF APPEALS, THE

REGIONAL TRIAL COURT OF MANILA, BRANCH 40, and THE
PEOPLE OF THE PHILIPPINES, respondents.

DECISION
MENDOZA, J.:

The question for determination in this case is the liability for libel of a citizen who denounces
a barangay official for misconduct in office. The Regional Trial Court of Manila, Branch 40, found
petitioner guilty and fined him P1,000.00 on the ground that petitioner failed to prove the truth of
the charges and that he was motivated by vengeance in uttering the defamatory statement. On
appeal, the Court of Appeals, in a decision[1] dated February 1, 1995, affirmed. Hence, this petition
for review. The decision appealed from should be reversed.
The facts are not in dispute. Petitioner Rodolfo R. Vasquez is a resident of the Tondo
Foreshore Area. Sometime in April 1986, he and some 37 families from the area went to see then
National Housing Authority (NHA) General Manager Lito Atienza regarding their complaint
against their Barangay Chairman, Jaime Olmedo. After their meeting with Atienza and other NHA
officials, petitioner and his companions were met and interviewed by newspaper reporters at the
NHA compound concerning their complaint. The next day, April 22, 1986, the following news
article[2] appeared in the newspaper Ang Tinig ng Masa:

Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya

sa Tondo Foreshore Area na umanoy inagawan ng lupa ng kanilang barangay
chairman sa pakikipagsabwatan sa ilang pinuno ng National Housing Authority sapul
1980.

Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66,

Zone 6, Tondo Foreshore Area, sa mga project manager ng NHA upang makamkam
ang may 14 na lote ng lupa sa naturang lugar.

Binanggit ni Rodolfo R. Vasquez, 40, Tagapagsalita ng (mga) pamilyang apektado, na

umaabot lang sa 487.87 metro kuwadrado ang kabuuan ng mga lupa na kinatitirikan
ng mga barung-barung ng 38 pamilya.

Naninirahan na kami sa mga lupang nabanggit sapul 1950 at pinatunayan sa mga

survey ng NHA noong nakalipas na taon na may karapatan kami sa mga lupang ito ng
pamahalaan, ani Vasquez.

Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni
Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng NHA, sabi
ni Vasquez.

Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila,
MHS Minister Conrado Benitez, at ilang pinuno ng pulisya ang barangay chairman
kaya nakalusot ang mga ginawa nitong katiwalian.

Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa

mga ilegal na pasugalan sa naturang lugar at maging sa mga nakawan ng manok.

Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero
pinawalang saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin
kaugnay ng pagrereklamo sa pangangamkam ng lupa noong 1984, sabi pa ni Vasquez.

Based on the newspaper article, Olmedo filed a complaint for libel against petitioner alleging
that the latters statements cast aspersions on him and damaged his reputation. After conducting
preliminary investigation, the city prosecutor filed the following information in the Regional Trial
Court of Manila, Branch 40:

The undersigned accuses RODOLFO R. VASQUEZ of the crime of libel committed

as follows:

That on or about April 22, 1986, in the city of Manila, Philippines, the said accused,
with malicious intent of impeaching the reputation and character of one Jaime
Olmedo, chairman of Barangay 66, Zone 6 in Tondo, Manila, and with evident intent
of exposing him to public hatred, contempt, ridicule, did then and there willfully,
unlawfully, feloniously and maliciously caused the publication of an article entitled 38
Pamilya Inagawan ng Lupa in Ang Tinig ng Masa, a daily newspaper sold to the
public and of general circulation in the Philippines in its April 22, 1986 issue, which
portion of the said article reads as follows:

Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya

sa Tondo Foreshore Area na umanoy inagawan ng lupa ng kanilang barangay
chairman sa pakikipagsabwatan sa ilang pinuno ng National Housing Authority sapul
1980.

Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66,

Zone 6, Tondo Foreshore Area sa mga project manager ng NHA upang makamkam
ang may 14 na lote ng lupa sa naturang lugar.

x x x Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito
ni Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng NHA,
sabi ni Vasquez.

Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila,
MHS Minister Conrado Benitez, at ilang pinuno ng pulisya ang barangay chairman
kaya nakalusot ang mga ginawa nitong katiwalian.

Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa

mga ilegal na pasugalan sa naturang lugar at maging sa mga nakawan ng manok. x x x

with which statements, the said accused meant and intended to convey, as in fact he
did mean and convey false and malicious imputations that said Jaime Olmedo is
engaged in landgrabbing and involved in illegal gambling and stealing of chickens at
the Tondo Foreshore Area, Tondo, Manila, which statements, as he well knew, were
entirely false and malicious, offensive and derogatory to the good name, character and
reputation of said Jaime Olmedo, thereby tending to impeach, besmirch and destroy
the honor, character and reputation of Jaime Olmedo, as in fact, the latter was exposed
to dishonor, discredit, public hatred, contempt and ridicule.

Contrary to law.

Upon being arraigned, petitioner entered a plea of not guilty, whereupon the case was
tried. The prosecution presented Barangay Chairman Olmedo and his neighbor, Florentina
Calayag, as witnesses. On the other hand, the defense presented Ciriaco Cabuhat, Nicasio Agustin,
Estrelita Felix, Fernando Rodriguez all residents of the Tondo Foreshore Area and petitioner as its
witnesses.
 On May 28, 1992, the trial court rendered judgment finding petitioner guilty of libel and
sentencing him to pay a fine of P1,000.00. On appeal, the Court of Appeals affirmed in
toto. Hence, this petition for review. Petitioner contends that
I. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL
COURT PINPOINTING PETITIONER AS THE SOURCE OF THE ALLEGED LIBELOUS
ARTICLE.
II. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL
COURT THAT PETITIONER IMPUTED THE QUESTIONED ACTS TO
COMPLAINANT.
III. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL
COURT THAT THE ALLEGED IMPUTATIONS WERE MADE MALICIOUSLY.
IV. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL
COURT WHICH FAILED TO APPRECIATE PETITIONERS DEFENSE OF TRUTH.
V. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL
COURT THAT ALL THE ELEMENTS OF LIBEL WERE PROVEN.
We will deal with these contentions in the order in which they are made.
First. Petitioner claims he was unfairly singled out as the source of the statements in the article
when any member of the 38 complainant-families could have been the source of the alleged
libelous statements.[3] The reference is to the following portion of the decision of the Court of
Appeals:

. . . In his sworn statement, appellant admitted he was the source of the libelous article
(Exh. B). He affirmed this fact when he testified in open court as follows: That his
allegation on the act of landgrabbing by Olmedo was based on the alleged report and
pronouncements of the NHA representatives (p. 5, tsn, Oct. 18, 1989); that said
allegations were made by him before the local press people in the pursuit of fairness
and truthfulness and not in bad faith (pp. 8-9, id.); that the only inaccurate account in
the published article of Ang Tinig ng Masa is the reference to the 487.87 sq.m. lot, on
which Olmedos residence now stands, attributed by the reporter as the lot currently
occupied by appellants and his fellow complainants (pp. 4-5, tsn, Nov. 15, 1989; pp.
4-5, tsn, January 15, 1990); and that after the interview, he never expected that his
statement would be the cause of the much-publicized libelous article (pp. 4-6, tsn,
Nov. 15, 1989).[4]

It is true petitioner did not directly admit that he was the source of the statements in the
questioned article. What he said in his sworn statement[5] was that the contents of the article are
true in almost all respects, thus:
9. Tama ang nakalathala sa pahayagang Ang Masa maliban na lang sa tinutukoy na ako at ang
mga kasamahang maralitang taga-lungsod ay nakatira sa humigit kumulang 487.87 square
meters sapagkat ang nabanggit na 487.87 square meters ay siyang kinatitirikan ng bahay ni
Barangay Chairman Olmedo kung saan nakaloob ang anim na lote - isang paglabag sa batas o
regulasyon ng NHA;
 10. Ang ginawa kong pahayag na nailathala sa Ang Masa ay sanhi ng aking nais na maging
mabuting mamamayan at upang maituwid ang mga katiwaliang nagaganap sa Tondo
Foreshore Area kung saan ako at sampu ng aking mga kasamang maralitang taga-lungsod ay
apektado at naaapi.
This was likewise what he stated in his testimony in court both on direct[6] and on cross-
examination.[7] However, by claiming that what he had told the reporter was made by him in the
performance of a civic duty, petitioner in effect admitted authorship of the article and not only of
the statements attributed to him therein, to wit:

Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni
Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng NHA, sabi
ni Vasquez.

....

Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero
pinawalang saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin
kaugnay ng pagrereklamo sa pangangamkam ng lupa noong 1984, sabi pa ni Vasquez.

Petitioner cannot claim to have been the source of only a few statements in the article in
question and point to the other parties as the source of the rest, when he admits that he was correctly
identified as the spokesperson of the families during the interview.
Second. Petitioner points out that the information did not set out the entire news article as
published. In fact, the second statement attributed to petitioner was not included in the
information. But, while the general rule is that the information must set out the particular
defamatory words verbatim and as published and that a statement of their substance is
insufficient,[8] United States v. Eguia, 38 Phil. 857 (1918).8 a defect in this regard may be cured by
evidence.[9] In this case, the article was presented in evidence, but petitioner failed to object to its
introduction. Instead, he engaged in the trial of the entire article, not only of the portions quoted
in the information, and sought to prove it to be true. In doing so, he waived objection based on the
defect in the information. Consequently, he cannot raise this issue at this late stage.[10]
Third. On the main issue whether petitioner is guilty of libel, petitioner contends that what he
said was true and was made with good motives and for justifiable ends.
To find a person guilty of libel under Art. 353 of the Revised Penal Code, the following
elements must be proved: (a) the allegation of a discreditable act or condition concerning another;
(b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice. [11]
An allegation is considered defamatory if it ascribes to a person the commission of a crime,
the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or
circumstance which tends to dishonor or discredit or put him in contempt, or which tends to
blacken the memory of one who is dead.[12]
There is publication if the material is communicated to a third person.[13] It is not required that
the person defamed has read or heard about the libelous remark. What is material is that a third
person has read or heard the libelous statement, for a mans reputation is the estimate in which
others hold him, not the good opinion which he has of himself.[14]
On the other hand, to satisfy the element of identifiability, it must be shown that at least a third
person or a stranger was able to identify him as the object of the defamatory statement.[15]
Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code provides:

Every defamatory imputation is presumed to be malicious, even if it be true, if no

good intention and justifiable motive for making it is shown, except in the following
cases:

1. A private communication made by any person to another in the performance of any legal, moral
or security duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative or other official proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings, or of any other act performed by
public officers in the exercise of their functions.
In this case, there is no doubt that the first three elements are present. The statements that
Olmedo, through connivance with NHA officials, was able to obtain title to several lots in the area
and that he was involved in a number of illegal activities (attempted murder, gambling and theft
of fighting cocks) were clearly defamatory. There is no merit in his contention that landgrabbing,
as charged in the information, has a technical meaning in law.[16] Such act is so alleged and proven
in this case in the popular sense in which it is understood by ordinary people. As held in United
States v. Sotto:[17]

. . . [F]or the purpose of determining the meaning of any publication alleged to be

libelous that construction must be adopted which will give to the matter such a
meaning as is natural and obvious in the plain and ordinary sense in which the public
would naturally understand what was uttered. The published matter alleged to be
libelous must be construed as a whole. In applying these rules to the language of an
alleged libel, the court will disregard any subtle or ingenious explanation offered by
the publisher on being called to account. The whole question being the effect the
publication had upon the minds of the readers, and they not having been assisted by
the offered explanation in reading the article, it comes too late to have the effect of
removing the sting, if any there be, from the words used in the publication.

Nor is there any doubt that the defamatory remarks referred to complainant and were
published. Petitioner caused the publication of the defamatory remarks when he made the
statements to the reporters who interviewed him.[18]
The question is whether from the fact that the statements were defamatory, malice can be
presumed so that it was incumbent upon petitioner to overcome such presumption. Under Art. 361
of the Revised Penal Code, if the defamatory statement is made against a public official with
respect to the discharge of his official duties and functions and the truth of the allegation is shown,
the accused will be entitled to an acquittal even though he does not prove that the imputation was
published with good motives and for justifiable ends.[19]
In this case, contrary to the findings of the trial court, on which the Court of Appeals relied,
petitioner was able to prove the truth of his charges against the barangay official. His allegation
that, through connivance with NHA officials, complainant was able to obtain title to several lots
at the Tondo Foreshore Area was based on the letter[20] of NHA Inspector General Hermogenes
Fernandez to petitioners counsel which reads:

09 August 1983

Atty. Rene V. Sarmiento

Free Legal Assistance Group (FLAG)

55 Third Street

New Manila, Quezon City

Dear Atty. Sarmiento:

In connection with your request that you be furnished with a copy of the results of the
investigation regarding the complaints of some Tondo residents against Chairman
Jaime Olmedo, we are providing you a summary of the findings based on the
investigation conducted by our Office which are as follows:

1. Based on the subdivision plan of Block 260, SB 8, Area III, Jaime Olmedos present
structure is constructed on six lots which were awarded before by the defunct Land
Tenure Administration to different persons as follows:

Lot 4 - Juana Buenaventura - 79.76 sq. m.

Lot 6 - Servando Simbulan - 48.50 sq. m.

Lot 7 - Alfredo Vasquez - 78.07 sq. m.

Lot 8 - Martin Gallardo - 78.13 sq. m.

Lot 9 - Daniel Bayan - 70.87 sq. m.

Lot 1 - Fortunato de Jesus - 85.08 sq. m. (OIT No. 7800)

The above-mentioned lots were not yet titled, except for Lot 1. Fortunato de Jesus
sold the said lot to a certain Jovita Bercasi, a sister-in-law of Jaime Olmedo. The other
remaining lots were either sold to Mr. Olmedo and/or to his immediate relatives.

Lot 14 is also titled in the name of Mariano Bercasi, father-in-law of Jaime Olmedo,
with an area of 47.40 sq. m.

The lot assigned to Chairman Olmedo has a total area of 487.87 sq. m.

2. Block 261, SB 8, Area III

Lot No. 7 is titled in the name of Jaime Olmedo, consisting an area of 151.67 sq. m. A
four-door apartment owned by Mr. Olmedo is being rented to uncensused residents.

3. Block 262, SB 8, Area III

Lot No. 13 is allocated to Delfin Olmedo, nephew of Jaime Olmedo, but this lot is not
yet titled.

4. Block 256, SB 5, Area III

Victoria Olmedo, uncensused, is a daughter of Jaime Olmedo. Her structure is erected

on a non-titled lot. The adjacent lot is titled in the name of Victoria. It was issued
OCT No. 10217 with an area of 202.23 sq. m. Inside this compound is another
structure owned and occupied by Amelia Dofredo, a censused houseowner. The titled
lot of Victoria now has an area of 338.20 sq. m.

For your information.

(s/t) HERMOGENES C. FERNANDEZ

Inspector General

Public Assistance & Action Office

In addition, petitioner acted on the basis of two memoranda,[21] both dated November 29, 1983, of
then NHA General Manager Gaudencio Tobias recommending the filing of administrative charges
against the NHA officials responsible for the alleged irregular consolidation of lots [in Tondo to
Jaime and Victoria Olmedo.]
With regard to the other imputations made by petitioner against complainant, it must be noted
that what petitioner stated was that various charges (for attempted murder against petitioner,
gambling, theft of fighting cocks) had been filed by the residents against their barangay chairman
but these had all been dismissed. Petitioner was able to show that Olmedos involvement in the
theft of fighting cocks was the subject of an affidavit-complaint,[22] dated October 19, 1983, signed
by Fernando Rodriguez and Ben Lareza, former barangay tanods of Barangay 66, Zone 6,
Tondo. Likewise, petitioner presented a resolution,[23] dated March 10, 1988, of the Office of the
Special Prosecutor in TBP-87-03694, stating that charges of malversation and corrupt practices
had been filed against Olmedo and nine (9) other barangay officials but the same were
dismissed. Indeed, the prosecutions own evidence bears out petitioners statements. The
prosecution presented the resolution[24]in TBP Case No. 84-01854 dismissing the charge of
attempted murder filed by petitioner against Jaime Olmedo and his son-in-law, Jaime Reyes. The
allegation concerning this matter is thus true.
It was error for the trial court to hold that petitioner only tried to prove that the complainant
[barangay chairman] is guilty of the crimes alluded to; accused, however, has not proven that the
complainant committed the crimes. For that is not what petitioner said as reported in the Ang Tinig
ng Masa. The fact that charges had been filed against the barangay official, not the truth of such
charges, was the issue.
In denouncing the barangay chairman in this case, petitioner and the other residents of the
Tondo Foreshore Area were not only acting in their self-interest but engaging in the performance
of a civic duty to see to it that public duty is discharged faithfully and well by those on whom such
duty is incumbent. The recognition of this right and duty of every citizen in a democracy is
inconsistent with any requirement placing on him the burden of proving that he acted with good
motives and for justifiable ends.
For that matter, even if the defamatory statement is false, no liability can attach if it relates to
official conduct, unless the public official concerned proves that the statement was made with
actual malicethat is, with knowledge that it was false or with reckless disregard of whether it was
false or not. This is the gist of the ruling in the landmark case of New York Times v.
Sullivan,[25] which this Court has cited with approval in several of its own decisions.[26] This is the
rule of actual malice. In this case, the prosecution failed to prove not only that the charges made
by petitioner were false but also that petitioner made them with knowledge of their falsity or with
reckless disregard of whether they were false or not.
A rule placing on the accused the burden of showing the truth of allegations of official
misconduct and/or good motives and justifiable ends for making such allegations would not only
be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the
constitutionally guaranteed freedom of expression. Such a rule would deter citizens from
performing their duties as members of a self- governing community. Without free speech and
assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice
Brandeis has said, public discussion is a political duty and the greatest menace to freedom is an
inert people.[27]
Complainant contends that petitioner was actuated by vengeful political motive rather than by
his firm conviction that he and his fellow residents had been deprived of a property right because
of acts attributable to their barangay chairman. The Court of Appeals, sustaining complainants
contention, held:

That the said imputations were malicious may be inferred from the facts that appellant
and complainant are enemies, hence, accused was motivated by vengeance in uttering
said defamatory statements and that accused is a leader of Ciriaco Cabuhat who was
defeated by complainant when they ran for the position of barangay captain. . . .[28]

As already stated, however, in accordance with Art. 361, if the defamatory matter either constitutes
a crime or concerns the performance of official duties, and the accused proves the truth of his
charge, he should be acquitted.[29]
Instead of the claim that petitioner was politically motivated in making the charges against
complainant, it would appear that complainant filed this case to harass petitioner. Art. 360 of the
Revised Penal Code provides:

Persons responsible.Any person who shall publish, exhibit, or cause the publication or
exhibition of any defamation in writing or by similar means, shall be responsible for
the same.

The author or editor of a book or pamphlet, or the editor or business manager of a

daily newspaper, magazine or serial publication, shall be responsible for the
defamations contained therein to the same extent as if he were the author thereof. . . .

Yet, in this case, neither the reporter, editor, nor the publisher of the newspaper was charged
in court. What was said in an analogous case[30] may be applied mutatis mutandis to the case at bar:

It is curious that the ones most obviously responsible for the publication of the
allegedly offensive news report, namely, the editorial staff and the periodical itself,
were not at all impleaded. The charge was leveled against the petitioner and, curiouser
still, his clients who have nothing to do with the editorial policies of the
newspaper. There is here a manifest effort to persecute and intimidate the petitioner
for his temerity in accusing the ASAC agents who apparently enjoyed special
privilegesand perhaps also immunitiesduring those oppressive times. The non-
inclusion of the periodicals was a transparent hypocrisy, an ostensibly pious if not at
all convincing pretense of respect for freedom of expression that was in fact one of the
most desecrated liberties during the past despotism.[31]

WHEREFORE, the decision of the Court of Appeals is REVERSED and the petitioner is
ACQUITTED of the crime charged.
SO ORDERED.
ORAL DEFAMATION

ROGELIO PADER, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

RESOLUTION
PARDO, J.:
 What is before the Court is an appeal via certiorari from a decision[1] of the Court of
Appeals affirming that of the Regional Trial Court, Branch 1, Balanga, Bataan[2]affirming
petitioners conviction of grave oral defamation by the Municipal Trial Court, Bagac,
Bataan.[3]
The facts may be summarized as follows:
On April 20, 1995, at about 8:00 p.m., Atty. Benjamin C. Escolango was conversing
with his political leaders at the terrace of his house at Morong, Bataan when petitioner
appeared at the gate and shouted putang ina mo Atty. Escolango. Napakawalanghiya
mo! The latter was dumbfounded and embarrassed. At that time, Atty. Escolango was a
candidate for vice mayor of Morong, Bataan in the elections of May 8, 1995.
On June 16, 1995 Atty. Escolango filed with the Municipal Trial Court, Bagac, Bataan
a complaint against petitioner for grave oral defamation, to which petitioner pleaded not
guilty.[4]
After due trial, on October 30, 1997 the Municipal Circuit Trial Court, Bagac, Bataan
rendered decision convicting petitioner of grave oral defamation.[5] The dispositive portion
reads:
Accordingly and in view of all the foregoing, the court finds accused Rogelio Pader
guilty beyond reasonable doubt of the crime of Grave Oral Defamation as defined and
penalized under Article 358 of the Revised Penal Code and considering the extenuating
circumstances of drunkenness hereby sentences him to an imprisonment of one (1)
month and one (1) day to one (1) year imprisonment [6] and to indemnify the private
offended party in the amount of P 20,000.00 as moral damages, considering his social
standing and professional stature.
SO ORDERED.
Bagac-Morong, Bataan
October 30, 1997.

ANTONIO C. QUINTOS

Acting Mun. Circuit Trial Judge[7]

On appeal, on March 4, 1998, the Regional Trial Court affirmed the decision of the
Municipal Trial Court in toto. The decretal portion of the decision reads:
After considering the evidence adduced by the parties together with their respective
memorandum, this Court finds no reversible error[8] on the penalty imposed as well as the moral
damages awarded by the Municipal Circuit Trial Court of Bagac-Morong, Bataan and therefore
affirms the same in toto.
xxx
SO ORDERED
Given this 4th day of March 1998 at Balanga, Bataan.
 BENJAMIN T. VIANZON
Judge[9]
Elevated to the Court of Appeals by petition for review, on May 3, 1999 the Court of
Appeals affirmed the Regional Trial Courts decision but with modification as to the penalty
imposed, as follows:

WHEREFORE, in view of the foregoing, the judgement appealed from is

hereby affirmed but with the modification that the accused-appellant, Rogelio
Pader is sentenced to serve a prison term of four (4) months and one (1) day
of arresto mayor.

SO ORDERED.

ROMEO A. BRAWNER

Associate Justice[10]

Hence, this petition.[11]

The issue is whether petitioner is guilty of slight or serious oral defamation. In
resolving the issue, we are guided by a doctrine of ancient respectability that defamatory
words will fall under one or the other, depending not only upon their sense, grammatical
significance, and accepted ordinary meaning judging them separately, but also upon the
special circumstances of the case, antecedents or relationship between the offended
party and the offender, which might tend to prove the intention of the offender at the
time.[12]
Unquestionably, the words uttered were defamatory. Considering, however, the
factual backdrop of the case, the oral defamation was only slight. The trial court, in arriving
at its decision, considered that the defamation was deliberately done to destroy Atty.
Escolangos reputation since the parties were political opponents.
We do not agree. Somehow, the trial court failed to appreciate the fact that the parties
were also neighbors; that petitioner was drunk at the time he uttered the defamatory
words; and the fact that petitioners anger was instigated by what Atty. Escolango did
when petitioners father died.[13] In which case, the oral defamation was not of serious or
insulting nature.
In Reyes vs. People,[14] we ruled that the expression putang ina mo is a common
enough utterance in the dialect that is often employed, not really to slender but rather to
express anger or displeasure. In fact, more often, it is just an expletive that punctuates
ones expression of profanity. We do not find it seriously insulting that after a previous
incident involving his father, a drunk Rogelio Pader on seeing Atty. Escolango would utter
words expressing anger. Obviously, the intention was to show his feelings of resentment
and not necessarily to insult the latter.Being a candidate running for vice mayor,
occasional gestures and words of disapproval or dislike of his person are not uncommon.
 In similar fashion, the trial court erred in awarding moral damages without proof of
suffering.[15] Accordingly, petitioner may be convicted only of slight oral defamation
defined and penalized under Article 358, Revised Penal Code, prescribing the penalty
of arresto mayor or a fine not exceeding 200 pesos.
WHEREFORE, we resolve to DENY the petition. However, we set aside the decision
of the Court of Appeals in CAG. R. CR No. 21710 and find petitioner Rogelio Pader guilty
only of slight oral defamation. We impose on him a fine of P200.00 and costs.
SO ORDERED.

SLANDER BY DEED

NOEL VILLANUEVA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and YOLANDA CASTRO, Respondents.

DECISION

CHICO-NAZARIO, J.:

This is no ordinary word war story. Here, the Councilor and Vice-Mayor of a town, both holders of
exalted government positions, became slaves to their human limitations and engaged in a verbal
scuffle at the municipal hall as if they were ordinary men in the streets. A moment of unguarded
emotional outburst lead to the long-drawn out twists and turns of this case, which should have been
avoided if only they have imbedded in their complex emotions, habits and convictions that
consciousness to regulate these deflecting forces and not to let them loose, either to their own
detriment or to that of the public they serve. This is the high price they have to pay as occupants of
their exalted positions.1

At bar is a petition for review assailing the decision2 dated 28 March 2003 of the Court of Appeals in
CA-G.R. CR No. 22932 which affirmed with modification the decision of the Regional Trial Court
(RTC) of Tarlac, likewise affirming with modification the joint decision of the 2nd Municipal Circuit
Trial Court (MCTC) of Capas-Bamban-Concepcion, convicting petitioner of the crime of Grave Oral
Defamation in Criminal Case No. 139-94 and Slander by Deed in Criminal Case No.140-94. Also
assailed is the resolution3 dated 9 October 2003 of the Court of Appeals denying the motion for
reconsideration filed by petitioner.

Petitioner Noel Villanueva was then a member of the Municipal Council while private complainant
Yolanda C. Castro was then Municipal Vice Mayor, both of Concepcion, Tarlac. Upon complaint of
private complainant, two separate Criminal Complaints were filed on 9 October 1994 against the
petitioner in the 2nd MCTC of Capas-Bamban-Concepcion, to wit:

CRIMINAL CASE NO. 139-94

For: Grave Oral Defamation

On September 12, 1994 on or about 10:00 in the morning at the SB Office in the Municipal Building
of Concepcion, Tarlac, in the presence of several persons and again in the afternoon on or about
four thirty (4:30 PM) at the Old Session Hall of the Municipal Building in my presence and in the
presence of several persons, defendant NOEL L. VILLANUEVA, in a loud voice and within hearing
distance of everyone present, unlawfully, maliciously and feloniously uttered in a serious and
insulting manner at the undersigned complainant the following words: ["]Nagmamalinis ca, ena ca
man malinis, garapal ca["] and "Balamu mansanas cang malutu, pero queng quilib ularan ca, tictac
carinat" (You are pretending to be clean and honest yet you are not clean and honest, you are
corrupt; you are like a red apple, but inside you are worm infested and extremely dirty), which
utterances are serious and insulting in nature, tending to cause dishonor, discredit and contempt of
undersigned complainant and causing her extreme mental anguish, wound (sic) feelings,
besmirched reputation and serious anxiety for which she is entitled to recover moral and exemplary
damages in an amount to be determined by the honorable court. Contrary to law.

CRIM.CASE NO. 140-94

For: Slander by Deed

On September 12, 1994 around four thirty (4:30 P.M.) in the afternoon, more or less, at the
Municipal Building of Concepcion, Tarlac, where public authorities are engaged in the discharge of
their duties, and in the presence of several persons, the accused Noel L. Villanueva while in the
process of hurling verbal insults at the complainant, then and there unlawfully, feloniously and
contemptuously gave the complainant what is commonly known as "dirty finger" by poking his hand
at complainant’s face with the middle finger extended and the rest of his fingers half-closed, an act
tending to cause dishonor, discredit and contempt on the complainant and causing her mental
anguish, wounded feelings and moral suffering for which she is entitled to moral and exemplary
damages in an amount to be determined by the honorable court. Contrary to law.4

Petitioner entered a plea of "not guilty" on both counts and trial ensued. The prosecution witnesses
presented were the complainant and her two witnesses.

The MCTC restated the facts as presented by the prosecution evidence as follows:

On 12 September 1994, at 10:00 o’clock in the morning, two utility men came to complainant’s
office, bringing with them the application for monetized leave of Sangguniang Bayan member
Noel Villanueva, petitioner in this case. The application for monetized leave was not
immediately attended to by complainant as she was then busy dictating some important matters to
her secretary.5

The accused at that time was standing in front of the Vice Mayor’s Office and he allegedly said: "E
ano kung wala sa mood, e ano kung galit sya."6 These utterances of accused were disregarded by
complainant but accused then entered the complainant’s office bringing with him his Application for
Monetized Leave. The accused addressed the complainant’s secretary: "Malou, pag atiu ne keng
mood, papirma mu ne." The alleged request of accused to the Secretary was made in a very
sarcastic manner.7

Complainant got the monetized leave and filed it in her "in and out" files and while doing this, the
paper accidentally fell on the floor. When she was about to pick it up, the accused allegedly got a
yellow pad and swung it at complainant’s face, but she was able to evade it. Accused then said:
"Ibuat daka ken, inabu daka keng awang, e baling masukul naku." (I will lift you from there and I will
throw you out of the window and I don’t care if I will go to jail). Then the accused went out of the
office and before leaving, he pointed a "dirty finger" at complainant, prompting the latter to stand and
get an empty bottle of coke to shield her face. Accused proceeded towards the office of the
municipal mayor. Because accused was still frothing invectives, complainant purportedly "rolled" the
empty bottle of coke towards him. The incident was witnessed by so many people numbering about
20 to 30 who were then at the municipal hall.8

Prosecution evidence further showed that accused allegedly mouthed the following disparaging
remarks, "Magmalinis ka, ena ka man malinis, garapal ka." "Balamu mansanas kang malutu, pero
king kilub ularan ka, tiktak karinat" (You are pretending to be clean and honest yet you are not clean
and honest, you are corrupt. You are like red apple, you are worm infested inside and extremely
dirty). While this was going on, the Municipal Attorney, Atty. Pepito Torres, intervened to pacify the
accused, but he was unable to do so.9

Based on the account of the prosecution witnesses, from the municipal session hall, the complainant
was persuaded to enter the office of the Sangguniang Bayan Secretary. Accused followed her and
inside said office, the accused again said, "Ibuat daka, inabu daka keng awang, e baling masukul ku
(I will lift you from there and I will throw you out of the window and I don’t care if I will go to jail). I
Tata mu tinagal yang kapitan pero masambut ya, pero ing kaputul ku sinambut ne man" (Your father
ran for barangay captain and lost but my brother won)10 and again, the accused pointed a "dirty
finger" at complainant.11

The defense, on the other hand, presented six witnesses. From their testimonies, the MCTC
gathered that on 12 September 1994, accused requested Flora Calayag to prepare the application
for monetized leave and asked her to have it approved by the complainant. Because the application
remained unsigned by the latter, it was Joel Cecilio who in the afternoon went to her office for the
approval of the monetized leave, but again, to no avail.12

Accused then personally carried his application to complainant’s office. At that time, complainant
was dictating something to the Secretary and as he was about to give the copy to the Secretary,
complainant got up and grabbed the paper from him and placed it on the right side of her table.13

This angered the accused and he said to complainant, "[i]s this the actuation of the high government
official?" The complainant replied, "Bolang (Insane)." A verbal squabble ensued and the complainant
allegedly said, "nung munta kayo keng municipiyong ayni balamu ninu kayong hari, ala nakong
depatan nung-e gawang pera, sira nako kareng tau." (When you go to the municipal building as if
you are a king, you did nothing except to make money, the people no longer believe in you.)14

Complainant, at that instant, hurled a bottle of coke at petitioner and hit one of the Barangay
Captains then present.15

After trial, the MCTC found petitioner guilty of Grave Oral Defamation and Serious Slander by Deed
in a joint decision dated 26 February 1998. The MCTC held that the statements uttered by petitioner
and the act of making a dirty finger constitute an affront on complainant who, as Vice Mayor and a
lady, deserves greater respect. The MCTC posited that the defense interposed by the petitioner
1avv phil.net

that complainant brought the havoc upon herself when she refused to approve his application for
accrued leave credits monetization cannot be considered as valid to obviate or obliterate the crime
or damage done unto the complainant. The MCTC then held:

With these, this Court finds overwhelming evidence against the accused and as such this Court finds
the accused guilty beyond reasonable doubt of a charged (sic) of Grave Oral Defamation punishable
under Art. 358 of the Revised Penal Code and Slander by Deed punishable under Art. 359 of the
Revised Penal Code. x x x The complainant although she can estimate the value of the moral
damages is entitled to the sum of P50,000.00 and attorney’s fees of P30,000.00 and P1,000.00 as
appearance fee plus litigation expenses.

WHEREFORE, finding the accused guilty beyond reasonable doubt for the offenses or charges
mentioned above, he is hereby sentenced to an imprisonment of FOUR (4) MONTHS and one (1)
day to one (1) year in each case which the accused shall served (at the same time), and to pay by
way of moral damages the sum of P50,000.00 without subsidiary imprisonment in case of insolvency
and litigation expenses and attorneys fees of P30,000.00 plus P1,000.00 per appearance fee.16

Both parties appealed to the RTC of Tarlac, which affirmed petitioner’s conviction, but modified the
penalty and the manner of serving accused’s sentence, and with a substantial increase in the award
of damages. The fallo reads:

WHEREFORE, premises considered, the decision of the Municipal Circuit Trial Court, insofar as it
finds the accused guilty of grave oral defamation in Criminal Case No. 139 and slander by deed in
Criminal Case No. 140 is hereby AFFIRMED with the modification that the accused is to be
sentenced to suffer the indeterminate penalty of imprisonment from three (3) months as minimum to
TWO (2) years and TWO (2) months as maximum in each of the cases, the same to be served
SUCCESSIVELY.

Likewise, the decision of the Municipal Circuit Trial Court is further modified and the accused is
ordered to pay the amount of P100,000.00 as moral damages and another amount of P50,000.00 as
exemplary damages, including the amount of P30,000.00 as attorney’s fees and P1,000.00 per
hearing as appearance fee.17

On appeal, the Court of Appeals affirmed the ruling of the trial court with the modification that the
award of exemplary damages was deleted because according to the Court of Appeals it was
shown from the records that the petitioner himself was a victim of complainant’s indiscretion
for refusing, for no reason at all, to approve petitioner’s application for monetization of his
accrued leave credits. The Court of Appeals disposed as follows:

IN VIEW OF ALL THE FOREGOING, the assailed decision is hereby affirmed with the modification
that the award of exemplary damages is hereby deleted.18

As petitioner’s motion for reconsideration was likewise met with failure, petitioner, in a last stab at
absolution, lodged the present petition for reviewhttp://elibrary.supremecourt.gov.ph/dtSearch/ - _ftn36 on
the following arguments:

I.

The honorable court of appeals gravely erred in ruling on only ONE (1) issue raised by petitioner in
his petition for review and in not ruling squarely on the other FIVE (5) issues, thus, denying petitioner
of his right to be heard and to due process.

II.

III.

IV.

19
The issues are: (1) whether the Court of Appeals erred in sustaining the conviction of petitioner for
grave oral defamation in Criminal Case No. 139-94, and (2) whether the Court of Appeals erred in
sustaining the conviction of petitioner for serious slander by deed in Criminal Case No. 140-94.

Anent the first issue, Article 358 of the Revised Penal Code provides:

Art. 358. Slander. – Oral defamation shall be punished by arresto mayor in its maximum period
to prision correccional in its minimum period if it is of a serious and insulting nature; otherwise, the
penalty shall be arresto menor or a fine not exceeding 200 pesos.

Slander is libel committed by oral (spoken) means, instead of in writing. The term oral defamation or
slander as now understood, has been defined as the speaking of base and defamatory words which
tend to prejudice another in his reputation, office, trade, business or means of livelihood.20

There is grave slander when it is of a serious and insulting nature. The gravity of the oral defamation
depends not only (1) upon the expressions used, but also (2) on the personal relations of the
accused and the offended party, and (3) the circumstances surrounding the case.21 Indeed, it is a
doctrine of ancient respectability that defamatory words will fall under one or the other, depending
not only upon their sense, grammatical significance, and accepted ordinary meaning judging them
separately, but also upon the special circumstances of the case, antecedents or relationship
between the offended party and the offender, which might tend to prove the intention of the offender
at the time.22

In our previous rulings, we held that the social standing and position of the offended party are also
taken into account and thus, it was held that the slander was grave, because the offended party had
held previously the Office of Congressman, Governor, and Senator and was then a candidate for
Vice-President,23 for which no amount of sophistry would take the statement out of the compass of
grave oral defamation.24 However, we have, likewise, ruled in the past that uttering defamatory
words in the heat of anger, with some provocation on the part of the offended party constitutes only
a light felony.25

In the case at bar, as a public official, petitioner, who was holding the position of Councilor at that
time, is hidebound to be an exemplar to society against the use of intemperate language particularly
because the offended party was a Vice-Mayor. However, we cannot keep a blind eye to the fact that
such scathing words were uttered by him in the heat of anger triggered by the fact, as found by
the Court of Appeals, that complainant refused, without valid justification to approve the
monetization of accrued leave credits of petitioner. In a manner of speaking, she sowed the wind
that reaped the storm.

In the words of the Court of Appeals:

The already existing animosity between them does not vest in the complainant the
prerogative to deny petitioner a right to which he was legally entitled. Exemplary damages
cannot be recovered as a matter of right. They are designed to permit the court to mould behavior
that has socially deleterious consequences. Its imposition is required by public policy to suppress the
wanton acts of the offender. It cannot be invoked as a matter of right. x x x 26

The above findings of fact of the Court of Appeals supported by substantial evidence are conclusive
and binding on the parties and are not reviewable by this Court.27 Considering this finding, the Court
of Appeals not only should have struck out the award of exemplary damages but should have
modified as well the offense committed to be of simple nature punishable by arresto mayor or a fine
not exceeding P200.00 under the above-quoted Art. 358 of the Revised Penal Code.
In Pader v. People,28 complainant was conversing with his political leaders at the terrace of his
house at Morong, Bataan, when petitioner appeared at the gate and shouted "putang ina mo Atty.
Escolango. Napakawalanghiya mo!" The latter was dumbfounded and embarrassed. At that time,
Atty. Escolango was a candidate for Vice Mayor of Morong, Bataan in the elections of 8 May 1995.
We held that the offense committed was only slight slander. We explained why in this wise:

The issue is whether petitioner is guilty of slight or serious oral defamation. In resolving the issue, we
are guided by a doctrine of ancient respectability that defamatory words will fall under one or the
other, depending not only upon their sense, grammatical significance, and accepted ordinary
meaning judging them separately, but also upon the special circumstances of the case, antecedents
or relationship between the offended party and the offender, which might tend to prove the intention
of the offender at the time.

Unquestionably, the words uttered were defamatory. Considering, however, the factual backdrop of
the case, the oral defamation was only slight. The trial court, in arriving at its decision, considered
that the defamation was deliberately done to destroy Atty. Escolango’s reputation since the parties
were political opponents.

We do not agree. Somehow, the trial court failed to appreciate the fact that the parties were also
neighbors; that petitioner was drunk at the time he uttered the defamatory words; and the fact that
petitioner’s anger was instigated by what Atty. Escolango did when petitioner’s father died. In
which case, the oral defamation was not of serious or insulting nature.

In Reyes v. People [137 Phil. 112, 120 (1969)], we ruled that the expression "putang ina mo" is a
common enough utterance in the dialect that is often employed, not really to slander but rather to
express anger or displeasure. In fact, more often, it is just an expletive that punctuates one’s
expression of profanity. We do not find it seriously insulting that after a previous incident involving
his father, a drunk Rogelio Pader on seeing Atty. Escolango would utter words expressing anger.
Obviously, the intention was to show his feelings of resentment and not necessarily to insult the
latter. Being a candidate running for vice mayor, occasional gestures and words of disapproval or
dislike of his person are not uncommon.

In similar fashion, the trial court erred in awarding moral damages without proof of suffering.
Accordingly, petitioner may be convicted only of slight oral defamation defined and penalized under
Article 358, Revised Penal Code, prescribing the penalty of arresto mayor or a fine not exceeding
200 pesos.29 (Emphasis supplied.)

Similarly, in Cruz v. Court of Appeals,30 petitioner and complainant, a Municipal Judge, were next
door neighbors. Animosity grew between their two families because of some disputes. Petitioner
resented the practice of complainant of throwing garbage and animal excrement into her premises.
There was also a boundary dispute between petitioner's mother and complainant, which was the
subject of a civil suit for "Recovery of Possession, Ownership, Enforcement of Legal Easement and
Abatement of Nuisance" filed by the mother before the Court of First Instance of Iloilo against
complainant. Additionally, petitioner's mother had previously instituted an administrative complaint
against the complainant before the Supreme Court, but the same was dismissed. There was a pent-
up feeling of being aggrieved, resentment, anger, and vexation on petitioner's part, culminating in
her outburst against complainants. For having called the complainant judge "land grabber,"
"shameless" and "hypocrite," petitioner was charged and subsequently convicted by the Court of
First Instance of three separate offenses of Grave Oral Defamation committed on 5, 6 and 8 August
1976. On appeal, the Court of Appeals affirmed the verdicts of conviction. On review, however, we
held that although the abusive remarks may ordinarily be considered as serious defamation, under
the environmental circumstances of the case, there having been provocation on complainant's part,
and the utterances complained of having been made in the heat of unrestrained anger and
obfuscation, petitioner is liable only for the crime of Slight Oral Defamation. Petitioner was sentenced
to pay a fine of P200.00 in each of the criminal cases, with subsidiary imprisonment in case of
insolvency, and to pay the costs.

Guided by the foregoing precedents, we find petitioner guilty only of slight oral defamation because
of the attendant circumstances in the case at bar.

Lest we be misconstrued, the Court does not condone the vilification or use of scurrilous language
on the part of petitioner, but following the rule that all possible circumstances favorable to the
accused must be taken in his favor, it is our considered view that the slander committed by petitioner
can be characterized as slight slander following the doctrine that uttering defamatory words in the
heat of anger, with some provocation on the part of the offended party, constitutes only a light
felony.31

In fact, to be denied approval of monetization of leave without valid justification, but as an offshoot of
a political dissension may have been vexing for petitioner and may have been perceived by him as
provocation that triggered him to blow his top and utter those disparaging words. In hindsight, to be
denied monetization of leave credits must have stirred upon the petitioner a feeling akin to begging
for money that he was legally entitled to. This oppressive conduct on the part of complainant must
have scarred petitioner’s self-esteem, too, to appear as begging for money. But again, this is not an
excuse to resort to intemperate language no matter how such embarrassment must have wreaked
havoc on his ego.

The next issue that faces this Court is whether or not petitioner’s act of poking a dirty finger at
complainant constitutes grave slander by deed.

Following the same principle as enunciated in our foregoing discussion of the first issue, we find
petitioner guilty only of slight slander by deed in Criminal Case No. 140-94 inasmuch as we find
complainant’s unjust refusal to sign petitioner’s application for monetization and her act of throwing a
coke bottle at him constituted a perceived provocation that triggered the "poking of finger" incident.

Article 359 of the Revised Penal Code provides:

Art. 359. Slander by deed. – The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period or a fine ranging from 200 to 1,000 pesos shall be imposed upon
any person who shall perform any act not included and punished in this title, which shall cast
dishonor, discredit, or contempt upon another person. If said act is not of a serious nature, the
penalty shall be arresto menor or a fine not exceeding 200 pesos.

Slander by deed is a crime against honor, which is committed by performing any act, which casts
dishonor, discredit, or contempt upon another person. The elements are (1) that the offender
performs any act not included in any other crime against honor, (2) that such act is performed in the
presence of other person or persons, and (3) that such act casts dishonor, discredit or contempt
upon the offended party. Whether a certain slanderous act constitutes slander by deed of a serious
nature or not, depends on the social standing of the offended party, the circumstances under which
the act was committed, the occasion, etc.32 It is libel committed by actions rather than words. The
most common examples are slapping someone or spitting on his/her face in front of the public
market, in full view of a crowd, thus casting dishonor, discredit, and contempt upon the person of
another.
In Mari v. Court of Appeals,33 complainant and petitioner were co-employees in the Department of
Agriculture, with office at Digos, Davao del Sur, although complainant occupied a higher position. On
6 December 1991, petitioner borrowed from complainant the records of his 201 file. However, when
he returned the same three days later, complainant noticed that several papers were missing which
included official communications from the Civil Service Commission and Regional Office,
Department of Agriculture, and a copy of the complaint by the Rural Bank of Digos against petitioner.
Upon instruction of her superior officer, complainant sent a memorandum to petitioner asking him to
explain why his 201 file was returned with missing documents. Instead of acknowledging receipt of
the memorandum, petitioner confronted complainant and angrily shouted at her: "Putang ina,
bullshit, bugo." He banged a chair in front of complainant and choked her. With the intervention of
the security guard, petitioner was prevailed upon to desist from further injuring complainant. We
held:

Prescinding from the foregoing, it would serve the ends of justice better if the petitioner were
sentenced to pay a fine instead of imprisonment. The offense while considered serious slander by
deed was done in the heat of anger and was in reaction to a perceived provocation. The penalty for
serious slander by deed may be either imprisonment or a fine. We opt to impose a fine.

ACCORDINGLY, the Court hereby SETS ASIDE the decision of the Court of Appeals and in lieu
thereof renders judgment finding petitioner guilty beyond reasonable doubt of serious slander by
deed defined and penalized under Article 359 of the Revised Penal Code, and sentencing him to pay
a fine of P1,000.00, with subsidiary imprisonment in case of insolvency.34 (Emphasis supplied.)

In Mari, the Court found petitioner guilty of serious slander by deed defined and penalized under
Article 359 of the Revised Penal Code, and sentenced him to pay a fine of P1,000.00, with
subsidiary imprisonment in case of insolvency. The deed involved was the banging of a chair in front
of complainant and choking her.

In another case, Teodoro v. Court of Appeals,35 the incident, which gave rise to this case, is narrated
as follows:

Petitioner Amado B. Teodoro was vice-president and corporate secretary of the DBT-Marbay
Construction, Inc., while complainant, Carolina Tanco-Young, was treasurer of the same corporation.
Petitioner is the brother of the president of the corporation, Donato Teodoro, while complainant is the
daughter of the chairman of the board of the corporation, Agustin Tanco. x x x

Records show that the incident complained of took place at the Board Room of the D.B.T. Mar Bay
Construction Incorporated in the afternoon of August 17, 1984. Present at the meeting were Agustin
Tanco, Chairman of the Board; the President, Donato Teodoro; the accused, Amado Teodoro, as
Corporate Secretary; the complainant, Carolina Tanco-Young who is the Treasurer; and one Oscar
Benares.

xxxx

It appears that there was a controversial document being insisted upon by the accused, as
secretary, to be signed by the chairman. The Board Treasurer, Carolina Tanco-Young questioned
the propriety of having the document signed as there was, according to her, no such meeting that
ever took place as to show a supposed resolution to have been deliberated upon. A verbal exchange
of words and tirades took place between the accused Secretary and the Treasurer. One word led to
another up to the point where Carolina Tanco-Young, the treasurer, either by implication or
expressed domineering words, alluded to the accused as a "falsifier" which blinded the accused-
appellant to extreme anger and rage, thus leading him to slap Tanco-Young — the alleged name
caller.[36](Emphasis supplied.)

This Court in Teodoro held that there was grave slander by deed.

In another case, the acts of pushing and slapping a woman in order to ridicule and shame her before
other people constitute the felony of slander by deed defined and penalized under Article 359 of the
Revised Penal Code by arresto mayor in its maximum period to prision correccional in its minimum
period.37

In the cases as above-cited, there was no provocation on the part of the complainants unlike the
present case. Moreover, the "poking of the finger" in the case at bar was, palpably, of less serious
magnitude compared to the banging of chair, the choking in Mari and the slapping of a face in
Teodoro. Thus, we find that the poking of dirty finger in the case at bar, while it smacks of slander by
deed, is of a lesser magnitude than the acts committed in the foregoing cases.

Moreover, pointing a dirty finger ordinarily connotes the phrase "Fuck You," which is similar to the
expression "Puta" or "Putang Ina mo," in local parlance. Such expression was not held to be libelous
in Reyes v. People,38 where the Court said that: "This is a common enough expression in the dialect
that is often employed, not really to slander but rather to express anger or displeasure. It is seldom,
if ever, taken in its literal sense by the hearer, that is, as a reflection on the virtues of a mother."
Following Reyes, and in light of the fact that there was a perceived provocation coming from
complainant, petitioner’s act of pointing a dirty finger at complainant constitutes simple slander by
deed, it appearing from the factual milieu of the case that the act complained of was employed by
petitioner "to express anger or displeasure" at complainant for procrastinating the approval of his
leave monetization. While it may have cast dishonor, discredit or contempt upon complainant, said
act is not of a serious nature, thus, the penalty shall be arresto menor meaning, imprisonment from
one day to 30 days or a fine not exceeding P200.00. We opt to impose a fine following Mari.39

Yes, complainant was then a Vice-Mayor and a lady at that, which circumstances ordinarily
demanded respect from petitioner. But, it was, likewise, her moral obligation springing from such
position to act in a manner that is worthy of respect. In the case at bar, complainant’s demeanor of
refusing to sign the leave monetization of petitioner, an otherwise valid claim, because of a political
discord smacks of a conduct unbecoming of a lady and a Vice-Mayor at that. Moreover, it appears
that she had, indeed, thrown a bottle of coke at petitioner, which actuation reveals that she, too, had
gone down to petitioner’s level.

Holding an esteemed position is never a license to act capriciously with impunity. The fact that there
was a squabble between petitioner and complainant, both high-ranking local public officials, that a
verbal brawl ostensibly took place, speaks very poorly of their self-control and public relations. For
this, they both deserve to be censured and directed to conduct themselves in a more composed
manner and keep their pose as befits ranking officials who officially deal with the public.40

To be worthy of respect, one must act respectably, remembering always that courtesy begets
courtesy.

Anent the award of damages, the Court of Appeals erred in increasing the award of moral damages
to P100,000.00 in light of its own finding that petitioner himself was "a victim of complainant’s
indiscretion for her refusal, for no reason at all, to approve petitioner’s application for monetization of
his accrued leave credits."
In similar fashion, considering that petitioner and complainant belong to warring political camps,
occasional gestures and words of disapproval or dislike are among the hazards of the
job.41 Considering this political reality and the fact that the Court of Appeals concluded, based on
evidence on records, that petitioner himself was a victim of complainant’s indiscretion, her claim for
damages and attorney’s fees must, likewise, fail. Akin to the principle that "he who comes to court
must have clean hands," each of the parties, in the case at bar, must bear his own loss.

WHEREFORE, premises considered, the decision of the Court of Appeals in CA-G.R. CR No. 22932
is hereby MODIFIED as follows:

1) In Crim. Case No. 139-94, petitioner Noel Villanueva is guilty beyond reasonable doubt of
the crime of slight oral defamation only for which we impose on him a fine of P200.00, with
subsidiary imprisonment in case of insolvency;

2) In Crim. Case No. 140-94, petitioner Noel Villanueva is guilty beyond reasonable doubt of
simple slander by deed for which we impose a fine of P200.00, with subsidiary imprisonment
in case of insolvency;

3) The awards for moral damages and attorney’s fees are DELETED.

Finally, the decision of the Court of Appeals insofar as it deleted the award for exemplary damages
is AFFIRMED. No costs.

so ORDERED.

QUASI OFFENSES

DR. ANTONIO P. CABUGAO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and SPOUSES RODOLFO M. PALMA and ROSARIO F.
PALMA, Respondents.

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

G.R. No. 165805

DR. CLENIO YNZON, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and SPOUSES RODOLFO M. PALMA AND ROSARIO F.
PALMA, Respondents.

DECISION

PERALTA, J.:

Before this Court are appeals via Rule 45 from the Decision1 dated June 4, 2004 of the Court of
Appeals in CA-G.R. CR No. 27293, affirming the Decision2 dated February 28,2003 of the Regional
Trial Court (RTC), convicting appellant Dr. Antonio P. Cabugao (Dr. Cabugao) and Dr. Clenio Ynzon
(Dr. Ynzon) of the crime of Reckless Imprudence Resulting to Homicide.

The Information3 alleged –

That on or about June 17, 2000in the City of Dagupan, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, DR. ANTONIO P.CABUGAO and DR. CLENIO
YNZON, being then the attending physicians of one RODOLFO PALMA, JR., a minor 10 years old,
confederating and acting jointly with one another, did, then and there, willfully, unlawfully and
feloniously fail through negligence, carelessness and imprudence to perform immediate operation
upon their patient, RODOLFO PALMA, JR. of acute appendicitis, when they, the said physicians,
should have been done so considering that examinations conducted upon their patient Rodolfo
Palma, Jr. seriously manifest todo so, causing by such negligence, carelessness, and imprudence
the victim, RODOLFO PALMA JR., to die due to:

"CARDIORESPIRATORY ARREST, METABOLIC ENCEPHALOPATHY, SEPTICEMIA (ACUTE

APPENDICITIS), CEREBRAL ANEURYSM RUPTURED (?)"

As per Certificate of Death issued by accused Dr. Antonio P. Cabugao, to the damage and prejudice
of the legal heirs of said deceased RODOLFO PALMA, JR. and other consequential damages
relative thereto.

CONTRARY to Article 365, 1st par. of the Revised Penal Code.

Dagupan City, Philippines, January 29, 2001.

Arising from the same events, the Court resolved to consolidate these cases.4 The facts, as culled
from the records, are as follows:

On June 14, 2000, at around 4 o'clock in the afternoon, ten (10)-year old Rodolfo F. Palma, Jr. (JR)
complained of abdominal pain to his mother, Rosario Palma. At 5 o’clock that sameafternoon,
Palma's mother and father, Atty. Rodolfo Palma Sr., brought JR to the clinic of accused Dr.
Cabugao. Dr. Cabugao, a general practitioner, specializing in familymedicine gave medicines for the
pain and told Palma's parents to call him up if his stomach pains continue. Due to persistent
abdominal pains, at 4:30 in the early morning of June 15, 2000, they returnedto Dr. Cabugao, who
advised them to bring JR to the Nazareth General Hospital in Dagupan City, for confinement. JR
was admitted at the said hospital at 5:30 in the morning.5

Blood samples were taken from JR for laboratory testing. The complete blood count conveyed the
following result: wbc – 27.80 x 10 9/L; lymphocytes – 0.10 and neutrophils – 0.90. Diagnostic
ultrasound was likewise conducted on the patient's lower abdomen by radiologist, Dr. Ricky V.
Querubin, with the following findings:

Normal liver, bile ducts, gallbladder, pancreas, spleen, kidneys and urinary bladder.

There is no free peritoneal fluid.

There is localized tenderness in the paraumbilical region, more so in the supra and right
paraumbilical areas.

There is a vague elongated hypoechoic focus in the right periumbilical region roughly about 47 x 18
mm surrounded by undistended gas-filled bowels. This is suggestive of an inflammatory process
wherein appendiceal or periappendiceal pathology cannot be excluded. Clinical correlation is
essential."6
Dr. Cabugao did a rectal examination noting the following: "rectal: good sphincter, negative
tenderness, negative mass." The initial impression was Acute Appendicitis,7 and hence, he referred
the case to his co-accused, Dr. Ynzon, a surgeon.8 In the later part of the morning of June 15, 2000,
Dr. Ynzon went to the hospital and readthe CBC and ultrasound results. The administration of
massive antibiotics and pain reliever to JRwere ordered. Thereafter, JR was placed on observation
for twenty-four (24) hours.

In the morning of June 16, 2000, JR complained again of abdominal pain and his parents noticeda
swelling in his scrotum. In the afternoon of the same day, JR vomitted out greenish stuff three (3)
times and had watery bowels also three (3) times. The nurses on-duty relayed JR's condition to Dr.
Ynzon who merely gaveorders via telephone.9Accused continued medications to alleviate JR's
abdominal spasms and diarrhea. By midnight, JR again vomitted twice, had loose bowel movements
and was unable to sleep. The following morning, June 17,2000, JR's condition worsened, he had a
running fever of 38°C. JR's fever remained uncontrolled and he became unconscious, he was given
Aeknil (1 ampule) and Valium (1 ampule). JR's condition continued to deteriorate that by 2 o'clock in
the afternoon, JR's temperature soared to 42°C, had convulsions and finally died.

The Death Certificate10 dated June 19, 2000 prepared by Dr. Cabugao indicated the following causes
of death:

Immediate cause: CARDIORESPIRATORY ARREST

Antecedent cause: METABOLIC ENCEPHALOPATHY

Underlying cause: SEPTICEMIA (ACUTE APPENDICITIS)

Other significant conditionscontributing to death:

CEREBRAL ANEURYSM RUPTURED (?)

No post-mortem examination was conducted on JR. On February 1, 2001, an Information was filed
against accused for reckless imprudence resulting to homicide. At their arraignment, both accused,
duly assisted by counsel, pleaded not guilty to the charge.

On February 28, 2003, in convicting both the accused, the trial court found the following
circumstances as sufficient basis to conclude that accused were indeed negligent in the
performance of their duties:

It is unquestionable that JR was under the medical care of the accused from the time of his
admission for confinement at the Nazareth General Hospital until his death. Upon his admission, the
initial working diagnosis was to consider acute appendicitis. To assist the accused in the
consideration of acute appendicitis, Dr. Cabugao requested for a complete blood count (CBC) and a
diagnostic ultrasound on JR. The findings of the CBC and ultrasound showed that an inflammatory
process or infection was going on inside the body of JR. Said inflammatory process was happening
in the periumbilical region where the appendix could be located. The initial diagnosis of acute
appendicitis appears to be a distinct possibility. x x x.

Dr. Ynzon ordered medications to treat the symptoms being manifested by JR. Thereafter, he
ordered that JR be observed for 24 hours. However, the accused, as the attending physicians, did
not personally monitor JR in order to check on subtle changes that may occur. Rather, they left the
monitoring and actual observation to resident physicians who are just on residency training and in
doing so, they substituted their own expertise, skill and competence with those of physicians who
are merely new doctors still on training. Not having personally observed JR during this 24-hour
critical period of observation, the accused relinquished their duty and thereby were unable to give
the proper and correct evaluation as to the real condition of JR. In situations where massive infection
is going on as shown by the aggressive medication of antibiotics, the condition of the patient is
serious which necessitated personal, not delegated, attention of attending physicians, namely JR
and the accused in this case.

xxxx

Throughout the course of the hospitalization and treatment of JR, the accused failed to address the
acute appendicitis which was the initial diagnosis. They did not take steps to find out if indeed acute
appendicitis was what was causing the massive infection that was ongoing inside the body of JR
even when the inflammatory process was located at the paraumbilical region where the appendix
can be located. x x x

There may have been other diseases but the records do not show that the accused took steps to
find outwhat disease exactly was plaguing JR. It was their duty to find out the disease causing the
health problem of JR, but they did not perform any process of elimination. Appendicitis, according to
expert testimonies, could be eliminated only by surgery but no surgery was done by the accused.
But the accused could not have found out the real disease of JR because they were treating merely
and exclusively the symptoms by means of the different medications to arrest the manifested
symptoms. In fact, by treating the symptoms alone, the accused were recklessly and wantonly
ignoring the same as signs of the graver health problem of JR. This gross negligence on the part of
the accused allowed the infection to spread inside the body of JR unabated. The infection obviously
spread so fastand was so massive that within a period of only two and a half (2 ½) days from the day
of admission to the hospital on June 15, 2000, JR who was otherwise healthy died [of] Septicemia
(Acute Appendicitis) on June 17, 2000.11

On June 4, 2004, in affirming the accused' conviction, the Court of Appeals gave similar
observations, to wit:

The foregoing expert testimony clearly revealed such want of reasonable skill and care on the part of
JR's attending physicians, appellants Dr. Cabugao and Dr. Ynzon in neglecting to monitor effectively
and sufficiently the developments/changes during the observation period and act upon the situation
after said 24-hour period when his abdominal pain subsisted, his condition even worsened with the
appearance of more serious symptoms of nausea, vomiting and diarrhea. Considering the brief visit
only made on regular rounds, the records clearly show such gross negligence in failing to take
appropriate steps to determine the real cause of JR's abdominal pain so that the crucial decision to
perform surgery (appendectomy) had even been ruled out precisely because of the inexcusable
neglect to undertake suchefficient diagnosis by process of elimination, as correctly pointed out by
the trial court. As has been succinctly emphasized by Dr. Mateo, acute appendicitis was the working
diagnosis, and with the emergence of symptoms after the 24-hour observation (high fever, vomiting,
diarrhea) still, appellants ruled out surgery, not even considering exploratory laparoscopy. Dr. Mateo
also expressed the opinion that the decision to operate could have been made after the result of the
ultrasound test, considering that acute appendicitis was the initial diagnosis by Dr. Cabugao after he
had conducted a rectal examination.

Medical records buttress the trial court's finding that in treating JR, appellants have demonstrated
indifference and neglect of the patient's condition as a serious case. Indeed, appendicitis remains a
clinical emergencyand a surgical disease, as correctly underscored by Dr. Mateo, a practicing
surgeon who has already performed over a thousand appendectomy. In fact, appendectomy is the
only rational therapy for acute appendicitis; it avoids clinical deterioration and may avoid chronic or
recurrent appendicitis. Although difficult, prompt recognition and immediate treatment of the disease
prevent complications. Under the factual circumstances, the inaction, neglect and indifference of
appellants who, after the day of admission and after being apprised of the ongoing infection from the
CBC and initial diagnosis as acute appendicitis from rectal examination and ultrasound testand only
briefly visited JR once during regular rounds and gave medication orders by telephone – constitutes
gross negligenceleading to the continued deterioration of the patient, his infection having spread in
sofast a pace that he died within just two and a half (2 ½) days’ stay inthe hospital. Authorities state
that if the clinical picture is unclear a short period of 4 to 6 hours of watchful waiting and a CT scan
may improve diagnostic accuracy and help to hasten diagnosis.Even assuming that JR's case had
an atypical presentation in view of the location of his appendix, laboratory tests could have helped to
confirm diagnosis, as Dr. Mateo opined thatthe possibility of JR having a retrocecal appendicitis
should have been a strong consideration. Lamentably, however, as found by the trial court,
appellants had not taken steps towards correct diagnosis and demonstrated laxity even when JR
was already running a high fever in the morning of June 17, 2000 and continued vomiting with
diarrhea, his abdominal pain becoming more intense. This is the reason why private complainants
were not even apprised of the progress of appellants' diagnosis – appellants have nothing to report
because they did nothing towards the end and merely gave medications to address the symptoms.12

Thus, these appeals brought beforethis Court raising the following arguments:

WHETHER THE CAUSE OF ACCUSATION AS CONTAINED IN THE INFORMATION IS "FAILURE

TO PERFORM IMMEDIATE OPERATION UPON THE PATIENT ROFOLFO PALMA JR. OF ACUTE
APPENDICITIS;

II

WHETHER THE SUBJECT INFORMATION APPEARS TO HAVE ACCUSED BOTH ACCUSED

DOCTORS OF CONSPIRACY AND THE APPEALED DECISION SEEMS TO HAVE TREATED
BOTH ACCUSED DOCTORS TO BE IN CONSPIRACY;

III

WHETHER PETITIONER DR. CABUGAO IS A GENERAL PRACTITIONER (NOT A SURGEON)

AND HAVE EXCLUDED SURGERY FROM THE LIMITS OFHIS PRACTICE, AND IT WAS NOT
AND NEVER HIS DUTY TO OPERATE THE PATIENT RODOLFO PALMA JR., THAT WAS WHY
HE REFERRED SUBJECT PATIENT TO A SURGEON, DR. CLENIO YNZON;

IV

WHETHER THE DEFENSE NEVER STATED THAT THERE IS GUARANTEE THAT DOING
SURGERY WOULD HAVE SAVED THE PATIENT;

WHETHER THE WITNESSES FOR THE PROSECUTION INCLUDING PROSECUTION'S EXPERT

WITNESSES EVER DECLARED/TESTIFIED THAT PETITIONER DR. CABUGAO HAD THE DUTY
TO PERFORM IMMEDIATE OPERATION ON RODOLFO PALMA, JR., AND THEY FAILED TO
STATE/SHOW THAT THE PROXIMATE CAUSE OF DEATH OF JR WAS ACUTE APPENDICITIS;
 VI

WHETHER THE EXPERT WITNESSES PRESENTED BY THE PROSECUTION EVER

QUESTIONED THE MANAGEMENT AND CARE APPLIED BY PETITIONER DR. CABUGAO;

VII

WHETHER THE EXPERT WITNESSES PRESENTED BY THE DEFENSE ARE UNANIMOUS IN

APPROVING THE METHOD OF TREATMENT APPLIED BY BOTH ACCUSED DOCTORS ON
SUBJECT PATIENT, AND THEY DECLARED/AFFIRMED THAT THEY WOULD FIRST PLACE
SUBJECT THE PATIENT UNDER OBSERVATION, AND WOULD NOT PERFORM IMMEDIATE
OPERATION;

VIII

WHETHER THE CONVICTION OF PETITIONER DR. YNZON WAS ESTABLISHED WITH THE
REQUIRED QUANTUM OF PROOF BEYOND REASONABLE DOUBT THAT THE PATIENT WAS
SPECIFICALLY SUFFERING FROM AND DIED OF ACUTE APPENDICITIS; and

IX

WHETHER THE FAILURE TO CONDUCT THE SPECIFIC SURGICAL OPERATION KNOWN AS

APPENDECTOMY CONSTITUTED CRIMINAL NEGLIGENCE.

In a nutshell, the petition brought before this Court raises the issue of whether or not petitioners'
conviction of the crime of reckless imprudence resulting in homicide, arising from analleged medical
malpractice, is supported by the evidence on record.

Worth noting is that the assigned errors are actually factual in nature, which as a general rule,
findings of factof the trial court and the Court of Appeals are binding and conclusiveupon this Court,
and we will not normally disturb such factual findings unless the findings of the court are palpably
unsupported by the evidence on record or unless the judgment itself is based on misapprehension of
facts. Inthe instant case, we find the need to make certain exception.

AS TO DR. YNZON'S LIABILITY:

Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which
material damage results by reason of an inexcusable lack of precautionon the part of the person
performing or failing to perform such act.13 The elements of reckless imprudence are: (1) that the
offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that
it bewithout malice; (4) that material damage results from the reckless imprudence; and (5) that there
is inexcusable lack of precaution on the part of the offender, taking into consideration his
employment or occupation, degree of intelligence, physical condition, and other circumstances
regarding persons, time and place.14

With respect to Dr. Ynzon, all the requisites of the offense have been clearly established by the
evidence on record. The court a quoand the appellate court were one in concluding that Dr. Ynzon
failed to observe the required standard of care expected from doctors.
In the instant case, it was sufficiently established that to prevent certain death, it was necessary to
perform surgery on JR immediately. Even the prosecution’s own expert witness, Dr. Antonio
Mateo,15 testified during cross-examination that he would perform surgery on JR:

ATTY. CASTRO:

Q. Given these data soft non-tender abdomen, ambulatory, watery diarrhea, Exhibit C which is the
ultrasound result, with that laboratory would you operate the patient?

A Yes, I would do surgery.

Q And you should have done surgery with this particular case?"

A Yes, sir.16

xxxx

COURT:

Q You stated a while ago doctor thatyou are going to [do] surgery to the patient, why doctor, if you
are notgoing to do surgery, what will happen?

A If this would be appendicitis, the usual progress would be that it would be ruptured and
generalized peritonitis and eventually septicemia, sir.

Q What do you mean by that doctor?

A That means that infection would spread throughout the body, sir.

Q If unchecked doctor, what will happen?

A It will result to death.17

xxxx

Q And what would have you doneif you entertain other considerations from the time the patient was
admitted?

A From the time the patient was admitted until the report of the sonologist, I would have made a
decision by then.

Q And when to decide the surgery would it be a particular exact time, would it be the same for all
surgeons?

A If you are asking acute appendicitis, it would be about 24 hours because acute appendicitis is a
24-hour disease, sir.

Q. And would it be correct to say that it depends on the changes on the condition of the patient?

A. Yes, sir.
Q. So, are you saying more than 24 hours when there are changes?

A. If there are changes in the patient pointing towards appendicitis then you have to decide right
there and then, sir.

Q. So if there are changes in the patient pointing to appendicitis?

A. It depends now on what you are trying to wait for in the observation period, sir.

Q. So precisely if the change is a condition which bring you in doubt that there is something else
other than appendicitis, would you extend over a period of 24 hours?

A. It depends on the emergent development, sir.

Q. That is the point, if you are the attending physician and there is a change not pointing to
appendicitis, would you extend over a period of 24 hours?

A. In 24 hours you have to decide, sir.

xxxx

Q. And that is based on the assessment of the attending physician?

A. Yes, sir.18

Dr. Mateo further testified on cross-examination:

ATTY. CASTRO:

Q: So you will know yourself, as far as the record is concerned, because if you will agree with me,
you did not even touch the patient?

A. Yes, I based my opinion on what is put on record, sir. The records show that after the observation
period, the abdominal pain is still there plus there are already other signs and symptoms which are
not seen or noted.

Q. But insofar as you yourself not having touched the abdomen of the patient, would you give a
comment on that?

A. Yes, based on the record, after 24 hours of observation, the pain apparently was still there and
there was more vomiting and there was diarrhea. In my personal opinion, I think the condition of the
patient was deteriorating.

Q. Even though you have not touched the patient?

A. I based on what was on the record, sir.19

From the foregoing, it is clear that if JR’s condition remained unchecked it would ultimately result in
his death, as what actually happened in the present case. Another expert witness for the defense,
Dr. Vivencio Villaflor, Jr. testified on direct examination that he would perform a personal and
thorough physical examination of the patient as frequent as every 4 to 6 hours, to wit:

ATTY. CASTRO:

Q. As an expert doctor, if you were faced with a history of abdominal pain with nausea, vomiting,
fever, anurecia (sic), elevated white blood cell count, physical examination of a positive psoas sign,
observation of the sonologist of abdominal tenderness and the ultrasound findings of the probability
of appendiceal (sic) pathology, what will you do if you have faced these problems, Doctor?

A. I will examine the patient thoroughly and it will depend on my physical examination and that
isprobably every 4 to 6 hours, sir.20

On cross-examination, Dr. Villaflor affirmed:

Cross Exam. By Atty. Marteja:

Q. x x x However, there are corrections and admissions made at that time, your Honor, do I
understand thatT/C does not mean ruled out but rather to consider the matter?

A. Yes, now that I have seen the records of the patient, it says here, impression and T/C means to
consider the appendicitis.

Q. Isn't it that it is worth then to say that the initial working diagnosis on Rodolfo Palma, Jr.,
otherwise known as JR, to whom I shall now refer to as JR, the primary consideration then is acute
appendicitis, is that correct to say Doctor?

A. I think so, that is the impression.

Q. x x x Now if it is to be considered as the primary consideration in the initial working diagnosis, isn't
it a fact that it has tobe ruled out in order to consider it as not the disease of JR?

A. Yes. Sir.

Q. Isn't it a fact thatto rule out acute appendicitis as not the disease of JR, surgery or operation must
be done, isn't it Doctor?

A. You have to correlate all the findings.

Q. Is it yes or no, Doctor?

A. Yes.

Q. So, you are saying then that in order to rule out acute appendicitis there must be an operation,
that is right Doctor?

A. No, sir. If your diagnosis is toreally determine if it is an acute appendicitis, you have to operate.21

xxxx
Q. Now Doctor, considering the infection, considering that there was a [symptom] that causes pain,
considering that JR likewise was feverish and that he was vomiting, does that not show a disease of
acute appendicitis Doctor?

A. Its possible.

Q. So that if that is possible, are we getting the impression then Doctor what you have earlier
mentioned that the only way to rule out the suspect which is acute appendicitis is by surgery, you
have said that earlier Doctor, I just want any confirmation of it?

A. Yes, sir.22

Verily, whether a physician or surgeon has exercised the requisite degree of skill and care in the
treatment of his patient is, in the generality of cases, a matter of expert opinion. The deference of
courts to the expert opinions of qualified physicians stems from its realization that the latter possess
unusual technical skills which laymen in most instances are incapable of intelligently
evaluating.23 From the testimonies of the expert witnesses presented, it was irrefutably proven that
Dr. Ynzon failed to practice that degree of skill and care required in the treatment of his patient.

As correctly observed by the appellate court, Dr. Ynzon revealed want of reasonable skill and care in
attending to the needs of JR by neglecting to monitor effectively the developmentsand changes on
JR's condition during the observation period, and to act upon the situation after the 24-hour period
when his abdominal pain persisted and his condition worsened. Lamentable, Dr. Ynzon appeared to
have visited JRbriefly only during regular rounds in the mornings. He was not there during the crucial
times on June 16, 2000 when JR's condition started to deteriorate until JR's death. As the attending
surgeon, he should be primarily responsible in monitoring the condition of JR, as he is in the best
position considering his skills and experience to know if the patient's condition had deteriorated.
While the resident-doctors-onduty could likewise monitor the patient’scondition, he is the one directly
responsible for the patient as the attending surgeon. Indeed, it is reckless and gross negligence of
duty to relegate his personal responsibility to observe the condition of the patient. Again, acute
appendicitis was the working diagnosis, and with the emergence of graver symptoms after the 24-
hour observation, Dr. Ynzon ruled out surgery for no apparent reason. We, likewise, note that the
records are devoid of showing of any reasonable cause which would lead Dr. Ynzon tooverrule
appendectomy despite the initial diagnosis of appendicitis. Neitherwas there any showing that he
was entertaining another diagnosis nor he took appropriate steps towards another diagnosis.

Among the elements constitutive of reckless imprudence, what perhaps is most central to a finding
of guilt is the conclusive determination that the accused has exhibited, by his voluntary act without
malice, an inexcusable lack of precaution. It is that which supplies the criminal intent so
indispensable as tobring an act of mere negligence and imprudence under the operation of the penal
law. This is because a conscious indifference to the consequences of the conduct is all that is
required from the standpoint of the frame of mind of the accused.24 Quasioffenses penalize the
mental attitudeor condition behind the act, the dangerous recklessness, the lack of care or foresight,
the "imprudencia punible," unlike willful offenses which punish the intentional criminal act.25 This is
precisely where this Court found Dr. Ynzon to be guilty of - his seemingly indifference to the
deteriorating condition of JR that he as a consequence, failed to exercise lack of precaution which
eventually led to JR's death.

To be sure, whether or not a physician has committed an "inexcusable lack of precaution" in the
treatment of his patient is to be determined according to the standard of care observed by other
members of the profession in good standing under similar circumstances bearing in mind the
advanced state of the profession at the time of treatment or the present state of medical science. In
accepting a case, a doctor in effect represents that, having the needed training and skill possessed
by physicians and surgeons practicing in the same field, he will employ such training, care and skill
in the treatment of his patients. He, therefore, has a duty to use at least the same level of care that
any other reasonably competent doctor would use to treat a condition under the same
circumstances.26 Sadly, Dr. Ynzon did not display that degree of care and precaution demanded by
the circumstances.

AS TO DR. CABUGAO'S LIABILITY:

Every criminal conviction requires of the prosecution to prove two things — the fact of the crime, i.e.,
the presence of all the elements of the crime for which the accused stands charged, and the fact that
the accused is the perpetrator of the crime. Based on the above disquisitions, however, the
prosecution failed to prove these two things. The Court is not convinced with moral certainty that Dr.
Cabugao isguilty of reckless imprudence as the elements thereof were not proven by the
prosecution beyond a reasonable doubt.

Both the trial court and the appellate court bewail the failure to perform appendectomy on JR, or the
failure to determine the source of infection which caused the deterioration of JR's condition.
However, a review of the records fail to show that Dr. Cabugao is in any position to perform the
required appendectomy.

Immediately apparent from a review of the records of this case is the fact that Dr. Cabugao is not a
surgeon,but a general practitioner specializing in family medicine;27 thus, even if he wanted to, he
cannot do an operation, much less an appendectomy on JR. It is precisely for this reason why he
referred JR to Dr. Ynzon after he suspected appendicitis. Dr. Mateo, the prosecution’s expert
witness, emphasized the role of the surgeon during direct examination, to wit:

ATTY. MARTEJA:

Q. You had mentioned that under this circumstances and condition, you have mentioned that
surgery is the solution, would you have allowed then a 24 hour observation?

A. If there is a lingering doubt, inshort period of observation of 18-24 hours can be allowed provided
that there would be close monitoring of the patient, sir.

Q. Would you please tell us who would be doing the monitoring doctor?

A. The best person should be the first examiner, the best surgeon, sir.

Q. So that would you say that it is incumbent on the surgeon attending to the case to have been the
one to observe within the period of observation?

A. Yes, because he will be in the best position to observe the sudden changes in the condition of the
patient, sir.

Q. And how often would in your experience doctor, how often would the surgeon re-assist (sic) the
condition of the patient during the period of observation?

A. Most foreign authors would recommend every four (4) hours, some centers will recommend
hourly or every two hours but here in the Philippines, would recommend for 4 to 6 hours, sir.28
Dr. Cabugao’s supervision does not cease upon his endorsement of his patient to the surgeon.
Here, Dr. Cabugao has shown to have exerted all efforts to monitor his patient and under these
circumstances he did not have any cause to doubt Dr. Ynzon’s competence and diligence. Expert
testimonies have been offered to prove the circumstances surrounding the case of JR and the need
to perform an operation. Defense witness, Dr. Villaflor, on cross examination testified, to wit:

Q. Isn't it a fact that torule out acute appendicitis as notthe disease of JR, surgery or operation
mustbe done, isn't it Doctor?

A. You have to [correlate] all the findings.

Q. Is it yes or no, Doctor?

A. Yes.

Q. So, you are saying then that in order to rule out acute appendicitis there must be an operation,
that is right Doctor?

A. No, sir. If your diagnosis is to really determine if it is an acute appendicitis, you have to operate.29

xxxx

Q. Now Doctor, considering the infection, considering that there was a [symptom] that causes pain,
considering that JR likewise was feverish and that he was vomitting, does that not show a disease of
acute appendicitis Doctor?

A. It’s possible.

Q. So that if that is possible, are we getting the impression then Doctor what you have earlier
mentioned that the only way to rule out the suspect which is acute appendicitis is by surgery, you
have said that earlier Doctor, I just want any confirmation of it?

A. Yes, sir.30

Neither do we find evidence that Dr. Cabugao has been negligent or lacked the necessary
precaution in his performance of his duty as a family doctor. On the contrary, a perusal ofthe medical
records would show that during the 24-hour monitoring on JR, it was Dr. Cabugao who frequently
made orders on the administration of antibiotics and pain relievers. There was also repetitive
instructions from Dr. Cabugao to refer JR to Dr. Ynzon as it appeared that he is suspecting
appendicitis. The referral of JR to Dr. Ynzon, a surgeon, is actually an exercise of precaution as he
knew that appendicitis is not within his scope of expertise. This clearly showed that he employed the
best of his knowledge and skill in attending to JR's condition, even after the referral of JR to Dr.
Ynzon. To be sure, the calculated assessment of Dr. Cabugao to refer JRto a surgeon who has
sufficient training and experience to handle JR’s case belies the finding that he displayed
inexcusable lack of precaution in handling his patient.31

We likewise note that Dr. Cabugao was out of town when JR's condition began to deteriorate. Even
so, before he left, he made endorsement and notified the resident-doctor and nurses-on-duty that he
will be on leave.
Moreover, while both appeared to be the attending physicians of JR during his hospital confinement,
it cannot be said that the finding of guilt on Dr. Ynzon necessitates the same finding on the co-
accused Dr. Cabugao. Conspiracy is inconsistent with the idea of a felony committed by means of
culpa.32 Thus, the accused-doctors to be found guilty of reckless imprudence resulting in homicide, it
must be shown that both accused-doctors demonstratedan act executed without malice or criminal
intent – but with lack of foresight, carelessness, or negligence. Noteworthy, the evidence on record
clearly points to the reckless imprudence of Dr. Ynzon; however, the same cannot be said in Dr.
Cabugao's case.

AS TO CIVIL LIABILITY

While this case is pending appeal, counsel for petitioner Dr. Ynzon informed the Court that the latter
died on December 23, 2011 due to "multiorgan failure" as evidenced by a copy of death
certificate.33 Thus, the effect of death, pending appeal of his conviction of petitioner Dr. Ynzon with
regard to his criminal and pecuniary liabilities should be in accordance to People v.
Bayotas,34 wherein the Court laid down the rules in case the accused dies prior to final judgment:

1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as
well as the civil liability based solely thereon. As opined by Justice Regalado, in this regard,
"the death of the accused prior to final judgment terminates his criminal liability and only the
civil liability directly arising from and based solely on the offense committed, i.e.,civil liability
ex delictoin senso strictiore."

2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the
same may also be predicated on a source of obligation other than delict. Article 1157 of the
Civil Code enumerates these other sources of obligation fromwhich the civil liability may
arise as a result of the same act or omission:

a) Law

b) Contracts

c) Quasi-contracts

d) x x x x x x x x x

e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for recovery
therefor may be pursued but only by way of filing a separate civil action and subject to
Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended. This separate
civil action may be enforced either againstthe executor/administrator or the estate of the
accused, depending on the source of obligation upon which the same is based as explained
above.

4. Finally, the private offended party need not fear a forfeiture of his right to file this separate
civil action by prescription, in cases where during the prosecution of the criminal action and
prior to its extinction, the private-offended party instituted together therewith the civil action.
In such case, the statute of limitationson the civil liability is deemed interrupted during the
pendency of the criminal case, conformably with provisions of Article 1155 of the Civil Code,
that should thereby avoid any apprehension on a possible privation of right by prescription.35
In view of the foregoing, it is clear that the death of the accused Dr. Ynzon pending appeal of his
conviction extinguishes his criminal liability. However, the recovery of civil liability subsists as the
same is not based on delictbut by contract and the reckless imprudence he was guilty of under
Article 365 of the Revised Penal Code. For this reason, a separate civil action may be enforced
1âw phi 1

either against the executor/administrator or the estate of the accused, depending on the source of
obligation upon which the same is based,36 and in accordance with Section 4, Rule 111 of the Rules
on Criminal Procedure, we quote:

Sec. 4. Effect of death on civil actions. – The death of the accused after arraignment and during the
pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the
independent civil action instituted under section 3 of this Rule or which thereafter is instituted to
enforce liability arising from other sources of obligation may be continued against the estate or legal
representative of the accused after proper substitution or against said estate, as the case may be.
The heirs of the accused may besubstituted for the deceased without requiring the appointment of
an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.

A final judgment entered in favor of the offended party shall be enforced in the manner especially
provided in these rules for prosecuting claims against the estate of the deceased.

If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil
action the offended party may file against the estate of the deceased. (Emphases ours)

In sum, upon the extinction of the criminal liability and the offended party desires to recover
damages from the same act or omission complained of, the party may file a separate civil action
based on the other sources of obligation in accordance with Section 4, Rule 111.37 If the same act or
omission complained of arises from quasi-delict,as in this case, a separate civil action must be filed
against the executor or administrator of the estate of the accused, pursuant to Section 1, Rule 87 of
the Rules of Court:38

Section 1. Actions which may and which may not be brought against executor or administrator. —
No action upon a claim for the recovery of money or debtor interest thereon shall be commenced
against the executor or administrator; but to recover real or personal property, or an interest therein,
from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person
or property, real or personal, may be commenced against him. (Emphases ours)

Conversely, if the offended party desires to recover damages from the same act or omission
complained of arising from contract, the filing of a separate civil action must be filed against the
estate, pursuant to Section 5, Rule 86 of the Rules of Court, to wit:

Section 5. Claims which must be filed under the notice. If not filed, barred; exceptions. — All claims
for money against the decent, arising from contract, express or implied, whether the same be due,
not due, or contingent, all claims for funeral expenses and expense for the last sickness of the
decedent, and judgment for money against the decent, must be filed within the time limited in the
notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any
action that the executor or administrator may bring against the claimants. Where an executor or
administrator commencesan action, or prosecutes an action already commenced by the deceased in
his lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of
presenting them independently to the court as herein provided, and mutual claims may be set off
against each other in such action; and if final judgment is rendered in favor of the defendant, the
amount so determined shall be considered the true balance against the estate, as though the claim
had been presented directly beforethe court in the administration proceedings. Claims not yet due,
or contingent, may be approved at their present value.

As a final note, we reiterate thatthe policy against double recovery requires that only one action be
maintained for the same act or omission whether the action is brought against the executor or
administrator, or the estate.39 The heirs of JR must choose which of the available causes of action for
damages they will bring.

WHEREFORE, premises considered, petitioner DR. ANTONIO P. CABUGAO is hereby

ACQUITTEDof the crime of reckless imprudence resulting to homicide.

Due to the death of accused Dr. Clenio Ynzon prior to the disposition of this case, his criminal
liability is extinguished; however, his civil liability subsists. A separate civil action may be filed either
against the executor/administrator, or the estateof Dr. Ynzon, depending on the source of obligation
upon which the same are based.

SO ORDERED.

JASON IVLER y AGUILAR, Petitioner,

vs.
HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the Metropolitan Trial Court,
Branch 71, Pasig City, and EVANGELINE PONCE, Respondents.

DECISION

CARPIO, J.:

The Case

The petition seeks the review1 of the Orders2 of the Regional Trial Court of Pasig City affirming sub-
silencio a lower court’s ruling finding inapplicable the Double Jeopardy Clause to bar a second
prosecution for Reckless Imprudence Resulting in Homicide and Damage to Property. This, despite
the accused’s previous conviction for Reckless Imprudence Resulting in Slight Physical Injuries
arising from the same incident grounding the second prosecution.

The Facts

Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was charged before
the Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate offenses: (1)
Reckless Imprudence Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries
sustained by respondent Evangeline L. Ponce (respondent Ponce); and (2) Reckless Imprudence
Resulting in Homicide and Damage to Property (Criminal Case No. 82366) for the death of
respondent Ponce’s husband Nestor C. Ponce and damage to the spouses Ponce’s vehicle.
Petitioner posted bail for his temporary release in both cases.

On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No. 82367 and was
meted out the penalty of public censure. Invoking this conviction, petitioner moved to quash the
Information in Criminal Case No. 82366 for placing him in jeopardy of second punishment for the
same offense of reckless imprudence.
The MeTC refused quashal, finding no identity of offenses in the two cases.3

After unsuccessfully seeking reconsideration, petitioner elevated the matter to the Regional Trial
Court of Pasig City, Branch 157 (RTC), in a petition for certiorari (S.C.A. No. 2803). Meanwhile,
petitioner sought from the MeTC the suspension of proceedings in Criminal Case No. 82366,
including the arraignment on 17 May 2005, invoking S.C.A. No. 2803 as a prejudicial question.
Without acting on petitioner’s motion, the MeTC proceeded with the arraignment and, because of
petitioner’s absence, cancelled his bail and ordered his arrest.4 Seven days later, the MeTC issued a
resolution denying petitioner’s motion to suspend proceedings and postponing his arraignment until
after his arrest.5 Petitioner sought reconsideration but as of the filing of this petition, the motion
remained unresolved.

Relying on the arrest order against petitioner, respondent Ponce sought in the RTC the dismissal of
S.C.A. No. 2803 for petitioner’s loss of standing to maintain the suit. Petitioner contested the motion.

The Ruling of the Trial Court

In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly grounding its
ruling on petitioner’s forfeiture of standing to maintain S.C.A. No. 2803 arising from the MeTC’s order
to arrest petitioner for his non-appearance at the arraignment in Criminal Case No. 82366. Thus,
without reaching the merits of S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner
sought reconsideration but this proved unavailing.6

Hence, this petition.

Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803 constrained him to
forego participation in the proceedings in Criminal Case No. 82366. Petitioner distinguishes his case
from the line of jurisprudence sanctioning dismissal of appeals for absconding appellants because
his appeal before the RTC was a special civil action seeking a pre-trial relief, not a post-trial appeal
of a judgment of conviction.7

Petitioner laments the RTC’s failure to reach the merits of his petition in S.C.A. 2803. Invoking
jurisprudence, petitioner argues that his constitutional right not to be placed twice in jeopardy of
punishment for the same offense bars his prosecution in Criminal Case No. 82366, having been
previously convicted in Criminal Case No. 82367 for the same offense of reckless imprudence
charged in Criminal Case No. 82366. Petitioner submits that the multiple consequences of such
crime are material only to determine his penalty.

Respondent Ponce finds no reason for the Court to disturb the RTC’s decision forfeiting petitioner’s
standing to maintain his petition in S.C.A. 2803. On the merits, respondent Ponce calls the Court’s
attention to jurisprudence holding that light offenses (e.g. slight physical injuries) cannot be
complexed under Article 48 of the Revised Penal Code with grave or less grave felonies (e.g.
homicide). Hence, the prosecution was obliged to separate the charge in Criminal Case No. 82366
for the slight physical injuries from Criminal Case No. 82367 for the homicide and damage to
property.

In the Resolution of 6 June 2007, we granted the Office of the Solicitor General’s motion not to file a
comment to the petition as the public respondent judge is merely a nominal party and private
respondent is represented by counsel.

The Issues
Two questions are presented for resolution: (1) whether petitioner forfeited his standing to seek relief
in S.C.A. 2803 when the MeTC ordered his arrest following his non-appearance at the arraignment
in Criminal Case No. 82366; and (2) if in the negative, whether petitioner’s constitutional right under
the Double Jeopardy Clause bars further proceedings in Criminal Case No. 82366.

The Ruling of the Court

We hold that (1) petitioner’s non-appearance at the arraignment in Criminal Case No. 82366 did not
divest him of personality to maintain the petition in S.C.A. 2803; and (2) the protection afforded by
the Constitution shielding petitioner from prosecutions placing him in jeopardy of second punishment
for the same offense bars further proceedings in Criminal Case No. 82366.

Petitioner’s Non-appearance at the Arraignment in

Criminal Case No. 82366 did not Divest him of Standing
to Maintain the Petition in S.C.A. 2803

Dismissals of appeals grounded on the appellant’s escape from custody or violation of the terms of
his bail bond are governed by the second paragraph of Section 8, Rule 124,8 in relation to Section 1,
Rule 125, of the Revised Rules on Criminal Procedure authorizing this Court or the Court of Appeals
to "also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes
from prison or confinement, jumps bail or flees to a foreign country during the pendency of the
appeal." The "appeal" contemplated in Section 8 of Rule 124 is a suit to review judgments of
convictions.

The RTC’s dismissal of petitioner’s special civil action for certiorari to review a pre-arraignment
ancillary question on the applicability of the Due Process Clause to bar proceedings in Criminal
Case No. 82366 finds no basis under procedural rules and jurisprudence. The RTC’s reliance
on People v. Esparas9 undercuts the cogency of its ruling because Esparas stands for a proposition
contrary to the RTC’s ruling. There, the Court granted review to an appeal by an accused who was
sentenced to death for importing prohibited drugs even though she jumped bail pending trial and
was thus tried and convicted in absentia. The Court in Esparas treated the mandatory review of
death sentences under Republic Act No. 7659 as an exception to Section 8 of Rule 124.10

The mischief in the RTC’s treatment of petitioner’s non-appearance at his arraignment in Criminal
Case No. 82366 as proof of his loss of standing becomes more evident when one considers the
Rules of Court’s treatment of a defendant who absents himself from post-arraignment hearings.
Under Section 21, Rule 11411 of the Revised Rules of Criminal Procedure, the defendant’s absence
merely renders his bondsman potentially liable on its bond (subject to cancellation should the
bondsman fail to produce the accused within 30 days); the defendant retains his standing and,
should he fail to surrender, will be tried in absentia and could be convicted or acquitted. Indeed, the
30-day period granted to the bondsman to produce the accused underscores the fact that mere non-
appearance does not ipso facto convert the accused’s status to that of a fugitive without standing.

Further, the RTC’s observation that petitioner provided "no explanation why he failed to attend the
scheduled proceeding"12 at the MeTC is belied by the records. Days before the arraignment,
petitioner sought the suspension of the MeTC’s proceedings in Criminal Case No. 82366 in light of
his petition with the RTC in S.C.A. No. 2803. Following the MeTC’s refusal to defer arraignment (the
order for which was released days after the MeTC ordered petitioner’s arrest), petitioner sought
reconsideration. His motion remained unresolved as of the filing of this petition.

Petitioner’s Conviction in Criminal Case No. 82367

Bars his Prosecution in Criminal Case No. 82366
The accused’s negative constitutional right not to be "twice put in jeopardy of punishment for the
same offense"13protects him from, among others, post-conviction prosecution for the same offense,
with the prior verdict rendered by a court of competent jurisdiction upon a valid information.14 It is not
disputed that petitioner’s conviction in Criminal Case No. 82367 was rendered by a court of
competent jurisdiction upon a valid charge. Thus, the case turns on the question whether Criminal
Case No. 82366 and Criminal Case No. 82367 involve the "same offense." Petitioner adopts the
affirmative view, submitting that the two cases concern the same offense of reckless imprudence.
The MeTC ruled otherwise, finding that Reckless Imprudence Resulting in Slight Physical Injuries is
an entirely separate offense from Reckless Imprudence Resulting in Homicide and Damage to
Property "as the [latter] requires proof of an additional fact which the other does not."15

We find for petitioner.

Reckless Imprudence is a Single Crime,

its Consequences on Persons and
Property are Material Only to Determine
the Penalty

The two charges against petitioner, arising from the same facts, were prosecuted under the same
provision of the Revised Penal Code, as amended, namely, Article 365 defining and penalizing
quasi-offenses. The text of the provision reads:

Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto
mayor in its maximum period to prision correccional in its medium period; if it would have constituted
a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be
imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum
period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would otherwise
constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum
periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed.

When the execution of the act covered by this article shall have only resulted in damage to the
property of another, the offender shall be punished by a fine ranging from an amount equal to the
value of said damages to three times such value, but which shall in no case be less than twenty-five
pesos.

A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by
simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have
constituted a light felony.

In the imposition of these penalties, the court shall exercise their sound discretion, without regard to
the rules prescribed in Article sixty-four.

The provisions contained in this article shall not be applicable:

1. When the penalty provided for the offense is equal to or lower than those provided in the
first two paragraphs of this article, in which case the court shall impose the penalty next
lower in degree than that which should be imposed in the period which they may deem
proper to apply.
 2. When, by imprudence or negligence and with violation of the Automobile Law, to death of
a person shall be caused, in which case the defendant shall be punished by prision
correccional in its medium and maximum periods.

Reckless imprudence consists in voluntary, but without malice, doing or failing to do an act from
which material damage results by reason of inexcusable lack of precaution on the part of the person
performing or failing to perform such act, taking into consideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding persons, time and
place.

Simple imprudence consists in the lack of precaution displayed in those cases in which the damage
impending to be caused is not immediate nor the danger clearly manifest.

The penalty next higher in degree to those provided for in this article shall be imposed upon the
offender who fails to lend on the spot to the injured parties such help as may be in this hand to give.

Structurally, these nine paragraphs are collapsible into four sub-groupings relating to (1) the
penalties attached to the quasi-offenses of "imprudence" and "negligence" (paragraphs 1-2); (2) a
modified penalty scheme for either or both quasi-offenses (paragraphs 3-4, 6 and 9); (3) a generic
rule for trial courts in imposing penalties (paragraph 5); and (4) the definition of "reckless
imprudence" and "simple imprudence" (paragraphs 7-8). Conceptually, quasi-offenses penalize "the
mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the
imprudencia punible,"16 unlike willful offenses which punish the intentional criminal act. These
structural and conceptual features of quasi-offenses set them apart from the mass of intentional
crimes under the first 13 Titles of Book II of the Revised Penal Code, as amended.

Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct species of crime,
separately defined and penalized under the framework of our penal laws, is nothing new. As early as
the middle of the last century, we already sought to bring clarity to this field by rejecting in Quizon v.
Justice of the Peace of Pampanga the proposition that "reckless imprudence is not a crime in itself
but simply a way of committing it x x x"17 on three points of analysis: (1) the object of punishment in
quasi-crimes (as opposed to intentional crimes); (2) the legislative intent to treat quasi-crimes as
distinct offenses (as opposed to subsuming them under the mitigating circumstance of minimal
intent) and; (3) the different penalty structures for quasi-crimes and intentional crimes:

The proposition (inferred from Art. 3 of the Revised Penal Code) that "reckless imprudence" is not a
crime in itself but simply a way of committing it and merely determines a lower degree of criminal
liability is too broad to deserve unqualified assent. There are crimes that by their structure cannot be
committed through imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal
negligence in our Revised Penal Code is treated as a mere quasi offense, and dealt with separately
from willful offenses. It is not a mere question of classification or terminology. In intentional crimes,
the act itself is punished; in negligence or imprudence, what is principally penalized is the mental
attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the
imprudencia punible. x x x x

Were criminal negligence but a modality in the commission of felonies, operating only to reduce the
penalty therefor, then it would be absorbed in the mitigating circumstances of Art. 13, specially the
lack of intent to commit so grave a wrong as the one actually committed. Furthermore, the theory
would require that the corresponding penalty should be fixed in proportion to the penalty prescribed
for each crime when committed willfully. For each penalty for the willful offense, there would then be
a corresponding penalty for the negligent variety. But instead, our Revised Penal Code (Art. 365)
fixes the penalty for reckless imprudence at arresto mayor maximum, to prision correccional
[medium], if the willful act would constitute a grave felony, notwithstanding that the penalty for the
latter could range all the way from prision mayor to death, according to the case. It can be seen that
the actual penalty for criminal negligence bears no relation to the individual willful crime, but is set in
relation to a whole class, or series, of crimes.18 (Emphasis supplied)

This explains why the technically correct way to allege quasi-crimes is to state that their commission
results in damage, either to person or property.19

Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to hear a case for
"Damage to Property through Reckless Imprudence," its jurisdiction being limited to trying charges
for Malicious Mischief, an intentional crime conceptually incompatible with the element of
imprudence obtaining in quasi-crimes.

Quizon, rooted in Spanish law20 (the normative ancestry of our present day penal code) and since
repeatedly reiterated,21 stands on solid conceptual foundation. The contrary doctrinal pronouncement
in People v. Faller22 that "[r]eckless impudence is not a crime in itself x x x [but] simply a way of
committing it x x x,"23 has long been abandoned when the Court en banc promulgated Quizon in
1955 nearly two decades after the Court decided Faller in 1939. Quizon rejected Faller’s
conceptualization of quasi-crimes by holding that quasi-crimes under Article 365 are distinct species
of crimes and not merely methods of committing crimes. Faller found expression in post-Quizon
jurisprudence24 only by dint of lingering doctrinal confusion arising from an indiscriminate fusion of
criminal law rules defining Article 365 crimes and the complexing of intentional crimes under Article
48 of the Revised Penal Code which, as will be shown shortly, rests on erroneous conception of
quasi-crimes. Indeed, the Quizonian conception of quasi-crimes undergirded a related branch of
jurisprudence applying the Double Jeopardy Clause to quasi-offenses, barring second prosecutions
for a quasi-offense alleging one resulting act after a prior conviction or acquittal of a quasi-offense
alleging another resulting act but arising from the same reckless act or omission upon which the
second prosecution was based.

Prior Conviction or Acquittal of

Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense

The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not
merely a means to commit other crimes such that conviction or acquittal of such quasi-offense bars
subsequent prosecution for the same quasi-offense, regardless of its various resulting acts,
undergirded this Court’s unbroken chain of jurisprudence on double jeopardy as applied to Article
365 starting with People v. Diaz,25 decided in 1954. There, a full Court, speaking through Mr. Justice
Montemayor, ordered the dismissal of a case for "damage to property thru reckless imprudence"
because a prior case against the same accused for "reckless driving," arising from the same act
upon which the first prosecution was based, had been dismissed earlier. Since then, whenever the
same legal question was brought before the Court, that is, whether prior conviction or acquittal of
reckless imprudence bars subsequent prosecution for the same quasi-offense, regardless of the
consequences alleged for both charges, the Court unfailingly and consistently answered in the
affirmative in People v. Belga26 (promulgated in 1957 by the Court en banc, per Reyes, J.), Yap v.
Lutero27 (promulgated in 1959, unreported, per Concepcion, J.), People v. Narvas28 (promulgated in
1960 by the Court en banc, per Bengzon J.), People v. Silva29 (promulgated in 1962 by the Court en
banc, per Paredes, J.), People v. Macabuhay30 (promulgated in 1966 by the Court en banc, per
Makalintal, J.), People v. Buan31 (promulgated in 1968 by the Court en banc, per Reyes, J.B.L.,
acting C. J.), Buerano v. Court of Appeals32 (promulgated in 1982 by the Court en banc, per Relova,
J.), and People v. City Court of Manila33 (promulgated in 1983 by the First Division, per Relova, J.).
These cases uniformly barred the second prosecutions as constitutionally impermissible under the
Double Jeopardy Clause.

The reason for this consistent stance of extending the constitutional protection under the Double
Jeopardy Clause to quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in Buan, where,
in barring a subsequent prosecution for "serious physical injuries and damage to property thru
reckless imprudence" because of the accused’s prior acquittal of "slight physical injuries thru
reckless imprudence," with both charges grounded on the same act, the Court explained:34

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless
imprudence, the accused may not be prosecuted again for that same act. For the essence of the
quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the
execution of an imprudent or negligent act that, if intentionally done, would be punishable as a
felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the
consequence is only taken into account to determine the penalty, it does not qualify the substance of
the offense. And, as the careless act is single, whether the injurious result should affect one person
or several persons, the offense (criminal negligence) remains one and the same, and can not be
split into different crimes and prosecutions.35 x x x (Emphasis supplied)

Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical conclusion
the reasoning of Quizon.

There is in our jurisprudence only one ruling going against this unbroken line of authority. Preceding
Diaz by more than a decade, El Pueblo de Filipinas v. Estipona,36 decided by the pre-war colonial
Court in November 1940, allowed the subsequent prosecution of an accused for reckless
imprudence resulting in damage to property despite his previous conviction for multiple physical
injuries arising from the same reckless operation of a motor vehicle upon which the second
prosecution was based. Estipona’s inconsistency with the post-war Diaz chain of jurisprudence
suffices to impliedly overrule it. At any rate, all doubts on this matter were laid to rest in 1982 in
Buerano.37 There, we reviewed the Court of Appeals’ conviction of an accused for "damage to
property for reckless imprudence" despite his prior conviction for "slight and less serious physical
injuries thru reckless imprudence," arising from the same act upon which the second charge was
based. The Court of Appeals had relied on Estipona. We reversed on the strength of Buan:38

Th[e] view of the Court of Appeals was inspired by the ruling of this Court in the pre-war case of
People vs. Estipona decided on November 14, 1940. However, in the case of People vs. Buan, 22
SCRA 1383 (March 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held that –

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless
imprudence, the accused may not be prosecuted again for that same act. For the essence of the
quasi offense of criminal negligence under Article 365 of the Revised Penal Code lies in the
execution of an imprudent or negligent act that, if intentionally done, would be punishable as a
felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the
consequence is only taken into account to determine the penalty, it does not qualify the substance of
the offense. And, as the careless act is single, whether the injurious result should affect one person
or several persons, the offense (criminal negligence) remains one and the same, and can not be
split into different crimes and prosecutions.

xxxx

. . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace (now Municipal) Court
of Guiguinto, Bulacan, of the charge of slight physical injuries through reckless imprudence, prevents
his being prosecuted for serious physical injuries through reckless imprudence in the Court of First
Instance of the province, where both charges are derived from the consequences of one and the
same vehicular accident, because the second accusation places the appellant in second jeopardy
for the same offense.39 (Emphasis supplied)

Thus, for all intents and purposes, Buerano had effectively overruled Estipona.

It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier stance in Silva,
joined causes with the accused, a fact which did not escape the Court’s attention:

Then Solicitor General, now Justice Felix V. Makasiar, in his MANIFESTATION dated December 12,
1969 (page 82 of the Rollo) admits that the Court of Appeals erred in not sustaining petitioner’s plea
of double jeopardy and submits that "its affirmatory decision dated January 28, 1969, in Criminal
Case No. 05123-CR finding petitioner guilty of damage to property through reckless imprudence
should be set aside, without costs." He stressed that "if double jeopardy exists where the reckless
act resulted into homicide and physical injuries. then the same consequence must perforce follow
where the same reckless act caused merely damage to property-not death-and physical injuries.
Verily, the value of a human life lost as a result of a vehicular collision cannot be equated with any
amount of damages caused to a motors vehicle arising from the same mishap."40 (Emphasis
supplied)

Hence, we find merit in petitioner’s submission that the lower courts erred in refusing to extend in his
favor the mantle of protection afforded by the Double Jeopardy Clause. A more fitting jurisprudence
could not be tailored to petitioner’s case than People v. Silva, 41 a Diaz progeny. There, the accused,
who was also involved in a vehicular collision, was charged in two separate Informations with "Slight
Physical Injuries thru Reckless Imprudence" and "Homicide with Serious Physical Injuries thru
Reckless Imprudence." Following his acquittal of the former, the accused sought the quashal of the
latter, invoking the Double Jeopardy Clause. The trial court initially denied relief, but, on
reconsideration, found merit in the accused’s claim and dismissed the second case. In affirming the
trial court, we quoted with approval its analysis of the issue following Diaz and its progeny People v.
Belga:42

On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and dismissed the case,
holding: —

[T]he Court believes that the case falls squarely within the doctrine of double jeopardy enunciated in
People v. Belga, x x x In the case cited, Ciriaco Belga and Jose Belga were charged in the Justice of
the Peace Court of Malilipot, Albay, with the crime of physical injuries through reckless imprudence
arising from a collision between the two automobiles driven by them (Crim. Case No. 88). Without
the aforesaid complaint having been dismissed or otherwise disposed of, two other criminal
complaints were filed in the same justice of the peace court, in connection with the same collision
one for damage to property through reckless imprudence (Crim. Case No. 95) signed by the owner
of one of the vehicles involved in the collision, and another for multiple physical injuries through
reckless imprudence (Crim. Case No. 96) signed by the passengers injured in the accident. Both of
these two complaints were filed against Jose Belga only. After trial, both defendants were acquitted
of the charge against them in Crim. Case No. 88. Following his acquittal, Jose Belga moved to
quash the complaint for multiple physical injuries through reckless imprudence filed against him by
the injured passengers, contending that the case was just a duplication of the one filed by the Chief
of Police wherein he had just been acquitted. The motion to quash was denied and after trial Jose
Belga was convicted, whereupon he appealed to the Court of First Instance of Albay. In the
meantime, the case for damage to property through reckless imprudence filed by one of the owners
of the vehicles involved in the collision had been remanded to the Court of First Instance of Albay
after Jose Belga had waived the second stage of the preliminary investigation. After such remand,
the Provincial Fiscal filed in the Court of First Instance two informations against Jose Belga, one for
physical injuries through reckless imprudence, and another for damage to property through reckless
imprudence. Both cases were dismissed by the Court of First Instance, upon motion of the
defendant Jose Belga who alleged double jeopardy in a motion to quash. On appeal by the Prov.
Fiscal, the order of dismissal was affirmed by the Supreme Court in the following language: .

The question for determination is whether the acquittal of Jose Belga in the case filed by the chief of
police constitutes a bar to his subsequent prosecution for multiple physical injuries and damage to
property through reckless imprudence.

In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30, 1954, the accused was
charged in the municipal court of Pasay City with reckless driving under sec. 52 of the Revised
Motor Vehicle Law, for having driven an automobile in a ῾fast and reckless manner ... thereby
causing an accident.’ After the accused had pleaded not guilty the case was dismissed in that court
῾for failure of the Government to prosecute’. But some time thereafter the city attorney filed an
information in the Court of First Instance of Rizal, charging the same accused with damage to
property thru reckless imprudence. The amount of the damage was alleged to be ₱249.50. Pleading
double jeopardy, the accused filed a motion, and on appeal by the Government we affirmed the
ruling. Among other things we there said through Mr. Justice Montemayor —

The next question to determine is the relation between the first offense of violation of the Motor
Vehicle Law prosecuted before the Pasay City Municipal Court and the offense of damage to
property thru reckless imprudence charged in the Rizal Court of First Instance. One of the tests of
double jeopardy is whether or not the second offense charged necessarily includes or is necessarily
included in the offense charged in the former complaint or information (Rule 113, Sec. 9). Another
test is whether the evidence which proves one would prove the other that is to say whether the facts
alleged in the first charge if proven, would have been sufficient to support the second charge and
vice versa; or whether one crime is an ingredient of the other. x x x

xxxx

The foregoing language of the Supreme Court also disposes of the contention of the prosecuting
attorney that the charge for slight physical injuries through reckless imprudence could not have been
joined with the charge for homicide with serious physical injuries through reckless imprudence in this
case, in view of the provisions of Art. 48 of the Revised Penal Code, as amended. The prosecution’s
contention might be true. But neither was the prosecution obliged to first prosecute the accused for
slight physical injuries through reckless imprudence before pressing the more serious charge of
homicide with serious physical injuries through reckless imprudence. Having first prosecuted the
defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which
acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the
more serious charge of homicide with serious physical injuries through reckless imprudence which
arose out of the same alleged reckless imprudence of which the defendant have been previously
cleared by the inferior court.43

Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and hence, Diaz) "for
the purpose of delimiting or clarifying its application."44 We declined the invitation, thus:

The State in its appeal claims that the lower court erred in dismissing the case, on the ground of
double jeopardy, upon the basis of the acquittal of the accused in the JP court for Slight Physical
Injuries, thru Reckless Imprudence. In the same breath said State, thru the Solicitor General, admits
that the facts of the case at bar, fall squarely on the ruling of the Belga case x x x, upon which the
order of dismissal of the lower court was anchored. The Solicitor General, however, urges a re-
examination of said ruling, upon certain considerations for the purpose of delimiting or clarifying its
application. We find, nevertheless, that further elucidation or disquisition on the ruling in the Belga
case, the facts of which are analogous or similar to those in the present case, will yield no practical
advantage to the government. On one hand, there is nothing which would warrant a delimitation or
clarification of the applicability of the Belga case. It was clear. On the other, this Court has reiterated
the views expressed in the Belga case, in the identical case of Yap v. Hon. Lutero, etc., L-12669,
April 30, 1959.45 (Emphasis supplied)

Article 48 Does not Apply to Acts Penalized

Under Article 365 of the Revised Penal Code

The confusion bedeviling the question posed in this petition, to which the MeTC succumbed, stems
from persistent but awkward attempts to harmonize conceptually incompatible substantive and
procedural rules in criminal law, namely, Article 365 defining and penalizing quasi-offenses and
Article 48 on complexing of crimes, both under the Revised Penal Code. Article 48 is a procedural
device allowing single prosecution of multiple felonies falling under either of two categories: (1) when
a single act constitutes two or more grave or less grave felonies (thus excluding from its operation
light felonies46); and (2) when an offense is a necessary means for committing the other. The
legislature crafted this procedural tool to benefit the accused who, in lieu of serving multiple
penalties, will only serve the maximum of the penalty for the most serious crime.

In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but "the mental
attitude x x x behind the act, the dangerous recklessness, lack of care or foresight x x x,"47 a single
mental attitude regardless of the resulting consequences. Thus, Article 365 was crafted as one
quasi-crime resulting in one or more consequences.

Ordinarily, these two provisions will operate smoothly. Article 48 works to combine in a single
prosecution multiple intentional crimes falling under Titles 1-13, Book II of the Revised Penal Code,
when proper; Article 365 governs the prosecution of imprudent acts and their consequences.
However, the complexities of human interaction can produce a hybrid quasi-offense not falling under
either models – that of a single criminal negligence resulting in multiple non-crime damages to
persons and property with varying penalties corresponding to light, less grave or grave offenses. The
ensuing prosecutorial dilemma is obvious: how should such a quasi-crime be prosecuted? Should
Article 48’s framework apply to "complex" the single quasi-offense with its multiple (non-criminal)
consequences (excluding those amounting to light offenses which will be tried separately)? Or
should the prosecution proceed under a single charge, collectively alleging all the consequences of
the single quasi-crime, to be penalized separately following the scheme of penalties under Article
365?

Jurisprudence adopts both approaches. Thus, one line of rulings (none of which involved the issue
of double jeopardy) applied Article 48 by "complexing" one quasi-crime with its multiple
consequences48 unless one consequence amounts to a light felony, in which case charges were split
by grouping, on the one hand, resulting acts amounting to grave or less grave felonies and filing the
charge with the second level courts and, on the other hand, resulting acts amounting to light felonies
and filing the charge with the first level courts.49 Expectedly, this is the approach the MeTC impliedly
sanctioned (and respondent Ponce invokes), even though under Republic Act No. 7691,50 the MeTC
has now exclusive original jurisdiction to impose the most serious penalty under Article 365 which is
prision correccional in its medium period.

Under this approach, the issue of double jeopardy will not arise if the "complexing" of acts penalized
under Article 365 involves only resulting acts penalized as grave or less grave felonies because
there will be a single prosecution of all the resulting acts. The issue of double jeopardy arises if one
of the resulting acts is penalized as a light offense and the other acts are penalized as grave or less
grave offenses, in which case Article 48 is not deemed to apply and the act penalized as a light
offense is tried separately from the resulting acts penalized as grave or less grave offenses.

The second jurisprudential path nixes Article 48 and sanctions a single prosecution of all the effects
of the quasi-crime collectively alleged in one charge, regardless of their number or
severity,51 penalizing each consequence separately. Thus, in Angeles v. Jose,52 we interpreted
paragraph three of Article 365, in relation to a charge alleging "reckless imprudence resulting in
damage to property and less serious physical injuries," as follows:

[T]he third paragraph of said article, x x x reads as follows:

When the execution of the act covered by this article shall have only resulted in damage to the
property of another, the offender shall be punished by a fine ranging from an amount equal to the
value of said damage to three times such value, but which shall in no case be less than 25 pesos.

The above-quoted provision simply means that if there is only damage to property the amount fixed
therein shall be imposed, but if there are also physical injuries there should be an additional penalty
for the latter. The information cannot be split into two; one for the physical injuries, and another for
the damage to property, x x x.53 (Emphasis supplied)

By "additional penalty," the Court meant, logically, the penalty scheme under Article 365.

Evidently, these approaches, while parallel, are irreconcilable. Coherence in this field demands
choosing one framework over the other. Either (1) we allow the "complexing" of a single quasi-crime
by breaking its resulting acts into separate offenses (except for light felonies), thus re-conceptualize
a quasi-crime, abandon its present framing under Article 365, discard its conception under the
Quizon and Diaz lines of cases, and treat the multiple consequences of a quasi-crime as separate
intentional felonies defined under Titles 1-13, Book II under the penal code; or (2) we forbid the
application of Article 48 in the prosecution and sentencing of quasi-crimes, require single
prosecution of all the resulting acts regardless of their number and severity, separately penalize
each as provided in Article 365, and thus maintain the distinct concept of quasi-crimes as crafted
under Article 365, articulated in Quizon and applied to double jeopardy adjudication in the Diaz line
of cases.1avvphi 1

A becoming regard of this Court’s place in our scheme of government denying it the power to make
laws constrains us to keep inviolate the conceptual distinction between quasi-crimes and intentional
felonies under our penal code. Article 48 is incongruent to the notion of quasi-crimes under Article
365. It is conceptually impossible for a quasi-offense to stand for (1) a single act constituting two or
more grave or less grave felonies; or (2) an offense which is a necessary means for committing
another. This is why, way back in 1968 in Buan, we rejected the Solicitor General’s argument that
double jeopardy does not bar a second prosecution for slight physical injuries through reckless
imprudence allegedly because the charge for that offense could not be joined with the other charge
for serious physical injuries through reckless imprudence following Article 48 of the Revised Penal
Code:

The Solicitor General stresses in his brief that the charge for slight physical injuries through reckless
imprudence could not be joined with the accusation for serious physical injuries through reckless
imprudence, because Article 48 of the Revised Penal Code allows only the complexing of grave or
less grave felonies. This same argument was considered and rejected by this Court in the case of
People vs. [Silva] x x x:
[T]he prosecution’s contention might be true. But neither was the prosecution obliged to first
prosecute the accused for slight physical injuries through reckless imprudence before pressing the
more serious charge of homicide with serious physical injuries through reckless imprudence. Having
first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of
Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a
position to press in this case the more serious charge of homicide with serious physical injuries
through reckless imprudence which arose out of the same alleged reckless imprudence of which the
defendant has been previously cleared by the inferior court.

[W]e must perforce rule that the exoneration of this appellant x x x by the Justice of the Peace x x x
of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted
for serious physical injuries through reckless imprudence in the Court of First Instance of the
province, where both charges are derived from the consequences of one and the same vehicular
accident, because the second accusation places the appellant in second jeopardy for the same
offense.54 (Emphasis supplied)

Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of charges under
Article 365, irrespective of the number and severity of the resulting acts, rampant occasions of
constitutionally impermissible second prosecutions are avoided, not to mention that scarce state
resources are conserved and diverted to proper use.

Hence, we hold that prosecutions under Article 365 should proceed from a single charge regardless
of the number or severity of the consequences. In imposing penalties, the judge will do no more than
apply the penalties under Article 365 for each consequence alleged and proven. In short, there shall
be no splitting of charges under Article 365, and only one information shall be filed in the same first
level court.55

Our ruling today secures for the accused facing an Article 365 charge a stronger and simpler
protection of their constitutional right under the Double Jeopardy Clause. True, they are thereby
denied the beneficent effect of the favorable sentencing formula under Article 48, but any
disadvantage thus caused is more than compensated by the certainty of non-prosecution for quasi-
crime effects qualifying as "light offenses" (or, as here, for the more serious consequence
prosecuted belatedly). If it is so minded, Congress can re-craft Article 365 by extending to quasi-
crimes the sentencing formula of Article 48 so that only the most severe penalty shall be imposed
under a single prosecution of all resulting acts, whether penalized as grave, less grave or light
offenses. This will still keep intact the distinct concept of quasi-offenses. Meanwhile, the lenient
schedule of penalties under Article 365, befitting crimes occupying a lower rung of culpability, should
cushion the effect of this ruling.

WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February 2006 and 2
May 2006 of the Regional Trial Court of Pasig City, Branch 157. We DISMISS the Information in
Criminal Case No. 82366 against petitioner Jason Ivler y Aguilar pending with the Metropolitan Trial
Court of Pasig City, Branch 71 on the ground of double jeopardy.

Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of
Representatives.

SO ORDERED.

JOHN ERIC LONEY, STEVEN PAUL REID and PEDRO B. HERNANDEZ, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
 DECISION

CARPIO, J.:

The Case

This is a petition for review1 of the Decision2 dated 5 November 2001 and the Resolution dated 14
March 2002 of the Court of Appeals. The 5 November 2001 Decision affirmed the ruling of the
Regional Trial Court, Boac, Marinduque, Branch 94, in a suit to quash Informations filed against
petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez ("petitioners"). The 14
March 2002 Resolution denied petitioners’ motion for reconsideration.

The Facts

Petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez are the President and Chief
Executive Officer, Senior Manager, and Resident Manager for Mining Operations, respectively, of
Marcopper Mining Corporation ("Marcopper"), a corporation engaged in mining in the province of
Marinduque.

Marcopper had been storing tailings3 from its operations in a pit in Mt. Tapian, Marinduque. At the
base of the pit ran a drainage tunnel leading to the Boac and Makalupnit rivers. It appears that
Marcopper had placed a concrete plug at the tunnel’s end. On 24 March 1994, tailings gushed out of
or near the tunnel’s end. In a few days, the Mt. Tapian pit had discharged millions of tons of tailings
into the Boac and Makalupnit rivers.

In August 1996, the Department of Justice separately charged petitioners in the Municipal Trial Court
of Boac, Marinduque ("MTC") with violation of Article 91(B),4 sub-paragraphs 5 and 6 of Presidential
Decree No. 1067 or the Water Code of the Philippines ("PD 1067"),5 Section 86 of Presidential
Decree No. 984 or the National Pollution Control Decree of 1976 ("PD 984"),7 Section 1088 of
Republic Act No. 7942 or the Philippine Mining Act of 1995 ("RA 7942"),9 and Article 36510 of the
Revised Penal Code ("RPC") for Reckless Imprudence Resulting in Damage to Property.11

Petitioners moved to quash the Informations on the following grounds: (1) the Informations were
"duplicitous" as the Department of Justice charged more than one offense for a single act; (2)
petitioners John Eric Loney and Steven Paul Reid were not yet officers of Marcopper when the
incident subject of the Informations took place; and (3) the Informations contain allegations which
constitute legal excuse or justification.

The Ruling of the MTC

In its Joint Order of 16 January 1997 ("Joint Order"), the MTC12 initially deferred ruling on petitioners’
motion for lack of "indubitable ground for the quashing of the [I]nformations x x x." The MTC
scheduled petitioners’ arraignment in February 1997. However, on petitioners’ motion, the MTC
issued a Consolidated Order on 28 April 1997 ("Consolidated Order"), granting partial
reconsideration to its Joint Order and quashing the Informations for violation of PD 1067 and PD
984. The MTC maintained the Informations for violation of RA 7942 and Article 365 of the RPC. The
MTC held:

[T]he 12 Informations have common allegations of pollutants pointing to "mine tailings" which were
precipitately discharged into the Makulapnit and Boac Rivers due to breach caused on the Tapian
drainage/tunnel due to negligence or failure to institute adequate measures to prevent pollution and
siltation of the Makulapnit and Boac River systems, the very term and condition required to be
undertaken under the Environmental Compliance Certificate issued on April 1, 1990.

The allegations in the informations point to same set [sic] of evidence required to prove the single
fact of pollution constituting violation of the Water Code and the Pollution Law which are the same
set of evidence necessary to prove the same single fact of pollution, in proving the elements
constituting violation of the conditions of ECC, issued pursuant to the Philippine Mining Act. In both
instances, the terms and conditions of the Environmental Compliance Certificate were allegedly
violated. In other words, the same set of evidence is required in proving violations of the three (3)
special laws.

After carefully analyzing and weighing the contending arguments of the parties and after taking into
consideration the applicable laws and jurisprudence, the Court is convinced that as far as the three
(3) aforesaid laws are concerned, only the Information for [v]iolation of Philippine Mining Act should
be maintained. In other words, the Informations for [v]iolation of Anti-Pollution Law (PD 984) and the
Water Code (PD 1067) should be dismissed/quashed because the elements constituting the
aforesaid violations are absorbed by the same elements which constitute violation of the Philippine
Mining Act (RA 7942).

Therefore, x x x Criminal Case[] Nos. 96-44, 96-45 and 96-46 for [v]iolation of the Water Code; and
Criminal Case[] Nos. 96-47, 96-48 and 96-49 for [v]iolation of the Anti-Pollution Law x x x are hereby
DISMISSED or QUASHED and Criminal Case[] Nos. 96-50, 96-51 and 96-52 for [v]iolation of the
Philippine Mining Act are hereby retained to be tried on the merits.

The Information for [v]iolation of Article 365 of the Revised Penal Code should also be maintained
and heard in a full blown trial because the common accusation therein is reckless imprudence
resulting to [sic] damage to property. It is the damage to property which the law punishes not the
negligent act of polluting the water system. The prosecution for the [v]iolation of Philippine Mining
Act is not a bar to the prosecution for reckless imprudence resulting to [sic] damage to property.13

The MTC re-scheduled petitioners’ arraignment on the remaining charges on 28 and 29 May 1997.
In the hearing of 28 May 1997, petitioners manifested that they were willing to be arraigned on the
charge for violation of Article 365 of the RPC but not on the charge for violation of RA 7942 as they
intended to appeal the Consolidated Order in so far as it maintained the Informations for that
offense. After making of record petitioners’ manifestation, the MTC proceeded with the arraignment
and ordered the entry of "not guilty" pleas on the charges for violation of RA 7942 and Article 365 of
the RPC.

Petitioners subsequently filed a petition for certiorari with the Regional Trial Court, Boac,
Marinduque, assailing that portion of the Consolidated Order maintaining the Informations for
violation of RA 7942. Petitioners’ petition was raffled to Branch 94. For its part, public respondent
filed an ordinary appeal with the same court assailing that portion of the Consolidated Order
quashing the Informations for violation of PD 1067 and PD 984. Public respondent’s appeal was
raffled to Branch 38. On public respondent’s motion, Branch 38 ordered public respondent’s appeal
consolidated with petitioners’ petition in Branch 94.

The Ruling of Branch 94

In its Resolution14 of 20 March 1998, Branch 94 granted public respondent’s appeal but denied
petitioners’ petition. Branch 94 set aside the Consolidated Order in so far as it quashed the
Informations for violation of PD 1067 and PD 984 and ordered those charges reinstated. Branch 94
affirmed the Consolidated Order in all other respects. Branch 94 held:
After a careful perusal of the laws concerned, this court is of the opinion that there can be no
absorption by one offense of the three other offenses, as [the] acts penalized by these laws are
separate and distinct from each other. The elements of proving each violation are not the same with
each other. Concededly, the single act of dumping mine tailings which resulted in the pollution of the
Makulapnit and Boac rivers was the basis for the information[s] filed against the accused each
charging a distinct offense. But it is also a well-established rule in this jurisdiction that –

"A single act may offend against two or more entirely distinct and unrelated provisions of law, and if
one provision requires proof of an additional fact or element which the other does not, an acquittal or
conviction or a dismissal of the information under one does not bar prosecution under the other. x x
x."

xxxx

[T]he different laws involve cannot absorb one another as the elements of each crime are different
from one another. Each of these laws require [sic] proof of an additional fact or element which the
other does not although they stemmed from a single act.15

Petitioners filed a petition for certiorari with the Court of Appeals alleging that Branch 94 acted with
grave abuse of discretion because (1) the Informations for violation of PD 1067, PD 984, RA 7942
and the Article 365 of the RPC "proceed from and are based on a single act or incident of polluting
the Boac and Makalupnit rivers thru dumping of mine tailings" and (2) the duplicitous nature of the
Informations contravenes the ruling in People v. Relova.16Petitioners further contended that since the
acts complained of in the charges for violation of PD 1067, PD 984, and RA 7942 are "the very same
acts complained of" in the charge for violation of Article 365 of the RPC, the latter absorbs the
former. Hence, petitioners should only be prosecuted for violation of Article 365 of the RPC.17

The Ruling of the Court of Appeals

In its Decision of 5 November 2001, the Court of Appeals affirmed Branch 94’s ruling. The appellate
court held:

The records of the case disclose that petitioners filed a motion to quash the aforementioned
Informations for being duplicitous in nature. Section 3 of Rule 117 of the Revised Rules of Court
specifically provides the grounds upon which an information may be quashed. x x x

xxxx

[D]uplicity of Informations is not among those included in x x x [Section 3, Rule 117].

xxxx

We now go to petitioners’ claim that the resolution of the public respondent contravened the doctrine
laid down in People vs. Relova for being violative of their right against multiple prosecutions.

In the said case, the Supreme Court found the People’s argument with respect to the variances in
the mens rea of the two offenses being charged to be correct. The Court, however, decided the case
in the context of the second sentence of Article IV (22) of the 1973 Constitution (now under Section
21 of Article III of the 1987 Constitution), rather than the first sentence of the same section. x x x

xxxx
[T]he doctrine laid down in the Relova case does not squarely apply to the case at Bench since the
Informations filed against the petitioners are for violation of four separate and distinct laws which are
national in character.

xxxx

This Court firmly agrees in the public respondent’s understanding that the laws by which the
petitioners have been [charged] could not possibly absorb one another as the elements of each
crime are different. Each of these laws require [sic] proof of an additional fact or element which the
other does not, although they stemmed from a single act. x x x

xxxx

[T]his Court finds that there is not even the slightest indicia of evidence that would give rise to any
suspicion that public respondent acted with grave abuse of discretion amounting to excess or lack of
jurisdiction in reversing the Municipal Trial Court’s quashal of the Informations against the petitioners
for violation of P.D. 1067 and P.D. 984. This Court equally finds no error in the trial court’s denial of
the petitioner’s motion to quash R.A. 7942 and Article 365 of the Revised Penal Code.18

Petitioners sought reconsideration but the Court of Appeals denied their motion in its Resolution of
14 March 2002.

Petitioners raise the following alleged errors of the Court of Appeals:

I. THE COURT OF APPEALS COMMITTED A R[E]VERSIBLE ERROR IN MAINTAINING

THE CHARGES FOR VIOLATION OF THE PHILIPPINE MINING ACT (R.A. 7942) AND
REINSTATING THE CHARGES FOR VIOLATION OF THE WATER CODE (P.D. 1067) AND
POLLUTION CONTROL LAW (P.D. 984), CONSIDERING THAT:

A. THE INFORMATIONS FOR VIOLATION OF THE WATER CODE (P.D. 1067),

THE POLLUTION CONTROL LAW (P.D. 984), THE PHILIPPINE MINING ACT (R.A.
7942) AND ARTICLE 365 OF THE REVISED PENAL CODE PROCEED FROM AND
ARE BASED ON A SINGLE ACT OR INCIDENT OF POLLUTING THE BOAC AND
MAKULAPNIT RIVERS THRU DUMPING OF MINE TAILINGS.

B. THE PROSECUTION OF PETITIONERS FOR DUPLICITOUS AND MULTIPLE

CHARGES CONTRAVENES THE DOCTRINE LAID DOWN IN PEOPLE VS.
RELOVA, 148 SCRA 292 [1986 THAT "AN ACCUSED SHOULD NOT BE
HARASSED BY MULTIPLE PROSECUTIONS FOR OFFENSES WHICH THOUGH
DIFFERENT FROM ONE ANOTHER ARE NONETHELESS EACH CONSTITUTED
BY A COMMON SET OR OVERLAPPING SETS OF TECHNICAL ELEMENTS."

II. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN RULING THAT

THE ELEMENT OF LACK OF NECESSARY OR ADEQUATE PRECAUTION,
NEGLIGENCE, RECKLESSNESS AND IMPRUDENCE UNDER ARTICLE 356 [sic] OF THE
REVISED PENAL CODE DOES NOT FALL WITHIN THE AMBIT OF ANY OF THE
ELEMENTS OF THE PERTINENT PROVISIONS OF THE WATER CODE, POLLUTION
CONTROL LAW AND PHILIPPINE MINING ACT CHARGED AGAINST PETITIONERS[.]19

The Issues
The petition raises these issues:

(1) Whether all the charges filed against petitioners except one should be quashed for
duplicity of charges and only the charge for Reckless Imprudence Resulting in Damage to
Property should stand; and

(2) Whether Branch 94’s ruling, as affirmed by the Court of Appeals, contravenes People v.
Relova.

The Ruling of the Court

The petition has no merit.

No Duplicity of Charges in the Present Case

Duplicity of charges simply means a single complaint or information charges more than one offense,
as Section 13 of Rule 11020 of the 1985 Rules of Criminal Procedure clearly states:

Duplicity of offense. – A complaint or information must charge but one offense, except only in those
cases in which existing laws prescribe a single punishment for various offenses.

In short, there is duplicity (or multiplicity) of charges when a single Information charges more than
one offense.21

Under Section 3(e), Rule 11722 of the 1985 Rules of Criminal Procedure, duplicity of offenses in a
single information is a ground to quash the Information. The Rules prohibit the filing of such
Information to avoid confusing the accused in preparing his defense.23 Here, however, the
prosecution charged each petitioner with four offenses, with each Information charging only one
offense. Thus, petitioners erroneously invoke duplicity of charges as a ground to quash the
Informations. On this score alone, the petition deserves outright denial.

The Filing of Several Charges is Proper

Petitioners contend that they should be charged with one offense only — Reckless Imprudence
Resulting in Damage to Property — because (1) all the charges filed against them "proceed from
and are based on a single act or incident of polluting the Boac and Makalupnit rivers thru dumping of
mine tailings" and (2) the charge for violation of Article 365 of the RPC "absorbs" the other charges
since the element of "lack of necessary or adequate protection, negligence, recklessness and
imprudence" is common among them.

The contention has no merit.

As early as the start of the last century, this Court had ruled that a single act or incident might offend
against two or more entirely distinct and unrelated provisions of law thus justifying the prosecution of
the accused for more than one offense.24 The only limit to this rule is the Constitutional prohibition
that no person shall be twice put in jeopardy of punishment for "the same offense."25 In People v.
Doriquez,26 we held that two (or more) offenses arising from the same act are not "the same" —

x x x if one provision [of law] requires proof of an additional fact or element which the other does not,
x x x. Phrased elsewise, where two different laws (or articles of the same code) define two crimes,
prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses
arise from the same facts, if each crime involves some important act which is not an essential
element of the other.27 (Emphasis supplied)

Here, double jeopardy is not at issue because not all of its elements are present.28 However, for the
limited purpose of controverting petitioners’ claim that they should be charged with one offense only,
we quote with approval Branch 94’s comparative analysis of PD 1067, PD 984, RA 7942, and Article
365 of the RPC showing that in each of these laws on which petitioners were charged, there is one
essential element not required of the others, thus:

In P.D. 1067 (Philippines Water Code), the additional element to be established is the dumping of
mine tailings into the Makulapnit River and the entire Boac River System without prior permit from
the authorities concerned. The gravamen of the offense here is the absence of the proper permit to
dump said mine tailings. This element is not indispensable in the prosecution for violation of PD 984
(Anti-Pollution Law), [RA] 7942 (Philippine Mining Act) and Art. 365 of the Revised Penal Code. One
can be validly prosecuted for violating the Water Code even in the absence of actual pollution, or
even [if] it has complied with the terms of its Environmental Compliance Certificate, or further, even
[if] it did take the necessary precautions to prevent damage to property.

In P.D. 984 (Anti-Pollution Law), the additional fact that must be proved is the existence of actual
pollution. The gravamen is the pollution itself. In the absence of any pollution, the accused must be
exonerated under this law although there was unauthorized dumping of mine tailings or lack of
precaution on its part to prevent damage to property.

In R.A. 7942 (Philippine Mining Act), the additional fact that must be established is the willful
violation and gross neglect on the part of the accused to abide by the terms and conditions of the
Environmental Compliance Certificate, particularly that the Marcopper should ensure the
containment of run-off and silt materials from reaching the Mogpog and Boac Rivers. If there was no
violation or neglect, and that the accused satisfactorily proved [sic] that Marcopper had done
everything to ensure containment of the run-off and silt materials, they will not be liable. It does not
follow, however, that they cannot be prosecuted under the Water Code, Anti-Pollution Law and the
Revised Penal Code because violation of the Environmental Compliance Certificate is not an
essential element of these laws.

On the other hand, the additional element that must be established in Art. 365 of the Revised Penal
Code is the lack of necessary or adequate precaution, negligence, recklessness and imprudence on
the part of the accused to prevent damage to property. This element is not required under the
previous laws. Unquestionably, it is different from dumping of mine tailings without permit, or causing
pollution to the Boac river system, much more from violation or neglect to abide by the terms of the
Environmental Compliance Certificate. Moreover, the offenses punished by special law are mal[a]
prohibita in contrast with those punished by the Revised Penal Code which are mala in se.29

Consequently, the filing of the multiple charges against petitioners, although based on the same
incident, is consistent with settled doctrine.

On petitioners’ claim that the charge for violation of Article 365 of the RPC "absorbs" the charges for
violation of PD 1067, PD 984, and RA 7942, suffice it to say that a mala in se felony (such as
Reckless Imprudence Resulting in Damage to Property) cannot absorb mala prohibita crimes (such
as those violating PD 1067, PD 984, and RA 7942). What makes the former a felony is criminal
intent (dolo) or negligence (culpa); what makes the latter crimes are the special laws enacting them.

People v. Relova not in Point

Petitioners reiterate their contention in the Court of Appeals that their prosecution contravenes this
Court’s ruling in People v. Relova. In particular, petitioners cite the Court’s statement in Relova that
the law seeks to prevent harassment of the accused by "multiple prosecutions for offenses which
though different from one another are nonetheless each constituted by a common set or overlapping
sets of technical elements."

This contention is also without merit. 1avv phil.net

The issue in Relova is whether the act of the Batangas Acting City Fiscal in charging one Manuel
Opulencia ("Opulencia") with theft of electric power under the RPC, after the latter had been
acquitted of violating a City Ordinance penalizing the unauthorized installation of electrical wiring,
violated Opulencia’s right against double jeopardy. We held that it did, not because the offenses
punished by those two laws were the same but because the act giving rise to the charges was
punished by an ordinance and a national statute, thus falling within the proscription against multiple
prosecutions for the same act under the second sentence in Section 22, Article IV of the 1973
Constitution, now Section 21, Article III of the 1987 Constitution. We held:

The petitioner concludes that:

"The unauthorized installation punished by the ordinance [of Batangas City] is not the same as theft
of electricity [under the Revised Penal Code]; that the second offense is not an attempt to commit
the first or a frustration thereofand that the second offense is not necessarily included in the offense
charged in the first information."

The above argument[ ] made by the petitioner [is] of course correct. This is clear both from the
express terms of the constitutional provision involved – which reads as follows:

"No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished
by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another
prosecution for the same act." x x x

and from our case law on this point. The basic difficulty with the petitioner’s position is that it must be
examined, not under the terms of the first sentence of Article IV (22) of the 1973 Constitution, but
rather under the second sentence of the same section. The first sentence of Article IV (22) sets forth
the general rule: the constitutional protection against double jeopardy is not available where the
second prosecution is for an offense that is different from the offense charged in the first or prior
prosecution, although both the first and second offenses may be based upon the same act or set of
acts. The second sentence of Article IV (22) embodies an exception to the general proposition: the
constitutional protection, against double jeopardy is available although the prior offense charged
under an ordinance be different from the offense charged subsequently under a national statute
such as the Revised Penal Code, provided that both offenses spring from the same act or set of
acts. x x x30 (Italicization in the original; boldfacing supplied)

Thus, Relova is no authority for petitioners’ claim against multiple prosecutions based on a single act
not only because the question of double jeopardy is not at issue here, but also because, as the
Court of Appeals held, petitioners are being prosecuted for an act or incident punished by four
national statutes and not by an ordinance and a national statute. In short, petitioners, if ever, fall
under the first sentence of Section 21, Article III which prohibits multiple prosecution for the same
offense, and not, as in Relova, for offenses arising from the same incident.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 5 November 2001 and the
Resolution dated 14 March 2002 of the Court of Appeals.
SO ORDERED.

ANTI-WIRETAPPING ACT
FELIPE NAVARRO, petitioner, vs. THE COURT OF APPEALS and the
PEOPLE OF THE PHILIPPINES, respondents.

DECISION
MENDOZA, J.:

This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated
December 14, 1994, which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena
City, dated July 27, 1992, finding petitioner Felipe Navarro guilty beyond reasonable doubt of
homicide and sentencing him to ten (10) years of prision mayor, as minimum, and fourteen (14)
years, eight (8) months, and one (1) day of reclusion temporal, as maximum, but increased the
death indemnity awarded to the heirs of the victim, Enrique Ike Lingan, from P30,000.00
to P50,000.00.
The information against petitioner alleged

That on or about the 4th day of February, 1990, in the nighttime, in the City of
Lucena, Province of Quezon, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, being then a member of the Lucena Integrated
National Police, with intent to kill, did then and there willfully, unlawfully and
feloniously assault one Ike Lingan inside the Lucena police headquarters, where
authorities are supposed to be engaged in the discharge of their duties, by boxing the
said Ike Lingan in the head with the butt of a gun and thereafter when the said victim
fell, by banging his head against the concrete pavement, as a consequence of which
said Ike Lingan suffered cerebral concussion and shock which directly caused his
death.

The evidence shows that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena
and Enrique Ike Lingan, who were reporters of the radio station DWTI in Lucena City, together
with one Mario Ilagan, went to the Entertainment City following reports that it was showing nude
dancers. After the three had seated themselves at a table and ordered beer, a scantily clad dancer
appeared on stage and began to perform a strip act. As she removed her brassieres, Jalbuena
brought out his camera and took a picture.[2]
At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached
Jalbuena and demanded to know why he took a picture.[3] Jalbuena replied: Wala kang pakialam,
because this is my job.[4] Sioco pushed Jalbuena towards the table as he warned the latter that he
would kill him.[5] When Jalbuena saw that Sioco was about to pull out his gun, he ran out of the
joint followed by his companions.[6]
Jalbuena and his companions went to the police station to report the matter. Three of the
policemen on duty, including petitioner Navarro, were having drinks in front of the police station,
and they asked Jalbuena and his companions to join them. Jalbuena declined and went to the desk
officer, Sgt. Aonuevo, to report the incident. In a while, Liquin and Sioco arrived on a
motorcycle.[7]
Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around
fifteen minutes.[8] Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall,
said to him: Putang ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba
kilala?[9] Petitioner Navarro then pulled out his firearm and cocked it, and, pressing it on the face
of Jalbuena, said, Ano, uutasin na kita?[10]
At this point, Lingan intervened and said to petitioner Navarro: Huwag namang ganyan,
pumarito kami para magpa-blotter, I am here to mediate.[11] Petitioner Navarro replied: Walang
press, press, mag-sampu pa kayo.[12] He then turned to Sgt. Aonuevo and told him to make of
record the behavior of Jalbuena and Lingan.[13]
This angered Lingan, who said: O, di ilagay mo diyan.[14] Petitioner Navarro
retorted: Talagang ilalagay ko.[15] The two then had a heated exchange.[16] Finally, Lingan
said: Masyado kang abusado, alisin mo yang baril mo at magsuntukan na lang tayo.[17] Petitioner
Navarro replied: Ah, ganoon?[18]
As Lingan was about to turn away, petitioner Navarro hit him with the handle of his pistol
above the left eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up,
but petitioner Navarro gave him a fist blow on the forehead which floored him.[19]
Petitioner Navarro turned to Jalbuena and said: Kita mo yan ha, buhay kang testigo, si Ike
Lingan ang naghamon.[20] He said to Sgt. Aonuevo: Ilagay mo diyan sa blotter, sa harap ni Alex
Sioco at Dante Liquin, na si Ike Lingan ang naghamon.[21] He then poked his gun at the right temple
of Jalbuena and made him sign his name on the blotter.[22] Jalbuena could not affix his
signature. His right hand was trembling and he simply wrote his name in print.[23]
Capt. Coronado, the station commander, called petitioner Navarro to his office, while a
policeman took Lingan to the Quezon Memorial Hospital. The station manager of DWTI, Boy
Casaada, arrived and, learning that Lingan had been taken to the hospital, proceeded there. But
Lingan died from his injuries.[24]
Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between
petitioner and the deceased.[25] The following is an excerpt from the tape recording:
Lingan: Pare, you are abusing yourself.
Navarro: Who is that abusing?
Lingan: Im here to mediate. Do not include me in the problem. Im out of the problem.
....
Navarro: Wala sa akin yan. Ang kaso lang . . . .
Lingan: Kalaban mo ang media, pare. Ako at si Stanley, dalawa kami. Okay. Do not fight with me. I
just came here to ayusin things. Do not say bad things against me. Im the number one loko sa
media. Im the best media man. . . .
Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag mong
sabihing loko ka!
 Lingan: Im brave also.
Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil nag-
tatrabaho lang ako ng ayon sa serbisyo ko.
Lingan: You are challenging me and him. . . .
Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may balita tayong
maganda. Pambihira ka Ike. Huwag mong sabihin na . . . Parang minomonopoly mo eh.
Lingan: Pati ako kalaban ninyo.
Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw!
Lingan: You are wrong. Bakit kalaban nyo ang press?
Navarro: Pulis ito! Aba!
Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige.
Navarro: Mayabang ka ah!
(Sounds of a scuffle)
Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo kayo. Alisin ko
daw ang baril ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa harap ni
Stanley. Testigo kayo, hinamon ako. Pulis tayo eh. Puta, buti nga, suntok lang ang inabot nyan. Sa
harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare, hinamon ako, kinig nyo ha. Hinamon ako
nyan. Sige, dalhin nyo sa hospital yan.
Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he
(petitioner) was able to duck both times, and that Lingan was so drunk he fell on the floor twice,
each time hitting his head on the concrete.[26]
In giving credence to the evidence for the prosecution, the trial court stated:

After a thorough and in-depth evaluation of the evidence adduced by the prosecution
and the defense, this court finds that the evidence for the prosecution is the more
credible, concrete and sufficient to create that moral certainty in the mind of the court
that accused herein is criminally responsible.

The defenses evidence which consists of outright denial could not under the
circumstance overturn the strength of the prosecutions evidence.

This court finds that the prosecution witnesses, more particularly Stanley Jalbuena,
lacked any motive to make false accusation, distort the truth, testify falsehood or
cause accusation of one who had neither brought him harm or injury.

Going over the evidence on record, the postmortem report issued by Dra. Eva
Yamamoto confirms the detailed account given by Stanley Jalbuena on how Lingan
sustained head injuries.
Said post-mortem report together with the testimony of Jalbuena sufficiently belie the
claim of the defense that the head injuries of deceased Lingan were caused by the
latters falling down on the concrete pavement head first.

The Court of Appeals affirmed:

We are far from being convinced by appellants aforesaid disquisition. We have

carefully evaluated the conflicting versions of the incident as presented by both
parties, and we find the trial courts factual conclusions to have better and stronger
evidentiary support.

In the first place, the mere fact that Jalbuena was himself a victim of appellants
aggression does not impair the probative worth of his positive and logical account of
the incident in question. In fact, far from proving his innocence, appellants
unwarranted assault upon Jalbuena, which the defense has virtually admitted, clearly
betrays his violent character or disposition and his capacity to harm
others. Apparently, the same motivation that led him into assailing Jalbuena must
have provoked him into also attacking Lingan who had interceded for Jalbuena and
humiliated him and further challenged him to a fist fight.

....

On the other hand, appellants explanation as to how Lingan was injured is too tenuous
and illogical to be accepted. It is in fact contradicted by the number, nature and
location of Lingans injuries as shown in the post-mortem report (Exh. D). According
to the defense, Lingan fell two times when he was outbalanced in the course of boxing
the appellant. And yet, Lingan suffered lacerated wounds in his left forehead, left
eyebrow, between his left and right eyebrows, and contusion in the right temporal
region of the head (Exh. E). Certainly, these injuries could not have resulted from
Lingans accidental fall.

Hence, this appeal. Petitioner Navarro contends:

THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN

ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE
SUPREME COURT. ITS CONCLUSION IS A FINDING BASED ON
SPECULATION, SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS
MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED
GRAVE ABUSE OF DISCRETION; ITS JUDGMENT IS BASED ON A
MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY
EVIDENCE ON RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN
THE RECORD.
 The appeal is without merit.
First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground
that he was a biased witness, having a grudge against him. The testimony of a witness who has an
interest in the conviction of the accused is not, for this reason alone, unreliable.[27] Trial courts,
which have the opportunity to observe the facial expressions, gestures, and tones of voice of a
witness while testifying, are competent to determine whether his or her testimony should be given
credence.[28] In the instant case, petitioner Navarro has not shown that the trial court erred in
according weight to the testimony of Jalbuena.
Indeed, Jalbuenas testimony is confirmed by the voice recording he had made. It may be asked
whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer
is in the affirmative. The law provides:

SECTION 1. It shall be unlawful for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or cable, or by
using any other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone
or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise
described:

It shall also be unlawful for any person, be he a participant or not in the act or acts
penalized in the next preceding sentence, to knowingly possess any tape record, wire
record, disc record, or any other such record, or copies thereof, of any communication
or spoken word secured either before or after the effective date of this Act in the
manner prohibited by this law; or to replay the same for any other person or persons;
or to communicate the contents thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other person: Provided,
That the use of such record or any copies thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned in section 3 hereof, shall not be covered
by this prohibition.

....

SEC. 4. Any communication or spoken word, or the existence, contents, substance,

purport, effect, or meaning of the same or any part thereof, or any information therein
contained obtained or secured by any person in violation of the preceding sections of
this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative
or administrative hearing or investigation.

Thus, the law prohibits the overhearing, intercepting, or recording of private

communications.[29] Since the exchange between petitioner Navarro and Lingan was not private,
its tape recording is not prohibited.
 Nor is there any question that it was duly authenticated. A voice recording is authenticated by
the testimony of a witness (1) that he personally recorded the conversation; (2) that the tape played
in court was the one he recorded; and (3) that the voices on the tape are those of the persons such
are claimed to belong.[30] In the instant case, Jalbuena testified that he personally made the voice
recording;[31] that the tape played in court was the one he recorded;[32] and that the speakers on the
tape were petitioner Navarro and Lingan.[33] A sufficient foundation was thus laid for the
authentication of the tape presented by the prosecution.
Second. The voice recording made by Jalbuena established: (1) that there was a heated
exchange between petitioner Navarro and Lingan on the placing in the police blotter of an entry
against him and Jalbuena; and (2) that some form of violence occurred involving petitioner
Navarro and Lingan, with the latter getting the worst of it.
Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued
a medical certificate,[34] dated February 5, 1990, containing the following findings:

Post Mortem Findings:

= Dried blood, forehead & face

= No blood oozed from the ears, nose & mouth

= Swelling, 3 cm x 2 cm, temporal region, head, right

= Lacerated wound, 2 cm in length, 1-2 in depth, lateral, eyebrow, Left

= Lacerated wound, 0.5 cm in length, superficial, between the left & right eyebrow

= Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left

= Cyanosis of the tips of fingers & toes

CAUSE OF DEATH:

= CEREBRAL CONCUSSION & SHOCK

= BLOW ON THE HEAD

Dr. Yamamoto testified:

Q Give your opinion as to what was the possible cause of this findings number one, which is oozing of
blood from the forehead?
A It may be due to a blow on the forehead or it bumped to a hard object, sir.
Q Could a metal like a butt of a gun have caused this wound No. 1?
A It is possible, sir.
Q And in the alternative, could have it been caused by bumping on a concrete floor?
A Possible, sir.
FISCAL:
What could have been the cause of the contusion and swelling under your findings No. 2 doctor?
WITNESS:
It may be caused by bumping to a hard object, sir.
Q Could a butt of a gun have caused it doctor?
A The swelling is big so it could have not been caused by a butt of a gun because the butt of a gun is
small, sir.
Q How about this findings No. 4?
A By a bump or contact of the body to a hard object, sir.
Q And findings No. 5 what could have caused it?
A Same cause, sir.
Q This findings No. 6 what could have caused this wound?
A Same thing, sir.
Q How about this last finding, cyanosis of tips of fingers and toes, what could have caused it doctor?
WITNESS:
It indicates there was cardiac failure, sir.
FISCAL:
In this same post mortem report and under the heading cause of death it states: Cause of Death: Cerebral
concussion and Shock, will you explain it?
A Cerebral concussion means in Tagalog naalog ang utak or jarring of the brain, sir.
Q What could have been the cause of jarring of the brain?
A It could have been caused by a blow of a hard object, sir.
Q What about the shock, what could have caused it?
A It was due to peripheral circulatory failure, sir.
Q Could any one of both caused the death of the victim?
A Yes, sir.
Q Could cerebral concussion alone have caused the death of the deceased?
A May be, sir.
Q How about shock?
A Yes, sir.
FISCAL:
 Which of these two more likely to cause death?
WITNESS:
Shock, sir.
Q Please explain further the meaning of the medical term shock?
A It is caused by peripheral circulatory failure as I have said earlier, sir.
....
FISCAL:
Could a bumping or pushing of ones head against a concrete floor have caused shock?
WITNESS:
Possible, sir.
How about striking with a butt of a gun, could it cause shock?
A Possible, sir.[35]
The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan
with the handle of his pistol above the left eyebrow and struck him on the forehead with his fist.
Third. It is argued that the mitigating circumstance of sufficient provocation or threat on the
part of the offended party immediately preceding the act should have been appreciated in favor of
petitioner Navarro. Provocation is defined to be any unjust or improper conduct or act of the
offended party, capable of exciting, inciting, or irritating anyone.[36] The provocation must be
sufficient and should immediately precede the act.[37] People v. Paga, 79 SCRA 570 (1977).37 To
be sufficient, it must be adequate to excite a person to commit the wrong, which must accordingly
be proportionate in gravity.[38]And it must immediately precede the act so much so that there is no
interval between the provocation by the offended party and the commission of the crime by the
accused.[39]
In the present case, the remarks of Lingan, which immediately preceded the act of petitioner,
constituted sufficient provocation. In People v. Macaso,[40] we appreciated this mitigating
circumstance in favor of the accused, a policeman, who shot a motorist after the latter had
repeatedly taunted him with defiant words. Hence, this mitigating circumstance should be
considered in favor of petitioner Navarro.
Furthermore, the mitigating circumstance that the offender had no intention to commit so
grave a wrong as that committed should also be appreciated in favor of petitioner. The frantic
exclamations of petitioner Navarro after the scuffle that it was Lingan who provoked him shows
that he had no intent to kill the latter. Thus, this mitigating circumstance should be taken into
account in determining the penalty that should be imposed on petitioner Navarro. The allowance
of this mitigating circumstance is consistent with the rule that criminal liability shall be incurred
by any person committing a felony although the wrongful act done be different from that which
he intended.[41] In People v. Castro,[42] the mitigating circumstance of lack of intent to commit so
grave a wrong as that committed was appreciated in favor of the accused while finding him guilty
of homicide.
 However, the aggravating circumstance of commission of a crime in a place where the public
authorities are engaged in the discharge of their duties should be appreciated against petitioner
Navarro. The offense in this case was committed right in the police station where policemen were
discharging their public functions.[43]
The crime committed as found by the trial court and the Court of Appeals was homicide, for
which the penalty under Art. 249 of the Revised Penal Code is reclusion temporal. As there were
two mitigating circumstances and one aggravating circumstance, the penalty should be fixed in its
minimum period.[44] Applying the Indeterminate Sentence Law, petitioner Navarro should be
sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty
next lower in degree, i.e., prision mayor, and the maximum of which is reclusion temporal in its
minimum period.[45]
The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in
accordance with current jurisprudence.[46]
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification
that petitioner Felipe Navarro is hereby SENTENCED to suffer a prison term of 8 years of prision
mayor, as minimum, to 14 years and 8 months of reclusion temporal, as maximum.
SO ORDERED.