FACTS:

Through their separate petitions for review, Luis A. Tabuena and Adolfo M. Peralta
(Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated October
12, 1990, as well as the Resolution dated December 20, 1991 denying reconsideration,
convicting them of malversation under Article 217 of the Revised Penal Code.
Tabuena and Peralta were found guilty beyond reasonable doubt of 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
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total
amount of P55 Million was taken on three (3) separate dates of January, 1986.
Tabuena appears as the principal accused - he being charged in all three (3) cases
TESTIMONY
Then President Marcos instructed Tabuena over the phone to pay directly to the
presidents office and in cash what the MIAA owes the Philippine National
Construction Corporation (PNCC), to which Tabuena replied, Yes, sir, I will do it.
About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private
secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter
referred to as MARCOS Memorandum) reiterating in black and white such verbal
instruction.
In obedience to President Marcos verbal instruction and memorandum, Tabuena,
with the help of Dabao and Peralta, caused the release of P55 Million of MIAA funds
by means of three (3) withdrawals.
The position of the prosecution was that there were no outstanding obligations in favor
of PNCC at the time of the disbursement of the P55 Million. On the other hand, the
defense of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena
claimed that he was merely complying with the MARCOS Memorandum which
ordered him to forward immediately to the Office of the President P55 Million in cash as
partial payment of MIAAs obligations to PNCC, and that he (Tabuena) was of the
belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the same
belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help
in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which ultimately
led to their conviction, Tabuena and Peralta now set forth a total of ten (10) errors
committed by the Sandiganbayan for this Courts consideration.
But it would appear that they were convicted of malversation by negligence.
ISSUE: WHETHER OR NOT GUILTY OF MALVERSATION?
HELD: ACQUIT, GOOD FAITH
RATIO:
ARGUE: While malversation may be committed intentionally or by negligence, both
modes cannot be committed at the same time.
We do not agree with Tabuena and Peralta on this point.
x x x even on the putative assumption that the evidence against petitioner yielded a
case of malversation by negligence but the information was for intentional
malversation, under the circumstances of this case his conviction under the first mode
of misappropriation would still be in order. Malversation is committed either
intentionally or by negligence. The dolo or the culpa present in the offense is only a
modality in the perpetration of the felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is involved and conviction thereof is
proper. x x x.
Going now to the defense of good faith, it is settled that this is a valid defense in a
prosecution for malversation for it would negate criminal intent on the part of the
accused.
It adheres to the view that criminal intent in embezzlement is not based on technical
mistakes as to the legal effect of a transaction honestly entered into, and there can be
no embezzlement if the mind of the person doing the act is innocent or if there is no
wrongful purpose
In so far as Tabuena is concerned, with the due presentation in evidence of the
MARCOS Memorandum, we are swayed to give credit to his claim of having caused
the disbursement of the P55 Million solely by reason of such memorandum. From this

premise flows the following reasons and/or considerations 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 MARCOS Memorandum required him to do. He could not be faulted if he had to
obey and strictly comply with the presidential directive, and to argue otherwise is
something easier said than done
Second. There is no denying that the disbursement, which Tabuena admitted as out
of the ordinary, did not comply with certain auditing rules and regulations such as
those pointed out by the Sandiganbayan,
But this deviation was inevitable under the circumstances Tabuena was in. He did not
have the luxury of time to observe all auditing procedures of disbursement considering
the fact that the MARCOS Memorandum enjoined his immediate compliance with
the directive that he forward to the Presidents Office the P55 Million in cash. Be that
as it may, Tabuena surely cannot escape responsibility for such omission. But since he
was acting in good faith, his liability should only be administrative or civil in nature, and
not criminal.

IMPORTANT:
But what appears to be a more compelling reason for their acquittal is the violation of
the accuseds basic constitutional right to due process. Respect for the Constitution,
to borrow once again Mr. Justice Cruzs words, is more important than securing a
conviction based on a violation of the rights of the accused.
While going over the records, we were struck by the way the Sandiganbayan actively
took part in the questioning of a defense witness and of the accused themselves.
Tabuena and Peralta may not 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 to review, and it
becomes the duty of the appellate court to correct such errors as may be found in the
judgment appealed from whether they are made the subject of assignments of error
or not.
Simply consider the volume of questions hurled by the Sandiganbayan.
At the taking of the testimony 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 crossexamination 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
combined total of direct and cross-examination questions asked by the counsels).
After the defense opted not to conduct any re-direct examination, the court further
asked a total of ten (10) questions. The trend intensified during Tabuenas turn on the
witness stand. Questions from the court after Tabuenas cross-examination totalled
sixty-seven (67). This is more than five times Prosecutor Viernes questions on crossexamination (14), and more than double the total of direct examination and crossexamination questions which is thirty-one (31) [17 direct examination questions by Atty.
Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peraltas case,
the Justices, after his cross-examination, propounded a total of forty-one (41)
questions.
But more importantly, we note that the questions of the court were in the nature of
cross examinations characteristic of confrontation, probing and insinuation
This Court has acknowledged the right of a trial judge to question witnesses with a view
to satisfying his mind upon any material point which presents itself during the trial of a
case over which he presides.
But not only should his examination be limited to asking clarificatory questions, the
right should be sparingly 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. Here, these limitations were not observed. Hardly in fact can one avoid the
impression that the Sandiganbayan had allied itself with, or to be more precise, had
taken the cudgels for the prosecution in proving the case against Tabuena and
Peralta when the Justices cross-examined the witnesses, their cross-examinations
supplementing those made by Prosecutor Viernes and far exceeding the latters
questions in length. The cold neutrality of an impartial 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, the observation made in the Dissenting Opinion to the effect that the

majority of this Court was unduly disturbed with the number of court questions alone,
is quite inaccurate. A substantial portion of the TSN was incorporated in the majority
opinion not to focus on numbers alone, but more importantly to show that the court
questions were in the interest of the prosecution and which thus depart from that
common standard 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
The majority believes that the interference by the Sandiganbayan Justices was just too
excessive that it cannot be justified under the norm applied to a jury trial, or even
under the standard employed in a non-jury trial where the judge is admittedly given
more leeway in propounding questions to clarify points and to elicit additional relevant
evidence.