[G.R. No. 103613. February 23, 2001]PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and ELADIO C.

TANGAN, respondents.[G.R. No. 105830. February 23, 2001]ELADIO C. TANGAN, petitioner, vs. PEOPLE OF THE PHILIPPINES and COURT OF

APPEALS, respondents.D E C I S I O NYNARES-SANTIAGO, J.:

At around 11:30 p.m. of December 1, 1984, Navy Captain Eladio C. Tangan was driving alone onRoxas Boulevard heading south. He had just come from Buendia Avenue on an intelligenceoperation. At the same time, Generoso Miranda, a 29-year old optometrist, was driving his car in thesame direction along Roxas Boulevard with his uncle, Manuel Miranda, after coming from the RamadaHotel. Generoso was moving ahead of Tangan. Suddenly, firecrackers were thrown in Generoso’s way,causing him to swerve to the right and cut Tangan’s path. Tangan blew his horn several times. Generososlowed down to let Tangan pass. Tangan accelerated and overtook Generoso, but when he got in front,Tangan reduced speed. Generoso tried four or five times to overtake on the right lane but Tangan keptblocking his lane. As he approached Airport Road, Tangan slowed down to make a U-turn. Generosopassed him, pulled over and got out of the car with his uncle. Tangan also stopped his car and gotout. As the Mirandas got near Tangan’s car, Generoso loudly retorted, “Putang ina mo, bakit mo ginigitgitang sasakyan ko?” Generoso and Tangan then exchanged expletives. Tangan pointed his hand toGeneroso and the latter slapped it, saying, “Huwag mo akong dinuduro! Sino ka ba, ano ba angpinagmamalaki mo?” Tangan countered, “Ikaw, ano ang gusto mo?” With this, Tangan went to his car andgot his .38 caliber handgun on the front seat. The subsequent events per account of the parties’respective witnesses were conflicting:According to the prosecution witnesses, particularly, Mary Ann Borromeo, Rosalia Cruz and ManuelMiranda, the accused pointed his gun at Generoso Miranda and when Manuel Miranda tried to intervene,the accused pointed his gun at Manuel Miranda, and after that the accused pointed again the gun toGeneroso Miranda, the accused shot Generoso Miranda at a distance of about a meter but because thearm of the accused was extended, the muzzle of the gun reached to about more or less one foot awayfrom the body of Generoso Miranda. The shot hit the stomach of Generoso Miranda causing the latter tofall and while still conscious, Generoso Miranda told Manuel Miranda, his uncle, to get the gun. ManuelMiranda grappled for the possession of the gun and during their grappling, Rosalia Cruz intervened andtook hold of the gun and after Rosalia Cruz has taken hold of the gun, a man wearing a red T-shirt tookthe gun from her. The man in T-shirt was chased by Manuel Miranda who was able to get the gun wherethe man in red T-shirt placed it.On the other hand, the defense, particularly the accused and his witness by the name of Nelson Panteclaimed that after the gun was taken by the accused from inside his car, the Mirandas started to grapplefor possession of the gun and during the grappling, and while the two Mirandas were trying to wrest awaythe gun from the accused, they fell down at the back of the car of the accused. According to the accused,he lost the possession of the gun after falling at the back of his car and as soon as they hit the ground,the gun fell, and it exploded hitting Generoso Miranda.[1]

After the gun went off, Tangan ran away. Meanwhile, Generoso lay on the ground bloodied. Hisuncle, Manuel, looked for the gun and ran after Tangan, joining the mob that had already pursuedhim. Tangan found a policeman who allowed him to enter his patrol car. Manuel arrived and told thepoliceman that Tangan had just shot his nephew. Then he went back to where Generoso lay and therefound two ladies, later identified as Mary Ann Borromeo and Rosalina Cruz, helping his nephew board ataxi. Manuel suggested that Generoso be brought to the hospital in his car. He was rushed to thePhilippine General Hospital but he expired on the way.

Tangan was charged with the crime of murder with the use of an unlicensed firearm. [2] After areinvestigation, however, the information was amended to homicide with the use of a licensed firearm,[3] and he was separately charged with illegal possession of unlicensed firearm.[4] On arraignment, Tanganentered a plea of not guilty in the homicide case, but moved to quash the information for illegalpossession of unlicensed firearm on various grounds. The motion to quash was denied, whereupon hefiled a petition for certiorari with this Court.[5] On November 5, 1987, said petition was dismissed and thejoint trial of the two cases was ordered.[6]

During the trial, the prosecution and the defense stipulated on the following: that the amount ofP126,000.00 was incurred for the funeral and burial expenses of the victim; [7] that P74,625.00 wasincurred for attorneys fees; and that the heirs of Generoso suffered moral damages, the amount of whichis left for the courts to determine. After trial, the lower court acquitted Tangan of illegal possession offirearm, but convicted him of homicide. The privileged mitigating circumstance of incomplete self-defenseand the ordinary mitigating circumstances of sufficient provocation on the part of the offended party and ofpassion and obfuscation were appreciated in his favor; consequently, the trial court ordered him to sufferan indeterminate penalty of two (2) months of arresto mayor, as minimum, to two (2) years and four (4)months of prision correccional, as maximum, and to indemnify the heirs of the victim. [8] Tangan wasreleased from detention after the promulgation of judgment[9] and was allowed bail in the homicide case.

Private complainants, the heirs of Generoso Miranda, filed a petition for review with this Court,docketed as G.R. No. 102677, challenging the civil aspect of the court a quo’s decision, but the same wasdismissed for being premature. On the other hand, Tangan appealed to the Court of Appeals, whichaffirmed the judgment of the trial court but increased the award of civil indemnity to P50,000.00. [10] Hissubsequent motion for reconsideration and a motion to cite the Solicitor General in contempt were deniedby the Court of Appeals.[11]

The Office of the Solicitor General, on behalf of the prosecution, alleging grave abuse of discretion,filed a petition for certiorari under Rule 65, docketed as G.R. No. 103613, naming as respondents theCourt of Appeals and Tangan, where it prayed that the appellate court’s judgment be modified byconvicting accused-appellant of homicide without appreciating in his favor any mitigating circumstance.[12] Subsequently, the Office of the Solicitor General, this time acting for public respondent Court ofAppeals, filed a motion for extension to file comment to its own petition for certiorari.[13] Discovering itsglaring error, the Office of the Solicitor General later withdrew its motion for extension of time. [14] Tanganfiled a Reply asking that the case be submitted for decision.[15]

Meanwhile, Tangan filed a separate petition for review under Rule 45, docketed as G.R. No. 105830.[16] Since the petition for certiorari filed by the Solicitor General remained unresolved, the two cases wereconsolidated.[17] The Office of the Solicitor General filed a manifestation in G.R. No. 105830, asking that itbe excused from filing a comment to Tangan’s petition for review, in order to avoid taking contradictorypositions.[18]

In the recent case of People v. Velasco and Galvez, [19] we held that the prosecution cannot avail ofthe remedies of special civil action on certiorari, petition for review on certiorari, or appeal in criminalcases. Previous to that, we categorically ruled that the writ of certiorari cannot be used by the State in acriminal case to correct a lower court’s factual findings or evaluation of the evidence. [20]

Rule 117, Section 7, of the Revised Rules of Criminal Procedure, is clear:Former conviction or acquittal; double jeopardy. - When an accused has been convicted or acquitted, orthe case against him dismissed or otherwise terminated without his express consent by a court ofcompetent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form andsubstance to sustain a conviction and after the accused had pleaded to the charge, the conviction oracquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offensecharged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarilyincludes or is necessarily included in the offense charged in the former complaint or information.

However, the conviction of the accused shall not be a bar to another prosecution for an offense whichnecessarily includes the offense charged in the former complaint or information under any of the followinginstances:(a) the graver offense developed due to supervening facts arising from the same act or omissionconstituting the former charge;(b) the facts constituting the graver charge became known or were discovered only after a pleaswas entered in the former complaint or information; or(c) the plea of guilty to the lesser offense was made without the consent of the fiscal and of theoffended party, except as provided in section 1(f) of Rule 116.In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, heshall be credited with the same in the event of conviction for the graver offense.

Based on the foregoing, the Solicitor General’s petition for certiorari under Rule 65, praying that nomitigating circumstance be appreciated in favor of accused-appellant and that the penalty imposed on himbe correspondingly increased, constitutes a violation of Tangan’s right against double jeopardy andshould be dismissed.

We now come to the petition for review filed by Tangan. It is noteworthy that during the trial,petitioner Tangan did not invoke self-defense but claimed that Generoso was accidentally shot. As such,the burden of proving self-defense,[21] which normally would have belonged to Tangan, did not come intoplay. Although Tangan must prove his defense of accidental firing by clear and convincing evidence,[22] the burden of proving the commission of the crime remained in the prosecution.

Both the trial court and the Court of Appeals appreciated in favor of Tangan the privileged mitigatingcircumstance of incomplete self-defense under Article 13 (1), in relation to Article 11 (1), of the RevisedPenal Code, to wit:ARTICLE 11. Justifying circumstances. - The following do not incur any criminal liability:1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:

First. Unlawful aggression.Second. Reasonable necessity of the means employed to prevent or repel

it.Third. Lack of sufficient provocation on the part of the person defending

himself.x x x x x x x x xARTICLE 13. Mitigating Circumstances. – The following are mitigating circumstances:1. Those mentioned in the preceding Chapter, when all the requisites necessary to justify the act or toexempt from criminal liability in the respective cases are not attendant.

Incomplete self-defense is not considered as a justifying act, but merely a mitigating circumstance;hence, the burden of proving the crime charged in the information is not shifted to the accused. [23] In orderthat it may be successfully appreciated, however, it is necessary that a majority of the requirements ofself-defense be present, particularly the requisite of unlawful aggression on the part of the victim.[24] Unlawful aggression by itself or in combination with either of the other two requisite suffices toestablish incomplete self-defense. Absent the unlawful aggression, there can never be self-defense,complete or incomplete,[25] because if there is nothing to prevent or repel, the other two requisites ofdefense will have no basis.[26]

There is no question that the bullet which hit the victim was fired from the caliber. 38, which wasissued to Tangan by the Philippine Navy. The cause of death was severe hemorrhage secondary togunshot wound of the abdomen, caused by the bullet fired from a gun of the said caliber. The prosecutionclaimed that Tangan shot the victim point-blank in the stomach at a distance of about one foot. On theother hand, Tangan alleged that when he grappled with Generoso and Manuel Miranda for possession ofthe gun, it fell to the ground and accidentally fired, hitting the victim.

When the testimonies of witnesses in open court are conflicting in substantial points, the calibrationof the records on appeal becomes difficult. It is the word of one party against the word of the other. Thereviewing tribunal relies on the cold and mute pages of the records, unlike the trial court which had theunique opportunity of observing first-hand that elusive and incommunicable evidence of the witness’deportment on the stand while testifying.[27] The trial court’s assessments of the credibility of witnesses isaccorded great weight and respect on appeal and is binding on this Court, [28] particularly when it has notbeen adequately demonstrated that significant facts and circumstances were shown to have beenoverlooked or disregarded by the court below which, if considered, might affect the outcome hereof.[29] The rationale for this has been adequately explained in that,The trial court has the advantage of observing the witnesses through the different indicators oftruthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of adiscovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or thefurtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone,the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of thesolemnity of an oath, and carriage and mien.[30]

Equally, when a person fabricates a story, he usually adopts a simple account because a complexone might lead to entanglement from which he may find it hard to extricate himself. Along the same line,the experience of the courts and the general observations of humanity teach us that the natural limitationsof our inventive faculties are such that if a witness delivers in court a false narrative containing numerousdetails, he is almost certain to fall into fatal inconsistencies, to make statements which can be readilyrefuted, or to expose in his demeanor the falsity of his message. [31] Aside from this, it is not also unusualthat the witness may have been coached before he is called to the stand to testify.

Somewhere along the painstaking review of the evidence on record, one version rings thesemblance of truth, not necessarily because it is the absolute truth, but simply because it is the bestapproximation of the truth based on the declarations of witnesses as corroborated by materialevidence. Perforce, the other version must be rejected. Truth and falsehood, it has been well said, arenot always opposed to each other like black and white, but oftentimes, and by design, are made toresemble each other so as to be hardly distinguishable. [32] Thus, after analyzing the conflicting testimoniesof the witnesses, the trial court found that:When the accused took the gun from his car and when he tried to get out of the car and the two Mirandassaw the accused already holding the gun, they started to grapple for the possession of the gun that itwent off hitting Generoso Miranda at the stomach. The court believes that contrary to the testimony of theaccused, he never lost possession of the gun for if he did and when the gun fell to the ground, it will notfirst explode or if it did, somebody is not holding the same, the trajectory of the bullet would not beperpendicular or horizontal.[33]

The Court of Appeals agreed -The finding of the lower court that Generoso Miranda III was shot while the accused and the Mirandaswere grappling for the possession of the gun immediately after the accused had taken his gun from insidehis car and before the three allegedly fell to the ground behind the car of the accused is borne out by therecord. The court also agrees with the court below that it was the accused-appellant who shot and killedGeneroso Miranda III. If the accused-appellant did not shoot Generoso III during the scuffle, he wouldhave claimed accidental killing by alleging that his gun exploded during the scuffle instead of falselytestifying that he and the Mirandas fell to the ground behind his car and the gun exploded in thepossession of Manuel Miranda. The theory of the prosecution that the shooting took place while the threewere grappling for the possession of the gun beside the car of appellant is completely in harmony with thefindings and testimony of Dr. Ibarrola regarding the relative position of the three and the precariousnearness of the victim when accused-appellant pulled the trigger of his gun. Dr. Ibarrola explained thatthe gun was about two (2) inches from the entrance wound and that its position was almost perpendicularwhen it was fired. It was in fact the closeness of the Mirandas vis-à-vis appellant during the scuffle for the

gun that the accused-appellant was compelled to pull the trigger in answer to the instinct of self-preservation.[34]

No convincing reason appears for the Court to depart from these factual findings, the same beingably supported by the evidence on record. In violent deaths caused by gunshot wounds, the medicalreport or the autopsy on the cadaver of the victim must as much as possible narrate the observations onthe wounds examined. It is material in determining the truthfulness of the events narrated by thewitnesses presented. It is not enough that the witness looks credible and assumes that he indeedwitnessed the criminal act. His narration must be substantiated by the physical evidence available to thecourt.

The medical examiner testified that the distance between the muzzle of the gun and the target wasabout 2 inches but definitely not more than 3 inches. Based on the point of exit and the trajectory transitof the wound, the victim and the alleged assailant were facing each other when the shot was made andthe position of the gun was almost perpendicular when fired.[35] These findings disprove Tangan’s claim ofaccidental shooting. A revolver is not prone to accidental firing because of the nature of its mechanism,unless it was already first cocked and pressure was exerted on the trigger. If it were uncocked, thenconsiderable pressure had to be applied on the trigger to fire the revolver.[36]

Having established that the shooting was not accidental, the next issue to be resolved is whetherTangan acted in incomplete self-defense. The element of unlawful aggression in self-defense must notcome from the person defending himself but from the victim.

A mere threatening or intimidating attitude is not sufficient. [37] Likewise, the exchange of insultingwords and invectives between Tangan and Generoso Miranda, no matter how objectionable, could not beconsidered as unlawful aggression, except when coupled with physical assault. [38] There being no lawfulaggression on the part of either antagonists, the claim of incomplete self-defense falls. Tanganundoubtedly had possession of the gun, but the Mirandas tried to wrestle the gun from him. It may besaid that the former had no intention of killing the victim but simply to retain possession of hisgun. However, the fact that the victim subsequently died as a result of the gunshot wound, though theshooter may not have the intention to kill, does not absolve him from culpability. Having caused the fatalwound, Tangan is responsible for all the consequences of his felonious act. He brought out the gun,wrestled with the Mirandas but anticipating that the gun may be taken from him, he fired and fled.

The third requisite of lack of sufficient provocation on the part of the person defending himself is notsupported by evidence. By repeatedly blocking the path of the Mirandas for almost five times, Tanganwas in effect the one who provoked the former. The repeated blowing of horns, assuming it was done byGeneroso, may be irritating to an impatient driver but it certainly could not be considered as creating sopowerful an inducement as to incite provocation for the other party to act violently.

The appreciation of the ordinary mitigating circumstances of sufficient provocation and passion andobfuscation under Article 13, paragraphs 4 and 6,[39] have no factual basis. Sufficient provocation as arequisite of incomplete self-defense is different from sufficient provocation as a mitigatingcircumstance. As an element of self-defense, it pertains to its absence on the part of the persondefending himself; while as a mitigating circumstance, it pertains to its presence on the part of theoffended party. Besides, only one mitigating circumstance can arise out of one and the same act.[40] Assuming for the sake of argument that the blowing of horns, cutting of lanes or overtaking can beconsidered as acts of provocation, the same were not sufficient. The word “sufficient” means adequate toexcite a person to commit a wrong and must accordingly be proportionate to its gravity. [41] Moreover,Generoso’s act of asking for an explanation from Tangan was not sufficient provocation for him to claimthat he was provoked to kill or injure Generoso.[42]

For the mitigating circumstance of passion and obfuscation to be appreciated, it is required that (1)there be an act, both unlawful and sufficient to producesuch a condition of mind; and (2) said act whichproduced the obfuscation was not far removed from the commission of the crime by a considerable lengthof time, during which the perpetrator might recover his normal equanimity.[43]

In the case at bar, Tangan could not have possibly acted upon an impulse for there was no suddenand unexpected occurrence which wuld have created such condition in his mind to shoot thevictim. Assuming that his path was suddenly blocked by Generoso Miranda due to the firecrackers, it canno longer be treated as a startling occurrence, precisely because he had already passed them and wasalready the one blocking their path. Tangan’s acts were done in the spirit of revenge and lawlessness, forwhich no mitigating circumstance of passion or obfuscation can arise.

With respect to the penalty, under the laws then existing, homicide was penalized with reclusiontemporal,[44] but if the homicide was committed with the use of an unlicensed firearm, the penalty shall bedeath.[45] The death penalty, however, cannot be imposed on Tangan because in the meantime, the 1987Constitution proscribed the imposition of death penalty; and although it was later restored in 1994, theretroactive application of the death penalty is unfavorable to him. Previously, the accused may beprosecuted for two crimes: (1) homicide or murder under the Revised Penal Code and (2) illegalpossession of firearm in its aggravated form under P.D. 1866.[46]

P.D. 1866 was amended by R.A. No. 8294,[47] which provides that if an unlicensed firearm is used inmurder or homicide, such use of unlicensed firearm shall be appreciated as an aggravating circumstanceand no longer considered as a separate offense,[48] which means that only one offense shall be punished– murder or homicide. However, this law cannot apply retroactively because it will result in the impositionon Tangan of the maximum period of the penalty. Moreover, under Rule 110, Section 8 of the RevisedRules of Criminal Procedure,[49] the aggravating circumstance must be alleged in the information. Beingfavorable, this new rule can be given retroactive effect as they are applicable to pending cases. [50] In anycase, Tangan was acquitted of the illegal possession case.

Consequently, Tangan should be sentenced to suffer the penalty of reclusion temporal. Pursuant toArticle 64 of the Revised Penal Code, if the prescribed penalty is composed of three periods, and there isneither mitigating nor aggravating circumstance, the medium period shall be applied. Applying theIndeterminate Sentence law, the maximum of the indeterminate penalty shall be that which, in view of theattendant circumstances, may be properly imposed, which in this case isreclusion temporal medium withan imprisonment range of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17)years and four (4) months. The minimum of the indeterminate sentence shall be the next lower degreewhich is prision mayor with a range of from six (6) years and one (1) day to twelve (12) years. [51] Hence,petitioner Tangan is sentenced to an indeterminate penalty of six (6) years and one (1) day of prisionmayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, asmaximum.

The death indemnity of P30,000.00 was correctly increased by the appellate court to P50,000.00 inline with jurisprudence.[52] Moral damages are awarded in criminal cases involving injuries if supported byevidence on record,[53] but the stipulation of the parties in this case substitutes for the necessity ofevidence in support thereof. Though not awarded below, the victim’s heirs are entitled to moral damagesin the amount of P50,000.00 which is considered reasonable considering the pain and anguish brought byhis death.[54]

WHEREFORE, the petition in G.R. No. 103613 is DISMISSED. The appealed decision subject ofG.R. No. 105830 is AFFIRMED with the following MODIFICATIONS:

(1) Tangan is sentenced to suffer an indeterminate penalty of six (6) years and one (1) day of prisionmayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, asmaximum, with all the accessory penalties.

(2) Tangan is ordered to pay the victim’s heirs P50,000.00 as civil indemnity, P42,000.00 as funeraland burial expenses, P5,000.00 as attorney’s fees, and P50,000.00 as moral damages.

SO ORDERED.G.R. Nos. L-33466-67 April 20, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MAMERTO NARVAEZ, defendant-appellant.The Solicitor General for plaintiff-appellee.Gonzalo B. Callanta (counsel de oficio) for defendant-appellant. MAKASIAR, J.:This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in CriminalCases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the conviction of the accused ina decision rendered on September 8, 1970, with the following pronouncement:

Thus, we have a crime of MURDER qualified by treachery with the aggravatingcircumstance of evident premeditation offset by the mitigating circumstance of voluntarysurrender. The proper penalty imposable, therefore, is RECLUSION PERPETUA (Arts.248 and 64, Revised Penal Code).Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime ofmurder,(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA, toindemnify the heirs of the deceased Davis Q. Fleischer in the sum of P 12,000.00 ascompensatory damages, P 10,000.00 as moral damages, P 2,000.00 as attorney's fees,the offended party having been represented by a private prosecutor, and to pay the costs;(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA, toindemnify the heirs of the deceased Flaviano Rubia in the sum of P12,000.00 ascompensatory damages, P10,000.00 as moral damages, P2,000.00 as attorney's fees,the offended party having been represent by a private prosecutor, and to pay the costs (p.48, rec.).

The facts are summarized in the People's brief, as follows:At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano andCesar Ibanez together with the two deceased Davis Fleischer and Flaviano Rubia, werefencing the land of George Fleischer, father of deceased Davis Fleischer. The place wasin the boundary of the highway and the hacienda owned by George Fleischer. This islocated in the municipality of Maitum, South Cotabato. At the place of the fencing is thehouse and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II). At thattime, appellant was taking his rest, but when he heard that the walls of his house werebeing chiselled, he arose and there he saw the fencing going on. If the fencing would goon, appellant would be prevented from getting into his house and the bodega of hisricemill. So he addressed the group, saying 'Pare, if possible you stop destroying myhouse and if possible we will talk it over what is good,' addressing the deceased Rubia,who is appellant's compadre. The deceased Fleischer, however, answered: 'No, gademit,proceed, go ahead.' Appellant apparently lost his equilibrium and he got his gun and shotFleischer, hitting him. As Fleischer fell down, Rubia ran towards the jeep, and knowingthere is a gun on the jeep, appellant fired at Rubia, likewise hitting him (pp. 127-133,t.s.n., Defense transcript). Both Fleischer and Rubia died as a result of the shotting' (pp.9-14, t.s.n., Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).

It appears, however, that this incident is intertwined with the long drawn out legal battle between theFleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased Rubia theassistant manager, on the one hand, and the land settlers of Cotabato, among whom was appellant.From the available records of the related cases which had been brought to the Court of Appeals (CA-G.R.Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-26757 and L-45504), WE takejudicial notice of the following antecedent facts:

Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937 andsettled in Maitum, a former sitio of Kiamba and now a separate municipality of South Cotabato. Heestablished his residence therein, built his house, cultivated the area, and was among those whopetitioned then President Manuel L. Quezon to order the subdivision of the defunct Celebes Plantationand nearby Kalaong Plantation totalling about 2,000 hectares, for distribution among the settlers.Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner inNegros Oriental, filed sales application No. 21983 on June 3, 1937 over the same area formerly leasedand later abandoned by Celebes Plantation Company, covering 1,017.2234 hectares.Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but thesurvey report was not submitted until 1946 because of the outbreak of the second world war. According tothe survey, only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside forSales Application No. 21983, while the rest were subdivided into sublots of 5 to 6 hectares each to bedistributed among the settlers (pp. 32-33, G.R. No. L-45504).The 300 hectares set aside for the sales application of Fleischer and Company was declared open fordisposition, appraised and advertised for public auction. At the public auction held in Manila on August 14,1948, Fleischer and Company was the only bidder for P6,000.00. But because of protests from thesettlers the corresponding award in its favor was held in abeyance, while an investigator was sent by theDirector of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty. Gozon came back after ten dayswith an amicable settlement signed by the representative of the settlers. This amicable settlement waslater repudiated by the settlers, but the Director of Lands, acting upon the report of Atty. Gozon, approvedthe same and ordered the formal award of the land in question to Fleischer and Company. The settlersappealed to the Secretary of Agriculture and Natural Resources, who, however, affirmed the decision infavor of the company.On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato whichthen consisted only of one sala, for the purpose of annulling the order of the Secretary of Agriculture andNatural Resources which affirmed the order of the Director of Lands awarding the contested land to thecompany. The settlers as plaintiffs, lost that case in view of the amicable settlement which they hadrepudiated as resulting from threats and intimidation, deceit, misrepresentation and fraudulentmachination on the part of the company. They appealed to the Court of Appeals (CA-G.R. No. 28858-R)which likewise affirmed on August 16, 1965 the decision of the Court of First Instance in favor of thecompany.This resulted in the ouster of the settlers by an order of the Court of First Instance dated September 24,1966, from the land which they had been occupying for about 30 years. Among those ejected was theappellant who, to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of aroundP20,000.00, and transferred to his other house which he built in 1962 or 1963 near the highway. Thesecond house is not far from the site of the dismantled house. Its ground floor has a store operated byMrs. June Talens who was renting a portion thereof. He also transferred his store from his formerresidence to the house near the highway. Aside from the store, he also had a rice mill located about 15meters east of the house and a concrete pavement between the rice mill and the house, which is used fordrying grains and copra.On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and otherleaders filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I. to obtain an injunctionor annulment of the order of award with prayer for preliminary injunction. During the pendency of thiscase, appellant on February 21, 1967 entered into a contract of lease with the company whereby heagreed to lease an area of approximately 100 to 140 square meters of Lot No. 38 from the company (Exh.9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00 monthly. According to him, he signedthe contract although the ownership of the land was still uncertain, in order to avoid trouble, until thequestion of ownership could be decided. He never paid the agreed rental, although he alleges that the

milling job they did for Rubia was considered payment. On June 25, 1968, deceased Fleischer wrote hima letter with the following tenor:

You have not paid six months rental to Fleischers & Co., Inc. for that portion of land inwhich your house and ricemill are located as per agreement executed on February 21,1967. You have not paid as as even after repeated attempts of collection made by Mr.Flaviano Rubia and myself.In view of the obvious fact that you do not comply with the agreement, I have noalternative but to terminate our agreement on this date.I am giving you six months to remove your house, ricemill, bodega, and water pitcherpumps from the land of Fleischers & Co., Inc. This six- month period shall expire onDecember 31, 1966.In the event the above constructions have not been removed within the six- month period,the company shall cause their immediate demolition (Exhibit 10, p. 2, supra).

On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by puttingbamboo posts along the property line parallel to the highway. Some posts were planted right on theconcrete drier of appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n., Vol. 2), withthe last post just adjacent to appellant's house (p. 231, t.s.n., supra). The fence, when finished, wouldhave the effect of shutting off the accessibility to appellant's house and rice mill from the highway, sincethe door of the same opens to the Fleischers' side. The fencing continued on that fateful day of August 22,1968, with the installation of four strands of barbed wire to the posts.At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all morning,was awakened by some noise as if the wall of his house was being chiselled. Getting up and looking outof the window, he found that one of the laborers of Fleischer was indeed chiselling the wall of his housewith a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and deceasedFleischer was commanding his laborers. The jeep used by the deceased was parked on the highway. Therest of the incident is narrated in the People's Brief as above-quoted. Appellant surrendered to the policethereafter, bringing with him shotgun No. 1119576 and claiming he shot two persons (Exh. Pp. 31,Defense Exhibits).Appellant now questions the propriety of his conviction, assigning the following errors:

First Assignment of Error: That the lower court erred in convicting defendant-appellantdespite the fact that he acted in defense of his person; andSecond Assignment of Error: That the court a quo also erred in convicting defendant-appellant although he acted in defense of his rights (p. 20 of Appellant's Brief, p. 145,rec.).

The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot themfrom the window of his house with the shotgun which he surrendered to the police authorities. He claims,however, that he did so in defense of his person and of his rights, and therefore he should be exemptfrom criminal liability.Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of theRevised Penal Code, but in order for it to be appreciated, the following requisites must occur:

First. Unlawful aggression;Second. Reasonable necessity of the means employed to prevent or repel it;Third. Lack of sufficient provocation on the part of the person defending himself (Art. 11,par. 1, Revised Penal Code, as amended).

The aggression referred to by appellant is the angry utterance by deceased Fleischer of the followingwords: "Hindi, sigue, gademit, avante", in answer to his request addressed to his compadre, thedeceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti" (pp.227-229, t.s.n., Vol. 6). This was in reaction to his having been awakened to see the wall of his housebeing chiselled. The verbal exchange took place while the two deceased were on the ground doing the

fencing and the appellant was up in his house looking out of his window (pp. 225-227, supra). Accordingto appellant, Fleischer's remarks caused this reaction in him: "As if, I lost my senses and unknowingly Itook the gun on the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr.Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant testified:

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot, Mr.Rubia looked at Mr. Fleischer and when Mr. Fleischer fell down, Mr. Rubia ran towardsthe jeep and knowing that there was a firearm in the jeep and thinking that if he will takethat firearm he will kill me, I shot at him (p. 132, supra, Emphasis supplied).

The foregoing statements of appellant were never controverted by the prosecution. They claim, however,that the deceased were in lawful exercise of their rights of ownership over the land in question, when theydid the fencing that sealed off appellant's access to the highway.A review of the circumstances prior to the shooting as borne by the evidence reveals that five persons,consisting of the deceased and their three laborers, were doing the fencing and chiselling of the walls ofappellant's house. The fence they were putting up was made of bamboo posts to which were being nailedstrands of barbed wire in several layers. Obviously, they were using tools which could be lethal weapons,such as nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides,it was not disputed that the jeep which they used in going to the place was parked just a few steps away,and in it there was a gun leaning near the steering wheel. When the appellant woke up to the sound of thechiselling on his walls, his first reaction was to look out of the window. Then he saw the damage beingdone to his house, compounded by the fact that his house and rice mill will be shut off from the highwayby the fence once it is finished. He therefore appealed to his compadre, the deceased Rubia, to stop whatthey were doing and to talk things over with him. But deceased Fleischer answered angrily with 'gademit'and directed his men to proceed with what they were doing.The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would haveresulted in the further chiselling of the walls of appellant's house as well as the closure of the access toand from his house and rice mill-which were not only imminent but were actually in progress. There is noquestion, therefore, that there was aggression on the part of the victims: Fleischer was ordering, andRubia was actually participating in the fencing. This was indeed aggression, not on the person ofappellant, but on his property rights.The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off thecontested property, to destroy appellant's house and to shut off his ingress and egress to his residenceand the highway?Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or tenements.However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the order ofaward to Fleischer and Company was still pending in the Court of First Instance of Cotabato. The partiescould not have known that the case would be dismissed over a year after the incident on August 22, 1968,as it was dismissed on January 23, 1970 on ground of res judicata, in view of the dismissal in 1965 (bythe Court of Appeals) of Civil Case No. 240 filed in 1950 for the annulment of the award to the company,between the same parties, which the company won by virtue of the compromise agreement in spite of thesubsequent repudiation by the settlers of said compromise agreement; and that such 1970 dismissal alsocarried the dismissal of the supplemental petition filed by the Republic of the Philippines on November 28,1968 to annul the sales patent and to cancel the corresponding certificate of title issued to the company,on the ground that the Director of Lands had no authority to conduct the sale due to his failure to complywith the mandatory requirements for publication. The dismissal of the government's supplemental petitionwas premised on the ground that after its filing on November 28, 1968, nothing more was done by thepetitioner Republic of the Philippines except to adopt all the evidence and arguments of plaintiffs withwhom it joined as parties-plaintiffs.

Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil CaseNo. 755 filed on November 14, 1966 and his execution of the contract of lease on February 21, 1967 wasjust to avoid trouble. This was explained by him during cross-examination on January 21, 1970, thus:

It happened this way: we talked it over with my Mrs. that we better rent the place becauseeven though we do not know who really owns this portion to avoid trouble. To avoidtrouble we better pay while waiting for the case because at that time, it was not knownwho is the right owner of the place. So we decided until things will clear up and determinewho is really the owner, we decided to pay rentals (p. 169, t.s.n., Vol.6).

In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense Exhibits) withinwhich to vacate the land. He should have allowed appellant the peaceful enjoyment of his properties up tothat time, instead of chiselling the walls of his house and closing appellant's entrance and exit to thehighway.The following provisions of the Civil Code of the Philippines are in point:

Art. 536. In no case may possession be acquired through force or intimidation as long asthere is a possessor who objects thereto. He who believes that he has an action or a rightto deprive another of the holding of a thing must invoke the aid of the competent court, ifthe holder should refuse to deliver the thing.Art. 539. Every possessor has a right to be respected in his possession; and should hebe disturbed therein he shall be protected in or restored to said possession by the meansestablished by the laws and the Rules of Court (Articles 536 and 539, Civil Code of thePhilippines).

Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage toappellant's house, nor to close his accessibility to the highway while he was pleading with them to stopand talk things over with him. The assault on appellant's property, therefore, amounts to unlawfulaggression as contemplated by law.

Illegal aggression is equivalent to assault or at least threatened assault of immediate andimminent kind (People vs. Encomiendas, 46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant's property which he had the right toresist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:

Art. 429. The owner or lawful possessor of a thing has the right to exclude any personfrom the enjoyment and disposal thereof. For this purpose, he may use such force asmay be reasonably necessary to repel or prevent an actual or threatened unlawfulphysical invasion or usurpation of his property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defenseor defense of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the appellant firedhis shotgun from his window, killing his two victims, his resistance was disproportionate to the attack.WE find, however, that the third element of defense of property is present, i.e., lack of sufficientprovocation on the part of appellant who was defending his property. As a matter of fact, there was noprovocation at all on his part, since he was asleep at first and was only awakened by the noise producedby the victims and their laborers. His plea for the deceased and their men to stop and talk things over withhim was no provocation at all.Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements forjustification are present. He should therefore be held responsible for the death of his victims, but he couldbe credited with the special mitigating circumstance of incomplete defense, pursuant to paragraph 6,Article 13 of the Revised Penal Code.The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot beappreciated in this case because of the presence of provocation on the part of the deceased. As WE heldearlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is thereforelacking.

Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault adopted bythe aggressor was deliberately chosen with a special view to the accomplishment of the act without risk tothe assailant from any defense that the party assailed might have made. This cannot be said of a situationwhere the slayer acted instantaneously ..." (People vs. Cañete, 44 Phil. 481).WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficientlyestablished. The only evidence presented to prove this circumstance was the testimony of CrisantoIbañez, 37 years old, married, resident of Maitum, South Cotabato, and a laborer of Fleischer andCompany, which may be summarized as follows:

On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying cornnear the house of Mr. and Mrs. Mamerto Narvaez at the crossing, Maitum, SouthCotabato, when the accused and his wife talked to him. Mrs. Narvaez asked him to helpthem, as he was working in the hacienda. She further told him that if they fenced theirhouse, there is a head that will be broken. Mamerto Narvaez added 'Noy, it is better thatyou will tell Mr. Fleischer because there will be nobody who will break his head but I willbe the one.' He relayed this to Mr. Flaviano Rubia, but the latter told him not to believe asthey were only Idle threats designed to get him out of the hacienda (pp. 297-303, t.s.n.,Vol. 2).

This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of evidentpremeditation. As WE have consistently held, there must be "direct evidence of the planning orpreparation to kill the victim, .... it is not enough that premeditation be suspected or surmised, but thecriminal intent must be evidenced by notorious outward acts evincing the determination to commit thecrime" (People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the accusedpremeditated the killing; that the culprit clung to their (his) premeditated act; and that there was sufficientinterval between the premeditation and the execution of the crime to allow them (him) to reflect upon theconsequences of the act" (People vs. Gida, 102 SCRA 70).Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis Fleischer,neutralizes his credibility.Since in the case at bar, there was no direct evidence of the planning or preparation to kill the victims northat the accused premeditated the killing, and clung to his premeditated act, the trial court's conclusion asto the presence of such circumstance may not be endorsed.Evident premeditation is further negated by appellant pleading with the victims to stop the fencing anddestroying his house and to talk things over just before the shooting.But the trial court has properly appreciated the presence of the mitigating circumstance of voluntarysurrender, it appearing that appellant surrendered to the authorities soon after the shooting.Likewise, We find that passion and obfuscation attended the commission of the crime. The appellantawoke to find his house being damaged and its accessibility to the highway as well as of his rice millbodega being closed. Not only was his house being unlawfully violated; his business was also in dangerof closing down for lack of access to the highway. These circumstances, coming so near to the time whenhis first house was dismantled, thus forcing him to transfer to his only remaining house, must have soaggravated his obfuscation that he lost momentarily all reason causing him to reach for his shotgun andfire at the victims in defense of his rights. Considering the antecedent facts of this case, where appellanthad thirty years earlier migrated to this so-called "land of promise" with dreams and hopes of relativeprosperity and tranquility, only to find his castle crumbling at the hands of the deceased, his dispassionateplea going unheeded-all these could be too much for any man-he should be credited with this mitigatingcircumstance.Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by anyqualifying nor aggravating circumstance, but extenuated by the privileged mitigating circumstance ofincomplete defense-in view of the presence of unlawful aggression on the part of the victims and lack of

sufficient provocation on the part of the appellant-and by two generic mitigating circumstance of voluntarysurrender and passion and obfuscation.Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusiontemporal. Pursuant to Article 69, supra, the penalty lower by one or two degrees shall be imposed if thedeed is not wholly excusable by reason of the lack of some of the conditions required to justify the same.Considering that the majority of the requirements for defense of property are present, the penalty may belowered by two degrees, i.e., to prision correccional And under paragraph 5 of Article 64, the same mayfurther be reduced by one degree, i.e., arresto mayor, because of the presence of two mitigatingcircumstances and no aggravating circumstance.The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American WorldAirways (43 SCRA 397), the award for moral damages was reduced because the plaintiff contributed tothe gravity of defendant's reaction. In the case at bar, the victims not only contributed but they actuallyprovoked the attack by damaging appellant's properties and business. Considering appellant's standing inthe community, being married to a municipal councilor, the victims' actuations were apparently designedto humiliate him and destroy his reputation. The records disclose that his wife, councilor Feliza Narvaez,was also charged in these two cases and detained without bail despite the absence of evidence linkingher to the killings. She was dropped as a defendant only upon motion of the prosecution dated October31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968 (p. 58, CFI rec.of Criminal Case No. 1815).Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company, despite itsextensive landholdings in a Central Visayan province, to extend its accumulation of public lands to theresettlement areas of Cotabato. Since it had the capability-financial and otherwise-to carry out its landaccumulation scheme, the lowly settlers, who uprooted their families from their native soil in Luzon to takeadvantage of the government's resettlement program, but had no sufficient means to fight the biglandowners, were the ones prejudiced. Thus, the moral and material suffering of appellant and his familydeserves leniency as to his civil liability.Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prisioncorreccional or arrests mayor and fine who has no property with which to meet his civil liabilities to servea subsidiary imprisonment at the rate of one (1) day for each P 2.50. However, the amendment introducedby Republic Act No. 5465 on April 21, 1969 made the provisions of Art. 39 applicable to fines only and notto reparation of the damage caused, indemnification of consequential damages and costs of proceedings.Considering that Republic Act 5465 is favorable to the accused who is not a habitual delinquent, it may begiven retroactive effect pursuant to Article 22 of the Revised Penal Code.WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO (2)HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETESELF-DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OFVOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING CIRCUMSTANCE,APPELLANT IS HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS OFARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OFFLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARYIMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN (14)YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS IMMEDIATERELEASE IS HEREBY ORDERED. NO COSTS.SO ORDERED.Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-Herrera, Escolin Vasquezand Relova, JJ., concur.Aquino, J., is on leave.Plana, J., in the result.

Separate Opinions ABAD SANTOS, J., dissenting:I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression on persons, notproperty Plana, J., in the result. GUTIERREZ, JR., J., dissenting:While I agree with the order to release the appellant, I am constrained to dissent in part. It is true that Art.429, Civil Code of the Philippines, provides that the owner or legal possessor of a thing may use suchforce as may be reasonably necessary to repel or prevent an actual or threatened unlawful physicalinvasion or usurpation of his property. It seems to me, however, that an attack on the person defendinghis property is an indispensable element where an accused pleads self-defense but what is basicallydefended is only property.Defense of property is not of such importance as the right to life and defense of property can only beinvoked when it is coupled with some form of attack on the person of one entrusted with said property.The defense of property, whether complete or incomplete, to be available in prosecutions for murder orhomicide must be coupled with an attack by the one getting the property on the person defending it.In the case now before Us, there is absolutely no evidence that an attack was attempted, much less madeupon the person of appellant. The mere utterance "No, gademit proceed, go ahead" is not the unlawfulaggression which entitles appellant to the pela of self-defense. I agree with the majority opinion that thecrime is homicide but without any privileged mitigating circumstance.Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides, mitigated by thetwo generic mitigating circumstances of voluntary surrender and obfuscation, without any aggravatingcircumstance, maximum the sentence the appellant should have served was prision mayor plus theindemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia of the sum of FourThousand (P4,000.00) Pesos, without subsidiary imprisonment, but without any award for moral damagesand attorney's fees.Considering that appellant has been under detention for almost fourteen (14) years now since August 22,1968, he has served the penalty and should be released. Separate OpinionsABAD SANTOS, J., dissenting:I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression on persons, notproperty Plana, J., in the result. GUTIERREZ, JR., J., dissenting:While I agree with the order to release the appellant, I am constrained to dissent in part. It is true that Art.429, Civil Code of the Philippines, provides that the owner or legal possessor of a thing may use suchforce as may be reasonably necessary to repel or prevent an actual or threatened unlawful physicalinvasion or usurpation of his property. It seems to me, however, that an attack on the person defendinghis property is an indispensable element where an accused pleads self-defense but what is basicallydefended is only property.Defense of property is not of such importance as the right to life and defense of property can only beinvoked when it is coupled with some form of attack on the person of one entrusted with said property.The defense of property, whether complete or incomplete, to be available in prosecutions for murder orhomicide must be coupled with an attack by the one getting the property on the person defending it.

In the case now before Us, there is absolutely no evidence that an attack was attempted, much less madeupon the person of appellant. The mere utterance "No, gademit proceed, go ahead" is not the unlawfulaggression which entitles appellant to the pela of self-defense. I agree with the majority opinion that thecrime is homicide but without any privileged mitigating circumstance.Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides, mitigated by thetwo generic mitigating circumstances of voluntary surrender and obfuscation, without any aggravatingcircumstance, maximum the sentence the appellant should have served was prision mayor plus theindemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia of the sum of FourThousand (P4,000.00) Pesos, without subsidiary imprisonment, but without any award for moral damagesand attorney's fees.Considering that appellant has been under detention for almost fourteen (14) years now since August 22,1968, he has served the penalty and should be released.G.R. No. L-23249 November 25, 1974THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.CUNIGUNDA BOHOLST-CABALLERO, accused-appellant.Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Florencio Villamor and AttorneyConcepcion F. Torrijos for plaintiff-appellee.Accused-appellant in her own behalf. MUÑOZ PALMA, J.:pConvicted for having killed her husband, Cunigunda Boholst-Caballero seeks a reversal of the judgmentof the Court of First Instance of Ormoc City finding her guilty of PARRICIDE and sentencing her "to sufferan indeterminate imprisonment of from EIGHT (8) YEARS and ONE (1) DAY of prision mayor in itsmedium period, as the minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAYof reclusion temporal in its medium period as the maximum; to indemnify the heirs of Francisco Caballeroin the sum of SIX THOUSAND PESOS (P6,000.00) without subsidiary imprisonment in case ofinsolvency, and to pay the costs", and prays for an acquittal based on her plea of self-defense. 1

The Solicitor General however asks for the affirmance of the appealed decision predicated on thefollowing testimonial and documentary evidence presented by the prosecution before the trial court:Cunigunda Boholst and Francisco Caballero, both at the age of twenty, were married on June 7, 1956, ata ceremony solemnized by the parish priest of the Roman Catholic Church in Ormoc City. 2 The marriagewas not a happy one and before the end of the year 1957 the couple separated. Late in the evening ofJanuary 2, 1958, Francisco Caballero and two companions, namely, Ignacio Barabad and Kakong Sacay,drank "tuba" in a certain house in barrio Ipil, Ormoc City. At about midnight, Francisco Caballero and hiscompanions proceeded home. On the way, they saw Francisco's wife, Cunigunda, standing at the cornerof the yard of Igmedio Barabad Cunigunda called Francisco and when the latter approached her,Cunigunda suddenly stabbed Francisco with a knife marked by the prosecution as its Exhibit C. Franciscocalled for help to his two companions who upon seeing that Francisco was wounded, brought him to theSt. Jude Hospital. 3 Dr. Cesar Samson, owner of the hospital, personally attended to the victim and founda "punctured wound on the left lumbar region measuring 1 inch externally" (Exhibit B). First aid was given,but because there was a need for blood transfusion and the facilities of the hospital were inadequate toprovide the necessary treatment, Dr. Samson suggested that the patient be transported to Cebu City. 4 Inthe meantime, Cunigunda Caballero had gone to the Police Department of Ormoc City, surrendered todesk sergeant Restituto Mariveles and informed the latter that she stabbed her husband. 5 WhileFrancisco Caballero was confined at the hospital, he was interrogated by Patrolman Francisco Coveroconcerning the identity of his assailant and he pointed to his wife Cunigunda. The questions propoundedby Pat. Covero and the answers given by the victim were written down in a piece of paper on which thevictim affixed his thumbmark (Exhibit D) in the presence of his brother, Cresencio Caballero, and another

policeman, Francisco Tomada. 6 On January 4, 1958, Francisco Caballero was brought to Cebu City onboard the "MV Ormoc" but the trip proved futile because the victim died at noontime of the same day fromthe stab wound sustained by him. 7

Appellant, on the other hand, pleads that We discard the proof adduced by the prosecution and believeinstead what she declared before the trial judge briefly summarized as follows:After her marriage to Francisco Caballero on June 7, 1956, appellant lived with her husband in the houseof her parents in barrio Ipil, Ormoc City, and their marriage, although not a harmonious one, was blessedwith a daughter; her married life was marked by frequent quarrels caused by her husband's "gambling,drinking, and serenading", and there were times when he maltreated and beat her; after more than a yearshe and her husband transferred to a house of their own, but a month had hardly passed when Franciscoleft her and her child, and she had to go back to live with her parents who bore the burden of supportingher and her child; in the month of November, 1957, her daughter became sick and she went to herhusband and asked for some help for her sick child but he drove her away and said "I don't care if you allwould die"; in the evening of January 2, 1958, she went out carolling with her friend, Crispina Barabad,and several men who played the musical instruments; at about 12:00 o'clock midnight they divided theproceeds of the carolling in the house of Crispina Barabad after which she went home, but before shecould leave the vicinity of the house of Crispina, she met her husband Francisco, who upon seeing her,held her by the collar of her dress and asked her: "Where have you been prostituting? You are a son of abitch."; she replied: "What is your business. Anyway you have already left us. You have nothing to do withus"; upon hearing these words Francisco retorted: "What do you mean by saying I have nothing to do withyou. I will kill you all, I will kill you all"; Francisco then held her by the hair, slapped her face until her nosebled, and pushed her towards the ground, to keep herself from falling she held on to his waist and as shedid so her right hand grasped the knife tucked inside the belt line on the left side of his body; because herhusband continued to push her down she fell on her back to the ground; her husband then knelt over her,held her neck, and choked her saying. "Now is the time I can do whatever I want. I will kill you"; becauseshe had "no other recourse" as she was being choked she pulled out the knife of her husband and thrustit at him hitting the left side of his body near the "belt line" just above his left thigh; when she finallyreleased herself from the hold of her husband she ran home and on the way she threw the knife; in themorning of January 3, she went to town, surrendered to the police, and presented the torn and blood-stained dress worn by her on the night of the incident (see Exhibit I); Pat. Cabral then accompanied her tolook for the weapon but because they could not find it the policeman advised her to get any knife, and shedid, and she gave a knife to the desk sergeant which is the knife now marked as Exhibit C for theprosecution. 8

The sole question thus presented in this appeal is: did appellant stab her husband in the legitimatedefense of her person?The law on self-defense embodied in any penal system in the civilized world finds justification in man'snatural instinct to protect, repel, and save his person or rights from impending danger or peril; it is basedon that impulse of self-preservation born to man and part of his nature as a human being. Thus, in thewords of the Romans of ancient history: Quod quisque ob tutelam sui fecerit, jure suo ficisseexistimetur. 9 To the Classicists in penal law, lawful defense is grounded on the impossibility on the part ofthe State to avoid a present unjust aggression and protect a person unlawfully attacked, and therefore it isinconceivable for the State to require that the innocent succumb to an unlawful aggression withoutresistance; while to the Positivists, lawful defense is an exercise of a right, an act of social justice done torepel the attack of an aggressor. 10

Our law on self-defense is found in Art. 11 of the Revised Penal Code which provides:ART. 11. Justifying circumstances. — The following do not incur any criminal liability:1. Anyone who acts in defense of his person or rights, provided that the followingcircumstances concur:First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;Third. Lack of sufficient provocation on the part of the person defending himself.xxx xxx xxx

As part of this law is the settled jurisprudence that he who seeks justification for his act must prove byclear and convincing evidence the presence of the aforecited circumstances, the rationale being thathaving admitted the wounding or killing of his adversary which is a felony, he is to be held criminally liablefor the crime unless he establishes to the satisfaction of the court the fact of legitimate self-defense. 11

In this case of Cunigunda Caballero, the trial court did not find her evidence clear and convincing, andgave these reasons for its conclusion: a) appellant's testimony is inherently improbable as brought out byher demonstration of the incident in question during the trial of the case; b) there was no wound or injuryon appellant's body treated by any physician: c) appellant's insistence that the weapon used by her wasMoro hunting knife and not Exh. C is incredible; d) she gave contradictory statements concerning thereport made by her to the police authorities that she was choked by her husband; and e) her husband'sabandonment of her and her child afforded the motive behind appellant's attack. 12

We are constrained, however, to disagree with the court a quo and depart from the rule that appellatecourt will generally not disturb the findings of the trial court on facts testified to by the witnesses.An examination of the record discloses that the trial judge overlooked and did not give due importance toone piece of evidence which more than the testimony of any witness eloquently confirms the narration ofappellant on how she happened to stab her husband on that unfortunate night. We refer to the location ofthe wound inflicted on the victim.Appellant's account of that fatal occurrence as given in her direct testimony follows:

Q At that precise time when you were going home to the place of yourparents, did any unusual incident occur?A Yes, sir.Q What was it?A At the time when I went down from the house of Crispina Barabad,when I reached near the banana hill, my husband held me.Q What happened when your husband, Francisco Caballero, held you?A He asked me from where did I prostitute myself.Q What did you answer?A I answered that I did not go (on) prostituting. I told him that I was onlyforced to accompany with the carolling in order to earn money for ourchild.Q What part of your body did your husband, Francisco Caballero, holdyou?A He held me at the collar of my dress. (Witness holding the right portionof the collar of her dress.)Q After you answered Francisco, what did he do?A He said "Where have you been prostituting? You are a son of a bitch."Then I told him "What is your business. Anyway you have already left us.You have nothing to do with us."Q When Francisco heard these words, what did he do?A Francisco said "What do you mean by saying l have nothing to do withyou. I will kill you all. I will kill you all."Q And then, what happened?A He held my hair and slapped my face twice. Then I staggered and mynose was bleeding.Q Do you mean to say that blood flowed out of your nose?

A Yes, sir.Q After you were slapped twice and your nose begun to bleed, whathappened next?A He held the front part of my dress just below the collar and pushed metowards the ground. .Q While your husband was holding your dress below the neck and triedto push you down, what did you do?A I held a part of his body in order that I would not fall to the ground.Q And then what happened?A Because I struggled hard in order that I would not fall to the ground Iheld his belt and that was the time I got hold of a weapon along his beltline.Q After that what happened?A He shoved my hands upward and pushed me to the ground and thatwas the time my hands were released. He was choking me.Q When you said your hands were released, was that before or after youwere choked by Francisco Caballero?A At that time when I was about to fall to the ground that was the time Ireleased my hands.Q When you were almost fallen to the ground, where were the hands ofFrancisco Caballero?A On my hair.Q You mean to say the two hands of Francisco Caballero?A One of his hands was holding my hair. The other hand pushed me.COURT:Q What hand was holding your hair?A His right hand was holding my hair while his left hand pushed me.ATTORNEY GARCIA:Q When you were fallen to the ground what happened?A While I lay prostrate on the ground and believing that I have no otherrecourse, while his left hand was holding my neck, I was able to takehold of the weapon from his belt line and I thrust it to him.Q What was this weapon which you were able to get from his belt line?A It was a hunting knife." (tsn. pp. 53-55, witness Cunigunda Caballero)

On cross-examination, appellant was asked by the private prosecutor to show her position when shestabbed her husband and she did, and although the stenographic notes on that demonstration are verysketchy which We quote:

Q Please demonstrate to this Court when you made the thrust to yourhusband?A When I took hold of the hunting knife I made the thrust in this manner.(Witness held the ruler with her right hand kneeled on the floor)" (tsn. p.67, ibid)

still We can get a clear picture of what appellant must have done, from the questions and answersimmediately following the above-quoted portion of the transcript, viz:

Q You want to make us understand that when you thrust the weapon tothe body of your husband you were lying down flat to the ground?A I was lying flat on the ground face upward. I was a little bit inclinedbecause tried to struggle trying to get away from the hold of my husband.

Q You want to make us understand that your back was touching theground when you made the thrust to your husband?A Yes, sir.COURT:Q Where were you kneeled by your, husband?A On my right thigh. (ibid; emphasis supplied)

Thus, with her husband kneeling over her as she lay on her back on the ground and his hand choking herneck, appellant, as she said, had no other recourse but to pull out the knife inserted at the left side of herhusband's belt and plunge it at his body hitting the left back portion just below the waist, described by theattending physician, Dr. Cesar Samson, as the left lumbar region. The fact that the blow landed in thevicinity from where the knife was drawn is a strong indication of the truth of appellant's testimony, for asshe lay on the ground with her husband bent over her it was quite natural for her right hand to get hold ofthe knife tucked in the left side of the man's belt and thrust it at that section of the body nearest to herhand at the moment.We do not agree with the trial judge's observation that as demonstrated by the accused it was physicallyimpossible for her to get hold of the weapon because the two knees of her husband were on her rightthigh "which would have forced her to put her right elbow towards the ground"(see p. 9 of Decision), foreven if it were true that the two knees of Francisco were on his wife's right thigh, however, thereis nothing in the record to show that the right arm of the accused was held, pinned down or renderedimmobile, or that she pressed her elbow to the ground, as conjectured by the trial judge, in such a mannerthat she could not reach for the knife. On the contrary, as indicated earlier, accused testified and sodemonstrated that she was lying flat on her back, her husband kneeling over her and her right arm free topull out the knife and strike with it.The trial judge also referred the a demonstration made by appellant of that portion of her testimony whenshe was held by the hair and pushed down to the ground, and His Honor commented that "(S)he couldnot be falling to the ground, as shown to the Court by her, considering the fact that the pushing was toand fro as shown in her demonstration." (p. 8, Decision) The trial judge, however, failed to consider that itis humanly impossible to have an exact and accurate reproduction or reenactment of an occurrenceespecially if it involves the participation of persons other than the very protagonists of the incident beingre-enacted. In this particular instance appellant was asked by the private prosecutor to show how she waspushed down by her husband, and her demonstration is described in the stenographic transcript asfollows:

Q Please demonstrate to this Court the position of your husband and youwhile your husband held your hair.A He did this way. (Witness held the hair of the Court Interpreter with hisleft hand and his right hand held the right shoulder of the Interpreter andpulled the Interpreter to and fro. The Interpreter represented as theaccused and the accused as the deceased.)Q Where were your two hands?A My two hands held his waist line. (tsn. 66, witness CunigundaCaballero; emphasis supplied)

In that demonstration, accused represented the victim while she in turn was impersonated by the courtinterpreter, and so it was difficult if not impossible for the two to give an accurate reenactment consideringthat the accused assumed a role not hers during the actual incident and the court interpreter played a partwhich was not truly his. At any rate, the accused showed how one hand of her husband held her hairwhile the other pushed her down by the shoulder, and to portray how she in turn struggled and tried topush back her husband to keep herself from falling, she "pulled the interpreter (representing the accused)to and fro." The fact is that Francisco succeeded in forcing appellant down to the ground as portrayed by

the latter when, following the foregoing demonstration, she was asked by the private prosecutor to showhow she stabbed her husband — a matter which is discussed in pages 8 and 9 of this Decision.It is this particular location of the wound sustained by the victim which strongly militates against thecredibility of the lone prosecution witness, Ignacio Barabad. This witness declared that on that night whenhusband and wife met on the road, Cunigunda called Francisco and when the latter was near, sheimmediately stabbed him. If that were true, that is, husband and wife were standing face to face at adistance of one-half meter when the stabbing occurred (tsn. p. 11, witness Ignacio Barabad), it wouldhave been more natural and probable for the weapon to have been directed towards the front part of thebody of the victim such as his abdomen or chest, rather than at his back, left side, just above the leftthigh.In cases such as the one now before Us where there are directly conflicting versions of the incident objectof the accusation, the Court in its search for the truth perforce has to look for some facts or circumstanceswhich can be used as valuable aids in evaluating the probability or improbability of a testimony, for afterall the element of probability is always involved in weighing testimonial evidence 13, so much so that whena court as a judicial fact-finder pronounces judgment that a set of facts constitute the true happening itdoes so not of its own personal knowledge but as the result of an evaluating process of the probability orimprobability of a fact sought to be proved.Thus, in People vs. Aquino, L-32390, December 28, 1973, a decision of the First Division of this Courtpenned by Chief Justice Querube C. Makalintal, the plea of self-defense of the accused-appellant wassustained on the basis of certain "physical and objective circumstances" which proved to be of "decisiveimportance" in ascertaining the veracity of the plea of self-defense, to wit: the location of the wound onthe right side of the throat and right arm of the deceased, the direction of the trajectories of the bulletsfired by the accused, the discovery of bloodstains at the driver's seat, the finding of the dagger andscabbard of the deceased, and so on. 14

In the case of appellant Cunigunda Caballero, We find the location of the fatal wound as a valuablecircumstance which confirms the plea of self-defense.Another, is the lack of motive of appellant in attacking and killing her husband on that particular night ofJanuary 2. Although it is the general rule that the presence of motive in the killing of a person is notindispensable to a conviction especially where the identity of the assailant is duly established by othercompetent evidence or is not disputed, as in this case, nonetheless, the absence of such motive isimportant in ascertaining the truth as between two antagonistic theories or versions of the killings. 15

We disagree with the statement of the court a quo that appellant's motive for killing her husband was hisabandonment of her and his failure to support her and her child. While appellant admitted in the course ofher testimony that her marriage was not a happy one, that she and her husband separated in the monthof October, 1957, and since then she and her child lived with her parents who supported them,nevertheless she declared that notwithstanding their separation she still loved her husband (tsn. p. 59,cross-examination of appellant). As a matter of fact, appellant had been living with her parents for severalmonths prior to the incident in question and appeared resigned to her fate. Furthermore, there is norecord of any event which occurred immediately prior to January 2 which could have aroused her feelingsto such a degree as to drive her to plan and carry out the killing of her husband.On the other hand, it was Francisco Caballero who had a reason for attacking his wife, Cunigunda.Meeting his wife unexpectedly at past midnight on the road, Francisco reacted angrily, and suspectingthat she was out for some bad purpose he held her by the collar of her dress and said: "Where have youbeen prostituting? You are a son of a bitch." This was followed by a slapping on the face until Cunigunda'snose bled, pulling of her hair, pushing her down to the ground, and strangling her — all of whichconstituted the unlawful aggression against which appellant had to defend herself.Next to appellant's lack of motive for killing her husband, is her conduct shortly after the occurrence . Assoon as the sun was up that morning of January 3 (the stabbing occurred past midnight of January 2),Cunigunda went to the city and presented herself at the police headquarters where she reported that she

stabbed her husband and surrendered the blood-stained dress she wore that night. On this point, the trialjudge stated that appellant made contradictory statements in her testimony concerning the report madeby her to the police authorities, for while at the start she declared that she did not report the "choking byher husband", she later changed her testimony and stated that she did relate that fact. (p. 10, Decision)We have gone over the stenographic transcript of the testimony of appellant on direct examinationand nowhere is there a positive and direct statement of hers that she did not report that she was chokedby her husband. What the trial judge asked of appellant was whether or not she told the police about thefist mark on her face and her answer was "No, sir, I forgot." (tsn. p. 55, supra) And on appellant's cross-examination, there was no question propounded and therefore there was no answer given on the subject-matter of appellant's report to the police concerning the incident except for the following:

COURT:Q Did you show that dress to the police authorities the following day?A I was not able to wear that, Your Honor, because it was torn out.Q You did not bring that to the police authorities?A I showed it to the police authorities, and they told me to keep it, not totouch it. (Tsn. p. 65, ibid)

We do not see, therefore, the alleged contradiction in appellant's testimony which was singled out by HisHonor as one of his reasons for discrediting her plea of self-defense.That appellant made it clear to the police that she stabbed her husband because he attacked her isconfirmed by no less than the prosecution witness, Patrolman Restituto Mariveles, who was on duty at thedesk when appellant arrived at the police headquarters. This witness on cross-examination declared:

Q And she also told you that on that night previous to the incident herhusband Francisco Caballero beat her up, is that right?A She told me that she was met on the way by her husband immediatelyafter carolling and she was manhandled by her husband and when shewas struggling to get loose from her husband she happened to take holdof a knife that was placed under the belt of her husband and becauseshe was already half conscious she did not know that she was able tothrust said knife to the stomach of her husband. (tsn. p. 23, witness R.Mariveles)

It is indeed regrettable that the statements made by appellant to the police upon her surrender were nottaken down in writing to serve as a faithful and reliable account of her report, nevertheless, We aresatisfied by the fact, which is not disputed, that of her own accord appellant went to the police authoritiesearly in the morning of January 3, informed Policeman Mariveles that she stabbed her husband becausehe manhandled her which rendered her "half-conscious", and brought and showed the dress she woreduring the incident which was torn by the collar and with blood stains due to the bleeding of her nose.Another policeman, Joventino de Leon, who at the time was property custodian of the Ormoc City police,corroborated appellant's testimony concerning the dress marked Exhibit 1 for the defense. (tsn. p. 70witness J. de Leon) If there was no clear and positive statement in appellant's testimony either on director cross examination that she informed the police that she was choked by her husband, it was because,as We noted, no question was propounded to her on that point.While We are on this subject of appellant's surrender, mention is to be made of the knife marked asExhibit C for the prosecution. In her testimony, appellant stated that Exhibit C was not the knife actuallyused by her in stabbing her husband because the true weapon was her husband's Moro hunting knifewith a blade of around six inches which she threw away immediately after the incident; that when she wasasked by Pat. Mariveles to look for the weapon and she could not find it, she was advised by policemanCabral who helped her in the search to get any knife and surrender it to the desk officer and so she tookthe knife Exhibit C and presented it to Pat. Mariveles. (tsn. appellant pp. 56-57, 60) This testimony ofappellant was taken against her by the court a quo which held that her declaration could not have been

true. We find however no strong reason for disbelieving the accused on this point. Appellant does notdeny that she turned over Exhibit C to Pat. Mariveles as the knife with which she stabbed her husbandbut she claims that she did so upon advise of another policeman, Pat. Cabral, and it is quite significantthat the latter was not called upon by the prosecution to refute such declaration. There is sincerity inappellant's attempt to rectify a misstatement made by her to Pat. Mariveles and We are inclined to believeand in fact We do believe that the fatal weapon must have had indeed a blade of around six inches asstated by appellant for it to penetrate through the left lumbar region to the victim's large intestine andcause the discharge of fecal matter (tsn. Dr. C. Samson, p. 6)All the elements of self-defense are indeed present in the instant case.The element of unlawful aggression has been clearly established as pointed out above.The second element, that is, reasonable necessity for the means employed is likewise present. Here wehave a woman who being strangled and choked by a furious aggressor and rendered almost unconsciousby the strong pressure on her throat had no other recourse but to get hold of any weapon within her reachto save herself from impending death. Early jurisprudence of this Court has followed the principle thatthe reasonable necessity of the means employed in self-defense does not depend upon the harm donebut rests upon the imminent danger of such injury. (U.S. vs. Paras, 1907, 9 Phil. 367, citing Decision ofDec. 22, 1887) And so the fact that there was no visible injury caused on the body of the appellant whichnecessitated medical attention, a circumstance noted by the trial court, is no ground for discrediting self-defense; what is vital is that there was imminent peril to appellant's life caused by the unlawful aggressionof her husband. The knife tucked in her husband's belt afforded appellant the only reasonable means withwhich she could free and save herself from being strangled and choked to death. What this Courtexpressed in the case of People vs. Lara, 1925, 48 Phil. 153, 160, is very true and applicable to thesituation now before Us, and We quote:

It should be borne in mind that in emergencies of this kind human nature does not actupon processes of formal reason but in obedience to the instinct of self-preservation; andwhen it is apparent, as in this case, that a person has reasonably acted upon this instinct,it is the duty of the courts to sanction the act and to hold the actor irresponsible in law forthe consequences. 16

Equally relevant is the time-honored principle: Necessitas Non habet legem. Necessity knows no law.The third element of self-defense is lack of sufficient provocation on the part of the person defendinghimself.Provocation is sufficient when it is proportionate to the aggression, that is, adequate enough toimpel one to attack the person claiming self-defense. 17 Undoubtedly appellant herein did not give sufficient provocation to warrant the aggression orattack on her person by her husband, Francisco. While it was understandable for Francisco to be angry athis wife for finding her on the road in the middle of the night, however, he was not justified in inflictingbodily punishment with an intent to kill by choking his wife's throat. All that appellant did was to provokean imaginary commission of a wrong in the mind of her husband, which is not a sufficient provocationunder the law of self-defense. Upon being confronted by her husband for being out late at night, accusedgave a valid excuse that she went carolling with some friends to earn some money for their child. January2 was indeed within the Christmas season during which by tradition people carol from house to house andreceive monetary gifts in a Christian spirit of goodwill. The deceased therefore should have given someconsideration to his wife's excuse before jumping to conclusions and taking the extreme measure ofattempting to kill his wife.IN VIEW OF THE ABOVE CONSIDERATIONS, We find that accused-appellant acted in the legitimatedefense of her person, and We accordingly set aside the judgment of conviction and ACQUIT her withcosts de oficio.So Ordered.Makalintal, C.J, Teehankee, Makasiar and Esguerra, JJ., concur.Castro, J, is on leave.

Footnotes

1 This appeal was originally elevated to the Court of Appeals; however, in a Resolutionpromulgated on May 7, 1964, it forwarded the case to this Court on the ground that thepenalty for the crime committed by the accused is reclusion perpetua.2 Marriage contract marked Exhibit G.3 T.s.n. March 19, 1958, pp. 3-7, witness Ignacio Barabad.4 T.s.n. April 18, 1958, pp. 2-7, witness Dr. Cesar Samson.5 T.s.n. June 24, 1958, pp. 16-17, witness Restituto Mariveles.6 T.s.n. June 24, 1958, pp. 28-32, witness Covero; t.s.n. June 24, 1958. pp. 54-62, 67,witness Tomada; t.s.n. pp. 72-73 witness Cresencio Caballero.7 see death certificate marked Exhibit H.8 T.s.n. August 12, 1958, pp. 58-68, witness Cunigunda Caballero.9 see 1 Viada, 172, 5th edition. "That which anyone should do for the safety of his ownperson is to be adjudged as having been done justly in his own favor." (Writer'stranslation).10 Guillermo B. Guevara's Penal Science and Philippine Criminal Law, 1974 ed. p. 82,citing: Pessina par. 73, Carrara par. 291; and Calon Derecho Penal, 292.11 U.S. vs. Coronet, 30 Phil. 112, People vs. Cruz, 53 Phil. 635; People vs. Ansoyon, 75Phil. 772; People vs. Davis, L-13337, Feb. 16, 1961, 1 SCRA 473; People vs. Solana, L-13967, Sept. 29, 1962, 6 SCRA 60; People vs. Mendoza, L-16392, January 30, 1965, 13SCRA 11; People vs. Talaboc, L-25004, October 31, 1969, 30 SCRA 87; People vs.Ordiales, November 23, 1971, 42 SCRA 238; People vs. Tingson, L-31228, October 24,1972, 47 SCRA 243; People vs. Llamera, L-21604-5-6", May 25, 1973, 51 SCRA 48.12 pp. 7-9, Decision found in pp. 267-269, original record.13 Underhill's Criminal Evidence, 5th edition, Vol. 1, pp. 2-3, cited in Francisco'sEvidence, Vol. VII, Part 1, p. 68.14 see also People vs. Maliwanag, et al., L-30302, August 14, 1974 (1st Division)15 People vs. Zamora, 59 Phil. 568; People vs. Ramponit 62 Phil. 284; People vs.Divinagracia, 105 Phil. 281; People vs. Ester Murray, 105 Phil. 591; People vs.Macabenta, 106 Phil. 77.16 see also People vs. Encomienda, No. L-26750, August 18, 1972, 46 SCRA p. 522.17 Guevara's supra p. 89, citing Decision of Supreme Court of Spain, February 20, 1893,50 Jur. Crim. 166-168; Padilla's Criminal Law, Book I, 1971 ed., p. 197.

G.R. No. L-56358 October 26, 1990PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.LUIS B. TORING DIOSDADO BERDON and CARMELO B. BERDIN, accused-appellants.The Solicitor General for plaintiff-appellee.Fil C. Veloso counsel de oficio for Luis B. Toring.Joel P. Alino for Berdon and Berdin. FERNAN, C.J.:The appellants herein seek the reversal of the October 28, 1980 decision of the Circuit Criminal Court inCebu City in Criminal Case No. CCC-XIV-2170, the dispositive portion of which reads:

WHEREFORE, the Court finds the accused Luis B. Toring guilty beyond reasonabledoubt of the crime of MURDER by direct participation as principal; Diosdado Berdon asaccomplice thereto; and Carmelo Berdin as accessory after the fact.

Appreciating in favor of the accused Luis B. Toring the mitigating circumstance ofvoluntary surrender, the said circumstance having been offset by the aggravatingcircumstance of nighttime, the accused Luis Toring should be, as he is, hereby sentencedto the penalty of RECLUSION PERPETUA, with the accessory penalties of law.There being neither mitigating nor aggravating circumstances on the part of the accusedDiosdado Berdon, the said accused should as he is hereby sentenced to theindeterminate penalty of from SIX (6) YEARS of Prision Correccional, as minimum, toTWELVE (12) and ONE (1) DAY of ReclusionTemporal, as maximum, with the accessorypenalties of the law.Appreciating in favor of the accused Carmelo Berdin, the privileged mitigatingcircumstance of minority, the said accused being only 17 years of age, the accusedCarmelo Berdin should be, as he is, sentenced to the penalty of SIX (6) MONTHS andONE (1) DAY of Prision Correccional, with the accessory penalties of the law.The defendants shall jointly and solidarily indemnify the heirs of the deceased SamuelAugusto for actual and compensatory damages in the sum of P15,000.00 and for moraldamages in the sum of P50,000.00, without subsidiary imprisonment in case ofinsolvency.The instrument of the crime, the knife, Exhibit "B", is confiscated in favor of thegovernment.Proportionate costs.SO ORDERED. 1

According to the prosecution, the antecedent facts are as follows:In the evening of May 25, 1980, a benefit dance was held at sitio Naga, Babag II, Lapu-lapu City for thelast canvassing of votes for the candidates for princesses who would reign at the sitio fiesta. As one of thecandidates was the daughter of Samuel Augusto, he and the members of his family attended the affair.Also present were members of the kwaknit gang, a group which was noted for their bird-like way ofdancing and their propensity for drunkenness and provoking trouble. Its president, called the "alas" king,was Luis Toring. The group was then outside the dancing area which was ringed by benches.At around 10:45 p.m., Samuel's daughter was proclaimed the winner in the contest. Beer and softdrinkshaving been served the parents of the candidates by the officers of the Naga Chapel Association whichtook charge of the affair, Samuel was tipsy when, after his daughter's proclamation, he stepped out of thedancing area to answer the call of nature.At that moment, barangay tanod Felix Berdin saw Luis Toring, Carmelo Berdin and Diosdado Berdonproceed to a dark area while whispering to each other. Diosdado Berdon handed a knife to LuisToring, 2 who then approached Samuel from behind, held Samuel's left hand with his left hand, and withhis right hand, stabbed with the knife the right side of Samuel's abdomen. 3 Upon seeing Felix runningtowards them, Luis Toring pulled out the knife and, together with Carmelo Berdin and Diosdado Berdon,ran towards the dark. Felix tried to chase the three but he was not able to catch them. He returned towhere Samuel had slumped and helped others in taking Samuel to the hospital.According to Maria Catalina Sorono, who was six (6) meters away from Samuel and Luis when theassault occurred, Diosdado Berdon and Carmelo Berdin were poised to deliver fist blows on Samuel justbefore Luis Toring stabbed him. Diosdado gave the knife to Luis Toring. 4

As soon as she saw the stabbing of Samuel, Maria Catalina shouted for help. The three assailants rantowards the direction of the fields. Jacinto Lobas and Mario Andog responded to her shouts and broughtSamuel to the Opon Emergency Hospital where he died on arrival. According to the necropsyreport, 5 Samuel, who was thirty years old, died due to massive hemorrhage secondary to the stab woundon the abdomen. Said wound is described in the report as follows:

Stab wound, with herniation of omental issues; elliptical, 3.5 cms. long, running verticallydownward, edges clean-cut, superior extremity rounded, inferior extremity sharp, located

at the abdominal region, right anterior aspect, 7.5 cms. to the right of anterior median lineand 107.0 cms. above right heel, directed backward, upward and medially, involving skinand the underlying soft tissues, penetrating right peritoneal cavity, incising inferior venacava, attaining an approximate depth of 15.0 cms.

The death weapon, a kitchen knife made of stainless steel and with a red-colored handle, was recoveredfrom the house of Luis Toring. According to Patrolman Pantaleon P. Amodia, the police found out duringthe investigation that Luis Toring had left the weapon with "Camilo" Berdin. When the police confrontedBerdin, the latter led them to the house of Toring which Berdin entered. When he emerged from thehouse, Berdin handed the weapon to the police. 6

An information for murder was filed against Toring. Subsequently, however, the information was amendedto include Diosdado Berdon and Carmelo Berdin as defendants. The three were charged therein withconspiracy in killing Samuel Augusto in a treacherous manner. Berdon, it was alleged, "convenientlysupplied the death weapon" which Toring used in stabbing Samuel while Berdin allegedly concealed theweapon to prevent its discovery by the police. 7 The crime was purportedly committed with the attendanceof the generic aggravating circumstances of evident premeditation and nighttime.All three accused pleaded not guilty to the offense charged. At the trial, Luis Toring, alias "Lowe," testifiedthat he was not the president of the kwaknit gang. He went to the benefit dance in the company of VenirYbañez, Joel Escobia, Ely Amion, Abel Pongase, Abe Berdon, Genio Berdin and Alex Augusta. Toring andhis group were standing outside the dancing area when, at around eleven o'clock in the evening, Samuel,a known tough guy ("maldito"), approached them and held Venir Ybanez by his collar. Then Samuel thrustthe butt of his shotgun on the chin of Joel Escobia, 8 proceeded to another group who were alsogangmates of Toring, and again, with the barrel of his shotgun, hit Eli Amion's chest several times. 9

Reacting to what he saw, Toring got his kitchen knife which was tucked in his waist, approached Samuelfrom the latter's right side and stabbed him once as he did not intend to kill Samuel. Toring then rantowards the dark portion of the area and went home. There, he left the knife and proceeded to the hut bythe fishpond of one Roman. 10

Toring was sleeping in the hut with his older brother, Arsenio, when, at around 4:00 o'clock in the morningof May 26, 1980, Edgar Augusto, the younger brother of Samuel, shot them. Arsenio was hit on the leftleg and he stayed two months in the hospital for the treatment of his wound. 11

At 2:00 o'clock in the afternoon of May 26, 1980, Toring surrendered to two Philippine Constabularysoldiers. 12They brought him to the police of Lapu-lapu City on May 28, 1980. 13 When the police askedhim about the knife he used in stabbing Samuel, Toring told them to go to Carmelo Berdin because hewas the only person who knew where Toring hid it.14 Asserting that he was the one who returned the knifeto his own house, Toring testified that Carmelo Berdin used to see him hide his weapons upstairsbecause Berdin was a frequent visitor of his. 15

For his part, Carmelo, a 5 feet tall, asthmatic 17-year-old whom the court described as "lilliputian,"admitted that he witnessed the stabbing incident but he ran away with his group immediately afterbecause he was afraid he might be shot by Samuel. He was with Toring when the latter hid the stillbloodied knife under a trunk in Toring's house. He was familiar with the hiding place of the knife becauseToring showed it to him and there were times when he would get the knife there upon Toring's request.Carmelo corroborated Toring's testimony that on that fateful night, Toring carried the knife tucked at theback of his waistline. 16

In court, Toring testified that he never saw Diosdado at the dance. 17 However, in his sworn statementdated May 28, 1980 and marked as Exhibit D, Toring stated that he took the knife from Diosdado to stabSamuel. Confronted with said statement, Diosdado said that when he asked Toring why he implicatedhim, Toring allegedly replied that he "included" Diosdado because of the case the barangay brigade hadfiled against Toring. 18

According to Diosdado, he did not attend the May 25 dance because of the trouble which erupted duringthe dance the night before. He did not have anything to do with the stabbing of Samuel. He admitted,

however, that a week after the incident, his family went to barrio Andaliw Ronda, Cebu, for their yearlyvisit to his father-in-law. He stayed there for fifteen days and would have stayed longer had not his motherinformed him of the subpoena addressed to him. 19

On October 28, 1980, a day after the last day of hearing, the lower court 20 rendered a decisiondiscrediting Toring's claim that the killing of Samuel was justified because it was done in defense of astranger pursuant to Article 11 (3) of the Revised Penal Code. The lower court found that Toring was the"aggressor acting in retaliation or revenge by reason of a running feud or long-standing grudge" betweenthe kwaknit gang and the group of Samuel, who, being the son of the barangay captain, was a "power tobe reckoned with." It mentioned the fact that a year before the incident in question, Toring was shot byEdgar Augusto (Samuel's brother) and hence, in his desire to avenge himself, Toring, "needed but a littleexcuse to do away with the object of his hatred. 21

The lower court could not believe that Samuel brought along his shotgun to the dance because he was"not reputed to be a public official or functionary entitled to possess a firearm." Otherwise, the police andthe barangay tanod would have arrested him. The court surmised that if Samuel really carried a shotgun,he certainly must have had a permit or license to possess the same.It noted that while Toring testified that Samuel was aiming his shotgun at the chest of Ely Amyon (Amion),prosecution witness Joel Escobia claimed that he was at the receiving end of Samuel's thrusts with thebutt of his shotgun. To the court, such discrepancy is fatal to the defense because in appreciating thejustifying circumstance of defense of a stranger, the court must know "with definiteness the identity of thestranger defended by the accused." 22

The lower court, however, ruled out the existence of conspiracy among the three accused on the groundthat there was no proof on what they were whispering about when Felix saw them. Accordingly, it heldthat the accused have individual or separate liabilities for the killing of Samuel: Toring, as a principal,Diosdado Berdon as an accomplice by his act of giving Toring the knife, and Carmelo Berdin as anaccessory for concealing the weapon. It considered treachery as the qualifying circumstance to the killing,found no proof as to allegation of evident premeditation but appreciated nighttime as an aggravatingcircumstance. It meted the accused the penalties mentioned above.All three accused appealed.Toring seeks his exoneration by contending that his assault on Samuel was justified because he acted indefense of his first cousin, Joel Escobia. Article 11 (3) of the Revised Penal Code provides that nocriminal liability is incurred by anyone "who acts in defense of ... his relatives ... by consanguinity withinthe fourth civil degree, provided that the first and second requisites prescribed in the next precedingcircumstance are present, and the further requisite, in case the provocation was given by the personattacked, that the one making defense had no part therein." The first and second requisites referred to areenumerated in paragraph (b) in the same article on selfdefense as: (a) unlawful aggression, and (b) lackof sufficient provocation on the part of the person defending himself.Joel Escobia, whose chin was hit with the butt of Samuel's shotgun, is the first cousin of Toring theirfathers being brothers, 23 although no explanation appears on record why they have different surnames.At any rate, this allegation on relationship was not rebutted by the prosecution.The appreciation of the justifying circumstance of defense of a relative, however, hinges in this case onthe presence of unlawful aggression on the part of the victim. Corollarily, the claim of Toring that Samuelwas, at the time of the assault, carrying a shotgun to intimidate Toring's group must be proven.Understandably, no prosecution witness attested that they saw Samuel with a firearm. The prosecutioneven recalled to the witness stand Samuel's widow who asserted that her husband did not own anyfirearm. 24 Going along with the prosecution's evidence, the lower court arrived at the rather gratuitousconjecture that Samuel could not have had a shotgun with him because no one without a permit wouldcarry a firearm without risking arrest by the police or the barangay tanod. At the same time, however, thelower court described Samuel as the son of the barangay captain who "had the run of the place and hadhis compelling presence felt by all and " sundry." 25

While matters dealing with the credibility of witnesses and appreciation of evidence are primarily the lowercourt's province, this Court has the power to determine whether in the performance of its functions, thelower court overlooked certain matters which may have a substantial effect in the resolution of acase. 26 Defense witness Joel Escobia was, besides Toring, the only witness whose sworn statement wastaken by the police on May 26, 1980, the day after the fatal assault on Samuel.In his sworn statement, 27 Escobia attested that as he was about to dance with a girl, Samuel stoppedhim, pointed his shotgun at him, took a bullet from his jacket pocket, showed it to Escobia and asked him,"Do you like this, Dong?" to which Escobia replied, "No, Noy I do not like that." Samuel then placed thebullet in the shotgun and was thus pointing it at Escobia when Toring came from behind Samuel andstabbed the latter. Even on cross-examination at the trial, Escobia did not depart from his statement. Infact he added that Samuel pointed the shotgun at his chin and told him to eat the bullet. 28

There is no reason to doubt Joel Escobia's assertion of Samuel's unlawful aggression inasmuch as hissworn statement 29 and testimony in court had not been successfully discredited by the prosecution whichalso failed to prove that Joel had reason to prevaricate to favor Toring.The presence of unlawful aggression on the part of the victim and the lack of proof of provocation on thepart of Toring notwithstanding, full credence cannot be given, to Toring's claim of defense of a relative.Toring himself admitted in court 30 as well as in his sworn statement 31 that in 1979, he was shot with a .22caliber revolver by Edgar Augusto, Samuel's brother. It cannot be said, therefore, that in attackingSamuel, Toring was impelled by pure compassion or beneficence or the lawful desire to avenge theimmediate wrong inflicted on his cousin. Rather, he was motivated by revenge, resentment or evilmotive 32 because of a "running feud" between the Augusto and the Toring brothers. As the defense itselfclaims, after the incident subject of the instant case occurred, Toring's brother, Arsenio, was shot on theleg by Edgar Augusto. Indeed, vendetta appears to have driven both camps to commit unlawful actsagainst each other. Hence, under the circumstances, to justify Toring's act of assaulting Samuel Augustowould give free rein to lawlessness.The lower court correctly considered the killing as murder in view of the presence of the qualifyingcircumstance of treachery. The suddenness of the assault rendered Samuel helpless even to use hisshotgun. We also agree with the lower court that conspiracy and evident premeditation were not provenbeyond reasonable doubt. Moreover, nighttime cannot be considered as an aggravating circumstance.There is no proof that it was purposely sought to insure the commission of the crime or prevent itsdiscovery. 33 However, Toring should be credited with the privileged mitigating circumstance of incompletedefense of relative and the generic mitigating circumstance of voluntary surrender.The penalty for murder under Article 248 of the Revised Penal Code being reclusion temporal maximumto death, the imposable penalty is prision mayor maximum to reclusion temporal medium in view of thepresence of the mitigating circumstances of incomplete defense of relative and voluntary surrender (Art.64 [5]). Applying the Indeterminate Sentence Law, the proper penalty to be meted on Toringis prision correctional maximum as minimum to prision mayor maximum as maximum penalty.On the culpability of Diosdado Berdon, the Court holds that his defense of alibi cannot be sustained in theabsence of proof that it was physically impossible for him to be at the scene of the crime when it wascommitted. 34His house was only a kilometer away from the place where he supplied the knife toToring. 35 That distance does not preclude the possibility that Diosdado aided Toring in the perpetration ofthe crime as it could be negotiated in just a few minutes by merely walking. 36 Moreover, his alibi wasuncorroborated as it was founded only on his own testimony and what appears as a self-exoneratingaffidavit. 37

But what pins culpability on Diosdado were the testimonies of at least two prosecution witnesses whopositively identified him as the one who gave Toring the knife. Motive, therefore, has become immaterialin the face of such positive identification 38 and hence, even if it were true that he was not a member ofthe kwaknit gang, his participation in the killing has been proven beyond reasonable doubt. Added to thisis the fact that Toring himself in his sworn statement before the police pointed to him as the source of the

knife. 39 Verily, Toting could not have implicated him because of the incomprehensible reason that a casehad been filed against Toring before the barangay brigade.Pursuant to Article 52 of the Revised Penal Code, as an accomplice by his previous act of supplyingToring the death weapon, Diosdado Berdon should be meted the penalty of prision mayor maximumto reclusion temporalmedium which is the penalty next lower in degree to reclusion temporal maximum todeath, the penalty prescribed for murder by Article 248 (Article 6 [3]). There being no mitigating oraggravating circumstances, the penalty should be in its medium period or reclusion temporal minimum(Article 64 [1]). Applying the Indeterminate Sentence Law, the minimum penalty should be taken fromprision mayor minimum while the maximum penalty should be within the period of reclusion temporalminimum.With regards to Carmelo Berdin, his culpability as an accessory to the murder has not been provenbeyond reasonable doubt. The fact that he knew where Toring hid the knife does not imply that heconcealed it to prevent its discovery (Article 19 [2]). There simply is no proof to that effect. On thecontrary, Luis Toring in his sworn statement and testimony during the trial testified that after stabbing thevictim, he ran away and went to his house to hide the murder weapon. Being a close friend of Toring anda frequent visitor to the latter's house, it is not impossible for Carmelo Berdin to know where Toring hid hisknives. Significantly, Carmelo readily acceded to the request of police officers to lead them to the placewhere Toring kept the knife. He willingly retrieved it and surrendered it to the police, a behavior we findinconsistent with guilt.WHEREFORE, the decision of the lower court is hereby affirmed insofar as it convicts Luis Toring asprincipal in the murder of Samuel Augusto and Diosdado Berdon as an accomplice thereto.The lower court's decision is modified as follows:(a) Luis Toring shall be imposed the indeterminate penalty of six (6) years of prisioncorreccional maximum as minimum to twelve (12) years of prision mayor maximum as maximum;(b) Diosdado Berdon shall suffer the indeterminate penalty of six (6) years and one (1) day of prisionmayorminimum as minimum to twelve (12) years and one (1) day of reclusion temporal minimum asmaximum;(c) Carmelo Berdin is acquitted as an accessory to the murder of Samuel Augusto, and(d) Luis Toring and Diosdado Berdon shall jointly and severally pay the heirs of Samuel Augusto anindemnity of thirty thousand pesos (P30,000.00). Costs against appellants Toring and Berdon.SO ORDERED.[G.R. No. 149275. September 27, 2004]VICKY C. TY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.D E C I S I O NTINGA, J.:

Petitioner Vicky C. Ty (“Ty”) filed the instant Petition for Review under Rule 45, seeking to set asidethe Decision[1] of the Court of Appeals Eighth Division in CA-G.R. CR No. 20995, promulgated on 31 July2001. The Decision affirmed with modification the judgment of the Regional Trial Court (RTC) of Manila,Branch 19, dated 21 April 1997, finding her guilty of seven (7) counts of violation of Batas Pambansa Blg.22[2] (B.P. 22), otherwise known as the Bouncing Checks Law.

This case stemmed from the filing of seven (7) Informations for violation of B.P. 22 against Ty beforethe RTC of Manila. The Informationswere docketed as Criminal Cases No. 93-130459 to No. 93-130465. The accusatory portion of the Information in Criminal Case No. 93-130465 reads as follows:That on or about May 30, 1993, in the City of Manila, Philippines, the said accused did then and therewillfully, unlawfully and feloniously make or draw and issue to Manila Doctors’ Hospital to apply onaccount or for value to Editha L. Vecino Check No. Metrobank 487712 dated May 30, 1993 payable toManila Doctors Hospital in the amount of P30,000.00, said accused well knowing that at the time of issueshe did not have sufficient funds in or credit with the drawee bank for payment of such check in full uponits presentment, which check when presented for payment within ninety (90) days from the date hereof,

was subsequently dishonored by the drawee bank for “Account Closed” and despite receipt of notice ofsuch dishonor, said accused failed to pay said Manila Doctors Hospital the amount of the check or tomake arrangement for full payment of the same within five (5) banking days after receiving said notice.Contrary to law.[3]

The other Informations are similarly worded except for the number of the checks and dates ofissue. The data are hereunder itemized as follows:

Criminal Case No. Check No. Postdated Amount 93-130459 487710 30 March 1993 30,000.00 93-130460 487711 30 April 1993 P30,000.00 93-130461 487709 01 March 1993 P30,000.00 93-130462 487707 30 December 1992 P30,000.00 93-130463 487706 30 November 1992 P30,000.00 93-130464 487708 30 January 1993 P30,000.00 93-130465 487712 30 May 1993 P30,000.00[4]

The cases were consolidated and jointly tried. At her arraignment, Ty pleaded not guilty.[5]

The evidence for the prosecution shows that Ty’s mother Chua Lao So Un was confined at theManila Doctors’ Hospital (hospital) from 30 October 1990 until 4 June 1992. Being the patient’s daughter,Ty signed the “Acknowledgment of Responsibility for Payment” in the Contract of Admission dated 30October 1990.[6] As of 4 June 1992, the Statement of Account[7] shows the total liability of the mother inthe amount ofP657,182.40. Ty’s sister, Judy Chua, was also confined at the hospital from 13 May1991 until 2 May 1992, incurring hospital bills in the amount of P418,410.55.[8] The total hospital bills ofthe two patients amounted to P1,075,592.95. On 5 June 1992, Ty executed a promissory note whereinshe assumed payment of the obligation in installments.[9] To assure payment of the obligation, she drewseveral postdated checks against Metrobank payable to the hospital. The seven (7) checks, eachcovering the amount of P30,000.00, were all deposited on their due dates. But they were all dishonoredby the drawee bank and returned unpaid to the hospital due to insufficiency of funds, with the “AccountClosed” advice. Soon thereafter, the complainant hospital sent demand letters to Ty by registeredmail. As the demand letters were not heeded, complainant filed the seven (7) Informations subject of theinstant case.[10]

For her defense, Ty claimed that she issued the checks because of “an uncontrollable fear of agreater injury.” She averred that she was forced to issue the checks to obtain release for her motherwhom the hospital inhumanely and harshly treated and would not discharge unless the hospital bills arepaid. She alleged that her mother was deprived of room facilities, such as the air-condition unit,refrigerator and television set, and subject to inconveniences such as the cutting off of the telephone line,late delivery of her mother’s food and refusal to change the latter’s gown and bedsheets. She alsobewailed the hospital’s suspending medical treatment of her mother. The “debasing treatment,” shepointed out, so affected her mother’s mental, psychological and physical health that the lattercontemplated suicide if she would not be discharged from the hospital. Fearing the worst for her mother,and to comply with the demands of the hospital, Ty was compelled to sign a promissory note, open anaccount with Metrobank and issue the checks to effect her mother’s immediate discharge. [11]

Giving full faith and credence to the evidence offered by the prosecution, the trial court found that Tyissued the checks subject of the case in payment of the hospital bills of her mother and rejected thetheory of the defense.[12] Thus, on 21 April 1997, the trial court rendered a Decisionfinding Ty guilty ofseven (7) counts of violation of B.P. 22 and sentencing her to a prison term. The dispositive part ofthe Decision reads:CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7) checks in payment of a validobligation, which turned unfounded on their respective dates of maturity, is found guilty of seven (7)counts of violations of Batas Pambansa Blg. 22, and is hereby sentenced to suffer the penalty ofimprisonment of SIX MONTHS per count or a total of forty-two (42) months.

SO ORDERED.[13]

Ty interposed an appeal from the Decision of the trial court. Before the Court of Appeals, Tyreiterated her defense that she issued the checks “under the impulse of an uncontrollable fear of a greaterinjury or in avoidance of a greater evil or injury.” She also argued that the trial court erred in finding herguilty when evidence showed there was absence of valuable consideration for the issuance of the checksand the payee had knowledge of the insufficiency of funds in the account. She protested that the trialcourt should not have applied the law mechanically, without due regard to the principles of justice andequity.[14]

In its Decision dated 31 July 2001, the appellate court affirmed the judgment of the trial court withmodification. It set aside the penalty of imprisonment and instead sentenced Ty “to pay a fine of sixtythousand pesos (P60,000.00) equivalent to double the amount of the check, in each case.” [15]

In its assailed Decision, the Court of Appeals rejected Ty’s defenses of involuntariness in theissuance of the checks and the hospital’s knowledge of her checking account’s lack of funds. It held thatB.P. 22 makes the mere act of issuing a worthless check punishable as a special offense, it beinga malum prohibitum. What the law punishes is the issuance of a bouncing check and not the purpose forwhich it was issued nor the terms and conditions relating to its issuance.[16]

Neither was the Court of Appeals convinced that there was no valuable consideration for theissuance of the checks as they were issued in payment of the hospital bills of Ty’s mother.[17]

In sentencing Ty to pay a fine instead of a prison term, the appellate court applied the case of Vacav. Court of Appeals [18] wherein this Court declared that in determining the penalty imposed for violation ofB.P. 22, the philosophy underlying the Indeterminate Sentence Law should be observed, i.e., redeemingvaluable human material and preventing unnecessary deprivation of personal liberty and economicusefulness, with due regard to the protection of the social order.[19]

Petitioner now comes to this Court basically alleging the same issues raised before the Court ofAppeals. More specifically, she ascribed errors to the appellate court based on the following grounds:

A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER WAS FORCED TOOR COMPELLED IN THE OPENING OF THE ACCOUNT AND THE ISSUANCE OF THESUBJECT CHECKS.

B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF AN UNCONTROLLABLEFEAR OF A GREATER INJURY OR IN AVOIDANCE OF A GREATER EVIL OR INJURY.

C. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE OF VALUABLECONSIDERATION IN THE ISSUANCE OFTHE SUBJECT CHECKS.

D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE CHECKS WAS FULLYAWARE OF THE LACK OF FUNDS IN THE ACCOUNT.

E. THE HONORABLE COURT OF APPEALS, AS WELL AS THE HONORABLE TRIALCOURT [,] SHOULD NOT HAVE APPLIED CRIMINAL LAW MECHANICALLY, WITHOUTDUE REGARD TO THE PRINCIPLES OF JUSTICE AND EQUITY.

In its Memorandum,[20] the Office of the Solicitor General (OSG), citing jurisprudence, contends that acheck issued as an evidence of debt, though not intended to be presented for payment, has the sameeffect as an ordinary check; hence, it falls within the ambit of B.P. 22. And when a check is presented forpayment, the drawee bank will generally accept the same, regardless of whether it was issued in paymentof an obligation or merely to guarantee said obligation. What the law punishes is the issuance of abouncing check, not the purpose for which it was issued nor the terms and conditions relating to itsissuance. The mere act of issuing a worthless check is malum prohibitum.[21]

We find the petition to be without merit and accordingly sustain Ty’s conviction.Well-settled is the rule that the factual findings and conclusions of the trial court and the Court of

Appeals are entitled to great weight and respect, and will not be disturbed on appeal in the absence ofany clear showing that the trial court overlooked certain facts or circumstances which would substantiallyaffect the disposition of the case.[22] Jurisdiction of this Court over cases elevated from the Court of

Appeals is limited to reviewing or revising errors of law ascribed to the Court of Appeals whose factualfindings are conclusive, and carry even more weight when said court affirms the findings of the trial court,absent any showing that the findings are totally devoid of support in the record or that they are soglaringly erroneous as to constitute serious abuse of discretion.[23]

In the instant case, the Court discerns no compelling reason to reverse the factual findings arrived atby the trial court and affirmed by the Court of Appeals.

Ty does not deny having issued the seven (7) checks subject of this case. She, however, claims thatthe issuance of the checks was under the impulse of an uncontrollable fear of a greater injury or inavoidance of a greater evil or injury. She would also have the Court believe that there was no valuableconsideration in the issuance of the checks.

However, except for the defense’s claim of uncontrollable fear of a greater injury or avoidance of agreater evil or injury, all the grounds raised involve factual issues which are best determined by the trialcourt. And, as previously intimated, the trial court had in fact discarded the theory of the defense andrendered judgment accordingly.

Moreover, these arguments are a mere rehash of arguments unsuccessfully raised before the trialcourt and the Court of Appeals. They likewise put to issue factual questions already passed upon twicebelow, rather than questions of law appropriate for review under a Rule 45 petition.

The only question of law raised whether the defense of uncontrollable fear is tenable to warrant herexemption from criminal liability has to be resolved in the negative. For this exempting circumstance tobe invoked successfully, the following requisites must concur: (1) existence of an uncontrollable fear; (2)the fear must be real and imminent; and (3) the fear of an injury is greater than or at least equal to thatcommitted.[24]

It must appear that the threat that caused the uncontrollable fear is of such gravity and imminencethat the ordinary man would have succumbed to it. [25] It should be based on a real, imminent orreasonable fear for one’s life or limb.[26] A mere threat of a future injury is not enough. It should not bespeculative, fanciful, or remote.[27] A person invoking uncontrollable fear must show therefore that thecompulsion was such that it reduced him to a mere instrument acting not only without will but against hiswill as well.[28] It must be of such character as to leave no opportunity to the accused for escape.[29]

In this case, far from it, the fear, if any, harbored by Ty was not real and imminent. Ty claims that shewas compelled to issue the checks a condition the hospital allegedly demanded of her before hermother could be discharged for fear that her mother’s health might deteriorate further due to theinhumane treatment of the hospital or worse, her mother might commit suicide. This is speculative fear; itis not the uncontrollable fear contemplated by law.

To begin with, there was no showing that the mother’s illness was so life-threatening such that hercontinued stay in the hospital suffering all its alleged unethical treatment would induce a well-groundedapprehension of her death. Secondly, it is not the law’s intent to say that any fear exempts one fromcriminal liability much less petitioner’s flimsy fear that her mother might commit suicide. In other words,the fear she invokes was not impending or insuperable as to deprive her of all volition and to make her amere instrument without will, moved exclusively by the hospital’s threats or demands.

Ty has also failed to convince the Court that she was left with no choice but to commit a crime. Shedid not take advantage of the many opportunities available to her to avoid committing one. By her veryown words, she admitted that the collateral or security the hospital required prior to the discharge of hermother may be in the form of postdated checks or jewelry.[30] And if indeed she was coerced to open anaccount with the bank and issue the checks, she had all the opportunity to leave the scene to avoidinvolvement.

Moreover, petitioner had sufficient knowledge that the issuance of checks without funds may result ina violation of B.P. 22. She even testified that her counsel advised her not to open a current account norissue postdated checks “because the moment I will not have funds it will be a big problem.” [31] Besides,

apart from petitioner’s bare assertion, the record is bereft of any evidence to corroborate and bolster herclaim that she was compelled or coerced to cooperate with and give in to the hospital’s demands.

Ty likewise suggests in the prefatory statement of her Petition and Memorandum that the justifyingcircumstance of state of necessity under par. 4, Art. 11 of the Revised Penal Code may find application inthis case.

We do not agree. The law prescribes the presence of three requisites to exempt the actor fromliability under this paragraph: (1) that the evil sought to be avoided actually exists; (2) that the injuryfeared be greater than the one done to avoid it; (3) that there be no other practical and less harmfulmeans of preventing it.[32]

In the instant case, the evil sought to be avoided is merely expected or anticipated. If the evil soughtto be avoided is merely expected or anticipated or may happen in the future, this defense is notapplicable.[33] Ty could have taken advantage of an available option to avoid committing a crime. By herown admission, she had the choice to give jewelry or other forms of security instead of postdated checksto secure her obligation.

Moreover, for the defense of state of necessity to be availing, the greater injury feared should nothave been brought about by the negligence or imprudence, more so, the willful inaction of the actor. [34] Inthis case, the issuance of the bounced checks was brought about by Ty’s own failure to pay her mother’shospital bills.

The Court also thinks it rather odd that Ty has chosen the exempting circumstance of uncontrollablefear and the justifying circumstance of state of necessity to absolve her of liability. It would not have beenhalf as bizarre had Ty been able to prove that the issuance of the bounced checks was done without herfull volition. Under the circumstances, however, it is quite clear that neither uncontrollable fear noravoidance of a greater evil or injury prompted the issuance of the bounced checks.

Parenthetically, the findings of fact in the Decision of the trial court in the Civil Case [35] for damagesfiled by Ty’s mother against the hospital is wholly irrelevant for purposes of disposing the case atbench. While the findings therein may establish a claim for damages which, we may add, need only besupported by a preponderance of evidence, it does not necessarily engender reasonable doubt as to freeTy from liability.

As to the issue of consideration, it is presumed, upon issuance of the checks, in the absence ofevidence to the contrary, that the same was issued for valuable consideration. [36] Section 24[37] of theNegotiable Instruments Law creates a presumption that every party to an instrument acquired the samefor a consideration[38] or for value.[39] In alleging otherwise, Ty has the onus to prove that the checks wereissued without consideration. She must present convincing evidence to overthrow the presumption.

A scrutiny of the records reveals that petitioner failed to discharge her burden of proof. “Valuableconsideration may in general terms, be said to consist either in some right, interest, profit, or benefitaccruing to the party who makes the contract, or some forbearance, detriment, loss or someresponsibility, to act, or labor, or service given, suffered or undertaken by the other aide. Simply defined,valuable consideration means an obligation to give, to do, or not to do in favor of the party who makes thecontract, such as the maker or indorser.”[40]

In this case, Ty’s mother and sister availed of the services and the facilities of the hospital. For thecare given to her kin, Ty had a legitimate obligation to pay the hospital by virtue of her relationship withthem and by force of her signature on her mother’s Contract of Admission acknowledging responsibilityfor payment, and on the promissory note she executed in favor of the hospital.

Anent Ty’s claim that the obligation to pay the hospital bills was not her personal obligation becauseshe was not the patient, and therefore there was no consideration for the checks, the case of Bridges v.Vann, et al.[41] tells us that “it is no defense to an action on a promissory note for the maker to say thatthere was no consideration which was beneficial to him personally; it is sufficient if the consideration wasa benefit conferred upon a third person, or a detriment suffered by the promisee, at the instance of thepromissor. It is enough if the obligee foregoes some right or privilege or suffers some detriment and the

release and extinguishment of the original obligation of George Vann, Sr., for that of appellants meets therequirement. Appellee accepted one debtor in place of another and gave up a valid, subsisting obligationfor the note executed by the appellants. This, of itself, is sufficient consideration for the new notes.”

At any rate, the law punishes the mere act of issuing a bouncing check, not the purpose for which itwas issued nor the terms and conditions relating to its issuance. [42] B.P. 22 does not make any distinctionas to whether the checks within its contemplation are issued in payment of an obligation or to merelyguarantee the obligation.[43] The thrust of the law is to prohibit the making of worthless checks and puttingthem into circulation.[44] As this Court held in Lim v. People of the Philippines,[45] “what is primordial is thatsuch issued checks were worthless and the fact of its worthlessness is known to the appellant at the timeof their issuance, a required element under B.P. Blg. 22.”

The law itself creates a prima facie presumption of knowledge of insufficiency of funds. Section 2 ofB.P. 22 provides:Section 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a checkpayment 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 ofknowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereofthe amount due thereon, or makes arrangements for payment in full by the drawee of such check withinfive (5) banking days after receiving notice that such check has not been paid by the drawee.

Such knowledge is legally presumed from the dishonor of the checks for insufficiency of funds. [46] Ifnot rebutted, it suffices to sustain a conviction.[47]

Petitioner likewise opines that the payee was aware of the fact that she did not have sufficient fundswith the drawee bank and such knowledge necessarily exonerates her liability.

The knowledge of the payee of the insufficiency or lack of funds of the drawer with the drawee bankis immaterial as deceit is not an essential element of an offense penalized by B.P. 22. The gravamen ofthe offense is the issuance of a bad check, hence, malice and intent in the issuance thereof isinconsequential.[48]

In addition, Ty invokes our ruling in Magno v. Court of Appeals[49] wherein this Court inquired into thetrue nature of transaction between the drawer and the payee and finally acquitted the accused, topersuade the Court that the circumstances surrounding her case deserve special attention and do notwarrant a strict and mechanical application of the law.

Petitioner’s reliance on the case is misplaced. The material operative facts therein obtaining aredifferent from those established in the instant petition. In the 1992 case, the bounced checks were issuedto cover a “warranty deposit” in a lease contract, where the lessor-supplier was also the financier of thedeposit. It was a modus operandi whereby the supplier was able to sell or lease the goods while privatelyfinancing those in desperate need so they may be accommodated. The maker of the check thus becamean unwilling victim of a lease agreement under the guise of a lease-purchase agreement. The maker didnot benefit at all from the deposit, since the checks were used as collateral for an accommodation and notto cover the receipt of an actual account or credit for value.

In the case at bar, the checks were issued to cover the receipt of an actual “account or for value.”Substantial evidence, as found by the trial court and Court of Appeals, has established that the checkswere issued in payment of the hospital bills of Ty’s mother.

Finally, we agree with the Court of Appeals in deleting the penalty of imprisonment, absent any proofthat petitioner was not a first-time offender nor that she acted in bad faith. Administrative Circular 12-2000,[50] adopting the rulings in Vaca v. Court of Appeals[51] and Lim v. People,[52] authorizes the non-imposition of the penalty of imprisonment in B.P. 22 cases subject to certain conditions. However, theCourt resolves to modify the penalty in view of Administrative Circular 13-2001 [53] which clarifiedAdministrative 12-2000. It is stated therein:

The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as analternative penalty, but to lay down a rule of preference in the application of the penalties provided for inB.P. Blg. 22.Thus, Administrative Circular 12-2000 establishes a rule of preference in the application of the penalprovisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearlyindicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine aloneshould be considered as the more appropriate penalty. Needless to say, the determination of whethercircumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the judge decidethat imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not bedeemed a hindrance.

It is therefore understood that: (1) Administrative Circular 12-2000 does not remove imprisonment asan alternative penalty for violations of B.P. 22; (2) the judges concerned may, in the exercise of sounddiscretion, and taking into consideration the peculiar circumstances of each case, determine whether theimposition of a fine alone would best serve the interests of justice, or whether forbearing to imposeimprisonment would depreciate the seriousness of the offense, work violence on the social order, orotherwise be contrary to the imperatives of justice; (3) should only a fine be imposed and the accusedunable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisionson subsidiary imprisonment.[54]

WHEREFORE, the instant Petition is DENIED and the assailed Decision of the Court of Appeals,dated 31 July 2001, finding petitioner Vicky C. Ty GUILTY of violating Batas Pambansa Bilang 22 isAFFIRMED with MODIFICATIONS. Petitioner Vicky C. Ty is ORDERED to pay a FINE equivalent todouble the amount of each dishonored check subject of the seven cases at bar with subsidiaryimprisonment in case of insolvency in accordance with Article 39 of the Revised Penal Code. She is alsoordered to pay private complainant, Manila Doctors’ Hospital, the amount of Two Hundred Ten ThousandPesos (P210,000.00) representing the total amount of the dishonored checks. Costs against thepetitioner.

SO ORDERED.EN BANC[G.R. No. 103501-03. February 17, 1997]LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE

PHILIPPINES,respondents.[G.R. No. 103507. February 17, 1997]ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and THE PEOPLE

OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIALPROSECUTOR, respondents.

D E C I S I O NFRANCISCO, J.:

Through their separate petitions for review,[1] Luis A. Tabuena and Adolfo M. Peralta (Tabuena andPeralta, for short) appeal the Sandiganbayan decision dated October 12, 1990, [2] as well as theResolution dated December 20, 1991[3] denying reconsideration, convicting them of malversation underArticle 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubtof having malversed the total amount of P55 Million of the Manila International Airport Authority (MIAA)funds during their incumbency as General Manager and Acting Finance Services Manager, respectively,of MIAA, and were thus meted the following sentence:“(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty ofimprisonment of seventeen (17) years and one (1) day ofreclusion temporal as minimum to twenty (20)years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS(P25,000,000.00), the amount malversed. He shall also reimburse the Manila International AirportAuthority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office.“(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty ofimprisonment of seventeen (17) years and one (1) day ofreclusion temporal as minimum, and twenty (20)years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS(P25,000,000.00), the amount malversed. He shall also reimburse the Manila International AirportAuthority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).In addition, he shall suffer the penalty of perpetual special disqualification from public office.“(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced tosuffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal asminimum and twenty (20) years of reclusion temporal as maximum and for each of them to payseparately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall alsoreimburse jointly and severally the Manila International Airport Authority the sum of FIVE MILLIONPESOS (P5,000,000.00).In addition, they shall both suffer the penalty of perpetual special disqualification from public office.”

A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager ofMIAA, has remained at large.

There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amountof P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principalaccused - he being charged in all three (3) cases. The amended informations in criminal case nos.11758, 11759 and 11760 respectively read:“That on or about the 10th day of January, 1986, and for sometime subsequent thereto, in the City ofPasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena andGerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager,respectively, of the Manila International Airport Authority (MIAA), and accountable for public fundsbelonging to the MIAA, they being the only ones authorized to make withdrawals against the cashaccounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with eachother, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, takeand misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA fundsby applying for the issuance of a manager’s check for said amount in the name of accused Luis A.Tabuena chargeable against MIAA’s Savings Account No. 274-500-354-3 in the PNB Extension Office atthe Manila International Airport in Pasay City, purportedly as partial payment to the Philippine NationalConstruction Corporation (PNCC), the mechanics of which said accused Tabuena would personally takecare of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC,and after the issuance of the above-mentioned manager’s check, accused Luis A. Tabuena encashed thesame and thereafter both accused misappropriated and converted the proceeds thereof to their personaluse and benefit, to the damage and prejudice of the government in the aforesaid amount.CONTRARY TO LAW.”x x x“That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City ofPasay, Philippines and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena andGerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager,respectively, of the Manila International Airport Authority (MIAA), and accountable for public fundsbelonging to the MIAA, they being the only ones authorized to make withdrawals against the cashaccounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with eachother, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, takeand misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA fundsby applying for the issuance of a manager’s check for said amount in the name of accused Luis A.Tabuena chargeable against MIAA’s Savings Account No. 274-500-354-3 in the PNB Extension Office atthe Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National

Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally takecare of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC,and after the issuance of the above-mentioned manager’s check, accused Luis A. Tabuena encashed thesame and thereafter both accused misappropriated and converted the proceeds thereof to their personaluse and benefit, to the damage and prejudice of the government in the aforesaid amount.CONTRARY TO LAW.”x x x“That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City ofPasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena andAdolfo M. Peralta, both public officers, being then the General Manager and Acting Manager, FinancialServices Department, respectively, of the Manila International Airport Authority (MIAA), and accountablefor public funds belonging to the MIAA, they being the only ones authorized to make withdrawals againstthe cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulatingwith each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud thegovernment, take and misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAAfunds by applying for the issuance of a manager’s check for said amount in the name of accused Luis A.Tabuena chargeable against MIAA’s Savings Account No. 274-500-354-3 in the PNB Extension Office atthe Manila International Airport in Pasay City, purportedly as partial payment to the Philippine NationalConstruction Corporation (PNCC), the mechanics of which said accused Tabuena would personally takecare of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC,and after the issuance of the above-mentioned manager’s check, accused Luis A. Tabuena encashed thesame and thereafter both accused misappropriated and converted the proceeds thereof to their personaluse and benefit, to the damage and prejudice of the government in the aforesaid amount.CONTRARY TO LAW.”

Gathered from the documentary and testimonial evidence are the following essential antecedents:Then President Marcos instructed Tabuena over the phone to pay directly to the president’s office and incash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuenareplied, “Yes, sir, I will do it.” About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, thenprivate secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter referred toas MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit:“Office of the Presidentof the PhilippinesMalacañangJanuary 8, 1986

MEMO TO: The General ManagerManila International Airport Authority

You are hereby directed to pay immediately the Philippine National Construction Corporation, thru thisOffice, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAA’saccount with said Company mentioned in a Memorandum of Minister Roberto Ongpin to this Office datedJanuary 7, 1985 and duly approved by this Office on February 4, 1985.Your immediate compliance is appreciated.

(Sgd.) FERDINAND MARCOS.”[4]

The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referredto in the MARCOS Memorandum, reads in full:“MEMORANDUMF o r : The PresidentF r o m : Minister Roberto V. OngpinD a t e : 7 January 1985Subject : Approval of Supplemental Contracts and

Request for Partial Deferment of Repayment of PNCC’s Advances for MIA Development ProjectMay I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8)supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of AirTransport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, as follows:1. Supplemental Contract No. 12 Package Contract No. 2

P11,106,600.95

2. Supplemental Contract No. 13 5,758,961.523. Supplemental Contract No. 14 Package Contract No. 2

4,586,610.80

4. Supplemental Contract No. 15 1,699,862.695. Supplemental Contract No. 16 Package Contract No. 2

233,561.22

6. Supplemental Contract No. 17 Package Contract No. 2

8,821,731.08

7. Supplemental Contract No. 18 Package Contract No. 2

6,110,115.75

8. Supplemental Contract No. 3 Package Contract No. II

16,617,655.49

(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984)In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerlyCDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusiveof accomplishments for the aforecited contracts. In accordance with contract provisions, outstandingadvances totalling P93.9 million are to be deducted from said billings which will leave a net amount due toPNCC of only P4.5 million.At the same time, PNCC has potential escalation claims amounting to P99 million in the following stagesof approval/evaluation:

Approved by Price Escalation Committee (PEC) butpended for lack of funds

P 1.9 million

Endorsed by project consultants and currently beingevaluated by PEC

30.7 million

Submitted by PNCC directly to PEC and currentlyunder evaluation

66.5 million

T o t a l P 99.1 millionThere has been no funding allocation for any of the above escalation claims due to budgetary constraints.The MIA Project has been completed and operational as far back as 1982 and yet residual amounts dueto PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money toservice its obligations for this contract.To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, maywe request for His Excellency’s approval for a deferment of the repayment of PNCC’s advances to theextent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, ofwhich P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lackof funding.Korte

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Projectfunds. This amount represents the excess of the gross billings of PNCC of P98.4 million over theundeferred portion of the repayment of advances of P63.9 million.(Sgd.) ROBERTO V. ONGPINMinister”[5]

In obedience to President Marcos’ verbal instruction and memorandum, Tabuena, with the help ofDabao and Peralta, caused the release ofP55 Million of MIAA funds by means of three (3) withdrawals.

The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even datesigned by Tabuena and Dabao requesting the PNB extension office at the MIAA - the depository branch ofMIAA funds, to issue a manager’s check for said amount payable to Tabuena. The check was encashed,however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted themoney after which, Tabuena took delivery thereof. The P25 Million in cash were then placed in peerlessboxes and duffle bags, loaded on a PNB armored car and delivered on the same day to the office of Mrs.Gimenez located at Aguado Street fronting Malacañang. Mrs. Gimenez did not issue any receipt for themoney received.

Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25Million, made on January 16, 1986.

The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena’sco-signatory to the letter- request for a manager’s check for this amount. Peralta accompanied Tabuenato the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million. After thecounting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuena’scar. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez’ office at Aguado Street. Itwas only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts shereceived from Tabuena. The receipt, dated January 30, 1986, reads:“MalacañangManilaJanuary 30, 1986RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS(P55,000,000.00) as of the following dates:Jan. 10 - P25,000,000.00Jan. 16 - 25,000,000.00Jan. 30 - 5,000,000.00(Sgd.) Fe Roa-Gimenez”

The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, “out ofthe ordinary” and “not based on the normal procedure”. Not only were there no vouchers prepared tosupport the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President andCorporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC byMIAA for the months of January to June of 1986.

The position of the prosecution was that there were no outstanding obligations in favor of PNCC atthe time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta,in short, was that they acted in good faith. Tabuena claimed that he was merely complying with theMARCOS Memorandum which ordered him to forward immediately to the Office of the President P55Million in cash as partial payment of MIAA’s obligations to PNCC, and that he (Tabuena) was of the beliefthat MIAA indeed had liabilities to PNCC. Peralta for his part shared the same belief and so he heededthe request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million.

With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to theirconviction, Tabuena and Peralta now set forth a total of ten (10) errors [6] committed by the Sandiganbayanfor this Court’s consideration. It appears, however, that at the core of their plea that we acquit them arethe following:1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and2) they acted in good faith.

Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentionalmalversation, as the amended informations commonly allege that:

“x x x accused x x x conspiring, confederating and confabulating with each other, did then and therewilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriated theamount of x x x.”

But it would appear that they were convicted of malversation by negligence. In this connection, theCourt’s attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuena’s andPeralta’s motion for reconsideration) wherein the Sandiganbayan said:“x x x x x x x x xOn the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to peoplewho were not entitled thereto, either as representatives of MIAA or of the PNCC.Sclaw

It proves that Tabuena had deliberately consented or permitted through negligence or abandonment,some other person to take such public funds. Having done so, Tabuena, by his own narration, hascategorically demonstrated that he is guilty of the misappropriation or malversation of P55 Million of publicfunds.” (Underscoring supplied.)To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that:1) While malversation may be committed intentionally or by negligence, both modes cannot becommitted at the same time.2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where theamended informations charged them with intentional malversation.[7]

3) Their conviction of a crime different from that charged violated their constitutional right to be informedof the accusation.[8]

We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is “Cabello v.Sandiganbayan”[9] where the Court passed upon similar protestations raised by therein accused-petitionerCabello whose conviction for the same crime of malversation was affirmed, in this wise:“x x x even on the putative assumption that the evidence against petitioner yielded a case of malversationby negligence but the information was for intentional malversation, under the circumstances of this casehis conviction under the first mode of misappropriation would still be in order. Malversation is committedeither intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in theperpetration of the felony. Even if the mode charged differs from the mode proved, the same offense ofmalversation is involved and conviction thereof is proper. x x x.In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentionalfalsification can validly be convicted of falsification through negligence, thus:‘While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justiceof the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code,designated as a quasi offense in our Penal Code, it may however be said that a conviction for the formercan be had under an information exclusively charging the commission of a willful offense, upon the theorythat the greater includes the lesser offense. This is the situation that obtains in the presentcase. Appellant was charged with willful falsification but from the evidence submitted by the parties, theCourt of Appeals found that in effecting the falsification which made possible the cashing of the checks inquestion, appellant did not act with criminal intent but merely failed to take proper and adequate means toassure himself of the identity of the real claimants as an ordinary prudent man would do. In other words,the information alleges acts which charge willful falsification but which turned out to be not willful butnegligent. This is a case covered by the rule when there is a variance between the allegation and proof,and is similar to some of the cases decided by this Tribunal.x x x‘Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the essential elements ofthe offense charged in the information be proved, it being sufficient that some of said essential elementsor ingredients thereof be established to constitute the crime proved. x x x.‘The fact that the information does not allege that the falsification was committed with imprudence is of nomoment for here this deficiency appears supplied by the evidence submitted by appellant himself and the

result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, itwould be incongruous to allege at the same time that it was committed with imprudence for a charge ofcriminal intent is incompatible with the concept of negligence.’“Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments alsoapply to the felony of malversation, that is, that an accused charged with willful malversation, in aninformation containing allegations similar to those involved in the present case, can be validly convicted ofthe same offense of malversation through negligence where the evidence sustains the latter mode ofperpetrating the offense.”

Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution formalversation for it would negate criminal intent on the part of the accused. Thus, in the two (2) vintage,but significant malversation cases of “US v. Catolico”[10] and “US v. Elviña,”[11] the Court stressed that:“To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by acriminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalentto criminal intent. The maxim is actus non facit reum, nisi mens sit rea - a crime is not committed if themind of the person performing the act complained of is innocent.”

The rule was reiterated in “People v. Pacana,”[12] although this case involved falsification of publicdocuments and estafa:“Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisimens sit rea. There can be no crime when the criminal mind is wanting.”

American jurisprudence echoes the same principle. It adheres to the view that criminal intent inembezzlement is not based on technical mistakes as to the legal effect of a transaction honestly enteredinto, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is nowrongful purpose.[13] The accused may thus always introduce evidence to show he acted in good faith andthat he had no intention to convert.[14] And this, to our mind, Tabuena and Peralta had meritoriouslyshown.

In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOSMemorandum, we are swayed to give credit to his claim of having caused the disbursement of the P55Million solely by reason of such memorandum. From this premise flows the following reasons and/orconsiderations that would buttress his innocence of the crime of malversation.

First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOSMemorandum required him to do. He could not be faulted if he had to obey and strictly comply with thepresidential directive, and to argue otherwise is something easier said than done. Marcos wasundeniably Tabuena’s superior – the former being then the President of the Republic who unquestionablyexercised control over government agencies such as the MIAA and PNCC. [15] In other words, Marcos hada say in matters involving inter-government agency affairs and transactions, such as for instance,directing payment of liability of one entity to another and the manner in which it should be carriedout. And as a recipient of such kind of a directive coming from the highest official of the land no less,good faith should be read on Tabuena’s compliance, without hesitation nor any question, with theMARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of “Any person whoacts in obedience to an order issued by a superior for some lawful purpose.”[16] The subordinate-superiorrelationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order containedin the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one governmentagency (MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was beingargued, on the observation, for instance, that the Ongpin Memo referred to in the presidential directivereveals a liability of only about P34.5 Million. The Sandiganbayan in this connection said:“Exhibits “2” and “2-a” (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January7, 1985) were mainly:a.) for the approval of eight Supplemental Contracts; and

b.) a request for partial deferment of payment by PNCC for advances made for the MIAA DevelopmentProject, while at the same time recognizing some of the PNCC’s escalation billings which would result inmaking payable to PNCC the amount of P34.5 million out of existing MIAA Project funds.

Thus:‘xxxTo allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, maywe request for His Excellency’s approval for a deferment of repayment of PNCC’s advances to the extentof P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.6million has been officially recognized by MIADP consultants but could not be paid due to lack of funding.Our proposal will allow BAT to pay PNCC the amount of P 34.5 million out of existing MIA Projectfunds. This amount represents the excess of the gross billings of PNCC of P98.4 million over theundeferred portion of the repayment of advances of P63.9 million.’While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to theextent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation andapproval, with only P32.6 million having been officially recognized by the MIADP consultants.If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos’Memo was based) they would only be for a sum of up toP34.5 million.”[17]

x x x x xx x x x“V. Pres. Marcos’ order to Tabuena dated January 8, 1986 baseless.Not only was Pres. Marcos’ Memo (Exhibit “1”) for Tabuena to pay P55 million irrelevant, but it wasactually baseless.This is easy to see.Exhibit “1” purports to refer itself to the Ongpin Memorandum (Exhibit “2”, “2-a”); Exhibit “1”, however,speaks of P55 million to be paid to the PNCC while Exhibit “2” authorized only P34.5 million. The order towithdraw the amount of P55 million exceeded the approved payment of P34.5 million by P20.5million. Min. Ongpin’s Memo of January 7, 1985 could not therefore serve as a basis for the President’sorder to withdraw P55 million.”[18]

Granting this to be true, it will not nevertheless affect Tabuena’s good faith so as to make him criminallyliable. What is more significant to consider is that the MARCOS Memorandum is patently legal (for on itsface it directs payment of an outstanding liability) and that Tabuena acted under the honest belief thatthe P55 million was a due and demandable debt and that it was just a portion of a bigger liability toPNCC. This belief is supported by defense witness Francis Monera who, on direct examination, testifiedthat:

“ATTY ANDRESQ Can you please show us in this Exhibit “7” and “7-a” where it is indicated the receivables

from MIA as of December 31, 1985?A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as

Exhibit “7-a”, sir, P 102,475,392.35.x x x x x x x x x.”[19]

ATTY. ANDRESQ Can you tell us, Mr. Witness, what these obligations represent?WITNESSA These obligations represent receivables on the basis of our billings to MIA as contract-

owner of the project that the Philippine National Construction Corporationconstructed. These are billings for escalation mostly, sir.

Q What do you mean by escalation?A Escalation is the component of our revenue billings to the contract-owner that are

supposed to take care of price increases, sir.”

x x x x x x x x x.”[20]

ATTY ANDRESQ When you said these are accounts receivable, do I understand from you that these are due

and demandable?A Yes, sir.”[21]

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, thesubordinate is not liable, for then there would only be a mistake of fact committed in good faith. [22] Such isthe ruling in “Nassif v. People”[23] the facts of which, in brief, are as follows:“Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, heinserted in the commercial document alleged to have been falsified the word “sold” by order of hisprincipal. Had he known or suspected that his principal was committing an improper act of falsification,he would be liable either as a co-principal or as an accomplice. However, there being no malice on hispart, he was exempted from criminal liability as he was a mere employee following the orders of hisprincipal.”[24]

Second. There is no denying that the disbursement, which Tabuena admitted as “out of theordinary”, did not comply with certain auditing rules and regulations such as those pointed out by theSandiganbayan, to wit:a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA)b) payment of all claims against the government had to be supported with complete documentation (Sec.4, P.D. 1445, “State Auditing Code of the Philippines). In this connection, the Sandiganbayan observedthat:“There were no vouchers to authorize the disbursements in question. There were no bills to support thedisbursement. There were no certifications as to the availability of funds for an unquestionably staggeringsum of P55 Million.”[25]

c) failure to protest (Sec. 106, P.D. 1445)But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury oftime to observe all auditing procedures of disbursement considering the fact that the MARCOSMemorandum enjoined his “immediate compliance” with the directive that he forward to the President’sOffice the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for suchomission. But since he was acting in good faith, his liability should only be administrative or civil innature, and not criminal. This follows the decision in “Villacorta v. People”[26] where the Court, inacquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation after finding thathe incurred a shortage in his cash accountability by reason of his payment in good faith to certaingovernment personnel of their legitimate wages, leave allowances, etc., held that:“Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrongpayments, they were in good faith mainly to government personnel, some of them working at theprovincial auditor’s and the provincial treasurer’s offices. And if those payments ran counter to auditingrules and regulations, they did not amount to a criminal offense and he should only be heldadministratively or civilly liable.”Likewise controlling is “US v. Elviña”[27] where it was held that payments in good faith do not amount tocriminal appropriation, although they were made with insufficient vouchers or improper evidence. In fact,the Dissenting Opinion’s reference to certain provisions in the revised Manual on Certificate of Settlementand Balances - apparently made to underscore Tabuena’s personal accountability, as agency head, forMIAA funds - would all the more support the view that Tabuena is vulnerable to civil sanctionsonly. Sections 29.2 and 29.5 expressly and solely speak of “civilly liable” to describe the kind of sanctionimposable on a superior officer who performs his duties with “bad faith, malice or gross negligence”’ andon a subordinate officer or employee who commits “willful or negligent acts x x x which are contrary tolaw, morals, public policy and good customs even if he acted under order or instructions of his superiors.”

Third. The Sandiganbayan made the finding that Tabuena had already converted andmisappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC,proceeding from the following definitions/concepts of “conversion”:“‘Conversion’, as necessary element of offense of embezzlement, being the fraudulent ‘appropriation toone’s own use’ of another’s property which does not necessarily mean to one’s personal advantage butevery attempt by one person to dispose of the goods of another without right as if they were his own is‘conversion to his own use.’ (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906,179 Okl. 106)- At p. 207, Words and Phrases, Permanent Edition 9A.Conversion is any interference subversive of the right of the owner of personal property to enjoy andcontrol it. The gist of conversion is the usurpation of the owner’s right of property, and not the actualdamages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)- At page 168, id.x x x x x x x x xThe words ‘convert’ and ‘misappropriate’ connote an act of using or disposing of another’s property as if itwere one’s own. They presuppose that the thing has been devoted to a purpose or use different fromthat agreed upon. To appropriate to one’s own use includes not only conversion to one’s personaladvantage but every attempt to dispose of the property of another without right.People vs. Webber, 57 O.G.p. 2933, 2937By placing them at the disposal of private persons without due authorization or legal justification, hebecame as guilty of malversation as if he had personally taken them and converted them to his own use. People vs. Luntao, 50 O.G. p. 1182, 1183”[28]

We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena “to payimmediately the Philippine National Construction Corporation, thru this office, the sum of FIFTY FIVEMILLION....”, and that was what Tabuena precisely did when he delivered the money to Mrs.Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs.Gimenez was Marcos’ secretary then. Furthermore, Tabuena had reasonable ground to believe that thePresident was entitled to receive the P55 Million since he was certainly aware that Marcos, as ChiefExecutive, exercised supervision and control over government agencies. And the good faith of Tabuenain having delivered the money to the President’s office (thru Mrs. Gimenez), in strict compliance with theMARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received themoney. Thus, it has been said that:“Good faith in the payment of public funds relieves a public officer from the crime of malversation.x x x x x x x x xNot every unauthorized payment of public funds is malversation. There is malversation only if the publicofficer who has custody of public funds should appropriate the same, or shall take or misappropriate orshall consent, or through abandonment or negligence shall permit any other person to take such publicfunds. Where the payment of public funds has been made in good faith, and there is reasonable groundto believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed tohave acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized,renders him only civilly but not criminally liable.”[29]

Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was tosiphon-out public money for the personal benefit of those then in power, still, no criminal liability can beimputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the executionof the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short,no conspiracy was established between Tabuena and the real embezzler/s of the P55 Million. In the

cases of “US v. Acebedo”[30] and “Ang v. Sandiganbayan”,[31] both also involving the crime ofmalversation, the accused therein were acquitted after the Court arrived at a similar finding of non-proofof conspiracy. In “Acebedo”, therein accused, as municipal president of Palo, Leyte, was prosecuted forand found guilty by the lower court of malversation after being unable to turn over certain amounts to thethen justice of the peace. It appeared, however, that said amounts were actually collected by hissecretary Crisanto Urbina. The Court reversed Acebedo’s conviction after finding that the sums wereconverted by his secretary Urbina without the knowledge and participation of Acebedo. The Court said,which we herein adopt:“No conspiracy between the appellant and his secretary has been shown in this case, nor did suchconspiracy appear in the case against Urbina. No guilty knowledge of the theft committed by thesecretary was shown on the part of the appellant in this case, nor does it appear that he in any wayparticipated in the fruits of the crime. If the secretary stole the money in question without the knowledgeor consent of the appellant and without negligence on his part, then certainly the latter can not beconvicted of embezzling the same money or any part thereof.”[32]

In “Ang”, accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted intochecks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks weresubsequently dishonored. Ang was acquitted by this Court after giving credence to his assertion that theconversion of his collections into checks were thru the machinations of one Lazaro Guinto, anotherMWSS collector more senior to him. And we also adopt the Court’s observation therein, that:“The petitioner’s alleged negligence in allowing the senior collector to convert cash collections into checksmay be proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but theremust be stronger evidence to show fraud, malice, or other indicia of deliberateness in the conspiracycooked up with Marshall Lu. The prosecution failed to show that the petitioner was privy to theconspirational scheme. Much less is there any proof that he profited from the questioned acts. Anysuspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted intoevidence before conviction beyond reasonable doubt may be imposed.”[33]

The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peraltain relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he,upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of theP55 Million of the MIAAfunds.

This is not a sheer case of blind and misguided obedience, but obedience in good faith of a dulyexecuted order. Indeed, compliance to a patently lawful order is rectitude far better than contumaciousdisobedience. In the case at bench, the order emanated from the Office of the President and bears thesignature of the President himself, the highest official of the land. It carries with it the presumption that itwas regularly issued. And on its face, the memorandum is patently lawful for no law makes the paymentof an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to actswiftly without question. Obedientia est legis essentia. Besides, the case could not be detached from therealities then prevailing. As aptly observed by Mr. Justice Cruz in his dissenting opinion:“We reject history in arbitrarily assuming that the people were free during the era and that the judiciarywas independent and fearless. We know it was not; even the Supreme Court at that time was notfree. This is an undeniable fact that we can not just blink away. Insisting on the contrary would onlymake our sincerity suspect and even provoke scorn for what can only be described as our incrediblecredulity.”[34]

But what appears to be a more compelling reason for their acquittal is the violation of the accused’sbasic constitutional right to due process. “Respect for the Constitution”, to borrow once again Mr. JusticeCruz’s words, “is more important than securing a conviction based on a violation of the rights of theaccused.”[35] While going over the records, we were struck by the way the Sandiganbayan actively tookpart in the questioning of a defense witness and of the accused themselves. Tabuena and Peralta maynot have raised this as an error, there is nevertheless no impediment for us to consider such matter as

additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open toreview, and it becomes the duty of the appellate court to correct such errors as may be found in thejudgment appealed from whether they are made the subject of assignments of error or not. [36]

Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of thetestimony of Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC,Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6)questions on cross-examination in the course of which the court interjected a total of twenty-seven(27) questions (more than four times Prosecutor Viernes’ questions and even more than the combinedtotal of direct and cross-examination questions asked by the counsels). After the defense opted not toconduct any re-direct examination, the court further asked a total of ten (10) questions.[37] The trendintensified during Tabuena’s turn on the witness stand. Questions from the court after Tabuena’s cross-examination totalled sixty-seven (67).[38]This is more than five times Prosecutor Viernes’ questions oncross-examination (14), and more than double the total of direct examination and cross-examinationquestions which is thirty-one (31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peralta’s case, the Justices, after his cross-examination, propounded a total of forty-one (41) questions.[39]

But more importantly, we note that the questions of the court were in the nature of crossexaminations characteristic of confrontation, probing and insinuation.[40] (The insinuating type was bestexemplified in one question addressed to Peralta, which will be underscored.) Thus we beg to quote inlength from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Courtare marked with asterisks and italicized for emphasis.)(MONERA)

(As a background, what was elicited from his direct examination is that the PNCC had receivablesfrom MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation,they were nonetheless all due and demandable. What follows are the cross-examination of ProsecutorViernes and the court questions).“CROSS-EXAMINATION BY PROS. VIERNES

Q You admit that as shown by these Exhibits “7” and “7-a”, the items here represent mostlyescalation billings. Were those escalation billings properly transmitted to MIA authorities?

A I don’t have the documents right now to show that they were transmitted, but I have a letterby our President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balanceof our receivables from MIA, sir.

*AJ AMORES*Q This matter of escalation costs, is it not a matter for a conference between the MIA

and the PNCC for the determination as to the correct amount?A I agree, your Honor. As far as we are concerned, our billings are what we deemed are

valid receivables. And, in fact, we have been following up for payment.*Q This determination of the escalation costs was it accepted as the correct figure by

MIA?A I don’t have any document as to the acceptance by MIA, your Honor, but our company was

able to get a document or a letter by Minister Ongpin to President Marcos, dated January7, 1985, with a marginal note or approval by former President Marcos.

*PJ GARCHITORENA*Q Basically, the letter of Mr. Ongpin is to what effect?A The subject matter is approval of the supplementary contract and request for partial

deferment of payment for MIA Development Project, your Honor.*Q It has nothing to do with the implementation of the escalation costs?A The details show that most of the accounts refer to our escalations, your Honor.

*Q Does that indicate the computation for escalations were already billed or you do nothave any proof of that?

A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpinappears to have confirmed our billings to MIA, your Honor.

*AJ AMORES*Q Were there partial payments made by MIA on these escalation billings?A Based on records available as of today, the P102 million was reduced to about P56.7

million, if my recollection is correct, your Honor.*PJ GARCHITORENA*Q Were the payments made before or after February 1986, since Mr. Olaguer is a new

entrant to your company?WITNESSA The payments were made after December 31, 1985 but I think the payments were made

before the entry of our President, your Honor. Actually, the payment was in the formof: assignments to State Investment of about P23 million; and then there was P17.8 millionapplication against advances made or formerly given; and there were payments to PNCCof about P2.6 million and there was a payment for application on withholding andcontractual stock of about P1 million; that summed up to P44.4 million all in all. And youdeduct that from theP102 million, the remaining balance would be about P57 million.

*PJ GARCHITORENA*Q What you are saying is that, for all the payments made on this P102 million, only P2

million had been payments in cash?A Yes, your Honor.*Q The rest had been adjustments of accounts, assignments of accounts, or offsetting

of accounts?A Yes, your Honor.*Q This is as of December 31, 1985?A The P102 million was as of December 31, 1985, your Honor, but the balances is as of

August 1987.*Q We are talking now about the P44 million, more or less, by which the basic account

has been reduced. These reductions, whether by adjustment or assignment oractual delivery of cash, were made after December 31, 1985?

WITNESSA Yes, your Honor.*Q And your records indicate when these adjustments and payments were made?A Yes, your Honor.*AJ AMORES*Q You said there were partial payments before of these escalation billings. Do we get it

from you that there was an admission of these escalation costs as computed by youby MIA, since there was already partial payments?

A Yes, your Honor.*Q How were these payments made before February 1986, in case or check, if there

were payments made?A The P44 million payments was in the form of assignments, your Honor.*PJ GARCHITORENA*Q The question of the Court is, before December 31, 1985, were there any liquidations

made by MIA against these escalation billings?

A I have not reviewed the details of the record, your Honor. But the ledger card indicatesthat there were collections on page 2 of the Exhibit earlier presented. It will indicate thatthere were collections shown by credits indicated on the credit side of the ledger.

*AJ AMORES*Q Your ledger does not indicate the manner of giving credit to the MIA with respect to

the escalation billings. Was the payment in cash or just credit of some sort beforeDecember 31, 1985?

A Before December 31, 1985, the reference of the ledger are official receipts and I supposethese were payments in cash, your Honor.

*Q Do you know how the manner of this payment in cash was made by MIA?A I do not know, your Honor.*PJ GARCHITORENA*Q But your records will indicate that?A The records will indicate that, your Honor.*Q Except that you were not asked to bring them?A Yes, your Honor.*Q At all events, we are talking of settlement or partial liquidation prior to December 31,

1985?A Yes, your Honor.*PJ GARCHITORENA*Q Subsequent thereto, we are talking merely of about P44 million?A Yes, your Honor, as subsequent settlements.*Q After December 31, 1985?A Yes, your Honor.*Q And they have liquidated that, as you described it, by way of assignments,

adjustments, by offsets and by P2 million of cash payment?A Yes, your Honor.*AJ AMORES*Q Your standard operating procedure before December 31, 1985 in connection with or

in case of cash payment, was the payment in cash or check?A I would venture to say it was by check, your Honor.*Q Which is the safest way to do it?A Yes, your Honor.*PJ GARCHITORENA*Q And the business way?A Yes, your Honor.PJ GARCHITORENAContinue.PROS VIERNESQ You mentioned earlier about the letter of former Minister Ongpin to the former President

Marcos, did you say that that letter concurs with the escalation billings reflected in Exhibits“7” and “7-a”?

WITNESSA The Company or the management is of the opinion that this letter, a copy of which we

were able to get, is a confirmation of the acceptance of our billings, sir.Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation

billings as appearing in Exhibit “7” are dated June 30, 1985, would you still insist that theletter of January 1985 confirms the escalation billings as of June 1985?

A The entries started June 30 in the ledger card. And as of December 31, 1985, it stoodat P102 million after payments were made as shown on the credit side of the ledger. Isuppose hat the earlier amount, before the payment was made, was bigger and therefore Iwould venture to say that the letter of January 7, 1985 contains an amount that is part ofthe original contract account. What are indicated in the ledger are escalation billings.

*PJ GARCHITORENA*Q We are talking about the letter of Minister Ongpin?A The letter of Minister Ongpin refers to escalation billings, sir.*Q As of what date?A The letter is dated January 7, 1985, your Honor.PJ GARCHITORENAContinue.PROS. VIERNESQ In accordance with this letter marked Exhibit “7” and “7-a”, there were credits made in favor

of MIA in July and November until December 1985. These were properly credited to theaccount of MIA?

WITNESSA Yes, sir.Q In 1986, from your records as appearing in Exhibit “7-a”, there were no payments made to

PNCC by MIA for the months of January to June 1986?A Yes, sir.Q And neither was the amount of P22 million remitted to PNCC by MIA?A Yes, sir.PROS VIERNESThat will be all, your Honor.PJ GARCHITORENARedirect?ATTY ANDRESNo redirect, your Honor.*PJ GARCHITORENAQuestions from the Court.*AJ AMORES*Q From your records, for the month of January 1986, there was no payment of this

escalation account by MIA?WITNESSA Yes, your Honor. But on page 2 of Exhibit “7” there appears an assignment of P23 million,

that was on September 25, 1986.*Q But that is already under the present administration?A After February 1986, your Honor.*Q But before February, in January 1986, there was no payment whatsoever by MIA to

PNCC?A Per record there is none appearing, your Honor.*PJ GARCHITORENA*Q The earliest payment, whether by delivery of cash equivalent or of adjustment of

account, or by assignment, or by offsets, when did these payments begin?A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor.*Q After December 31, 1985?A There appears also P23 million as credit, that is a form of settlement, your Honor.*Q This is as of September 25?

A Yes, your Honor. There were subsequent settlements. P23 million is just part of the P44million.

*Q And what you are saying is that, PNCC passed the account to State Investment. Inother words, State Investment bought the credit of MIA?

A Yes, your Honor.*Q And the amount of credit or receivables sold by PNCC to State Investment is P23

million?A Yes, your Honor.*Q Is there a payback agreement?A I have a copy of the assignment to State Investment but I have not yet reviewed the same,

your Honor.*AJ AMORES*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?A There is still a balance of receivables from MIA as evidenced by a collection letter by our

President dated July 6, 1988, your Honor. The amount indicated in the letter is P55 million.PJ GARCHITORENAAny clarifications you would like to make Mr. Estebal?ATTY ESTEBALNone, your Honor.PJ GARCHITORENAMr. Viernes?PROS VIERNESNo more, your Honor.PJ GARCHITORENAThe witness is excused. Thank you very much Mr. Monera. x x x.”[41]

(TABUENA)(In his direct examination, he testified that he caused the preparation of the checks totalling P55

Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash onthe three (3) dates as alleged in the information to Marcos’ private secretary Mrs. Jimenez at her office atAguado Street, who thereafter issued a receipt. Tabuena also denied having used the money for his ownpersonal use.)

“CROSS-EXAMINATION BY PROS. VIERNESQ The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered

on how many occasions?A Three times, sir.Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?A Yes, sir.Q It was only on January 30, 1986 that this receipt Exhibit “3” was issued by Mrs. Gimenez?A Yes, sir.*PJ GARCHITORENA*Q So January 30 is the date of the last delivery?A I remember it was on the 31st of January, your Honor. What happened is that, I did not

notice the date placed by Mrs. Gimenez.*Q Are you telling us that this Exhibit “3” was incorrectly dated?A Yes, your Honor.*Q Because the third delivery was on January 31st and yet the receipt was dated

January 30?A Yes, your Honor.*Q When was Exhibit “3” delivered actually by Mrs. Gimenez?

A January 31st, your Honor.PJ GARCHITORENAContinue.PROS VIERNESQ You did not go to Malacañang on January 30, 1986?A Yes, sir, I did not.Q Do you know at whose instance this Exhibit “3” was prepared?A I asked for it, sir.Q You asked for it on January 31, 1986 when you made the last delivery?A Yes, sir.Q Did you see this Exhibit “3” prepared in the Office of Mrs. Gimenez?A Yes, sir.Q This receipt was typewritten in Malacañang stationery. Did you see who typed this receipt?A No, sir. What happened is that, she went to her room and when she came out she gave

me that receipt.*PJ GARCHITORENA*Q What you are saying is, you do not know who typed that receipt?WITNESSA Yes, your Honor.*Q Are you making an assumption that she typed that receipt?A Yes, your Honor, because she knows how to type.*Q Your assumption is that she typed it herself?A Yes, your Honor.PJ GARCHITORENAProceed.PROS. VIERNESQ This receipt was prepared on January 31, although it is dated January 30?A Yes, sir, because I was there on January 31st.Q In what particular place did Mrs. Gimenez sign this Exhibit “3”?A In her office at Aguado, sir.Q Did you actually see Mrs. Gimenez signing this receipt Exhibit “3”?A No, sir, I did not. She was inside her room.Q So, she was in her room and when she came out of the room, she handed this receipt to

you already typed and signed?A Yes, sir.*AJ HERMOSISIMA*Q So, how did you know this was the signature of Mrs. Gimenez?WITNESSA Because I know her signature, your Honor. I have been receiving letters from her also and

when she requests for something from me. Her writing is familiar to me.*Q So, when the Presiding Justice asked you as to how you knew that this was the signature

of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it, you were notexactly truthful?

A What I mean is, I did not see her sign because she went to her room and when she cameout, she gave me that receipt, your Honor.

PJ GARCHITORENA That is why you have to wait for the question to be finished and listen to it

carefully. Because when I asked you, you said you saw her signed it. Be careful Mr.Tabuena.

WITNESS Yes, your Honor.PJ GARCHITORENA Continue.PROS VIERNESQ Was there another person inside the office of Mrs. Gimenez when she gave you this

receipt Exhibit “3”?A Nobody, sir.Q I noticed in this receipt that the last delivery of the sum of P55 million was made on

January 30. Do we understand from you that this date January 30 is erroneous?A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January

31st, sir.PROS VIERNESThat will be all, your Honor.PJ GARCHITORENARedirect?ATTY. ANDRESNo redirect, your Honor.*PJ GARCHITORENAQuestions from the Court.*AJ HERMOSISIMA*Q Why did you not ask for a receipt on the first and second deliveries?A Because I know that the delivery was not complete yet, your Honor.*PJ GARCHITORENA*Q So you know that the total amount to be delivered was P55 million?A Yes, your Honor.PJ GARCHITORENAResponse by Mr. Peralta to the testimony of Mr. Tabuena.ATTY. ESTEBALWe are adopting the testimony of Mr. Tabuena and we will also present the accused, your

Honor.*AJ DEL ROSARIO*Q From whom did you receive the President’s memorandum marked Exhibit “1”? Or more

precisely, who handed you this memorandum?A Mrs. Fe Roa Gimenez, your Honor.*Q Did you ask Mrs. Fe Gimenez for what purpose the money was being asked?A The money was in payment for the debt of the MIA Authority to PNCC, your Honor.*Q If it was for the payment of such obligation why was there no voucher prepared to cover

such payment? In other words, why was the delivery of the money not covered by anyvoucher?Calrky

A The instruction to me was to give it to the Office of the President, your Honor.*PJ GARCHITORENA*Q Be that as it may, why was there no voucher to cover this particular disbursement?A I was just told to bring it to the Office of the President, your Honor.*AJ DEL ROSARIO*Q Was that normal procedure for you to pay in cash to the Office of the President for

obligations of the MIAA in payment of its obligation to another entity?WITNESSA No, your Honor, I was just following the Order to me of the President.

*PJ GARCHITORENA*Q So the Order was out of the ordinary?A Yes, your Honor.*AJ DEL ROSARIO*Q Did you file any written protest with the manner with which such payment was being

ordered?A No, your Honor.*Q Why not?A Because with that instruction of the President to me, I followed, your Honor.*Q Before receiving this memorandum Exhibit “1”, did the former President Marcos discuss

this matter with you?A Yes, your Honor.*Q When was that?A He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC

directly to his office in cash, your Honor.*PJ GARCHITORENA*Q By “I OWE”, you mean the MIAA?WITNESSA Yes, your Honor.*AJ DEL ROSARIO*Q And what did you say in this discussion you had with him?A I just said, “Yes, sir, I will do it/”*Q Were you the one who asked for a memorandum to be signed by him?A No, your Honor.*Q After receiving that verbal instruction for you to pay MIAA’s obligation with PNCC, did you

not on your own accord already prepare the necessary papers and documents for thepayment of that obligation?

A He told me verbally in the telephone that the Order for the payment of that obligation isforthcoming, your Honor. I will receive it.

*Q Is this the first time you received such a memorandum from the President?A Yes, your Honor.*Q And was that the last time also that you received such a memorandum?A Yes, your Honor.*Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this

procedure has to be followed instead of the regular procedure?A: No, sir.*AJ DEL ROSARIO*Q Why did you not ask?A I was just ordered to do this thing, your Honor.*AJ HERMOSISIMA*Q You said there was an “I OWE YOU”?A Yes, your Honor.*Q Where is that “I OWE YOU” now?A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes

PNCC that amount.*Q Was this payment covered by receipt from the PNCC?A It was not covered, your Honor.*Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that

payment?

A Based on the order to me by the former President Marcos ordering me to pay that amountto his office and then the mechanics will come after, your Honor.

*Q Is the PNCC a private corporation or government entity?A I think it is partly government, your Honor.*PJ GARCHITORENA*Q That is the former CDCP?A Yes, your Honor.*AJ HERMOSISIMA*Q Why were you not made to pay directly to the PNCC considering that you are the Manager

of MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacañang?WITNESSA I was just basing it from the Order of Malacañang to pay PNCC through the Office of the

President, your Honor.*Q Do you know the President or Chairman of the Board of PNCC?A Yes, your Honor.*Q How was the obligation of MIAA to PNCC incurred. Was it through the President or

Chairman of the Board?A PNCC was the one that constructed the MIA, your Honor.*Q Was the obligation incurred through the President or Chairman of the Board or President of

the PNCC? In other words, who signed the contract between PNCC and MIAA?A Actually, we inherited this obligation, your Honor. The one who signed for this was the

former Director of BAT which is General Singzon. Then when the MIA Authority wasformed, all the obligations of BAT were transferred to MIAA. So the accountabilities of BATwere transferred to MIAA and we are the ones that are going to pay, your Honor.

*Q Why did you agree to pay to Malacañang when your obligation was with the PNCC?A I was ordered by the President to do that, your Honor.*Q You agreed to the order of the President notwithstanding the fact that this was not the

regular course or Malacañang was not the creditor?A I saw nothing wrong with that because that is coming from the President, your Honor.*Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money in

this amount through a mere receipt from the private secretary?A I was ordered by the President, your Honor.*PJ GARCHITORENA*Q There is no question and it can be a matter of judicial knowledge that you have been with

the MIA for sometime?A Yes, your Honor.*Q Prior to 1986?A Yes, your Honor.*Q Can you tell us when you became the Manager of MIA?A I became Manager of MIA way back, late 1968, your Honor.*Q Long before the MIA was constituted as an independent authority?A Yes, your Honor.*PJ GARCHITORENA*Q And by 1986, you have been running the MIA for 18 years?WITNESSA Yes, your Honor.*Q And prior to your joining the MIA, did you ever work for the government?A No, your Honor.

*Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your firstemployment with the government?

A Yes, your Honor.*Q While you were Manager of MIA, did you have other subsequent concurrent positions in the

government also?A I was also the Chairman of the Games and Amusement Board, your Honor.*Q But you were not the executive or operating officer of the Games and Amusement Board?A I was, your Honor.*Q As Chairman you were running the Games and Amusement Board?A Yes, your Honor.*Q What else, what other government positions did you occupy that time?A I was also Commissioner of the Game Fowl Commission, your Honor.*PJ GARCHITORENA*Q That is the cockfighting?WITNESSA Yes, your Honor.*Q Here, you were just a member of the Board?A Yes, your Honor.*Q So you were not running the commission?A Yes, your Honor.*Q Any other entity?A No more, your Honor.*Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for

approximately 18 years, you also ran the Games and Amusement Board as its executiveofficer?

A Yes, your Honor.*Q And you were a commissioner only of the Game Fowl Commission?A Yes, your Honor.*Q Who was running the commission at that time?A I forgot his name, but he retired already, your Honor.*Q All of us who joined the government, sooner or later, meet with our Resident COA

representative?A Yes, your Honor.*PJ GARCHITORENA*Q And one of our unfortunate experience (sic) is when the COA Representative comes to us

and says: “Chairman or Manager, this cannot be”. And we learn later on that COA hasreasons for its procedure and we learn to adopt to them?

WITNESSA Yes, your Honor.*Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish,

but we know there is reason in this apparent madness of the COA and so we comply?A Yes, your Honor.*Q And more than anything else the COA is ever anxious for proper documentation and proper

supporting papers?A Yes, your Honor.*Q Sometimes, regardless of the amount?A Yes, your Honor.*Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of

the particular credit, and to be delivered in armored cars to be acknowledged only by a

receipt of a personal secretary. After almost 18 years in the government service andhaving had that much time in dealing with COA people, did it not occur to you to call a COArepresentative and say, “What will I do here?”

A I did not, your Honor.*PJ GARCHITORENA*Q Did you not think that at least out of prudence, you should have asked the COA for some

guidance on this matter so that you will do it properly?WITNESSA What I was going to do is, after those things I was going to tell that delivery ordered by the

President to the COA, your Honor.*Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta

signed requests for issuance of Manager’s checks and you were accommodated by thePNB Office at Nichols without any internal documentation to justify your request forManager’s checks?

A Yes, your Honor.*Q Of course we had no intimation at that time that Mr. Marcos will win the elections but even

then, the Daily Express, which was considered to be a newspaper friendly to the Marcosesat that time, would occasionally come with so-called expose, is that not so?

A Yes, your Honor.*Q And worst, you had the so-called mosquito press that would always come out with the real

or imagined scandal in the government and place it in the headline, do you recall that?A Yes, your Honor.*PJ GARCHITORENA*Q Under these circumstances, did you not entertain some apprehension that some disloyal

employees might leak you out and banner headline it in some mosquito publications likethe Malaya at that time?

WITNESSA No, your Honor.*PJ GARCHITORENAI bring this up because we are trying to find out different areas of fear. We are in the

government and we in the government fear the COA and we also fear the press. We mightget dragged into press releases on the most innocent thing. You believe that?

A Yes, your Honor.*Q And usually our best defense is that these activities are properly documented?A Yes, your Honor.*Q In this particular instance, your witnesses have told us about three (3) different trips from

Nichols to Aguado usually late in the day almost in movie style fashion. I mean, the moneybeing loaded in the trunk of your official car and then you had a back-up truck followingyour car?

A Yes, your Honor.*Q Is that not quite a fearful experience to you?A I did not think of that at that time, your Honor.*PJ GARCHITORENA*Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk

of your car?WITNESSA We have security at that time your Honor.ATTY. ANDRESYour Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car.

*PJ GARCHITORENAThank you for the correction. Even P1 million only. How much more with P5 million inside the

trunk of your car, was that not a nervous experience?A As I have said, your Honor, I never thought of that.PJ GARCHITORENAThank you very much, Mr. Tabuena. You are excused. x x x.”[42]

(PERALTA)(He testified on direct examination that he co-signed with Tabuena a memorandum request for the

issuance of the Manager’s Check for P5 Million upon order of Tabuena and that he [Peralta] was awarethat MIAA had an existing obligation with PNCC in the amount of around P27 Million. He affirmed havingaccompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied havingmisappropriated for his own benefit said amount or any portion thereof.)

“CROSS-EXAMINATION BY PROS VIERNESQ Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr.

Tabuena the request for issuance of Manager’s check in the amount of P5 million?A At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals

of funds should have my signature because I was one of the signatories at that time.Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in

similar requests for the issuance of Manager’s checks by the PNB?A That is the only occasion I signed, sir.Q Did you say you were ordered by Mr. Tabuena to sign the request?A Yes, sir, and I think the order is part of the exhibits. And based on that order, I co-signed in

the request for the issuance of Manager’s check in favor of Mr. Luis Tabuena.PROS VIERNESQ Was there a separate written order for you to co-sign with Mr. Tabuena?WITNESSA Yes, sir, an order was given to me by Mr. Tabuena.*PJ GARCHITORENAWas that marked in evidence?WITNESSYes, your Honor.*PJ GARCHITORENAWhat exhibit?WITNESSI have here a copy, your Honor. This was the order and it was marked as exhibit “N”. PROS VIERNESIt was marked as Exhibit “M”, your Honor.Q How did you know there was an existing liability of MIAA in favor of PNCC at that time?A Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of

MIAA as of December 31, 1985 and it came to my attention that there was an existingliability of around P27,999,000.00, your Honor.

Q When was that Financial Statement prepared?A I prepared it around January 22 or 24, something like that, of 1986, sir.Q Is it your usual practice to prepare the Financial Statement after the end of the year within

three (3) weeks after the end of the year?A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or

before the 4th Friday of the month because there will be a Board of Directors Meeting and

the Financial Statement of the prior month will be presented and discussed during themeeting.

*PJ GARCHITORENA*Q This matter of preparing Financial Statement was not an annual activity but a monthly

activity?A Yes, your Honor.*Q This Financial Statement you prepared in January of 1986 recapitulated the financial

condition as of the end of the year?A Yes, your Honor.PJ GARCHITORENAContinue.PROS VIERNESQ You made mention of a request for Escalation Clause by former Minister Ongpin. Did you

personally see that request?A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I

have no file because I just read it.Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?A Yes, sir.*PJ GARCHITORENAAnd that will be Exhibit?ATTY. ANDRESExhibit “2” and “2-A”, your Honor.PROS VIERNESQ You also stated that you were with Mr. Tabuena when you withdrew the amount of P5

million from the PNB Extension Office at Villamor?A Yes, sir.Q Why was it necessary for you to go with him on that occasion?A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle

count the P5 million and it was placed in two (2) peerless boxes.Q Did you actually participate in the counting of the money by bundles?A Yes, sir.Q Bundles of how much per bundle?A If I remember right, the bundles consisted of P100s and P50s, sir.Q No P20s and P10s?A Yes, sir, I think it was only P100s and P50s.*PJ GARCHITORENA*Q If there were other denominations, you can not recall?A Yes, your Honor.PROS VIERNESQ In how many boxes were those bills placed?A The P5 million were placed in two (2) peerless boxes, sir.Q And you also went with Mr. Tabuena to Aguado?A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr.

Tabuena, I was left behind and I went back to my office at MIA.Q But the fact is that, this P5 million was withdrawn at passed 5:00 o’clock in the afternoon?A I started counting it I think at around 4:30, sir. It was after office hours. But then I was

there at around 4:00 o’clock and we started counting at around 4:30 p.m. because theyhave to place it in a room, which is the office of the Manager at that time.

Q And Mr. Tabuena left for Malacañang after 5:00 o’clock in the afternoon of that date?

A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr.Tabuena left for Malacañang.

PROS VIERNESQ And you yourself, returned to your office at MIA?WITNESSA Yes, sir.Q Until what time do you hold office at the MIA?A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office,

sir.Q So, even if it was already after 5:00 o’clock in the afternoon, you still went back to your

office at MIA?A Yes, sir.PROS VIERNESThat will be all, your Honor.PJ GARCHITORENARedirect?ATTY. ESTEBALNo redirect, your Honor.*PJ GARCHITORENAQuestions from the Court.*AJ DEL ROSARIO*Q Did you not consider it as odd that your obligation with the PNCC had to be paid in cash?WITNESSA Based on the order of President Marcos that we should pay in cash, it was not based on

the normal procedure, your Honor.*Q And, as Acting Financial Services Manager, you were aware that all disbursements should

be covered by vouchers?A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as

what we did was to prepare a request to the PNB, then this can be covered by JournalVoucher also.

*Q Was such payment of P5 million covered by a Journal Voucher?A Yes, your Honor.*Q Did you present that Journal Voucher here in Court?A We have a copy, your Honor.*Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that

payment?A We have a copy of the Journal Voucher, your Honor.*Q Was this payment of P5 million ever recorded in a cashbook or other accounting books of

MIAA?A The payment of P5 million was recorded in a Journal Voucher, your Honor.*PJ GARCHITORENA*Q In other words, the recording was made directly to the Journal?WITNESSA Yes, your Honor.*Q There are no other separate documents as part of the application for Manager’s Check?A Yes, your Honor, there was none.*AJ DEL ROSARIO*Q After the payment was made, did your office receive any receipt from PNCC?

A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, yourHonor. Inasmuch as the payment should be made through the Office of the president, Iaccepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena.

*Q After receiving that receipt, did you prepare the necessary supporting documents,vouchers, and use that receipt as a supporting document to the voucher?

A Your Honor, a Journal Voucher was prepared for that.*Q How about a disbursement voucher?A Inasmuch as this was a request for Manager’s check, no disbursement voucher was

prepared, your Honor.*AJ DEL ROSARIO*Q Since the payment was made on January 31, 1986, and that was very close to the election

held in that year, did you not entertain any doubt that the amounts were being used forsome other purpose?

ATTY. ESTEBALWith due respect to the Honorable Justice, we are objecting to the question on the ground that it

is improper.*AJ DEL ROSARIOI will withdraw the question.*PJ GARCHITORENAWhat is the ground for impropriety?ATTY. ESTEBALThis is not covered in the direct examination, and secondly, I don’t think there was any basis,

your Honor.*PJ GARCHITORENAConsidering the withdrawal of the question, just make the objection on record.*AJ HERMOSISIMA*Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it

proper that a check be issued only after it is covered by a disbursement voucher dulyapproved by the proper authorities?

A Your Honor, what we did was to send a request for a Manager’s check to the PNB basedon the request of Mr. Tabuena and the order of Mr. Tabuena was based on the Order ofPresident Marcos.

*PJ GARCHITORENA*Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper to

have this transaction covered by a disbursement voucher?WITNESSA Based on my experience, payments out of cash can be made through cash vouchers, or

even though Journal Vouchers, or even through credit memo, your Honor.*AJ HERMOSISIMA*Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by

means of check in favor of Mr. Luis Tabuena, your own manager?A We based the payment on the order of Mr. Tabuena because that was the order of

President Marcos to pay PNCC through the Office of the President and it should be paid incash, your Honor.

*Q You are supposed to pay only on legal orders. Did you consider that legal?ATTY. ESTEBALWith due respect to the Honorable Justice, the question calls for a conclusion of the witness.*PJ GARCHITORENAConsidering that the witness is an expert, witness may answer.

WITNESSA The order of president Marcos was legal at that time because the order was to pay PNCC

the amount of P5 million through the Office of the President and it should be paid in cash,your Honor. And at that time, I know for a fact also that there was an existing P.D. whereinthe President of the Republic of the Philippines can transfer funds from one office toanother and the PNCC is a quasi government entity at that time.

*AJ HERMOSISIMA*Q Are you saying that this transaction was made on the basis of that P.D. which you referred

to?A I am not aware of the motive of the President, but then since he is the President of the

Philippines, his order was to pay the PNCC through the Office of the President, your Honor.*Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of an

obligation of MIAA is supposed to be paid in check?A I caused the payment through the name of Mr. Tabuena because that was the order of Mr.

Tabuena and also he received an order coming from the President of the Philippines at thattime, your Honor.

*PJ GARCHITORENA*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain

statements of accounts earlier made in the same journal?In other words, really what you are telling us is that, a Journal Voucher is to explain a

transaction was otherwise not recorded.WITNESSA Yes, your Honor.*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper

only because of the exceptional nature of the transactions?A Yes, your Honor.*Q In other words, as an Accountant, you would not normally authorize such a movement of

money unless it is properly documented?ATTY. ESTEBALWith due respect to the Honorable Presiding Justice, I think the question is misleading because

what the witness stated is...*PJ GARCHITORENABe careful in your objection because the witness understands the language you are speaking,

and therefore, you might be coaching him.ATTY. ESTEBALNo, your Honor. I am also an accountant that is why I could say that...*PJ GARCHITORENAPlease be simple in your objection.ATTY. ESTEBALThe question is misleading on the ground that what the witness stated earlier is that the Journal

Voucher in this particular case was supported, your Honor.*PJ GARCHITORENAOverruled, may answer.WITNESSA The transaction was fully documented since we have the order of the General Manager at

that time and the order of President Marcos, your Honor.*Q Are you saying the Order of the General Manager is an adequate basis for the movement

of money?A Yes, your Honor, because at that time we have also a recorded liability of P27 million.

*Q We are not talking of whether or not there was a liability. What we are saying is, is theorder of the General Manager by itself adequate with no other supporting papers, to justifythe movement of funds?

A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liabilityof P27,931,000.00, inasmuch as we have that liability and I was shown the order ofPresident Marcos to pay P5 million through the Office of the President, I considered theorder of Mr. Luis Tabuena, the order of President Marcos and also the existing liabilityof P27 million sufficient to pay the amount of P5 million. Inasmuch as there is also anescalation clause of P99.1 million, the payment of P5 million is fully covered by thoseexisting documents.

*PJ GARCHITORENAYou keep flooding us with details we are not asking for. We are not asking you whether or not

there was valid obligation. We are not asking you about the escalation clause. We areasking you whether or not this particular order of Mr. Tabuena is an adequate basis tojustify the movement of funds?

WITNESSWhen we pay, your Honor, we always look for the necessary documents and at that time I know

for a fact that there was this existing liability.*PJ GARCHITORENAWhen we ask questions and when we answer them, we must listen to the question being asked

and not to whatever you wanted to say. I know you are trying to protect yourself. We areaware of your statement that there are all of these memoranda.

*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena byitself is adequate?

WITNESSA As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown

the Order of President Marcos to pay PNCC through his office, I feel that the order of theGeneral Manager, the order of President Marcos, and also the memorandum of MinisterOngpin are sufficient to cause the payment of P5 million.

*PJ GARCHITORENA*Q This Presidential Decree which authorizes the President to transfer funds from one

department to another, is this not the one that refers to the realignment of funds insofar asthe Appropriation Act is concerned?

WITNESSA Because at that time, your Honor, I have knowledge that the President is authorized

through a Presidential Decree to transfer government funds from one office to another.*PJ GARCHITORENA*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the

Appropriation Act?A I think the liability was duly recorded and appropriations to pay the amount is.....(interrupted)*PJ GARCHITORENA*Q Tell me honestly, is your answer responsive to the question or are you just throwing words

at us in the hope that we will forget what the question is?A No, your Honor.*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so

that the payment of this debt would be in the same level as the realignment of fundsauthorized the President? Or are you telling as you did not read the Decree?

A I was aware of that Decree, your Honor.

*PJ GARCHITORENAMr. Estebal, will you include in your memorandum what are the Decrees authorizing this

movement of funds?ATTY. ESTEBALYes, your Honor.*PJ GARCHITORENA*Q It is true that President Marcos was the President, but he was not an officer of the MIAA,

was he?A No, your Honor.*Q In fact, for purposes of internal control, you have different officers and different officials in

any company either government or private, which are supposed to check and balanceeach other, is it not?

A Yes, your Honor.*Q So that when disbursements of funds are made, they are made by authority of not only one

person alone so that nobody will restrain him?A Yes, your Honor.*Q These checks and balances exist in an entity so that no one person can dispose of funds in

any way he likes?A Yes, your Honor.*Q And in fact, the purpose for having two (2) signatories to documents and negotiable

documents is for the same purpose?A Yes, your Honor.*PJ GARCHITORENA*Q In other words, the co-signatories counter check each other?WITNESSA Yes, your Honor.*Q In your case, you would be the counter check for Mr. Tabuena?A Yes, your Honor.*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager

and as counter signatory are in a position to tell Mr. Tabuena, “I am sorry, you are mysuperior but this disbursement is not proper and, therefore, I will not sign it.”, if in youropinion the disbursement is not proper?

A Yes, your Honor.*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety

of a particular transaction?A Yes, your Honor.*Q And this is something you know by the nature of your position and because you are a

Certified Public Accountant?A Yes, your Honor.*AJ DEL ROSARIO*Q You admit that the payment of P5 million and P50 million were unusual in the manner with

which they were disposed?A Yes, your Honor.*Q Did you submit a written protest to the manner in which such amount was being disposed

of?A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that

since this payment was upon the order of President Marcos, then I think as President hecan do things which are not ordinary.

*Q If you did not prepare a written protest, did you at least prepare a memorandum for therecord that this was an extra-ordinary transaction?

A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and nowritten note, your Honor.

PJ GARCHITORENAThank you very much Mr. Peralta, you are excused. x x x.”[43]

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfyinghis mind upon any material point which presents itself during the trial of a case over which he presides.[44] But not only should his examination be limited to asking “clarificatory” questions,[45] the right should besparingly and judiciously used; for the rule is that the court should stay out of it as much as possible,neither interfering nor intervening in the conduct of the trial. [46] Here, these limitations were notobserved. Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or tobe more precise, had taken the cudgels for the prosecution in proving the case against Tabuena andPeralta when the Justices cross-examined the witnesses, their cross-examinations supplementing thosemade by Prosecutor Viernes and far exceeding the latter’s questions in length. The “cold neutrality of animpartial judge” requirement of due process was certainly denied Tabuena and Peralta when the court,with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, theobservation made in the Dissenting Opinion to the effect that the majority of this Court was “undulydisturbed” with the number of court questions alone, is quite inaccurate. A substantial portion of the TSNwas incorporated in the majority opinion not to focus on “numbers” alone, but more importantly to showthat the court questions were in the interest of the prosecution and which thus depart from that commonstandard of fairness and impartiality. In fact, it is very difficult to be, upon review of the records,confronted with “numbers” without necessarily realizing the partiality of the Court. In “US v. De Sisto” (2Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this case,indulged in extensive questioning of defendant and his witnesses, and the reviewing court also had toamplify on “numbers” to bolster this. It was pointed out in the “De Sisto” case that the judge asked 3,115questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge’squestions to the defendant De Sisto totalled 306, the prosecutor’s 347, and the defense counsel’s,201. After referring to these figures, the court stated:“. . . It is indeed an impressive proportion, but no such mathematical computation is of itselfdeterminative. However, taking all this in conjunction with the long and vigorous examination of thedefendant himself by the judge, and the repeated belittling by the judge of defendant’s efforts to establishthe time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here conveyed tothe jury too strong an impression of the court’s belief in the defendant’s probable guilt to permit the juryfreely to perform its own function of independent determination of the facts. x x x”

The majority believes that the interference by the Sandiganbayan Justices was just too excessivethat it cannot be justified under the norm applied to a jury trial, or even under the standard employed in anon-jury trial where the judge is admittedly given more leeway in propounding questions to clarify pointsand to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this via somespecific examples. Based on the evidence on record, and on the admission of Tabuena himself, the P55million was delivered to the President’s Office thru Mrs. Gimenez, in obedience to the Presidentialdirective. One Sandiganbayan Justice, however, hurled the following questions to Peralta:

“AJ DEL ROSARIOQ: Since the payment was made on January 31, 1986, and that was very close to the

election held in that year, did you not entertain any doubt that the amountswere being used for some other purposes?

ATTY. ESTEBALWith due respect to the Honorable Justice, We are objecting to the question o

n the ground that it is

improper.AJ DEL ROSARIOI will withdraw the question.PJ GARCHITORENAWhat is the ground for impropriety?ATTY. ESTEBALThis is not covered in the direct examination, and secondly, I don’t think there was

any basis, Your Honor.PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on record.”Nothing from the preceding questions of counsels or of the court would serve as basis for this

question. How then, can this be considered even relevant? What is the connection between the paymentmade to the President’s office and the then forthcoming presidential “snap election”? In another instance,consider the following questions of Presiding Justice Garchitorena:*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certainstatements of accounts earlier made in the same journal?

xxx*Q In other words, really what you are telling us is that, a Journal Voucher is to explain a

transaction was otherwise not recorded.xxx

*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is properonly because of the exceptional nature of the transactions?

xxx*Q In other words, as an Accountant, you would not normally authorize such a movement of

money unless it is properly documented?ATTY. ESTEBALWith due respect to the Honorable Presiding Justice, I think the question is misleading because

what the witness stated is...*PJ GARCHITORENABe careful in your objection because the witness understands the language you are speaking,

and therefore, you might be coaching him.ATTY. ESTEBALNo, your Honor. I am also an accountant that is why I could say that...*PJ GARCHITORENAPlease be simple in your objection.ATTY. ESTEBALThe question is misleading on the ground that what the witness stated earlier is that the Journal

Voucher in this particular case was supported, your Honor.*PJ GARCHITORENAOverruled, may answer.WITNESSA The transaction was fully documented since we have the order of the General Manager at

that time and the order of President Marcos, your Honor.*Q Are you saying the Order of the General Manager is an adequate basis for the movement

of money?*Q We are not talking of whether or not there was a liability. What we are saying is, is the

order of the General Manager by itself adequate with no other supporting papers, to justifythe movement of funds?

*PJ GARCHITORENAYou keep flooding us with details we are not asking for. We are not asking you whether or not

there was valid obligation. We are not asking you about the escalation clause. We areasking you whether or not this particular order of Mr. Tabuena is an adequate basis tojustify the movement of funds?

*PJ GARCHITORENAWhen we ask questions and when we answer them, we must listen to the question being asked

and not to whatever you wanted to say. I know you are trying to protect yourself. We areaware of your statement that there are all of these memoranda.

*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena byitself is adequate?

*PJ GARCHITORENA*Q This Presidential Decree which authorizes the President to transfer funds from one

department to another, is this not the one that refers to the realignment of funds insofar asthe Appropriation Act is concerned?

*PJ GARCHITORENA*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the

Appropriation Act?*PJ GARCHITORENA*Q Tell me honestly, is your answer responsive to the question or are you just throwing words

at us in the hope that we will forget what the question is?xxx*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so

that the payment of this debt would be in the same level as the realignment of fundsauthorized the President? Or are you telling as you did not read the Decree?

*PJ GARCHITORENAMr. Estebal, will you include in your memorandum what are the Decrees authorizing this

movement of funds?ATTY. ESTEBALYes, your Honor.*PJ GARCHITORENA*Q It is true that President Marcos was the President, but he was not an officer of the MIAA,

was he?*Q In fact, for purposes of internal control, you have different officers and different officials in

any company either government or private, which are supposed to check and balanceeach other, is it not?

*Q So that when disbursements of funds are made, they are made by authority of not only oneperson alone so that nobody will restrain him?

*Q These checks and balances exist in an entity so that no one person can dispose of funds inany way he likes?

*Q And in fact, the purpose for having two (2) signatories to documents and negotiabledocuments is for the same purpose?

*PJ GARCHITORENA*Q In other words, the co-signatories counter check each other?*Q In your case, you would be the counter check for Mr. Tabuena?*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager

and as counter signatory are in a position to tell Mr. Tabuena, “I am sorry, you are mysuperior but this disbursement is not proper and, therefore, I will not sign it.”, if in youropinion the disbursement is not proper?

*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the proprietyof a particular transaction?

*Q And this is something you know by the nature of your position and because you are aCertified Public Accountant?”[47]

How can these questions be considered clarificatory when they clearly border more on cross-examination questions? Thus, the Dissenting Opinion’s focus on the distinction between the two kinds oftrial to justify the Sandiganbayan’s active participation in the examination of petitioners Tabuena andPeralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore, beemphasized anew that:“A trial judge should not participate in the examination of witnesses as to create the impression that he isallied with the prosecution.”[48]

“We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but itis never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judgemay be for the enforcement of the law, he should always remember that he is as much judge in behalf ofthe defendant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, forthe purpose of safeguarding the interests of society.”[49]

“Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. Thecircumstances may be such in a given case as to justify the court in so doing....This court, however, hasmore than once said that the examination of witnesses is the more appropriate function of counsel, andthe instances are rare and the conditions exceptional which will justify the presiding judge in conductingan extensive examination. It is always embarrassing for counsel to object to what he may deem improperquestions by the court. Then, in conducting a lengthy examination, it would be almost impossible for thejudge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is hisduty to see that justice is done, he will usually not find it necessary to conduct such examinations. Theextent to which this shall be done must largely be a matter of discretion, to be determined by thecircumstances of each particular case, but in so doing he must not forget the function of the judge andassume that of an advocate....”[50]

“While it is true that the manner in which a witness shall be examined is largely in the discretion of the trialjudge, it must be understood that we have not adopted in this country the practice of making the presidingjudge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial procedure,even at the expense of occasional delays....The judge is an important figure in the trial of a cause, andwhile he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail,we can conceive of no other reason, for him to take the trial of the cause out of the hands of counsel.” [51]

“The examination of witnesses is the more appropriate function of counsel, and it is believed theinstances are rare and the conditions exceptional in a high degree which will justify the presiding judge inentering upon and conducting an extended examination of a witness, and that the exercise of a sounddiscretion will seldom deem such action necessary or advisable.”[52]

“He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessarywaste of time, or to clear up some obscurity, but he should bear in mind that his undue interference,impatience, or participation in the examination of witnesses, or a severe attitude on his part towardwitnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tendto prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.” [53]

“The impartiality of the judge — his avoidance of the appearance of becoming the advocate of either oneside or the other of the pending controversy is a fundamental and essential rule of special importance incriminal cases....”[54]

“Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and todispose of these cases speedily and in as inexpensive a manner as is possible for the court and theparties, should refrain from showing any semblance of one-sided or more or less partial attitude in order

not to create any false impression in the minds of the litigants. For obvious reasons, it is the boundenduty of all to strive for the preservation of the people’s faith in our courts.”[55]

“Time and again this Court has declared that due process requires no less than the cold neutrality of animpartial judge. Bolstering this requirement, we have added that the judge must not only be impartial butmust also appear to be impartial, to give added assurance to the parties that his decision will be just. Theparties are entitled to no less than this, as a minimum guaranty of due process.”[56]

We are well aware of the fear entertained by some that this decision may set a dangerous precedentin that those guilty of enriching themselves at the expense of the public would be able to escape criminalliability by the mere expedient of invoking “good faith”. It must never be forgotten, however, that we renderjustice on a case to case basis, always in consideration of the evidence that is presented. Thus, wherethe evidence warrants an acquittal, as in this case, we are mandated not only by the dictates of law butlikewise of conscience to grant the same. On the other hand, it does not follow that all those similarlyaccused will necessarily be acquitted upon reliance on this case as a precedent. For the decision in thiscase to be a precedent, the peculiar circumstances and the evidence that led to the petitioner’s acquittalmust also be present in subsequent cases.

Furthermore, as between a mere apprehension of a “dangerous precedent” and an actual violationof constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For themost dangerous precedent arises when we allow ourselves to be carried away by such fears so that itbecomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring tojustice the malefactors of the Marcos regime, we must not succumb to the temptation to commit thegreatest injustice of visiting the sins of the wrongdoers upon an innocent.

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta arehereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of theRevised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution datedDecember 20, 1991 are REVERSED and SET ASIDE.

SO ORDERED.Narvasa, C.J., Regalado, Bellosillo, Vitug, Kapunan, Mendoza, and Torres, JJ., concur.Padilla, Davide, Romero, Puno, and Panganiban, JJ., dissent.Hermosisima, Jr., J., took no part being a signatory to SB decision.

[1] Taken under Section 7 of P.D. 1606, as amended (the Sandiganbayan Law), Section 1, Rule XIX of theRevised Rules of the Sandiganbayan and Rule 45 of the Rules of Court. The petitions wereordered consolidated by the Court in an En Banc Resolution dated October 1, 1992.

[2] Promulgated on October 22, 1990; Rendered by the First Division then composed of JusticesGarchitorena (ponente), Hermosisima (now Associate Justice of this Court) and Del Rosario.

[3] Promulgated on January 10, 1992.[4] Records, Vol. I, p. 26.[5] Records, Vol. I, pp. 119-120.[6] Tabuena avers that the Sandiganbayan:“AErred and committed reviewable error in ruling that petitioner’s withdrawal of the P55 Million was not for alawful purpose or for a lawful debt. In the process, theSandiganbayan clearly ignored several pieces ofevidence submitted by petitioner, and instead misapprehended the full import of the Ongpin Memorandum(Exh. “2”, as attachment of Annex “I”), to which the Marcos order to pay referred (Exh. “1”, attachment toAnnex “I”). In so concluding, the Sandiganbayan laid its conclusions open to review as its judgment is in

effect based on misapprehension of facts (Cruz vs. Sosing, L-4875, November 27, 1953); and in ignoringseveral material pieces of evidence abused its discretion (Buyco vs. People, 51 OG 7927).BErred and committed reviewable error in ruling that the Ongpin Memorandum (Exh. “2” and “2-A”, SeeAnnex “I”), and the Marcos approval thereof (Exh. “1”, id.) did not support the withdrawal and payment ofmonies by petitioner. In so concluding, the Sandiganbayan again clearly misapprehended the Ongpinand Marcos Memoranda, and the ledger of PNCC.CErred and committed reviewable error in ruling that petitioner was in bad faith when he complied with thepresidential order to pay; in thus concluding the Sandiganbayanindulged in speculations and conjectures(Joaquin vs. Navarro, 93 Phil. 257), or otherwise went beyond the issues (Evangelista vs. Alco, L-11139,April 23, 1958); theSandiganbayan also erred in not ruling that petitioner is entitled to justifyingcircumstance under Par. 6, Art. 11, and/or the exempting circumstance provided under Pars. 5 and 6 ofArt. 12 of the Revised Penal Code.DErred and committed reviewable error in ruling that petitioner was unable to account for the money. In sodoing, the Sandiganbayan contradicted the ruling in U.S. vs. Catolico, 18 Phil. 504. It also erred inholding petitioner accountable for acts not charged in the amended informations, and in so doingconvicted him without jurisdiction.EErred and committed reviewable error in ruling that petitioner was not entitled to immunity as provided bySec. 17, Article VII of the 1973 Constitution. The Sandiganbayantherefore had no jurisdiction to try thecases.FErred and committed reviewable error in ruling that proof beyond reasonable doubt of petitioner’s guiltwas submitted by the prosecution. In so doing, the Sandiganbayan wrongly shifted the burden of proofand denied petitioner the benefits of the presumption of innocence, of Secs. 1 and 2, Rule 131, and theabsence of demand under the last paragraph of Art. 217 of the Revised Penal Code.”Peralta for his part claim that:“1. Respondent court grossly and seriously erred in convicting herein accused despite the absenceof proof that he allegedly converted the funds withdrawn to his own personal benefit as charged in theinformation in glaring violation of his basic constitutional right to be presumed innocent.“2. Respondent also grossly erred in convicting herein accused on the basis of mere assumptions,conjectures and inferences devoid of factual basis in another court likewise grossly and seriously erred inconvicting herein accused for a crime not charged in the information again in violation of anotherconstitutional right, that is the right to be informed of the accusation or right to due process.“3. Respondent court serious and glaring violation of his right to be presumed innocent until his guiltis established by proof beyond reasonable doubt.“4. Respondent court finally erred in refusing to recognize the applicability of the immunity provision

embodied in the Constitution and of the justifying circumstance of obedience to a lawful order asvalid defenses in this case.”

[7] Citing PNB v. Tugab, 66 Phil. 583 and People v. Pascua, 71 O.G. 2474.[8] Citing Tubb v. People, 101 Phil. 114.[9] 197 SCRA 94.[10] 18 Phil. 504.[11] 24 Phil. 230.[12] 47 Phil. 48.

[13] Lewis v. People, 99 Colo. 102, 60 Pac. [2d] 1089; Lawver v. State, 221 Ind. 101, 46 N.E. [2d] 592;State v. Schmidt, 72 N. Dak. 719, 10 N.W. [2d] 868. Underhill’s Criminal Evidence, 5th Ed., Book3, p. 1421.

[14] Federal Lindgren v. United States, 260 Fed. 772. Underhill, ibid.[15] Section 8, Article VII of the 1973 Constitution provides:“The President shall have control of all ministries.”[16] No. 6, Article II, Revised Penal Code.[17] Sandiganbayan Decision, pp. 37-38.[18] Sandiganbayan Decision, p. 41.[19]TSN, March 17, 1989, p. 7; Vol. III, Records, p. 409.[20] TSN, March 17, 1989, p. 8; Vol. III, Records, p. 410.[21] TSN, March 17, 1989, p. 10; Vol. III, Records, p. 412.[22] Gregorio, Fundamentals of Criminal Law, 1988 8th Ed., p. 59.[23] 78 Phil. 67.[24] Padilla, Revised Penal Code, Book One, Vol. I, 7th Ed. 1974., p. 248. See also: Aquino, The RevisedPenal Code, Vol. I, 1987 Ed., p. 207. In the very words of the Court in the “Nassif” case:“El mero acto de escribir un empleado de la categoria del recurrente, en el Exhibit B, la palabra “sold,”

por orden de su principal que le paga el sueldo, sin prueba alguna de dolo o malicia de su parte,no crea por si solo ninguna responsabilidad. Si antes de insertar dicha palabra en el referidodocumento, o al tiempo de hacerlo, el recurrente hubiese sabido o sospechado dealguna manera que era para justificar un acto impropio de su principal, cosa que, por cierto, nose ha probado, ni puede desprenderse de la decision impugnada, indudablemente podriahacersele responsable a dicho recurrente, de la falsificacion cometida, si no como coautor, por lomenos como complice. Todo esto y la circunstancia justificativa invocada por el recurrente,eximen a este de toda responsabilidad.”

[25] Decision, p. 45.[26] 145 SCRA 435.[27] Supra.[28] Sandiganbayan Decision, p. 50.[29] People v. Fabian, No. 10790-CR, March 12, 1973. 69 O.G. 12150, No. 53.[30] 18 Phil. 428.[31] 197 SCRA 262.[32] Supra, p. 431.[33] Supra, p. 273.[34] Development Bank of the Philippines v. Pundogar, 218 SCRA 118, 163.[35] People v. Exala, Dissenting Opinion, 221 SCRA 494, 503[36] People v. Olfindo, 47 Phil. 1, citing U.S. v. Abijan, 1 Phil. 83; People v. Borbano, 76 Phil. 703;

Perez v. Court of Appeals, 127 SCRA 636.[37] See TSN of March 17, 1989, Records, Vol. III, pp. 408-423.[38] See pp. 1-27 TSN of May 2, 1990, Records, Vol. III, pp. 439-465.[39] See pp. 32-53 of TSN, of May 2, 1990, Records, Vol. III, pp. 470-490.[40] Confrontation.--Confrontation consists of confronting the witness with damaging facts which he cannotdeny and which are inconsistent with his evidence. It is a destructive technique, but when it fails todestroy it may still succeed in weakening. Probing.--Probing consists of inquiring thoroughly into the details of the story to discover the flaws. Insinuation.--Insinuation consists of leading or forcing the witness by adding facts at one point and

modifying details at another, to give a version of his evidence which is more favorable to the otherside. The Technique of Advocacy, by John H. Munkman, pp. 66-67; p. 75; pp. 91-92.

[41] TSN, March 17, 1989, pp. 11-21; Records, Vol. III, pp. 413-423.

[42] TSN, May 2, 1990, pp. 11-27; Records, Vol. III, pp. 449-465.[43] TSN, May 2, 1990, pp. 35-53; Records, Vol. III, pp. 473-490.[44] US v. Hudieres, 27 Phil. 45; US v. Lim Kui, 35 Phil. 504; US v. Binayao, 35 Phil. 23.[45] People v. Opida, 142 SCRA 295.[46] York v. US, 299 Fed. 778.[47] TSN, May 2, 1990, pp. 35-53; Records, Vol. III, pp. 473-490.[48] People v. Opida, supra.[49] Murphy v. State, 13 Ga. App. 431, 79 S.E. 228.[50] People v. Bernstein, 250 Ill. 63, 95 N.E. 50.[51] Dreyer v. Ershowsky, 156 App. Div. 27, 140 N.Y. Supp. 819.[52] Dunn v. People, 172 Ill. 582, 50 N.E. 137.[53] Com. v. Myma, 278 Pa. 505, 123 Atl. 786.[54] Adler v. US, 104 C.C.A. 608, 108 Fed. 464.[55] Campaner v. Alano, CA-G.R. No. 2558-R, December 15, 1948.[56] People v. Opida, supra.

G.R. No. 149652 March 24, 2006

EDUARDO L. BAXINELA, Petitioner-Appellant, vs.THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee.

D E C I S I O N

AZCUNA, J.:

Petitioner SPO2 Eduardo L. Baxinela assails his conviction for the crime of homicide by the Regional TrialCourt of Kalibo, Aklan1 (RTC) in Criminal Case No. 4877, as affirmed with modification by the Court ofAppeals (CA) in CA-G.R. CR No. 23348.

On February 19, 1997, an Information charging Baxinela with the crime of homicide was filed as follows:2

That on or about the 19th day of October , 1996, early in the morning, at Poblacion, Municipality of Kalibo,Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, theabove-named accused, while armed with a handgun, without justifiable cause and with intent to kill, didthen and there wi[l]lfully, unlawfully and feloniously attack, assault and shoot one RUPERTO F. LAJO,thereby inflicting upon the latter mortal wounds, to wit:

"A. EXTERNAL FINDINGS:

= .56 cm entrance gunshot wound proximal third lateral aspect left arm with fracture of the left humerus.

= 1 cm exit wound proximal third medial aspect left arm.

= 1 cm entrance gunshot wound anterior axillary line 5th intercostals space left chest.

B. INTERNAL FINDINGS

= One liter of flood left thoracic cavity

= Perforated left diaphragm.

= One – two liters of blood in the abdominal cavity.

= 2 point perforation stomach

= Multiple perforation small, and large intestines and mesenteries.

= (+) Retroperitonial hematoma

DIAGNOSIS: Gunshot wound left of arm with fracture of the humerus, penetrating the (L) thoracic cavityperforating the diaphragm, abdomen, stomach and, intestines and retroperitoneum with slugs lodging thevertebral colum[n].

CAUSE OF DEATH: Cardiopulmonary arrest

Secondary to severe bleeding

Secondary to gunshot wound."

as per Autopsy Report issued by Dr. Roel A. Escanillas, Medical Officer III, Dr. Rafael S. TumbokonMemorial Hospital, Kalibo, Aklan, which wounds directly caused the death of RUPERTO F. LAJO, as perCertificate of Death, hereto attached as Annexes "A" and "B" and forming part of this Information.

That as a result of the criminal acts of the accused the heirs of the deceased suffered actual andcompensatory damages in the amount of FIFTY THOUSAND PESOS (P50,000.00).

CONTRARY TO LAW.

On April 30, 1997, Baxinela was arraigned and pleaded NOT GUILTY.3 During pre-trial, Baxinela informedthe RTC that he would be claiming the justifying circumstance of self-defense.4 In accordance with theRules of Criminal Procedure, the defense was the first to present evidence.5

The first witness for the defense was Insp. Joel Regimen.6 He testified that on October 19, 1996, at about12:35 a.m., he and Baxinela were walking along Toting Reyes Street in Kalibo, Aklan when they wereapproached by a civilian named Romy Manuba who informed them of a drunken person drawing a gunand creating trouble inside the Playboy Disco Pub located on the second floor of the Kingsmen building.7They immediately proceeded to the reported place and, upon arrival, recognized a former colleague,SPO4 Legarda, who was with a companion. Legarda invited them to his table and the two obliged. Later,while seated at the table, they saw someone with a handgun visibly tucked at the back of his waist about4 meters away. Regimen then instructed Baxinela to take a closer look at this person while he makes acall to the Kalibo police station but before Regimen could stand up, the man with a gun started to walktowards the door. As he passed by their table, Baxinela stood up, introduced himself as a policeman andasked the man why he had a gun with him. The man did not respond and, instead, suddenly drew out hisgun. Baxinela then drew his sidearm and was able to fire first, hitting the man on his upper left arm. Whenthe man fell down, Baxinela took his gun and wallet and handed them over to Regimen. Regimen thenstated that he enlisted the services of the pub’s security guard to bring the wounded man to the hospital

while he and Baxinela proceeded to the Kalibo Police Station and reported the matter to SPO4 SalvadorAdvincula. They also went to Camp Pastor Martelino to report the matter to the Officer-in-Charge, Col.Bianson.

The second witness for the defense was Romy Manuba,8 who testified that on October 19, 1996, ataround 12:30 a.m., he was on the second floor of the Kingsmen building drinking liquor. While inside, hesaw a drunken man wearing a white polo shirt accosting several persons with a gun. Fearing the manwith the gun, he left the place to go home. On his way home he saw Regimen and Baxinela and hereported to them what he had seen earlier.

The third witness for the defense was SPO4 Nepomuceno Legarda (Ret.).9 He testified that on October18, 1996, at about 11:00 p.m., he was inside the Superstar Disco Pub drinking beer with a companionnamed Toto Dalida. At about 12:40 a.m., Legarda saw Regimen and Baxinela enter the pub and heinvited them over to his table. Later, as they were seating on the table, he noticed Regimen whispersomething to Baxinela and, at the same time, pointing to a man with a handgun visibly tucked at the backof his waist. He then observed the armed person heading for the door. But as he passed by their tableBaxinela stood up, approached the man from behind and said "Why do you have a gun. I am apoliceman." The man did not reply and, instead, turned around and drew his gun. As the man was turning,Baxinela also drew his gun and was able to fire first, hitting the man on his left arm. After the man fell onthe floor, Baxinela grabbed the other man’s firearm and handed it over to Regimen. Regimen thenrequested one of the security guards to transport the wounded man to the hospital. Regimen andBaxinela then proceeded to the Kalibo Police Station while Legarda and Dalida went home.

Baxinela took the witness stand as the last witness for the defense.10 He testified that he and Regimenwere walking along Toting Reyes Street, looking for a tricycle to take them home, when they were met byManuba. Manuba reported to them that there was an armed person, drunk inside the Superstar DiscoPub and creating trouble. They then proceeded to the pub to verify the report. Once there, they sawLegarda occupying a table near the entrance with a companion named Toto Dalida. Legarda invited themto sit at his table. As they were sitting down, Regimen whispered to him that there was a man with a guntucked at the back of his waist and told him to watch that person while he tries to look for a telephone tocall the Kalibo Police Station. As Regimen was about to stand, the armed man started to walk towards theentrance. When he passed their table, Baxinela stood up, introduced himself as a policeman and askedwhy he had a gun. The man did not respond but turned to face Baxinela, drawing his gun. Baxinelaimmediately drew his firearm and beat him to the draw, hitting the man on his left arm. When the man fellto the floor, Baxinela picked up the man’s gun and handed it over to Regimen. Baxinela also took hiswallet for identification. Regimen then told one of the security guards to bring the wounded man to thehospital. Thereafter, Baxinela and Regimen went to the Kalibo Police Station to report the incident andturned over the wallet. Next, they proceeded to Camp Pastor Martelino and also reported the incident toCol. Bianson.

To rebut the claim of self-defense, the prosecution presented as its first witness, Abelardo Alvarez.11Alvarez was a security guard assigned to the Kingsmen building during the incident in question. Hetestified that he was already acquainted with Baxinela and that he saw him, together with Legarda andRegimen, already in the Superstar Disco Pub as early as 11:00 p.m. of October 18, 1996 drinking. Ataround 12:00 a.m. to 12:30 a.m. there was a minor altercation between the deceased Sgt. Lajo andanother customer at the pub but eventually the two were able to patch things up. Lajo was then on hisway out when Baxinela followed Lajo with a gun already drawn out. Then, from behind, Baxinela heldLajo’s left arm and said "Ano ka hay? Mam-an may baril ka?"12 He then heard Lajo respond "I am a MIG,Pare" after that Alvarez heard an explosion coming from Baxinela’s gun. Baxinela then got a gun from

Lajo’s waist and handed it over to Regimen. Afterwards Baxinela held both of Lajo’s arms, who was stillstanding, and pushed him against the wall and repeated his question. Lajo answered "Why did you shootme? I am also a military." At this point Lajo got out his wallet and gave it to Baxinela. Baxinela opened thewallet and looked at an ID. Afterwards Baxinela and Regimen just left and did nothing to aid Lajo. Alvarezand his fellow security guard, Rolando Gabriel, then picked up Lajo and boarded him on a tricycle. Gabrielbrought him to the hospital, while Alvarez remained at his post.

The second witness of the prosecution was Rolando Gabriel.13 Gabriel substantially corroborated thetestimony of Alvarez on what occurred on the night in question. He testified that he noticed the presenceof Lajo inside the pub at around 10:30 p.m. of October 18, 1996 while he first saw Baxinela, Regimen andLegarda there as early as 11:00 p.m. At around 12:45 a.m., he witnessed Lajo going towards the entranceof the pub where Baxinela was already standing and holding a .45 caliber pistol. Baxinela approachedLajo from behind and held his left shoulder asking "Who are you?" Lajo responded "I am MIG." Afterwardshe was shot by Baxinela. Baxinela then got Lajo’s gun from his waist and gave it to Regimen. Thereafter,Baxinela, with both hands, pushed Lajo against the wall and again asked "What are you?" Lajo got hiswallet from his back pocket and handed it over to Baxinela. After opening the wallet Baxinela andRegimen left the disco pub. Lajo, still standing, took two steps and then fell down. Gabriel and Alvarezthen picked Lajo up and carried him to a tricycle which took him to the hospital. Gabriel also stated thatten minutes before the shooting incident there was another incident where Lajo accosted some customerbut afterwards he saw that the two shook hands and embraced each other.

The third witness for the prosecution was Salvador Advincula, the PNP Desk Officer who entered in thepolice blotter the incident that occurred in Superstar Disco Pub. He also testified on the events thatoccurred inside the precinct wherein the gun of Lajo accidentally fell on the table and fired.

The last witness for the prosecution was the wife of Lajo, Janet O. Lajo, who testified as to damages.14

As a sur-rebuttal witness, the defense presented Ronald Nahil who testified that he was on the groundfloor of Kingsmen building with Alvarez and Gabriel when they heard a shot ring out from the secondfloor.15

After receiving all of the evidence, the RTC found the version of the prosecution, that Baxinela shot Lajoas the latter was turning around and without having drawn his gun, more convincing, and rendered adecision convicting Baxinela. The RTC, however, considered in favor of Baxinela the mitigatingcircumstances of voluntary surrender and provocation. The dispositive portion of the decision is asfollows:16

WHEREFORE, the court finds the accused SPO2 EDUARDO BAXINELA guilty beyond reasonable doubtof the crime of Homicide, and considering the mitigating circumstances of voluntary surrender andprovocation, and applying the Indeterminate Sentence Law, he is hereby sentenced to suffer the penaltyof imprisonment of 4 years of prision correccional medium as minimum, to 8 years and 1 day of prisionmayor medium as maximum.

The accused is further ordered to pay a) the sum of P50,000.00 as civil indemnity for the death of Sgt.Ruperto F. Lajo; b) then sum of P81,000.00 as actual and compensatory damages; and c) the sum ofP30,000.00 as moral damages; plus costs of suit.

SO ORDERED.

On appeal, the CA modified Baxinela’s conviction by disallowing the mitigating circumstance of sufficientprovocation. Accordingly, the dispositive portion of the appellate court’s decision reads as follows:17

IN LIGHT OF ALL THE FOREGOING, the Decision appealed from finding the Appellant guilty beyondreasonable doubt of the crime charged is AFFIRMED, with the MODIFICATION, that the Appellant ishereby meted an indeterminate penalty of from EIGHT (8) YEARS and ONE (1) DAY OF Prision Mayor,as Minimum, to TWELVE (12) YEARS, TEN (10) MONTHS and TWENTY ONE (21) DAYS of ReclusionTemporal, as Maximum.

SO ORDERED.

Baxinela filed the present petition for review on certiorari citing the following grounds:

A. THAT THE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ERRED IN GIVINGCREDENCE TO THE VERSION OF THE PROSECUTION.

B. THAT THE COURT OF APPEALS ERRED IN DENYING THE JUSTIFYING CIRCUMSTANCES OFSELF DEFENSE OR IN THE ALTERNATIVE THE LAWFUL PERFORMANCE OF OFFICIAL DUTYUNDER ARTICLE 11 PARAGRAPHS 1 AND 5, RESPECTIVELY, OF THE REVISED PENAL CODE.

C. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN CONVICTING THEACCUSED.

D. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN NOT CONSIDERINGTHE QUALIFIED MITIGATING CIRCUMSTANCES IN FAVOR OF THE ACCUSED.

Resolution of the petition will entail an initial determination of which version of the incident will beaccepted. The defense alleges that Baxinela proceeded to the Superstar Disco Pub in response to theinformation given by Manuba that there was an armed drunken man accosting several people inside thepub. Once they arrived, they saw Lajo with a handgun visibly tucked behind his waist. When Baxinelaintroduced himself as a policeman and asked why he had a handgun, Lajo suddenly drew on himprompting Baxinela to pull out his gun and fire upon Lajo, critically wounding him. Thereafter, the defenseclaims that Regimen ordered the security guards to bring Lajo to the hospital while they proceed to thepolice station to report the incident.

The prosecution, on the other hand, contends that Baxinela was already in the pub drinking with Regimenand Legarda for more than a couple of hours prior to the shooting incident. After witnessing an altercationbetween Lajo and another customer, Baxinela decided to confront Lajo on why he had a gun with him.Baxinela approached Lajo from behind and held the latter on the left shoulder with one hand while holdingon to his .45 caliber service firearm with the other. As Lajo was turning around, to see who wasconfronting him, Baxinela shot him. Baxinela then got Lajo’s wallet and fled the scene with Regimen.

As mentioned, the RTC and CA accepted the prosecution’s version. The Court finds no reason to disturbsuch findings. Factual findings of the trial court, when adopted and confirmed by the CA, are final andconclusive unless circumstances are present that would show that the lower courts have overlooked,misunderstood or misconstrued cogent facts that may alter the outcome of the case.18 It does not appearthat the conclusions that led to the conviction of Baxinela were arbitrarily reached by the lower courts andBaxinela has failed to point out any relevant circumstance that would convince the Court that a re-examination of the facts is warranted. On the contrary, Baxinela’s version is challenged by his own

contradicting testimony and other documentary evidence. Early in his testimony, Baxinela maintained thatLajo had already pulled his handgun and was aiming at him when he fired:

Q. What else did you do after identifying yourself as a policeman and ask[ing] why he has a gun?

A. He did not respond.

Q. What else happened if anything happened?

A. He immediately drew his gun turning towards me and aimed it at me.19

Subsequently, when the trial court propounded clarificatory questions, Baxinela’s new assertion was thatthe firearm was still at the back of Lajo:

Q. At the moment that you fired, was he already able to dr[a]w his firearm or not yet?

A. Yes sir, already pulled out but still at the back.20

Furthermore, the follow-up investigation conducted by the police yielded a different picture of whathappened. This was entered into the police records as Entry No. 3359 and it reads in part: 21

x x x SPO2 Eduardo Baxinela accosted the victim why he ha[d] in his possession a firearm and when thevictim SGT Ruperto Lajo PA was about to get his wallet on his back pocket for his ID, SPO2 EduardoBaxinela anticipated that the victim was drawing his firearm on his waist prompting said policeman toshoot the victim. x x x

The Court now proceeds to determine if, following the prosecution’s version of what happened, Baxinelacan claim the justifying circumstances of self-defense and fulfillment of a duty or lawful exercise of a rightor office.

The requisites for self-defense are: 1) unlawful aggression on the part of the victim; 2) lack of sufficientprovocation on the part of the accused; and 3) employment of reasonable means to prevent and repeland aggression.22 By invoking self-defense, Baxinela, in effect, admits killing Lajo, thus shifting upon himthe burden of the evidence on these elements.

The first requisite is an indispensable requirement of self-defense. It is a condition sine qua non, withoutwhich there can be no self-defense, whether complete or incomplete.23 On this requisite alone,Baxinela’s defense fails. Unlawful aggression contemplates an actual, sudden and unexpected attack onthe life and limb of a person or an imminent danger thereof, and not merely a threatening or intimidatingattitude.24 The attack must be real, or at least imminent. Mere belief by a person of an impending attackwould not be sufficient. As the evidence shows, there was no imminent threat that necessitated shootingLajo at that moment. Just before Baxinela shot Lajo, the former was safely behind the victim and holdinghis arm. It was Lajo who was at a disadvantage. In fact, it was Baxinela who was the aggressor when hegrabbed Lajo’s shoulder and started questioning him. And when Lajo was shot, it appears that he was justturning around to face Baxinela and, quite possibly, reaching for his wallet. None of these acts couldconceivably be deemed as unlawful aggression on the part of Lajo.

Next, we consider the alternative defense of fulfillment of a duty. In order to avail of this justifyingcircumstance it must be shown that: 1) the accused acted in the performance of a duty or in the lawful

exercise of a right or office; and 2) the injury caused or the offense committed is the necessaryconsequence of the due performance of duty or the lawful exercise of a right or office.25 While the firstcondition is present, the second is clearly lacking. Baxinela’s duty was to investigate the reason why Lajohad a gun tucked behind his waist in a public place. This was what Baxinela was doing when heconfronted Lajo at the entrance, but perhaps through anxiety, edginess or the desire to take no chances,Baxinela exceeded his duty by firing upon Lajo who was not at all resisting. The shooting of Lajo cannotbe considered due performance of a duty if at that time Lajo posed no serious threat or harm to Baxinelaor to the civilians in the pub.

Essentially, Baxinela is trying to convince the Court that he should be absolved of criminal liability byreason of a mistake of fact, a doctrine first enunciated in United States v. Ah Chong.26 It was held in thatcase that a mistake of fact will exempt a person from criminal liability so long as the alleged ignorance ormistake of fact was not due to negligence or bad faith. In examining the circumstances attendant in thepresent case, the Court finds that there was negligence on the part of Baxinela. Lajo, when he was shot,was simply turning around to see who was accosting him. Moreover, he identified himself saying "I amMIG." These circumstances alone would not lead a reasonable and prudent person to believe thatBaxinela’s life was in peril. Thus, his act of shooting Lajo, to the mind of this Court, constitutes clearnegligence. But even if the Court assumes that Lajo’s actions were aggressive enough to appear that hewas going for his gun, there were a number of procedures that could have been followed in order to avoida confrontation and take control of the situation. Baxinela, whom the Court assumes not to be a rookiepoliceman, could have taken precautionary measures by simply maintaining his hold on to Lajo’sshoulders, keeping Lajo facing away from him, forcing Lajo to raise his hands and then take Lajo’sweapon. There was also Regimen who should have assisted Baxinela in disabling and disarming Lajo.The events inside the disco pub that unnecessarily cost the life of Lajo did not have to happen hadBaxinela not been negligent in performing his duty as a police officer.

The Court will, however, attribute to Baxinela the incomplete defense of fulfillment of a duty as aprivileged mitigating circumstance. In Lacanilao v. Court of Appeals,27 it was held that if the first conditionis fulfilled but the second is wanting, Article 69 of the Revised Penal Code is applicable so that the penaltylower than one or two degrees than that prescribed by law shall be imposed.28 Accordingly, the Courtgrants in favor of Baxinela a privileged mitigating circumstance and lower his penalty by one degree. Hisentitlement to the ordinary mitigating circumstance of voluntary surrender is also recognized, therebyfurther reducing his penalty to its minimum.

The Court commiserates with our policemen who regularly thrust their lives in zones of danger in order tomaintain peace and order and acknowledges the apprehensions faced by their families whenever they goon duty. But the use of unnecessary force or wanton violence is not justified when the fulfillment of theirduty as law enforcers can be effected otherwise. A "shoot first, think later" attitude can never becountenanced in a civilized society.

WHEREFORE, the decision of the Court of Appeals is MODIFIED. The conviction of appellant EduardoBaxinela for the crime of homicide is AFFIRMED but his sentence is reduced to an indeterminate penaltyof four (4) years and two (2) months of prision correccional medium, as minimum, to eight (8) years ofprision mayor minimum, as maximum. The awards of damages are affirmed. No costs.

SO ORDERED.

G.R. No. 150647 September 29, 2004

ROWENO POMOY, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

PANGANIBAN, J.:

Well-established is the principle that the factual findings of the trial court, when affirmed by the Court ofAppeals, are binding on the highest court of the land. However, when facts are misinterpreted and theinnocence of the accused depends on a proper appreciation of the factual conclusions, the SupremeCourt may conduct a review thereof. In the present case, a careful reexamination convinces this Courtthat an "accident" caused the victim’s death. At the very least, the testimonies of the credible witnessescreate a reasonable doubt on appellant’s guilt. Hence, the Court must uphold the constitutionalpresumption of innocence.

The Case

Before us is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to set aside the February28, 2001 Decision2 and the October 30, 2001 Resolution3 of the Court of Appeals (CA) in CA–GR CRNo. 18759. The CA affirmed, with modifications, the March 8, 1995 judgment4 of the Regional Trial Court(RTC)5 of Iloilo City (Branch 25) in Criminal Case No. 36921, finding Roweno Pomoy guilty of the crime ofhomicide. The assailed CA Decision disposed as follows:

"WHEREFORE, premises considered, MODIFIED as to penalty in the sense that the [Petitioner]ROWENO POMOY is sentenced to suffer an indeterminate prison term of six (6) years, four (4) monthsand ten (10) days of prision mayor minimum, as minimum, to fourteen (14) years eight (8) months andtwenty (20) days of reclusion temporal medium, as maximum, the decision appealed from is herebyAFFIRMED in all other respects."6

The challenged CA Resolution denied petitioner’s Motion for Reconsideration.

Petitioner was charged in an Information worded thus:

"That on or about the 4th day of January 1990, in the Municipality of Sara, Province of Iloilo, Philippines,and within the jurisdiction of this Honorable Court, the above-named accused, armed with his .45 servicepistol, with deliberate intent and decided purpose to kill, and without any justifiable cause or motive, didthen and there willfully, unlawfully and feloniously assault, attack and shoot one TOMAS BALBOA with theservice pistol he was then provided, inflicting upon the latter gunshot wounds on the vital parts of hisbody, which directly caused the death of said victim thereafter."7

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) presented respondent’s version of the facts as follows:

"Tomas Balboa was a master teacher of the Concepcion College of Science and Fisheries in Concepcion,Iloilo.

"On January 4, 1990, about 7:30 in the morning, some policemen arrived at the Concepcion College toarrest Balboa, allegedly in connection with a robbery which took place in the municipality in December1989. With the arrest effected, Balboa and the policemen passed by the Concepcion Elementary Schoolwhere his wife, Jessica, was in a get-together party with other School Administrators. When his wifeasked him, ‘Why will you be arrested?’ [H]e answered ‘[Even I] do not know why I am arrested. That iswhy I am even going there in order to find out the reason for my arrest.’

"Balboa was taken to the Headquarters of the already defunct 321st Philippine Constabulary Company atCamp Jalandoni, Sara, Iloilo. He was detained in the jail thereat, along with Edgar Samudio, anothersuspect in the robbery case.

"Later that day, about a little past 2 o’clock in the afternoon, petitioner, who is a police sergeant, went nearthe door of the jail where Balboa was detained and directed the latter to come out, purportedly for tacticalinterrogation at the investigation room, as he told Balboa: ‘Let’s go to the investigation room.’ Theinvestigation room is at the main building of the compound where the jail is located. The jail guard onduty, Nicostrado Estepar, opened the jail door and walked towards the investigation room.

"At that time, petitioner had a gun, a .45 caliber pistol, tucked in a holster which was hanging by the sideof his belt. The gun was fully embedded in its holster, with only the handle of the gun protruding from theholster.

"When petitioner and Balboa reached the main building and were near the investigation room, two (2)gunshots were heard. When the source of the shots was verified, petitioner was seen still holding a .45caliber pistol, facing Balboa, who was lying in a pool of blood, about two (2) feet away. When theCommanding Officer of the Headquarters arrived, he disarmed petitioner and directed that Balboa bebrought to the hospital. Dr. Palma (first name not provided) happened to be at the crime scene as he wasvisiting his brother in the Philippine Constabulary. When Dr. Palma examined Balboa, he (Dr. Palma) saidthat it was unnecessary to bring Balboa to the hospital for he was dead.

"Upon the request of Mrs. Jessica Balboa, the wife of the deceased, Dr. Ricardo Jabonete, the medico-legal officer of the National Bureau of Investigation, Region VI, Iloilo City, conducted an autopsy on theremains of Tomas Balboa. The following were his findings:

‘Pallor, integumens and nailbeds.

‘Wound, gunshot: (1) ENTRANCE, downwards and medially, edges, modified by sutures, surrounded byabrasion collar, 0.6 cm. In its chest, left side, 10.0 cms. from anterior midline, 121.0 cms. From left heel,directed medially backwards from left to right, penetrating chest wall thru 5th intercostals space intothoracic cavity, perforating thru and thru, upper lobe, left lung, lacerating left ventricular wall causingpunched out fracture, 8th thoracic vertebra and make an EXIT, stallate in shape, 1.0 x 0.8 cm. Edges,modified by sutures, back, right side, 8.0 cms. From posterior midline, 117.0 cms. From right heel (2)ENTRANCE, ovaloid, oriented medially downwards, edges sutured, 0.7 cm. on its widest portion, atinfero-medial border, hypochondriac region, left side, 4.0 cms. From anterior midline, 105.0 cms. From leftheel, directed backwards, laterally wall into penetrating abdominal cavity, perforating thru and thru,stomach, head of the pancreas and mesentery, make an exit, ovalid, 1.0 x 0.8 cm., oriented mediallyupwards, edges, sutured, back, left side, level of 9th intercostal space, 4.5 cms. From posterior midline,110.0 cms. From left heel. x x x.

‘CAUSE OF DEATH: Hemorrhage, massive secondary to gunshot wounds on chest and abdomen.

‘REMARKS: Body previously embalmed and autopsied.’

"Dr. Jaboneta testified that the two (2) wounds he found on x x x Balboa’s body were gunshot wounds.The entrance of [W]ound No. 1 was to the left side of the chest about the left nipple and exited to the rightside of the back. Its trajectory was backwards then downwards from left to right. As to the possibleposition of the assailant, Dr. Jaboneta opined that the nozzle of the gun was probably in front of the victimand was more to the left side, and the gun must have been a little bit higher than the entrance wound.Wound No. 2 was located immediately below the arch of the ribs, left side. Its direction was backwardsand laterally upwards. Dr. Jaboneta estimated that when it was inflicted, the assailant must have pointedthe gun’s nozzle to the right side front of the victim. The distance between the entrance points of woundsNo. 1 and No. 2 was found to be about 16.0 centimeters."8

Version of the Defense

The Petition adopted the narration of facts in the assailed CA Decision, which in turn culled them from thetrial court. The RTC summarized the testimonies of Defense Witnesses Erna Basa, the lone eyewitnessto the incident; Eden Legaspi; Dr. Salvador Mallo Jr.; and petitioner himself, as follows:

"Erna Basa:

"x x x [O]n January 4, 1990, she was working in their office in the camp up to the afternoon; at about past2 o’clock that afternoon while working on the backlogs, she heard some noise and exchange of wordswhich were not clear, but it seemed there was growing trouble; she opened the door to verify and sawRoweno Pomoy and Tomas Balboa grappling for the possession of the gun; she was inside the room andone meter away from the door; Pomoy and Balboa while grappling were two to three meters away fromthe door; the grappling happened so fast and the gun of Pomoy was suddenly pulled out from its holsterand then there was explosion; she was not certain who pulled the gun. x x x.

"Eden Legaspi:

"x x x [A]s early as 1:30 o’clock in the afternoon of January 4, 1990 she was inside the investigation roomof the PC at Camp Jalandoni, Sara, Iloilo; at about 2 o’clock that same afternoon while there inside, sheheard a commotion outside and she remained seated on the bench; when the commotion started theywere seated on the bench and after the commotion that woman soldier (referring to Erna Basa) stood upand opened the door and she saw two persons grappling for the possession of a gun and immediatelytwo successive shots rang out; she did not leave the place where she was seated but she just stood up;after the shots, one of the two men fall down x x x.

"Accused-petitioner Roweno Pomoy:

"He is 30 years old and a PNP member of the Iloilo Provincial Mobile Force Company then attached tothe defunct 321st PC Company; he was one of the investigators of their outfit; about 2 o’clock or past thattime of January 4, 1990 he got Tomas Balboa from their stockade for tactical interrogation; as he wasalready holding the door knob of their investigation room and about to open and enter it, all of a suddenhe saw Tomas Balboa approach him and take hold or grab the handle of his gun; Tomas Balboa was asuspect in a robbery case who was apprehended by the police of Concepcion and then turned over tothem (PC) and placed in their stockade; he asked the sergeant of the guard to let Balboa out of the

stockade for interrogation; from the stockade with Balboa walking with him, he had his .45 caliber pistolplaced in his holster attached to his belt on his waist; then as he was holding the doorknob with his righthand to open the door, the victim, who was two meters away from him, suddenly approached him andgrabbed his gun, but all of a sudden he held the handle of his gun with his left hand; he released his righthand from the doorknob and, with that right hand, he held the handle of his gun; Tomas Balboa was notable to take actual hold of the gun because of his efforts in preventing him (Balboa) from holding thehandle of his gun; he used his left hand to parry the move of Balboa; after he held the handle of his gunwith his right hand, in a matter of seconds, he felt somebody was holding his right hand; he and Balboagrappled and in two or three seconds the gun was drawn from its holster as both of them held the gun;more grappling followed and five seconds after the gun was taken from its holster it fired, the victim wasto his right side when the attempt to grab his gun began and was still to his right when the gun was drawnfrom its holster until it fired, as they were still grappling or wrestling; his gun was already loaded in itschamber and cocked when he left his house, and it was locked when it fired; during the grappling he usedhis left hand to prevent Balboa from holding his gun, while the victim used his right hand in trying to reachthe gun; after the gun fired, they were separated from each other and Balboa fell; he is taller than Balboathough the latter was bigger in build; he cannot say nor determine who of them was stronger; after Balboafell, Sgt. Alag shouted saying ‘stop that’ and he saw Sgt. Alag approaching; sometime after, Capt.Rolando Maclang, their commanding officer, came, got his gun, and said that the case be investigated asto what really happened. He said that when his gun was put in its holster only its handle protrudes orcomes out from it.

"Upon cross-examination, he said that Balboa was a suspect in a robbery case that happened during thefirst week of December, 1989; he was the one who filed that case in the town of San Dionisio and thatcase involves other persons who were also detained; before January 4, 1990 he had also the chance toinvite and interrogate Balboa but who denied any robbery case; x x x [I]t was after he took his lunch thatday when Capt. Maclang called him to conduct the interrogation; when he took Balboa from the stockadehe did not tell him that he (Balboa) was to be investigated in the investigation room which was housed inthe main building which is fifty meters, more or less, from the stockade, likewise houses the administrativeoffice, the office of the commanding officer, officer of the operations division and that of the signal division;his gun was in its holster when the victim tried to grab it (gun); from the time he sensed that the victimtried to grab his gun, he locked the victim; the hand of the victim was on top of his hand and he felt thevictim was attempting to get his gun; that the entire handle of his gun was exposed when placed inside itsholster; he cannot tell whether the victim, while struggling with him, was able to hold any portion of hisgun from the tip of its barrel to the point where its hammer is located; during the incident his gun was fullyloaded and cocked; Sgt. Alag did not approach, but just viewed them and probably reported the incidentto their commanding officer; he was not able to talk to Sgt. Alag as he (Pomoy) was not in his right sense;when his commanding officer came some five to ten minutes later and took away his gun he did not tellhim anything.

"Dr. Salvador Mallo Jr.

"He is the Rural Health Physician of Sara who conducted the autopsy on the cadaver of Tomas Balboathat afternoon of January 4, 1990; in his autopsy findings respecting which he made an autopsy report hesaid he found two entrance wounds on the victim, the first on the left chest with trajectory mediallydownward, while the second one is on the left side of the stomach with trajectory somewhat goingupward; at the same time of his examination he saw this victim to be wearing a light-colored T-shirt and ajacket; other than the T-shirt worn by the victim, he did not see or find any powder burns and marks andthat those dotted marks in the T-shirt were believed by him to be powder burns as they look like one; healso found a deformed slug in the pocket of the jacket of the victim."9

Ruling of the Court of Appeals

The CA anchored its Decision on the following factual findings: 1) the victim was not successful in hisattempts to grab the gun, since petitioner had been in control of the weapon when the shots were fired; 2)the gun had been locked prior to the alleged grabbing incident and immediately before it went off; it waspetitioner who released the safety lock before he deliberately fired the fatal shots; and 3) the location ofthe wounds found on the body of the deceased did not support the assertion of petitioner that there hadbeen a grappling for the gun.

To the appellate court, all the foregoing facts discredited the claim of petitioner that the death of Balboaresulted from an accident. Citing People v. Reyes,10 the CA maintained that "a revolver is not prone toaccidental firing if it were simply handed over to the deceased as appellant claims because of the natureof its mechanism, unless it was already first cocked and pressure was exerted on the trigger in theprocess of allegedly handing it over. If it were uncocked, then considerable pressure had to be applied onthe trigger to fire the revolver. Either way, the shooting of the deceased must have been intentionalbecause pressure on the trigger was necessary to make the gun fire."11

Moreover, the appellate court obviously concurred with this observation of the OSG:

"[Petitioner’s] theory of accident would have been easier to believe had the victim been shot only once. Inthis case, however, [petitioner] shot the victim not only once but twice, thereby establishing [petitioner’s]determined effort to kill the victim. By any stretch of the imagination, even assuming without admitting thatthe first shot was accidental, then it should not have been followed by another shot on another vital part ofthe body. The fact that [petitioner] shot the victim two (2) times and was hit on two different and distantparts of the body, inflicted from two different locations or angles, means that there was an intent to causethe victim’s death, contrary to [petitioner’s] pretensions of the alleged accidental firing. It is an oft-repeatedprinciple that the location, number and gravity of the wounds inflicted on the victim have a more revealingtale of what actually happened during the incident. x x x.12

Furthermore, the CA debunked the alternative plea of self-defense. It held that petitioner had miserablyfailed to prove the attendance of unlawful aggression, an indispensable element of this justifyingcircumstance.

While substantially affirming the factual findings of the RTC, the CA disagreed with the conclusion of thetrial court that the aggravating circumstance of abuse of public position had attended the commission ofthe crime. Accordingly, the penalty imposed by the RTC was modified by the appellate court in thismanner:

"x x x [F]or public position to be appreciated as an aggravating circumstance, the public official must usehis influence, prestige and ascendancy which his office gives him in realizing his purpose. If the accusedcould have perpetrated the crime without occupying his position, then there is no abuse of public position.’(People vs. Joyno, 304 SCRA 655, 670). In the instant case, there is no showing that the [petitioner] hada premeditated plan to kill the victim when the former fetched the latter from the stockade, thus, it cannotbe concluded that the public position of the [petitioner] facilitated the commission of the crime. Therefore,the trial court’s finding that the said aggravating circumstance that [petitioner] took advantage of his publicposition to commit the crime cannot be sustained. Hence, there being no aggravating and no mitigatingcircumstance proved, the maximum of the penalty shall be taken from the medium period of reclusiontemporal, a penalty imposable for the crime of homicide. x x x."13

Hence, this Petition.14

Issues

In his Memorandum, petitioner submitted the following issues for the Court’s consideration:

"I. The Court of Appeals committed serious and reversible error in affirming petitioner’s conviction despitethe insufficiency of the prosecution’s evidence to convict the petitioner, in contrast to petitioner’soverwhelming evidence to support his theory/defense of accident.

"II. The Court of Appeals committed grave and reversible error in affirming the conviction of the petitioneron a manifestly mistaken inference that when the gun fired, the petitioner was in full control of the handleof the gun, because what the testimonies of disinterested witnesses and the petitioner reveal was that thegun fired while petitioner and Balboa were both holding the gun in forceful efforts to wrest the gun fromeach other.

"III. The Court of Appeals gravely erred in affirming the solicitor general’s observation that the fact thatpetitioner shot the victim twice establishes petitioner’s determined effort to kill the victim.

"IV. The appellate court committed serious misapprehension of the evidence presented when it ruled thatthe trajectory of the wounds was front-to-back belying the allegation of petitioner that he and the victimwere side-by-side each other when the grappling ensued.

"V. The Court of Appeals failed to discern the real import of petitioner’s reaction to the incident when itstated that the dumbfounded reaction of petitioner after the incident strongly argues against his claim ofaccidental shooting.

"VI. The appellate court committed grave error when it disregarded motive or lack of it in determining theexistence of voluntariness and intent on the part of petitioner to shoot at the victim when the same wasput in serious doubt by the evidence presented.

"VII. The Court of Appeals was mistaken in ruling that the defense of accident and self-defense areinconsistent.

"VIII. The Court of Appeals obviously erred in the imposition of the penalties and damages."15

In sum, the foregoing issues can be narrowed down to two: First, whether the shooting of Tomas Balboawas the result of an accident; and second, whether petitioner was able to prove self-defense.

The Court’s Ruling

The Petition is meritorious.

First Issue:

Accidental Shooting

Timeless is the legal adage that the factual findings of the trial court, when affirmed by the appellate court,are conclusive.16 Both courts possess time-honored expertise in the field of fact finding. But where somefacts are misinterpreted or some details overlooked, the Supreme Court may overturn the erroneousconclusions drawn by the courts a quo. Where, as in this case, the facts in dispute are crucial to thequestion of innocence or guilt of the accused, a careful factual reexamination is imperative.

Accident is an exempting circumstance under Article 12 of the Revised Penal Code:

"Article 12. Circumstances which exempt from criminal liability. – The following are exempt from criminalliability:

x x x x x x x x x

‘4. Any person who, while performing a lawful act with due care, causes an injury by mere accidentwithout fault or intent of causing it.’"

Exemption from criminal liability proceeds from a finding that the harm to the victim was not due to thefault or negligence of the accused, but to circumstances that could not have been foreseen orcontrolled.17 Thus, in determining whether an "accident" attended the incident, courts must take intoaccount the dual standards of lack of intent to kill and absence of fault or negligence. This determinationinevitably brings to the fore the main question in the present case: was petitioner in control of the .45caliber pistol at the very moment the shots were fired?

Petitioner Not in Control

of the Gun When It Fired

The records show that, other than petitioner himself, it was Erna Basa who witnessed the incidentfirsthand. Her account, narrated during cross-examination, detailed the events of that fateful afternoon ofJanuary 4, 1990 as follows:

"ATTY. TEODOSIO:

Q. You said that while you were inside the investigation room you heard a commotion. That commotionwhich you heard, did you hear any shouting as part of that commotion which you heard?

A. Moderately there was shouting and their dialogue was not clear. It could not be understood.

Q. Did you hear any voices as part of that commotion?

A. No, sir.

Q. From the time you entered the investigation room you did not hear any voice while you were inside theinvestigation room as part of that commotion?

A. There was no loud voice and their conversation could not be clarified. They were talking somewhat likemurmuring or in a low voice but there was a sort of trouble in their talks.

COURT:

Q. Was there a sort of an exchange of words in their conversation?

A. Yes, sir.

x x x x x x x x x

Q. When you opened the door, you saw Sgt. Pomoy and Mr. Balboa the deceased in this case? Am Icorrect?

A. Yes, sir.

Q. And when you saw Sgt. Pomoy was he holding a gun?

A. Not yet, the gun was still here. (Witness illustrating by pointing to her side) and I saw both of themgrappling for that gun.

Q. Where was the gun at that time?

A. The gun was in its holster. (Witness illustrating by pointing to [her] side.)

Q. When you demonstrated you were according to you saw the hands holding the gun. It was Sgt. Pomoywho was holding the gun with his right hand?

A. I saw two hands on the handle of the gun in its holster, the hand of Sir Balboa and Sgt. Pomoy.

COURT:

Q. At that precise moment the gun was still in its holster?

A. When I took a look the gun was still in its holster with both hands grappling for the possession of thegun.

Q. How many hands did you see?

A. Two.

Q. One hand of Sgt. Pomoy and one hand is that of the victim?

A. Yes, sir.

COURT:

Proceed.

ATTY TEODOSIO:

Q. Which hand of Sgt. Pomoy did you see holding the gun?

A. Right hand of Sgt. Pomoy.

Q. And when you see that right hand of Sgt. Pomoy, was it holding the gun?

A. The right hand of Sgt. Pomoy was here on the gun and Sir Balboa’s hand was also there. Both of themwere holding the gun.

Q. Which part of the gun was the right hand of Sgt. Pomoy holding?

A. The handle.

Q. And was he facing Tomas Balboa when he was holding the gun with his right hand?

A. At first they were not directly facing each other.

Q. So later, they were facing each other?

A. They were not directly facing each other. Their position did not remain steady as they were grapplingfor the possession of the gun force against force.

COURT:

Q. What was the position of the victim when the shots were fired?

A. When I saw them they were already facing each other.

Q. What was the distance?

A. Very close to each other.

Q. How close?

A. Very near each other.

Q. Could it be a distance of within one (1) foot?

A. Not exactly. They were close to each other in such a manner that their bodies would touch each other.

Q. So the distance is less than one (1) foot when the gun fired?

A. One (1) foot or less when the explosions were heard.

Q. And they were directly facing each other?

A. Yes, sir.

COURT:

Proceed.

Q. Were you able to see how the gun was taken out from its holster?

A. While they were grappling for the possession of the gun, gradually the gun was released from itsholster and then there was an explosion.

Q. And when the gun fired the gun was on Tomas Balboa?

A. I could not see towards whom the nozzle of the gun was when it fired because they were grappling forthe possession of the gun.

Q. Did you see when the gun fired when they were grappling for its possession?

A. Yes sir, I actually saw the explosion. It came from that very gun.

Q. Did you see the gun fired when it fired for two times?

A. Yes, sir.

Q. Did you see the barrel of the gun when the gun fired?

A. I could not really conclude towards whom the barrel of the gun was pointed to because the gun wasturning.

x x x x x x x x x

Q. Could you tell the court who was holding the gun when the gun fired?

A. When the gun exploded, the gun was already in the possession of Sgt. Pomoy. He was the one holdingthe gun.

Q. After the gun went off, you saw the gun was already in the hand of Sgt. Pomoy?

A. Yes, sir.

Q. How soon after the gun went off when you saw the gun in the hand of Sgt. Pomoy?

A. After Balboa had fallen and after they had separated themselves with each other, it was then that I sawSgt. Pomoy holding the gun.

COURT:

Proceed.

ATTY. TEODOSIO:

Q. When the gun was taken out from its holster, Sgt. Pomoy was the one holding the handle of the gun?Am I correct?

A. Both of them were holding the handle of the gun.

Q. So when the gun was still in its holster, two of them were holding the gun?

A. Yes sir, they were actually holding the gun, Sgt. Pomoy and Sir Balboa.

Q. It was the right hand of Sgt. Pomoy who was holding the handle of the gun as you testified?

A. Yes, sir.

Q. Which hand of Balboa was holding the handle of the gun?

A. Left hand.

Q. At the time Balboa was holding the handle of the gun with his left hand, was he in front of Sgt. Pomoy?

A. They had a sort of having their sides towards each other. Pomoy’s right and Balboa’s left sides [were]towards each other. They were side by side at a closer distance towards each other.

x x x x x x x x x

Q. It was actually Sgt. Pomoy who was holding the handle of the gun during that time?

A. When I looked out it was when they were grappling for the possession of the gun and the right hand ofSgt. Pomoy was holding the handle of the gun.

Q. When you saw them did you see what position of the handle of the gun was being held by TomasBalboa? The rear portion of the handle of the gun or the portion near the trigger?

A. When I looked at them it was the hand of Sgt. Pomoy holding the handle of the gun with his right handwith the hand of Sir Balboa over the hand of Pomoy, the same hand holding the gun.

Q. It was in that position when the gun was removed from its holster?

A. When the gun pulled out from its holster, I was not able to notice clearly anymore whose hand washolding the gun when I saw both their hands were holding the gun.

Q. When you said this in [the] vernacular, ‘Daw duha na sila nagakapot’, what you really mean?

A. Both of them were holding the gun.

Q. But Sgt. Pomoy still holding the handle of the gun?

A. Still both of them were holding the handle of the gun.

Q. With the hand of Balboa still on the top of the hand of Sgt. Pomoy as what you have previously saidwhen the gun was in the holster of Sgt. Pomoy?

A. When the gun was pulled from its holster, I saw that Sgt. Pomoy’s right hand was still on the handle ofthe gun with the left hand of Sir Balboa over his right hand of Sgt. Pomoy, like this (witness illustrating byshowing his right hand with her left hand over her right hand as if holding something. The thumb of the lefthand is somewhat over the index finger of the right hand.)

COURT:

Which hand of the victim was used by him when the gun was already pulled out form its holster and whilethe accused was holding the handle of the gun?

A. Left hand.

Q. So, he was still using the same left hand in holding a portion of the handle of the gun up to the timewhen the gun was pulled out from its holster?

A. Yes sir, the same left hand and that of Pomoy his right hand because the left hand of Pomoy was usedby him in parrying the right hand of Sir Balboa which is about to grab the handle of the gun.

COURT:

Q. So in the process of grappling he was using his left hand in pushing the victim away from him?

A. Yes, sir.

Q. What about the right hand of the victim, what was he doing with his right hand?

A. The victim was trying to reach the gun with his right hand and Pomoy was using his left hand to protectthe victim from reaching the gun with his right hand.

COURT:

Proceed.

ATTY. TEODOSIO:

Q. Did you say a while ago that Mr. Balboa was able to hold the barrel of the gun of Sgt. Pomoy?

A. Yes, sir.

Q. And that was at the time before the shots were fired?

A. Yes, he was able to hold the tip of the barrel of the gun using his right hand.

COURT:

Q. That was before the gun fired?

A. Yes, sir."18

The foregoing account demonstrates that petitioner did not have control of the gun during the scuffle. Thedeceased persistently attempted to wrest the weapon from him, while he resolutely tried to thwart thoseattempts. That the hands of both petitioner and the victim were all over the weapon was categoricallyasserted by the eyewitness. In the course of grappling for the gun, both hands of petitioner were fullyengaged -- his right hand was trying to maintain possession of the weapon, while his left was warding offthe victim. It would be difficult to imagine how, under such circumstances, petitioner would coolly andeffectively be able to release the safety lock of the gun and deliberately aim and fire it at the victim.

It would therefore appear that there was no firm factual basis for the following declaration of the appellatecourt: "[Petitioner] admitted that his right hand was holding the handle of the gun while the left hand of thevictim was over his right hand when the gun was fired. This declaration would safely lead us to theconclusion that when the gun went off herein [petitioner] was in full control of the gun."19

Release of the Gun’s Safety Lock andFiring of the Gun Both Accidental

Petitioner testified that the .45 caliber service pistol was equipped with a safety lock that, unless released,would prevent the firing of the gun. Despite this safety feature, however, the evidence showed that theweapon fired and hit the victim -- not just once, but twice. To the appellate court, this fact could only meanthat petitioner had deliberately unlocked the gun and shot at the victim. This conclusion appears to be nonsequitur.

It is undisputed that both petitioner and the victim grappled for possession of the gun. This frenziedgrappling for the weapon -- though brief, having been finished in a matter of seconds -- was fierce andvicious. The eyewitness account amply illustrated the logical conclusion that could not be dismissed: thatin the course of the scuffle, the safety lock could have been accidentally released and the shotsaccidentally fired.

That there was not just one but two shots fired does not necessarily and conclusively negate the claimthat the shooting was accidental, as the same circumstance can easily be attributed to the mechanism ofthe .45 caliber service gun. Petitioner, in his technical description of the weapon in question, explainedhow the disputed second shot may have been brought about:

"x x x Petitioner also testified on cross-examination that a caliber .45 semi-automatic pistol, when fired,immediately slides backward throwing away the empty shell and returns immediately carrying again a livebullet in its chamber. Thus, the gun can, as it did, fire in succession. Verily, the location of, and distancebetween the wounds and the trajectories of the bullets jibe perfectly with the claim of the petitioner: thetrajectory of the first shot going downward from left to right thus pushing Balboa’s upper body, tilting it tothe left while Balboa was still clutching petitioner’s hand over the gun; the second shot hitting him in thestomach with the bullet going upward of Balboa’s body as he was falling down and releasing his hold onpetitioner’s hand x x x."20

Thus, the appellate court’s reliance on People v. Reyes41 was misplaced. In that case, the Courtdisbelieved the accused who described how his gun had exploded while he was simply handing it over tothe victim. Here, no similar claim is being made; petitioner has consistently maintained that the gunaccidentally fired in the course of his struggle with the victim. More significantly, the present case involvesa semi-automatic pistol, the mechanism of which is very different from that of a revolver, the gun used inReyes.22 Unlike a revolver, a semi-automatic pistol, as sufficiently described by petitioner, is prone toaccidental firing when possession thereof becomes the object of a struggle.

Alleged Grappling Not Negated

by Frontal Location of Wounds

On the basis of the findings of Dr. Jaboneta showing that the wounds of the deceased were all frontal, theappellate court rejected petitioner’s claim that a grappling for the weapon ever occurred. It held that "ifthere was indeed a grappling between the two, and that they had been side [by] side x x x each other, thewounds thus inflicted could not have had a front-to-back trajectory which would lead to an inference thatthe victim was shot frontally, as observed by Dr. Jaboneta."23

Ordinarily, the location of gunshot wounds is indicative of the positions of the parties at the precisemoment when the gun was fired. Their positions would in turn be relevant to a determination of theexistence of variables such as treachery, aggression and so on.

In the factual context of the present case, however, the location of the wounds becomes inconsequential.Where, as in this case, both the victim and the accused were grappling for possession of a gun, thedirection of its nozzle may continuously change in the process, such that the trajectory of the bullet whenthe weapon fires becomes unpredictable and erratic. In this case, the eyewitness account of that aspectof the tragic scuffle shows that the parties’ positions were unsteady, and that the nozzle of the gun wasneither definitely aimed nor pointed at any particular target. We quote the eyewitness testimony asfollows:

"Q. And when the gun fired the gun was on Tomas Balboa?

A. I could not see towards whom the nozzle of the gun was when it fired because they were grappling forthe possession of the gun.

x x x x x x x x x

Q. Did you see the barrel of the gun when the gun fired?

A. I could not really conclude towards whom the barrel of the gun was pointed to because the gun wasturning."24

x x x x x x x x x

"Q And was he facing Tomas Balboa when he was holding the gun with his right hand?

A At first, they were not directly facing each other.

Q So later, they were facing each other?

A They were not directly facing each other. Their position did not remain steady as they were grappling forthe possession of the gun force against force."25

In his Petition, this explanation is given by petitioner:

"x x x. The Court of Appeals erred in concluding that Balboa was shot frontally. First, because the positionof the gun does not necessarily indicate the position of the person or persons holding the gun when itfired. This is especially true when two persons were grappling for the possession of the gun when it fired,as what exactly transpired in this case. x x x.

"[The] testimony clearly demonstrates that the petitioner was on the left side of the victim during thegrappling when the gun fired. The second wound was thus inflicted this wise: when the first shot hitBalboa, his upper body was pushed downward owing to the knocking power of the caliber .45 pistol. Buthe did not let go of his grip of the hand of petitioner and the gun, Balboa pulling the gun down as he wasgoing down. When the gun went off the second time hitting Balboa, the trajectory of the bullet in Balboa’sbody was going upward because his upper body was pushed downward twisting to the left. It was thenthat Balboa let go of his grip. On cross-examination, petitioner testified, what I noticed was that aftersuccessive shots we separated from each other. This sequence of events is logical because theprotagonists were grappling over the gun and were moving very fast. x x x."26

Presence of All theElements of Accident

The elements of accident are as follows: 1) the accused was at the time performing a lawful act with duecare; 2) the resulting injury was caused by mere accident; and 3) on the part of the accused, there was nofault or no intent to cause the injury.27 From the facts, it is clear that all these elements were present. Atthe time of the incident, petitioner was a member -- specifically, one of the investigators -- of the PhilippineNational Police (PNP) stationed at the Iloilo Provincial Mobile Force Company. Thus, it was in the lawfulperformance of his duties as investigating officer that, under the instructions of his superior, he fetchedthe victim from the latter’s cell for a routine interrogation.

Again, it was in the lawful performance of his duty as a law enforcer that petitioner tried to defend hispossession of the weapon when the victim suddenly tried to remove it from his holster. As an enforcer ofthe law, petitioner was duty-bound to prevent the snatching of his service weapon by anyone, especiallyby a detained person in his custody. Such weapon was likely to be used to facilitate escape and to kill ormaim persons in the vicinity, including petitioner himself.

Petitioner cannot be faulted for negligence. He exercised all the necessary precautions to prevent hisservice weapon from causing accidental harm to others. As he so assiduously maintained, he had kepthis service gun locked when he left his house; he kept it inside its holster at all times, especially within thepremises of his working area.

At no instance during his testimony did the accused admit to any intent to cause injury to the deceased,much less kill him. Furthermore, Nicostrato Estepar, the guard in charge of the detention of Balboa, didnot testify to any behavior on the part of petitioner that would indicate the intent to harm the victim whilebeing fetched from the detention cell.

The participation of petitioner, if any, in the victim’s death was limited only to acts committed in the courseof the lawful performance of his duties as an enforcer of the law. The removal of the gun from its holster,the release of the safety lock, and the firing of the two successive shots -- all of which led to the death ofthe victim -- were sufficiently demonstrated to have been consequences of circumstances beyond thecontrol of petitioner. At the very least, these factual circumstances create serious doubt on the latter’sculpability.

Petitioner’s Subsequent ConductNot Conclusive of Guilt

To both the trial and the appellate courts, the conduct of petitioner immediately after the incident wasindicative of remorse. Allegedly, his guilt was evident from the fact that he was "dumbfounded," accordingto the CA; was "mum, pale and trembling," according to the trial court. These behavioral reactionssupposedly point to his guilt. Not necessarily so. His behavior was understandable. After all, a minuteearlier he had been calmly escorting a person from the detention cell to the investigating room; and, in thenext breath, he was looking at his companion’s bloodied body. His reaction was to be expected of one in astate of shock at events that had transpired so swiftly and ended so regrettably.

Second Issue:

Self-Defense

Petitioner advanced self-defense as an alternative. Granting arguendo that he intentionally shot Balboa,he claims he did so to protect his life and limb from real and immediate danger.

Self-defense is inconsistent with the exempting circumstance of accident, in which there is no intent to kill.On the other hand, self-defense necessarily contemplates a premeditated intent to kill in order to defendoneself from imminent danger.28 Apparently, the fatal shots in the instant case did not occur out of anyconscious or premeditated effort to overpower, maim or kill the victim for the purpose of self-defenseagainst any aggression; rather, they appeared to be the spontaneous and accidental result of both parties’attempts to possess the firearm.

Since the death of the victim was the result of an accidental firing of the service gun of petitioner -- anexempting circumstance as defined in Article 12 of the Revised Penal Code -- a further discussion ofwhether the assailed acts of the latter constituted lawful self-defense is unnecessary.

WHEREFORE, the Petition is GRANTED and the assailed Decision REVERSED. Petitioner isACQUITTED.

No costs.

SO ORDERED.

G.R. No. 146664 February 28, 2002

JOHN ANGCACO, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

MENDOZA, J.:

This is a petition for review on certiorari of the decision,1 dated November 29, 2000, of the Court ofAppeals, which affirmed with modification the decision,2 dated January 31, 1996, of the Regional TrialCourt, Branch 1, Puerto Princesa City, finding petitioner John Angcaco guilty of murder and sentencinghim accordingly.

Petitioner John Angcaco and his co-accused in the trial court, namely, Ramon Decosto, Protacio Edep,Lydio Lota, and Mario Felizarte, were members of the Integrated National Police of Taytay, Palawan. Atthe time of the incident, they were serving a warrant of arrest issued by the Municipal Trial Court of Taytayon Restituto Bergante, who was wanted in connection with a robbery case. Edep was acting stationcommander, while Restituto Bergante was the barangay captain of Bato, Taytay, Palawan. Theinformation against petitioner and his co-accused alleged —

That on or about the 25th day of September, 1980, more or less 4:00 o'clock in the morning in barangayBato, municipality of Taytay, province of Palawan, Philippines, and within the jurisdiction of this HonorableCourt, the above-named accused, conspiring and confederating together and mutually helping oneanother, armed with guns, and with treachery and evident premeditation and with intent to kill, did thenand there willfully, unlawfully and feloniously attack, assault, fire at and shoot FREDDIE GANANCIAL,hitting the latter with gunshots on vital parts of his body and inflicting upon him multiple gunshot woundswhich were the direct and immediate cause of his instant death.3

When arraigned on June 3, 1981, all of the accused, with the exception of Ramon Decosto, entered aplea of not guilty to the crime charged.4 Decosto, who failed to attend the hearing on that date, was laterarraigned on June 23, 1981, during which he entered a plea of not guilty. Thereafter trial ensued.

The prosecution presented seven witnesses: Noe Bergante,5 Noel Bergante, Dr. Alberto Lim, HonoratoFlores, Henry Pulga, Antonio Arosio, and Adolfo Jagmis. The gist of their testimonies is as follows:

At around 4 o'clock in the morning of September 25, 1980, Noe Bergante and his brother Noel Berganteand his cousin Freddie Ganancial were awakened by the sound of gunfire while they were asleep in theirhouse in Bato, Taytay, Palawan. Their mother, who was frightened, fainted and had to be helped by Noe.Noel went to the kitchen and, from there, saw Protacio Edep fire his carbine, as he shouted, "Kapitan, youcome down, this is [a] peace officer." He was apparently referring to Restituto Bergante. Noel answeredthat his father was not in the house, having gone to Puerto Princesa. Edep then ordered the men in thehouse to come out. Noel accordingly went to the gate and later called Noe to also come out of the house.Noe and his cousin, Freddie Ganancial, did as bidden.

Once they were outside the house, Noe and Freddie were flanked by petitioner Angcaco on the right sideand accused Ramon Decosto on the left side. Decosto pointed an armalite at the two and warned themnot to run. Noe and Freddie joined Noel Bergante. Protacio Edep approached Freddie saying, "You aretough," and pushed him. Then, shots rang out from the armalite and short firearm of Decosto and Edep,as a result of which Freddie Ganancial turned around and dropped to the ground face down. Decosto wasaround three meters away from Freddie.

In fright, Noe and Noel ran inside the house. After a few seconds, Noe saw, through the window, Lota andAngcaco turning over the body of Freddie Ganancial. After briefly leaving the body, both came back 15minutes later. Noe said Lota brought with him an object wrapped in a newspaper, which Noe surmisedwas a knife. Lota placed the object in the right hand of Freddie Ganancial. Noel, on the other hand, saidthat he returned to the crime scene and recovered two empty shells which he gave to a certain MajorSilos. Noe reported the matter to Barangay Tanods Sabino Mahinay and a certain Ramon.6

Antonio Arosio, a neighbor of the Bergantes, corroborated the testimonies of Noe and Noel Bergante.According to Arosio, at around 4:30 a.m. of September 25, 1980, while he was asleep in his house inBato, Taytay, Palawan, he was awakened by the sound of gunfire. He said he heard a commotion outside,

followed by another volley of shots. He claimed he recognized by their voices some of the personsinvolved, namely, Protacio Edep, Noel Bergante, and Freddie Ganancial.

Arosio claimed that accused Decosto and Felizarte fetched him from his house a short time later and tookhim to Edep, who was then in the house of the barangay captain. Arosio was asked about thewhereabouts of the barangay captain. He told Edep that Restituto Bergante, the barangay captain, hadgone to Puerto Princesa two days earlier.

Arosio testified that on his way home he saw a person lying on the ground in a prone position. He laterlearned it was Freddie Ganancial. Arosio identified in court the policemen whom he saw that morning, thatis, Edep, Decosto, Felizarte, Lota, and Angcaco.

On cross-examination, Arosio claimed that he was investigated by a police officer, whose name he couldnot remember, three years after the incident. The investigation was held in the house of BarangayCaptain Restituto Bergante, who told him that he would testify in this case. Although he was reluctant totestify because of fear, Arosio said he finally agreed to do so in 1984. Prior to the incident, he had notheard Edep's voice but only assumed that the voice he heard that morning was that of Edep as the latterwas the highest-ranking policeman he later saw.7

Although Dr. Romeo D. Valino conducted the postmortem examination on the body of Freddie Ganancial,it fell to Dr. Alberto H. Lim, Assistant Provincial Health Officer in Palawan, to identify the medico-legalreport of Dr. Valino and to explain its contents in view of Dr. Valino's death pending the trial of the case.

Dr. Valino's report stated in pertinent parts:

Physical Examination:

1. Gunshot wound lateral aspect D/3rd arm right (entrance) with contusion collar thru and thru passingthru the medial aspect arm right, entering to the lateral aspect mid axillary line at the level of the 9th ribhitting ascending colon and small intestine.

2. Gunshot wound at the level of the 7th rib at anterior axillary line right with contusion collar (entrance) tothe epigastric region (exit) 10 cm[s]. x 3 cm[s]. hitting the liver (mascerated).

3. Gunshot wound subcostal region right at the level of mid clavicular line (entrance) right side to thesubcostal region left side (exit at the level of mid mammary line).

4. Stomach with alcoholic smell.

5. Clotted blood at abdominal cavity, about 500 cc.

Cause of Death:

- Shock secondary to internal and external hemorrhage due to gunshot wounds - body and abdomen.8

Dr. Lim identified the medical report signed by Dr. Valino because he was familiar with the handwriting ofthe latter. As regards the contents of the medical certificate, Dr. Lim stated that Freddie Ganancial, aliasEdgar Gallego, 25 years of age, died as a result of shock secondary to internal and external hemorrhagedue to gunshot wounds on the body and abdomen, which means that the victim died because of loss of

blood resulting in shock due to a gunshot wound in the abdomen. He testified that the victim sustainedthree gunshot wounds. The first gunshot entered the body at the lateral aspect distal third arm withcontusion collar, the bullet entering the lateral aspect midaxillary line at the level of the ninth rib and hittingthe colon and small intestine. The second gunshot wound was located at the right side of the body at theseventh rib at right anterior axillary line with contusion collar (entrance), the bullet passing through theepigastric region and hitting the liver, which was mascerated. The third gunshot wound was in the rightsubcostal region at the level of the midclavicular line (entrance) right side to the left side of the subcostalregion, the bullet exiting below the nipple.

On cross-examination, Dr. Lim said that based on the findings of the medical report, the victim had beentaking liquor prior to his death. He also admitted that he had not undertaken studies on the identificationof handwriting. Dr. Lim claimed that he identified the signature of Dr. Valino in the medical report on thebasis of the other reports the latter had submitted to their office.9

Honorato Flores, senior ballistician of the National Bureau of Investigation (NBI) in Manila, identified theballistics report he had prepared and the shell fragments presented to him for examination. He said thatthe fragments could have possibly been caused by the impact of the bullet on a human being.

When cross-examined, Flores said that no armalite rifle was given to him but only shell fragments werepresented to him for examination. He said that the gun and the lead would have to be examined by usingthe bullet comparison microscope to determine whether the lead was fired from the same gun. A bone ora cement flooring could have caused the shell fragments to break, according to Flores. Upon inquiry bythe trial court, he said it was possible that a piece of copper and the lead formed part of one bullet, but itwas also possible that they did not.10

Sgt. Henry Pulga, acting station commander of Taytay, Palawan, testified that on October 6, 1980, heinvestigated the complaint filed by Barangay Captain Bergante regarding the killing of the latter's nephew,Freddie Ganancial. He identified the affidavits of Mario Felizarte (Exh. H) and Ramon Decosto (Exh. I),which he himself prepared. According to Pulga, he informed Felizarte and Decosto of their rights tocounsel and to remain silent and explained to them the import of these rights. He said that Felizarte andDecosto voluntarily gave their statements before him, although Pulga also admitted that the two did nothave counsel to assist them during the investigation.11

The last witness for the prosecution was Adolfo D. Jagmis, the chief investigator of the PalawanConstabulary based in Tiniguiban. He testified that on October 6, 1980 he investigated Edep, Lota, andAngcaco. He said that after Angcaco was apprised of his constitutional rights, the latter executed astatement (Exh. J),12 which Jagmis identified in court. But Jagmis admitted that the statement was madewithout the assistance of counsel.13

On cross-examination by counsel for accused Decosto, Jagmis was confronted with the affidavit ofAngcaco, in which the latter identified an armalite which he allegedly used at the time of the incident.Jagmis said the armalite and the lead recovered from the scene were both given to the Provincial Fiscal'sOffice.

The defense presented as its witnesses Protacio Edep, Ramon Decosto, John Angcaco, and Lydio Lota,whose testimonies are as follows:

In the early morning of September 25, 1980, petitioner and his co-accused, led by Edep, went to thehouse of Restituto Bergante in Bato, Taytay, Palawan to serve a warrant for the latter's arrest. When they

reached the house, Edep and his men took positions as they had been warned that Restituto Bergantemight resist arrest. Decosto and Angcaco were each armed with armalites, Lota had a carbine, Felizarte arevolver, and Edep a carbine and a revolver. Decosto was on the left side of Edep, around seven to 10meters from the latter. Angcaco, on the other hand, was on right side of Edep, around four to sevenmeters from the latter. Edep called Restituto Bergante to come out of the house as he (Edep) had awarrant for his arrest. Restituto's wife replied that her husband was not in the house, having gone toPuerto Princesa. A commotion then took place inside the house and, shortly after, petitioner saw a mancoming down the house. They fired warning shots to stop the man, but petitioner saw another person witha bolo near Edep. He shouted, "Sarge, this is the man who tried to hack you!," and shot the unidentifiedman, who fell to the ground face up. At the time of the incident, Decosto was on the left side of Edep,while petitioner, Felizarte, and Lota were on the right side of Edep. They later learned that the personkilled was Freddie Ganancial.

Edep conducted an investigation and recovered from the scene of the crime empty shells from armalitebullets, which he turned over to the provincial fiscal. Edep and his men were then taken to Taytay andinvestigated by P/Sgt. Adolfo Jagmis. Thereafter, Edep and his men learned that they were charged withmurder. An administrative complaint for grave misconduct was likewise filed against them in the NationalPolice Commission, but the case was dismissed.14

On January 31, 1996, the trial court rendered a decision, the dispositive portion of which reads:

WHEREFORE, after a careful evaluation of the evidence on record, this court is of the consideredopinion, and so holds, that accused John Angcaco, is GUILTY beyond reasonable doubt of the crime ofMurder defined and penalized in Article 248 of the Revised Penal Code. With the presence of themitigating circumstance of lack of intention to commit so grave a wrong and with the application of theIndeterminate Sentence Law, this Court hereby imposes upon him the penalty of imprisonment rangingfrom seventeen (17) years and four (4) months of reclusion temporal as minimum, to twenty (20) years ofreclusion temporal, as maximum, and to pay the heirs of Freddie Ganancial the amount of fifty thousandpesos (P50,000.00) as death indemnity.

Co-accused Protacio Edep, Ramon Decosto, Lydio Lota and Mario Felizarte are ordered ACQUITTED forinsufficiency of evidence.15

Petitioner Angcaco filed an appeal with the Court of Appeals, which affirmed with modification the trialcourt's decision. The dispositive portion of the Court of Appeals decision reads:

WHEREFORE, with the modification only that the mitigating circumstance of incomplete fulfillment of alawful duty should be appreciated in determining the imposable penalty, not lack of intention to commit sograve a wrong, the trial court had correctly imposed the penalty of imprisonment ranging from seventeen(17) years and four (4) months of reclusion temporal as minimum, to twenty (20) years of reclusiontemporal as maximum the questioned decision is affirmed in all other respects.

Costs against the accused.

SO ORDERED.16

Hence this appeal. Petitioner raises the following issues —

I. WHETHER OR NOT THE COURT OF APPEALS OVERLOOKED AND/OR MISCONSTRUED THEEVIDENCE FOR THE DEFENSE THAT ALL THE ELEMENTS OF DEFENSE OF [THE] PERSON ORRIGHTS OF A STRANGER ARE PRESENT.

II. WHETHER OR NOT DUE PROCESS OR THE RIGHTS OF PETITIONER-ACCUSED HAS BEENVIOLATED WHEN THE HONORABLE COURT OF APPEALS OVERLOOKED OR FAILED TOAPPRECIATE THE WEAKNESS OF THE PROSECUTION'S EVIDENCE AND ITS FAILURE TOESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.

III. WHETHER OR NOT THE APPELLATE COURT ERRED IN NOT ACQUITTING [PETITIONER]APPELLANT.17

First. Petitioner Angcaco argues that the prosecution evidence failed to prove his guilt beyond reasonabledoubt. He points out inconsistencies and contradictions in the testimonies and affidavits of prosecutionwitnesses Noel and Noe Bergante.

We agree with accused-appellant's contention. Generally, contradictions between the contents of thewitness' affidavit and his testimony in court do not impair his credibility because affidavits are usuallytaken ex parte and, for that reason, often incomplete and inaccurate.18 An affidavit will not alwaysdisclose all the facts and will even at times, without being noticed by the witness, inaccurately describethe occurrences related therein. Thus, we have time and again held that affidavits are generally inferior totestimonies in court. Affidavits are often prepared only by the investigator without the affiant or witnesshaving a fair opportunity to narrate in full the incident which took place, whereas in open court, the latter issubjected to cross-examination by counsel for the accused.19

However, where the discrepancies between the affidavit and the witness' testimony on the stand areirreconcilable and unexplained and they refer to material issues, such inconsistencies may well reflect onthe witness' candor and even honesty and thus impair his credibility.20 Hence, we have recognized asexceptions to the general rule instances where the narration in the sworn statement substantiallycontradicts the testimony in court or where the omission in the affidavit refers to a substantial detail whichan eyewitness, had he been present at the scene at the time of the commission of the crime, could nothave failed to mention.21 The case at bar is such an instance.

Noe Bergante pointed to Decosto and Edep as the ones who shot Freddie Ganancial.22 However, in hisaffidavit, dated November 24, 1980, Noe pointed to Decosto as the lone assailant. Noe also failed tomention the presence of Angcaco at the scene at the time of the commission of the crime.23 Noe tried toexplain these material omissions in his affidavit by claiming that he mentioned these details to the fiscalbut the latter must have forgotten to include them in the affidavit because he (the fiscal) was in a hurry toleave that day.24 This explanation is too pat to be accepted. To begin with, Noe admitted that theinvestigating fiscal, Fiscal Vergara, explained to him the contents of the affidavit before he (Noe) signedit.25 Noe, therefore, could have noticed the omission of such vital matters which concerned theidentification of the persons responsible for his cousin's death and called attention to such omission. Theidentity of the malefactors is too important a detail for anyone who allegedly witnessed the incident tooverlook its omission in the very statement of the incident one is giving. The omissions suggest Noe'signorance of the details of the incident as well as his readiness to perjure himself in order to implicate allof the accused in this case.

Noel Bergante fared no better than his brother on the witness stand. On direct examination, Noel, like hisbrother, identified Edep and Decosto as the assailants of Freddie Ganancial.26 However, Noel's affidavit,

dated November 24, 1980, only mentioned Decosto as the person responsible for the killing of FreddieGanancial.27 Worse, Noel executed an affidavit earlier on September 26, 1980, in which he identifiedJardiolin,28 Mario Toledo, Lydio Lota, and Mario Gonzales as the companions of Decosto at the time ofthe commission of the crime.29 But, in his testimony, Noel said that Decosto's companions were Edep,Angcaco, Felizarte, and Lota.30 When confronted with the discrepancy, Noel said that he really meant torefer to Angcaco, instead of Jardiolin, and to Ramon Decosto instead of Toledo. When further questioned,Noel said that he was referring to Lota when he mentioned the name of Toledo,31 thus creating moreconfusion with his answers. These contradictions, when taken together with Noel's claim that he hadknown Jardiolin, Felizarte, and Angcaco for a long time, cast serious doubts on his credibility.

Thus, prosecution witnesses Noel and Noe Bergante failed to give a credible and consistent account ofthe identity of the person or persons responsible for the killing of Freddie Ganancial. There is apparentfrom a reading of their testimonies a manifest tendency to improvise, modify, and even contradictthemselves in order to implicate each of the accused. It is in fact doubtful whether Noe and Noel sawwhat they testified about. Even the trial court disregarded the testimonies of Noe and Noel Bergante andacquitted Edep and Decosto in spite of their identification by these witnesses.

We are thus left with no clear picture of the events that transpired on September 25, 1980 and of theidentity of the shooter or shooters. It cannot be overemphasized that the constitutional presumption ofinnocence demands not only that the prosecution prove that a crime has been committed but, moreimportantly, the identity of the person or persons who committed the crime.32 But in the case at bar, whatpassed for the prosecution evidence was a befuddling amalgamation of half-truths and lies obviouslyfabricated by these supposed eyewitnesses to hold responsible each of the accused in this case for thekilling of their cousin. For this reason, we hold that the prosecution evidence failed to meet the quantum ofproof beyond reasonable doubt necessary for conviction in a criminal case.

Second. The conviction of petitioner Angcaco must, however, be upheld in view of his admission that heshot Freddie Ganancial. The rule is that while the prosecution has the burden of establishing the guilt ofthe accused, once the defendant admits commission of the act charged, although he invokes ajustification for its commission, the burden of proof is shifted to him to prove the said justifyingcircumstance.33 Petitioner Angcaco cannot rely on the weakness of the evidence for the prosecution, foreven if it is weak, it cannot be disbelieved after he has admitted the killing itself.34 This is because ajudicial confession constitutes evidence of a high order. It is presumed that no sane person woulddeliberately confess to the commission of an act unless moved by the desire to reveal the truth.35

Petitioner claims that he acted in defense of Sgt. Protacio Edep, whom Freddie Ganancial was about tostrike with a bolo. We do not agree. For petitioner to successfully claim the benefit of Art. 11, par. 3 of theRevised Penal Code, there must be proof of the following elements: (1) unlawful aggression; (2)reasonable necessity of the means employed to prevent or repel it; and (3) the person defending be notinduced by revenge, resentment, or other evil motive.

Unlawful aggression on the part of the victim, which must be sufficiently proven by the defense,36 ispresent when there is actual or imminent peril to one's life, limb, or right. There must be actual physicalforce or actual use of a weapon by the victim himself.37 In this case, it is contended that the victim, whowas armed with a bolo, approached Edep menacingly. But, there is no other competent evidence tocorroborate this self-serving claim. Edep testified that he heard petitioner's warning that an armed manwas behind him.38 However, when asked about the weapon allegedly held by the victim, Edep repliedthat he did not see any as he turned around to face his supposed assailant.39 It was only later that Edepclaimed seeing a knife in the area where the victim fell.40 One is thus led to suspect that Edep's claim

that he saw a knife was a mere afterthought designed to exculpate his fellow officer from the chargesagainst him.

Petitioner's own testimony suffers from inconsistencies and improbabilities on material points.

First, there was no reason for the victim, Freddie Ganancial, to attack Sgt. Edep, who was looking forRestituto, because the latter was not there in his house, having earlier gone to Puerto Princesa. In fact,Edep admitted he was about to order his men to leave the premises when they found that their quarrywas not there. The victim himself was not wanted by the police. Dr. Lim said Ganancial was drunk. In thatcondition, he could have easily have been overpowered by any member of the arresting team, if he madeany aggressive move, without shooting him to prevent him from doing harm to the latter.

Second, when cross-examined about the bolo, petitioner said he could not remember who took it away.41However, at a later hearing, petitioner stated that it was he who picked up the bolo and turned it over toEdep, his superior officer.42 But how could he not remember who took the bolo if he was the one who didso? Once again, petitioner was prevaricating.

Third, petitioner said that he merely intended to fire a warning shot when he saw Ganancial. This claim isbelied by the fact that the victim sustained three gunshot wounds on the chest and abdomen. It isapparent that petitioner intended to kill the victim and not merely to warn him.

Indeed, even assuming that the victim was charging at Sgt. Edep, it would have been sufficient forpetitioner to warn Sgt. Edep of the danger. Not that petitioner was not expected to pause for a momentwhile his colleague was in danger.43 However, the rules of engagement do not, on the other hand,require that he should immediately draw or fire his weapon if the person accosted did not heed his call.44But rather than confront the victim as to his intended purpose, petitioner immediately shot the formerwithout further thought.

Petitioner claims the victim was armed with a bolo. The circumstances, however, indicate otherwise.Petitioner was questioned by the prosecutor on the existence of the bolo during the hearing held onOctober 7, 1986. The bolo was presented in court only on October 17, 1986. At the hearing on that date,petitioner and Lydio Lota both claimed that they could identify the bolo by the markings placed on it bySgt. Edep.45 But Sgt. Edep made no mention of having recovered a bolo, much less of marking it. In fact,Edep at one point testified that he did not see any weapon near the victim. It is doubtful, therefore, thatthe bolo offered in evidence by the defense was the one actually recovered from the scene of thecrime.46 It is more likely that the idea to offer the bolo in question was a mere afterthought by the defensebrought about by the fiscal's own reminder that the presentation of the weapon was crucial to petitioner'splea of defense of stranger.47

Nor can petitioner's claim that the killing was done in fulfillment of a lawful duty be sustained, as the Courtof Appeals ruled. For this justifying circumstance to be appreciated, the following must be established: (1)that the offender acted in the lawful exercise of a right or a duty; and (b) that the injury or offensecommitted be the necessary consequence of the due performance of such right or office.48

In this case, the mission of petitioner and his colleagues was to effect the arrest of Restituto Bergante. AsEdep himself explained, the standard procedure in making an arrest was, first, to identify themselves aspolice officers and to show the warrant to the arrestee and to inform him of the charge against him, and,second, to take the arrestee under custody.49 But, it was not shown here that the killing of Ganancial wasin furtherance of such duty. No evidence was presented by the defense to prove that Ganancial attempted

to prevent petitioner and his fellow officers from arresting Restituto Bergante. There was in fact no clearevidence as to how Freddie Ganancial was shot. Indeed, as already stated, any attempt by the victim toarrest the wanted person was pointless as Restituto Bergante was not in his house. As regards thesecond requisite, there can be no question that the killing of Freddie Ganancial was not a necessaryconsequence of the arrest to be made on Restituto Bergante.

Reliance by the Court of Appeals on the case of People v. Oanis50 is misplaced. In Oanis, the accused,who were police officers, shot and killed the victim under the erroneous notion that the latter was theperson they were charged to arrest. The Court held that the first requisite - that the offenders acted inperformance of a lawful duty - was present because the offenders, though overzealous in theperformance of their duty, thought that they were in fact killing the man they have been ordered to takeinto custody dead or alive. In this case, petitioner did not present evidence that he mistook FreddieGanancial for Restituto Bergante and, therefore, killed him (Ganancial) perhaps because he placed thelives of the arresting officers in danger.

Third. On the other hand, we think the Court of Appeals erred in appreciating the qualifying circumstanceof treachery against petitioner. There is treachery when the offender commits any of the crimes againstthe person, employing means, methods, or forms in the execution thereof which tend directly andspecially to insure its execution, without risk to himself arising from the defense which the offended partymight take.51 For treachery to exist, two conditions must be present: (1) there must be employment ofmeans of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2)the means of execution were deliberately or consciously adopted.52 As has been discussed, thetestimonies of prosecution witnesses Noe and Noel Bergante cannot be given credence. As we alreadystated, even the trial court acquitted accused Decosto and Edep, both of whom were implicated as theassailants. Without evidence of the manner the aggression was made or how the act resulting in thedeath of the victim began and developed, it is not possible to appreciate the qualifying circumstance oftreachery.53

Nor can evident premeditation be appreciated in this case. Evident premeditation requires proof of thefollowing elements: (1) the time when the accused decided to commit the crime; (2) an overt actmanifestly indicating that he has clung to his determination; and (3) a sufficient lapse of time betweendecision and execution to allow the accused to reflect upon the consequences of his act.54 None of theseelements has been shown in this case.

For the foregoing reasons, petitioner is liable only for homicide, for which the penalty under Art. 249 of theRevised Penal Code is reclusion temporal. As neither mitigating nor aggravating circumstances attendedthe commission of the crime, the penalty must be imposed in its medium period, pursuant to Art. 64(1) ofthe Revised Penal Code. Applying the Indeterminate Sentence Law, the minimum imposable penalty onaccused-appellant falls within the range of the penalty next lower in degree, i.e., prision mayor, or from six(6) years and one (1) day to twelve (12) years. Accordingly, the penalty to be imposed on accused-appellant must be fixed within the range of prision mayor, or from six (6) years and one (1) day to twelveyears (12) years, as minimum, to reclusion temporal medium, or from fourteen (14) years, eight (8)months, and one (1) day to seventeen (17) years and four (4) months, as maximum.

Petitioner should also be made to pay the heirs of the victim, Freddie Ganancial, the amount ofP50,000.00 as moral damages,55 in addition to the amount of P50,000.00 awarded by the trial court andthe Court of Appeals as indemnity.56 The purpose of making such an award of moral damages is not toenrich the heirs of the victim but to compensate them for injuries to their feelings.57

WHEREFORE, the decision of the Court of Appeals, dated November 29, 2000, is AFFIRMED with theMODIFICATION that petitioner is found guilty of the crime of homicide and is sentenced to suffer thepenalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8)months, and one (1) day of reclusion temporal, as maximum, and to pay the heirs of the victim, FreddieGanancial, P50,000.00 as civil indemnity and P50,000.00 as moral damages.

SO ORDERED.