Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-49155 May 13, 1981

REYNALDO RODIL, petitioner,

vs.
SEGUNDO M. GARCIA (Municipal Judge of Sta. Cruz, Marinduque), and PC TSGT. IRENEO
DELLOSA, respondents.

FERNANDO, C.J.:

It was the insistence of counsel for petitioner Reynaldo Rodil, against whom a warrant of arrest had been issued the
charge against him being that of murder, to recall witnesses for the prosecution to enable such counsel to cross-examine
them, on, to quote his words, "clarificatory and amplificatory matters" and the denial thereof by respondent Municipal
Judge Segundo M. Garcia of Sta. Cruz, Marinduque 1 that led to this proceeding for certiorari and prohibition with
preliminary injunction. 2 What is prayed for is not only that such order denying counsel's request to recall government
witnesses be set aside and nullified, but also that bail be granted petitioner, a petition to that effect having been denied
with a subsequent motion for reconsideration still undecided. Respondents were required to comment and the Court
likewise issued a temporary restraining order. Such a comment was submitted on behalf of respondent by the Solicitor
General 3 seeking the dismissal of the petition on the ground that the right to cross-examine in a preliminary investigation
is not a right granted an accused and that the exercise of discretion by respondent Judge considering the evidence of
record sufficed to justify denial of the application for bail. The case was then considered submitted for decision.

An examination of the record, as well as the pertinent doctrines, makes evident that the jurisdictional issue posed arises
from the failure to accord petitioner a hearing on his application for bail. A resolution of that question in the sense of
respondent Judge affording petitioner his day in court is equally decisive of the other issue, whether or not counsel for
petitioner could recall witnesses for the prosecution for the purpose of asking clarificatory questions. That he could very
well do when they testify to prove evidence of guilt is strong. Under the present state of the law, it cannot be said that the
right to cross-examine is guaranteed an accused at the stage of preliminary investigation.

There is, in the light of the above, merit in the petition.

1. At the continuation of the hearing on the preliminary investigation conducted by respondent Judge, held'after he denied
the petition for bail, counsel for petitioner asked the categorical question whether in the opinion of the court "the evidence
of guilt is strong, final and irreversible." 4 Respondent Judge categorically answered: "That is final, the said order of the
Court states that the evidence of guilt is strong." 5 Moreover, the order of respondent Judge denying bail explicitly
admitted he issued it on the basis of the motion of petitioner that he be granted such right and the opposition filed by the
First Assistant Provincial Fiscal without conducting any hearing on such motion. Clearly, he acted on the mistaken belief
that the presentation of evidence by the prosecution for the purpose of the issuance of the warrant of arrest, the
preliminary examination proper, suffices for the denial of the plea for bail. In the latest case on the subject, People v.
Sola, 6 decided on March 17, 1981, this Court relying on People v. San Diego, 7nullified an order of a municipal judge
named respon dent in that case as he granted bail to the accused without hearing the prosecution. The present case is
much stronger; it is the accused himself, the explicit beneficiary of the Constitutional right, who was not heard.

2. There is misapprehension on the part of respondent Judge of the import of the ruling in Ocampo v. Bernabe, 8 as to the
summary nature of the hearing required to determine whether bail should be allowed. The opinion of the then Chief
Justice Moran speaks for itself: "The course of the inquiry may be left to the discretion of the court which may confine itself
to receiving such evidence as has reference to substantial matters avoiding unnecessary thoroughness in the examination
and cross-examination of witnesses and reducing to a reasonable minimum the amount of corroboration particularly on
details that are not essential to the purpose of the hearing. Objection has been made long ago to this method of hearing
wherein the regular trial is anticipated though to a limited extent at least. But the objection was dismissed as follows: 'The
second objection is more serious, and, if the courts possessed entire freedom of action in regard to the matter, would be
very persuasive. The regular trial is, to a limited extent at least, anticipated. While the guilt or innocence of the accused is
not to be determined, the quantity and character of the proof on this point are, for the special purpose in hand, necessarily
considered. Occasionally much time is thus consumed, and the court's attention is correspondingly diverted from other
business. But these objections cannot avail against a positive constitutional command; if the Constitution requires the
court to determine for itself whether or not the proof is evident or presumption great in a given case, all considerations of
expediency or convenience, however potent they might be at the common law, must give way. 9 As a matter of fact, the
decision in that case was in favor of petitioner Ocampo, with the Fourth Division of the People's Court being adjudged as
having committed a grave abuse of discretion for denying bail. What cannot be too sufficiently stressed is that the
procedure to be followed in the hearing on an application for bail, while summary in character, is not to be a mere sham or
pretense. It must not be an exercise in futility. The accused is not to be denied his day in court.

3. That leaves the question of the alleged grave abuse of discretion in that he refused to allow counsel for petitioner
during the stage of preliminary investigation proper to recall prosecution witnesses so that counsel could cross-examine
them on "clarificatory and amplificatory matters." As set forth earlier, the accused is not by law entitled to such a right. The
leading case is still Abrera v. Muñoz and Flordeliza, 10 a 1960 decision, with Justice J.B.L. Reyes as ponente. While the
specific question differs, the principle announced is applicable. In that certiorari proceeding, it was alleged that there was
a grave abuse of discretion by respondent Justice of the Peace for permitting the cross-examination by the prosecution of
the accused and her witnesses during the preliminary investigation. This Court held: "At the outset, it should be stated that
the refusal of the Justice of the Peace to allow the defense to cross-examine the prosecution's witnesses presented prior
to petitioner's arrest, cannot be utilized as argument for the contention that the prosecution should not have been allowed
to cross-examine the defense witnesses. An accused is not entitled to cross-examine the witnesses presented against
him in the preliminary investigation before his arrest, this being a matter that depends on the sound discretion of the
Judge or investigating officer concerned (People v. Ramilo, 98 Phil. 545; Dequito v. Arellano, 81 Phil. 128; Bustos v.
Lucero, 81 Phil. 640). Petitioner-appellant's attempt to draw a parallel between the refusal of the judge to allow her to
cross-examine prosecution's witnesses, with the permission granted to the latter as against the defense witnesses,
assumes the existence of a vested right of which petitioner-appellant had been deprived. In being denied confrontation of
the prosecution witnesses, she was not deprived of any right but was merely refused the exercise of a privilege.11 With the
ruling on the question for bail, counsel for petitioner, as above intimated, would be able to attain the objective which was
denied him when he was not allowed to recall the prosecution witnesses. To follow the language of Abrera, petitioner as
the accused "was not deprived of any right but was merely refused the exercise of a privilege."

4. The Abrera decision likewise stands for this proposition first set forth in the aforecited Dequito case: "There are an
infinite number of things which a party may not in strict law do or cause to be done but which may be permitted by the
court in the exercise of its discretion and in the interest of justice. Specially is this true in matters affecting the conduct of
the trial and the calling, recalling and examination of witnesses." 12 There is added emphasis as shown by this excerpt:
"The judge is not a ministerial officer reduced to recording what takes place and what witnesses day in the examination.
Above all, his is the great responsibility of safeguarding the accused from groundless or vindictive prosecution. If the
justice of the peace is to ascertain, as he must, whether a crime has been committed and, if so, whether there is probable
cause that the accused committed it, his authority cannot be confined as in a straight jacket to the stiffness of medieval
and outmoded technicalities of practice." 13 It thus appears clearly that in the exercise of his discretion respondent Judge
could have granted the request and thus avoided the necessity of this character having to be filed.

5. The interest of a more speedy and a more efficient administration of justice would be best served if there is a greater
awareness on the part of judges that in addition to safeguarding the express rights of an accused person, a matter
mandated by the Constitution or the Rules of Court, they should likewise exercise their discretion in such a way that the
purpose of a preliminary investigation, the avoidance of groundless or vindictive prosecutions, could be attained in as fair
and objective manner as possible. Nor is counsel for petitioner entirely blameless. From the transcript of stenographic
notes submitted by him, there is readily discernible that tone of prosperity as noted in the Comment of Solicitor General
Mendoza, when he addressed respondent Judge. An occupant on the bench, while he should be on guard against undue
emotional reaction, is, after all, not expected to be totally free from such traits as irritability and exasperation. Moreover,
he is entitled and should get that proper degree of respect and courtesy from a lawyer appearing before him. While it is
not only the right of an advocate but his duty to cite all pertinent authorities, counsel for petitioner could have done so in a
less assertive manner and by way of a submission rather than a lecture. It must never be forgotten that a lawyer pleads;
he does not dictate.

WHEREFORE, the writ of certiorari is granted. The order of respondent Judge denying bail is set aside. He, or whoever is
now the Municipal Judge of Santa Cruz, Marinduque, must set forthwith the hearing on the application for bail of
petitioner, to be conducted in accordance with the requirements of the Constitution, of Court, and this opinion. No
costs.ñët
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. Nos. 108135-36 September 30, 1999

POTENCIANA M. EVANGELISTA, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES and THE HONORABLE SANDIGANBAYAN (FIRST
DIVISION), respondents.

YNARES-SANTIAGO, J.:

Before us is a petition for review on certiorari assailing the decision of the Sandiganbayan dated September 11,
1992 in Criminal Case Nos. 14208-14209 finding petitioner Potenciana M. Evangelista guilty beyond reasonable
doubt of violation of Section 268, paragraph 4 of the National Internal Revenue Code (NIRC) and Section 3(e) of
R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

Tanduay Distillery Inc., is a company engaged in the manufacture and sale of rum, gin, vodka and other spirits. On
September 17, 1987, Tanduay filed with the Bureau of Internal Revenue (BIR) an application for tax credit in the
sum of P180,701,682.00 representing alleged erroneous payments for ad valorem taxes covering the period
January 1, 1986 to August 31, 1987. Attached to the application was a schedule of ad valorem taxes 1 allegedly paid
by Tanduay with supporting confirmation receipts. The application was filed with the Specific Tax Office of the BIR headed
by Aquilino T. Larin.

Tanduay anchored its claim for tax credit on the ground that it is a rectifier which is liable for specific taxes and
not ad valorem taxes, citing a BIR ruling in a case involving Distilleria Limtuaco and Co. Inc. The ruling states that
rectifiers are considered as extensions of distillers inasmuch as they purchase alcohol from distillers without
prepayment of the specific tax. Since specific tax should be paid by the distiller before its removal from the place of
production, the burden of payment therefor is shifted to and assumed by the rectifier.

In its application for tax credit, Tanduay stated that it is a rectifier with Assessment No. A-1-8 and a compounder
with Assessment No. A-1-8-A, although compounding is only incidental to rectification of its products. Consequently,
before the tax credit being sought by Tanduay could be granted, the BIR's Tax and Alcohol Division, headed by
Teodoro D. Pareño, had to verify first whether Tanduay's products are distilled spirits or compounded liquor based
on how they are manufactured. To do this, Justino Galban, Head of the Compounders, Rectifiers and Repackers
Section under the Alcohol and Tax Division, had to look into the technical process for the manufacture of rum, gin,
vodka and other intoxicating beverages of Tanduay. If it is determined that the products can be properly classified
as distilled spirits based on how they are manufactured, then Tanduay could properly claim for a tax credit on its
payments of ad valorem taxes in accordance with Section 121 of the NIRC and the Limtuaco ruling that rectifiers, as
an extension of distillers, are subject to specific and not ad valorem taxes. Finally, it had to be verified by the
Revenue Accounting Division (RAD) headed by petitioner Potenciana M. Evangelista whether Tanduay actually paid
the P180,701,682.00 as ad valorem taxes to the BIR which it claims it paid. 1âw phi 1.nêt

On September 23, 1987, Larin, in a marginal handwritten note, directed Pareño to prepare a request to the Revenue
Accounting Division (RAD) for the authentication of the confirmation receipts covering the tax payments sought to be
credited. Accordingly, a memorandum, signed by Larin, was sent to the RAD headed by petitioner Evangelista
requesting verification and authentication whether the amounts reflected in the confirmation receipts submitted by
Tanduay were actually paid to the BIR as ad valorem taxes.

Larin's a Memorandum was received by the Records and Administrative Section (RAS), a unit under RAD, on
September 24, 1987. In due course, RAS made the necessary verification on the basis of its records and prepared
the corresponding verification 2 in the form of a 1st Indorsement to the Specific Tax Office on September 25, 1987. The
indorsement, which was signed by petitioner Evangelista, contained a listing of two hundred thirty seven (237)
confirmation receipts in various amounts under two categories designated with Tax Numeric Code (TNC) 3011-0011 and
TNC 0000-0000. A total of 149 confirmation receipts covering P102,519,100.00 were listed as tax payments under TNC
3011-0011 and a total of 88 confirmation receipts covering P78,182,582.00 were listed as tax receipts under TNC 0000-
0000.

A memorandum was thereafter prepared by Galban as Chief of the Compounders and Rectifier's Section addressed
to Pareño describing the technical aspects of Tanduay's manufacturing process. Galban made no recommendation,
however, as to the validity of Tanduay's claim. On October 13, 1987, Pareño sent a memorandum to Larin
recommending that the request for tax credit of Tanduay Distillery, Inc. be given due course on the ground that
Tanduay as a rectifier is an extension of the distiller and its products are subject of the payment of specific tax and
not ad valorem tax. On same date, Larin signed a memorandum for the Deputy Commissioner of the BIR
recommending that the claim of Tanduay Distillery Inc., for the alleged erroneous payment of ad valorem taxes in
the amount of P180,701,682.00 be tax credited as in the case of Distilleria Limtuaco and Co. Inc.

On October 13, 1987, Eufracio D. Santos, Deputy Commissioner of the BIR, approved the recommendation made
by Larin in his memorandum and thereafter signed Tax Credit Memo No. 5177 in the amount of P180,701,682.00 in
favor of Tanduay Distillery, Inc. The approval was based on the following:

1. The memorandum of the Assistant Commissioner for Specific Tax Office, Aquilino T. Larin;

2. The memorandum of the Chief of Alcohol Division, Teodoro D. Pareño; and

3. The 1st indorsement/certification issued by Chief of Revenue Accounting Division, herein petitioner Potenciano
M. Evangelista.3

Immediately after the approval of Tax Credit Memo No. 5177, Tanduay availed of the tax credit on various dates
covering the period from October 19, 1987 to June 20, 1988. 4 However, on June 22, 1988, a certain Ruperto Lim
wrote a letter-complaint to BIR Commissioner Bienvenido Tan, Jr. alleging that the grant of Tax Credit Memo No. 5177 in
favor of Tanduay was irregular and anomalous. More specifically, Lim pointed out that Tanduay had paid only
P73,614,287.20 5 by way of ad valorem taxes to the BIR from January 1, 1986 to August 31, 1987 and not
P180,701,682.00 as claimed. Deputy Commissioner Santos, in approving TCM No. 5177, failed to notice that petitioner's
1st indorsement contained a listing of TNC indicating tax payments received from Tanduay under two categories, i.e.,
TNC 3011-0011 and TNC 0000-0000. As earlier mentioned, a total of 149 confirmation receipts were listed as tax
payments under TNC 3011-0011 while a total of 88 confirmation receipts were listed as tax payments under TNC 0000-
0000. Deputy Commissioner Santos admitted that while he knew that there was a tax numeric code for the kind of tax
paid, he did not know which particular numbers corresponded to a particular tax revenue. These codes are contained in
the "Handbook of Tax Numeric Code of the Revenue Sources," wherein it is stated that TNC No. 3011-0011 stands for
specific tax on domestic and distilled spirits, TNC No. 3023-2001 for ad valorem on compounded liquors and TNC No.
0000-0000 for unclassified taxes. Had Deputy Commissioner Santos looked these up in the Handbook, he would have
known that Tanduay was not entitled to the whole sum of P180,701,682.00. Santos, however, contended that the practice
of using numeric tax codes is for the purpose of checking remittances of payments by the banks which properly falls under
the jurisdiction of the RAD. He claimed that he merely relied on the certification of his subordinates, inasmuch as his work
was merely confirmational.

On January 3, 1990, two informations were filed with the Sandiganbayan against Aquilino T. Larin, Teodoro D.
Pareño, Justino E. Galban, Jr. and petitioner Potenciana M. Evangelista for violation of Section 268, Par. 4 of the
National Internal Revenue Code (NIRC), docketed as Criminal Case No. 14208, and for violation of Section 3(e) of
R.A. No. 3019 of the Anti-Graft and Corrupt Practices Act, docketed as Criminal Case No. 14209.

Sec. 268, par. 4 of the NIRC reads:

Sec. 268. Violations committed by government enforcement officers — Every official agent or employee of the
Bureau of Internal Revenue or any other agency of the government charged with the enforcement of the provisions
of this Code, who is guilty of any of the offenses herein below specified, shall upon conviction for each act or
omission, be fined in the sum of not less than five thousand pesos but not more than fifty thousand pesos or
imprisoned for a term of not less than one year but not more than ten years or both;

xxx xxx xxx

4. Those who conspire or collude with one another or others to defraud the revenues or otherwise violate the
provisions of this Code.

On the other hand, Section 3 (e) of R.A. No. 3019 of the Anti-Graft and Corrupt Practices Act states:

Sec. 3. Corrupt Practices of Public Officers — in addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be
unlawful;

xxx xxx xxx

e. Causing any undue injury to any party including the government, or giving any private party any unwarranted
benefit, advantage or preference in the discharge of his official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.

Upon arraignment, all the accused including petitioner Evangelista pleaded not guilty. They raised the defense that
no undue injury had been caused to the government and no unwarranted benefits had been accorded to Tanduay
inasmuch as Tanduay had already fully reimbursed the BIR of the availments found to have been unjustified or
improper in the amount of P73,000,000.00 and had, additionally paid P11,000,000.00 by way of penalties, or a total
of P84,000,000.00.

Petitioner Evangelista, for her part, did not deny having issued the 1st indorsement. However, instead of taking the
witness stand, she, like her three co-accused, refused to testify and opted to present as evidence in her behalf the
following paragraphs from her letter of explanation dated November 21, 1988 to BIR Commissioner Bienvenido Tan
which read as follows:

Confirmation receipts do not contain any information as to the kind of tax or TNC. Thus, there can never be any
verification and certification as to kind of tax. What can only be verified/certified by this Division as required in
existing orders is the fact that the total amount of each CR were remitted to the BIR by the collecting bank on the
given date.

xxx xxx xxx

In the case of Tanduay Distillery. I did not know at the time I signed the indorsement what the TNC therein stand for
because I was informing (sic) was that payments were received by BIR. I just became curious to know its meaning
and verify the same from the Handbook of Tax Numeric Codes of Revenue Sources, 1985 when a certain Atty.
Villavicencio called me up to his Office at the Internal Security Division some two weeks ago to ask questions on the
subject indorsement.

In her letter, petitioner also categorically stated that, "Upon signing of this indorsement/certification I or whoever is
head of this Division, for that matter, do not know what TNC stands for." 6

On September 18, 1992, Aquilino T. Larin, Teodoro D. Pareño and petitioner Potenciana M. Evangelista were convicted
and sentenced to suffer the penalty of imprisonment for an indeterminate period of 4 years, 8 months and 1 day by way of
minimum to 6 years and 8 months by way of maximum, and a fine of Twenty Thousand Pesos (P20,000.00) each in
Criminal Case No. 14208; while in Criminal Case No. 124209, Aquilino T. Larin, Teodoro D. Pareño and petitioner
Potenciana M. Evangelista were convicted and sentenced to suffer imprisonment for an indeterminate period ranging from
a minimum of 9 years and 1 month to a maximum of 12 years. The penalty of perpetual disqualification from public office
was likewise imposed upon the three accused. Justino Galban was acquitted inasmuch as his only participation was the
preparation of the memorandum describing Tanduay's manufacturing process as rectifier and compounder of liquors.

Petitioner Evangelista was convicted on the basis of the 1st indorsement issued by her which the Sandiganbayan
condemned as a "studied non-response" to Larin's query as to how much the BIR actually received as payment
for ad valorem taxes from Tanduay. The Sandiganbayan held that Evangelista's indorsement could have been
explicitly and directly responsive because Larin's memo was clear and the purpose for his query was specific: How
much was paid by Tanduay to the BIR by way of ad valorem taxes for the purpose of computing the amount
properly creditable to Tanduay for refund? However, Evangelista's response merely enumerated a set of
confirmation receipts with the corresponding TNC numbers despite the fact that several employees of the Bureau
were not well acquainted with the use and meaning of TNCs. Petitioner's ambiguous reply, according to the
Sandiganbayan, permitted her superiors to equivocate as to its meaning which resulted in the improper grant of tax
credits to Tanduay. The Sandiganbayan thus concluded that the gross negligence of the petitioner and its
confluence with the acts of accused Larin and Pareño in recommending the approval of Tanduay's application for
tax credit adequately proved conspiracy among them.

Her motion for reconsideration having been denied by the Sandiganbayan, Evangelista filed the instant petition
contending that the 1st indorsement was issued after proper verification of the data given to the RAD against
available records of the division. Petitioner claims the certification issued was patterned after the prescribed format
as a routine response to an official request of the Assistant Commissioner for Excise Tax Office. Petitioner insists
that she could not be held liable because there was no mention in the 1st indorsement that the payments made by
Tanduay Distillery Inc. were actually for ad valorem taxes for which it could claim tax credit in the sum of
P180,701,682.00.

On November 29, 1993, the Office of the Solicitor General filed a manifestation and motion in lieu of comment
recommending the acquittal of petitioner. The Manifestation stated that: "Although petitioner herself may not have
known the exact kind of taxes covered by the TNC reflected in her 1st Indorsement, this does not in any way make
her guilty of gross negligence. Her duty was purely ministerial in nature, that is, to report all data pertinent to
Tanduay's tax payments on file with RAD. She was not duty-bound to report her personal perception, understanding
or conclusion regarding the significance or meaning of the data she had reported. It was Larin and Pareño's duty to
do so." 7

In view of the position taken by the Office of the Solicitor General, the Ombudsman and the Office of the Special
Prosecutor filed a motion for leave of court to file comment which was granted. In its comment, the Office of the
Ombudsman and the Office of the Special Prosecutor sought petitioner's conviction on the ground that the decision of the
Sandiganbayan on the two cases filed against her is in accord with applicable jurisprudence and supported by factual
evidence.

We find no reason to overturn petitioner's conviction for gross negligence.

Before 1969, internal revenue taxes were designated by descriptive words. This, however, proved to be
unsatisfactory inasmuch as tax data could not easily be stored and processed by the computer, resulting in delayed
compilation and retrieval of the data.

To facilitate the preparation of statistical and other management reports, the BIR adopted the Tax Numeric Code
System under which a numeric code stands for kinds or classes of tax and their applicable rate. For this purpose, a
"Handbook on Tax Numeric Codes of the Revenue Sources," was issued for BIR use. 8 Under this system, TNC No.
3011-0011 was made to stand for "specific tax on domestic distilled spirits," 9 TNC No. 3023-2001 for ad valorem on
compounded liquors, 10 and TNC No. 0000-0000 for unclassified taxes. Under various BIR Revenue Memorandum Orders
and Circulars, the use of TNC instead of word descriptions to identify and record tax payments was made mandatory. 11 It
may not be amiss to note at this point however that despite the fact that the use of TNC to identify and record tax
payments was made mandatory, it had become obvious during trial that not all employees of the BIR were well
acquainted with the meanings of the TNC. Even Deputy Commissioner Santos who approved the Tax Credit Memo and
the BIR Commissioner himself, Bienvenido Tan, were not familiar with the corresponding TNC numbers for a particular
revenue. Not surprisingly, petitioner and the three other accused claimed they too were unaware of the meaning of TNC.

In the case at bar, petitioner is the head of the Revenue Accounting Division (RAD). Under Revenue Administrative
Order No. 5-84, one of the functions of the said division is to "Confirm and certify as to the correctness of payment
and other informations verified from accounting records and documents." As head of the RAD, petitioner holds an
extremely sensitive position, whose certification to the payments received by the Bureau from taxpayers determines
whether the taxpayer is entitled to a refund or a tax credit. Despite her sensitive position, however, and despite her
own admission from the pleadings that the use of TNC instead of word descriptions to identify and record tax
payments were made mandatory since 1969, petitioner claims that she practically had no idea what the TNC meant
until a year after having issued the 1st indorsement, when investigation regarding the tax credits given to Tanduay
was well under way. Petitioner further claims that there was no way she could have verified whether the payments
made by Tanduay were for ad valorem taxes because the confirmation receipts do not contain any information as to
the kind of tax paid by the taxpayer nor the requisite TNC.
We are not impressed.

A payment order, which contains the particular kind of tax to be paid and the corresponding TNC, is issued to a
taxpayer to be presented by him to the bank where he pays his taxes. When the payment order is presented, a
confirmation receipt is issued by the bank evidencing payment of the tax. Although it is not stated in the confirmation
receipts what kind of tax is being paid by the taxpayer nor the TNC, the BIR's copy of the confirmation receipt is
usually attached to the original copy of the Payment Order (PO) which in turn specifies the kind of tax paid and the
TNC. Since petitioner's division is the repository of all accounting records of the Bureau, it should have copies of the
payment orders for the corresponding confirmation receipts and therefore petitioner could have easily verified what
kind of taxes were covered by the payments made by Tanduay from January 1, 1986 to August 31, 1987. Moreover,
petitioner's claim that there were no pertinent records, codes and references that could be used to distinguish the
confirmation receipts as either for ad valorem or specific tax is belied by the denial of her immediate superior,
Melchor Ramos, who stated that the RAD has in its possession the monthly Alpha List of Taxpayers issued in 1986
as well as the collection report by agent banks (Abstract of Collection thru Banks) for the same year which were
prepared by the Revenue Information System Service, Inc. (RISSI) based on the confirmation receipts transmitted to
them by the field offices and the PO/CR Monitoring Division. Petitioner's immediate superior added that these
records contain the TNC of every receipt listed therein and thus it would be very easy to identify the kind of tax paid
by the taxpayer by simply referring to the Handbook on Numeric Tax Code. 12

Clearly, petitioner's alleged lack of knowledge as to what TNC meant was grossly inexcusable if not improbable
considering that the use of TNC to record tax payments received by the Bureau is directly connected with the duties of her
office. If there is anyone in the. Bureau who was expected to have a working knowledge of the TNC, it should have been
petitioner because the use of TNC was precisely meant to facilitate the recording of the tax payments received by the
Bureau for verification purposes. Petitioner as head of the Revenue Accounting Division was called upon to verify whether
the schedule of payments submitted by Tanduay in support of its application for tax credit were payments for ad
valorem taxes. Petitioner had submitted a list of payments made by Tanduay with the corresponding bank account nos.,
amounts and TNC Nos., as required by the Memorandum Circular. But, as admitted by petitioner herself, she had not the
slightest idea what TNC meant, despite the fact that they are mandated by the Bureau to use it accordingly in identifying
and recording tax payments.

We have a situation where the Head of the Division, which is in charge of recording tax payments received by the
Bureau and whose certification is relied upon by the Bureau in the granting of tax credits, does not even know or
care to know what are the kind of tax payments received by the Bureau. For all intents and purposes, petitioner
issued an indorsement certifying a whole schedule of payments made by the taxpayer without a specification of the
kinds of taxes since she did not have any idea what TNC meant. It could not even be said that petitioner made an
error of judgment in answering Larin's query with an enumeration of TNCs instead of opting for a more explicit
response since petitioner, not having any idea as to what the TNCs meant, could not have couched the statement of
her 1st Indorsement in any other way. She could not have made a more explicit answer to the query of Larin
inasmuch as she did not even know or care to find out whether the BIR actually received payments for ad
valoremtaxes from Tanduay. Clearly, there is no doubt that petitioner was grossly negligent in discharging her
duties. As defined in the case of Alejandro v. People, 13 gross negligence is "negligence characterized by want of even
slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and
intentionally with a conscious indifference to consequences insofar as other persons may be affected. It is the omission of
that care which even inattentive and thoughtless men never fail to take on their own property." The test to determine the
existence of negligence in a particular case may be stated in this wise: "Did the defendant in doing the negligent act use
that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then
he is guilty of negligence. The law here in effect adopts the standard supposed to be exercised by the discreet
paterfamilias of Roman Law. The existence of negligence in a given case is not determined by reference to the personal
judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy or negligent in
the man of ordinary intelligence and prudence and determines liability by that." 14

Petitioner asserts that there was nothing untruthful in the certification she issued regarding the tax payments received by
the BIR from Tanduay. Petitioner further claims that the first endorsement was patterned after the standard format used
by the division whenever a request is made for verification of payments and she could not be faulted for adhering to the
mandate of the various memoranda issued regarding the use of TNCs.

Admittedly, the use of TNCs to record tax payments is mandated by various memoranda issued by the Bureau.
Petitioner, however, as previously stated, never exerted any effort to find out what the TNCs meant. Had she been
more circumspect, she would have appreciated the significance of her certification. She would have known that
Tanduay was not entitled to the whole amount of P180,701,682.00 it was claiming as tax credit. She would have
been forewarned of the implied consequences of her certification and could have accordingly informed her superiors
and her co-accused whether Tanduay was really entitled to a tax credit at all or not. That her co-accused were
mandated to know what TNC meant is beside the point. Petitioner, by the position she occupies, is mandated to
know the kind of taxes for which payment is made by the taxpayer claiming a refund before she issues a certification
because it is on the basis of this certification that it is determined whether tax credits should be granted at all.
Certainly, the petitioner held a sensitive position with a function that could hardly be classified as ministerial. As
head of the division which is supposedly in charge of encoding payment received by the Bureau from taxpayers and
who is supposedly expected more than anyone to know the meaning of the TNC, petitioner issued an indorsement
containing cryptic codes which she admittedly did not know the meaning of and expecting her superiors, who were
not even in charge of recording tax payments and who relied on her certification, to be familiar with.

Petitioner cannot take refuge in the claim that the 1st indorsement was issued in the usual format as a routine
response to an official request of the Commissioner of Excise Tax after it has verified the data given to them against
available records of the division. We fully concur with the observation of the Sandiganbayan that —

to begin with, nobody has demonstrated that the text of the first indorsement of the Tanduay matter and on the
Limtuaco matter were the correct responses to the query made by Larin. As aforesaid, nobody, whether for or from
the accused, testified.

And since nobody actually testified on any of the documents of the accused — not even her boss, Assistant
Commissioner Melchor S. Ramos — so that a full clarification could be had thereon, this court cannot be deemed to
accept his written statements unqualifiedly.

While petitioner was grossly negligent in her duties for which she could be held liable under R.A. No. 3019 (e),
petitioner may not be held liable for violation of Section 268(4) of the National Internal Revenue Code inasmuch as it
has not been proven that there was an actual agreement between her and her co-accused to grant unwarranted tax
credits to Tanduay. What is punished in said Sec. 268(4) is the act of conspiring and colluding to defraud the
government of revenues. It is well entrenched in our jurisprudence that conspiracy must be shown to exist as clearly
and as convincingly as the commission of the offense itself. Absent any act or circumstance from which may be
logically inferred the existence of a common design among the accused to commit the crime, the theory of
conspiracy remains a speculation not a fact. 15

Significantly, in the separate appeal of petitioner's two other co-accused to this Court, entitled Pareño vs. Sandiganbayan
and the People of the Philippines, 16 we ruled that "the acts of petitioners and that of Evangelista may be considered
concerted only because they performed interrelated functions but there is no actual proof that conspiracy existed between
the parties."

WHEREFORE, the decision of the Sandiganbayan in Criminal Case No. 14208 convicting petitioner Potenciana M.
Evangelista of violation of Section 268 (4) of the National Internal Revenue Code is REVERSED and petitioner is
accordingly ACQUITTED. The decision of the Sandiganbayan in Criminal Case No. 14209 convicting petitioner of
violation of R.A. 3019 (e) of the Anti-Graft and Corrupt Practices Act is AFFIRMED with the MODIFICATION that
petitioner is sentenced to suffer an indeterminate penalty of imprisonment of six (6) years and one month as
minimum to twelve (12) years as maximum. The penalty of perpetual disqualification from public office is likewise
imposed on her. No costs. 1âwphi1.nêt

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-34105 February 4, 1983

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TIMOTEO CABURAL, CIRIACO YANGYANG, BENJAMIN LASPONIA, and LEONIDE CABUAL,
accussed,TIMOTEO CABURAL and CIRIACO YANGYANG, defendants-appellants.

The Solicitor General for plaintiff-appellee.

Benjamin A. Gravino for private respondents.

Abdon A. Arriba counsel for defendant-appellants.

RELOVA, J.:

This is an appeal from the decision of the Court of First Instance of Lanao del Norte, dated June 4, 1970, convicting
Timoteo Cabural of the crime of Robbery with Rape and sentencing him to suffer the penalty of Reclusion Perpetua;
and, convicting Leonide Cabual, Benjamin Lasponia and Ciriaco Yangyang of the crime of Robbery and sentencing
each of them to suffer imprisonment of six (6) years and one (1) day of Prision Mayor, as minimum, to ten (10) years
of Prision Mayor, as maximum; to indemnify the offended party in the sum of P9,435.50, without subsidiary
imprisonment in case of insolvency and to pay proportionately the costs of the proceedings.

The statement of facts in the brief filed by the People of the Philippines is as follows:

... [A]t about 2:00 o'clock in the morning of September 14, 1960, three masked men entered the
building of the Kim San Milling in Palao City of Iligan thru an opening of the roof above the kitchen
that was being repaired and forced themselves inside a room where Pua Lim Pin Bebencio Palang,
Sy Chua Tian and Siao Chou were sleeping (tsn, pp. 78-82, May 31, 1965; tsn, pp. 141-148, June
13, 1961). The masked men, at gunpoint, hogtied the four occupants of the room and commanding
them to lie on the floor, face down, were all covered with blankets (tsn, pp. 82-83, Ibid). The inmates
of the room heard That the cabinets were being ransacked (tsn, p. 82, Ibid). As this was going on,
one of the men approached Pua Lim Pin to ask him if he could open the safe to which he answered
in the negative as he was a mere employee of the firm (tsn, p. 83, May 31, 1961). An hour later, one
of the men approached Sy Chua Tian (also See Chou Kian tsn, p. 89, Ibid) and told him: 'now is
3:30, if by 4:00 the safe is not open we will kill you.' (tsn, p. 94, Ibid.)

As this was going on, another episode was taking place inside the next room where the maids were
sleeping (tsn, p. 91, May 31, 1961). Restituta Biosano Panchita Maghanoy and Agripina Maglangit
have retired at about 10:00 o'clock in the evening of September 13, 1960, after their chores were
performed (tsn, p. 91, Ibid, tsn, p. 10, May 7,1961; tsn, p. 13, May 29,1961; tsn, p. 25, Ibid). At about
2:00 o'clock the following morning, they were awakened by two persons, one holding a pistol and the
other holding a hunting knife. Like the fate of the four inmates of the other room, the maids were all
hogtied, made to lie on the floor, face downward, and were all covered with blankets (tsn, pp. 25-29,
May 29, 1961). The two then left the room (tsn, p. 29, Ibid). After two hours later, one of the two men
re-appeared in the room and after discovering that Agripina Maglangit had freed her hands, he
showed anger and remarked that he would separate her from the rest. With his pistol pointed at her,
he took her outside the building to a secluded place within the Kim San Compound (tsn, pp. 30-
33, Ibid.). Here, with her hands tied, she was made to lie down flat on the ground face upwards. He
then raised her skirt, tied down her panties, and had sexual intercourse with her. She was unable to
 resist him and fight back because at the time she had lost her strength not to mention the fact that
she was deprived of the use of her hands that were both tied together. The rape having been
consummated, he pulled her left arm so she could stand up. He then left her (tsn, pp. 33-35, Ibid.).

Agripina Maglangit recognized the features of the man that raped her. She Identified her rapist to be
the accused Timoteo Cabural (tsn, pp. 36-39, Ibid.).

At about four o'clock that morning (September 14, 1960) all the intruders must have left because the
four men that were hogtied in the other room noticed complete silence They each struggled to free
themselves which they succeeded. Maghanoy lost her Alosa 15-jewel watch costing her P65.00 (tsn,
p. 22, May 29, 1961); Sy Chua Tian (See Chou Kian lost his Omega automatic wrist watch valued in
the amount of P385.00 that was snatched from his wrist by one of the robbers, besides his wallet
containing P264.00 in paper currency (tsn, p. 85 and p. 95, May 31, 1961). After the robbers left, the
inmates discovered the cash and some personal belongings in the total amount of P9,435.50 were
transported by the robbers (tsn, pp. 29-36, Oct. 23, 1961; tsn, pp. 120-125, June 13, 1961).

The accident having been reported, both the local police as well as the Philippine Constabulary
stationed in Iligan conducted their investigation. In the course of the investigation, members of the
Philippine Constabulary found a.30-caliber carbine with 4 magazines and a .45 caliber pistol well
wrapped in a banca at the shore behind the house of the accused Benjamin Lasponia This led to the
investigation of Lasponia who subsequently admitted the crime and pointed to his companions that
night. On September 18, 1960, Benjamin Lasponia signed a confession before Assistant Fiscal
Leonardo Magsalin, Exhibits B, B-1, B-2, and B3 at the PC headquarters in Iligan (pp. 1025-1028,
Vol. III Rec.). He confessed to the last detail his participation in the crime. On September 19, 1960,
the accused Leonide Cabual subscribed to an affidavit before the same Fiscal .Magsalin regarding
his participation and that of -his co-accused in the robbery of Kim San Milling in the early morning of
September 14, 1960, Exhibits C, C-1, C-2, C3 and C5 (pp. 1029-1034, Vol. III, Record (l). Ciriaco
Yangyang followed. He subscribed his confession before Special Counsel Dominador Padilla in the
Office of the City Fiscal of Iligan on September 26, 960, Exhibits H, H-1 and H2 (pp. 1036-1038, Vol.
III, Record, See complete testimony of Eustaquio Cabides, tsn, pp- 52-72, July 17, 1969).

On September 21, 1960, (1) Timoteo Cabural, alias Romeo alias Tiyoy (2) Benjamin Lasponia; (3) Leonide Cabual
alias Eddie; (4) Ciriaco Yangyang; (5) William Tate alias Negro; (6) Fausto Dacera and, (7) Alfonso Caloy-on alias
Pablo, were charged before the Court of First Instance of Lanao del Norte of the crime of Robbery in Band with
Rape, in an information filed by the City Fiscal of Iligan City. The crime charged was allegedly committed as follows:

That on or about September 14, 1960 in the City of Iligan Philippines, and within the jurisdiction of
this Honorable Court, the said accused, in company with one Fred Ybañez alias Godofredo Camisic
and one John Doe, who are still-at-large, conspiring and confederating together and mutually helping
one another, and armed with deadly weapons, all unlicensed, to wit: carbines, revolvers, tommy
guns, garand rifles and knives, did then and there willfully, unlawfully and feloniously, with intent of
gain and by means of violence against and intimidation of persons, and with the use of force upon
things, to wit: by passing through an opening not intended for entrance or egress, enter the main
building and office of the Kim San Milling Company, an inhabited building, and once inside, did then
and there willfully, unlawfully and feloniously take, steal, rob and carry away therefrom, the following
personal properties, to wit:

Cashmoney......................................................... P5,972.00

Wrist watch 'Technos'...................................... 100.00

Gold 20.00.
Ring............................................................

Sunglasses......................................................... 30.00

Four pieces of golden bracelets...................... 1,400.00

 Chinese gold ring with dark blue stone......... 90.00

One gold ring with brilliant stone................... 400.00

One Chinese gold necklace with red stone... 150.00

One pair of earrings Chinese gold with.........

red stone....................................................... 60.00

Three pairs of earrings with pearls................ 120.00

Four Chinese gold rings with stones of........

different colors................................................. 140.00

Sweepstakes tickets......................................... 45.00

One American gold Lady's ring.....................

with dark pink stone........................... 30.00

Four men's rings............................................... 32.00

One and a half dozens handkerchiefs.......... 34.50

Lady's wrist watch.......................................... 30.00

Three ladies watches...................................... 69.00

One men's watch............................................. 60.00

One Chinese gold necklace........................... 58.00

One Lady's wrist watch.................................. 15.00

One Chinese gold necklace........................... 58.00

One Men's wrist watch................................... 60.00

One Men's wrist watch 'Tugaris'................... 65.00

Knife.................................................................. 12.00

One Men's wrist watch...................................

'Omega' Seamaster........................................... 385.00

with a total value of P9,435.50, belonging to the Kim San Milling Company, Bebencio Palang,
Agapito Tan, Restituta Boisano Panchita Maghanoy, Catalina Boisano Pua Lim Pin and Sy Chua
Tian to the damage and prejudice of the said owners in the said sum of P9,435.50, Philippine
currency; and that on the occasion or by reason of the said robbery, the above-named accused
except William Tate alias Negro, conspiring and confederating together and mutually helping one
another, did then and there willfully, unlawfully and feloniously have carnal knowledge of one
Agripina Maglangit, a woman, by means of violence and intimidation and against her will.

Contrary to and in violation of Article 294 paragraph 2 of the Revised Penal Code as amended by
Republic Act No. 18 and Article 296 of the Revised Penal Code as amended by Republic Act No. 12,
Section 3, with the following aggravating circumstances, to wit: that the said offense was committed
during night time and by a band; that it was committed with the use of disguise; and that it was
committed with the use of a motor vehicle.
Upon arraignment, the defendants pleaded not guilty. However, during the course of the trial, three (3) of the
accused, namely: William Tate Fausto Dacera and Alfonso Caloy-on were dropped on petition of the City Fiscal and
trial proceeded against the four (4) remaining accused, namely: Timoteo Cabural, alias Romeo Cabural; Benjamin
Lasponia, Leonide Cabual and Ciriaco Yangyang. As aforesaid, Cabural, Lasponia, Cabual and Yangyang were
convicted. Benjamin Lasponia did not appeal; however, Cabural, Yangyang and Cabual did and claimed that the
trial court erred:

I.

IN HOLDING THAT THE AFFIDAVITS OR EXTRA-JUDICIAL CONFESSIONS OF ACCUSED

BENJAMIN LASPONIA, LEONIDE CABUAL, AND CIRIACO YANGYANG WHICH WERE NOT
OBTAINED THROUGH FORCE, VIOLENCE, INTIMIDATIONS AND THREATS AND SERIOUS
MALTREATMENTS ARE ADMISSIBLE AS EVIDENCE AND THEREFORE COULD BE A LEGAL
BASIS FOR THE CONVICTIONS OF ACCUSED.

II.

IN HOLDING THAT EVEN IF IN THE EXECUTION OF SAID AFFIDAVITS OF CONFESSIONS BY

THE THREE ACCUSED SOME PERSONAL INCONVENIENCE WERE MADE BY THE PC
SOLDIERS BUT BECAUSE THE CONTENTS OF SAID CONFESSIONS ARE TRUE SAID EXTRA-
JUDICIAL CONFESSIONS ARE ADMISSIBLE AS EVIDENCE AND COULD BE MADE A LEGAL,
BASIS FOR THE CONVICTIONS OF ALL ACCUSED.

III.

IN HOLDING THAT THE THREE EXTRA-JUDICIAL CONFESSIONS BY THREE ACCUSED BEING

INTERLOCKING CONFESSIONS IS ENOUGH AND SUFFICIENT TO SUSTAIN THEIR
CONVICTIONS ON PROOF BEYOND REASONABLE DOUBT;

IV.

IN HOLDING THAT THE THREE EXTRA-JUDICIAL CONFESSIONS OF THREE ACCUSED

INTERLOCKED WITH EACH OTHER EVEN IF INADMISSIBLE AS EVIDENCE BECAUSE
OBTAINED THROUGH FORCE, VIOLENCE, INTIMIDATION, ETC. IS ENOUGH TO SUSTAIN THE
CONVICTION OF ACCUSED TIMOTEO CABURAL BECAUSE HE WAS SUFFICIENTLY
IdENTIFIED BY VICTIM AGRIPINA MAGLANGIT AS HER RAPIST;

V.

IN HOLDING THAT THE PROSECUTION EVIDENCE FOR THE CONVICTIONS OF ACCUSED

REACHED THE LEGAL STANDARD OF PROOF BEYOND REASONABLE DOUBT AS REQUIRED
BY LAW.

On October 14, 1971, this Court granted the motion of Leonide Cabual to withdraw his appeal (p. 60, rollo).

Appellant Cabural declared that from 2:00 in the afternoon of September 13, 1960 to 3:00 in the early morning of
September 14, 1960, he was playing mahjong with Virginia Cruz Maruhom and one Gomer in the store of Ason in
Maigo, Lanao del Norte which is about 37 kilometers from Iligan City and would take about two (2) hours by us or
about one (1) hour by car to negotiate the distance between the two places; that he could not have been present at
complainant's place at 2:00 in the morning of September 14, 1960 when the robbery took place; that he was brought
to the Philippine Constabulary Headquarters in Iligan City by PC soldiers on September 15, 1960 and was subjected
to all kinds of torture; and that after he was severely maltreated, including the 7-Up treatment and threatened with
pistol, he was asked to sign an affidavit. Despite his insistence that he was innocent he was induced to sign a
statement after he was told: "if you obey us you may get free" and that "if you confess we will protect you."

Ciriaco Yangyang also denied participation in the commission of the crime considering that at that time he was in
Barrio Mentering attending the counting of votes for the muse of the barrio fiesta. He was reading the ballots cast for
each candidate at the microphone. It was only in the following morning of September 14, 1960 when he returned to
Maigo.

The Identity of appellant Timoteo Cabural as the rapist of Agripina Maglangit is established in the testimony of the
latter as follows:

Q After that man had told you that you would be separated from the rest, what
happened next, if any?

A I was brought outside.

Q What do you mean by 'outside?'

A I was brought outside of the office of the Kim San .

Q After you have been taken outside, what happened, if any?

A I was threatened and I was forced.

Q How were you threatened?

A He pointed to me his pistol and let me lie down.

Q This place where he threatened you and made you lie down outside, was this
place near to the place where you had slept?

A It is very far but it is within the compound of the Kim San

Q After he had threatened you and made you lie down, what, if any, did you do?

A He raised my skirt.

Q At the time he was raising your skirt, what was your position?

A I was lying down with face upward.

Q After he had raised your skirt, what happened next, if any?

A When my skirt was raised and since I have no more strength because (as
demonstrated by the witness), her laps were numb, he took off my pantie.

Q How did your laps happen to be numb?

A Because my laps were pushed so that I cannot move.

Q What particular part of your body did he push to numbness?

A My laps.

Q After he had taken off your pantie, what, if any, did he do?

A I feel that he had what he wants.

Q What do you mean by that?

 A To disgrace my honor.

Q How did he disgrace your honor?

A He had sexual intercourse.

Q How long did he have that sexual intercourse with you?

A I do not remember how long because of my fear.

Q Did he finish having sexual intercourse with you?

A Yes, sir.

Q After he had that sexual intercourse with you, what happened next, if any?

A (As demonstrated by th witness, her left Arm was pulled to stand up)

Q Were you able to stand up?

A Yes, sir.

Q After you have stood up, that man where, if any, did he go?

A I did not notice where the man go but I went back to our room.

Q Upon your arrival to your quarters, what, if any, did you do?

A I told my companions.

Q Who were they?

A They were Restituta Biosano, Pena Maglangit, Catalina Biosano

Q That man who had sexual intercourse with you, is he here now in the courtroom?

A Yes, sir.

Q Will you please point him out?

A (Witness went down from the stand and went to the accused seated in the
courtroom and pointed to the accused Timoteo Cabural). (tsn. pp. 32-35, May 29,
1961 hearing)

We agree with the lower court that Cabural alone was responsible for the rape on Agripina. There is no evidence
that his co-appellant Yangyang and the other malefactors made advances on her. Besides, the extra-judicial
confessions of Lasponia (Exhibits B, B-1, B-2 and B3 Leonide Cabual (Exhibits C, C-1 to C-5 and Ciriaco Yangyang
(Exhibits H, H-1 and H-2) point to appellant Cabural as the mastermind and the role each of them would play (as in
fact they did) in the commission of the crime. Their interlocking confessions indicate how they would go to the scene
of the crime, the manner by which they would enter into the premises of Kim San Milling Company and, as aptly
observed by the trial court, the details which only the participants could amply give.

Further, accused Cabual and Lasponia were sworn by Fiscal Leonardo Magsalin who instructed the PC
investigators to leave the room so that they (Cabual and Lasponia) would be able to speak their minds freely. Fiscal
Magsalin testified that said accused readily and without hesitation signed their respective extra-judicial confessions.
Finally, We find no merit in the alibis interposed by appellants Cabural and Yangyang. As pointed out by the Solicitor
General in his brief:

The fact that Cabural played mahjong with Virginia Cruz Maruhom and a certain Gomer at the store
of Ason in Barrio Maigo from 2:00 P.M. of September 13, 1960 to 3:00 A.M. of September 14, 1960
is no guarantee that he could not be at the scene of the crime (Kim San Milling Company, situated in
Palao a 37-kilometer stretch which could be negotiated in one hour by car (tsn., p. 8, Sept. 20,
1966). Considering the confessions of Lasponia, Cabual and Yangyang all pointing to Cabural as the
one in control of the vehicle utilized in the commission of the crime, the conclusion is not hard to
reach that his presence at the scene of the crime is much likelier than at Maigo.

Otherwise stated, appellants failed to show the plausibility and verity of their alibis and the crime is aggravated by
dwelling and nighttime.

As aforesaid, the trial court convicted Timoteo Cabural of the crime of robbery with rape, which is penalized by
Article 294(2) of the Revised Penal Code, by reclusion temporal medium to reclusion perpetua. Effective August 15,
1975 (or subsequent to this date), Presidential Decree No. 767 imposes the penalty of reclusion perpetua to death
"when the robbery accompanied with rape is committed with the use of a deadly weapon or by two or more persons.

In People vs. Perello, Jr., 111 SCRA 147, it was mentioned that "[t]he Chief Justice and the herein ponente (Justice
Ramon C. Aquino) are of the opinion that article 335 cannot be applied to robbery with rape and that that offense
should be penalized under article 294(2) in which case reclusion perpetua should be imposed. As the accused was
charged with a crime against property, he should not be convicted of a crime against chastity, a private offense.
(See People vs. Olden, L-27570-71, September 20, 1972, 47 SCRA 45)." However, also in the same case, "Justices
Teehankee, Barredo and Makasiar believe that article 335 should be applied to this case. (See People vs.
Carandang, L-310102, August 15, 1973, 52 SCRA 259, People vs. Mabag, L-38548, July 24, 1980, 98 SCRA 730;
People vs. Arias, L-40531, January 27, 1981, 102 SCRA 303; People vs. Boado, L- 44725, March 31, 1981, 103
SCRA 607; People vs. Canizares L- 32515, September 10, 1981; People vs. Pizarras L-35915, October 30, 1981).

The writer of this decision is of the opinion that in robbery with rape, the accused should be penalized under Article
294(2) of the Revised Penal Code because it is a crime against property and not a crime against chastity a private
offense.

WHEREFORE, the decision appealed from is hereby AFFIRMED in toto. With costs against both appellants.

SO ORDERED.

Aquino, Concepcion, Jr., Abad Santos, De Castro, Escolin, Vasquez and Gutierrez, Jr., JJ., concur.

Makasiar, J., accused Cabural should be sentenced to death under Art. 335, R. P.C.

Melencio-Herrera, J., I vote for the application of Art. 335 of the Revised Penal Code and. the imposition of the
death penalty.

Plana, J., is on leave

Separate Opinions

FERNANDO, C.J., concurring:

My concurrence in the opinion of the Court penned by Justice Relova is full, entire, and complete. Nonetheless, I
wish to express my gratification that this Court by a decisive vote 1 sustains the basic postulate in both civil law and
common law jurisdictions, expressed in the maximum Nullum crimen nulla poena sine lege. It is undoubted,
therefore, that unless there be a radical change in the thinking of the Court, it is Article 294(2) not Article 335 of the
Revised Penal Code that calls for application in the crime of robbery with rape. 2 As noted in the opinion of the Court
penned by Justice Aquino in People v. Perello: 3 "Effective August 15, 1975 (or subsequent to this case) Presidential
Decree No. 767 imposes the penalty of reclusion perpetua to death 'when the robbery accompanied with rape is
committed with the use of a deadly weapon or by two or more persons.' That increased penalty cannot be
retroactively applied to this case. 4 As such offense of robbery was committed before that date, it is Article 294(2),
before its amendment, that supplies the governing rule. The applicable law then is clear and explicit. It defined the
offense and prescribed the penalty. The doctrine announced in Lizarraga Hermanos v. Yap Tico 5 by Justice
Moreland, in categorical language comes to mind. Thus: "The first and fundamental duty of courts, in our judgment,
is to apply the law. Construction and interpretation come only after it has been demonstrated that application is
impossible or inadequate without them." 6 There is relevance too to this excerpt from Kapisanan ng mga
Manggagawa sa Manila Railroad Company Credit Union Inc. v. Manila Railroad Company: 7 "The applicable
provision of Republic Act. No. 2023 quoted earlier, speaks for itself. There is no ambiguity. As thus worded, it was
so applied. Petitioner-appellant cannot therefore raise any valid objection. For the lower court to view it otherwise
would have been to alter the law. That cannot be done by the judiciary. That is a function that properly appertains to
the legislative branch. 8

Nothing more appropriately appertains to the legislative branch than the definition of a crime and the prescription of
the penalty to be imposed. That is not a doctrine of recent vintage. It is traceable to United States v. Wiltberger, 9 an
1820 America. Supreme Court opinion. No less than the eminent Chief Justice Marshall spoke for the Court. To
quote his exact language: "The rule that penal laws are to be construed strictly is perhaps not much less old than
construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle
that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the
court, which is to define a crime, and ordain its punishment." 10 That ruling was followed in the Philippines in a 1906
decision, United States v. Almond. 11

So it has been in the Philippines since then. It was the same Justice Moreland who in United States v. Abad
Santos 12 promulgated in 1917, gave expression to a variation of such a fundamental postulate in this wise: "Criminal
statutes are to be strictly construed. No person should be brought within their terms who is not clearly within them,
nor should any act be pronounced criminal which is not clearly made so by the statute." 13 The same year, Justice
Carson in United States v. Estapia 14 in rejecting the contention that the application of a penal provision even if not
covered by its terms should be viewed by the judiciary as commendable, conducive as it is to the repression of a
reprehensible practice" pointed out: "To this it should be sufficient answer to say that neither the executive nor the
judicial authorities are authorized to impose fines and prison sentences in cases wherein such fines and prison
sentences are not clearly authorized by law, and this without regard to the end sought to be attained by the
enforcement of such unauthorized penalties."15

It is to be admitted that from the standpoint of logic alone, there is much to be said for the view that since rape under
certain circumstances is penalized with death, it is an affront to reason if robbery with rape carries with it a lesser
penalty. The latter offense is far more reprehensible, ergo it must be punished at least with equal if not more
severity. It is from that perspective that in People v. Carandang 16 while the penalty imposed is that of reclusion
perpetua there were two separate opinions one from Justice Teehankee and the other from the late Chief Justice,
then Justice, Castro. They would apply Article 335 of the Revised Penal Code. Retired Chief Justice Makalintal, now
Speaker of the Batasan Pambansa, then Acting Chief Justice, concurred in the separate opinion of the late Chief
Justice Castro. Less than a year before, however, in September of 1972, Carandang being a 1973 decision, he
penned the unanimous opinion in People v. Olden 17 affirming the joint judgment of a Court of First Instance of
Davao in two cases, one of which was robbery in band with multiple rape. It was not the death sentence that was
imposed but reclusion perpetua. 18 That case is certainly later than People v. Obtinalia 19 decided in April of 1971,
where, in a per curiam opinion, Article 335 of the Revised Penal Code was applied, although the offense for which
the accused were found guilty was robbery with rape. It is, therefore, re-assuring that with the decision of this case,
the uncertainty which has beclouded the issue of the appropriate imposable penalty has been removed.

One last word. The maximum Nullum crimen nulla poena sine lege has its roots in history. It is in accordance with
both centuries of civil law and common law tradition. Moreover, it is an indispensable coronary to a regime of liberty
enshrined in our Constitution. It is of the essence then that while anti-social acts should be penalized, there must be
a clear definition of the punishable offense as well as the penalty that may be imposed a penalty, to repeat, that can
be fixed by the legislative body, and the legislative body alone. So constitutionalism mandates, with its stress
on jurisdiction rather than guvernaculum.The judiciary as the dispenser of justice through law must be aware of the
limitation on its own power.

Such a concept calls for undiminished respect from the judiciary. For it is the department by which the other
branches are held to strict accountability. It sees to it, in propriate cases of course, that they are held within the
bounds of their authority. Certainly, the judiciary is not devoid of discretion., It can, to paraphrase Cardozo, fill in the
gap and clear the ambiguities. To that extent. it is free but, to recall Cardozo anew, it "is still not wholly free. [A
judge] is no to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own Ideal of beauty or
of goodness. He is to draw his inspiration from consecrated principles." 20

Tersely stated, the judiciary administers justice according to law. This is by no means to imply that in the case at
hand, justice according to law is at war with the concept of justice viewed from the layman's standpoint. The system
of criminal law followed in the Philippines, true to the ways of constitutionalism, has always leaned toward the milder
form of responsibility, whether as to the nature of the offense or the penalty to be incurred by the
wrongdoer. 21Where, as in this case, the law speaks in clear and categorical language, such a principle is impressed
with greater weight.

TEEHANKEE, J, concurring:

I concur with the judgment at bar which affirms the trial court's decision convicting the accused-appellant Timoteo
Cabural alone of the crime of robbery with rape and imposing upon him the proper penalty of reclusion
perpetua under Article 294, par. 2 of the the Revised Penal Code. The record and testimony of the victim of the rape
show quite clearly that Cabural alone was responsible for and committed the rape on the victim, so that his
companions were likewise properly sentenced for the crime of robbery alone. There is, therefore, no room for the
application of my separate opinions in the cited cases of Perello, Carandang, Mabag etc., that where robbery with
rape is committed but the rape is qualified by the use of a deadly weapon or is committed by two persons, either of
these two actors is singled out by the amendatory Act, R.A. 4111, as supplying the controlling qualification and
mandates he imposition of the death penalty for the crime of qualified rape under Art. 335 of the Penal Code (and
not the lesser penalty of perpetua under Art. 294 for the complex crime of robbery with rape).
 Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 180016 April 29, 2014

LITO CORPUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court, dated November 5,
2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside the Decision1 dated March 22, 2007 and
Resolution2 dated September 5, 2007 of the Court of Appeals (CA), which affirmed with modification the
Decision3 dated July 30, 2004 of the Regional Trial Court (RTC), Branch 46, San Fernando City, finding the
petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b)
of the Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in Olongapo City sometime in
1990. Private complainant was then engaged in the business of lending money to casino players and, upon hearing
that the former had some pieces of jewelry for sale, petitioner approached him on May 2, 1991 at the same casino
and offered to sell the said pieces of jewelry on commission basis. Private complainant agreed, and as a
consequence, he turned over to petitioner the following items: an 18k diamond ring for men; a woman's bracelet;
one (1) men's necklace and another men's bracelet, with an aggregate value of ₱98,000.00, as evidenced by a
receipt of even date. They both agreed that petitioner shall remit the proceeds of the sale, and/or, if unsold, to return
the same items, within a period of 60 days. The period expired without petitioner remitting the proceeds of the sale
or returning the pieces of jewelry. When private complainant was able to meet petitioner, the latter promised the
former that he will pay the value of the said items entrusted to him, but to no avail.

Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:

That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, after having received from one Danilo Tangcoy, one (1) men's
diamond ring, 18k, worth ₱45,000.00; one (1) three-baht men's bracelet, 22k, worth ₱25,000.00; one (1) two-baht
ladies' bracelet, 22k, worth ₱12,000.00, or in the total amount of Ninety-Eight Thousand Pesos (₱98,000.00),
Philippine currency, under expressed obligation on the part of said accused to remit the proceeds of the sale of the
said items or to return the same, if not sold, said accused, once in possession of the said items, with intent to
defraud, and with unfaithfulness and abuse of confidence, and far from complying with his aforestated obligation, did
then and there wilfully, unlawfully and feloniously misappropriate, misapply and convert to his own personal use and
benefit the aforesaid jewelries (sic) or the proceeds of the sale thereof, and despite repeated demands, the accused
failed and refused to return the said items or to remit the amount of Ninety- Eight Thousand Pesos (₱98,000.00),
Philippine currency, to the damage and prejudice of said Danilo Tangcoy in the aforementioned amount.

CONTRARY TO LAW.

On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty. Thereafter, trial on
the merits ensued.

The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo Tangcoy. On the other
hand, the defense presented the lone testimony of petitioner, which can be summarized, as follows:
Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged in the financing
business of extending loans to Base employees. For every collection made, they earn a commission. Petitioner
denied having transacted any business with private complainant.

However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was made to sign a blank
receipt. He claimed that the same receipt was then dated May 2, 1991 and used as evidence against him for the
supposed agreement to sell the subject pieces of jewelry, which he did not even see.

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the Information. The
dispositive portion of the decision states:

WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of Estafa under
Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;

there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the penalty imposable;

accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty consisting of an
imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2) MONTHS of Prision
Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of
Reclusion Temporal in its minimum period AS MAXIMUM; to indemnify private complainant Danilo Tangcoy the
amount of ₱98,000.00 as actual damages, and to pay the costs of suit.

SO ORDERED.

The case was elevated to the CA, however, the latter denied the appeal of petitioner and affirmed the decision of the
RTC, thus:

WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the RTC of San
Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the imposable prison term, such that
accused-appellant shall suffer the indeterminate penalty of 4 years and 2 months of prision correccional, as
minimum, to 8 years of prision mayor, as maximum, plus 1 year for each additional ₱10,000.00, or a total of 7 years.
The rest of the decision stands.

SO ORDERED.

Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present petition stating the
following grounds:

A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND APPRECIATION
BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE MERE
MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE RULE;

B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT THE
CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID NOT
CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE IN THAT -

1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT [PIECES OF] JEWELRY
SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;

2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE INFORMATION AS OF 05

JULY 1991 WAS MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE
COMPLAINANT WHICH WAS 02 MAY 1991;

C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT
DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF
SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT
THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH -

1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE INCIDENT;

2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE STRAIGHTFORWARD AND LOGICAL,

CONSISTENT WITH HUMAN EXPERIENCE;

3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS CASE;

4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.

In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the following counter-
arguments:

The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility.

The information was not defective inasmuch as it sufficiently established the designation of the offense and the acts
complained of.

The prosecution sufficiently established all the elements of the crime charged.

This Court finds the present petition devoid of any merit.

The factual findings of the appellate court generally 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
records, or that they are so glaringly erroneous as to constitute grave abuse of discretion.4 Petitioner is of the
opinion that the CA erred in affirming the factual findings of the trial court. He now comes to this Court raising both
procedural and substantive issues.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a receipt dated
May 2, 1991 marked as Exhibit "A" and its submarkings, although the same was merely a photocopy, thus, violating
the best evidence rule. However, the records show that petitioner never objected to the admissibility of the said
evidence at the time it was identified, marked and testified upon in court by private complainant. The CA also
correctly pointed out that petitioner also failed to raise an objection in his Comment to the prosecution's formal offer
of evidence and even admitted having signed the said receipt. The established doctrine is that when a party failed to
interpose a timely objection to evidence at the time they were offered in evidence, such objection shall be
considered as waived.5

Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed against him. He
contends that the Information does not contain the period when the pieces of jewelry were supposed to be returned
and that the date when the crime occurred was different from the one testified to by private complainant. This
argument is untenable. The CA did not err in finding that the Information was substantially complete and in
reiterating that objections as to the matters of form and substance in the Information cannot be made for the first
time on appeal. It is true that the gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph (b)
of the RPC is the appropriation or conversion of money or property received to the prejudice of the owner6 and that
the time of occurrence is not a material ingredient of the crime, hence, the exclusion of the period and the wrong
date of the occurrence of the crime, as reflected in the Information, do not make the latter fatally defective. The CA
ruled:

x x x An information is legally viable as long as it distinctly states the statutory designation of the offense and the
acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of Court provides that a complaint or
information is sufficient if it states the name of the accused;

the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the
name of the offended party; the approximate time of the commission of the offense, and the place wherein the
offense was committed. In the case at bar, a reading of the subject Information shows compliance with the foregoing
rule. That the time of the commission of the offense was stated as " on or about the fifth (5th) day of July, 1991" is
not likewise fatal to the prosecution's cause considering that Section 11 of the same Rule requires a statement of
the precise time only when the same is a material ingredient of the offense. The gravamen of the crime of estafa
under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is the appropriation or conversion of money or
property received to the prejudice of the offender. Thus, aside from the fact that the date of the commission thereof
is not an essential element of the crime herein charged, the failure of the prosecution to specify the exact date does
not render the Information ipso facto defective. Moreover, the said date is also near the due date within which
accused-appellant should have delivered the proceeds or returned the said [pieces of jewelry] as testified upon by
Tangkoy, hence, there was sufficient compliance with the rules. Accused-appellant, therefore, cannot now be
allowed to claim that he was not properly apprised of the charges proferred against him.7

It must be remembered that petitioner was convicted of the crime of Estafa under Article 315, paragraph 1 (b) of the
RPC, which reads:

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow.

1. With unfaithfulness or abuse of confidence, namely:

xxxx

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

The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other personal property is
received by the offender in trust, or on commission, or for administration, or under any other obligation involving the
duty to make delivery of, or to return the same; (b) that there be misappropriation or conversion of such money or
property by the offender or denial on his part of such receipt; (c) that such misappropriation or conversion or denial
is to the prejudice of another; and (d) that there is a demand made by the offended party on the offender.8

Petitioner argues that the last element, which is, that there is a demand by the offended party on the offender, was
not proved. This Court disagrees. In his testimony, private complainant narrated how he was able to locate petitioner
after almost two (2) months from the time he gave the pieces of jewelry and asked petitioner about the same items
with the latter promising to pay them. Thus:

PROS. MARTINEZ

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been finished on 5 July
1991, the question is what happens (sic) when the deadline came?

a I went looking for him, sir.

q For whom?

a Lito Corpuz, sir.

q Were you able to look (sic) for him?

a I looked for him for a week, sir.

q Did you know his residence?

a Yes, sir.

q Did you go there?

a Yes, sir.

q Did you find him?

a No, sir.

q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?

a Two times, sir.

q What did you talk (sic) to him?

a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him where the items are and he promised me
that he will pay these amount, sir.

q Up to this time that you were here, were you able to collect from him partially or full?

a No, sir.9

No specific type of proof is required to show that there was demand.10 Demand need not even be formal; it may be
verbal.11 The specific word "demand" need not even be used to show that it has indeed been made upon the person
charged, since even a mere query as to the whereabouts of the money [in this case, property], would be tantamount
to a demand.12 As expounded in Asejo v. People:13

With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa need not be
formal or written. The appellate court observed that the law is silent with regard to the form of demand in estafa
under Art. 315 1(b), thus:

When the law does not qualify, We should not qualify. Should a written demand be necessary, the law would have
stated so. Otherwise, the word "demand" should be interpreted in its general meaning as to include both written and
oral demand. Thus, the failure of the prosecution to present a written demand as evidence is not fatal.

In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the accused, we
held that the query was tantamount to a demand, thus:

x x x [T]he law does not require a demand as a condition precedent to the existence of the crime of embezzlement.
It so happens only that failure to account, upon demand for funds or property held in trust, is circumstantial evidence
of misappropriation. The same way, however, be established by other proof, such as that introduced in the case at
bar.14

In view of the foregoing and based on the records, the prosecution was able to prove the existence of all the
elements of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or on commission basis, as
shown in the receipt dated May 2, 1991 with an obligation to sell or return the same within sixty (60) days, if unsold.
There was misappropriation when petitioner failed to remit the proceeds of those pieces of jewelry sold, or if no sale
took place, failed to return the same pieces of jewelry within or after the agreed period despite demand from the
private complainant, to the prejudice of the latter.
Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the same is unmeritorious.
Settled is the rule that in assessing the credibility of witnesses, this Court gives great respect to the evaluation of the
trial court for it had the unique opportunity to observe the demeanor of witnesses and their deportment on the
witness stand, an opportunity denied the appellate courts, which merely rely on the records of the case.15 The
assessment by the trial court is even conclusive and binding if not tainted with arbitrariness or oversight of some fact
or circumstance of weight and influence, especially when such finding is affirmed by the CA.16 Truth is established
not by the number of witnesses, but by the quality of their testimonies, for in determining the value and credibility of
evidence, the witnesses are to be weighed not numbered.17

As regards the penalty, while this Court's Third Division was deliberating on this case, the question of the continued
validity of imposing on persons convicted of crimes involving property came up. The legislature apparently pegged
these penalties to the value of the money and property in 1930 when it enacted the Revised Penal Code. Since the
members of the division reached no unanimity on this question and since the issues are of first impression, they
decided to refer the case to the Court en banc for consideration and resolution. Thus, several amici curiae were
invited at the behest of the Court to give their academic opinions on the matter. Among those that graciously
complied were Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate
President, and the Speaker of the House of Representatives. The parties were later heard on oral arguments before
the Court en banc, with Atty. Mario L. Bautista appearing as counsel de oficio of the petitioner.

After a thorough consideration of the arguments presented on the matter, this Court finds the following:

There seems to be a perceived injustice brought about by the range of penalties that the courts continue to impose
on crimes against property committed today, based on the amount of damage measured by the value of money
eighty years ago in 1932. However, this Court cannot modify the said range of penalties because that would
constitute judicial legislation. What the legislature's perceived failure in amending the penalties provided for in the
said crimes cannot be remedied through this Court's decisions, as that would be encroaching upon the power of
another branch of the government. This, however, does not render the whole situation without any remedy. It can be
appropriately presumed that the framers of the Revised Penal Code (RPC) had anticipated this matter by including
Article 5, which reads:

ART. 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law,
and in cases of excessive penalties. - Whenever a court has knowledge of any act which it may deem proper to
repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief
Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be
made the subject of penal legislation.

In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement
as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the
degree of malice and the injury caused by the offense.18

The first paragraph of the above provision clearly states that for acts bourne out of a case which is not punishable
by law and the court finds it proper to repress, the remedy is to render the proper decision and thereafter, report to
the Chief Executive, through the Department of Justice, the reasons why the same act should be the subject of
penal legislation. The premise here is that a deplorable act is present but is not the subject of any penal legislation,
thus, the court is tasked to inform the Chief Executive of the need to make that act punishable by law through
legislation. The second paragraph is similar to the first except for the situation wherein the act is already punishable
by law but the corresponding penalty is deemed by the court as excessive. The remedy therefore, as in the first
paragraph is not to suspend the execution of the sentence but to submit to the Chief Executive the reasons why the
court considers the said penalty to be non-commensurate with the act committed. Again, the court is tasked to
inform the Chief Executive, this time, of the need for a legislation to provide the proper penalty.

In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in Article 5, the duty of
the court is merely to report to the Chief Executive, with a recommendation for an amendment or modification of the
legal provisions which it believes to be harsh. Thus:

This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is, that there can exist no
punishable act except those previously and specifically provided for by penal statute.
No matter how reprehensible an act is, if the law-making body does not deem it necessary to prohibit its perpetration
with penal sanction, the Court of justice will be entirely powerless to punish such act.

Under the provisions of this article the Court cannot suspend the execution of a sentence on the ground that the
strict enforcement of the provisions of this Code would cause excessive or harsh penalty. All that the Court could do
in such eventuality is to report the matter to the Chief Executive with a recommendation for an amendment or
modification of the legal provisions which it believes to be harsh.20

Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino and retired
Associate Justice Carolina C. Griño-Aquino, in their book, The Revised Penal Code,21 echoed the above-cited
commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be tempered with
mercy. Generally, the courts have nothing to do with the wisdom or justness of the penalties fixed by law. "Whether
or not the penalties prescribed by law upon conviction of violations of particular statutes are too severe or are not
severe enough, are questions as to which commentators on the law may fairly differ; but it is the duty of the courts to
enforce the will of the legislator in all cases unless it clearly appears that a given penalty falls within the prohibited
class of excessive fines or cruel and unusual punishment." A petition for clemency should be addressed to the Chief
Executive.22

There is an opinion that the penalties provided for in crimes against property be based on the current inflation rate or
at the ratio of ₱1.00 is equal to ₱100.00 . However, it would be dangerous as this would result in uncertainties, as
opposed to the definite imposition of the penalties. It must be remembered that the economy fluctuates and if the
proposed imposition of the penalties in crimes against property be adopted, the penalties will not cease to change,
thus, making the RPC, a self-amending law. Had the framers of the RPC intended that to be so, it should have
provided the same, instead, it included the earlier cited Article 5 as a remedy. It is also improper to presume why the
present legislature has not made any moves to amend the subject penalties in order to conform with the present
times. For all we know, the legislature intends to retain the same penalties in order to deter the further commission
of those punishable acts which have increased tremendously through the years. In fact, in recent moves of the
legislature, it is apparent that it aims to broaden the coverage of those who violate penal laws. In the crime of
Plunder, from its original minimum amount of ₱100,000,000.00 plundered, the legislature lowered it to
₱50,000,000.00. In the same way, the legislature lowered the threshold amount upon which the Anti-Money
Laundering Act may apply, from ₱1,000,000.00 to ₱500,000.00.

It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem to be excessive
compared to the proposed imposition of their corresponding penalties. In Theft, the provisions state that:

Art. 309. Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more
than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter
amount the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for
each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed
twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for
the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.

2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing stolen is
more than 6,000 pesos but does not exceed 12,000 pesos.

3. The penalty of prision correccional in its minimum and medium periods, if the value of the property stolen
is more than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of the
property stolen is over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.
 6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances
enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5
pesos. If such value exceeds said amount, the provision of any of the five preceding subdivisions shall be
made applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen
is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty
of earning a livelihood for the support of himself or his family.

In a case wherein the value of the thing stolen is ₱6,000.00, the above-provision states that the penalty is prision
correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months). Applying the
proposal, if the value of the thing stolen is ₱6,000.00, the penalty is imprisonment of arresto mayor in its medium
period to prision correccional minimum period (2 months and 1 day to 2 years and 4 months). It would seem that
under the present law, the penalty imposed is almost the same as the penalty proposed. In fact, after the application
of the Indeterminate Sentence Law under the existing law, the minimum penalty is still lowered by one degree;
hence, the minimum penalty is arresto mayor in its medium period to maximum period (2 months and 1 day to 6
months), making the offender qualified for pardon or parole after serving the said minimum period and may even
apply for probation. Moreover, under the proposal, the minimum penalty after applying the Indeterminate Sentence
Law is arresto menor in its maximum period to arresto mayor in its minimum period (21 days to 2 months) is not too
far from the minimum period under the existing law. Thus, it would seem that the present penalty imposed under the
law is not at all excessive. The same is also true in the crime of Estafa.23

Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the crime of Theft and the
damage caused in the crime of Estafa, the gap between the minimum and the maximum amounts, which is the
basis of determining the proper penalty to be imposed, would be too wide and the penalty imposable would no
longer be commensurate to the act committed and the value of the thing stolen or the damage caused:

I. Article 309, or the penalties for the crime of Theft, the value would be modified but the penalties are not changed:

1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to ₱2,200,000.00, punished by prision mayor

minimum to prision mayor medium (6 years and 1 day to 10 years).

2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punished by prision correccional

medium and to prision correccional maximum (2 years, 4 months and 1 day to 6 years).24

3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by prision correccional

minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months).

4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00, punishable by arresto mayor medium to prision
correccional minimum (2 months and 1 day to 2 years and 4 months).

5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by arresto mayor (1 month and 1 day to 6
months).

6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum to arresto mayor medium.

x x x x.

II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the penalties are not
changed, as follows:

1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to ₱2,200,000.00, punishable by prision

correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8 years).25
 2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punishable by prision
correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months).26

3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by arresto mayor maximum
to prision correccional minimum (4 months and 1 day to 2 years and 4 months).

4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor maximum (4 months and 1 day to 6
months).

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that the incremental
penalty provided under Article 315 of the RPC violates the Equal Protection Clause.

The equal protection clause requires equality among equals, which is determined according to a valid classification.
The test developed by jurisprudence here and yonder is that of reasonableness,27 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.28

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial distinctions as
₱10,000.00 may have been substantial in the past, but it is not so today, which violates the first requisite; the IPR
was devised so that those who commit estafa involving higher amounts would receive heavier penalties; however,
this is no longer achieved, because a person who steals ₱142,000.00 would receive the same penalty as someone
who steals hundreds of millions, which violates the second requisite; and, the IPR violates requisite no. 3,
considering that the IPR is limited to existing conditions at the time the law was promulgated, conditions that no
longer exist today.

Assuming that the Court submits to the argument of Dean Diokno and declares the incremental penalty in Article
315 unconstitutional for violating the equal protection clause, what then is the penalty that should be applied in case
the amount of the thing subject matter of the crime exceeds ₱22,000.00? It seems that the proposition poses more
questions than answers, which leads us even more to conclude that the appropriate remedy is to refer these matters
to Congress for them to exercise their inherent power to legislate laws.

Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the remedy is to go to
Congress. Thus:

xxxx

JUSTICE PERALTA:

Now, your position is to declare that the incremental penalty should be struck down as unconstitutional because it is
absurd.

DEAN DIOKNO:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.

JUSTICE PERALTA:

Then what will be the penalty that we are going to impose if the amount is more than Twenty-Two Thousand
(₱22,000.00) Pesos.
DEAN DIOKNO:

Well, that would be for Congress to ... if this Court will declare the incremental penalty rule unconstitutional, then
that would ... the void should be filled by Congress.

JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One Hundred Thousand (₱100,000.00) Pesos ...

DEAN DIOKNO:

Well, my presen ... (interrupted)

JUSTICE PERALTA:

For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-Two Thousand (₱22,000.00) Pesos
you were suggesting an additional penalty of one (1) year, did I get you right?

DEAN DIOKNO:

Yes, Your Honor, that is, if the court will take the route of statutory interpretation.

JUSTICE PERALTA:

Ah ...

DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of the law...

JUSTICE PERALTA:

But if we de ... (interrupted)

DEAN DIOKNO:

....then....

JUSTICE PERALTA:

Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix the amount ...

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand (₱22,000.00) Pesos.

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:
The Court cannot do that.

DEAN DIOKNO:

Could not be.

JUSTICE PERALTA:

The only remedy is to go to Congress...

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

... and determine the value or the amount.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two Thousand (₱22,000.00)
Pesos.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.

Thank you, Dean.

DEAN DIOKNO:

Thank you.

x x x x29

Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and unusual punishment.
Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal Supreme Court has expanded the
application of a similar Constitutional provision prohibiting cruel and unusual punishment, to the duration of the
penalty, and not just its form. The court therein ruled that three things must be done to decide whether a sentence is
proportional to a specific crime, viz.; (1) Compare the nature and gravity of the offense, and the harshness of the
penalty; (2) Compare the sentences imposed on other criminals in the same jurisdiction, i.e., whether more serious
crimes are subject to the same penalty or to less serious penalties; and (3) Compare the sentences imposed for
commission of the same crime in other jurisdictions.

However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what respondent
therein deemed cruel was the penalty imposed by the state court of South Dakota after it took into account the
latter’s recidivist statute and not the original penalty for uttering a "no account" check. Normally, the maximum
punishment for the crime would have been five years imprisonment and a $5,000.00 fine. Nonetheless, respondent
was sentenced to life imprisonment without the possibility of parole under South Dakota’s recidivist statute because
of his six prior felony convictions. Surely, the factual antecedents of Solem are different from the present
controversy.

With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the offense is high.
Nevertheless, the rationale for the imposition of a higher penalty against a domestic servant is the fact that in the
commission of the crime, the helper will essentially gravely abuse the trust and confidence reposed upon her by her
employer. After accepting and allowing the helper to be a member of the household, thus entrusting upon such
person the protection and safekeeping of the employer’s loved ones and properties, a subsequent betrayal of that
trust is so repulsive as to warrant the necessity of imposing a higher penalty to deter the commission of such
wrongful acts.

There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject matter of the
crime and which, by adopting the proposal, may create serious implications. For example, in the crime of
Malversation, the penalty imposed depends on the amount of the money malversed by the public official, thus:

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer who, by reason
of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or
misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such
public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of
such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two
hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the
amount involved is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more
than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter,
the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a
fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable,
upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or
property to personal use.

The above-provisions contemplate a situation wherein the Government loses money due to the unlawful acts of the
offender. Thus, following the proposal, if the amount malversed is ₱200.00 (under the existing law), the amount now
becomes ₱20,000.00 and the penalty is prision correccional in its medium and maximum periods (2 years 4 months
and 1 day to 6 years). The penalty may not be commensurate to the act of embezzlement of ₱20,000.00 compared
to the acts committed by public officials punishable by a special law, i.e., Republic Act No. 3019 or the Anti-Graft
and Corrupt Practices Act, specifically Section 3,31 wherein the injury caused to the government is not generally
defined by any monetary amount, the penalty (6 years and 1 month to 15 years)32 under the Anti-Graft Law will now
become higher. This should not be the case, because in the crime of malversation, the public official takes
advantage of his public position to embezzle the fund or property of the government entrusted to him.

The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or uninhabited) where
the value of the thing unlawfully taken and the act of unlawful entry are the bases of the penalty imposable, and
also, in Malicious Mischief, where the penalty of imprisonment or fine is dependent on the cost of the damage
caused.
In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing unlawfully taken,
as proposed in the ponencia, the sole basis of the penalty will now be the value of the thing unlawfully taken and no
longer the element of force employed in entering the premises. It may likewise cause an inequity between the crime
of Qualified Trespass to Dwelling under Article 280, and this kind of robbery because the former is punishable by
prision correccional in its medium and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not
exceeding ₱1,000.00 (₱100,000.00 now if the ratio is 1:100) where entrance to the premises is with violence or
intimidation, which is the main justification of the penalty. Whereas in the crime of Robbery with force upon things, it
is punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed without the
penalty of Fine despite the fact that it is not merely the illegal entry that is the basis of the penalty but likewise the
unlawful taking.

Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be imposed is arresto
mayor in its medium and maximum periods (2 months and 1 day to 6 months) if the value of the damage caused
exceeds ₱1,000.00, but under the proposal, the value of the damage will now become ₱100,000.00 (1:100), and still
punishable by arresto mayor (1 month and 1 day to 6 months). And, if the value of the damaged property does not
exceed ₱200.00, the penalty is arresto menor or a fine of not less than the value of the damage caused and not
more than ₱200.00, if the amount involved does not exceed ₱200.00 or cannot be estimated. Under the proposal,
₱200.00 will now become ₱20,000.00, which simply means that the fine of ₱200.00 under the existing law will now
become ₱20,000.00. The amount of Fine under this situation will now become excessive and afflictive in nature
despite the fact that the offense is categorized as a light felony penalized with a light penalty under Article 26 of the
RPC.33 Unless we also amend Article 26 of the RPC, there will be grave implications on the penalty of Fine, but
changing the same through Court decision, either expressly or impliedly, may not be legally and constitutionally
feasible.

There are other crimes against property and swindling in the RPC that may also be affected by the proposal, such
as those that impose imprisonment and/or Fine as a penalty based on the value of the damage caused, to wit:
Article 311 (Theft of the property of the National Library and National Museum), Article 312 (Occupation of real
property or usurpation of real rights in property), Article 313 (Altering boundaries or landmarks), Article 316 (Other
forms of swindling), Article 317 (Swindling a minor), Article 318 (Other deceits), Article 328 (Special cases of
malicious mischief) and Article 331 (Destroying or damaging statues, public monuments or paintings). Other crimes
that impose Fine as a penalty will also be affected, such as: Article 213 (Frauds against the public treasury and
similar offenses), Article 215 (Prohibited Transactions),

Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of accountable officer to render
accounts), Article 219 (Failure of a responsible public officer to render accounts before leaving the country).

In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are punishable by
special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential Decree No. 705, as
amended.34The law treats cutting, gathering, collecting and possessing timber or other forest products without
license as an offense as grave as and equivalent to the felony of qualified theft.35 Under the law, the offender shall
be punished with the penalties imposed under Articles 309 and 31036 of the Revised Penal Code, which means that
the penalty imposable for the offense is, again, based on the value of the timber or forest products involved in the
offense. Now, if we accept the said proposal in the crime of Theft, will this particular crime of Illegal Logging be
amended also in so far as the penalty is concerned because the penalty is dependent on Articles 309 and 310 of the
RPC? The answer is in the negative because the soundness of this particular law is not in question.

With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws, and other
related provisions of these laws affected by the proposal, a thorough study is needed to determine its effectivity and
necessity. There may be some provisions of the law that should be amended; nevertheless, this Court is in no
position to conclude as to the intentions of the framers of the Revised Penal Code by merely making a study of the
applicability of the penalties imposable in the present times. Such is not within the competence of the Court but of
the Legislature which is empowered to conduct public hearings on the matter, consult legal luminaries and who,
after due proceedings, can decide whether or not to amend or to revise the questioned law or other laws, or even
create a new legislation which will adopt to the times.

Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code. During the oral
arguments, counsel for the Senate informed the Court that at present, fifty-six (56) bills are now pending in the
Senate seeking to amend the Revised Penal Code,37 each one proposing much needed change and updates to
archaic laws that were promulgated decades ago when the political, socio-economic, and cultural settings were far
different from today’s conditions.

Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp legislative
powers by judicial legislation and that in the course of such application or construction, it should not make or
supervise legislation, or under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the law,
or give the law a construction which is repugnant to its terms.38 The Court should apply the law in a manner that
would give effect to their letter and spirit, especially when the law is clear as to its intent and purpose. Succinctly put,
the Court should shy away from encroaching upon the primary function of a co-equal branch of the Government;
otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by means of judicial
legislation.

Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be increased by
the Court when appropriate. Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand
pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall
be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court,
unless the deceased on account of permanent physical disability not caused by the defendant, had no
earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient who
is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may demand
support from the person causing the death, for a period not exceeding five years, the exact duration to be
fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand
moral damages for mental anguish by reason of the death of the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or compensation
to the victim for the damage or infraction that was done to the latter by the accused, which in a sense only covers
the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a person dies, in addition to the penalty of
imprisonment imposed to the offender, the accused is also ordered to pay the victim a sum of money as restitution.
Clearly, this award of civil indemnity due to the death of the victim could not be contemplated as akin to the value of
a thing that is unlawfully taken which is the basis in the imposition of the proper penalty in certain crimes. Thus, the
reasoning in increasing the value of civil indemnity awarded in some offense cannot be the same reasoning that
would sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the law only imposes a
minimum amount for awards of civil indemnity, which is ₱3,000.00. The law did not provide for a ceiling. Thus,
although the minimum amount for the award cannot be changed, increasing the amount awarded as civil indemnity
can be validly modified and increased when the present circumstance warrants it. Corollarily, moral damages under
Article 222039 of the Civil Code also does not fix the amount of damages that can be awarded. It is discretionary
upon the court, depending on the mental anguish or the suffering of the private offended party. The amount of moral
damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the award of civil indemnity.

In addition, some may view the penalty provided by law for the offense committed as tantamount to cruel
punishment. However, all penalties are generally harsh, being punitive in nature. Whether or not they are excessive
or amount to cruel punishment is a matter that should be left to lawmakers. It is the prerogative of the courts to apply
the law, especially when they are clear and not subject to any other interpretation than that which is plainly written.

Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that the incremental penalty
provision should be declared unconstitutional and that the courts should only impose the penalty corresponding to
the amount of ₱22,000.00, regardless if the actual amount involved exceeds ₱22,000.00. As suggested, however,
from now until the law is properly amended by Congress, all crimes of Estafa will no longer be punished by the
appropriate penalty. A conundrum in the regular course of criminal justice would occur when every accused
convicted of the crime of estafa will be meted penalties different from the proper penalty that should be imposed.
Such drastic twist in the application of the law has no legal basis and directly runs counter to what the law provides.
It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by the Ramos
Administration by virtue of Republic Act No. 765940 in December 1993. The said law has been questioned before this
Court. There is, arguably, no punishment more cruel than that of death. Yet still, from the time the death penalty was
re-imposed until its lifting in June 2006 by Republic Act No. 9346,41 the Court did not impede the imposition of the
death penalty on the ground that it is a "cruel punishment" within the purview of Section 19 (1),42 Article III of the
Constitution. Ultimately, it was through an act of Congress suspending the imposition of the death penalty that led to
its non-imposition and not via the intervention of the Court.

Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision of the law from
which the proper penalty emanates unconstitutional in the present action. Not only is it violative of due process,
considering that the State and the concerned parties were not given the opportunity to comment on the subject
matter, it is settled that the constitutionality of a statute cannot be attacked collaterally because constitutionality
issues must be pleaded directly and not collaterally,43 more so in the present controversy wherein the issues never
touched upon the constitutionality of any of the provisions of the Revised Penal Code.

Besides, it has long been held that the prohibition of cruel and unusual punishments is generally aimed at the form
or character of the punishment rather than its severity in respect of duration or amount, and applies to punishments
which public sentiment has regarded as cruel or obsolete, for instance, those inflicted at the whipping post, or in the
pillory, burning at the stake, breaking on the wheel, disemboweling, and the like. Fine and imprisonment would not
thus be within the prohibition.44

It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the
Constitution. The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.
Expressed in other terms, it has been held that to come under the ban, the punishment must be "flagrantly and
plainly oppressive," "wholly disproportionate to the nature of the offense as to shock the moral sense of the
community."45

Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our modern time.

The solution to the present controversy could not be solved by merely adjusting the questioned monetary values to
the present value of money based only on the current inflation rate. There are other factors and variables that need
to be taken into consideration, researched, and deliberated upon before the said values could be accurately and
properly adjusted. The effects on the society, the injured party, the accused, its socio-economic impact, and the
likes must be painstakingly evaluated and weighed upon in order to arrive at a wholistic change that all of us believe
should be made to our existing law. Dejectedly, the Court is ill-equipped, has no resources, and lacks sufficient
personnel to conduct public hearings and sponsor studies and surveys to validly effect these changes in our
Revised Penal Code. This function clearly and appropriately belongs to Congress. Even Professor Tadiar concedes
to this conclusion, to wit:

xxxx

JUSTICE PERALTA:

Yeah, Just one question. You are suggesting that in order to determine the value of Peso you have to take into
consideration several factors.

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

Per capita income.

PROFESSOR TADIAR:

Per capita income.

JUSTICE PERALTA:

Consumer price index.

PROFESSOR TADIAR:

Yeah.

JUSTICE PERALTA:

Inflation ...

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

... and so on. Is the Supreme Court equipped to determine those factors?

PROFESSOR TADIAR:

There are many ways by which the value of the Philippine Peso can be determined utilizing all of those economic
terms.

JUSTICE PERALTA:

Yeah, but ...

PROFESSOR TADIAR:

And I don’t think it is within the power of the Supreme Court to pass upon and peg the value to One Hundred
(₱100.00) Pesos to ...

JUSTICE PERALTA:

Yeah.

PROFESSOR TADIAR:

... One (₱1.00.00) Peso in 1930.

JUSTICE PERALTA:

That is legislative in nature.

PROFESSOR TADIAR:

That is my position that the Supreme Court ...

JUSTICE PERALTA:

Yeah, okay.

PROFESSOR TADIAR:
... has no power to utilize the power of judicial review to in order to adjust, to make the adjustment that is a power
that belongs to the legislature.

JUSTICE PERALTA:

Thank you, Professor.

PROFESSOR TADIAR:

Thank you.46

Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the role of the Court
is not merely to dispense justice, but also the active duty to prevent injustice. Thus, in order to prevent injustice in
the present controversy, the Court should not impose an obsolete penalty pegged eighty three years ago, but
consider the proposed ratio of 1:100 as simply compensating for inflation. Furthermore, the Court has in the past
taken into consideration "changed conditions" or "significant changes in circumstances" in its decisions.

Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the substance of a statute.
The issue is no different from the Court’s adjustment of indemnity in crimes against persons, which the Court had
previously adjusted in light of current times, like in the case of People v. Pantoja.47 Besides, Article 10 of the Civil
Code mandates a presumption that the lawmaking body intended right and justice to prevail.

With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues, all the proposals
ultimately lead to prohibited judicial legislation. Short of being repetitious and as extensively discussed above, it is
truly beyond the powers of the Court to legislate laws, such immense power belongs to Congress and the Court
should refrain from crossing this clear-cut divide. With regard to civil indemnity, as elucidated before, this refers to
civil liability which is awarded to the offended party as a kind of monetary restitution. It is truly based on the value of
money. The same cannot be said on penalties because, as earlier stated, penalties are not only based on the value
of money, but on several other factors. Further, since the law is silent as to the maximum amount that can be
awarded and only pegged the minimum sum, increasing the amount granted as civil indemnity is not proscribed.
Thus, it can be adjusted in light of current conditions.

Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC. The RTC
imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional in its medium period,
as minimum, to fourteen (14) years and eight (8) months of reclusion temporal in its minimum period, as maximum.
However, the CA imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional, as
minimum, to eight (8) years of prision mayor, as maximum, plus one (1) year for each additional ₱10,000.00, or a
total of seven (7) years.

In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People48 is highly instructive, thus:

With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:

ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow
shall be punished by:

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

The penalty prescribed by Article 315 is composed of only two, not three, periods, in which case, Article 65 of the
same Code requires the division of the time included in the penalty into three equal portions of time included in the
penalty prescribed, forming one period of each of the three portions. Applying the latter provisions, the maximum,
medium and minimum periods of the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years

Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days

Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49

To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión mayor minimum
should be divided into three equal portions of time each of which portion shall be deemed to form one period in
accordance with Article 6550 of the RPC.51 In the present case, the amount involved is ₱98,000.00, which exceeds
₱22,000.00, thus, the maximum penalty imposable should be within the maximum period of 6 years, 8 months and
21 days to 8 years of prision mayor. Article 315 also states that a period of one year shall be added to the penalty
for every additional ₱10,000.00 defrauded in excess of ₱22,000.00, but in no case shall the total penalty which may
be imposed exceed 20 years.

Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00 ceiling set by law, then, adding
one year for each additional ₱10,000.00, the maximum period of 6 years, 8 months and 21 days to 8 years of prision
mayor minimum would be increased by 7 years. Taking the maximum of the prescribed penalty, which is 8 years,
plus an additional 7 years, the maximum of the indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge against
petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision
correccional in its minimum and medium periods.

Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1 day to 4 years and
2 months.

One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking. The Court
should not pre-empt Congress and usurp its inherent powers of making and enacting laws. While it may be the most
expeditious approach, a short cut by judicial fiat is a dangerous proposition, lest the Court dare trespass on
prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito Corpuz is hereby
DENIED. Consequently, the Decision dated March 22, 2007 and Resolution dated September 5, 2007 of the Court
of Appeals, which affirmed with modification the Decision dated July 30, 2004 of the Regional Trial Court, Branch
46, San Fernando City, finding petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315,
paragraph (1), sub-paragraph (b) of the Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the
penalty imposed is the indeterminate penalty of imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS
and ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal as
maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the President of the
Republic of the Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the House of
Representatives.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 17584 March 8, 1922

THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellee,

vs.
GREGORIO SANTIAGO, defendant-appellant.

L. Porter Hamilton for appellant.

Acting Attorney-General Tuason for appellee.

ROMUALDEZ, J.:

Having caused the death of Porfirio Parondo, a boy 7 years old, by striking him with automobile that he was driving,
the herein appellant was prosecuted for the crime of homicide by reckless negligence and was sentenced to suffer
one year and one day of prision correccional, and to pay the costs of the trial.

Not agreeable with that sentence he now comes to this court alleging that the court below committed four errors, to
wit:

1. The trial court erred in not taking judicial notice of the fact that the appellant was being prosecuted in
conformity with Act No. 2886 of the Philippine Legislature and that the Act is unconstitutional and gave no
jurisdiction in this case.

2. The lower court erred in not dismissing the complaint after the presentation of the evidence in the case, if
not before, for the reason that said Act No. 2886 is unconstitutional and the proceedings had in the case
under the provisions of the Act constitute a prosecution of appellant without due process of law.

3. The court a quo erred in not finding that it lacked jurisdiction over the person of the accused and over the
subject- matter of the complaint.

4. The trial court erred in finding the appellant guilty of the crime charged and in sentencing him to one year
and one day of prison correccional and to the payment of costs.

With regard to the questions of fact, we have to say that we have examined the record and find that the conclusions
of the trial judge, as contained in his well-written decision, are sufficiently sustained by the evidence submitted.

The accused was driving an automobile at the rate of 30 miles an hour on a highway 6 meter wide, notwithstanding
the fact that he had to pass a narrow space between a wagon standing on one side of the road and a heap of
stones on the other side where the were two young boys, the appellant did not take the precaution required by the
circumstances by slowing his machine, and did not proceed with the vigilant care that under the circumstances an
ordinary prudent man would take in order to avoid possible accidents that might occur, as unfortunately did occur,
as his automobile ran over the boy Porfirio Parondo who was instantly killed as the result of the accident.

These facts are so well established in the records that there cannot be a shade of doubt about them.

Coming now to the other assignments of error, it will be seen that they deal with the fundamental questions as to
whether or not Act No. 2886, under which the complaint in the present case was filed, is valid and constitutional.

This Act is attacked on account of the amendments that it introduces in General Orders No. 58, the defense arguing
that the Philippine Legislature was, and is, not authorized to amend General Orders No. 58, as it did by amending
section 2 thereof because its provisions have the character of constitutional law. Said section 2 provides as follows:
 All prosecutions for public offenses shall be in the name of the United States against the persons charged
with the offenses. (G. O. No. 58, sec. 2 ).

Act No. 2886, which amends it, by virtue of which the People of the Philippine Island is made the plaintiff in this
information, contains the following provisions in section 1:

SECTION 1. Section two of General Orders, Numbered Fifty-eight, series of nineteen hundred, is hereby
amended to read as follows:

"SEC. 2. All prosecutions for public offenses shall be in the name of the People of the Philippine
Islands against the persons charged with the offense."

Let us examine the question.

For practical reasons, the procedure in criminal matters is not incorporated in the Constitutions of the States, but is
left in the hand of the legislatures, so that it falls within the realm of public statutory law.

As has been said by Chief Justice Marshall:

A constitution, to contain an accurate detail of all the Subdivisions of which its great powers will admit, and
of all the means by which they may be carried into execution, would partake of a prolixity of a legal code,
and could scarcely be embraced by the human mind. It would probably never be understood by the public.
(M'Culloch vs. Maryland [1819], 4 Wheat., 316, 407; 4 L. ed., 579.)

That is why, in pursuance of the Constitution of the United States, each States, each State has the authority, under
its police power, to define and punish crimes and to lay down the rules of criminal procedure.

The states, as a part of their police power, have a large measure of discretion in creating and defining
criminal offenses. . . .

A Statute relating to criminal procedure is void as a denial of the equal protection of the laws if it prescribes
a different procedure in the case of persons in like situation. Subject to this limitation, however, the
legislature has large measure of discretion in prescribing the modes of criminal procedure. . . . (12 C.J.,
1185, 1186. See Collins vs. Johnston, 237 U.S., 502; 35 s. Ct. Rep. 649; 59 L. ed., 1071; Shevlin-Carpenter
Co. vs. Minnesota, 218 U.S., 57; 30 S. Ct. Rep., 663; 54 L. ed., 930; Lynn vs. Flancders, 141 Ga., 500; 81
S.E., 205.)

This power of the States of the North American Union was also granted to its territories such as the Philippines:

The plenary legislative power which Congress possesses over the territories and possessions of the United
States may be exercised by that body itself, or, as is much more often the case, it may be delegated to a
local agency, such as a legislature, the organization of which proceeds upon much the same lines as in the
several States or in Congress, which is often taken as a model, and whose powers are limited by the
Organic Act; but within the scope of such act is has complete authority to legislate, . . . and in general, to
legislate upon all subjects within the police power of the territory. (38 Cyc., 205-207.)

The powers of the territorial legislatures are derived from Congress. By act of Congress their power extends
"to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States;" and
this includes the power to define and punish crimes. (16 C. J., 62.)

And in the exercise of such powers the military government of the army of occupation, functioning as a territorial
legislature, thought it convenient to establish new rules of procedure in criminal matters, by the issuance of General
Orders No. 58, the preamble of which reads:

In the interests of justice, and to safeguard the civil liberties of the inhabitants of these Islands, the criminal
code of procedure now in force therein is hereby amended in certain of its important provisions, as indicated
in the following enumerated sections. (Emphasis ours.)
Its main purpose is, therefore, limited to criminal procedure and its intention is to give to its provisions the effect of
law in criminal matters. For that reason it provides in section 1 that:

The following provisions shall have the force and effect of law in criminal matters in the Philippine Islands
from and after the 15th day of May, 1900, but existing laws on the same subjects shall remain valid except in
so far as hereinafter modified or repealed expressly or by necessary implication.

From what has been said it clearly follows that the provisions of this General Order do not the nature of
constitutional law either by reason of its character or by reason of the authority that enacted it into law.

It cannot be said that it has acquired this character because this order was made its own by the Congress of the
United States for, as a mater of fact, this body never adopted it as a law of its own creation either before the
promulgation of Act No. 2886, herein discussed, or, to our knowledge, to this date.

Since the provisions of this General Order have the character of statutory law, the power of the Legislature to
amend it is self-evident, even if the question is considered only on principle. Our present Legislature, which has
enacted Act No. 2886, the subject of our inquiry, is the legal successor to the Military Government as a legislative
body.

Since the advent of the American sovereignty in the Philippines the legislative branch of our government has
undergone transformations and has developed itself until it attained its present form. Firstly, it was the Military
Government of the army of occupation which, in accordance with international law and practice, was vested with
legislative functions and in fact did legislate; afterwards, complying with the instructions of President McKinley which
later were ratified by Congress (sec. 1 of the Act of July 1, 1902) the legislative powers of the Military Government
were transferred to the Philippine Commission; then, under the provisions of section 7 of the Act of Congress of July
1, 1902, the Philippine Assembly was created and it functioned as a colegislative body with the Philippine
Commission. Finally, by virtue of the provisions of sections 12 of the Act of Congress of August 29, 1916, known as
the Jones Law, the Philippine Commission gave way to the Philippine Senate, the Philippine Assembly became the
House of Representatives, and thus was formed the present Legislature composed of two Houses which has
enacted the aforesaid Act No. 2886.

As a matter of fact, Act No. 2886 is not the first law that amends General Orders No. 58. The Philippine
Commission, at various times, had amended it by the enactment of laws among which we may cite Act No. 194,
regarding preliminary investigation, Act No. 440 relating to counsels de oficio and Act No. 590 about preliminary
investigations by justices of the peace of provincial capitals. Later on, and before the enactment of Act No. 2886,
herein controverted, the Legislature had also amended this General Orders No. 58 by the enactment of Act No.
2677 regarding appeals to the Supreme Court of causes originating in the justice of the peace courts and by Act No.
2709 which deals with the exclusion of accused persons from the information in order to be utilized as state's
witnesses.

These amendments repeatedly made by the Philippine Commission as well as by our present Legislature are
perfectly within the scope of the powers of the said legislative bodies as the successors of the Military Government
that promulgated General Orders No. 58.

No proof is required to demonstrate that the present Legislature had, and had, the power to enact and amend laws.
(U.S. vs. Bull. 15 Phil., 7.) That it has the power to legislate on criminal matters is very evident from the wording of
section 7 of the Jones Law which says:

That the legislative authority herein provided shall have power, when not inconsistent with this Act, by due
enactment to amend, alter, modify, or repeal any law, civil or criminal, continued in force by this Act as it
may from time to time see fit.

It is urged the right to prosecute and punish crimes is an attributed of sovereignty. This assertion is right; but it is
also true that by reason of the principle of territoriality as applied in the supression, of crimes, such power is
delegated to subordinate government subdivisions such as territories. As we have seen in the beginning, the
territorial legislatures have the power to define and punish crimes, a power also possessed by the Philippine
Legislature by virtue of the provisions of sections 7, already quoted, of the Jones Law. These territorial governments
are local agencies of the Federal Government, wherein sovereignty resides; and when the territorial government of
the Philippines prosecutes and punishes public crimes it does so by virtue of the authority delegated to it by the
supreme power of the Nation.

This delegation may be made either expressly as in the case of the several States of the Union and incorporated
territories like Porto Rico and Hawaii, or tacitly as is the case with the Philippines, which is an organized territory
though not incorporated with the Union. (Malcolm, Philippine Constitutional Law, 181-205.)

This tacit delegation to our Government needs no demonstration. As a matter of fact, the crimes committed within
our territory, even before section 2 of General Orders No. 58 was amended, were prosecuted and punished in this
jurisdiction as is done at present; but then as now the repression of crimes was done, and is still done, under the
sovereign authority of the United States, whose name appears as the heading in all pleadings in criminal causes
and in other judicial papers and notarial acts.

The use of such a heading is prescribed for civil cases in form 1 of section 784 of the Code of Civil Procedure; in
criminal causes the constant practice followed in this jurisdiction established its use; and in notarial matters its use is
provided by section 127 of Act No. 496. This long continued practice in criminal matters and the legal provision
relating to civil cases and notarial acts have not been amended by any law, much less by Act No. 2886, the subject
of the present inquiry.

There is not a single constitutional provision applicable to the Philippines prescribing the name to be used as party
plaintiff in criminal cases.

The fact that the political status of this country is as yet undetermined and in a transitory stage, is, in our opinion,
responsible for the fact that there is no positive provision in our constitutional law regarding the use of the name of
the People of the Philippine Islands, as party plaintiff, in criminal prosecutions, as is otherwise the case in the
respective constitutional charters of the States of the Union and incorporated territories — a situation which must not
be understood as depriving the Government of the Philippines of its power, however delegated, to prosecute public
crimes. The fact is undeniable that the present government of the Philippines, created by the Congress of the United
States, is autonomous.

This autonomy of the Government of the Philippines reaches all judicial actions, the case at bar being one of them;
as an example of such autonomy, this Government, the same as that of Hawaii and Porto Rico (People of Porto
Rico vs. Rosaly y Castillo [1913], 227 U.S., 270; 57 L. ed., 507; 33 Sup. Ct. Rep., 352) cannot be sued without its
consent. (Merritt vs. Government of the Philippine Islands, 34 Phil., 311; L. S. Moon & Co. vs. Harrison, p. 27, ante.)
The doctrine, laid down in these cases, acknowledges the prerogative of personality in the Government of the
Philippines, which, if it is sufficient to shield it from any responsibility in court in its own name unless it consents
thereto, it should be also, as sufficiently authoritative in law, to give that government the right to prosecute in court in
its own name whomsoever violates within its territory the penal laws in force therein.

However, limiting ourselves to the question relative to the form of the complaint in criminal matters, it is within the
power of the Legislature to prescribe the form of the criminal complaint as long as the constitutional provision of the
accused to be informed of the nature of the accusation is not violated.

Under the Constitution of the United States and by like provisions in the constitutions of the various states,
the accused is entitled to be informed of the nature and cause of the accusation against him . . .

It is within the power of the legislatures under such a constitutional provision to prescribe the form of the
indictment or information, and such form may omit averments regarded as necessary at common law. (22
Cyc., 285.)

All these considerations a priori are strengthened a posteriori by the important reason disclosed by the following fact
— that the Congress has tacitly approved Act No. 2886. Both the Act of Congress of July 1, 1902, section 86, and
the Jones Law, last paragraph of section 19, provide that all the laws enacted by the Government of the Philippines
or its Legislature shall be forwarded to the Congress of the United States, which body reserves the right and power
to annul them. And presuming, as legally we must, that the provisions of these laws have been complied with, it is
undisputed that the Congress of the United States did not annul any of those acts already adverted to — Nos. 194,
440, 490 (of the Philippine Commission), and 2677, 2709 and the one now in question No. 2886 (of the present
Legislature) — all of which were amendatory of General Orders No. 58. The Act now under discussion (No. 2886)
took effect on February 24, 1920, and the criminal complaint in this case was filed on May 10, 1920. The silence of
Congress regarding those laws amendatory of the said General Order must be considered as an act of approval.

If Congress fails to notice or take action on any territorial legislation the reasonable inference is that it
approves such act. (26 R.C.L., 679; vide Clinton vs. Englebrcht, 13 Wall., 434; 20 [L. ed.] 659; Tiaco vs.
Forbes, 228 U.S., 549; 33 S. Ct. Rep., 585; 57 [L. ed.], 960; Nixon vs. Reid, 8 S.d., 507; 67 N.W., 57; 32
L.R.A., 315.)

Furthermore, supposing for the sake of argument, that the mention of the People of the Philippine Islands as plaintiff
in the title of the information constitutes a vice or defect, the same is not fatal when, as in the present case, it was
not objected to in the court below.

An indictment must, in many states under express statutory or constitutional provision, show by its title or by
proper recitals in the caption or elsewhere that the prosecution is in the name and by the authority of the
state, the commonwealth, or the people of the state, according to the practice in the particular jurisdictions;
but omissions or defects in this respect may be supplied or cured by other parts of the records, and the
omissions of such a recital or defects therein, even when required by the constitution or by statute, is a
defect of form within a statute requiring exceptions for defect of form to be made before trial. (23 Cyc., 237,
238.)

We hold that the provisions of sections 2 of General Orders No. 58, as amended by Act No. 2886, do not partake of
the same character as the provisions of a constitution; that the said Act No. 2886 is valid and is not violative of any
constitutional provisions and that the court a quo did not commit any of the errors assigned.

The sentence appealed from is hereby affirmed, the appellant being furthermore sentenced to the accessory
penalties prescribed in article 61 of the Penal Code, and to indemnify the heirs of the deceased in the sum of
P1,000 and to the payment of the costs of both instances. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña and Villamor, JJ., concur.

Ostrand and Johns, JJ., concur in the result.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-11676 October 17, 1916

THE UNITED STATES, plaintiff-appellee,

vs.
ANDRES PABLO, defendant-appellant.

Alfonso E. Mendoza for appellant.

Attorney-General Avanceña for appellee.

TORRES, J.:

At about noon of the 21st of October, 1915, Andres Pablo, a policeman of the municipality of Balanga, went by order
of his chief to the barrio of Tuyo to raid a jueteng game which, according to the information lodged, was being
conducted in that place; but before the said officer arrived there the players, perhaps advised of his approach by a
spy, left and ran away; however, on his arrival at a vacant lot the defendant there found Francisco Dato and, at a
short distance away, a low table. After a search of the premises he also found thereon a tambiolo (receptacle) and
37 bolas (balls). Notwithstanding that the officer had seen the men Maximo Malicsi and Antonio Rodrigo leave the
said lot, yet, as at first he had seen no material proof that the game was being played, he refrained from arresting
them, and on leaving the place only arrested Francisco Daro, who had remained there.

In reporting to his chief what had occurred, the policeman presented a memorandum containing the following
statement: "In the barrio of Tuyo I raided a jueteng na bilat game, seized a tambiolo and bolas, and saw
the cabecillas Maximo MAlicsi and Antonio Rodrigo and the gambler Francisco Dato. I saw the
two cabecillas escape."

In consequence, chief of police Jose D. Reyes, on October 22, 1915, filed a complaint in the court of justice of the
peace charging the said Rodrigo, Malicsi, and Dato with having gambled at jueteng, in violation of municipal
ordinance No. 5. As a result of this complaint the accused were arrested, but were afterwards admitted to bail.

At the hearing of the case Francisco Dato pleaded guilty. The other two accused, Maximo Malicsi and Antonio
Rodrigo, pleaded not guilty; therefore, during the trial the chief of police presented the memorandum exhibited by
the policeman Andres Pablo, who testified under oath that on the date mentioned he and Tomas de Leon went to
the said barrio to raid a jueteng game, but that before they arrived there they saw from afar that some persons
started to run toward the hills; that when witness and his companion arrived at a vacant lot they saw Francisco Dato
and a low table there, and the table caused them to suspect that a jueteng game was being carried on; that in fact
they did find on one side of the lot a tambiolo and 37 bolas, but that they did not see the accused Rodrigo and
Malicsi on the said lot, nor did they see them run; and that only afterwards did the witness learn that these latter
were the cabecillas or ringleaders in the jueteng game, from information given him by an unknown person. In view of
this testimony by the police officer who made the arrest and of the other evidence adduced at the trial the court
acquitted the defendants Antonio Rodrigo and Maximo Malicsi and sentenced only Francisco Dato, as a gambler.

Before the case came to trial in the justice of the peace court the policeman Andres Pablo had an interview and
conference with the accused Malicsi and ROdrigo in the house of Valentin Sioson. On this occasion he was
instructed not to testify against Malicsi and Rodrigo, and in fact received through Gregorio Ganzon the sum of P5.

By reason of the foregoing and after making a preliminary investigation the provincial fiscal, on December 1, 1915,
filed an information in the Court of First Instance of Bataan charging Andres Pablo with the crime of perjury, under
the provisions of section 3 of Act No. 1697. The following is an extract from the complaint:
 That on or about November 6, 1915, in the municipality of Balanga, Bataan, P.I., and within the jurisdiction
of this court, the said accused, Andres Pablo, during the hearing in the justice of the peace court of Balanga
of the criminal cause No. 787, entitled the United States vs. Antonio Rodrigo and Maximo Malicsi, for
violation of Municipal Ordinance No. 5 of the municipality of Balanga, did, willfully, unlawfully and feloniously
affirm and swear in legal form before the justice of the peace court as follow: `We did not there overtake the
accused Antonio Rodrigo and Maximo Malicsi, nor did we even see them run,' the said statement being
utterly false, as the accused well knew that it was, and material to the decision of the said criminal cause No.
787, United States vs. Antonio Rodrigo and Maximo Malicsi. An act committed with violation of law.

The case came to trial and on December 28, 1915, the court rendered judgment therein sentencing the defendant to
the penalty of two years' imprisonment, to pay a fine of P100 and, in case of insolvency, to the corresponding
subsidiary imprisonment, and to pay the costs. The defendant was also disqualified from thereafter holding any
public office and from testifying in the courts of the Philippine Islands until the said disqualification should be
removed. From this judgment he appealed.

Francisco Dato, on testifying as a witness, said that when the policemen Andres Pablo and Tomas de Leon arrived
at the place where the jueteng was being played, they found the defendant gamblers, Malicsi and Rodrigo; that,
prior to the hearing of the case in the justice of the peace court, Malicsi and Rodrigo ordered him to call Andres
Pablo, who, together with witness, went to the house of Valentin Sioson, where they held a conference; that witness
pleaded guilty in the justice of the peace court, in fulfillment of his part of an agreement made between himself and
his two coaccused, Malicsi and Rodrigo, who promised him that they would support his family during the time he
might be a prisoner in jail; that Andres Pablo did not know that they were gamblers, because he did not find them in
the place where the game was in progress, but that when witness was being taken to the municipal building by the
policemen he told them who the gamblers were who had run away and whom Andres Pablo could have seen.

Maximo Malicsi corroborated the foregoing testimony and further stated that, on the arrival of the policemen who
made the arrest and while they were looking for the tambiolo, he succeeded in escaping; that Andres Pablo had
known him for a long time and could have arrested him had he wished to do so; that prior to the hearing he and his
codefendants, ROdrigo and Dato, did in fact meet in the house of Valentin Sioson, on which occasion they agreed
that they would give the policemen Andres Pablo P20, provided witness and Rodrigo were excluded from the
charge; and that only P15 was delivered to the said Pablo, through Gregorio Ganzon. This statement was
corroborated by the latter, though he said nothing about what amount of money he delivered to the policeman
Pablo.

The defendant Andres Pablo testified under oath that, on his being asked by the justice of the peace how he could
have seen Maximo Malicsi and Antonio Rodrigo, he replied that he did not see them at the place where the game
was being conducted nor did he see them run away from there, for he only found the table, the tambiolo, the bolas,
and Francisco Dato; that he did not surprise the game because the players ran away before he arrived on the lot
where, after fifteen minutes' search, he found only the tambiolo and the bolas; that on arriving at the place where the
game was played, they found only Francisco Dato and some women in the Street, and as Dato had already gone
away, witness' companion, the policeman Tomas de Leon, got on his bicycle and went after him; and that he found
the tambiolo at a distance of about 6 meters from a low table standing on the lot.

From the facts above related, it is concluded that the defendant Andres Pablo, who pleaded not guilty, falsely
testified under oath in the justice of the peace court of Balanga, Bataan, in saying he had not seen the alleged
gamblers Maximo Malicsi and Antonio Rodrigo in the place where, according to the complaint filed, the game of
jueteng was being played and where the defendant and his companion, the policeman Tomas de Leon, had found a
table, tambiolo and bolas, used in the game of jueteng, while it was proved at the trial that he did not them and did
overtake them while they were still in the place where the game was being played. But notwithstanding his having
seen them there, upon testifying in the cause prosecuted against these men and another for gambling, he stated
that he had not seen them there, knowing that he was not telling the truth and was false to the oath he had taken,
and he did so willfully and deliberately on account of his agreement with the men, Malicsi and Rodrigo, and in
consideration of a bribe of P15 which he had received in payment for his false testimony he afterwards gave.

Francisco Dato and Gregorio Ganzon corroborated the assertion that the policeman Andres Pablo undertook to
exclude the gamblers, Malicsi and Rodrigo, from the charge and from his testimony in consideration for P15 which
he received through Gregorio Ganzon.
Andres Pablo was charged with the crime of perjury and was afterwards convicted under Act No. 1697, which
(according to the principle laid down by this court in various decisions that are already well-settled rules of law)
repealed the provisions contained in articles 318 to 324 of the Penal Code relative to false testimony.

By the second paragraph of the final section of the last article of the Administrative Code, or Act No. 2657, there
was repealed, among the other statutes therein mentioned, the said Act No. 1697 relating to perjury, and the
repealing clause of the said Administrative Code does not say under what other penal law in force the crime of false
testimony, at least, if not that of perjury, shall be punished.

Under these circumstances, may the crime of perjury or of false testimony go unpunished, and is there no penal
sanction whatever in this country for this crime? May the truth be freely perverted in testimony given under oath and
which, for the very reason that it may save a guilty person from punishment, may also result in the conviction and
punishment of an innocent person? If all this is not possible and is not right before the law and good morals in a
society of even mediocre culture, it must be acknowledged that it is imperatively necessary to punish the crime of
perjury or of false testimony — a crime which can produce incalculable and far-reaching harm to society and cause
infinite disturbance of social order.

The right of prosecution and punishment for a crime is one of the attributes that by a natural law belongs to the
sovereign power instinctively charged by the common will of the members of society to look after, guard and defend
the interests of the community, the individual and social rights and the liberties of every citizen and the guaranty of
the exercise of his rights.

The power to punish evildoers has never been attacked or challenged, as the necessity for its existence has been
recognized even by the most backward peoples. At times the criticism has been made that certain penalties are
cruel, barbarous, and atrocious; at other, that they are light and inadequate to the nature and gravity of the offense,
but the imposition of punishment is admitted to be just by the whole human race, and even barbarians and savages
themselves, who are ignorant of all civilization, are no exception. lawphil.net

Notwithstanding that the said Act No. 1697 (which, as interpreted by this court in its decisions, was deemed to have
repealed the aforementioned article of the Penal Code relating to false testimony, comprised within the term of
perjury) did not expressly repeal the said articles of the Penal Code; and as the said final article of the
Administrative Code, in totally repealing Act No. 1697, does not explicitly provide that the mentioned articles of the
Penal Code are also repealed, the will of the legislation not being expressly and clearly stated with respect to the
complete or partial repeal of the said articles of the Penal Code, in the manner that it has totally repealed the said
Act No. 1697 relating its perjury; and, furthermore, as it is imperative that society punish those of its members who
are guilty of perjury or false testimony, and it cannot be conceived that these crimes should go unpunished or be
freely committed without punishment of any kind, it must be conceded that there must be in this country some prior,
preexistent law that punishes perjury or false testimony.

There certainly are laws which deal with perjury or false testimony, like Law 7 et seq. of Title 2, third Partida.

However, since the Penal Code went into force, the crime of false testimony has been punished under the said
articles of the said Code, which as we have already said, have not been specifically repealed by the said Act No.
1697, but since its enactment, have not been applied, by the mere interpretation given to them by this court in its
decisions; yet, from the moment that Act was repealed by the Administrative Code, the needs of society have made
it necessary that the said articles 318 to 324 should be deemed to be in force, inasmuch as the Administrative Code,
in repealing the said Act relating to perjury, has not explicitly provided that the said articles of the Penal Code have
likewise been repealed.

This manner of understanding and construing the statutes applicable to the crime of false testimony or perjury is in
harmony with the provision of Law 11, Title 2, Book 3, of the Novisima Recopilacion which says::

All the laws of the kingdom, not expressly repealed by other subsequent laws, must be literally obeyed and
the excuse that they are not in use cannot avail; for the Catholic kings and their successors so ordered in
numerous laws, and so also have I ordered on different occasions, and even though they were repealed, it is
seen that they have been revived by the decree which I issued in conformity with them although they were
not expressly designated. The council will be informed thereof and will take account of the importance of the
matter.
It is, then, assumed that the said articles of the Penal Code are in force and are properly applicable to crimes of
false testimony. Therefore, in consideration of the fact that in the case at bar the evidence shows it to have been
duly proven that the defendant, Andres Pablo, in testifying in the cause prosecuted for gambling at jueteng,
perverted the truth, for the purpose of favoring the alleged gamblers, Maximo Malicsi and Antonio Rodrigo, with the
aggravating circumstance of the crime being committed through bribery, for it was also proved that the defendant
Pablo received P15 in order that he should make no mention of the said two gamblers in his sworn testimony,
whereby he knowingly perverted the truth, we hold that, in the commission of the crime of false testimony, there
concurred the aggravating circumstance of price or reward, No. 3 of article 10 of the Code, with no mitigating
circumstance to offset the effects of the said aggravating one; wherefore the defendant has incurred the maximum
period of the penalty of arresto mayor in its maximum degree to prision correccional in its medium degree, and a
fine.

For the foregoing reasons, we hereby reverse the judgment appealed from and sentence Andres Pablo to the
penalty of two years four months and one day of prision correccional, to pay a fine of 1,000 pesetas, and, in case of
insolvency, to suffer the corresponding subsidiary imprisonment, which shall not exceed one-third of the principal
penalty. He shall also pay the costs of both instances. So ordered.

Johnson, Carson, Trent and Araullo, JJ., concur.

Moreland, J., concurs in the result .
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-64279 April 30, 1984

ANSELMO L. PESIGAN and MARCELINO L. PESIGAN, petitioners,

vs.
JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court, Caloocan City Branch 129, acting for
REGIONAL TRIAL COURT of Camarines Norte, now presided over by JUDGE NICANOR ORIÑO, Daet Branch
40; DRA. BELLA S. MIRANDA, ARNULFO V. ZENAROSA, ET AL., respondents.

Quiazon, De Guzman Makalintal and Barot for petitioners.

The Solicitor General for respondents.

AQUINO, J.: ñé+ .£ª wph!1

At issue in this case is the enforceability, before publication in the Official Gazette of June 14, 1982, of Presidential
Executive Order No. 626-A dated October 25, 1980, providing for the confiscation and forfeiture by the government
of carabaos transported from one province to another.

Anselmo L. Pesigan and Marcelo L. Pesigan, carabao dealers, transported in an Isuzu ten-wheeler truck in the
evening of April 2, 1982 twenty-six carabaos and a calf from Sipocot, Camarines Sur with Padre Garcia, Batangas,
as the destination.

They were provided with (1) a health certificate from the provincial veterinarian of Camarines Sur, issued under the
Revised Administrative Code and Presidential Decree No. 533, the Anti-Cattle Rustling Law of 1974; (2) a permit to
transport large cattle issued under the authority of the provincial commander; and (3) three certificates of inspection,
one from the Constabulary command attesting that the carabaos were not included in the list of lost, stolen and
questionable animals; one from the LIvestock inspector, Bureau of Animal Industry of Libmanan, Camarines Sur and
one from the mayor of Sipocot.

In spite of the permit to transport and the said four certificates, the carabaos, while passing at Basud, Camarines
Norte, were confiscated by Lieutenant Arnulfo V. Zenarosa, the town's police station commander, and by Doctor
Bella S. Miranda, provincial veterinarian. The confiscation was basis on the aforementioned Executive Order No.
626-A which provides "that henceforth, no carabao, regardless of age, sex, physical condition or purpose and no
carabeef shall be transported from one province to another. The carabaos or carabeef transported in violation of this
Executive Order as amended shall be subject to confiscation and forfeiture by the government to be distributed ... to
deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos" (78 OG
3144).

Doctor Miranda distributed the carabaos among twenty-five farmers of Basud, and to a farmer from the Vinzons
municipal nursery (Annex 1).

The Pesigans filed against Zenarosa and Doctor Miranda an action for replevin for the recovery of the carabaos
allegedly valued at P70,000 and damages of P92,000. The replevin order could not be executed by the sheriff. In his
order of April 25, 1983 Judge Domingo Medina Angeles, who heard the case at Daet and who was later transferred
to Caloocan City, dismissed the case for lack of cause of action.

The Pesigans appealed to this Court under Rule 45 of the Rules of Court and section 25 of the Interim Rules and
pursuant to Republic Act No. 5440, a 1968 law which superseded Rule 42 of the Rules of Court.
We hold that the said executive order should not be enforced against the Pesigans on April 2, 1982 because, as
already noted, it is a penal regulation published more than two months later in the Official Gazette dated June 14,
1982. It became effective only fifteen days thereafter as provided in article 2 of the Civil Code and section 11 of the
Revised Administrative Code.

The word "laws" in article 2 (article 1 of the old Civil Code) includes circulars and regulations which prescribe
penalties. Publication is necessary to apprise the public of the contents of the regulations and make the said
penalties binding on the persons affected thereby. (People vs. Que Po Lay, 94 Phil. 640; Lim Hoa Ting vs. Central
Bank of the Phils., 104 Phil. 573; Balbuna vs. Secretary of Education, 110 Phil. 150.)

The Spanish Supreme Court ruled that "bajo la denominacion generica de leyes, se comprenden tambien los
reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordenes dictadas de conformidad con las mismas
por el Gobierno en uso de su potestad (1 Manresa, Codigo Civil, 7th Ed., p. 146.)

Thus, in the Que Po Lay case, a person, convicted by the trial court of having violated Central Bank Circular No. 20
and sentenced to six months' imprisonment and to pay a fine of P1,000, was acquitted by this Court because the
circular was published in the Official Gazette three months after his conviction. He was not bound by the circular.

That ruling applies to a violation of Executive Order No. 626-A because its confiscation and forfeiture provision or
sanction makes it a penal statute. Justice and fairness dictate that the public must be informed of that provision by
means of publication in the Gazette before violators of the executive order can be bound thereby.

The cases of Police Commission vs. Bello, L-29960, January 30, 1971, 37 SCRA 230 and Philippine Blooming Mills
vs. Social Security System, 124 Phil. 499, cited by the respondents, do not involve the enforcement of any penal
regulation.

Commonwealth Act No. 638 requires that all Presidential executive orders having general applicability should be
published in the Official Gazette. It provides that "every order or document which shag prescribe a penalty shall be
deemed to have general applicability and legal effect."

Indeed, the practice has always been to publish executive orders in the Gazette. Section 551 of the Revised
Administrative Code provides that even bureau "regulations and orders shall become effective only when approved
by the Department Head and published in the Official Gazette or otherwise publicly promulgated". (See
Commissioner of Civil Service vs. Cruz, 122 Phil. 1015.)

In the instant case, the livestock inspector and the provincial veterinarian of Camarines Norte and the head of the
Public Affairs Office of the Ministry of Agriculture were unaware of Executive Order No. 626-A. The Pesigans could
not have been expected to be cognizant of such an executive order.

It results that they have a cause of action for the recovery of the carabaos. The summary confiscation was not in
order. The recipients of the carabaos should return them to the Pesigans. However, they cannot transport the
carabaos to Batangas because they are now bound by the said executive order. Neither can they recover damages.
Doctor Miranda and Zenarosa acted in good faith in ordering the forfeiture and dispersal of the carabaos.

WHEREFORE, the trial court's order of dismissal and the confiscation and dispersal of the carabaos are reversed
and set aside. Respondents Miranda and Zenarosa are ordered to restore the carabaos, with the requisite
documents, to the petitioners, who as owners are entitled to possess the same, with the right to dispose of them in
Basud or Sipocot, Camarines Sur. No costs.

SO ORDERED. 1äw phï1.ñët

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-63915 April 24, 1985

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,

INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in
his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity
as Director, Malacañang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of
Printing, respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of
the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be published in
the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent
public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters
of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286,
298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447,
473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793,
800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242,
1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173,
180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245,
248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-
315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444-
445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615,
641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-
1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535,
1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-
1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754,
1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826,
1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866,
1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-
2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
 e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522,
524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-
604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95,
107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the ground that
petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the
absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-
publication of the presidential issuances in question 2 said petitioners are without the requisite legal personality to
institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65
of the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right or office
to which such other is entitled, and there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court
alleging the facts with certainty and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be done to Protect the rights of
the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of
the defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object
is to compel the performance of a public duty, they need not show any specific interest for their petition to be given
due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3 this
Court held that while the general rule is that "a writ of mandamus would be granted to a private individual only in
those cases where he has some private or particular interest to be subserved, or some particular right to be
protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to
apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless,
"when the question is one of public right and the object of the mandamus is to procure the enforcement of a public
duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are
instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a
citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the
mandamus proceedings brought to compel the Governor General to call a special election for the position of
municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition that the relator is
a proper party to proceedings of this character when a public right is sought to be enforced. If the
general rule in America were otherwise, we think that it would not be applicable to the case at bar for
the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in
mind the reason for the rule, because, if under the particular circumstances the reason for the rule
does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by counsel for the
respondent. The circumstances which surround this case are different from those in the United
States, inasmuch as if the relator is not a proper party to these proceedings no other person could
be, as we have seen that it is not the duty of the law officer of the Government to appear and
represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply
squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right
recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this
proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the
Solicitor General, the government officer generally empowered to represent the people, has entered his appearance
for respondents in this case.

Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the
effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since
the presidential issuances in question contain special provisions as to the date they are to take effect, publication in
the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil
Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of
decisions,4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the
legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its
date of effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date
when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of
publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached
that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself
provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and
resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative
orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of
decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of
sufficient importance to be so published; [4] such documents or classes of documents as may be
required so to be published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general applicability and legal
effect, or which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the various laws
which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no
basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a
constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital
significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely
by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the
Batasan Pambansa—and for the diligent ones, ready access to the legislative records—no such publicity
accompanies the law-making process of the President. Thus, without publication, the people have no means of
knowing what presidential decrees have actually been promulgated, much less a definite way of informing
themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones,
Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad.5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette
... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be
enforced if the Constitutional right of the people to be informed on matters of public concern is to be given
substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to
our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such
publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law.
Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a
burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances
which apply only to particular persons or class of persons such as administrative and executive orders need not be
published on the assumption that they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a
requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially
and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form part of the law of
the land, the requirement of due process and the Rule of Law demand that the Official Gazette as
the official government repository promulgate and publish the texts of all such decrees, orders and
instructions so that the people may know where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not been published,
shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect
this decision might have on acts done in reliance of the validity of those presidential decrees which were published
only during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity
apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In
similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County
Drainage District vs. Baxter Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having been found to be
unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties,
and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425,
442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such
broad statements as to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an operative fact
and may have consequences which cannot justly be ignored. The past cannot always be erased by
a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects-with respect to particular conduct, private and official. Questions of
rights claimed to have become vested, of status, of prior determinations deemed to have finality and
acted upon accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most difficult of those
which have engaged the attention of courts, state and federal and it is manifest from numerous
decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be
justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the
Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this
Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is
"an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased
by a new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot
be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by
petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and
1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of these PDs can be
ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that
none of these unpublished PDs has ever been implemented or enforced by the government. In Pesigan vs.
Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the
contents of [penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency
of this holding is apparently recognized by respondent officials considering the manifestation in their comment that
"the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have
been published in the Official Gazette or in some other publication, even though some criminal laws provide that
they shall take effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential
issuances which are of general application, and unless so published, they shall have no binding force and effect.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. L-46076 and L-46077 June 12, 1939

THE PEOPLE OF THE PHILIPPINES, plaintifff-appellee,

vs.
JACOB ROSENTHAL and NICASIO OSMEÑA, defendants-appellants.

Claro M. Recto and Hilado, Lorenzo and Hilado for appellant Rosenthal.
Jose M. Casal for appellant Osmeña.
Office of the Solicitor-General Tuason for appellee.

LAUREL, J.:

Appellants, Jacob Rosenthal and Nicasio Osmeña, were charged in the Court of First Instance of Manila with having
violated Act No. 2581, commonly known as the Blue Sky Law, under the following informations:

CASE NO. 52365

That in or about and during the period comprised between October 1, 1935 and January 22, 1936, both
dates inclusive, in the City of Manila, Philippine Islands, and within the jurisdiction of this court, the said
Nicasio Osmeña and Jacob Rosenthal, two of ten promoters, organizers, founders and incorporators of, the
former being, in addition, one of the members of the board of directors of, the O.R.O. Oil Co., Inc., a
domestic corporation organized under the laws of the Philippines and registered in the mercantile registry of
the Bureau of Commerce, with central office in the said city, the main objects and purposes of which were
"to mine, dig for, or otherwise obtain from earth, petroleum, rock and carbon oils, natural gas, other volatile
mineral substances and salt, and to manufacture, refine, prepare for market, buy, sell and transport the
same in crude or refined condition", and the capital thereof in their articles of incorporation, the accused
herein included, consisting of 3,000 shares without par value, 400 shares of which having been subscribed
by the said accused at 200 shares each and paid partly by them at the price of only P5 per share, according
to the said agreement which shares were speculative securities, because the value thereof materially
depended upon proposed promise for future promotion and development of the oil business above
mentioned rather than on actual tangible assets and conditions thereof, did then and there, with deliberate
intent of evading the provisions of sections 2 and 5 of the said Act No. 2581, and conspiring and
confederating together and helping each other, willfully, unlawfully and feloniously trade in, negotiate and
speculate with, their shares aforesaid, by making personally or through brokers or agents repeated and
successive sales of the said shares at a price ranging from P100 to P300 per share, as follows:

The accused Nicasio Osmeña sold 163 shares to nine different parties, and the accused Jacob Rosenthal
sold 21 shares to seven others, without first obtaining the corresponding written permit or license from the
Insular Treasurer of the Commonwealth of the Philippines, as by law required.

CASE NO. 52366

That in or about and during the period comprised between October 1, 1935, and January 22, 1936, both
dates inclusive, in the City of Manila, Philippine Islands, and within the jurisdiction of this court, the said
Nicasio Osmeña and Jacob Rosenthal, two of the ten promoters, organizers, founders and incorporators of,
the former being, in addition, one of the members of the board of directors of, the South Cebu Oil Co., Inc., a
domestic corporation organized under the laws of the Philippines and registered in the mercantile registry of
the Bureau of Commerce, with central office in the said city, the main objects and purposes of which were
"to mine, dig for, or otherwise obtain from earth, petroleum, rock or carbon oils, natural gas, other volatile
mineral substances and salt, and to manufacture, refine, prepare for market, buy, sell and transport the
same in crude and refined condition", and the capital stock of which, as per agreement of all the
 incorporators thereof in their articles of incorporation, the accused herein included, consisting of 2,800
shares without par value, 200 shares of which having been subscribed by the accused Nicasio Osmeña, and
100 shares of which having been subscribed by the accused Jacob Rosenthal and paid by both at the price
of only P5 per share, according to the said agreement, which shares were speculative securities, because
the value thereof materially depended upon proposed promise of future promotion and development of the
oil business above mentioned rather than on actual tangible assets and conditions thereof, did then and
there, with deliberate intent of evading the provisions of sections 2 and 5 of Act No. 2581, and conspiring
and confederating together and helping one another, willfully, unlawfully and feloniously trade in, negotiate
and speculate with, their shares aforesaid, by making personally or through brokers or agents repeated and
successive sales of the said shares at a price ranging from P100 to P300 per share, as follows:

The accused Nicasio Osmeña sold 185 shares to nine different parties, and the accused Jacob Rosenthal
sold 12 shares to seven others, without first obtaining the corresponding written permit or license form the
Insular Treasurer of the Commonwealth of the Philippines, as by law provided.

Upon motion of Jacob Rosenthal, the Court of First Instance of Manila granted him separate trial although, when the
cases were called for hearing, the court acceded to the motion of the prosecution that the two cases be tried jointly
inasmuch as the evidence to be adduced by the government therein was the same, without prejudice to allowing the
defendants to present their proof separately. After trial, the lower court, on March 22, 1937, in separate decisions,
found the defendants guilty as charged in the informations. In case No. 52365 Jacob Rosenthal was sentenced to
pay a fine of P500, with subsidiary imprisonment in case of insolvency, and to pay one-half of the costs; Nicasio
Osmeña was sentenced to pay a fine of P1,000, with subsidiary imprisonment in case of insolvency, and to pay one-
half of the costs. In case No. 52366 Jacob Rosenthal was sentenced to pay a fine of P500, with subsidiary
imprisonment in case of insolvency, and to pay one-half of the costs; Nicasio Osmeña was sentenced to pay a fine
of P2,000, with subsidiary imprisonment in case of insolvency, and to pay one-half of the costs. The defendants duly
perfected their appeal from these judgments and the cases were originally elevated to the Court of Appeals but,
upon motion of the Solicitor-General, the same were forwarded to this court in view of the fact that the
constitutionality of Act No. 2581 has been put in issue by appellants. Two separate briefs have been filed by
Rosenthal and Osmeña. In the brief for appellant Rosenthal the following "joint assignment of errors" is made:

1. In declaring that according to the report of the geologist contracted by the O.R. Oil Co. and the South
Cebu Oil Co. to explore the properties leased to said companies, "no habia ninguna indicacion de que
hubiese petroleo en aquellos terrenos", when in truth what the report stated was that in so far as the O.R.O.
Oil Co. land was concerned, the territory covered by the lease if full of possibilities; and with respect to the
South Cebu Oil Co. lease, that no further investigations and expenses be made "unless favorable test
results are obtained on the northern lease."

2. In declaring that the exploration leases were, subsequent to the findings of the geologist, cancelled by the
government, implying thereby that as no oil was found in said lands, the leases were cancelled; when in
truth the cancellation was based on supposed violation of those provisions of the corporation law prohibiting
the setting up of interlocking directorates.

3. In declaring that the defendant, of his 200 shares of stock in the O.R.O. Oil Co., sold twenty-one shares to
different persons and on different dates, one share having been sold directly to one E.F. Pimley; five, thru a
firm of brokers known as Mackay & McCormick, to Arthur Hoyer, Wm. Scheunig, and Modesto Bautista, in
the proportion of two, two and one, respectively; and fifteen shares directly to Henry J. Belden, R.T.
Fitzimmons and D.P. O'Brien, in the proportion of five shares to each of them — when in truth only that to
E.F. Pimley was sold to the latter by the defendant, while those eventually transferred to Hoyer, Scheunig
and Bautista were sold directly to the said firm Mackay & McCormick, which bought them on its own risk and
account, and the remaining fifteen transferred to Belden, O'Brien, and Fitzimmons were loaned by Rosenthal
to Nicasio Osmeña, who was not until now either returned those shares or paid their value.

4. In also declaring that of his 100 shares of stock in the South Cebu Oil Co., the defendant sold twelve to
various persons and on different dates, when in truth only one of these shares was sold by the defendant to
E.F. Pimley, and the remaining eleven, two of which were transferred to Arthur Hoyer, two to William
Scheunig, one to Jose de la Fuente, one to Crispin Llamado, one to A.M. Opisso, and four to Ines Galano,
were sold and transferred, in one single transaction, to the said firm of brokers directly, which firm bought
said shares on its own risk and account.
 5. In declaring that the shares sold to Mackay & McCormick were brought by the latter on credit at P250
each, to be resold by it at P300 each, and that out of the proceeds of the sale of these shares the defendant
received the price agreed upon between him and the said brokerage firm, or P250 per share, when in truth
and in fact there was no agreement between the parties as to whether the said firm was to sell said shares
to others or whether those shares were to be kept and retained by it on its own risk and account.

6. In declaring that the corporations had not begun exploration work on the territory covered by their leases,
and that they had no tangible properties.

7. In declaring that while the defendant needed no permit to sell his own stock, the corporations as issuer
being the ones bound to obtain the permit required by the Blue Sky Law, nevertheless he (the defendant)
was guilty of a violation of said law because the possession of the shares held and sold by him was not in
good faith, in that his acquisition thereof was not made in the ordinary and normal course of the business of
the corporations, but that said shares were purchased to indirectly promote the enterprise for which the
corporations were formed; the said defendant having paid in full to the corporations the value of said shares
of stock.

8. In holding as proven that the possession of the defendant of his own stock, which he paid for in full, was
not a possession in good faith, because he, as an incorporator (fundador), should have known that no permit
in writing had been issued the corporations by the Insular Treasurer for the sale of said stock.

9. In overruling the objection to the admission of Exhibit 1-b, and in holding that a permit had not been
issued by the Insular Treasurer for the sale of the stocks of the corporations.

10. In holding that there were repeated and successive sales made by the defendant Rosenthal of his own
shares of stock.

11. In holding that although the defendant was the absolute owner of the stock he sold, his repeated and
successive sales of such stock prove that this claim of ownership (esta pretension de propriedad) was but a
means employed by him to sell said stock at prices very much higher than those he paid for them.

12. In holding that said stock was sold by the defendant without the required permit having been first issued
by the Insular Treasurer, and that the sale was effected as if such permit had been actually issued (como si
en realidad pudieran venderse por haberse expedido tal permiso).

13. In holding that as a result of an investigation conducted by the City Fiscal, the defendant refunded to
Belden, O'Brien and Fitzimmons and others the amount they paid for the stock they purchased.

14. In holding that the opinion given by the Chief of the Insurance Division of the Office of the Insular
Treasurer to the effect that the defendant could sell the said stock without a permit as long as no false
representations were made by the said defendant, can not and does not exempt the latter from criminal
responsibility even though no false representations whatsoever were made by the aforesaid defendant.

15. In holding that the prima facie presumption in section 8 of the law to the effect that the claim of
ownership is not bona fide when repeated and successive sales of such stock are effected, has been totally
destroyed by the fact that said stock absolutely belongs to the defendant, and in not further holding that
because of such absolute ownership the defendant could have legally disposed of such stock in as many
sales as he saw fit without any permit from the Insular Treasurer.

16. In not holding that the Blue Sky Law contravenes the constitutional provisions of the Jones Act in so far
as such law constitutes an undue delegation of legislative powers to the Insular Treasurer, and in so far as it
does not afford equal protection before the law.

17. In not absolving the defendant.

In the brief for appellant Osmeña the following "relacion conjunta de errores" is in turn submitted:
 1. Al no sobreseer esta causa despues de promulgada la Ley No. 83 del Commonwealth, no obstante
haberse llamado su atencion al hecho de que esta Ley derogaba la Ley No. 2581 de la Legislatura Filipina,
bajo cuyas disposiciones ha sido procesado el acusado.

2. Al condenar al acusado por infraccion de la "Blue Sky Law", no obstante reconocerse en la decision que
consta en las pruebas que el acusado Osmeña no ha of recido en venta ninguna de aquellas acciones, ni
ha hecho manifestaciones falsas a nadie para poder venderlas, y que la mayor parte, si no todos los que las
compraron, estaban satisfechos de la inversion de su dinero en la adquisicion de tales acciones.

3. Al condenar al acusado por haber vendido acciones especulativas sin licencia, cuando no se probo: (a)
que las acciones de la O.R.O. Oil Co., Inc., y de la South Cebu Oil Co., Inc., eran especulativas por su
naturaleza, y (b) que el acusado Osmeña carecia de licencia para venderlas.

4. Al declarar que la posesion por el acusado Osmeña de sus acciones de la O.R.O. Oil Co., Inc., y de la
South Cebu Oil Co., Inc., no era de buena fe y que no las habia adquirido por su propia cuenta sino para la
promocion indirecta de un provecto de negocio o empresa especulativa.

5. Al no declarar que la "Blue Sky Law" es contraria a las normas constitucionales que gozaba al tiempo de
su promulgacion : (1) porque contiene en sus disposiciones una delegacion indebida de facultades
legislativas; (2) porque es vaga e incierte en sus disposiciones y, por tanto, nula; y (3) porque infringe el
derecho de igual proteccion ante la ley, viola la libertad de contratacion y contraviene el derecho de adquirir,
gozar y disponer libremente de la propriedad privada, siendo su promulgacion, por tanto, un acto de
opresion y de verdadera tirania.

6. Al no absolveral acusado Nicasio Osmeña..

To meet the foregoing errors assigned by the appellants, plaintiff-appellee contends:

(a) That the enactment of Commonwealth Act No. 83 did not have the effect of relieving appellants from
criminal liability.

(b) That the appellants acted as promoters of the O.R.O. Oil Co. and the South Cebu Oil Co.

(c) That the shares of the two corporations are speculative in nature.

(d) That the appellants sold their shares in said corporations without permit or knowing that the latter did not
have the permit required by law.

(e) That the appellants are not entitled to the exemption provided in section 8 of the Blue Sky Law (Act No.
2581).

(f) That the Blue Sky Law is valid and constitutional.

Most of the errors assigned by the appellants deal with questions of fact. This is particularly true with reference to
errors one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve and thirteen of appellant Jacob
Rosenthal, and error four of appellant Nicasio Osmeña. There is no material discrepancy regarding the facts, and
we shall proceed to consider the legal questions propounded, which are in the main set forth by the Solicitor-
General in his brief.

It is contended by the appellants that Act No. 2581 is unconstitutional on three grounds. (1) That it constitutes an
undue delegation of legislative authority to the Insular Treasurer: (2) that it does not afford equal protection before
the law; and (3) that it is vague and ambiguous.

Under section 2 of Act No. 2581, every person, partnership, association, or corporation attempting to offer to sell in
the Philippines speculative securities of any kind or character whatsoever, is under obligation to file previously with
the Insular Treasurer the various documents and papers enumerated therein and to pay the required tax of twenty
pesos. Certain securities listed in section 3 are exempted from the operation of the Act. Section 5 imposes upon the
Insular Treasurer the mandatory duty to examine the statements and documents thus filed and the additional duty to
make or cause to be made, if deemed advisable by him, a detailed examination of the affairs of the applicant.
Section 5 also provides that "whatever the said Treasurer of the Philippine Islands is satisfied, either with or without
the examination herein provided, that any person, partnership, association or corporation is entitled to the right to
offer its securities as above defined and provided for sale in the Philippine Islands, he shall issue to such person,
partnership, association or corporation a certificate or permit reciting that such person, partnership, association or
corporation has complied with the provisions of this Act, and that such person, partnership, association or
corporation, its brokers or agents are entitled to offer the securities named in said certificate or permit for sale"; that
"said Treasurer shall furthermore have authority, whenever in his judgment it is in the public interest, to cancel said
certificate or permit", and that "an appeal from the decision of the Insular Treasurer may be had within the period of
thirty days to the Secretary of Finance."

Appellants argue that, while Act No. 2581 empowers the Insular Treasurer to issue and cancel certificates or permits
for the sale of speculative securities, no standard or rule is fixed in the Act which can guide said official in
determining the cases in which a certificate or permit ought to be issued, thereby making his opinion the sole
criterion in the matter of its issuance, with the result that, legislative powers being unduly delegated to the Insular
Treasurer, Act No. 2581 is unconstitutional. We are of the opinion that the Act furnishes a sufficient standard for the
Insular Treasurer to follow in reaching a decision regarding the issuance or cancellation of a certificate or permit.
The certificate or permit to be issued under the Act must recite that the person, partnership, association or
corporation applying therefor "has complied with the provisions of this Act", and this requirement, construed in
relation to the other provisions of the law, means that a certificate or permit shall be issued by the Insular Treasurer
when the provisions of Act No. 2581 have been complied with. Upon the other hand, the authority of the Insular
Treasurer to cancel a certificate or permit is expressly conditioned upon a finding that such cancellation "is in the
public interest." In view of the intention and purpose of Act No. 2581 — to protect the public against "speculative
schemes which have no more basis than so many feet of blue sky" and against the "sale of stock in fly-by-night
concerns, visionary oil wells, distant gold mines, and other like fraudulent exploitations", — we incline to hold that
"public interest" in this case is a sufficient standard to guide the Insular Treasurer in reaching a decision on a matter
pertaining to the issuance or cancellation of certificates or permits. As we observed in the case of People vs.
Fernandez and Trinidad (G.R. No. 45655, June 15, 1938), "siendo el objecto de la ley el evitar especulaciones
ruinosas, es claro que el interes publico, es, y debe ser la razon en que el Tesorero Insular deba basar sus
resoluciones." And the term "public interest" is not without a settled meaning.

Appellant insists that the delegation of authority to the Commission is invalid because the stated criterion is
uncertain. That criterion is the public interest. It is a mistaken assumption that this is a mere general
reference to public welfare without any standard to guide determinations. The purpose of the Act, the
requirement it imposes, and the context of the provision in question show the contrary. . . . (New York
Central Securities Corporation vs. U.S.A., 287 U.S., 12, 24, 25; 77 Law. ed., 138, 145, 146.) (See
also Schenchter Poultry Corporation vs. U.S., 295 U.S., 495; 540; 79 Law. ed., 1570, 1585;
Ferrazzini vs. Gsell, 34 Phil., 697, 711, 712.)

In this connection, we cannot overlook the fact that the Act No. 2581 allows an appeal from the decision of the
Insular Treasurer to the Secretary of Finance. Hence, it cannot be contended that the Insular Treasurer can act and
decide without any restraining influence.

The theory of the separation of powers is designed by its originators to secure action and at the same time to
forestall over action which necessarily results from undue concentration of powers, and thereby obtain efficiency
and prevent despotism. Thereby, the "rule of law" was established which narrows the range of governmental action
and makes it subject to control by certain legal devices. As a corollary, we find the rule prohibiting delegation of
legislative authority, and from the earliest time American legal authorities have proceeded on the theory that
legislative power must be exercised by the legislative alone. It is frankness, however, to confess that as one delves
into the mass of judicial pronouncements, he finds a great deal of confusion. One thing, however, is apparent in the
development of the principle of separation of powers and that is that the maximum of delegatus non potest delegare
or delegata potestas non potest delegare, attributed to Bracton (De Legibus et Consuetudinious Angliae, edited by
G.E. Woodbine, Yale University Press [1922], vol. 2, p.167) but which is also recognized in principle in the Roman
Law (D.17.18.3), has been made to adapt itself to the complexities of modern governments, giving rise to the
adoption, within certain limits, of the principle of "subordinate legislation", not only in the United States and England
but in practically all modern governments. The difficulty lies in the fixing of the limit and extent of the authority. While
courts have undertaken to lay down general principles, the safest is to decide each case according to its peculiar
environment, having in mind the wholesome legislative purpose intended to be achieved.

Counsel for appellant Jacob Rosenthal also argues that the Insular Treasurer possesses "the discretionary power to
determine when a security is a speculative security and when it is not" because "he is given the power to compel
any corporation, association or partnership already functioning, to surrender to him for examination its books and
accounts enumerated in section 2, 'whenever he has reasonable ground to believe that the securities being sold or
offered for sale are of a speculative character.'" It should be observed, however, that section 1 of Act No. 2581
defines and enumerates what are "speculative securities" and all the other provisions of the Act must be read and
construed in conjunction and harmony with said section.

Laws of the different states of the American Union similar in nature to Act No. 2581 were assailed on constitutional
grounds somewhat analogous to those involved in the case at bar, but the decisions of both the state courts and the
Supreme Court of the United States have upheld their constitutionality. In the case of Hall vs. Geiger-Jones Co. (242
U.S., 539), the contention was made that the Blue Sky Law of Ohio, which requires the commissioner before
granting a license to "be satisfied of the good repute in business of such applicant and named agents", and which
empowers said commissioner to revoke the license or refuse to renew it upon ascertaining that the licensee "is of
bad business repute; has violated any provisions of this act or has engaged, or is about to engage, under favor of
such license, in illegitimate business or in fraudulent transactions", is unconstitutional because the law has failed to
give a standard to guide or determine the decision of the commissioner leaves "room for the play and action of
purely personal and arbitrary power", but the Supreme Court of the United States overruled the contention and held:

Besides it is certainly apparent that if the conditions are within the power of the State to impose, they can
only be ascertained by an executive officer. Reputation and character are quite tangible attributes, but there
can be no legislative definition of them that can automatically attach to or identify individuals possessing
them, and necessarily the aid of some executive agency must be invoked. The contention of appellees
would take from government one of its most essential instrumentalities, of which the various national and
state commissions are instances. But the contention may be answered by authority. In Gundling vs. Chicago
(177 U.S., 183), an ordinance of the City of Chicago was passed on which required a license of dealers in
cigarettes and as a condition of the license that the applicant, if a single individual, all of the members of the
firm, if a co-partnership, and any person or persons in charge of the business, if a corporation, should be of
good character and reputation, and the duty was delegated to the mayor of the city to determine the
existence of the conditions. The ordinance was sustained. To this case may be added Red "C" Oil
Manufacturing Co. vs. North Carolina (222 U.S., 380, 394, and cases cited); Mutual Film
Corporation vs. Industrial Commission of Ohio (236 U.S., 230); Brazee vs. Michigan (241 U.S., 340,
341). See also Reetz vs. Michigan, (188 U.S., 505); Lieberman vs. Van de Carr (199 U. S., 552). (Pp. 553,
554.)

In the case of Leach vs. Daugherty (238 P., 160), where the contention was advanced that section 6 of the
Corporate Securities Act of California which authorized the corporation commissioner to refuse to grant a broker's
certificate, if he is not satisfied of the "good business reputation of the applicant", is unconstitutional because "no
rules, regulations, or specifications are set forth in the said Corporate Securities Act defining what shall constitute
'good business reputation,'" it was ruled that "Considering such objection, it would appear that the leading case of
Hall vs. Geiger-Jones Co. (242 U.S., 539; 37 Sup. Ct., 217; 61 Law. ed., 480; L.R.A., 1917F, 514; Ann. Cas. 1917C,
643), is so conclusively against the petitioner's contention that little room is left for argument", and that "it is well-
settled principle of law in this state that by legislative act a commission or board may be empowered to ascertain the
existence of facts, upon the finding of which may depend the right to continue in the practice of a profession or a
regulated business."

In the case of G.F. Redmond & Co. vs. Michigan Securities Commission (222 Mich., 1; 192 N.W., 688), in which it
was argued that the provision in section 11955 of the Compiled Laws of 1915 (Michigan Blue Sky Law), authorizing
the commission to revoke a license for "good cause" upon notice to the dealer and a hearing duly had, is
unconstitutional because the term "good cause" is so vague and indefinite that the law practically vested upon the
commission arbitrary powers, the court said:

The term "good cause" for revocation, as employed in the statute, relates so clearly to the conduct of the
licensed business, within the limits fixed by law, as to negative any arbitrary official action, and is so
 comprehensive of unlawful, irregular, fraudulent, unauthorized, and forbidden business management and
transactions conducted as to demand no more particular specification of its meaning and its application.

Must the law map out , for the guidance of the licensee, a code of ethics and post danger signals against
inhibited and dishonest practices? The defendant had no right to have the conduct of its business charted by
specifications of forbidden practices involving revocation of the license. The general scope and expressed
purpose of the law, together with open and fair dealing, entered the license, and transgression thereof
constituted good cause for revocation thereof. (P. 689.)

In the case of State ex rel. Central Steam Heat & Power Co. vs. Gettle (Wis. [1928], 220 N.W., 201), where it was
argued that the requirement of the Wisconsin Blue Sky Law (St. 1925, sec. 184.09 [3]; Law 1927, c. 444) that the
Railroad Commission shall find that the "financial condition, plan of operation, and the proposed undertakings of the
corporation are such as to afford reasonable protection to the purchasers of the securities to be issued", is
unconstitutional for the reason that (1) the Legislature has no power to regulate the issuance of securities in order to
protect the investing public; (2) the Legislature does not provide a standard to control the commission; (3) the
statute is so indefinite and uncertain in its meaning as to be incapable of administration; and (4) the statute
delegates to the railroad commission legislative power, the court said:

This is but a usual provision found in the many so-called Blue Sy Laws, the constitutionality of which has
been upheld by the courts generally. The constitutionality of similar provisions has been so thoroughly
considered by this court that further discussion thereof is unnecessary. The following cases abundantly
establish the constitutionality of this provision. (State ex rel. Minneapolis, St. Paul & Sault Ste. Marie Railway
Company vs. Railroad Commission of Wisconsin, 137 Wis., 80; 117 N.W., 846; Appleton Water Works
Co. vs.Railroad Commission of Wisconsin, 154 Wis., 121; 142 N.E., 476; 47 L.R.A. [N.S.], 770; Ann. Cas.
1915B, 1160; State ex rel. City of Milwaukee vs. Milwaukee Electric Railway & Light Co., 169 Wis., 183; 172
N.W., 230; City of Milwaukee vs. Railroad Commission of Wisconsin, 183 Wis., 498; 196 N.W., 853;
Wisconsin Southern Ry. Co. vs. Railroad Commission of Wisconsin, 185 Wis., 313; 201 N.W., 244;
Kretuzer vs.Westfahl, 187 Wis., 463; 204 N.W., 595.)

Another ground relied upon by appellants in contending that Act No. 2581 is unconstitutional is that it denies equal
protection of the laws because the law discriminates between an owner who sells his securities in a single
transaction and one who disposes of them in repeated and successive transactions. In disposing of this contention
we need only refer to the case of Hall vs. Geiger-Jones Co., supra, wherein the Supreme Court of the United States
held:

"Discriminations are asserted against the statute which extend, it is contended, to denying appellees the
equal protection of the laws. Counsel enumerates them as follows:

"Prominent among such discriminations are . . . between an owner who sells his securities in a single
transaction and one who disposes of them in successive transactions; . . . "

We cannot give separate attention to the asserted discriminations. It is enough to say that they are within the
power of classification which a state has. A state "ay direct its law against what it deems the evil as it
actually exists without covering the whole field of possible abuses, and it may do so none the less that the
forbidden act does not differ in kind from those that are allowed . . .. If a class is deemed to present a
conspicuous example of what the legislature seeks to prevent, the 14th Amendment allows it to be dealt with
although otherwise and merely logically not distinguishable from others not embraced in the law.

Counsel for appellant Nicasio Osmeña further alleges that Act No. 2581 is unconstitutional on the ground that it is
vague and uncertain. A similar contention has already been overruled by this court in the case of People vs.
Fernandez and Trinidad, supra. An Act will be declared void and inoperative on the ground of vagueness and
uncertainty only upon a showing that the defect is such that the courts are unable to determine, with any reasonable
degree of certainty, what the legislature intended. The circumstance that this court has no more than one occasion
given effect and application to Act. No. 2581 (Valhalla Hotel Construction Co. vs. Carmona, 44 Phil., 233;
People vs.Nimrod McKinney, 47 Phil., 792; People vs. Fernandez and Trinidad, supra) decisively argues against the
position taken by appellant Osmeña. In this connection we cannot pretermit reference to the rule that "legislation
should not be held invalid on the ground of uncertainty if susceptible of any reasonable construction that will support
and give it effect. An Act will not be declared inoperative and ineffectual on the ground that it furnishes no adequate
means to secure the purpose for which it is passed, if men of common sense and reason can devise and provide
the means, and all the instrumentalities necessary for its execution are within the reach of those intrusted therewith."
(25 R.C.L., pp. 810, 811.)

Reaffirming our view in People vs. Fernandez and Trinidad, supra, we hold that Act No. 2581 is valid and
constitutional.

Taking up now the question raised with reference to the speculative nature of the shares of the ). O.R.O. Oil Co. and
the South Cebu Oil Co., we find that section 1, paragraph (b) of Act No. 2581, in defining speculative securities,
provides:

. . . The term "speculative securities" as used in this Act shall be deemed to mean and include:

xxx xxx xxx

(b) All securities the value of which materially depend upon proposed or promised future promotion or
development rather than on present tangible assets and conditions.

At the beginning, and at the time of the issuance of the shares of the O.R.O. Oil Co. and the South Cebu Oil Co., all
that these companies had were their exploration leases. Beyond this, there was nothing tangible. The value of those
shares depended upon future development and the uncertainty of "striking" oil. The shares issued under these
circumstances are clearly speculative because they depended upon proposed or promised future promotion or
development rather than on present tangible assets and conditions.

Appellants next contend that in view of the repeal of Act No. 2581 by Commonwealth Act. No. 83, they have been
relieved of criminal responsibility. Assuming that the former Act has been entirely and completely abrogated by the
latter Act — a point we do not have to decide — this fact does not relieve appellants from criminal responsibility. "It
has been the holding, and it must again be the holding, that where an Act of the Legislature which penalizes an
offense repeals a former Act which penalized the same offense, such repeal does not have the effect of thereafter
depriving the courts of jurisdiction to try, convict and sentence offenders charged with violations of the old law."
(People vs. Concepcion, 44 Phil., 126, 132; Ong Chang Wing and Kwong Fok vs. U.S., 218 U.S., 272; 40 Phil.,
1046; U.S. vs. Cuna, 12 Phil., 241; U.S. vs. Aron, 12 Phil., 778; U.S. vs. Tonga, 15 Phil., 43; U.S. vs. Molina, 17
Phil., 582.)

Appellants further contend that they come under the exception provided in section 8 of Act No. 2581. This section
provides:

This Act shall not apply to the holder of any speculative security who is not the issuer thereof, nor to the
person who has acquired the same for his own account in the usual and ordinary course of business and not
for the direct or indirect promotion of any enterprise or scheme within the purview of this Act, unless such
possession is in good faith. Repeated and successive sales of any speculative securities shall be prima
facieevidence that the claim of ownership is not bona fide, but is a mere shift, device or plot to evade the
provisions of this Act. Such speculators shall incur the penalty provided for in section seven of this Act.

Under this section, there are clearly two classes of persons to whom the law is not applicable: (1) Persons who hold
speculative securities but who are not the issuers thereof; and (2) persons who have acquired the same for their
own account in the usual and ordinary course of business and not for the direct or indirect promotion of any
enterprise or scheme within the purview of this Act, provided (the law uses the term "unless") such possession is in
good faith.

Passing upon the questions of fact necessarily involved in the application of section 8 of Act No. 2581, the trial court
in case No. 52365 makes the following findings with reference to Nicasio Osmeña:

. . . El acusado Osmeña no ha adquirido por su propia cuenta en el curso ordinario y corriente de los
negocios en la O.R.O. Oil Co. Las acciones por el vendidas, pues las adquirio mediante suscripcion como
uno de los fundadores de dicha corporacion, pero si para la promocion indirecta de un proyecto de negocio
o empresa para el cual se habia organizado le corporacion, habiendo pagado totalmente el importe de
 dichas acciones a la misma corporacion; ni tampoco las poseia de buena fe, puesto que como fundador y
miembro de la junta directiva de dicha corporacion debia saber que no se habia expedido por el Tesorero
Insular ningun permiso por escrito a al corporacion para la venta de dichas acciones. Y las ventas sucesivas
y repetidas de esas acciones que tenia en la misma corporacion, aunque tales acciones eran suyas por
haberlas el obtenido de la corporacion mediante suscripcion y pago del importe correspondiente prueban
que esta pretension de propiedad ha sido solamente un medio de que se ha valido para vender tales
acciones a precios mucho mayores que el importe por por haberse expedido tal permiso.

The same findings, mutatis mutandis, are made in case No. 52366 against the same appellant, and against Jacob
Rosenthal in the two cases. Even if we could, we do not feel justified in disturbing the findings of the trial court. The
good faith set up by appellant Rosenthal for having acted on the advice of one Garcia, an officer in the Insular
Treasury, and the subsequent devolution by him of amounts collected from some of the purchasers of the shares
may be considered as a circumstance in his favor in the imposition of the penalty prescribed by law but does not
exempt him from criminal responsibility. (People vs. McCalla, 63 Cal. App., 783; 220 Pac., 436; 367 U.S., 585; 69
Law. ed., 799; 45 Sup. Ct., 461; People vs. Fernandez and Trinidad, supra.)

The judgments of the lower court are affirmed, with the modification that the fines are reduced as to accused Jacob
Rosenthal from P500 to P200 in each case, and as to accused Nicasio Osmeña, from P1,000 to P500 in case No.
52365 and from P2,000 to P1,000 in case No. 52366, with subsidiary imprisonment for both in case of insolvency,
and costs. So ordered.
 EN BANC

G.R. No. 148560 November 19, 2001

JOSEPH EJERCITO ESTRADA, petitioner,

vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of the
individual from the vast powers of the State and the inroads of societal pressure. But even as he draws a sacrosanct
line demarcating the limits on individuality beyond which the State cannot tread - asserting that "individual
spontaneity" must be allowed to flourish with very little regard to social interference - he veritably acknowledges that
the exercise of rights and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost,
against those who would endeavor to withhold fulfillment. Thus he says -

The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any
of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of
a civilized community, against his will, is to prevent harm to others.

Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the end of
maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of laws
that would compel obeisance to its collective wisdom and inflict punishment for non-observance.

The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order,
carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of contemporary
socio-political ideologies. In the process, the web of rights and State impositions became tangled and obscured,
enmeshed in threads of multiple shades and colors, the skein irregular and broken. Antagonism, often outright
collision, between the law as the expression of the will of the State, and the zealous attempts by its members to
preserve their individuality and dignity, inevitably followed. It is when individual rights are pitted against State
authority that judicial conscience is put to its severest test.

Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act Defining and
Penalizing the Crime of Plunder),1 as amended by RA 7659,2 wishes to impress upon us that the assailed law is so
defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally infirm.
He therefore makes a stringent call for this Court to subject the Plunder Law to the crucible of constitutionality
mainly because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the "reasonable
doubt" standard in criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes already punishable
under The Revised Penal Code, all of which are purportedly clear violations of the fundamental rights of the accused
to due process and to be informed of the nature and cause of the accusation against him.

Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries
are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:

Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of
any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any combination or series of the following means or
similar schemes:

(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;

(2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form
of pecuniary benefit from any person and/or entity in connection with any government contract or project or
by reason of the office or position of the public office concerned;

(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or
any of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and
their subsidiaries;

(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of
interest or participation including the promise of future employment in any business enterprise or
undertaking;

(5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or

implementation of decrees and orders intended to benefit particular persons or special interests; or

(6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines.

Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as
described in Section 1 (d) hereof, in the aggregate amount or total value of at least fifty million pesos
(P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any
person who participated with the said public officer in the commission of an offense contributing to the crime of
plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and
the attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code shall be
considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes
and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in
favor of the State (underscoring supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to
prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring
supplied).

On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations,
docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos.
26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-
Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713
(The Code of Conduct and Ethical Standards for Public Officials and Employees); (d) Crim. Case No. 26564, for
Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No.
142, as amended by RA 6085).

On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for preliminary
investigation with respect to specification "d" of the charges in the Information in Crim. Case No. 26558; and, for
reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give the accused an
opportunity to file counter-affidavits and other documents necessary to prove lack of probable cause. Noticeably, the
grounds raised were only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and
opportunity to prove lack of probable cause. The purported ambiguity of the charges and the vagueness of the law
under which they are charged were never raised in that Omnibus Motion thus indicating the explicitness and
comprehensibility of the Plunder Law.

On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a
probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused."
On 25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan.

On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the facts
alleged therein did not constitute an indictable offense since the law on which it was based was unconstitutional for
vagueness, and that the Amended Information for Plunder charged more than one (1) offense. On 21 June 2001 the
Government filed its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner
submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash.

As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in
the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law
requires less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused to
due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within
the power of Congress to so classify it.

Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic
principle that a legislative measure is presumed to be in harmony with the Constitution.3 Courts invariably train their
sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate of
constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is
forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it has been
said that the presumption is based on the deference the judicial branch accords to its coordinate branch - the
legislature.

If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full
knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority.
Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts should proceed
with judicial restraint and act with caution and forbearance. Every intendment of the law must be adjudged by the
courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions
of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question of
constitutionality.

In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as long as there is some basis for the decision of the
court, the constitutionality of the challenged law will not be touched and the case will be decided on other available
grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law into the safe
environs of constitutionality. Of course, where the law clearly and palpably transgresses the hallowed domain of the
organic law, it must be struck down on sight lest the positive commands of the fundamental law be unduly eroded.

Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the
statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for
absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly
suffice. As tersely put by Justice Malcolm, "To doubt is to sustain."5 And petitioner has miserably failed in the
instant case to discharge his burden and overcome the presumption of constitutionality of the Plunder Law.

As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable
the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts,
conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty
and particularity. Thus -

1. That the offender is a public officer who acts by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates or other persons;

2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the
following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public
 funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share,
percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection
with any government contract or project or by reason of the office or position of the public officer; (c) by the
illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its
subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their
subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any
other form of interest or participation including the promise of future employment in any business enterprise
or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations
and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f)
by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines; and,

3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at
least ₱50,000,000.00.

As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what
conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in
its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in
identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the
assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at least
₱50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law.

In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the
various elements of the offense which petitioner is alleged to have committed:

"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG
SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio,
Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe
a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No.
7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:

That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this
Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS
OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES
AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY,
RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount
or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (₱4,097,804,173.17), more or
less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE
DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR
A combination OR Aseries of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE

AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (₱545,000,000.00), MORE
OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK
OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with co-
accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND
JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL
GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY,

for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY
MILLION PESOS (₱130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION
PESOS (₱200,000,000.00) tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No.
 7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE
a.k.a.Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE
DOES; (italic supplied).

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government
Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS,
and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO
MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY
CENTAVOS (₱1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX
HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS (₱744,612,450.00),
RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN
MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS
(₱1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY
HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR
PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF
ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS (₱189,700,000.00)
MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN
THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;'

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS,
OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in
the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (₱3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE
VELARDE' AT THE EQUITABLE-PCI BANK."

We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will confuse
petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of the
crime are easily understood and provide adequate contrast between the innocent and the prohibited acts. Upon
such unequivocal assertions, petitioner is completely informed of the accusations against him as to enable him to
prepare for an intelligent defense.

Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms "combination"
and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec.
2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law
unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the nature
and cause of the accusation against him, hence, violative of his fundamental right to due process.

The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because
general terms are used therein, or because of the employment of terms without defining them;6 much less do we
have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the
legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its
will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or
ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is
distinctly expressed in the Plunder Law.

Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural,
plain and ordinary acceptation and signification,7 unless it is evident that the legislature intended a technical or
special legal meaning to those words.8 The intention of the lawmakers - who are, ordinarily, untrained philologists
and lexicographers - to use statutory phraseology in such a manner is always presumed. Thus, Webster's New
Collegiate Dictionary contains the following commonly accepted definition of the words "combination" and "series:"

Combination - the result or product of combining; the act or process of combining. To combine is to bring into such
close relationship as to obscure individual characters.

Series - a number of things or events of the same class coming one after another in spatial and temporal
succession.
That Congress intended the words "combination" and "series" to be understood in their popular meanings is
pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law:

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR
SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say
combination, we actually mean to say, if there are two or more means, we mean to say that number one and two or
number one and something else are included, how about a series of the same act? For example, through
misappropriation, conversion, misuse, will these be included also?

REP. GARCIA: Yeah, because we say a series.

REP. ISIDRO: Series.

REP. GARCIA: Yeah, we include series.

REP. ISIDRO: But we say we begin with a combination.

REP. GARCIA: Yes.

REP. ISIDRO: When we say combination, it seems that -

REP. GARCIA: Two.

REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration.

REP. GARCIA: No, no, not twice.

REP. ISIDRO: Not twice?

REP. GARCIA: Yes. Combination is not twice - but combination, two acts.

REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different acts. It cannot be a
repetition of the same act.

REP. GARCIA: That be referred to series, yeah.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

REP. GARCIA: A series.

REP. ISIDRO: That’s not series. Its a combination. Because when we say combination or series, we seem to say
that two or more, di ba?

REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good
suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or series of
overt or criminal acts. So x x x x

REP. GARCIA: Series. One after the other eh di....

SEN. TANADA: So that would fall under the term "series?"

REP. GARCIA: Series, oo.

REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....

REP. GARCIA: Its not... Two misappropriations will not be combination. Series.

REP. ISIDRO: So, it is not a combination?

REP. GARCIA: Yes.

REP. ISIDRO: When you say combination, two different?

REP. GARCIA: Yes.

SEN. TANADA: Two different.

REP. ISIDRO: Two different acts.

REP. GARCIA: For example, ha...

REP. ISIDRO: Now a series, meaning, repetition...

DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989

SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even "two" acts may already
result in such a big amount, on line 25, would the Sponsor consider deleting the words "a series of overt or," to read,
therefore: "or conspiracy COMMITTED by criminal acts such as." Remove the idea of necessitating "a series."
Anyway, the criminal acts are in the plural.

SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.

THE PRESIDENT: Probably two or more would be....

SENATOR MACEDA: Yes, because "a series" implies several or many; two or more.

SENATOR TANADA: Accepted, Mr. President x x x x

THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say
"acts of plunder" there should be, at least, two or more.

SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.

Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different
categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar.
(1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3).

On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under the same
category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public
treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or
distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it in
the law.

As for "pattern," we agree with the observations of the Sandiganbayan9 that this term is sufficiently defined in Sec. 4,
in relation to Sec. 1, par. (d), and Sec. 2 -

x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts
enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or
criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass,
accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy'
to achieve said common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan
of action or method' which the principal accused and public officer and others conniving with him follow to achieve
the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods
used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal.

Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it
seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly
misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the effect that a
statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of
legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by
construction.

A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence
must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the
Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted
by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle.10 But the doctrine does not apply as against
legislations that are merely couched in imprecise language but which nonetheless specify a standard though
defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The
first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever
directed against such activities.11 With more reason, the doctrine cannot be invoked where the assailed statute is
clear and free from ambiguity, as in this case.

The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a
sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.12It
must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the
statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility,
rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed
in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details
in advance as in all other statutes.

Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the
deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial
review of its validity -

The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and differ as to its application,
violates the first essential of due process of law."13 The overbreadth doctrine, on the other hand, decrees that "a
governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms."14

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible
"chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no
readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could
not be regulated by a statute drawn with narrow specificity."15 The possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their
very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the
area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt
for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist,
"we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."16 In Broadrick
v. Oklahoma,17 the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected
conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to
mount successfully, since the challenger must establish that no set of circumstances exists under which the Act
would be valid."18 As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is
vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of others."19

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on
their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute
on the ground that impliedly it might also be taken as applying to other persons or other situations in which its
application might be unconstitutional."20 As has been pointed out, "vagueness challenges in the First Amendment
context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of
due process typically are invalidated [only] 'as applied' to a particular defendant."21 Consequently, there is no basis
for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be
applied to parties not before the Court whose activities are constitutionally protected.22 It constitutes a departure from
the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts.23 But, as the U.S. Supreme Court pointed out in Younger v. Harris24

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a
kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be
employed "sparingly and only as a last resort,"25 and is generally disfavored.26 In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of
the conduct with which the defendant is charged.27

In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously
claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be
created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific
precision in the law. Every provision of the law should be construed in relation and with reference to every other
part. To be sure, it will take more than nitpicking to overturn the well-entrenched presumption of constitutionality and
validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being
one of the Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated
upon by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with
full knowledge of its legal implications and sound constitutional anchorage.

The parallel case of Gallego v. Sandiganbayan28 must be mentioned if only to illustrate and emphasize the point that
courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and deficient in its
details, and is susceptible of no reasonable construction that will support and give it effect. In that case,
petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Actfor being vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise and
elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that, for its
vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of what it
seeks to penalize. Petitioners further argued that the Information charged them with three (3) distinct offenses, to
wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits through
evident bad faith; and, (c) giving of "unwarranted" benefits through gross inexcusable negligence while in the
discharge of their official function and that their right to be informed of the nature and cause of the accusation
against them was violated because they were left to guess which of the three (3) offenses, if not all, they were being
charged and prosecuted.

In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does not
suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and "gross
and inexcusable negligence" merely describe the different modes by which the offense penalized in Sec. 3, par. (e),
of the statute may be committed, and the use of all these phrases in the same Information does not mean that the
indictment charges three (3) distinct offenses.

The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized
(Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia
Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent
Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).

The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful
the act of the public officer in:

x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence, x x
x (Section 3 [e], Rep. Act 3019, as amended).

It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public
officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits,
advantage or preference which is unjustified, unauthorized or without justification or adequate reason, through
manifest partiality, evident bad faith or gross inexcusable negligence.

In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted" in
Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its primary and general
acceptation. Consequently, in that case, petitioners' objection thereto was held inadequate to declare the section
unconstitutional.

On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the
immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime
of plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy -

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove
each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate
or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.

The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as in
all other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the Bill of
Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the
accused is entitled to an acquittal.29 The use of the "reasonable doubt" standard is indispensable to command the
respect and confidence of the community in the application of criminal law. It is critical that the moral force of
criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent men are being
condemned. It is also important in our free society that every individual going about his ordinary affairs has
confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper
factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in
the realm of constitutional law as it gives life to the Due Process Clause which protects the accused against
conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he
is charged.30 The following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the
deliberations in the floor of the House of Representatives are elucidating -

DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990

MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information
must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts
enumerated in the information, does that not work against the right of the accused especially so if the amount
committed, say, by falsification is less than ₱100 million, but the totality of the crime committed is ₱100 million since
there is malversation, bribery, falsification of public document, coercion, theft?

MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt.
What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr.
Speaker, there is an enumeration of the things taken by the robber in the information – three pairs of pants, pieces
of jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime
for which he was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two.
Now, what is required to be proved beyond reasonable doubt is the element of the offense.

MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the amount
is very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the act of
bribery, he was able to accumulate only ₱50,000 and in the crime of extortion, he was only able to accumulate ₱1
million. Now, when we add the totality of the other acts as required under this bill through the interpretation on the
rule of evidence, it is just one single act, so how can we now convict him?

MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a
need to prove that element beyond reasonable doubt. For example, one essential element of the crime is that the
amount involved is ₱100 million. Now, in a series of defalcations and other acts of corruption in the enumeration the
total amount would be ₱110 or ₱120 million, but there are certain acts that could not be proved, so, we will sum up
the amounts involved in those transactions which were proved. Now, if the amount involved in these transactions,
proved beyond reasonable doubt, is ₱100 million, then there is a crime of plunder (underscoring supplied).

It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof
in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or
element necessary to constitute the crime.

The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal
misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only
a number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount
of at least ₱50,000,000.00. There is no need to prove each and every other act alleged in the Information to have
been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate
or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder with
having committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it
being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they
amounted to at least ₱50,000,000.00.31

A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal
acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or
amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond
reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the
predicate acts. This conclusion is consistent with reason and common sense. There would be no other explanation
for a combination or series of

overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or
acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to
prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts.

Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very
important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a
substantive element of the crime," such that without it the accused cannot be convicted of plunder -

JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying
Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts
complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but
not plunder.

JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without
applying Section 4, can you not have a conviction under the Plunder Law?

ATTY. AGABIN: Not a conviction for plunder, your Honor.

JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for
violation of the Plunder Law?

ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x

JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable
doubt on the acts charged constituting plunder?

ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a
substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4.

JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are
concerned that you do not have to go that far by applying Section 4?

ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder
and that cannot be avoided by the prosecution.32

We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and
understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the
epigraph and opening clause of Sec. 4 is clear and unequivocal:

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x

It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being
a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but
only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even
without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present
sufficient evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the
accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated
for the reasons advanced by petitioner, it may simply be severed from the rest of the provisions without necessarily
resulting in the demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough.
Besides, Sec. 7 of RA 7080 provides for a separability clause -

Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or
circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to other
persons or circumstances shall not be affected thereby.

Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity of
some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should
accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best
be achieved.

As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof
of criminal intent. Thus, he says, in his Concurring Opinion -

x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a
prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was
committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims
the statute is void, petitioner cites the following remarks of Senator Tañada made during the deliberation on S.B. No.
733:

SENATOR TAÑADA . . . And the evidence that will be required to convict him would not be evidence for each and
every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime
of plunder.33

However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript quoted by
petitioner:

SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence,
which, in the Gentleman's view, would provide for a speedier and faster process of attending to this kind of cases?

SENATOR TAÑADA: Yes, Mr. President . . .34

Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not
prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond
reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as
the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the
requisite mens rea must be shown.

Indeed, §2 provides that -

Any person who participated with the said public officer in the commission of an offense contributing to the crime of
plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and
the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be
considered by the court.

The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the
Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of
the offender is determined by his criminal intent. It is true that §2 refers to "any person who participates with the said
public officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe,
however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We
agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against
using common sense in construing laws as saying what they obviously mean."35

Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the
affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion
perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to
these groups of heinous crimes, this Court held in People v. Echegaray:36

The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either
because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely
disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the capital crimes of
kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped,
tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses involving minors
or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide,
kidnapping and serious illegal detention, where the victim is detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide,
rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the
carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their
very nature.

There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal
acts in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to
develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that
bankrupted the government and impoverished the population, the Philippine Government must muster the political
will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched
itself in the structures of society and the psyche of the populace. [With the government] terribly lacking the money to
provide even the most basic services to its people, any form of misappropriation or misapplication of government
funds translates to an actual threat to the very existence of government, and in turn, the very survival of the people it
governs over. Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified
bribery, destructive arson resulting in death, and drug offenses involving government officials, employees or officers,
that their perpetrators must not be allowed to cause further destruction and damage to society.

The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For
when the acts punished are inherently immoral or inherently wrong, they are mala in se37 and it does not matter that
such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala
in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for
violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the
inherent wrongness of the acts.

To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional
grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the
same having been eternally consigned by People v. Echegaray38 to the archives of jurisprudential history. The
declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the State, and
becomes, by necessary effect, assimilated in the Constitution now as an integral part of it.

Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have
shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time
as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government.
Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and
economically catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to
disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant
tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living
testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the
avarice and other venalities in public office.

These are times that try men's souls. In the checkered history of this nation, few issues of national importance can
equal the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and his
eventual prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension
among our people that may linger for a long time. Only by responding to the clarion call for patriotism, to rise above
factionalism and prejudices, shall we emerge triumphant in the midst of ferment.

PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA
7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of
merit.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 204603 September 24, 2013

REPUBLIC OF THE G.R. No. 204603 PHILIPPINES, represented by THE EXECUTIVE SECRETARY, THE
SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF
NATIONALDEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT THE SECRETARY
OF FINANCE, THE NATIONAL SECURITY ADVISER, THE SECRETARY OF BUDGET AND MANAGEMENT
THE TREASURER OF THE PHILIPPINES, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE
PHILIPPINES, and THE CHIEFOF THE PHILIPPINE NATIONAL POLICE, Petitioners,
vs.
HERMINIO HARRY ROQUE, MORO CHRISTIAN PEOPLE'S ALLIANCE, FR. JOE DIZON, RODINIE SORIANO,
STEPHANIE ABIERA, MARIA LOURDES ALCAIN, VOLTAIRE ALFEREZ, CZARINA MAYALTEZ, SHERYL
BALOT, RENIZZA BATACAN, EDAN MARRI CAÑETE, LEANA CARAMOAN, ALDWIN CAMANCE, RENE
DELORINO, PAULYN MAY DUMAN, RODRIGO FAJARDO III, ANNAMARIE GO, ANNA ARMINDA JIMENEZ,
MARY ANN LEE,LUISA MANALAYSAY, MIGUEL MUSNGI, MICHAEL OCAMPO, NORMAN ROLAND OCANA
III, WILLIAM RAGAMAT, MARICAR RAMOS, CHERRY LOU REYES, MELISSA ANN SICAT, CRISTINE MAE
TABING, VANESSA TORNO, and HON. JUDGE ELEUTERIO L. BATHAN, as Presiding Judge of Regional
Trial Court, Quezon City, Branch 92, Respondents.

RESOLUTION

PERLAS-BERNABE, J.:

Assailed in this petition for certiorari1 are the April 23, 20122 and July 31, 20123 Orders of the Regional Trial Court of
Quezon City, Branch 92(RTC) in Special Civil Action (SCA) No. Q-07-60778, denying petitioners’ motion to dismiss
(subject motion to dismiss) based on the following grounds: (a) that the Court had yet to pass upon the
constitutionality of Republic Act No. (RA) 9372,4 otherwise known as the "Human Security Act of 2007," in the
consolidated cases of Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council5 (Southern
Hemisphere); and (b) that private respondents’ petition for declaratory relief was proper.

The Facts

On July 17, 2007, private respondents filed a Petition6 for declaratory relief before the RTC, assailing the
constitutionality of the following sections of RA 9372: (a) Section 3,7 for being void for vagueness;8 (b) Section 7,9for
violating the right to privacy of communication and due process and the privileged nature of priest-penitent
relationships;10 (c)Section 18,11 for violating due process, the prohibition against ex post facto laws or bills of
attainder, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights,
as well as for contradicting Article 12512 of the Revised Penal Code, as amended;13 (d) Section 26,14 for violating the
right to travel;15 and (e) Section 27,16 for violating the prohibition against unreasonable searches and seizures.17

Petitioners moved to suspend the proceedings,18 averring that certain petitions (SC petitions) raising the issue of RA
9372’s constitutionality have been lodged before the Court.19 The said motion was granted in an Order dated
October 19, 2007.20

On October 5, 2010, the Court promulgated its Decision21 in the Southern Hemisphere cases and thereby dismissed
the SC petitions.

On February 27, 2012, petitioners filed the subject motion to dismiss,22 contending that private respondents failed to
satisfy the requisites for declaratory relief. Likewise, they averred that the constitutionality of RA 9372 had already
been upheld by the Court in the Southern Hemisphere cases.
In their Comment/Opposition,23 private respondents countered that: (a) the Court did not resolve the issue of RA
9372’s constitutionality in Southern Hemisphere as the SC petitions were dismissed based purely on technical
grounds; and (b) the requisites for declaratory relief were met.

The RTC Ruling

On April 23, 2012, the RTC issued an Order24 which denied the subject motion to dismiss, finding that the Court did
not pass upon the constitutionality of RA 9372 and that private respondents’ petition for declaratory relief was
properly filed.

Petitioners moved for reconsideration25 which was, however, denied by the RTC in an Order dated July 31,
2012.26The RTC observed that private respondents have personal and substantial interests in the case and that it
would be illogical to await the adverse consequences of the aforesaid law’s implementation considering that the
case is of paramount impact to the Filipino people.27

Hence, the instant petition.

The Issues Before the Court

The present controversy revolves around the issue of whether or not the RTC gravely abused its discretion when it
denied the subject motion to dismiss.

Asserting the affirmative, petitioners argue that private respondents failed to satisfy the requirements for declaratory
relief and that the Court had already sustained with finality the constitutionality of RA 9372.

On the contrary, private respondents maintain that the requirements for declaratory relief have been satisfied and
that the Court has yet to resolve the constitutionality of RA 9372, negating any grave abuse of discretion on the
RTC’s part.

The Court’s Ruling

The petition is meritorious.

An act of a court or tribunal can only be considered as with grave abuse of discretion when such act is done in a
capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction.28 It is well-settled that the abuse
of discretion to be qualified as "grave" must be so patent or gross as to constitute an evasion of a positive duty or a
virtual refusal to perform the duty or to act at all in contemplation of law.29 In this relation, case law states that not
every error in the proceedings, or every erroneous conclusion of law or fact, constitutes grave abuse of
discretion.30The degree of gravity, as above-described, must be met.

Applying these principles, the Court observes that while no grave abuse of discretion could be ascribed on the part
of the RTC when it found that the Court did not pass upon the constitutionality of RA 9372 in the Southern
Hemisphere cases, it, however, exceeded its jurisdiction when it ruled that private respondents’ petition had met all
the requisites for an action for declaratory relief. Consequently, its denial of the subject motion to dismiss was
altogether improper.

To elucidate, it is clear that the Court, in Southern Hemisphere, did not make any definitive ruling on the
constitutionality of RA 9372. The certiorari petitions in those consolidated cases were dismissed based solely on
procedural grounds, namely: (a) the remedy of certiorari was improper;31 (b) petitioners therein lack locus
standi;32and (c) petitioners therein failed to present an actual case or controversy.33 Therefore, there was no grave
abuse of discretion.

The same conclusion cannot, however, be reached with regard to the RTC’s ruling on the sufficiency of private
respondents’ petition for declaratory relief.

Case law states that the following are the requisites for an action for declaratory relief:
first , the subject matter of the controversy must be a deed, will, contract or other written instrument, statute,
executive order or regulation, or ordinance; second , the terms of said documents and the validity thereof are
doubtful and require judicial construction; third , there must have been no breach of the documents in question;
fourth , there must be an actual justiciable controversy or the "ripening seeds" of one between persons whose
interests are adverse; fifth , the issue must be ripe for judicial determination; and sixth , adequate relief is not
available through other means or other forms of action or proceeding.34

Based on a judicious review of the records, the Court observes that while the first,35 second,36 and
third37requirements appear to exist in this case, the fourth, fifth, and sixth requirements, however, remain wanting.

As to the fourth requisite, there is serious doubt that an actual justiciable controversy or the "ripening seeds" of one
exists in this case.

Pertinently, a justiciable controversy refers to an existing case or controversy that is appropriate or ripe for judicial
determination, not one that is conjectural or merely anticipatory.38 Corollary thereto, by "ripening seeds" it is meant,
not that sufficient accrued facts may be dispensed with, but that a dispute may be tried at its inception before it has
accumulated the asperity, distemper, animosity, passion, and violence of a full blown battle that looms ahead. The
concept describes a state of facts indicating imminent and inevitable litigation provided that the issue is not settled
and stabilized by tranquilizing declaration.39

A perusal of private respondents’ petition for declaratory relief would show that they have failed to demonstrate how
they are left to sustain or are in immediate danger to sustain some direct injury as a result of the enforcement of the
assailed provisions of RA 9372. Not far removed from the factual milieu in the Southern Hemisphere cases, private
respondents only assert general interests as citizens, and taxpayers and infractions which the government could
prospectively commit if the enforcement of the said law would remain untrammeled. As their petition would disclose,
private respondents’ fear of prosecution was solely based on remarks of certain government officials which were
addressed to the general public.40 They, however, failed to show how these remarks tended towards any
prosecutorial or governmental action geared towards the implementation of RA 9372 against them. In other words,
there was no particular, real or imminent threat to any of them. As held in Southern Hemisphere:

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has
no original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the
activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized,
lie beyond judicial review for lack of ripeness.
1âwphi1

The possibility of abuse in the implementation of RA 9372does not avail to take the present petitions out of the
realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any
power granted by law may be abused. Allegations of abuse must be anchored on real events before courts may
step in to settle actual controversies involving rights which are legally demandable and enforceable.41 (Emphasis
supplied; citations omitted)

Thus, in the same light that the Court dismissed the SC petitions in the Southern Hemisphere cases on the basis of,
among others, lack of actual justiciable controversy (or the ripening seeds of one), the RTC should have dismissed
private respondents’ petition for declaratory relief all the same.

It is well to note that private respondents also lack the required locus standi to mount their constitutional challenge
against the implementation of the above-stated provisions of RA 9372 since they have not shown any direct and
personal interest in the case.42 While it has been previously held that transcendental public importance dispenses
with the requirement that the petitioner has experienced or is in actual danger of suffering direct and personal
injury,43 it must be stressed that cases involving the constitutionality of penal legislation belong to an altogether
different genus of constitutional litigation.44 Towards this end, compelling State and societal interests in the
proscription of harmful conduct necessitate a closer judicial scrutiny of locus standi,45 as in this case. To rule
otherwise, would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by
the general public.46

As to the fifth requisite for an action for declaratory relief, neither can it be inferred that the controversy at hand is
ripe for adjudication since the possibility of abuse, based on the above-discussed allegations in private respondents’
petition, remain highly-speculative and merely theorized. It is well-settled that a question is ripe for adjudication
1âwphi1
when the act being challenged has had a direct adverse effect on the individual challenging it.47 This private
respondents failed to demonstrate in the case at bar.

Finally, as regards the sixth requisite, the Court finds it irrelevant to proceed with a discussion on the availability of
adequate reliefs since no impending threat or injury to the private respondents exists in the first place.

All told, in view of the absence of the fourth and fifth requisites for an action for declaratory relief, as well as the
irrelevance of the sixth requisite, private respondents’ petition for declaratory relief should have been dismissed.
Thus, by giving due course to the same, it cannot be gainsaid that the RTC gravely abused its discretion.

WHEREFORE, the petition is GRANTED. Accordingly, the April23, 2012 and July 31, 2012 Orders of the Regional
Trial Court of Quezon City, Branch 92 in SCA No. Q-07-60778 are REVERSED and SET ASIDE and the petition for
declaratory relief before the said court is hereby DISMISSED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 204603 September 24, 2013

REPUBLIC OF THE G.R. No. 204603 PHILIPPINES, represented by THE EXECUTIVE SECRETARY, THE
SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF
NATIONALDEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT THE SECRETARY
OF FINANCE, THE NATIONAL SECURITY ADVISER, THE SECRETARY OF BUDGET AND MANAGEMENT
THE TREASURER OF THE PHILIPPINES, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE
PHILIPPINES, and THE CHIEFOF THE PHILIPPINE NATIONAL POLICE, Petitioners,
vs.
HERMINIO HARRY ROQUE, MORO CHRISTIAN PEOPLE'S ALLIANCE, FR. JOE DIZON, RODINIE SORIANO,
STEPHANIE ABIERA, MARIA LOURDES ALCAIN, VOLTAIRE ALFEREZ, CZARINA MAYALTEZ, SHERYL
BALOT, RENIZZA BATACAN, EDAN MARRI CAÑETE, LEANA CARAMOAN, ALDWIN CAMANCE, RENE
DELORINO, PAULYN MAY DUMAN, RODRIGO FAJARDO III, ANNAMARIE GO, ANNA ARMINDA JIMENEZ,
MARY ANN LEE,LUISA MANALAYSAY, MIGUEL MUSNGI, MICHAEL OCAMPO, NORMAN ROLAND OCANA
III, WILLIAM RAGAMAT, MARICAR RAMOS, CHERRY LOU REYES, MELISSA ANN SICAT, CRISTINE MAE
TABING, VANESSA TORNO, and HON. JUDGE ELEUTERIO L. BATHAN, as Presiding Judge of Regional
Trial Court, Quezon City, Branch 92, Respondents.

RESOLUTION

PERLAS-BERNABE, J.:

Assailed in this petition for certiorari1 are the April 23, 20122 and July 31, 20123 Orders of the Regional Trial Court of
Quezon City, Branch 92(RTC) in Special Civil Action (SCA) No. Q-07-60778, denying petitioners’ motion to dismiss
(subject motion to dismiss) based on the following grounds: (a) that the Court had yet to pass upon the
constitutionality of Republic Act No. (RA) 9372,4 otherwise known as the "Human Security Act of 2007," in the
consolidated cases of Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council5 (Southern
Hemisphere); and (b) that private respondents’ petition for declaratory relief was proper.

The Facts

On July 17, 2007, private respondents filed a Petition6 for declaratory relief before the RTC, assailing the
constitutionality of the following sections of RA 9372: (a) Section 3,7 for being void for vagueness;8 (b) Section 7,9for
violating the right to privacy of communication and due process and the privileged nature of priest-penitent
relationships;10 (c)Section 18,11 for violating due process, the prohibition against ex post facto laws or bills of
attainder, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights,
as well as for contradicting Article 12512 of the Revised Penal Code, as amended;13 (d) Section 26,14 for violating the
right to travel;15 and (e) Section 27,16 for violating the prohibition against unreasonable searches and seizures.17

Petitioners moved to suspend the proceedings,18 averring that certain petitions (SC petitions) raising the issue of RA
9372’s constitutionality have been lodged before the Court.19 The said motion was granted in an Order dated
October 19, 2007.20

On October 5, 2010, the Court promulgated its Decision21 in the Southern Hemisphere cases and thereby dismissed
the SC petitions.

On February 27, 2012, petitioners filed the subject motion to dismiss,22 contending that private respondents failed to
satisfy the requisites for declaratory relief. Likewise, they averred that the constitutionality of RA 9372 had already
been upheld by the Court in the Southern Hemisphere cases.
In their Comment/Opposition,23 private respondents countered that: (a) the Court did not resolve the issue of RA
9372’s constitutionality in Southern Hemisphere as the SC petitions were dismissed based purely on technical
grounds; and (b) the requisites for declaratory relief were met.

The RTC Ruling

On April 23, 2012, the RTC issued an Order24 which denied the subject motion to dismiss, finding that the Court did
not pass upon the constitutionality of RA 9372 and that private respondents’ petition for declaratory relief was
properly filed.

Petitioners moved for reconsideration25 which was, however, denied by the RTC in an Order dated July 31,
2012.26The RTC observed that private respondents have personal and substantial interests in the case and that it
would be illogical to await the adverse consequences of the aforesaid law’s implementation considering that the
case is of paramount impact to the Filipino people.27

Hence, the instant petition.

The Issues Before the Court

The present controversy revolves around the issue of whether or not the RTC gravely abused its discretion when it
denied the subject motion to dismiss.

Asserting the affirmative, petitioners argue that private respondents failed to satisfy the requirements for declaratory
relief and that the Court had already sustained with finality the constitutionality of RA 9372.

On the contrary, private respondents maintain that the requirements for declaratory relief have been satisfied and
that the Court has yet to resolve the constitutionality of RA 9372, negating any grave abuse of discretion on the
RTC’s part.

The Court’s Ruling

The petition is meritorious.

An act of a court or tribunal can only be considered as with grave abuse of discretion when such act is done in a
capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction.28 It is well-settled that the abuse
of discretion to be qualified as "grave" must be so patent or gross as to constitute an evasion of a positive duty or a
virtual refusal to perform the duty or to act at all in contemplation of law.29 In this relation, case law states that not
every error in the proceedings, or every erroneous conclusion of law or fact, constitutes grave abuse of
discretion.30The degree of gravity, as above-described, must be met.

Applying these principles, the Court observes that while no grave abuse of discretion could be ascribed on the part
of the RTC when it found that the Court did not pass upon the constitutionality of RA 9372 in the Southern
Hemisphere cases, it, however, exceeded its jurisdiction when it ruled that private respondents’ petition had met all
the requisites for an action for declaratory relief. Consequently, its denial of the subject motion to dismiss was
altogether improper.

To elucidate, it is clear that the Court, in Southern Hemisphere, did not make any definitive ruling on the
constitutionality of RA 9372. The certiorari petitions in those consolidated cases were dismissed based solely on
procedural grounds, namely: (a) the remedy of certiorari was improper;31 (b) petitioners therein lack locus
standi;32and (c) petitioners therein failed to present an actual case or controversy.33 Therefore, there was no grave
abuse of discretion.

The same conclusion cannot, however, be reached with regard to the RTC’s ruling on the sufficiency of private
respondents’ petition for declaratory relief.

Case law states that the following are the requisites for an action for declaratory relief:
first , the subject matter of the controversy must be a deed, will, contract or other written instrument, statute,
executive order or regulation, or ordinance; second , the terms of said documents and the validity thereof are
doubtful and require judicial construction; third , there must have been no breach of the documents in question;
fourth , there must be an actual justiciable controversy or the "ripening seeds" of one between persons whose
interests are adverse; fifth , the issue must be ripe for judicial determination; and sixth , adequate relief is not
available through other means or other forms of action or proceeding.34

Based on a judicious review of the records, the Court observes that while the first,35 second,36 and
third37requirements appear to exist in this case, the fourth, fifth, and sixth requirements, however, remain wanting.

As to the fourth requisite, there is serious doubt that an actual justiciable controversy or the "ripening seeds" of one
exists in this case.

Pertinently, a justiciable controversy refers to an existing case or controversy that is appropriate or ripe for judicial
determination, not one that is conjectural or merely anticipatory.38 Corollary thereto, by "ripening seeds" it is meant,
not that sufficient accrued facts may be dispensed with, but that a dispute may be tried at its inception before it has
accumulated the asperity, distemper, animosity, passion, and violence of a full blown battle that looms ahead. The
concept describes a state of facts indicating imminent and inevitable litigation provided that the issue is not settled
and stabilized by tranquilizing declaration.39

A perusal of private respondents’ petition for declaratory relief would show that they have failed to demonstrate how
they are left to sustain or are in immediate danger to sustain some direct injury as a result of the enforcement of the
assailed provisions of RA 9372. Not far removed from the factual milieu in the Southern Hemisphere cases, private
respondents only assert general interests as citizens, and taxpayers and infractions which the government could
prospectively commit if the enforcement of the said law would remain untrammeled. As their petition would disclose,
private respondents’ fear of prosecution was solely based on remarks of certain government officials which were
addressed to the general public.40 They, however, failed to show how these remarks tended towards any
prosecutorial or governmental action geared towards the implementation of RA 9372 against them. In other words,
there was no particular, real or imminent threat to any of them. As held in Southern Hemisphere:

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has
no original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the
activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized,
lie beyond judicial review for lack of ripeness.
1âwphi1

The possibility of abuse in the implementation of RA 9372does not avail to take the present petitions out of the
realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any
power granted by law may be abused. Allegations of abuse must be anchored on real events before courts may
step in to settle actual controversies involving rights which are legally demandable and enforceable.41 (Emphasis
supplied; citations omitted)

Thus, in the same light that the Court dismissed the SC petitions in the Southern Hemisphere cases on the basis of,
among others, lack of actual justiciable controversy (or the ripening seeds of one), the RTC should have dismissed
private respondents’ petition for declaratory relief all the same.

It is well to note that private respondents also lack the required locus standi to mount their constitutional challenge
against the implementation of the above-stated provisions of RA 9372 since they have not shown any direct and
personal interest in the case.42 While it has been previously held that transcendental public importance dispenses
with the requirement that the petitioner has experienced or is in actual danger of suffering direct and personal
injury,43 it must be stressed that cases involving the constitutionality of penal legislation belong to an altogether
different genus of constitutional litigation.44 Towards this end, compelling State and societal interests in the
proscription of harmful conduct necessitate a closer judicial scrutiny of locus standi,45 as in this case. To rule
otherwise, would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by
the general public.46

As to the fifth requisite for an action for declaratory relief, neither can it be inferred that the controversy at hand is
ripe for adjudication since the possibility of abuse, based on the above-discussed allegations in private respondents’
petition, remain highly-speculative and merely theorized. It is well-settled that a question is ripe for adjudication
1âwphi1
when the act being challenged has had a direct adverse effect on the individual challenging it.47 This private
respondents failed to demonstrate in the case at bar.

Finally, as regards the sixth requisite, the Court finds it irrelevant to proceed with a discussion on the availability of
adequate reliefs since no impending threat or injury to the private respondents exists in the first place.

All told, in view of the absence of the fourth and fifth requisites for an action for declaratory relief, as well as the
irrelevance of the sixth requisite, private respondents’ petition for declaratory relief should have been dismissed.
Thus, by giving due course to the same, it cannot be gainsaid that the RTC gravely abused its discretion.

WHEREFORE, the petition is GRANTED. Accordingly, the April23, 2012 and July 31, 2012 Orders of the Regional
Trial Court of Quezon City, Branch 92 in SCA No. Q-07-60778 are REVERSED and SET ASIDE and the petition for
declaratory relief before the said court is hereby DISMISSED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the
posting of decals and stickers on "mobile" places, public or private, and limit their location or publication to the
authorized posting areas that it fixes.

On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the
Constitution, the Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election laws.

Section 15(a) of the resolution provides:

Sec. 15. Lawful Election Propaganda. — The following are lawful election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or
printed materials not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in
length. Provided, That decals and stickers may be posted only in any of the authorized posting
areas provided in paragraph (f) of Section 21 hereof.

Section 21 (f) of the same resolution provides:

Sec. 21(f). Prohibited forms of election propaganda. —

It is unlawful:

xxx xxx xxx

(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place,
whether public or private, mobile or stationary, except in the COMELEC common posted areas
and/or billboards, at the campaign headquarters of the candidate or political party, organization or
coalition, or at the candidate's own residential house or one of his residential houses, if he has more
than one:Provided, that such posters or election propaganda shall not exceed two (2) feet by three
(3) feet in size. (Emphasis supplied)

xxx xxx xxx

The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on
lawful election propaganda which provides:

Lawful election propaganda. — Lawful election propaganda shall include:

 (a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more
than eight and one-half inches in width and fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two
feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in
announcing the holding of said meeting or rally, streamers not exceeding three feet by eight feet in
size, shall be allowed: Provided, That said streamers may not be displayed except one week before
the date of the meeting or rally and that it shall be removed within seventy-two hours after said
meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the Commission may
authorize after due notice to all interested parties and hearing where all the interested parties were
given an equal opportunity to be heard: Provided, That the Commission's authorization shall be
published in two newspapers of general circulation throughout the nation for at least twice within one
week after the authorization has been granted. (Section 37, 1978 EC)

and Section 11(a) of Republic Act No. 6646 which provides:

Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda

prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint,
inscribe, write, post, display or publicly exhibit any election propaganda in any place, whether
private, or public, except in the common poster areas and/or billboards provided in the immediately
preceding section, at the candidate's own residence, or at the campaign headquarters of the
candidate or political party: Provided, That such posters or election propaganda shall in no case
exceed two (2) feet by three (3) feet in area: Provided, Further, That at the site of and on the
occasion of a public meeting or rally, streamers, not more than two (2) and not exceeding three (3)
feet by eight (8) feet each may be displayed five (5) days before the date of the meeting or rally, and
shall be removed within twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied)

Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's
Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like cars and other moving
vehicles. According to him such prohibition is violative of Section 82 of the Omnibus Election Code and Section
11(a) of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and print
political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with
this prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium to
inform the electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states
that as of February 22, 1992 (the date of the petition) he has not received any notice from any of the Election
Registrars in the entire country as to the location of the supposed "Comelec Poster Areas."

The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile"
places whether public or private except in designated areas provided for by the COMELEC itself is null and void on
constitutional grounds.

First — the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the
Constitution (Sec. 4, Article III). There is no public interest substantial enough to warrant the kind of restriction
involved in this case.

There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of
our own Bill of Rights provision on this basic freedom.

All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of
a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36
SCRA 228 [1970])
This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable
condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA
438 [1985]) It is difficult to imagine how the other provisions of the Bill of Rights and the right to free elections may
be guaranteed if the freedom to speak and to convince or persuade is denied and taken away.

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it
may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.
(New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief
Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions will
deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will
truly be free, clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what
may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage.
(Mutuc v. Commission on Elections, supra)

The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms
in order to promote fundamental public interests or policy objectives is always a difficult and delicate task. The so-
called balancing of interests — individual freedom on one hand and substantial public interests on the other — is
made even more difficult in election campaign cases because the Constitution also gives specific authority to the
Commission on Elections to supervise the conduct of free, honest, and orderly elections.

We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory
powers vis-a-vis the conduct and manner of elections, to wit:

Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable equal rates therefore, for
public information campaigns and forms among candidates in connection with the object of holding
free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4)

The variety of opinions expressed by the members of this Court in the recent case of National Press Club v.
Commission on Elections (G.R. No. 102653, March 5, 1991) and its companion cases underscores how difficult it is
to draw a dividing line between permissible regulation of election campaign activities and indefensible repression
committed in the name of free and honest elections. In the National Press Club, case, the Court had occasion to
reiterate the preferred status of freedom of expression even as it validated COMELEC regulation of campaigns
through political advertisements. The gray area is rather wide and we have to go on a case to case basis.

There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in
the opinion of some, too short, it becomes obvious that unduly restrictive regulations may prove unfair to affected
parties and the electorate.

For persons who have to resort to judicial action to strike down requirements which they deem inequitable or
oppressive, a court case may prove to be a hollow remedy. The judicial process, by its very nature, requires time for
rebuttal, analysis and reflection. We cannot act instantly on knee-jerk impulse. By the time we revoke an
unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and
irredeemable opportunities may have been lost.

When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the
part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local
officials and COMELEC, should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and
the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to
maintain them, the freedom to speak and the right to know are unduly curtailed.
There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but
all of us were unanimous that regulation of election activity has its limits. We examine the limits of regulation and not
the limits of free speech. The carefully worded opinion of the Court, through Mr. Justice Feliciano, shows that
regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in
time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her
qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable
nexus with the constitutionally sanctioned objective.

Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, in National
Press Club, we find the regulation in the present case of a different category. The promotion of a substantial
Government interest is not clearly shown.

A government regulation is sufficiently justified if it is within the constitutional power of the

Government, if it furthers an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id., at
377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d
772, 104 S Ct 2118 [1984])

The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any
substantial government interest. There is no clear public interest threatened by such activity so as to justify the
curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule
not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a writing instrument to be stilled:

The case confronts us again with the duty our system places on the Court to say where the
individual's freedom ends and the State's power begins. Choice on that border, now as always
delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the
preferred place given in our scheme to the great, the indispensable democratic freedom secured by
the first Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting
dubious intrusions and it is the character of the right, not of the limitation, which determines what
standard governs the choice . . .

For these reasons any attempt to restrict those liberties must be justified by clear public interest,
threatened not doubtfully or remotely, but by clear and present danger. The rational connection
between the remedy provided and the evil to be curbed, which in other context might support
legislation against attack on due process grounds, will not suffice. These rights rest on firmer
foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at
appropriate time and place, must have clear support in public danger, actual or impending. Only the
greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas
V. Collins, 323 US 516 [1945]). (Emphasis supplied)

Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate
or the political party. The regulation strikes at the freedom of an individual to express his preference and, by
displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the
car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner,
primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out
restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long as
these are not correctly paid-for advertisements or purchased opinions with less reason can we sanction the
prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who
pastes a sticker or decal on his private property.

Second — the questioned prohibition premised on the statute and as couched in the resolution is void for
overbreadth.

A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental
purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means
which sweep unnecessarily broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed
2d 444 [1967]).

In a series of decisions this Court has held that, even though the governmental purpose be
legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved. The breadth of legislative
abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance
prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license,
pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims.
In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of
four different municipalities which either banned or imposed prior restraints upon the distribution of
handbills. In holding the ordinances invalid, the court noted that where legislative abridgment of
fundamental personal rights and liberties is asserted, "the courts should be astute to examine the
effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of
public convenience may well support regulation directed at other personal activities, but be
insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of
democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60 S
Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject to regulation for the protection
of society," but pointed out that in each case "the power to regulate must be so exercised as not, in
attaining a permissible end, unduly to infringe the protected freedom." (310 US at 304) (Shelton v.
Tucker, 364 US 479 [1960]

The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width
and fourteen (14) inches in length in any place, including mobile places whether public or private except in areas
designated by the COMELEC. Verily, the restriction as to where the decals and stickers should be posted is so
broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In
consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1,
Article III of the Bill of Rights provides that no person shall be deprived of his property without due process of law:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and
dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right
to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.
Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of
the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by
the law of the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])

As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving
vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only
deprive the owner who consents to such posting of the decals and stickers the use of his property but more
important, in the process, it would deprive the citizen of his right to free speech and information:

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital
to the preservation of a free society that, putting aside reasonable police and health regulations of
time and manner of distribution, it must be fully preserved. The danger of distribution can so easily
be controlled by traditional legal methods leaving to each householder the full right to decide
whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that
forbidden by the constitution, the naked restriction of the dissemination of ideas." (Martin v. City of
Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty"
interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable.
The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election
propaganda in any place, whether public or private, except in the common poster areas sanctioned by COMELEC.
This means that a private person cannot post his own crudely prepared personal poster on his own front door or on
a post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what
overzealous and partisan police officers, armed with a copy of the statute or regulation, may do.

The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the
privacy of one's living room or bedroom. This is delegation running riot. As stated by Justice Cardozo in his
concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is
unconfined and vagrant . . . This is delegation running riot. No such plentitude of power is susceptible of transfer."

Third — the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the
electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in relation to
Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance.

Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public
service, . . . while under section 1, Article XIII thereof "The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity, reduce social, economic, andpolitical
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good."
(Emphasis supplied)

It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving
vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this
kind of election propaganda not the financial resources of the candidate. Whether the candidate is rich and,
therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the same
number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise
his right of free speech. The owner can even prepare his own decals or stickers for posting on his personal property.
To strike down this right and enjoin it is impermissible encroachment of his liberties.

In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the
authorized areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution:

. . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity
of any public act whether proceeding from the highest official or the lowest functionary, is a postulate
of our system of government. That is to manifest fealty to the rule of law, with priority accorded to
that which occupies the topmost rung in the legal hierarchy. The three departments of government in
the discharge of the functions with which it is entrusted have no choice but to yield obedience to its
commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes
must ever be on guard lest the restrictions on its authority, either substantive or formal, be
transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains.
In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to
maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass
upon the validity of the acts of the coordinate branches in the course of adjudication is a logical.
corollary of this basic principle that the Constitution is paramount. It overrides any governmental
measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme
law. (Mutuc v. Commission on Elections, supra)

The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the
freedom to speak and the right to know. It is not alone the widest possible dissemination of information on platforms
and programs which concern us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to
bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of candidates and elective
positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds
of the candidates running for Senator. The public does not know who are aspiring to be elected to public office.

There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the
voter may accept or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is
expressing more than the name; he is espousing ideas. Our review of the validity of the challenged regulation
includes its effects in today's particular circumstances. We are constrained to rule against the COMELEC
prohibition.

WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the
Commission on Elections providing that "decals and stickers may be posted only in any of the authorized posting
areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-239 June 30, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
APOLONIO CARLOS, defendant-appellant.

Vicente J. Francisco, Felicisimo Ocampo and Alberto V. Francisco for appellant.

Office of the First Assistant Solicitor General Reyes and Solicitor Tomacruz for appellee.

TUASON, J.:

The appellant was found guilty of treason by the People's Court and sentenced to reclusion perpetua, to pay a fine
of P7,000, and costs.

The findings of the People's Court are not assigned as errors or disputed.

The lower court found that one day in July or August, 1944, about two or three o'clock in the morning, a truck pulled
up to the curb in front of a house on Constancia Street, Sampaloc, Manila, where one Martin Mateo lived. From the
truck the accused, a Japanese spy, alighted together with members of the Japanese military police and pointed
Martin Mateo's house and Fermin Javier's house to his Japanese companions, whereupon the Japanese soldiers
broke into Martin Mateo's dwelling first and Fermin Javier's afterwards. In those houses they seized Martin Mateo,
Ladislao Mateo and Fermin Javier, bound their hands, and put them in the truck. Along with other persons who had
been rounded up in the other places and who had been kept in the truck while it was parked, they were taken to Fort
Santiago where the two Mateos and Fermin Javier were tortured and from which they were released six days later.
The reason for the arrest and maltreatment of Martin and Ladislao Mateo was that they had refused to divulge the
whereabouts of their brother, Marcelino Mateo, who was a guerrilla and who had escaped from the Japanese. And
Fermin Javier was arrested and tortured because he himself was a guerrilla, a fact which Carlos knew or at least
suspected.

The defendant in this instance invokes only questions of law. He assigns four alleged errors, viz.:

I. The lower court erred in not holding that the accused cannot be convicted of the offense of treason
committed against the government of the United States and of the Philippines, because it is a settled
principle in international law that in a territory actually under the authority of the enemy, all laws of political
complexion of the previous government are suspended, and are without force and inasmuch as the laws of
the United States and the Commonwealth of the Philippines defining and penalyzing the crime of treason
are all of political complexion, they were suspended and had no binding effect whatsoever upon the
inhabitants in the said occupied territories.

II. The People's Court erred in not declaring the accused could not have violated the Philippine law on
treason, because it is also a settled principle in international law that in such occupied territories all laws
inconsistent with the occupation are being likewise suspended and without force and effect over the
inhabitants, and since the laws of the United States and the Commonwealth of the Philippines defining and
penalyzing treason against the said government are by their very nature evidently inconsistent with the said
occupation of the Philippines by the Imperial Japanese forces, the said laws must be deemed as having
been suspended and without force and effect upon the Filipinos, during the said occupation.

III. The People's Court erred in not holding that the accused herein cannot be convicted of the crime of
treason committed against the government of the United States and of the Philippines, because it is settled
principle in international law that once the territory is so occupied by the enemy, the allegiance is as a legal
obligation distinguishable and distinguished from loyalty of the inhabitants therein to the former government
 or governments is temporarily suspended, and it being necessary and essential for the commission of the
offense of treason against the United States and the Commonwealth of the Philippines that the supposed
offender should owe allegiance to said government at the time of the alleged offense, it follows that the
accused cannot possibly be chargeable with treason against the United States and the Commonwealth of
the Philippines for acts allegedly committed by him in the territory of the Philippines actually occupied by the
Japanese during said occupation.

IV. The decision rendered in this case should be reversed and, set aside, because the law creating the
People's Court is unconstitutional.

The questions propounded in the first, second and third assignments of error were squarely raised and decided in
the case of Laurel vs. Misa (77 Phil., 856). That decision controls this appeal so far as the pleas of suspended
allegiance and change of sovereignty are concerned. On the strength thereof, the first three assignments of error
must be overruled.

The fourth assignment of error attacks the law creating the People's Court as unconstitutional. Numerous provisions
of the People's Court Act are singled out as contrary to the Organic Law. But in formulating many of his propositions
the appellant has not indicated the reasons or the authorities which sustain them. We shall dispose of them as
briefly as they are presented. For better understanding, we shall reproduce the appellant's propositions and will
comment on them separately.

The brief says:

(a) It (People's Court Act) contains provisions which deal on matters entirely foreign to the subject matter
expressed in its title, such as:

(1) The first proviso of section 2 thereof, which retains the jurisdiction of the Court of First Instance to try and
decide cases of crimes against national security committed during the second world war not filed within six
months, notwithstanding the fact that according to its title, the People's Court is precisely created for that
purpose, and impliedly, the People's Court jurisdiction in regard to said crimes is exclusive;

(2) The second proviso of the same section which grants the People's Court jurisdiction to convict and
sentence those accused therein even of crimes other than those against national security, although its title
does not in any way indicate that such jurisdiction over other crimes would be granted to the said court;

(3) Section 14 thereof, which adds to the disqualifications of Justice of the Supreme Court and provides a
procedure for their substitution, a matter not indicated in any manner in its title;

(4) The first proviso of action 19 thereof, which changes the existing Rules of Court on the subject of bail
although its title speaks only of the creation of the People's Court and the Office of Special Prosecutors; and

(5) The second proviso of the same section, which suspends the provisions of article 125 of the Revised
Penal Code, a substantive law, which is not referred to in its title expressly or by implication.

The People's Court was intended to be a full and complete scheme with its own machinery for the indictment, trial
and judgment of treason case. The various provisos mentioned, in our opinion, are allied and germane to the
subject matter and purposes of the People's Court Act; they are subordinate to its end. The multitude of matters
which the legislation, by its nature, has to embrace would make mention of all of them in the title of the act
cumbersome. It is not necessary, and the Congress is not expected, to make the title of an enactment a complete
index of its contents. (Government of the Philippine Islands vs. Municipality of Binalonan, 32 Phil., 634.) The
constitutional rule is satisfied if all parts of a law relate to the subject expressed in its title.

The brief says:

(b) It deprives persons similarly situated of the equal protection of the laws inasmuch as:
 (1) Only those political offenders against whom cases are filed within six months from the passage of the law
are to be tried in the People's Court, while others are to be tried in the Courts of First Instance;

(2) Political offenders accused in the People's Court are denied preliminary examination and/or investigation
whereas the others who shall be entitled thereto;

(3) Political offenders accused in the People's Court have limited right to appeal, while those who may be
accused of the same crimes in the Courts of First Instance have absolute right of appeal inasmuch as under
section 13 of the law, Rules 42 and 46 of the Rules of Court are made applicable to the latter;

(4) Appeals in the case involving persons who held any office or position under either or both the Philippine
Executive Commission and the Philippine Republic or any branch, instrumentality and/or agency thereof are
to heard and decided by a substantially different Supreme Court, thus causing lack of informity in rulings
over the same subject;

(5) The first proviso of section 19 thereof prescribes a different rule as to the granting of release on bail only
with respect to the political offenders detained by the United States Army and released to the
Commonwealth of the Philippines but not as to others political offenders accused or accusable of the same
crimes; and

(6) The second proviso of section 19 thereof suspends article 125 of the Revised Penal Code only as to
those political detainees released by the United States Army to the Commonwealth of the Philippines or, at
most, only to those accused or accusable of the crimes specified in the law and not as to all persons
accused or accusable of crimes against national security committed during the second world war, much less
to all offenders, notwithstanding the fact that there is no reasonable and real difference among said groups
of offenders.

(1) The People's Court is a court of special and restricted jurisdiction created under the stress of an emergency and
national security. It was devised to operate for a limited period only, a limitation imposed by economic necessity and
other factors of public policy. Obviously, the main concerning the creation of a special court was the trial and and
disposition of the cases, numbering over 6,000, of accused who were being held by the United States military
authorities and who were to be turned over to the Commonwealth Government. It was presumed that there were
other cases of treason not included in this number — cases which might not be discovered until years afterward — ,
and the possibility was not overlooked that even some of the cases which the United States Army was on the eve of
placing under the jurisdiction of the Philippine Government could not be filed and submitted for trial within a
foreseeable future owing to lack of readily available evidence, absence of witnesses, or other causes. On the other
hand, considerations of economy and public interests forbade maintenance of the People's Court for an indefinite
period. Under the circumstances, it was necessary that a provision be made requiring that only cases which could
be brought to court within six months and which were deemed enough to occupy the attention of the People's Court
within the limited time of its life, should be cognizable by it, and the rest should be instituted in the proper Courts of
First Instance. Such provision is not an arbitrary and international discrimination, and does not work as a deprivation
of the right to equal protection of the laws. Both in privileges or advantages conferred, if any, and in liabilities
imposed, if any, person under equal circumstances are treated alike. It does not deprive appellant of the protection
enjoyed by others failing within his class. The equal protection of the laws guaranteed by the Constitution "does not
prevent a state or municipality from adjusting its legislation to differences in situations and making a discrimination
or distinction in its legislation in respect of things that are different, provided that the discrimination or distinction has
a reasonable foundation or rational basis and is not palpably, purely, and entirely arbitrary in the legislative sense,
that is, outside of the wide discretion which the legislative body may exercise." (16 C.J.S., 997.) Moreover, with its
associate feature the People's Court is designed to extend greater protection to persons charged with collaboration
with the enemy. If others are prosecuted before a Court of First Instance, they and not the appellant should have
cause to complain of discrimination.

(2) Section 22 in denying preliminary investigation to persons accused before the People's Court is justified by the
conditions prevailing when the law was enacted. In view of the great number of prisoners then under detention and
the length of time and amount of labor that would be consumed if so many prisoners were allowed the right to have
preliminary investigation, considered with the necessity of disposing of these cases at the earliest possible dates in
the interest of the public and of the accused themselves, it was not an unwise measure which dispensed with such
investigation in such cases. Preliminary investigation, it must be remembered, is not a fundamental right guaranteed
by the Constitution. For the rest, the constitutional prohibition against discrimination among defendants placed in the
same situation and condition is not infringed.

(3) For the same reasons stated before, this contention cannot be upheld. There is a rational basis for the
distinction. The employment of two modes of appellate procedure in the two classes of cases involved are, in our
opinion, suitably adapted to the differences, in their composition, between the courts from which the appeals are
taken. The People's Court is a collegiate court whereas the Court of First Instance is presided over by a single
judge. Appeal is not a constitutional but statutory right. The admitted fact that there is no discrimination among
appeals from the same court or class of court saves the provision objected to from being unconstitutional.

(4) This objection does not seem to fall within the subject of constitutional guarantee against deprivation of equal
protection of the laws. Be that as it may, we find no merit in the appellant's contention. The disqualification under the
People's Court Act of some or a majority of the members of this Court and their substitution by justices of the Court
of Appeals or judges of the Courts of First Instance do not make the Supreme Court, as thus constituted, a new
court in the eyes of the law. A court is an entity possessing a personality separate and distinct from the men who
compose or sit on it. This objection is no more valid than that of a party in an ordinary action who protests that his
case is heard by a Supreme Court which, by reason of disability of a majority of its regular members, is made up
mostly of judges from outside. As to the "lack of uniformity in rulings over the same subject," it need only be said
that the Constitution does not insure uniformity of judicial decisions; neither does it assure immunity from judicial
error.

(5) and (6) The two provisos in section 19 do no constitute denial of equal protection of the laws. The distinction
made by these provisos between two sets of accused in the "granting or release on bail" and in the application of
article 125 of the Revised Penal Code are not arbitrary or fanciful calculated to favor or prejudice one or the other
class. This point was discussed at length and made clear in Laurel vs. Misa (76 Phil., 372), in which this Court
explained the reasons which necessitated the extension to six months of the authorized detention of persons
charged with treason before filing of information. The provisos rest "on some real and substantial difference or
distinction bearing a just and fair relation to the legislation." (16 C.J.S., 998.)

The brief says:

"(c) It is a bill of attainder in that it virtually imposes upon specific, known and identified individuals or group
of individual, the penalty of detention and imprisonment for a period not exceeding six months without any
form of judicial trial or procedure."

"The bill of attainder is a legislative act which inflicts punishment without judicial trial."
(Cummings vs.Missouri, 4 Wall., 232, etc.) Detention of a prisoner for a period not exceeding six months
pending investigation or trial is not a punishment but a necessary extension of the well-recognized power to
hold the criminal suspected for investigation. This proviso was held by this Court to be justified and
reasonable under existing circumstances in Laurel vs. Misa, supra.

The brief says:

"(d) Section 2 thereof which purports to define the jurisdiction of the People's Court constitutes an invalid and void
delegation of legislative power which is vested exclusively in the Congress of the Philippines by the Constitution, in
so far as said section virtually leaves unqualifiedly in the discretion of the Solicitor General and/or the Office of
Special Prosecutors the power to determine the actual cases over which the People's Court shall have jurisdiction."

Granting the correctness of the premise of this proposition, it does not follow that the authority vested in the Solicitor
General amounts to a delegation of legislative power. We do not think that the power to institute certain cases in one
court or another in the discretion of the prosecuting attorney is an exercise of legislative power. "The true distinction
is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be,
and conferring authority or discretion as to its law. The first cannot be done; to the latter no valid objection can be
made." (Cincinnati, V. & Z. R. Co. vs. Clinton County Comr's [1852], 1 Ohio St., 77, cited in Tañada on the
constitution of the Philippines, p. 291.)

The brief says:

 "(e) Sections 1, 4 and 18 thereof abridge, limit and curtail the power of appointment of the President or the
Chief Executive in that —

(1) Section 1 practically leaves the President with such a very small field of choice in the appointment of the
members of the court that he can hardly use his discretion in regard thereto; and

(4) Sections 4 and 18 actually designate and appoint the persons who will occupy the positions left vacant
by those appointed to the People's Court and the Office of Special Prosecutors respectively.

The power to create offices and courts is vested in the legislative department. Subject to constitutional restrictions,
the Congress may determine on the eligibility and qualification of officers and provide the method for filing them. We
find no valid objection on constitutional ground to a law which directs that a special temporary court should be filled
by appointment by the Chief Executive himself from among judges already on the bench and/or other quasi-judicial
officers. As to outsiders who might have to be appointed by reason of insufficiency of qualified men already in the
service, the Chief Executive is left with a wide field of choice.

The theory that "sections 4 and 18 actually designate and appoint the persons who will occupy the positions left
vacant by those appointed to the People's Court and the Office of Special Prosecutors respectively" loses sight of
the fact that the positions referred to are, as a matter of fact, vacant only in theory, and for the duration of the
People's Court, and that the law does no more than say that after those judges and officers shall have accomplished
their work, they shall go back to their permanent posts.

The brief says:

"(f) The said law provides for the designation and/or transfer of judges appointed for particular districts to another
place outside of their respective districts without the consent of the Supreme Court."

Section 7 of Article VIII of the Constitution provides that "no judge appointed for a particular district shall be
designated or transferred to another district without the approval of the Supreme Court. The Congress shall by law
determine the residence of judges of the inferior courts." This constitutional provision, as its language clearly states,
refers to transfers from one judicial district to another. It does not prohibit the appointment or designation of a judge
from being appointed temporarily or permanently with his consent to a court of different grade and make-up, such as
the People's Court.

The brief says:

"(g) Sections 13 and 19 thereof prescribed rules of procedure regarding appeal and bail which violate the rule of
uniformity of rules for all courts of the same grade established in the Constitution."

It is the rules promulgated by the Supreme Court which are required by section 13 of Article VIII of the Constitution
to be uniform for all courts of the same grade. The People's Court is not a court of the same grade, considering
many of its special features, and its purposes, as the Court of First Instance or any other existing court in the
Philippines, so that the adoption of special rules of procedure for said court different from those applicable to Courts
of First Instance is not violative of this constitutional mandate. More than this, the last sentence of the section
expressly authorizes the Congress "to repeal, alter, or supplement the rules concerning pleading, practice, and
procedure, and the admission to the practice of law in the Philippines."

The brief says:

"(h) It is destructive of the independence of the judiciary and thereby violates the constitutional provision that the
Philippines is a republican state because:

(1) By creating a special court with jurisdiction over cases which were already within the jurisdiction of the
existing Courts of First Instance without any real necessity and urgent justification, considering that the
persons involved in said cases were more or less known and identified at the time of the creation of said
special court, the law establishes a precedent under which the legislature may at any time remove from the
jurisdiction of existing courts cases involving definite or specific individuals or groups of individuals to serve
 any purpose which said legislature or the legislators composing the same may wish to accomplish, either to
the benefit or damage of said individuals or groups of individuals;

(2) By limiting the choice of the judges to compose the People's Court to those who did not hold any position
in the Philippine Executive Commission and/or the so-called Republic of the Philippines, the law makes a
classification that has absolutely no rational basis inasmuch as the reason for discriminating against those
who served in said governments, which is, that they might be prejudiced or influenced in favor of the
accused exists in equal measure for those who did not serve, in the sense that they may likewise be
prejudiced or influenced against the accused; and

(3) In leaving practically in the hands of the Solicitor General the absolute right to choose, in which court he
shall prosecute the cases contemplated by the law, and in providing that the judges of the People's Court
shall be chosen from a limited group of the judges of the Court of First Instance, etc., the law does not leave
a wide room for the play of external factors in the administration of justice to those concerned but also
destroys the confidence of the people in the judiciary.

(1 and 2) These objections go to the wisdom of the law and to matters of policy. This being so, it is enough that the
Congress deemed it necessary to incorporate these provisions in Commonwealth Act No. 682. It is not the province
of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is primarily
and exclusively a legislative concern. (Rubi vs. Provincial Board of Mindoro, 39 Phil., 661.)

(3) This proposition is covered by and answered in our comment on paragraph (d) of the brief.

The judgment of the lower court is affirmed with costs against appellant.

Moran, C.J., Feria, Pablo, Hilado, Bengzon, and Briones, JJ., concur.
Hontiveros, and Padilla, JJ., concur in the result.

PARAS, J.:

I reserve my vote, the decision in the Laurel case is not as yet final.

Separate Opinions

PERFECTO, J., concurring and dissenting:

The appeal in this case raises only questions of law. Of the four assignments of error made in appellant's brief, the
first three are premised on the theory of suspended allegiance, and the last is premised on the theory that the law
creating the People's Court is unconstitutional.

The question of suspended allegiance was already rejected by a majority of this court in the case of Laurel vs.
Misa,in a resolution dated January 30, 1947 (77 Phil., 856),and our reasons for voting for the rejection are
expressed in our written opinion in said case.

We do not see in appellant's brief any argument which may justify the changing of our opinion in the Laurel case
where, by the way, the question of suspended allegiance appears to have been discussed, perhaps, thoroughly and
exhaustibly.

Regarding the fourth assignment of error, appellant advances the following proposition: "The People's Court Law
(Commonwealth Act No. 682) is unconstitutional and void in many parts and as a whole because:
 "(a) it contains provisions which deal on matters entirely foreign to the subject matter expressed on its title;

"(b) It deprives persons similarly situated of the equal protection of the laws;

"(c) It is a bill of attainder in that it virtually imposes upon specific, known, and identified individuals or group
of individuals, the penalty of detention and imprisonment for a period not exceeding six months without any
form or judicial trial or procedure;

"(d) Section 2 thereof constitutes an invalid and void delegation of legislative power, in so far as it virtually
leaves unqualifiedly in the discretion of the Solicitor General and/or the Office of Special Prosecutors the
power to determine the actual case over which the People's Court shall have jurisdiction;

"(e) Section 1, 4, and 18 thereof abridge, limit and curtail the power of appointment of the President;

"(f) It provides for the designation and/or transfer of judges appointed for particular district to another place
outside of their respective district without the consent of the Supreme Court;

"(g) Section 13 and 19 thereof prescribed rules of procedure regarding appeal and bail which violate the rule
of uniformity of rules for all courts of the same grade established in the Constitution;

"(h) It is destructive of the independence of the judiciary and thereby violates the constitutional provision that
the Philippines is a republican state;

"(i) Section 14 providing for disqualification of some Justice of the Supreme Court is unreasonable in its
operation."

Although it is regrettable that appellant failed to elaborate on the several grounds upon which he impugns the
validity of the law in question, upon which theory he seeks reversal of the decision of the People's Court and his
acquittal from the treason charge, such failure does not relieve us from the duty of passing upon the questions
raised, much more because they are not of passing importance. Our opinion on the several grounds relied upon by
appellant to attack the validity of Commonwealth Act No. 682 as is follows:

(a) MULTIPLICITY OF SUBJECT MATTER

On the first ground, appellant undoubtedly relies on the following provision of the Constitution:

No bill which may be enacted into law shall embrace more than one subject which shall be expressed in the
title of the bill. (Section 21 [1], Article VI.)

Five reasons are advanced by appellant to show that the acts violates the constitutional prohibition against
multiplicity of subject matter. We are going to deal with them separately.

(1) It is alleged that, although the People's Court has been created precisely to try crimes against national security
with jurisdiction impliedly exclusive, section 2 thereof retains the jurisdiction of courts of first instance to try and
decide case not filed within six months. We do not believe that the provision violates the constitutional inhibition.
There should not be any question that the creation of the People's Court was an answer to an unusual situation,
created by the extraordinary social upheaval provoked by the last war, demanding an uncommon solution,
compatible with the tenets of our democracy, with the provision of the Constitution, and with the noble aims of
justice. The several thousands of persons detained upon liberation charged with treason and other crimes against
national security needed the creation of a judicial machinery for the prompt disposal of their cases so as not to
violate their constitutional right to a speedy trial. It was admitted that the inferior courts then existing were not
enough to cope with the situation. Those who are guilty, should be sentenced as soon as possible, so they may
expiate for the wrongs that they have committed, and those who are innocent are entitled to be cleared without any
delay. The People's Court was, therefore, created to shoulder the burden that the courts of first instance could not
bear. Congress estimate that six months was enough time for the cases of the thousands of detainees to be filed
with the People's Court, while the cases of those who have not yet been detained, on the assumption that they will
be few, there was no reason why these should not be disposed of by the courts of first instance as is declared in the
proviso of section 2. The proviso is germane with the subject matter of the law and does not violate the prohibition
against multiplicity of subject matter.

(2) The second objection is raised against the proviso authorizing the People's Court to convict and sentence those
accused for any crime included in the acts alleged in the information and established by the evidence, although they
are not classified as among those committed against national security. The objection cannot be entertained. The
proviso is within the logical purview of the creation of the People's Court. The lawmaker must have had in mind the
fact that among the thousands of detainees which motivated the creation of the court there were persons who had
committed crimes other than those against national security.

Although these are the crimes preliminary in the minds of those who arrested said detainees, there is nothing
unnatural that those who committed said crimes may have also committed offenses of different nature either in
connection with the first ones or independently, and if said other offenses are included among the facts alleged in
the information filed with the People's Court and proved by the evidence, there is no reason why said court should
not punish them as a court of first instance would, it appearing that the People's Court is but a special court of first
instance.

(3) The third objection points to the disqualification of certain Justice of the Supreme Court and the procedure of
their substitution as provided in section 14 of Commonwealth Act No. 682. Although said section is, in effect, null
and void as unconstitutional, it is not enough ground to hold the whole act as unconstitutional, as said section can
be eliminated without affecting the remaining provisions of the act.

(4) The fourth objection points to the proviso of section 19, which provides for an exception concerning political
offenders in the existing rules of court on the subject of bail. Whether the proviso is valid or not, it cannot affect the
constitutionality of the whole act. If it is valid, it is within the purview of the creation of the People's Court. If it is
invalid, it can be discarded without affecting the other provisions of the law.

(5) The fifth objection points to the second proviso of section 19, suspending the provisions of article 125 of the
Revised Penal Code. The proviso is evidently unconstitutional. It is within the purview of the creation of the People's
Court. It creates a discrimination violative of the constitutional guarantee of the equal protection of the laws. In
effect, it authorizes deprivation of liberty of the political prisoners for a period of six months, which is violated of the
constitutional guarantee that no person shall be deprived of his liberty without due process of law. But the proviso
may be eliminated without affecting the remaining portions of the act and, therefore, is not enough ground for
declaring the whole act null and void.

Our conclusion is that the first ground attacking the validity of the law is without merit.

(b) EQUAL PROTECTION OF THE LAWS

Appellant advances six reasons to show that the act violates the constitutional guarantee of the equal protection of
the laws.

(1) The first reason is that, under section 2, the People's Court is only to try the cases of political offenders against
whom the information has been filed within six months., while others shall be tried in a Court of First Instance. We
believe that there is no unjust discrimination in it, complain of any unjust discrimination. They will be tried by the
regular tribunals created to try all other offenses. Those who are to be tried by the People's Court cannot complain
either, because said court is but another court of first instance, although especially created for the prompt disposal
of the cases of political detainees. Congress made it collegiate as a guarantee against possible miscarriage of
justice due to popular excitement during the first months after the liberation. Congress believed that a three-person
tribunal can defend itself better against any outside pressure than a one-man tribunal.

(2) The second reason is that political offenders accused in the People's Court are denied the preliminary
investigation accorded to those who may be accused in the court of first instance. We are of opinion that the
allegation is groundless. There is nothing in the act in question depriving political offenders accused in the People's
Court of the preliminary investigation as provided by Rule 108.
(3) The third reason is that political offenders accused in the People's Court have limited right to appeal, while those
who may be accused of the same crime in court of first instance have absolute right to appeal. The allegation is
partly true. There appears a discrimination against those who may be convicted by the People's Court in banc, by
providing that they can only appeal in accordance with Rule 46, under which only questions of law may be raised.
We are of opinion that the discrimination is violative of the guarantee of the equal protection of the laws, and should
not be given effect. But the unconstitutional provision may be eliminated, without annulling the whole act. In practice,
the invalid discriminating provision seems to have become obsolete as all cases in the People's Court are tried and
decided in division and not in banc.

(4) The fourth reason is that appeals in cases involving persons who held any office under the governments
established by the Japanese during the occupation are to be heard and decided by a substantially different
Supreme Court. The allegation is correct by virtue of the provisions of section 14 which is flagrantly unconstitutional
because (a) the disqualification of some members of the Supreme Court provided therein constitutes in effect partial
removal form office in open violation of the guarantees and procedure provided by Article IX of the Constitution, (b) it
provides for sitting in the Supreme Court of persons not appointed in accordance with section 5 of Article VIII of the
constitution and without the qualifications provided in section 6 of the same article, and (c) it provides for the
existence of a second Supreme Court in violation of section 2 of Article VIII of the Constitution which provides for
only "one Supreme Court." But, as we have already stated, section 14 can be eliminated from Commonwealth Act
No. 682, without declaring the act wholly unconstitutional.

(5) The fifth reason is that there is discrimination in the first proviso of section 19 as to the granting of release on
bail. We are opinion that there is no substantial discrimination.

(6) The sixth reason is the discrimination provided in the second proviso of section 19. The proviso is null and void,
but it can be eliminated without annulling the whole act. It is a denial of the equal protection of the laws and is
violative of the constitutional guarantee against deprivation of liberty without due process of law. The proviso should
not be given effect, without annulling the whole act.

(c) BILL OF ATTAINDER

Appellant alleges that Commonwealth Act No. 682 is a bill of attainder in that it virtually impose upon specific, known
and identified individuals or group of individuals, the penalty of detention and imprisonment for a period not
exceeding six months without any form of judicial trial or procedure.

The allegation is justified by the second proviso of section 19 of the act. But it cannot affect it in whole as said
proviso can be eliminated without impairing the remaining proviso of the law.

(d) DELEGATION OF LEGISLATIVE POWER

Appellant alleges that section 2 constitutes an invalid and void delegation of legislative power in so far as it virtually
leaves unqualifiedly in the discretion of the Solicitor General and/or the Office of Special Prosecutors the power to
determine the actual cases over which the People's Court shall have jurisdiction. There is no such delegation. The
People's Court is substantially but one court of first instance, only with limited jurisdiction. Whether a case is to be
tried by the People's Court or by an ordinary court of first instance, there is no substantial difference for the
purposes of the administration of justice and the jurisdictions of both courts are specifically provided in the law.

(e) CURTAILMENT OF THE POWER OF APPOINTMENT OF THE PRESIDENT

Appellant's objection is directed against section 1, 4, and 18. The objection is untenable. Congress may validly
provide for the qualifications of the members of the People's Court. Section 8 of Article VIII of the constitution
expressly grants that authority.

(f) TRANSFER OF JUSTICE WITHOUT APPROVAL OF THE SUPREME COURT

Appellant alleges that Commonwealth Act No. 682 provides for the designation and/or transfer of judges to an other
place outside their respective districts without the consent of the Supreme Court, implying that section 7 of Article
VIII of the Constitution is violated. The allegation is untenable. The fact that the act authorizes the appointment of
person already holding positions in the judiciary to be members of the People's Court is no violation of the
constitutional mandate. What the authors of the Constitution contemplated were transfers from one district to
another, but not appointment of those already holding positions to other positions.

(g) UNIFORMITY OF LAWS

The objections of appellant in paragraph (g) is but a repetition of his objections in paragraph (b) already dealt with
above.

(h) INDEPENDENCE OF THE JUDICIARY

Appellant sets the following propositions:

1. By creating a special court with jurisdiction over cases which were already within the jurisdiction of the existing
courts of first instance, considering that the persons involved in said cases were more or less known and identified
at the time of the creation of said court, the law establishes a precedent under which Congress may at any time
remove from the jurisdiction of existing court cases involving definite or specific individuals or groups of individuals
to serve any purpose which the members of the Congress may wish to accomplish, either to the benefit or damage
of said individuals.

2. By limiting the choice of the judges to compose the People's Court, the law makes a classification that has
absolutely no rational basis.

3. In leaving to the hands of the Solicitor General the absolute right to choose in which court he shall prosecute the
cases contemplated by the law and in providing that the judges of the People's Court shall be chosen from a limited
groups of individuals, etc., the law does not leave a wide room for the play of external factors in the administration of
justice to those concerned but also destroys the confidence of the people in the judiciary.

The question raised in the above three propositions are serious but none of them amounts to a violation of the
fundamental law that may nullify the law in question, as they involve a matter of public policy, although the first one
points to a situation bordering into a transgression of the guarantee of the equal protection of the laws. If the
provisions of the law creating the special court should show a clear purpose of making a discrimination, pro or
against those who may be tried under it, then the law must be declared null and void in toto. Such is not the case of
the law under discussion. Matters of public policy not involving a violation of the fundamental law are within the
province of Congress to legislate, subject only to the control of the people through the electorate.

For all the foregoing, we vote to affirm the decision rendered by the lower court in this case.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the
posting of decals and stickers on "mobile" places, public or private, and limit their location or publication to the
authorized posting areas that it fixes.

On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the
Constitution, the Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election laws.

Section 15(a) of the resolution provides:

Sec. 15. Lawful Election Propaganda. — The following are lawful election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or
printed materials not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in
length. Provided, That decals and stickers may be posted only in any of the authorized posting
areas provided in paragraph (f) of Section 21 hereof.

Section 21 (f) of the same resolution provides:

Sec. 21(f). Prohibited forms of election propaganda. —

It is unlawful:

xxx xxx xxx

(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place,
whether public or private, mobile or stationary, except in the COMELEC common posted areas
and/or billboards, at the campaign headquarters of the candidate or political party, organization or
coalition, or at the candidate's own residential house or one of his residential houses, if he has more
than one:Provided, that such posters or election propaganda shall not exceed two (2) feet by three
(3) feet in size. (Emphasis supplied)

xxx xxx xxx

The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on
lawful election propaganda which provides:

Lawful election propaganda. — Lawful election propaganda shall include:

 (a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more
than eight and one-half inches in width and fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two
feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in
announcing the holding of said meeting or rally, streamers not exceeding three feet by eight feet in
size, shall be allowed: Provided, That said streamers may not be displayed except one week before
the date of the meeting or rally and that it shall be removed within seventy-two hours after said
meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the Commission may
authorize after due notice to all interested parties and hearing where all the interested parties were
given an equal opportunity to be heard: Provided, That the Commission's authorization shall be
published in two newspapers of general circulation throughout the nation for at least twice within one
week after the authorization has been granted. (Section 37, 1978 EC)

and Section 11(a) of Republic Act No. 6646 which provides:

Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda

prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint,
inscribe, write, post, display or publicly exhibit any election propaganda in any place, whether
private, or public, except in the common poster areas and/or billboards provided in the immediately
preceding section, at the candidate's own residence, or at the campaign headquarters of the
candidate or political party: Provided, That such posters or election propaganda shall in no case
exceed two (2) feet by three (3) feet in area: Provided, Further, That at the site of and on the
occasion of a public meeting or rally, streamers, not more than two (2) and not exceeding three (3)
feet by eight (8) feet each may be displayed five (5) days before the date of the meeting or rally, and
shall be removed within twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied)

Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's
Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like cars and other moving
vehicles. According to him such prohibition is violative of Section 82 of the Omnibus Election Code and Section
11(a) of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and print
political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with
this prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium to
inform the electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states
that as of February 22, 1992 (the date of the petition) he has not received any notice from any of the Election
Registrars in the entire country as to the location of the supposed "Comelec Poster Areas."

The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile"
places whether public or private except in designated areas provided for by the COMELEC itself is null and void on
constitutional grounds.

First — the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the
Constitution (Sec. 4, Article III). There is no public interest substantial enough to warrant the kind of restriction
involved in this case.

There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of
our own Bill of Rights provision on this basic freedom.

All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of
a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36
SCRA 228 [1970])
This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable
condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA
438 [1985]) It is difficult to imagine how the other provisions of the Bill of Rights and the right to free elections may
be guaranteed if the freedom to speak and to convince or persuade is denied and taken away.

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it
may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.
(New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief
Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions will
deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will
truly be free, clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what
may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage.
(Mutuc v. Commission on Elections, supra)

The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms
in order to promote fundamental public interests or policy objectives is always a difficult and delicate task. The so-
called balancing of interests — individual freedom on one hand and substantial public interests on the other — is
made even more difficult in election campaign cases because the Constitution also gives specific authority to the
Commission on Elections to supervise the conduct of free, honest, and orderly elections.

We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory
powers vis-a-vis the conduct and manner of elections, to wit:

Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable equal rates therefore, for
public information campaigns and forms among candidates in connection with the object of holding
free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4)

The variety of opinions expressed by the members of this Court in the recent case of National Press Club v.
Commission on Elections (G.R. No. 102653, March 5, 1991) and its companion cases underscores how difficult it is
to draw a dividing line between permissible regulation of election campaign activities and indefensible repression
committed in the name of free and honest elections. In the National Press Club, case, the Court had occasion to
reiterate the preferred status of freedom of expression even as it validated COMELEC regulation of campaigns
through political advertisements. The gray area is rather wide and we have to go on a case to case basis.

There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in
the opinion of some, too short, it becomes obvious that unduly restrictive regulations may prove unfair to affected
parties and the electorate.

For persons who have to resort to judicial action to strike down requirements which they deem inequitable or
oppressive, a court case may prove to be a hollow remedy. The judicial process, by its very nature, requires time for
rebuttal, analysis and reflection. We cannot act instantly on knee-jerk impulse. By the time we revoke an
unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and
irredeemable opportunities may have been lost.

When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the
part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local
officials and COMELEC, should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and
the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to
maintain them, the freedom to speak and the right to know are unduly curtailed.
There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but
all of us were unanimous that regulation of election activity has its limits. We examine the limits of regulation and not
the limits of free speech. The carefully worded opinion of the Court, through Mr. Justice Feliciano, shows that
regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in
time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her
qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable
nexus with the constitutionally sanctioned objective.

Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, in National
Press Club, we find the regulation in the present case of a different category. The promotion of a substantial
Government interest is not clearly shown.

A government regulation is sufficiently justified if it is within the constitutional power of the

Government, if it furthers an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id., at
377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d
772, 104 S Ct 2118 [1984])

The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any
substantial government interest. There is no clear public interest threatened by such activity so as to justify the
curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule
not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a writing instrument to be stilled:

The case confronts us again with the duty our system places on the Court to say where the
individual's freedom ends and the State's power begins. Choice on that border, now as always
delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the
preferred place given in our scheme to the great, the indispensable democratic freedom secured by
the first Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting
dubious intrusions and it is the character of the right, not of the limitation, which determines what
standard governs the choice . . .

For these reasons any attempt to restrict those liberties must be justified by clear public interest,
threatened not doubtfully or remotely, but by clear and present danger. The rational connection
between the remedy provided and the evil to be curbed, which in other context might support
legislation against attack on due process grounds, will not suffice. These rights rest on firmer
foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at
appropriate time and place, must have clear support in public danger, actual or impending. Only the
greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas
V. Collins, 323 US 516 [1945]). (Emphasis supplied)

Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate
or the political party. The regulation strikes at the freedom of an individual to express his preference and, by
displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the
car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner,
primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out
restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long as
these are not correctly paid-for advertisements or purchased opinions with less reason can we sanction the
prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who
pastes a sticker or decal on his private property.

Second — the questioned prohibition premised on the statute and as couched in the resolution is void for
overbreadth.

A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental
purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means
which sweep unnecessarily broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed
2d 444 [1967]).

In a series of decisions this Court has held that, even though the governmental purpose be
legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved. The breadth of legislative
abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance
prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license,
pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims.
In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of
four different municipalities which either banned or imposed prior restraints upon the distribution of
handbills. In holding the ordinances invalid, the court noted that where legislative abridgment of
fundamental personal rights and liberties is asserted, "the courts should be astute to examine the
effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of
public convenience may well support regulation directed at other personal activities, but be
insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of
democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60 S
Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject to regulation for the protection
of society," but pointed out that in each case "the power to regulate must be so exercised as not, in
attaining a permissible end, unduly to infringe the protected freedom." (310 US at 304) (Shelton v.
Tucker, 364 US 479 [1960]

The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width
and fourteen (14) inches in length in any place, including mobile places whether public or private except in areas
designated by the COMELEC. Verily, the restriction as to where the decals and stickers should be posted is so
broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In
consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1,
Article III of the Bill of Rights provides that no person shall be deprived of his property without due process of law:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and
dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right
to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.
Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of
the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by
the law of the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])

As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving
vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only
deprive the owner who consents to such posting of the decals and stickers the use of his property but more
important, in the process, it would deprive the citizen of his right to free speech and information:

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital
to the preservation of a free society that, putting aside reasonable police and health regulations of
time and manner of distribution, it must be fully preserved. The danger of distribution can so easily
be controlled by traditional legal methods leaving to each householder the full right to decide
whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that
forbidden by the constitution, the naked restriction of the dissemination of ideas." (Martin v. City of
Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty"
interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable.
The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election
propaganda in any place, whether public or private, except in the common poster areas sanctioned by COMELEC.
This means that a private person cannot post his own crudely prepared personal poster on his own front door or on
a post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what
overzealous and partisan police officers, armed with a copy of the statute or regulation, may do.

The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the
privacy of one's living room or bedroom. This is delegation running riot. As stated by Justice Cardozo in his
concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is
unconfined and vagrant . . . This is delegation running riot. No such plentitude of power is susceptible of transfer."

Third — the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the
electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in relation to
Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance.

Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public
service, . . . while under section 1, Article XIII thereof "The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity, reduce social, economic, andpolitical
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good."
(Emphasis supplied)

It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving
vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this
kind of election propaganda not the financial resources of the candidate. Whether the candidate is rich and,
therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the same
number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise
his right of free speech. The owner can even prepare his own decals or stickers for posting on his personal property.
To strike down this right and enjoin it is impermissible encroachment of his liberties.

In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the
authorized areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution:

. . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity
of any public act whether proceeding from the highest official or the lowest functionary, is a postulate
of our system of government. That is to manifest fealty to the rule of law, with priority accorded to
that which occupies the topmost rung in the legal hierarchy. The three departments of government in
the discharge of the functions with which it is entrusted have no choice but to yield obedience to its
commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes
must ever be on guard lest the restrictions on its authority, either substantive or formal, be
transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains.
In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to
maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass
upon the validity of the acts of the coordinate branches in the course of adjudication is a logical.
corollary of this basic principle that the Constitution is paramount. It overrides any governmental
measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme
law. (Mutuc v. Commission on Elections, supra)

The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the
freedom to speak and the right to know. It is not alone the widest possible dissemination of information on platforms
and programs which concern us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to
bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of candidates and elective
positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds
of the candidates running for Senator. The public does not know who are aspiring to be elected to public office.

There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the
voter may accept or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is
expressing more than the name; he is espousing ideas. Our review of the validity of the challenged regulation
includes its effects in today's particular circumstances. We are constrained to rule against the COMELEC
prohibition.

WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the
Commission on Elections providing that "decals and stickers may be posted only in any of the authorized posting
areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5790 April 17, 1953

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PABLO DE LA CRUZ, defendant-appellant.

Claro M. Recto for appellant.

Assistant Solicitor General Guillermo E. Torres and Solicitor Felixberto Milambiling for appellee.

BENGZON, J.:

Having retailed a can of milk at ten centavos more than the ceiling price, Pablo de la Cruz was sentenced, after trial,
in the court of first instance of Manila, to imprisonment for five years, and to pay a fine of five thousand pesos plus
costs. He was also barred from engaging in wholesale and retail business for five years.

In this appeal he argues that the trial judge erred: (a) in not holding that the charge was fabricated; (b) in imposing a
punishment wholly disproportionate to the offense and therefore unconstitutional and (c) in not invalidating Republic
Act No. 509 in so far as it prescribed excessive penalties.

The evidence shows that in the morning of October 14, 1950, Eduardo Bernardo, Jr. went to the defendant's store in
Sampaloc, Manila, and purchased from him a six-ounce tin of "Carnation" milk for thirty centavos. As the purchase
had been made for Ruperto Austria, who was not in good terms with Pablo de la Cruz the matter reached the City
Fiscal's office and resulted in this criminal prosecution, because Executive Order No. 331 (issued by authority of
Republic Act No. 509) fixed 20 centavos as the maximum price for that kind of commodity.

The record is now before us, and from a reading thereof, we find it difficult to accept appellants contention that the
charge had no foundation in fact. The People's case has been established beyond reasonable doubt.

And his argument based on the principles of entrapment, may not be upheld, because he was selling to the public,
i.e., to anybody who would come to his store to buy his commodities, and no special circumstances are shown to
support the claim that he was led or induced to commit the offense.

However, appellant's extensive discussion of his two propositions about the penalty, deserves serious
consideration.

Republic Act No. 509 provides in part as follows:

SEC. 12. Imprisonment for a period of not less two months nor more than twelve years or a fine of not less
than two thousand pesos nor more than ten thousand pesos, or both, shall be imposed upon any person
who sells any article, goods, or commodity in excess of the maximum selling price fixed by the president; . . .
.

In addition to the penalties prescribed above, the persons, corporations, partnerships, or associations found
guilty of any violation of this Act or of any rule or regulations issued by the president pursuant to this Act
shall be barred from the wholesome and retail business for a period of five years for a first offense, and shall
be permanently barred for the second or succeeding offenses.

The constitution directs that "Excessive fines shall not be imposed, nor cruel and unusual punishment inflicted." The
prohibition of cruel and unusual punishments is generally aimed at the form or character of the punishment rather
than its severity in respect of duration or amount, and apply to punishment which never existed in America of which
public sentiment has regarded as cruel or obsolete (15 Am. Jur., p. 172), for instance those inflicted at the whipping
post, or in the pillory, burning at the stake, breaking on the wheel, disemboweling, and the like (15 Am. Jur., supra,
Note 35 L.R.A. p. 561). Fine and imprisonment would not thus be within the prohibition.

However, there are respectable authorities holding that the inhibition applies as well to punishments that although
not cruel and unusual in nature, may be so severe as to fall within the fundamental restriction. (15 Am. Jur., p. 178.)
These authorities explain, nevertheless, that to justify a court's declaration of conflict with the Constitution, the
prison term must be so disproportionate to the offense committed as to shock the moral sense of all reasonable men
as to what is right and proper under the circumstances (lb.). And seldom has a sentence been declared to be cruel
and unusual solely on account of its duration (15 Am. Jur., p. 179).

Because it expressly enjoins the imposition of "excessive fines" the Constitution might have contemplated the latter
school of thought assessing punishments not only by their character but also by their duration or extent. And yet,
having applied "excessive" to fines, and "cruel and unusual" to punishment did it not intend to distinguish
"excessive" from "cruel" or "unusual"? And then, it has been heretofore the practice that when a court finds the
penalty to be "clearly excessive" it enforces the law but makes a recommendation to the Chief Executive for
clemency (Art. 5 Revised Penal Code). Did the Constitutional Convention intend to stop that practice? Or is that
article unconstitutional?

So far as the writer of this opinion has been able to ascertain, these questions have not been definitely passed upon
by this court,1 although in U.S. vs. Borromeo, 23 Phil., 279 it was said that the prohibition of the Philippine Bill on
punishments refer not only to the mode but to the extent thereto.

For the purposes of this decision, we may assume, without actually holding, that too long a prison term might clash
with the Philippine Constitution.

But that brings up again two opposing theories. On one side we are told the prohibition applies to legislation only,
and not to the courts' decision imposing penalties within the limits of the statute (15 Am. Jur., "Criminal Law" sec.
526). On the other, authorities are not lacking to the effect that the fundamental prohibition likewise restricts the
judge's power and authority (State vs. Ross 55 Or. 450, 104 Pac. 596; State vs. Whitaker, 48 La. Am. 527, 19 So.
457). (See also U.S. vs. Borromeo, 23 Phil., 279.)

In other words, and referring to the penalty provided in Republic Act No. 509, under the first theory the section would
violate the Constitution, if the penalty is excessive under any and all circumstances, the minimum being entirely out
of proportion to the kind of offenses prescribed. If it is not, the imposition by the judge of a stiff penalty — but within
the limits of the section — will not be deemed unconstitutional.2 The second theory would contrast the penalty
imposed by the court with the gravity of the particular crime or misdemeanor, and if notable disparity results, it would
apply the constitutional brake, even if the statute would, under other circumstances, be not extreme or oppressive.

Now therefore, if we adopt the first doctrine the present issue would be: Is imprisonment for two months or fine of
two thousand pesos too excessive for a merchant who sells goods at prices beyond the ceilings established in the
Executive Order? Obviously a negative answer must be returned, because in overstepping the price barriers he
might derive, in some instances, profits amounting to thousands of pesos. Therefore under that doctrine, the penalty
imposed in this case would not be susceptible of valid attack, it being within the statutory limits.

Under the second theory the inquiry should be: Is five years and five thousand pesos, cruel and unusual for a
violation that merely netted a ten-centavo profit to the accused? Many of us do not regard such punishment unusual
and cruel, remembering the national policy against profiteering in the matter of foodstuffs affecting the people's
health, the need of stopping speculation in such essentials and of safeguarding public welfare in times of food
scarcity or similar stress. In our opinion the damage caused to the State is not measured exclusively by the gains
obtained by the accused, inasmuch as one violation would mean others, and the consequential breakdown of the
beneficial system of price controls.

Some of us however are deeply moved by the plight of this modest store-owner with a family to support, who will
serve in Muntinglupa a stretch of five years, for having attempted to earn a few extra centavos.

Fortunately there is an area of compromise, skirting the constitutional issue, yet executing substantial justice: We
may decrease the penalty, exercising that discretion vested in the courts by the same statutory enactment.
Wherefore, reducing the imprisonment to six months and the fine to two thousand pesos, we hereby affirm the
appealed decision in all other respects.

Paras, C.J., Feria, Pablo, Tuason, Montemayor, Reyes, Jugo and Bautista Angelo, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. L-32613-14 December 27, 1972

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I),
FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias
"Taba," respondents.

Solicitor R. Mutuc for respondent Feliciano Co.

Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p

I. Statement of the Case

Posed in issue in these two cases is the constitutionality of the Anti-Subversion

Act,1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly, willfully and by overt
acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization.

On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against the
respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted
a preliminary investigation and, finding a prima facie case against Co, directed the Government prosecutors to file
the corresponding information. The twice-amended information, docketed as Criminal Case No. 27, recites:

That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously
became an officer and/or ranking leader of the Communist Party of the Philippines, an outlawed and
illegal organization aimed to overthrow the Government of the Philippines by means of force,
violence, deceit, subversion, or any other illegal means for the purpose of establishing in the
Philippines a totalitarian regime and placing the government under the control and domination of an
alien power, by being an instructor in the Mao Tse Tung University, the training school of recruits of
the New People's Army, the military arm of the said Communist Party of the Philippines.

That in the commission of the above offense, the following aggravating circumstances are present,
to wit:

(a) That the crime has been committed in contempt of or with insult to public authorities;

(b) That the crime was committed by a band; and afford impunity.

(c) With the aid of armed men or persons who insure or afford impunity.

Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the respondent Nilo
Tayag and five others with subversion. After preliminary investigation was had, an information was filed, which, as
amended, reads:

The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the Secretary
of Justice to collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order dated June 5,
above entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR
GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE
alias COMMANDER MELODY and several JOHN DOES, whose identities are still unknown, for
violation of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law, committed as
follows:

That in or about March 1969 and for sometime prior thereto and thereafter, in the Province of Tarlac,
within the jurisdiction of this Honorable Court, and elsewhere in the Philippines, the above-named
accused knowingly, willfully and by overt acts organized, joined and/or remained as offices and/or
ranking leaders, of the KABATAANG MAKABAYAN, a subversive organization as defined in
Republic Act No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto,
knowingly, willfully and by over acts joined and/or remained as a member and became an officer
and/or ranking leader not only of the Communist Party of the Philippines but also of the New
People's Army, the military arm of the Communist Party of the Philippines; and that all the above-
named accused, as such officers and/or ranking leaders of the aforestated subversive organizations,
conspiring, confederating and mutually helping one another, did then and there knowingly, willfully
and feloniously commit subversive and/or seditious acts, by inciting, instigating and stirring the
people to unite and rise publicly and tumultuously and take up arms against the government, and/or
engage in rebellious conspiracies and riots to overthrow the government of the Republic of the
Philippines by force, violence, deceit, subversion and/or other illegal means among which are the
following:

1. On several occasions within the province of Tarlac, the accused conducted meetings and/or
seminars wherein the said accused delivered speeches instigating and inciting the people to unite,
rise in arms and overthrow the Government of the Republic of the Philippines, by force, violence,
deceit, subversion and/or other illegal means; and toward this end, the said accused organized,
among others a chapter of the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the
avowed purpose of undertaking or promoting an armed revolution, subversive and/or seditious
propaganda, conspiracies, and/or riots and/or other illegal means to discredit and overthrow the
Government of the Republic of the Philippines and to established in the Philippines a Communist
regime.

2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO
PORTEM alias KIKO Gonzales and others, pursued the above subversive and/or seditious activities
in San Pablo City by recruiting members for the New People's Army, and/or by instigating and
inciting the people to organize and unite for the purpose of overthrowing the Government of the
Republic of the Philippines through armed revolution, deceit, subversion and/or other illegal means,
and establishing in the Philippines a Communist Government.

That the following aggravating circumstances attended the commission of the offense: (a) aid of
armed men or persons to insure or afford impunity; and (b) craft, fraud, or disguise was employed.

On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is a bill of
attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denied
him the equal protection of the laws.

Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970, declared the
statute void on the grounds that it is a bill of attainder and that it is vague and overboard, and dismissed the
informations against the two accused. The Government appealed. We resolved to treat its appeal as a special civil
action for certiorari.

II. Is the Act a Bill of Attainder?

Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall be enacted."2 A
bill of attainder is a legislative act which inflicts punishment without trial.3 Its essence is the substitution of a
legislative for a judicial determination of guilt.4 The constitutional ban against bills of attainder serves to implement
the principle of separation of powers 5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the judicial function.7 History in perspective, bills of
attainder were employed to suppress unpopular causes and political minorities, 8 and it is against this evil that the
constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a
legislative intent, suffice to stigmatizea statute as a bill of attainder. 9

In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder because it "tars
and feathers" the Communist Party of the Philippines as a "continuing menace to the freedom and security of the
country; its existence, a 'clear, present and grave danger to the security of the Philippines.'" By means of the Act,
the trial court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by pronouncing
the guilt of the CCP without any of the forms or safeguards of judicial trial." Finally, according to the trial court, "if the
only issue [to be determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill
of attainder because it has expressly created a presumption of organizational guilt which the accused can never
hope to overthrow."

1. When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the
Philippines or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be
an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4,
against membership in the outlawed organization. The term "Communist Party of the Philippines" issued solely for
definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other
organization having the same purpose and their successors." Its focus is not on individuals but on conduct. 10

This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management Reporting and
Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and therefore unconstitutional.
Section 504 provided in its pertinent parts as follows:

(a) No person who is or has been a member of the Communist

Party ... shall serve —

(1) as an officer, director, trustee, member of any executive board or similar governing body,
business agent, manager, organizer, or other employee (other than as an employee performing
exclusively clerical or custodial duties) of any labor organization.

during or for five years after the termination of his membership in the Communist Party....

(b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned
for not more than one year, or both.

This statute specified the Communist Party, and imposes disability and penalties on its members. Membership in
the Party, without more, ipso facto disqualifies a person from becoming an officer or a member of the governing
body of any labor organization. As the Supreme Court of the United States pointed out:

Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and Disclosure
Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the
Commerce Clause to enact legislation designed to keep from positions affecting interstate
commerce persons who may use of such positions to bring about political strikes. In section 504,
however, Congress has exceeded the authority granted it by the Constitution. The statute does not
set forth a generally applicable rule decreeing that any person who commits certain acts or
possesses certain characteristics (acts and characteristics which, in Congress' view, make them
likely to initiate political strikes) shall not hold union office, and leaves to courts and juries the job of
deciding what persons have committed the specified acts or possessed the specified
characteristics. Instead, it designates in no uncertain terms the persons who possess the feared
characteristics and therefore cannot hold union office without incurring criminal liability — members
of the Communist Party.
 Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT 1357,
lend a support to our conclusion. That case involved an appeal from an order by the Control Board
ordering the Communist Party to register as a "Communist-action organization," under the
Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The
definition of "Communist-action organization" which the Board is to apply is set forth in sec. 3 of the
Act:

[A]ny organization in the United States ... which (i)is substantially directed, dominated, or controlled
by the foreign government or foreign organization controlling the world Communist movement
referred to in section 2 of this title, and(ii) operates primarily to advance the objectives of such world
Communist movement... 64 Stat 989, 50 USC sec. 782 (1958 ed.)

A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that sec.
3 does not specify the persons or groups upon which the deprivations setforth in the Act are to be
imposed, but instead sets forth a general definition. Although the Board has determined in 1953 that
the Communist Party was a "Communist-action organization," the Court found the statutory definition
not to be so narrow as to insure that the Party would always come within it:

In this proceeding the Board had found, and the Court of Appeals has sustained its conclusion, that
the Communist Party, by virtud of the activities in which it now engages, comes within the terms of
the Act. If the Party should at anytime choose to abandon these activities, after it is once registered
pursuant to sec. 7, the Act provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)

Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in
court, as the law alone, without more, would suffice to secure their punishment. But the undeniable fact is that their
guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the
Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with
specific intent to further its basic objective, i.e., to overthrow the existing Government by force deceit, and other
illegal means and place the country under the control and domination of a foreign power.

As to the claim that under the statute organizationl guilt is nonetheless imputed despite the requirement of proof of
knowing membership in the Party, suffice it to say that is precisely the nature of conspiracy, which has been referred
to as a "dragneet device" whereby all who participate in the criminal covenant are liable. The contention would be
correct if the statute were construed as punishing mere membership devoid of any specific intent to further the
unlawful goals of the Party. 13 But the statute specifically required that membership must be knowing or active, with
specific intent to further the illegal objectives of the Party. That is what section 4 means when it requires that
membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." 14 The
ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt acts." 15 This
constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of
direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to the
organization's illegal objectives.

2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render
it a bill of attainder. A statute prohibiting partners or employees of securities underwriting firms from serving as
officers or employees of national banks on the basis of a legislative finding that the persons mentioned would be
subject to the temptation to commit acts deemed inimical to the national economy, has been declared not to be a bill
of attainder. 16 Similarly, a statute requiring every secret, oath-bound society having a membership of at least twenty
to register, and punishing any person who becomes a member of such society which fails to register or remains a
member thereof, was declared valid even if in its operation it was shown to apply only to the members of the Ku
Klux Klan. 17

In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to file with the
Department of Labor affidavits of union officers "to the effect that they are not members of the Communist Party and
that they are not members of any organization which teaches the overthrow of the Government by force or by any
illegal or unconstitutional method," was upheld by this Court. 19

Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in
such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. 20 It is upon this
ground that statutes which disqualified those who had taken part in the rebellion against the Government of the
United States during the Civil War from holding office, 21 or from exercising their profession, 22 or which prohibited the
payment of further compensation to individuals named in the Act on the basis of a finding that they had engages in
subversive activities, 23 or which made it a crime for a member of the Communist Party to serve as an officer or
employee of a labor union, 24 have been invalidated as bills of attainder.

But when the judgment expressed in legislation is so universally acknowledged to be certain as to be "judicially
noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to make such
determination. 25

In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every secret, oath-
bound society with a membership of at least twenty to register, and punishing any person who joined or remained a
member of such a society failing to register. While the statute did not specify the Ku Klux Klan, in its operation the
law applied to the KKK exclusively. In sustaining the statute against the claim that it discriminated against the Ku
Klux Klan while exempting other secret, oath-bound organizations like masonic societies and the Knights of
Columbus, the United States Supreme Court relied on common knowledge of the nature and activities of the Ku
Klux Klan. The Court said:

The courts below recognized the principle shown in the cases just cited and reached the conclusion
that the classification was justified by a difference between the two classes of associations shown by
experience, and that the difference consisted (a) in a manifest tendency on the part of one class to
make the secrecy surrounding its purpose and membership a cloak for acts and conduct inimical to
personal rights and public welfare, and (b) in the absence of such a tendency on the part of the other
class. In pointing out this difference one of the courts said of the Ku Klux Klan, the principal
association in the included class: "It is a matter of common knowledge that this organization
functions largely at night, its members disguised by hoods and gowns and doing things calculated to
strike terror into the minds of the people;" and later said of the other class: "These organizations and
their purposes are well known, many of them having been in existence for many years. Many of
them are oath-bound and secret. But we hear no complaint against them regarding violation of the
peace or interfering with the rights of others." Another of the courts said: "It is a matter of common
knowledge that the association or organization of which the relator is concededly a member
exercises activities tending to the prejudice and intimidation of sundry classes of our citizens. But the
legislation is not confined to this society;" and later said of the other class: "Labor unions have a
recognized lawful purpose. The benevolent orders mentioned in the Benevolent Orders Law have
already received legislative scrutiny and have been granted special privileges so that the legislature
may well consider them beneficial rather than harmful agencies." The third court, after recognizing
"the potentialities of evil in secret societies," and observing that "the danger of certain organizations
has been judicially demonstrated," — meaning in that state, — said: "Benevolent orders, labor
unions and college fraternities have existed for many years, and, while not immune from hostile
criticism, have on the whole justified their existence."

We assume that the legislature had before it such information as was readily available including the
published report of a hearing, before a committee of the House of Representatives of the 57th
Congress relating to the formation, purposes and activities of the Klu Klux Klan. If so it was advised
— putting aside controverted evidence — that the order was a revival of the Ku Klux Klan of an
earlier time with additional features borrowed from the Know Nothing and the A. P. A. orders of other
periods; that its memberships was limited to native-born, gentile, protestant whites; that in part of its
constitution and printed creed it proclaimed the widest freedom for all and full adherence to the
Constitution of the United States; in another exacted of its member an oath to shield and preserve
"white supremacy;" and in still another declared any person actively opposing its principles to be "a
dangerous ingredient in the body politic of our country and an enemy to the weal of our national
commonwealth;" that it was conducting a crusade against Catholics, Jews, and Negroes, and
stimulating hurtful religious and race prejudices; that it was striving for political power and assuming
a sort of guardianship over the administration of local, state and national affairs; and that at times it
was taking into its own hands the punishment of what some of its members conceived to be
crimes. 27
In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In
1932 we found the Communist Party of the Philippines to be an illegal association. 28 In 1969 we again found that the
objective of the Party was the "overthrow of the Philippine Government by armed struggle and to establish in the
Philippines a communist form of government similar to that of Soviet Russia and Red China." 29 More recently,
in Lansang vs. Garcia, 30 we noted the growth of the Communist Party of the Philippines and the organization of
Communist fronts among youth organizations such as the Kabataang Makabayan (KM) and the emergence of the
New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about
the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have
thus been and still are engaged in rebellion against the Government of the Philippines.

3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the
prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This
requirement follows from the nature of a bill of attainder as a legislative adjudication of guilt. As Justice Frankfurter
observed, "frequently a bill of attainder was ... doubly objectionable because of its ex post facto features. This is the
historic explanation for uniting the two mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill of attainder it is
also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive
that it cannot be a bill of attainder." 31

Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter of the City
of Los Angeles which provided:

... [N]o person shall hold or retain or be eligible for any public office or employment in the service of
the City of Los Angeles, in any office or department thereof, either elective or appointive, who has
within five (5) years prior to the effective date of this section advised, advocated, or taught, or who
may, after this section becomes effective, become a member of or affiliated with any group, society,
association, organization or party which advises, advocates or teaches or has within said period of
five (5) years advised, advocated, or taught the overthrow by force or violence of the Government of
the United States of America or of the State of California.

In upholding the statute, the Court stressed the prospective application of the Act to the petitioner therein, thus:

... Immaterial here is any opinion we might have as to the charter provision insofar as it purported to
apply restrospectively for a five-year period to its effective date. We assume that under the Federal
Constitution the Charter Amendment is valid to the extent that it bars from the city's public service
persons who, subsequently to its adoption in 1941, advise, advocate, or reach the violent overthrow
of the Government or who are or become affiliated with any group doing so. The provisions
operating thus prospectively were a reasonable regulation to protect the municipal service by
establishing an employment qualification of loyalty to the State and the United States.

... Unlike the provisions of the charter and ordinance under which petitioners were removed, the
statute in the Lovett case did not declare general and prospectively operative standards of
qualification and eligibility for public employment. Rather, by its terms it prohibited any further
payment of compensationto named individuals or employees. Under these circumstances, viewed
against the legislative background, the statutewas held to have imposed penalties without judicial
trial.

Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy, them it mustbe
demonstrated that the statute claimed to be a bill of attainderreaches past conduct and that the penalties it
imposesare inescapable. As the U.S. Supreme Court observedwith respect to the U.S. Federal Subversive Activities
ControlAct of 1950:

Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct which it
regulates is describedwith such particularity that, in probability, few organizationswill come within the
statutory terms. Legislatures may act tocurb behaviour which they regard as harmful to the public
welfare,whether that conduct is found to be engaged in by manypersons or by one. So long as the
incidence of legislation issuch that the persons who engage in the regulated conduct, bethey many
 or few, can escape regulation merely by altering thecourse of their own present activities, there can
be no complaintof an attainder. 33

This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof expressly statesthat the
prohibition therein applies only to acts committed"After the approval of this Act." Only those who "knowingly,willfully
and by overt acts affiliate themselves with,become or remain members of the Communist Party of thePhilippines
and/or its successors or of any subversive association"after June 20, 1957, are punished. Those whowere members
of the Party or of any other subversive associationat the time of the enactment of the law, weregiven the opportunity
of purging themselves of liability byrenouncing in writing and under oath their membershipin the Party. The law
expressly provides that such renunciationshall operate to exempt such persons from penalliability. 34 The penalties
prescribed by the Act are thereforenot inescapable.

III. The Act and the Requirements of Due Process

1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the Philippinesis
an organized conspiracy for the overthrow of theGovernment is inteded not to provide the basis for a
legislativefinding of guilt of the members of the Party butrather to justify the proscription spelled out in section 4.
Freedom of expression and freedom of association are sofundamental that they are thought by some to occupy
a"preferred position" in the hierarchy of constitutional values. 35 Accordingly, any limitation on their exercise mustbe
justified by the existence of a substantive evil. This isthe reason why before enacting the statute in question
Congressconducted careful investigations and then stated itsfindings in the preamble, thus:

... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an
organized conspiracyto overthrow the Government of the Republic of the Philippinesnot only by
force and violence but also by deceit, subversionand other illegal means, for the purpose of
establishing in thePhilippines a totalitarian regime subject to alien dominationand control;

... [T]he continued existence and activities of the CommunistParty of the Philippines constitutes a
clear, present andgrave danger to the security of the Philippines;

... [I]n the face of the organized, systematice and persistentsubversion, national in scope but
international in direction,posed by the Communist Party of the Philippines and its activities,there is
urgent need for special legislation to cope withthis continuing menace to the freedom and security of
the country.

In truth, the constitutionality of the Act would be opento question if, instead of making these findings in enactingthe
statute, Congress omitted to do so.

In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed to takeproper
account of the distinction between legislative fact and adjudicative fact. Professor Paul Freund elucidatesthe crucial
distinction, thus:

... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would raise a
question of legislativefact, i.e., whether this standard has a reasonable relationto public health,
morals, and the enforcement problem. Alaw forbidding the sale of intoxicating beverages (assuming
itis not so vague as to require supplementation by rule-making)would raise a question of adjudicative
fact, i.e., whether thisor that beverage is intoxicating within the meaning of the statuteand the limits
on governmental action imposed by the Constitution. Of course what we mean by fact in each case
is itselfan ultimate conclusion founded on underlying facts and oncriteria of judgment for weighing
them.

A conventional formulation is that legislative facts — those facts which are relevant to the legislative
judgment — will not be canvassed save to determine whether there is a rationalbasis for believing
that they exist, while adjudicativefacts — those which tie the legislative enactment to the litigant —
are to be demonstrated and found according to the ordinarystandards prevailing for judicial trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that 'if laws are
seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio."
The recital of legislative findings implements this test.

With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities Control Actof 1950
(that "Communist-action organizations" are controlledby the foreign government controlling the worldCommunist
movement and that they operate primarily to"advance the objectives of such world Communist movement"),the U.S.
Supreme Court said:

It is not for the courts to reexamine the validity of theselegislative findings and reject them....They
are the productof extensive investigation by Committes of Congress over morethan a decade and a
half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as
unfoundedirrational imaginings. ... And if we accept them, as we mustas a not unentertainable
appraisal by Congress of the threatwhich Communist organizations pose not only to existing
governmentin the United States, but to the United States as asovereign, independent Nation. ...we
must recognize that thepower of Congress to regulate Communist organizations of thisnature is
extensive. 39

This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-Subversion Act.

That the Government has a right to protect itself againstsubversion is a proposition too plain to require
elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes every other value, "forif
a society cannot protect its very structure from armedinternal attack, ...no subordinate value can be protected" 40 As
Chief Justice Vinson so aptly said in Dennis vs. United States: 41

Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion against
dictatorial governmentsis without force where the existing structure of government provides for
peaceful and orderly change. We rejectany principle of governmental helplessness in the face of
preparationfor revolution, which principle, carried to its logical conclusion,must lead to anarchy. No
one could conceive that it isnot within the power of Congress to prohibit acts intended tooverthrow
the government by force and violence.

2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof),
Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be legitimate and
substantial,that purpose cannot be pursued by means that broadly stiflefundamental personal liberties when the end
can be more narrowly achieved." 42 The requirement of knowing membership,as distinguished
from nominal membership, hasbeen held as a sufficient basis for penalizing membershipin a subversive
organization. 43 For, as has been stated:

Membership in an organization renders aid and encouragement to the organization; and when
membership is acceptedor retained with knowledge that the organization is engaged inan unlawful
purpose, the one accepting or retaining membershipwith such knowledge makes himself a party to
the unlawfulenterprise in which it is engaged. 44

3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of "overthrow"of the
Government and overthrow may be achieved by peaceful means, misconceives the function of the
phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative declaration; the
definitionsof and the penalties prescribed for the different acts prescribedare stated in section 4 which requires that
membershipin the Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully and by
overt acts." Indeed, the first "whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by
forceand violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in section
2 appearsto be due more to an oversight rather than to deliberateomission.

Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only in a
metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law does not speak in
metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow" in a metaphorical sense is
hardlyconsistent with the clearly delineated objective of the "overthrow,"namely, "establishing in the Philippines a
totalitarianregime and place [sic] the Government under thecontrol and domination of an alien power." What
thisCourt once said in a prosecution for sedition is appropos: "The language used by the appellant clearly imported
anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious sense in which it
wasevidently intended to be understood. The word 'overthrow'could not have been intended as referring to an
ordinarychange by the exercise of the elective franchise. The useof the whip [which the accused exhorted his
audience to useagainst the Constabulary], an instrument designed toleave marks on the sides of adversaries, is
inconsistentwith the mild interpretation which the appellant wouldhave us impute to the language." 45

IV. The Act and the Guaranty of Free Expression

As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence
orother illegal means. Whatever interest in freedom of speechand freedom of association is infringed by the
prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is so indirect and so insubstantial
as to beclearly and heavily outweighed by the overriding considerationsof national security and the preservartion of
democraticinstitutions in his country.

The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership provision ofthe
Anti-Subversion Act. The former provides:

Whoever organizes or helps or attempts to organize anysociety, group, or assembly of persons who
teach, advocate, orencourage the overthrow or destruction of any such governmentby force or
violence; or becomes or is a member of, or affiliatedwith, any such society, group or assembly of
persons, knowingthe purpose thereof —

Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and shall be
ineligible for emplymentby the United States or any department or agencythereof, for the five years
next following his conviction.... 46

In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47

It was settled in Dennis that advocacy with which we arehere concerned is not constitutionally
protected speech, and itwas further established that a combination to promote suchadvocacy, albeit
under the aegis of what purports to be a politicalparty, is not such association as is protected by the
firstAmendment. We can discern no reason why membership, whenit constitutes a purposeful form
of complicity in a group engagingin this same forbidden advocacy, should receive anygreater degree
of protection from the guarantees of that Amendment.

Moreover, as was held in another case, where the problemsof accommodating the exigencies of self-
preservationand the values of liberty are as complex and intricate as inthe situation described in the legislative
findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the legislative judgment as to how that
threat may best bemet consistently with the safeguards of personal freedomsis not to be set aside merely because
the judgment of judgeswould, in the first instance, have chosen other methods. 48 For in truth, legislation, "whether it
restrains freedom tohire or freedom to speak, is itself an effort at compromisebetween the claims of the social order
and individual freedom,and when the legislative compromise in either case isbrought to the judicial test the court
stands one step removedfrom the conflict and its resolution through law." 49

V. The Act and its Title

The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into law shall
embrace more than one subject which shall be expressed in the title of the bill." 50

What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4 which reads:

And provided, finally, That one who conspires with anyother person to overthrow the Government of
the Republic ofthe Philippines, or the government of any of its political subdivisionsby force,
violence, deceit, subversion or illegal means,for the purpose of placing such Government or political
 subdivisionunder the control and domination of any lien power, shallbe punished by prision
correccional to prision mayor with allthe accessory penalties provided therefor in the same code.

It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of the
Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the national or any local
governmentby illegal means, even if their intent is not to establisha totalitarian regime, burt a democratic regime,
evenif their purpose is not to place the nation under an aliencommunist power, but under an alien democratic power
likethe United States or England or Malaysia or even an anti-communistpower like Spain, Japan, Thailand or
Taiwanor Indonesia."

The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and
SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title. Section 1
providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates that the subject
matter is subversionin general which has for its fundamental purpose the substitutionof a foreign totalitarian regime
in place of theexisting Government and not merely subversion by Communistconspiracies..

The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of the Act. 51 It is
a valid title if it indicates in broad but clear termsthe nature, scope, and consequences of the proposed lawand its
operation. 52 A narrow or technical construction isto be avoided, and the statute will be read fairly and reasonablyin
order not to thwart the legislative intent. We holdthat the Anti-Subversion Act fully satisfies these requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize the needfor
prudence and circumspection in its enforcement, operatingas it does in the sensitive area of freedom of
expressionand belief. Accordingly, we set the following basic guidelines to be observed in any prosecution under the
Act.The Government, in addition to proving such circumstancesas may affect liability, must establish the following
elementsof the crime of joining the Communist Party of the Philippinesor any other subversive association:

(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that thepurpose of
the organization is to overthrow the presentGovernment of the Philippines and to establish in thiscountry a
totalitarian regime under the domination of aforeign power; (b) that the accused joined such organization;and (c) that
he did so knowingly, willfully and byovert acts; and

(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the objectiveswhich
led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of the Government by
illegalmeans for the purpose of placing the country under thecontrol of a foreign power; (b) that the accused joined
theCPP; and (c) that he did so willfully, knowingly and byovert acts.

We refrain from making any pronouncement as to thecrime or remaining a member of the Communist Party ofthe
Philippines or of any other subversive association: weleave this matter to future determination.

ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases are
herebyremanded to the court a quo for trial on the merits. Costs de oficio.

Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.

Concepcion, C.J., concurs in the result.

Makasiar and Antonio, JJ., took no part.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-18208 February 14, 1922

THE UNITED STATES, plaintiff-appellee,

vs.
VICENTE DIAZ CONDE and APOLINARIA R. DE CONDE, defendants-appellants.

Araneta & Zaragoza for appellants.

Attorney-General Villareal for appellee.

JOHNSON, J.:

It appears from the record that on the 6th day of May, 1921, a complaint was presented in the Court of First Instance
of the city of Manila, charging the defendants with a violation of the Usury Law (Act No. 2655). Upon said complaint
they were each arrested, arraigned, and pleaded not guilty. The cause was finally brought on for trial on the 1st day
of September, 1921. At the close of the trial, and after a consideration of the evidence adduced, the Honorable M. V.
del Rosario, judge, found that the defendants were guilty of the crime charged in the complaint and sentenced each
of them to pay a fine of P120 and, in case of insolvency, to suffer subsidiary imprisonment in accordance with the
provisions of the law. From that sentence each of the defendants appealed to this court.

The appellants now contend: (a) That the contract upon which the alleged usurious interest was collected was
executed before Act No. 2655 was adopted; (b) that at the time said contract was made (December 30, 1915), there
was no usury law in force in the Philippine Islands; (c) that said Act No. 2655 did not become effective until the 1st
day of May, 1916, or four months and a half after the contract in question was executed; (d) that said law could have
no retroactive effect or operation, and (e) that said law impairs the obligation of a contract, and that for all of said
reasons the judgment imposed by the lower court should be revoked; that the complaint should be dismissed, and
that they should each be discharged from the custody of the law.

The essential facts constituting the basis of the criminal action are not in dispute, and may be stated as follows: (1)
That on the 30th day of December, 1915, the alleged offended persons Bartolome Oliveros and Engracia Lianco
executed and delivered to the defendants a contract (Exhibit B) evidencing the fact that the former had borrowed
from the latter the sum of P300, and (2) that, by virtue of the terms of said contract, the said Bartolome Oliveros and
Engracia Lianco obligated themselves to pay to the defendants interest at the rate of five per cent (5%) per month,
payable within the first ten days of each and every month, the first payment to be made on the 10th day of January,
1916. There were other terms in the contract which, however, are not important for the decision in the present case.

The lower court, in the course of its opinion, stated that at the time of the execution and delivery of said contract
(Exhibit B), there was no law in force in the Philippine Islands punishing usury; but, inasmuch as the defendants had
collected a usurious rate of interest after the adoption of the Usury Law in the Philippine Islands (Act No. 2655), they
were guilty of a violation of that law and should be punished in accordance with its provisions.

The law, we think, is well established that when a contract contains an obligation to pay interest upon the principal,
the interest thereby becomes part of the principal and is included within the promise to pay. In other words, the
obligation to pay interest on money due under a contract, be it express or implied, is a part of the obligation of the
contract. Laws adopted after the execution of a contract, changing or altering the rate of interest, cannot be made to
apply to such contract without violating the provisions of the constitution which prohibit the adoption of a law
"impairing the obligation of contract." (8 Cyc., 996; 12 Corpus Juris, 1058-1059.)

The obligation of the contract is the law which binds the parties to perform their agreement if it is not contrary to the
law of the land, morals or public order. That law must govern and control the contract in every aspect in which it is
intended to bear upon it, whether it affect its validity, construction, or discharge. Any law which enlarges, abridges,
or in any manner changes the intention of the parties, necessarily impairs the contract itself. If a law impairs the
obligation of a contract, it is prohibited by the Jones Law, and is null and void. The laws in force in the Philippine
Islands prior to any legislation by the American sovereignty, prohibited the Legislature from giving to any penal law a
retroactive effect unless such law was favorable to the person accused. (Articles 21 and 22, Penal Code.)

A law imposing a new penalty, or a new liability or disability, or giving a new right of action, must not be construed
as having a retroactive effect. It is an elementary rule of contract that the laws in force at the time the contract was
made must govern its interpretation and application. Laws must be construed prospectively and not retrospectively.
If a contract is legal at its inception, it cannot be rendered illegal by any subsequent legislation. If that were
permitted then the obligations of a contract might be impaired, which is prohibited by the organic law of the
Philippine Islands. (U.S. vs. Constantino Tan Quingco Chua, 39 Phil., 552; Aguilar vs. Rubiato and Gonzales Vila,
40 Phil., 570.)

Ex post facto laws, unless they are favorable to the defendant, are prohibited in this jurisdiction. Every law that
makes an action, done before the passage of the law, and which was innocent when done, criminal, and punishes
such action, is an ex post facto law. In the present case Act No. 2655 made an act which had been done before the
law was adopted, a criminal act, and to make said Act applicable to the act complained of would be to give it an ex
post facto operation. The Legislature is prohibited from adopting a law which will make an act done before its
adoption a crime. A law may be given a retroactive effect in civil action, providing it is curative in character, but ex
post facto laws are absolutely prohibited unless its retroactive effect is favorable to the defendant.

For the reason, therefore, that the acts complained of in the present case were legal at the time of their occurrence,
they cannot be made criminal by any subsequent or ex post facto legislation. What the courts may say, considering
the provisions of article 1255 of the Civil Code, when a civil action is brought upon said contract, cannot now be
determined. A contract may be annulled by the courts when it is shown that it is against morals or public order.

For all of the foregoing reasons, we are of the opinion, and so decide, that the acts complained of by the defendants
did not constitute a crime at the time they were committed, and therefore the sentence of the lower court should be,
and is hereby, revoked; and it is hereby ordered and decreed that the complaint be dismissed, and that the
defendants be discharged from the custody of the law, with costs de oficio. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-32485 October 22, 1970

IN THE MATTER OF THE PETITION FOR THE DECLARATION OF THE PETITIONER'S RIGHTS AND DUTIES
UNDER SEC. 8 OF R.A. No. 6132.

KAY VILLEGAS KAMI, INC., petitioner.

MAKASIAR, J.:.

This petition for declaratory relief was filed by Kay Villegas Kami, Inc., claiming to be a duly recognized and existing
non-stock and non-profit corporation created under the laws of the land, and praying for a determination of the
validity of Sec. 8 of R.A. No. 6132 and a declaration of petitioner's rights and duties thereunder. In paragraph 7 of its
petition, petitioner avers that it has printed materials designed to propagate its ideology and program of government,
which materials include Annex B; and that in paragraph 11 of said petition, petitioner intends to pursue its purposes
by supporting delegates to the Constitutional Convention who will propagate its ideology.

Petitioner, in paragraph 7 of its petition, actually impugns because it quoted, only the first paragraph of Sec. 8(a) on
the ground that it violates the due process clause, right of association, and freedom of expression and that it is an ex
post facto law.

The first three grounds were overruled by this Court when it held that the questioned provision is a valid limitation on
the due process, freedom of expression, freedom of association, freedom of assembly and equal protection clauses;
for the same is designed to prevent the clear and present danger of the twin substantive evils, namely, the
prostitution of electoral process and denial of the equal protection of the laws. Moreover, under the balancing-of-
interests test, the cleansing of the electoral process, the guarantee of equal change for all candidates, and the
independence of the delegates who must be "beholden to no one but to God, country and conscience," are interests
that should be accorded primacy.1

The petitioner should therefore be accordingly guided by the pronouncements in the cases of Imbong and
Gonzales.2

The claim of petitioner that the challenged provision constitutes an ex post facto law is likewise untenable.

An ex post facto law is one which:.

(1) makes criminal an act done before the passage of the law and which was innocent when done,
and punishes such an act;

(2) aggravates a crime, or makes it greater than it was, when committed;

(3) changes the punishment and inflicts a greater punishment than the law annexed to the crime
when committed;

(4) alters the legal rules of evidence, and authorizes conviction upon less or different testimony than
the law required at the time of the commission of the offense;
 (5) assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a
right for something which when done was lawful; and

(6) deprives a person accused of a crime of some lawful protection to which he has become entitled,
such as the protection of a former conviction or acquittal, or a proclamation of amnesty.3

From the aforesaid definition as well as classification of ex post facto laws, the constitutional inhibition refers only to
criminal laws which are given retroactive effect.4

While it is true that Sec. 18 penalizes a violation of any provision of R.A. No. 6132 including Sec. 8(a) thereof, the
penalty is imposed only for acts committed after the approval of the law and not those perpetrated prior thereto.
There is nothing in the law that remotely insinuates that Secs. 8(a) and 18, or any other provision thereof, shall
apply to acts carried out prior to its approval. On the contrary, See. 23 directs that the entire law shall be effective
upon its approval. It was approved on August 24, 1970.

WHEREFORE, the prayer of the petition is hereby denied and paragraph 1 of Sec. 8(a) of R.A. No. 6132 is not
unconstitutional. Without costs.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 448 September 20, 1901

THE UNITED STATES, complainant-appellee,

vs.
PHILIP K. SWEET, defendant-appellant.

Theofilus B. Steele, for appellant.

Office of the Solicitor-General Araneta, for appellee.

LADD, J.:

The offense charged in the complaint is punishable under the Penal Code now in force by arresto mayor and a fine
of from 325 to 3,250 pesetas. (Art. 418.) By Act No. 136 of the United States Philippine Commission, section 56 (6),
Courts of First Instance are given original jurisdiction "in all criminal cases in which a penalty of more than six
months' imprisonment or a fine exceeding one hundred dollars may be imposed." The offense was therefore
cognizable by the court below unless the fact that the appellant was at the time of its alleged commission an
employee of the United States military authorities in the Philippine Islands, and the further fact that the person upon
whom it is alleged to have been committed was a prisoner of war in the custody of such authorities, are sufficient to
deprive it of jurisdiction. We must assume that both these facts are true, as found, either upon sufficient evidence or
upon the admissions of the prosecuting attorney, by the court below.

Setting aside the claim that the appellant was "acting in the line of duty" at the time the alleged offense was
committed, which is not supported by the findings or by any evidence which appears in the record, the contention
that the court was without jurisdiction, as we understand it, is reducible to two propositions: First, that an assault
committed by a soldier or military employee upon a prisoner of war is not an offense under the Penal Code; and
second, that if it is an offense under the Code, nevertheless the military character sustained by the person charged
with the offense at the time of its commission exempts him from the ordinary jurisdiction of the civil tribunals.

As to the first proposition, it is true, as pointed out by counsel, that an assault of the character charged in the
complaint committed in time of war by a military person upon a prisoner of war is punishable as an offense under
the Spanish Code of Military Justice (art. 232), and it is also true that under the provisions of the same Code (arts. 4,
5) the military tribunals have, with certain exceptions which it is not material to state, exclusive cognizance of all
offenses, whether of a purely military nature or otherwise, committed by military persons. But the fact that the acts
charged in the complaint would be punishable as an offense under the Spanish military legislation does not render
them any less an offense under the article of the Penal Code above cited. There is nothing in the language of that
article to indicate that it does not apply to all persons within the territorial jurisdiction of the law. Under articles 4 and
5 of the Code of Military Justice above cited a military person could not be brought to trial before a civil tribunal for
an assault upon a prisoner of war, but by the commission of that offense he incurred a criminal responsibility for
which he was amenable only to the military jurisdiction. That criminal responsibility, however, arose from an
infraction of the general penal laws, although the same acts, viewed in another aspect, might also, if committed in
time of war, constitute an infraction of the military code. We are unable to see how these provisions of the Spanish
Military Code, no longer in force here and which indeed never had any application to the Army of the United States,
can in any possible view have the effect claimed for them by counsel for the appellant.

The second question is, Does the fact that the alleged offense was committed by an employee of the United States
military authorities deprive the court of jurisdiction? We have been cited to no provision in the legislation of
Congress, and to none in the local legislation, which has the effect of limiting, as respects employees of the United
States military establishment, the general jurisdiction conferred upon the Courts of First Instance by Act No. 136 of
the United States Philippine Commission above cited, and we are not aware of the existence of any such provision.
The case is therefore open to the application of the general principle that the jurisdiction of the civil tribunals is
unaffected by the military or other special character of the person brought before them for trial, a principle firmly
established in the law of England and America and which must, we think, prevail under any system of jurisprudence
unless controlled by express legislation to the contrary. (United States vs. Clark, 31 Fed. Rep., 710.) The appellant's
claim that the acts alleged to constitute the offense were performed by him in the execution of the orders of his
military superiors may, if true, be available by way of defense upon the merits in the trial in the court below, but can
not under this principle affect the right of that court to take jurisdiction of the case.

Whether under a similar state of facts to that which appears in this case a court of one of the United States would
have jurisdiction to try the offender against the State laws (see In re Fair, 100 Fed. Rep., 149), it is not necessary to
consider. The present is not a case where the courts of one government are attempting to exercise jurisdiction over
the military agents or employees of another and distinct government, because the court asserting jurisdiction here
derives its existence and powers from the same Government under the authority of which the acts alleged to
constitute the offense are claimed to have been performed.

It may be proper to add that there is no actual conflict between the two jurisdictions in the present case nor any
claim of jurisdiction on the part of the military tribunals. On the contrary it appears from the findings of the court
below that the complaint was entered by order of the commanding general of the Division of the Philippines, a fact
not important, perhaps, as regards the technical question of jurisdiction, but which relieves the case from any
practical embarrassment which might result from a claim on the part of the military tribunals to exclusive cognizance
of the offense.

The order of the court below is affirmed with costs to the appellant.
 FIRST DIVISION

G.R. No. 125865 March 26, 2001

JEFFREY LIANG (HUEFENG), petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

RESOLUTION

YNARES-SANTIAGO, J.:

This resolves petitioner's Motion for Reconsideration of our Decision dated January 28, 2000, denying the petition
for review.

The Motion is anchored on the following arguments:

1) THE DFA'S DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE MADE BY THE

EXECUTIVE BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE UPON THE COURTS.

2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE.

3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK (ADB).

4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA PROTOCOL.

5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF FACT ON THE
MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH PREJUDGED PETITIONER'S CASE
BEFORE THE METROPOLITAN TRIAL COURT (MTC)-MANDALUYONG.

6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO THIS CASE.

This case has its origin in two criminal Informations1 for grave oral defamation filed against petitioner, a Chinese
national who was employed as an Economist by the Asian Development Bank (ADB), alleging that on separate
occasions on January 28 and January 31, 1994, petitioner allegedly uttered defamatory words to Joyce V. Cabal, a
member of the clerical staff of ADB. On April 13, 1994, the Metropolitan Trial Court of Mandaluyong City, acting
pursuant to an advice from the Department of Foreign Affairs that petitioner enjoyed immunity from legal processes,
dismissed the criminal Informations against him. On a petition for certiorari and mandamus filed by the People, the
Regional Trial Court of Pasig City, Branch 160, annulled and set aside the order of the Metropolitan Trial Court
dismissing the criminal cases.2

Petitioner, thus, brought a petition for review with this Court. On January 28, 2000, we rendered the assailed
Decision denying the petition for review. We ruled, in essence, that the immunity granted to officers and staff of the
ADB is not absolute; it is limited to acts performed in an official capacity. Furthermore, we held that the immunity
cannot cover the commission of a crime such as slander or oral defamation in the name of official duty.
On October 18, 2000, the oral arguments of the parties were heard. This Court also granted the Motion for
Intervention of the Department of Foreign Affairs. Thereafter, the parties were directed to submit their respective
memorandum.

For the most part, petitioner's Motion for Reconsideration deals with the diplomatic immunity of the ADB, its officials
and staff, from legal and judicial processes in the Philippines, as well as the constitutional and political bases
thereof. It should be made clear that nowhere in the assailed Decision is diplomatic immunity denied, even remotely.
The issue in this case, rather, boils down to whether or not the statements allegedly made by petitioner were uttered
while in the performance of his official functions, in order for this case to fall squarely under the provisions of Section
45 (a) of the "Agreement Between the Asian Development Bank and the Government of the Republic of the
Philippines Regarding the Headquarters of the Asian Development Bank," to wit:

Officers and staff of the Bank, including for the purpose of this Article experts and consultants performing
missions for the Bank, shall enjoy the following privileges and immunities:

(a) Immunity from legal process with respect to acts performed by them in their official capacity
except when the Bank waives the immunity.

After a careful deliberation of the arguments raised in petitioner's and intervenor's Motions for Reconsideration, we
find no cogent reason to disturb our Decision of January 28, 2000. As we have stated therein, the slander of a
person, by any stretch, cannot be considered as falling within the purview of the immunity granted to ADB officers
and personnel. Petitioner argues that the Decision had the effect of prejudging the criminal case for oral defamation
against him. We wish to stress that it did not. What we merely stated therein is that slander, in general, cannot be
considered as an act performed in an official capacity. The issue of whether or not petitioner's utterances constituted
oral defamation is still for the trial court to determine.

WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by petitioner and intervenor
Department of Foreign Affairs are DENIED with FINALITY.

SO ORDERED.

Kapunan and Pardo, JJ ., concur.

Davide, Jr., C.J., I also join concurring opinion of Mr. Justice Puno.
Puno, J., Please see concurring opinion.

Concurring Opinions

PUNO, J., concurring:

For resolution is the Motion for Reconsideration filed by petitioner Jeffrey Liang of this Court's decision dated
January 28, 2000 which denied the petition for review. We there held that: the protocol communication of the
Department of Foreign Affairs to the effect that petitioner Liang is covered by immunity is only preliminary and has
no binding effect in courts; the immunity provided for under Section 45(a) of the Headquarters Agreement is subject
to the condition that the act be done in an "official capacity"; that slandering a person cannot be said to have been
done in an "official capacity" and, hence, it is not covered by the immunity agreement; under the Vienna Convention
on Diplomatic Relations, a diplomatic agent, assuming petitioner is such, enjoys immunity from criminal jurisdiction
of the receiving state except in the case of an action relating to any professional or commercial activity exercised by
the diplomatic agent in the receiving state outside his official functions; the commission of a crime is not part of
official duty; and that a preliminary investigation is not a matter of right in cases cognizable by the Metropolitan Trial
Court.

Petitioner's motion for reconsideration is anchored on the following arguments:

 1. The DFA's determination of immunity is a political question to be made by the executive branch of the
government and is conclusive upon the courts;

2. The immunity of international organizations is absolute;

3. The immunity extends to all staff of the Asian Development Bank (ADB);

4. Due process was fully accorded the complainant to rebut the DFA protocol;

5. The decision of January 28, 2000 erroneously made a finding of fact on the merits, namely, the slandering
of a person which prejudged petitioner's case before the Metropolitan Trial Court (MTC) Mandaluyong; and

6. The Vienna Convention on diplomatic relations is not applicable to this case.

Petitioner contends that a determination of a person's diplomatic immunity by the Department of Foreign Affairs is a
political question. It is solely within the prerogative of the executive department and is conclusive upon the courts. In
support of his submission, petitioner cites the following cases: WHO vs. Aquino;1 International Catholic Migration
Commission vs. Calleja;2 The Holy See vs. Rosario, Jr.;3 Lasco vs. United Nations;4 and DFA vs. NLRC.5

It is further contended that the immunity conferred under the ADB Charter and the Headquarters Agreement is
absolute. It is designed to safeguard the autonomy and independence of international organizations against
interference from any authority external to the organizations. It is necessary to allow such organizations to discharge
their entrusted functions effectively. The only exception to this immunity is when there is an implied or express
waiver or when the immunity is expressly limited by statute. The exception allegedly has no application to the case
at bar.

Petitioner likewise urges that the international organization's immunity from local jurisdiction empowers the ADB
alone to determine what constitutes "official acts" and the same cannot be subject to different interpretations by the
member states. It asserts that the Headquarters Agreement provides for remedies to check abuses against the
exercise of the immunity. Thus, Section 49 states that the "Bank shall waive the immunity accorded to any person if,
in its opinion, such immunity would impede the course of justice and the waiver would not prejudice the purposes for
which the immunities are accorded." Section 51 allows for consultation between the government and the Bank
should the government consider that an abuse has occurred. The same section provides the mechanism for a
dispute settlement regarding, among others, issues of interpretation or application of the agreement.

Petitioner's argument that a determination by the Department of Foreign Affairs that he is entitled to diplomatic
immunity is a political question binding on the courts, is anchored on the ruling enunciated in the case of WHO, et al.
vs. Aquino, et al.,6 viz:

"It is a recognized principle of international law and under our system of separation of powers that diplomatic
immunity is essentially a political question and courts should refuse to look beyond a determination by the
executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed
by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept
the claim of immunity upon appropriate suggestion by the principal law officer of the government, the
Solicitor General in this case, or other officer acting under his direction. Hence, in adherence to the settled
principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to
embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that
in such cases the judicial department of the government follows the action of the political branch and will not
embarrass the latter by assuming an antagonistic jurisdiction."

This ruling was reiterated in the subsequent cases of International Catholic Migration Commission vs. Calleja;7 The
Holy See vs. Rosario, Jr.;8 Lasco vs. UN;9 and DFA vs. NLRC.10

The case of WHO vs. Aquino involved the search and seizure of personal effects of petitioner Leonce Verstuyft, an
official of the WHO. Verstuyft was certified to be entitled to diplomatic immunity pursuant to the Host Agreement
executed between the Philippines and the WHO.
ICMC vs. Calleja concerned a petition for certification election filed against ICMC and IRRI. As international
organizations, ICMC and IRRI were declared to possess diplomatic immunity. It was held that they are not subject to
local jurisdictions. It was ruled that the exercise of jurisdiction by the Department of Labor over the case would
defeat the very purpose of immunity, which is to shield the affairs of international organizations from political
pressure or control by the host country and to ensure the unhampered performance of their functions.

Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the Holy See, as represented by the
Papal Nuncio. The Court upheld the petitioner's defense of sovereign immunity. It ruled that where a diplomatic
envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action
relating to private immovable property situated in the territory of the receiving state, which the envoy holds on behalf
of the sending state for the purposes of the mission, with all the more reason should immunity be recognized as
regards the sovereign itself, which in that case is the Holy See.

In Lasco vs. United Nations, the United Nations Revolving Fund for Natural Resources Exploration was sued before
the NLRC for illegal dismissal. The Court again upheld the doctrine of diplomatic immunity invoked by the Fund.

Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian Development Bank. Pursuant to its
Charter and the Headquarters Agreement, the diplomatic immunity of the Asian Development Bank was recognized
by the Court.

It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by international organizations.
Petitioner asserts that he is entitled to the same diplomatic immunity and he cannot be prosecuted for acts allegedly
done in the exercise of his official functions.

The term "international organizations" —

"is generally used to describe an organization set up by agreement between two or more states. Under
contemporary international law, such organizations are endowed with some degree of international legal
personality such that they are capable of exercising specific rights, duties and powers. They are organized
mainly as a means for conducting general international business in which the member states have an
interest."11

International public officials have been defined as:

". . . persons who, on the basis of an international treaty constituting a particular international community,
are appointed by this international community, or by an organ of it, and are under its control to exercise, in a
continuous way, functions in the interest of this particular international community, and who are subject to a
particular personal status."12

"Specialized agencies" are international organizations having functions in particular fields, such as posts,
telecommunications, railways, canals, rivers, sea transport, civil aviation, meteorology, atomic energy,
finance, trade, education and culture, health and refugees.13

Issues

1. Whether petitioner Liang, as an official of an international organization, is entitled to diplomatic immunity;

2. Whether an international official is immune from criminal jurisdiction for all acts, whether private or official;

3. Whether the authority to determine if an act is official or private is lodged in the courts;

4. Whether the certification by the Department of Foreign Affairs that petitioner is covered by immunity is a
political question that is binding and conclusive on the courts.

Discussion

I
A perusal of the immunities provisions in various international conventions and agreements will show that the nature
and degree of immunities vary depending on who the recipient is. Thus:

1. Charter of the United Nations

"Article 105 (1): The Organization shall enjoy in the territory of each of its Members such privileges and
immunities as are necessary for the fulfillment of its purposes.

Article 105 (2): Representatives of the Members of the United Nations and officials of the Organization shall
similarly enjoy such privileges and immunities as are necessary for the independent exercise of their
functions in connection with the Organization."

2. Convention on the Privileges and Immunities of the United Nations

"Section 2: The United Nations, its property and assets wherever located and by whomsoever held, shall
enjoy immunity from every form of legal process except insofar as in any particular case it has expressly
waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of
execution.

xxx xxx xxx

Section 11 (a): Representatives of Members to the principal and subsidiary organs of the United Nations . .
shall . . . enjoy . . . immunity from personal arrest or detention and from seizure of their personal baggage,
and, in respect of words spoken or written and all acts done by them in their capacity as representatives,
immunity from legal process of every kind.

xxx xxx xxx

Section 14: Privileges and immunities are accorded to the representatives of Members not for the personal
benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in
connection with the United Nations. Consequently, a Member not only has the right but is under a duty to
waive the immunity of its representative in any case where in the opinion of the Member the immunity would
impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity is
accorded.

xxx xxx xxx

Section 18 (a): Officials of the United Nations shall be immune from legal process in respect of words
spoken or written and all acts performed by them in their official capacity.

xxx xxx xxx

Section 19: In addition to the immunities and privileges specified in Section 18, the Secretary-General and
all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses and minor
children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in
accordance with international law.

Section 20: Privileges and immunities are granted to officials in the interest of the United Nations and not for
the personal benefit of the individuals themselves. The Secretary-General shall have the right and the duty
to waive the immunity of any official in any case where, in his opinion, the immunity would impede the
course of justice and can be waived without prejudice to the interests of the United Nations.

xxx xxx xxx

Section 22: Experts . . . performing missions for the United Nations . . . shall be accorded: (a) immunity from
personal arrest or detention and from seizure of their personal baggage; (b) in respect of words spoken or
written and acts done by them in the course of the performance of their mission, immunity from legal
process of every kind."

3. Vienna Convention on Diplomatic Relations

"Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest
or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to
prevent any attack on his person, freedom, or dignity.

xxx xxx xxx

Article 31 (1): A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He
shall also enjoy immunity from its civil and administrative jurisdiction, except in certain cases.

xxx xxx xxx

Article 38 (1): Except in so far as additional privileges and immunities may be granted by the receiving State,
a diplomatic agent who is a national of or permanently a resident in that State shall enjoy only immunity from
jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions."

4. Vienna Convention on Consular Relations

"Article 41 (1): Consular officials shall not be liable to arrest or detention pending trial, except in the case of a
grave crime and pursuant to a decision by the competent judicial authority.

xxx xxx xxx

Article 43 (1): Consular officers and consular employees shall not be amenable to the jurisdiction of the
judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of
consular functions.

Article 43 (2): The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil
action either: (a) arising out of a contract concluded by a consular officer or a consular employee in which he
did not contract expressly or impliedly as an agent of the sending State; or (b) by a third party for damage
arising from an accident in the receiving State caused by a vehicle, vessel or aircraft."

5. Convention on the Privileges and Immunities of the Specialized Agencies

"Section 4: The specialized agencies, their property and assets, wherever located and by whomsoever held,
shall enjoy immunity from every form of legal process except in so far as in any particular case they have
expressly waived their immunity. It is, however, understood that no waiver of immunity shall extend to any
measure of execution.

Section 13 (a): Representatives of members at meetings convened by a specialized agency shall, while
exercising their functions and during their journeys to and from the place of meeting, enjoy immunity from
personal arrest or detention and from seizure of their personal baggage, and in respect of words spoken or
written and all acts done by them in their official capacity, immunity from legal process of every kind.

xxx xxx xxx

Section 19 (a): Officials of the specialized agencies shall be immune from legal process in respect of words
spoken or written and all acts performed by them in their official capacity.

xxx xxx xxx

 Section 21: In addition to the immunities and privileges specified in sections 19 and 20, the executive head
of each specialized agency, including a any official acting on his behalf during his absence from duty, shall
be accorded in respect of himself, his spouse and minor children, the privileges and immunities, exemptions
and facilities accorded to diplomatic envoys, in accordance with international law."

6. Charter of the ADB

"Article 50 (1): The Bank shall enjoy immunity from every form of legal process, except in cases arising out
of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and
sell or underwrite the sale of securities, in which cases actions may be brought against the Bank in a court of
competent jurisdiction in the territory of a country in which the Bank has its principal or a branch office, or
has appointed an agent for the purpose of accepting service or notice of process, or has issued or
guaranteed securities.

xxx xxx xxx

Article 55 (i): All Governors, Directors, alternates, officers and employees of the Bank, including experts
performing missions for the Bank shall be immune from legal process with respect to acts performed by
them in their official capacity, except when the Bank waives the immunity."

7. ADB Headquarters Agreement

"Section 5: The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or
in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or
underwrite the sale of securities, in which cases actions may be brought against the Bank in a court of
competent jurisdiction in the Republic of the Philippines.

xxx xxx xxx

Section 44: Governors, other representatives of Members, Directors, the President, Vice-President and
executive officers as may be agreed upon between the Government and the Bank shall enjoy, during their
stay in the Republic of the Philippines in connection with their official duties with the Bank: (a) immunity from
personal arrest or detention and from seizure of their personal baggage; (b) immunity from legal process of
every kind in respect of words spoken or written and all acts done by them in their official capacity; and (c) in
respect of other matters not covered in (a) and (b) above, such other immunities, exemptions, privileges and
facilities as are enjoyed by members of diplomatic missions of comparable rank, subject to corresponding
conditions and obligations.

Section 45 (a): Officers and staff of the Bank, including for the purposes of this Article experts and
consultants performing missions for the Bank, shall enjoy . . . immunity from legal process with respect to
acts performed by them in their official capacity, except when the Bank waives the immunity."

II

There are three major differences between diplomatic and international immunities. Firstly, one of the recognized
limitations of diplomatic immunity is that members of the diplomatic staff of a mission may be appointed from among
the nationals of the receiving State only with the express consent of that State; apart from inviolability and immunity
from jurisdiction in respect of official acts performed in the exercise of their functions, nationals enjoy only such
privileges and immunities as may be granted by the receiving State. International immunities may be specially
important in relation to the State of which the official is a national. Secondly, the immunity of a diplomatic agent from
the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State; in the case of
international immunities there is no sending State and an equivalent for the jurisdiction of the Sending State
therefore has to be found either in waiver of immunity or in some international disciplinary or judicial procedure.
Thirdly, the effective sanctions which secure respect for diplomatic immunity are the principle of reciprocity and the
danger of retaliation by the aggrieved State; international immunities enjoy no similar protection.14
The generally accepted principles which are now regarded as the foundation of international immunities are
contained in the ILO Memorandum, which reduced them in three basic propositions, namely: (1) that international
institutions should have a status which protects them against control or interference by any one government in the
performance of functions for the effective discharge of which they are responsible to democratically constituted
international bodies in which all the nations concerned are represented; (2) that no country should derive any
financial advantage by levying fiscal charges on common international funds; and (3) that the international
organization should, as a collectivity of States Members, be accorded the facilities for the conduct of its official
business customarily extended to each other by its individual member States. The thinking underlying these
propositions is essentially institutional in character. It is not concerned with the status, dignity or privileges of
individuals, but with the elements of functional independence necessary to free international institutions from
national control and to enable them to discharge their responsibilities impartially on behalf of all their members.15

III

Positive international law has devised three methods of granting privileges and immunities to the personnel of
international organizations. The first is by simple conventional stipulation, as was the case in the Hague
Conventions of 1899 and 1907. The second is by internal legislation whereby the government of a state, upon
whose territory the international organization is to carry out its functions, recognizes the international character of
the organization and grants, by unilateral measures, certain privileges and immunities to better assure the
successful functioning of the organization and its personnel. In this situation, treaty obligation for the state in
question to grant concessions is lacking. Such was the case with the Central Commission of the Rhine at
Strasbourg and the International Institute of Agriculture at Rome. The third is a combination of the first two. In this
third method, one finds a conventional obligation to recognize a certain status of an international organization and its
personnel, but the status is described in broad and general terms. The specific definition and application of those
general terms are determined by an accord between the organization itself and the state wherein it is located. This
is the case with the League of Nations, the Permanent Court of Justice, and the United Nations.16

The Asian Development Bank and its Personnel fall under this third category.

There is a connection between diplomatic privileges and immunities and those extended to international officials.
The connection consists in the granting, by contractual provisions, of the relatively well-established body of
diplomatic privileges and immunities to international functionaries. This connection is purely historical. Both types of
officials find the basis of their special status in the necessity of retaining functional independence and freedom from
interference by the state of residence. However, the legal relationship between an ambassador and the state to
which he is accredited is entirely different from the relationship between the international official and those states
upon whose territory he might carry out his functions.17

The privileges and immunities of diplomats and those of international officials rest upon different legal foundations.
Whereas those immunities awarded to diplomatic agents are a right of the sending state based on customary
international law, those granted to international officials are based on treaty or conventional law. Customary
international law places no obligation on a state to recognize a special status of an international official or to grant
him jurisdictional immunities. Such an obligation can only result from specific treaty provisions.18

The special status of the diplomatic envoy is regulated by the principle of reciprocity by which a state is free to treat
the envoy of another state as its envoys are treated by that state. The juridical basis of the diplomat's position is
firmly established in customary international law. The diplomatic envoy is appointed by the sending State but it has
to make certain that the agreement of the receiving State has been given for the person it proposes to accredit as
head of the mission to that State.19

The staff personnel of an international organization — the international officials — assume a different position as
regards their special status. They are appointed or elected to their position by the organization itself, or by a
competent organ of it; they are responsible to the organization and their official acts are imputed to it. The juridical
basis of their special position is found in conventional law,20 since there is no established basis of usage or custom
in the case of the international official. Moreover, the relationship between an international organization and a
member-state does not admit of the principle of reciprocity,21 for it is contradictory to the basic principle of equality of
states. An international organization carries out functions in the interest of every member state equally. The
international official does not carry out his functions in the interest of any state, but in serving the organization he
serves, indirectly, each state equally. He cannot be, legally, the object of the operation of the principle of reciprocity
between states under such circumstances. It is contrary to the principle of equality of states for one state member of
an international organization to assert a capacity to extract special privileges for its nationals from other member
states on the basis of a status awarded by it to an international organization. It is upon this principle of sovereign
equality that international organizations are built.

It follows from this same legal circumstance that a state called upon to admit an official of an international
organization does not have a capacity to declare him persona non grata.

The functions of the diplomat and those of the international official are quite different. Those of the diplomat are
functions in the national interest. The task of the ambassador is to represent his state, and its specific interest, at the
capital of another state. The functions of the international official are carried out in the international interest. He does
not represent a state or the interest of any specific state. He does not usually "represent" the organization in the true
sense of that term. His functions normally are administrative, although they may be judicial or executive, but they
are rarely political or functions of representation, such as those of the diplomat.

There is a difference of degree as well as of kind. The interruption of the activities of a diplomatic agent is likely to
produce serious harm to the purposes for which his immunities were granted. But the interruption of the activities of
the international official does not, usually, cause serious dislocation of the functions of an international secretariat.22

On the other hand, they are similar in the sense that acts performed in an official capacity by either a diplomatic
envoy or an international official are not attributable to him as an individual but are imputed to the entity he
represents, the state in the case of the diplomat, and the organization in the case of the international official.23

IV

Looking back over 150 years of privileges and immunities granted to the personnel of international organizations, it
is clear that they were accorded a wide scope of protection in the exercise of their functions — The Rhine Treaty of
1804 between the German Empire and France which provided "all the rights of neutrality" to persons employed in
regulating navigation in the international interest; The Treaty of Berlin of 1878 which granted the European
Commission of the Danube "complete independence of territorial authorities" in the exercise of its functions; The
Covenant of the League which granted "diplomatic immunities and privileges." Today, the age of the United Nations
finds the scope of protection narrowed. The current tendency is to reduce privileges and immunities of personnel of
international organizations to a minimum. The tendency cannot be considered as a lowering of the standard but
rather as a recognition that the problem on the privileges and immunities of international officials is new. The
solution to the problem presented by the extension of diplomatic prerogatives to international functionaries lies in the
general reduction of the special position of both types of agents in that the special status of each agent is granted in
the interest of function. The wide grant of diplomatic prerogatives was curtailed because of practical necessity and
because the proper functioning of the organization did not require such extensive immunity for its officials. While the
current direction of the law seems to be to narrow the prerogatives of the personnel of international organizations,
the reverse is true with respect to the prerogatives of the organizations themselves, considered as legal entities.
Historically, states have been more generous in granting privileges and immunities to organizations than they have
to the personnel of these organizations.24

Thus, Section 2 of the General Convention on the Privileges and Immunities of the United Nations states that the
UN shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly
waived its immunity. Section 4 of the Convention on the Privileges and Immunities of the Specialized Agencies
likewise provides that the specialized agencies shall enjoy immunity from every form of legal process subject to the
same exception. Finally, Article 50(1) of the ADB Charter and Section 5 of the Headquarters Agreement similarly
provide that the bank shall enjoy immunity from every form of legal process, except in cases arising out of or in
connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or
underwrite the sale of securities.

The phrase "immunity from every form of legal process" as used in the UN General Convention has been
interpreted to mean absolute immunity from a state's jurisdiction to adjudicate or enforce its law by legal process,
and it is said that states have not sought to restrict that immunity of the United Nations by interpretation or
amendment. Similar provisions are contained in the Special Agencies Convention as well as in the ADB Charter and
Headquarters Agreement. These organizations were accorded privileges and immunities in their charters by
language similar to that applicable to the United Nations. It is clear therefore that these organizations were intended
to have similar privileges and immunities.25 From this, it can be easily deduced that international organizations enjoy
absolute immunity similar to the diplomatic prerogatives granted to diplomatic envoys.

Even in the United States this theory seems to be the prevailing rule. The Foreign Sovereign Immunities Act was
passed adopting the "restrictive theory" limiting the immunity of states under international law essentially to activities
of a kind not carried on by private persons. Then the International Organizations Immunities Act came into effect
which gives to designated international organizations the same immunity from suit and every form of judicial process
as is enjoyed by foreign governments. This gives the impression that the Foreign Sovereign Immunities Act has the
effect of applying the restrictive theory also to international organizations generally. However, aside from the fact
that there was no indication in its legislative history that Congress contemplated that result, and considering that the
Convention on Privileges and Immunities of the United Nations exempts the United Nations "from every form of
legal process," conflict with the United States obligations under the Convention was sought to be avoided by
interpreting the Foreign Sovereign Immunities Act, and the restrictive theory, as not applying to suits against the
United Nations.26

On the other hand, international officials are governed by a different rule. Section 18(a) of the General Convention
on Privileges and Immunities of the United Nations states that officials of the United Nations shall be immune from
legal process in respect of words spoken or written and all acts performed by them in their official capacity. The
Convention on Specialized Agencies carries exactly the same provision. The Charter of the ADB provides under
Article 55(i) that officers and employees of the bank shall be immune from legal process with respect to acts
performed by them in their official capacity except when the Bank waives immunity. Section 45 (a) of the ADB
Headquarters Agreement accords the same immunity to the officers and staff of the bank. There can be no dispute
that international officials are entitled to immunity only with respect to acts performed in their official capacity, unlike
international organizations which enjoy absolute immunity.

Clearly, the most important immunity to an international official, in the discharge of his international functions, is
immunity from local jurisdiction. There is no argument in doctrine or practice with the principle that an international
official is independent of the jurisdiction of the local authorities for his official acts. Those acts are not his, but are
imputed to the organization, and without waiver the local courts cannot hold him liable for them. In strict law, it would
seem that even the organization itself could have no right to waive an official's immunity for his official acts. This
permits local authorities to assume jurisdiction over an individual for an act which is not, in the wider sense of the
term, his act at all. It is the organization itself, as a juristic person, which should waive its own immunity and appear
in court, not the individual, except insofar as he appears in the name of the organization. Provisions for immunity
from jurisdiction for official acts appear, aside from the aforementioned treatises, in the constitution of most modern
international organizations. The acceptance of the principle is sufficiently widespread to be regarded as declaratory
of international law.27

What then is the status of the international official with respect to his private acts?

Section 18 (a) of the General Convention has been interpreted to mean that officials of the specified categories
are denied immunity from local jurisdiction for acts of their private life and empowers local courts to assume
jurisdiction in such cases without the necessity of waiver.28 It has earlier been mentioned that historically,
international officials were granted diplomatic privileges and immunities and were thus considered immune for both
private and official acts. In practice, this wide grant of diplomatic prerogatives was curtailed because of practical
necessity and because the proper functioning of the organization did not require such extensive immunity for its
officials. Thus, the current status of the law does not maintain that states grant jurisdictional immunity to
international officials for acts of their private lives.29 This much is explicit from the Charter and Headquarters
Agreement of the ADB which contain substantially similar provisions to that of the General Convention.

VI

Who is competent to determine whether a given act is private or official?

This is an entirely different question. In connection with this question, the current tendency to narrow the scope of
privileges and immunities of international officials and representatives is most apparent. Prior to the regime of the
United Nations, the determination of this question rested with the organization and its decision was final. By the new
formula, the state itself tends to assume this competence. If the organization is dissatisfied with the decision, under
the provisions of the General Convention of the United States, or the Special Convention for Specialized Agencies,
the Swiss Arrangement, and other current dominant instruments, it may appeal to an international tribunal by
procedures outlined in those instruments. Thus, the state assumes this competence in the first instance. It means
that, if a local court assumes jurisdiction over an act without the necessity of waiver from the organization, the
determination of the nature of the act is made at the national level.30

It appears that the inclination is to place the competence to determine the nature of an act as private or official in the
courts of the state concerned. That the prevalent notion seems to be to leave to the local courts determination of
whether or not a given act is official or private does not necessarily mean that such determination is final. If the
United Nations questions the decision of the Court, it may invoke proceedings for settlement of disputes between
the organization and the member states as provided in Section 30 of the General Convention. Thus, the decision as
to whether a given act is official or private is made by the national courts in the first instance, but it may be subjected
to review in the international level if questioned by the United Nations.31

A similar view is taken by Kunz, who writes that the "jurisdiction of local courts without waiver for acts of private life
empowers the local courts to determine whether a certain act is an official act or an act of private life," on the
rationale that since the determination of such question, if left in the hands of the organization, would consist in the
execution, or non-execution, of waiver, and since waiver is not mentioned in connection with the provision granting
immunities to international officials, then the decision must rest with local courts.32

Under the Third Restatement of the Law, it is suggested that since an international official does not enjoy personal
inviolability from arrest or detention and has immunity only with respect to official acts, he is subject to judicial or
administrative process and must claim his immunity in the proceedings by showing that the act in question was an
official act. Whether an act was performed in the individual's official capacity is a question for the court in which a
proceeding is brought, but if the international organization disputes the court's finding, the dispute between the
organization and the state of the forum is to be resolved by negotiation, by an agreed mode of settlement or by
advisory opinion of the International Court of Justice.33

Recognizing the difficulty that by reason of the right of a national court to assume jurisdiction over private acts
without a waiver of immunity, the determination of the official or private character of a particular act may pass from
international to national control, Jenks proposes three ways of avoiding difficulty in the matter. The first would be for
a municipal court before which a question of the official or private character of a particular act arose to accept as
conclusive in the matter any claim by the international organization that the act was official in character, such a
claim being regarded as equivalent to a governmental claim that a particular act is an act of State. Such a claim
would be in effect a claim by the organization that the proceedings against the official were a violation of the
jurisdictional immunity of the organization itself which is unqualified and therefore not subject to delimitation in the
discretion of the municipal court. The second would be for a court to accept as conclusive in the matter a statement
by the executive government of the country where the matter arises certifying the official character of the act.
The thirdwould be to have recourse to the procedure of international arbitration. Jenks opines that it is possible that
none of these three solutions would be applicable in all cases; the first might be readily acceptable only in the
clearest cases and the second is available only if the executive government of the country where the matter arises
concurs in the view of the international organization concerning the official character of the act. However, he
surmises that taken in combination, these various possibilities may afford the elements of a solution to the
problem.34

One final point. The international official's immunity for official acts may be likened to a consular official's immunity
from arrest, detention, and criminal or civil process which is not absolute but applies only to acts or omissions in the
performance of his official functions, in the absence of special agreement. Since a consular officer is not immune
from all legal process, he must respond to any process and plead and prove immunity on the ground that the act or
omission underlying the process was in the performance of his official functions. The issue has not been
authoritatively determined, but apparently the burden is on the consular officer to prove his status as well as his
exemption in the circumstances. In the United States, the US Department of State generally has left it to the courts
to determine whether a particular act was within a consular officer's official duties.35

Submissions

On the bases of the foregoing disquisitions, I submit the following conclusions:

First, petitioner Liang, a bank official of ADB, is not entitled to diplomatic immunity and hence his immunity is not
absolute.

Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is immune from criminal jurisdiction of the
receiving State for all acts, whether private or official, and hence he cannot be arrested, prosecuted and punished
for any offense he may commit, unless his diplomatic immunity is waived.36 On the other hand, officials of
international organizations enjoy "functional" immunities, that is, only those necessary for the exercise of the
functions of the organization and the fulfillment of its purposes.37 This is the reason why the ADB Charter and
Headquarters Agreement explicitly grant immunity from legal process to bank officers and employees only with
respect to acts performed by them in their official capacity, except when the Bank waives immunity. In other words,
officials and employees of the ADB are subject to the jurisdiction of the local courts for their private acts,
notwithstanding the absence of a waiver of immunity.

Petitioner cannot also seek relief under the mantle of "immunity from every form of legal process" accorded to ADB
as an international organization. The immunity of ADB is absolute whereas the immunity of its officials and
employees is restricted only to official acts. This is in consonance with the current trend in international law which
seeks to narrow the scope of protection and reduce the privileges and immunities granted to personnel of
international organizations, while at the same time aims to increase the prerogatives of international organizations.

Second, considering that bank officials and employees are covered by immunity only for their official acts, the
necessary inference is that the authority of the Department of Affairs, or even of the ADB for that matter, to certify
that they are entitled to immunity is limited only to acts done in their official capacity. Stated otherwise, it is not within
the power of the DFA, as the agency in charge of the executive department's foreign relations, nor the ADB, as the
international organization vested with the right to waive immunity, to invoke immunity for private acts of bank officials
and employees, since no such prerogative exists in the first place. If the immunity does not exist, there is nothing to
certify.

As an aside, ADB cannot even claim to have the right to waive immunity for private acts of its officials and
employees. The Charter and the Headquarters Agreement are clear that the immunity can be waived only with
respect to official acts because this is only the extent to which the privilege has been granted. One cannot waive the
right to a privilege which has never been granted or acquired.

Third, I choose to adopt the view that it is the local courts which have jurisdiction to determine whether or not a
given act is official or private. While there is a dearth of cases on the matter under Philippine jurisprudence, the
issue is not entirely novel.

The case of M.H. Wylie, et al. vs. Rarang, et al.38 concerns the extent of immunity from suit of the officials of a
United States Naval Base inside the Philippine territory. Although a motion to dismiss was filed by the defendants
therein invoking their immunity from suit pursuant to the RP-US Military Bases Agreement, the trial court denied the
same and, after trial, rendered a decision declaring that the defendants are not entitled to immunity because the
latter acted beyond the scope of their official duties. The Court likewise applied the ruling enunciated in the case
of Chavez vs. Sandiganbayan39 to the effect that a mere invocation of the immunity clause does not ipso facto result
in the charges being automatically dropped. While it is true that the Chavez case involved a public official, the Court
did not find any substantial reason why the same rule cannot be made to apply to a US official assigned at the US
Naval Station located in the Philippines. In this case, it was the local courts which ascertained whether the acts
complained of were done in an official or personal capacity.

In the case of The Holy See vs. Rosario, Jr.,40 a complaint for annulment of contract of sale, reconveyance, specific
performance and damages was filed against petitioner. Petitioner moved to dismiss on the ground of, among others,
lack of jurisdiction based on sovereign immunity from suit, which was denied by the trial court. A motion for
reconsideration, and subsequently, a "Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation
for Claim of Immunity as a Jurisdictional Defense" were filed by petitioner. The trial court deferred resolution of said
motions until after trial on the merits. On certiorari, the Court there ruled on the issue of petitioner's non-suability on
the basis of the allegations made in the pleadings filed by the parties. This is an implicit recognition of the court's
jurisdiction to ascertain the suability or non-suability of the sovereign by assessing the facts of the case. The Court
hastened to add that when a state or international agency wishes to plead sovereign or diplomatic immunity in a
foreign court, in some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels, or where the foreign states bypass the Foreign Office, the courts can
inquire into the facts and make their own determination as to the nature of the acts and transactions involved.

Finally, it appears from the records of this case that petitioner is a senior economist at ADB and as such he makes
country project profiles which will help the bank in deciding whether to lend money or support a particular project to
a particular country.41 Petitioner stands charged of grave slander for allegedly uttering defamatory remarks against
his secretary, the private complainant herein. Considering that the immunity accorded to petitioner is limited only to
acts performed in his official capacity, it becomes necessary to make a factual determination of whether or not the
defamatory utterances were made pursuant and in relation to his official functions as a senior economist.

I vote to deny the motion for reconsideration.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-44896 July 31, 1936

RODOLFO A. SCHNECKENBURGER, petitioner,

vs.
MANUEL V. MORAN, Judge of First Instance of Manila, respondent.

Cardenas and Casal for petitioner.

Office of the Solicitor-General Hilado for respondent.

ABAD SANTOS, J.:

The petitioner was duly accredited honorary consul of Uruguay at Manila, Philippine Islands on June 11, 1934. He
was subsequently charged in the Court of First Instance of Manila with the crime of falsification of a private
document. He objected to the jurisdiction of the court on the ground that both under the Constitution of the United
States and the Constitution of the Philippines the court below had no jurisdiction to try him. His objection having
been overruled, he filed this petition for a writ of prohibition with a view to preventing the Court of First Instance of
Manila from taking cognizance of the criminal action filed against him.

In support of this petition counsel for the petitioner contend (1) That the Court of First Instance of Manila is without
jurisdiction to try the case filed against the petitioner for the reason that under Article III, section 2, of the
Constitution of the United States, the Supreme Court of the United States has original jurisdiction in all cases
affecting ambassadors, other public ministers, and consuls, and such jurisdiction excludes the courts of the
Philippines; and (2) that even under the Constitution of the Philippines original jurisdiction over cases affecting
ambassadors, other public ministers, and consuls, is conferred exclusively upon the Supreme Court of the
Philippines.

This case involves no question of diplomatic immunity. It is well settled that a consul is not entitled to the privileges
and immunities of an ambassador or minister, but is subject to the laws and regulations of the country to which he is
accredited. (Ex parte Baiz, 135 U. S., 403; 34 Law. ed., 222.) A consul is not exempt from criminal prosecution for
violations of the laws of the country where he resides. (U. S. vs. Ravara, 2 Dall., 297; 1 Law. ed., 388; Wheaton's
International Law [2d ed.], 423.) The substantial question raised in this case is one of jurisdiction.

1. We find no merit in the contention that Article III, section 2, of the Constitution of the United States
governs this case. We do not deem it necessary to discuss the question whether the constitutional provision
relied upon by the petitioner extended ex propio vigore over the Philippines. Suffice it to say that the
inauguration of the Philippine Commonwealth on November 15, 1935, has brought about a fundamental
change in the political and legal status of the Philippines. On the date mentioned the Constitution of the
Philippines went into full force and effect. This Constitution is the supreme law of the land. Not only the
members of this court but all other officers, legislative, executive and judicial, of the Government of the
Commonwealth, are bound by oath to support the Constitution. (Article XIII, section 2.) This court owes its
own existence to the great instrument, and derives all its powers therefrom. In the exercise of its powers and
jurisdiction, this court is bound by the provisions of the Constitution. The Constitution provides that the
original jurisdiction of this court "shall include all cases affecting ambassadors, other public ministers, and
consuls." In deciding the instant case this court cannot go beyond this constitutional provision.

2. It remains to consider whether the original jurisdiction thus conferred upon this court by the Constitution
over cases affecting ambassadors, other public ministers, and consuls, is exclusive. The Constitution does
not define the jurisdiction of this court in specific terms, but merely provides that "the Supreme Court shall
have such original and appellate jurisdiction as may be possessed and exercised by the Supreme Court of
the Philippine Islands at the time of the adoption of this Constitution." It then goes on to provide that the
original jurisdiction of this court "shall include all cases affecting ambassadors, other public ministers, and
consuls."
In the light of the constitutional provisions above adverted to, the question arises whether the original jurisdiction
possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of the
Constitution was exclusive.

The original jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the
adoption of the Constitution was derived from section 17 of Act No. 136, which reads as follows: The Supreme Court
shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, habeas corpus, and quo warrantoin
the cases and in the manner prescribed in the Code of Civil Procedure, and to hear and determine the controversies
thus brought before it, and in other cases provided by law." Jurisdiction to issue writs of quo
warranto, certiorari, mandamus, prohibition, and habeas corpus was also conferred on the Courts of First Instance
by the Code of Civil Procedure. (Act No. 190, secs. 197, 217, 222, 226, and 525.) It results that the original
jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of
the Constitution was not exclusive of, but concurrent with, that of the Courts of First Instance. Inasmuch as this is
the same original jurisdiction vested in this court by the Constitution and made to include all cases affecting
ambassadors, other public ministers, and consuls, it follows that the jurisdiction of this court over such cases is not
exclusive.

The conclusion we have reached upon this branch of the case finds support in the pertinent decisions of the
Supreme Court of the United States. The Constitution of the United States provides that the Supreme Court shall
have "original jurisdiction" in all cases affecting ambassadors, other public ministers, and consuls. In construing this
constitutional provision, the Supreme Court of the United States held that the "original jurisdiction thus conferred
upon the Supreme Court by the Constitution was not exclusive jurisdiction, and that such grant of original jurisdiction
did not prevent Congress from conferring original jurisdiction in cases affecting consuls on the subordinate courts of
the Union. (U. S. vs. Ravara, supra; Bors vs. Preston, 111 U. S., 252; 28 Law. ed., 419.)

3. The laws in force in the Philippines prior to the inauguration of the Commonwealth conferred upon the Courts of
the First Instance original jurisdiction in all criminal cases to which a penalty of more than six months' imprisonment
or a fine exceeding one hundred dollars might be imposed. (Act No. 136, sec. 56.) Such jurisdiction included the trial
of criminal actions brought against consuls for, as we have already indicated, consuls, not being entitled to the
privileges and immunities of ambassadors or ministers, are subject to the laws and regulations of the country where
they reside. By Article XV, section 2, of the Constitution, all laws of the Philippine Islands in force at the time of the
adoption of the Constitution were to continue in force until the inauguration of the Commonwealth; thereafter, they
were to remain operative, unless inconsistent with the Constitution until amended, altered, modified, or repealed by
the National Assembly. The original jurisdiction granted to the Courts of First Instance to try criminal cases was not
made exclusively by any, law in force prior to the inauguration of the Commonwealth, and having reached the
conclusion that the jurisdiction conferred upon this court by the Constitution over cases affecting ambassadors,
other public ministers, and consuls, is not an exclusive jurisdiction, the laws in force at the time of the adoption of
the Constitution, granting the Courts of First Instance jurisdiction in such cases, are not inconsistent with the
Constitution, and must be deemed to remain operative and in force, subject to the power of the National Assembly
to amend alter, modify, or repeal the same. (Asiatic P. Co. vs. Insular Collector of Customs, U. S. Supreme Court
[Law. ed.], Adv. Ops., vol. 80, No. 12, pp. 620, 623.)

We conclude, therefore, that the Court of First Instance of Manila has jurisdiction to try the petitioner, an that the
petition for a writ of prohibition must be denied. So ordered.
 FIRST DIVISION

G.R. No. 142396 February 11, 2003

KHOSROW MINUCHER, petitioner,

vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.

DECISION

VITUG, J.:

Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise also known as
the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow Minucher and one Abbas Torabian with the
Regional Trial Court, Branch 151, of Pasig City. The criminal charge followed a "buy-bust operation" conducted by
the Philippine police narcotic agents in the house of Minucher, an Iranian national, where a quantity of heroin, a
prohibited drug, was said to have been seized. The narcotic agents were accompanied by private respondent Arthur
Scalzo who would, in due time, become one of the principal witnesses for the prosecution. On 08 January 1988,
Presiding Judge Eutropio Migrino rendered a decision acquitting the two accused.

On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC), Branch 19, of
Manila for damages on account of what he claimed to have been trumped-up charges of drug trafficking made by
Arthur Scalzo. The Manila RTC detailed what it had found to be the facts and circumstances surrounding the case.

"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to study in the
University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he was appointed Labor Attaché
for the Iranian Embassies in Tokyo, Japan and Manila, Philippines. When the Shah of Iran was deposed by
Ayatollah Khomeini, plaintiff became a refugee of the United Nations and continued to stay in the Philippines. He
headed the Iranian National Resistance Movement in the Philippines.

"He came to know the defendant on May 13, 1986, when the latter was brought to his house and introduced to him
by a certain Jose Iñigo, an informer of the Intelligence Unit of the military. Jose Iñigo, on the other hand, was met by
plaintiff at the office of Atty. Crisanto Saruca, a lawyer for several Iranians whom plaintiff assisted as head of the
anti-Khomeini movement in the Philippines.

"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iñigo, the defendant
expressed his interest in buying caviar. As a matter of fact, he bought two kilos of caviar from plaintiff and paid
P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio nuts and other Iranian products was
his business after the Khomeini government cut his pension of over $3,000.00 per month. During their introduction
in that meeting, the defendant gave the plaintiff his calling card, which showed that he is working at the US Embassy
in the Philippines, as a special agent of the Drug Enforcement Administration, Department of Justice, of the United
States, and gave his address as US Embassy, Manila. At the back of the card appears a telephone number in
defendant’s own handwriting, the number of which he can also be contacted.

"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife and the wife of
a countryman named Abbas Torabian. The defendant told him that he [could] help plaintiff for a fee of $2,000.00 per
visa. Their conversation, however, was more concentrated on politics, carpets and caviar. Thereafter, the defendant
promised to see plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's Restaurant at Makati.
He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but for the reason that the defendant was
not yet there, he requested the restaurant people to x x x place the same in the refrigerator. Defendant, however,
came and plaintiff gave him the caviar for which he was paid. Then their conversation was again focused on politics
and business.

"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo, Pasig. The
defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After some haggling, they agreed at
$24,000.00. For the reason that defendant did not yet have the money, they agreed that defendant would come
back the next day. The following day, at 1:00 p.m., he came back with his $24,000.00, which he gave to the plaintiff,
and the latter, in turn, gave him the pair of carpets.
1awphi1.nét

"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house and directly
proceeded to the latter's bedroom, where the latter and his countryman, Abbas Torabian, were playing chess.
Plaintiff opened his safe in the bedroom and obtained $2,000.00 from it, gave it to the defendant for the latter's fee
in obtaining a visa for plaintiff's wife. The defendant told him that he would be leaving the Philippines very soon and
requested him to come out of the house for a while so that he can introduce him to his cousin waiting in a cab.
Without much ado, and without putting on his shirt as he was only in his pajama pants, he followed the defendant
where he saw a parked cab opposite the street. To his complete surprise, an American jumped out of the cab with a
drawn high-powered gun. He was in the company of about 30 to 40 Filipino soldiers with 6 Americans, all armed. He
was handcuffed and after about 20 minutes in the street, he was brought inside the house by the defendant. He was
made to sit down while in handcuffs while the defendant was inside his bedroom. The defendant came out of the
bedroom and out from defendant's attaché case, he took something and placed it on the table in front of the plaintiff.
They also took plaintiff's wife who was at that time at the boutique near his house and likewise arrested Torabian,
who was playing chess with him in the bedroom and both were handcuffed together. Plaintiff was not told why he
was being handcuffed and why the privacy of his house, especially his bedroom was invaded by defendant. He was
not allowed to use the telephone. In fact, his telephone was unplugged. He asked for any warrant, but the defendant
told him to `shut up.’ He was nevertheless told that he would be able to call for his lawyer who can defend him.

"The plaintiff took note of the fact that when the defendant invited him to come out to meet his cousin, his safe was
opened where he kept the $24,000.00 the defendant paid for the carpets and another $8,000.00 which he also
placed in the safe together with a bracelet worth $15,000.00 and a pair of earrings worth $10,000.00. He also
discovered missing upon his release his 8 pieces hand-made Persian carpets, valued at $65,000.00, a painting he
bought for P30,000.00 together with his TV and betamax sets. He claimed that when he was handcuffed, the
defendant took his keys from his wallet. There was, therefore, nothing left in his house.

"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various newspapers,
particularly in Australia, America, Central Asia and in the Philippines. He was identified in the papers as an
international drug trafficker. x x x

In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines, but also in
America and in Germany. His friends in said places informed him that they saw him on TV with said news.

"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed together, where they
were detained for three days without food and water."1

During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and moved for
extension of time to file an answer pending a supposed advice from the United States Department of State and
Department of Justice on the defenses to be raised. The trial court granted the motion. On 27 October 1988, Scalzo
filed another special appearance to quash the summons on the ground that he, not being a resident of the
Philippines and the action being one in personam, was beyond the processes of the court. The motion was denied
by the court, in its order of 13 December 1988, holding that the filing by Scalzo of a motion for extension of time to
file an answer to the complaint was a voluntary appearance equivalent to service of summons which could likewise
be construed a waiver of the requirement of formal notice. Scalzo filed a motion for reconsideration of the court
order, contending that a motion for an extension of time to file an answer was not a voluntary appearance equivalent
to service of summons since it did not seek an affirmative relief. Scalzo argued that in cases involving the United
States government, as well as its agencies and officials, a motion for extension was peculiarly unavoidable due to
the need (1) for both the Department of State and the Department of Justice to agree on the defenses to be raised
and (2) to refer the case to a Philippine lawyer who would be expected to first review the case. The court a quo
denied the motion for reconsideration in its order of 15 October 1989.

Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023, assailing the denial.
In a decision, dated 06 October 1989, the appellate court denied the petition and affirmed the ruling of the trial court.
Scalzo then elevated the incident in a petition for review on certiorari, docketed G.R. No. 91173, to this Court. The
petition, however, was denied for its failure to comply with SC Circular No. 1-88; in any event, the Court added,
Scalzo had failed to show that the appellate court was in error in its questioned judgment.

Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in default for his
failure to file a responsive pleading (answer) and (b) setting the case for the reception of evidence. On 12 March
1990, Scalzo filed a motion to set aside the order of default and to admit his answer to the complaint. Granting the
motion, the trial court set the case for pre-trial. In his answer, Scalzo denied the material allegations of the complaint
and raised the affirmative defenses (a) of Minucher’s failure to state a cause of action in his complaint and (b) that
Scalzo had acted in the discharge of his official duties as being merely an agent of the Drug Enforcement
Administration of the United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to
answer for attorneys' fees and expenses of litigation.

Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a motion to dismiss
the complaint on the ground that, being a special agent of the United States Drug Enforcement Administration, he
was entitled to diplomatic immunity. He attached to his motion Diplomatic Note No. 414 of the United States
Embassy, dated 29 May 1990, addressed to the Department of Foreign Affairs of the Philippines and a Certification,
dated 11 June 1990, of Vice Consul Donna Woodward, certifying that the note is a true and faithful copy of its
original. In an order of 25 June 1990, the trial court denied the motion to dismiss.

On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R. No. 94257 and
entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the complaint in Civil Case No. 88-
45691 be ordered dismissed. The case was referred to the Court of Appeals, there docketed CA-G.R. SP No.
22505, per this Court’s resolution of 07 August 1990. On 31 October 1990, the Court of Appeals promulgated its
decision sustaining the diplomatic immunity of Scalzo and ordering the dismissal of the complaint against him.
Minucher filed a petition for review with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the
Honorable Court of Appeals, et. al." (cited in 214 SCRA 242), appealing the judgment of the Court of Appeals. In a
decision, dated 24 September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed
the decision of the appellate court and remanded the case to the lower court for trial. The remand was ordered on
the theses (a) that the Court of Appeals erred in granting the motion to dismiss of Scalzo for lack of jurisdiction over
his person without even considering the issue of the authenticity of Diplomatic Note No. 414 and (b) that the
complaint contained sufficient allegations to the effect that Scalzo committed the imputed acts in his personal
capacity and outside the scope of his official duties and, absent any evidence to the contrary, the issue on Scalzo’s
diplomatic immunity could not be taken up.

The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court reached a
decision; it adjudged:

"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the plaintiff, who
successfully established his claim by sufficient evidence, against the defendant in the manner following:

"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral damages in the
sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees in the sum of P200,000.00 plus
costs.

`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this judgment to
answer for the unpaid docket fees considering that the plaintiff in this case instituted this action as a pauper
litigant.’"2

While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he was a
diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held accountable for the acts
complained of committed outside his official duties. On appeal, the Court of Appeals reversed the decision of the
trial court and sustained the defense of Scalzo that he was sufficiently clothed with diplomatic immunity during his
term of duty and thereby immune from the criminal and civil jurisdiction of the "Receiving State" pursuant to the
terms of the Vienna Convention.

Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether or not the
doctrine of conclusiveness of judgment, following the decision rendered by this Court in G.R. No. 97765, should
have precluded the Court of Appeals from resolving the appeal to it in an entirely different manner, and (2) whether
or not Arthur Scalzo is indeed entitled to diplomatic immunity.

The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the finality of the
prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the part of the court that renders it,
3) a judgment on the merits, and 4) an identity of the parties, subject matter and causes of action.3 Even while one of
the issues submitted in G.R. No. 97765 - "whether or not public respondent Court of Appeals erred in ruling that
private respondent Scalzo is a diplomat immune from civil suit conformably with the Vienna Convention on
Diplomatic Relations" - is also a pivotal question raised in the instant petition, the ruling in G.R. No. 97765, however,
has not resolved that point with finality. Indeed, the Court there has made this observation -

"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13 June 1990,
unequivocally states that he would present documentary evidence consisting of DEA records on his investigation
and surveillance of plaintiff and on his position and duties as DEA special agent in Manila. Having thus reserved his
right to present evidence in support of his position, which is the basis for the alleged diplomatic immunity, the barren
self-serving claim in the belated motion to dismiss cannot be relied upon for a reasonable, intelligent and fair
resolution of the issue of diplomatic immunity."4

Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a signatory, grants
him absolute immunity from suit, describing his functions as an agent of the United States Drugs Enforcement
Agency as "conducting surveillance operations on suspected drug dealers in the Philippines believed to be the
source of prohibited drugs being shipped to the U.S., (and) having ascertained the target, (he then) would inform the
Philippine narcotic agents (to) make the actual arrest." Scalzo has submitted to the trial court a number of
documents -

1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;

2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;

3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;

4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and

5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.

6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign Affairs,
dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court of RTC Manila, Branch 19 (the
trial court);

7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and

8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign Affairs,
through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of this Court.5

The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly advised the
Executive Department of the Philippine Government that Scalzo was a member of the diplomatic staff of the United
States diplomatic mission from his arrival in the Philippines on 14 October 1985 until his departure on 10 August
1988; (2) that the United States Government was firm from the very beginning in asserting the diplomatic immunity
of Scalzo with respect to the case pursuant to the provisions of the Vienna Convention on Diplomatic Relations; and
(3) that the United States Embassy repeatedly urged the Department of Foreign Affairs to take appropriate action to
inform the trial court of Scalzo’s diplomatic immunity. The other documentary exhibits were presented to indicate
that: (1) the Philippine government itself, through its Executive Department, recognizing and respecting the
diplomatic status of Scalzo, formally advised the "Judicial Department" of his diplomatic status and his entitlement to
all diplomatic privileges and immunities under the Vienna Convention; and (2) the Department of Foreign Affairs
itself authenticated Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to "13" consisting of his
reports of investigation on the surveillance and subsequent arrest of Minucher, the certification of the Drug
Enforcement Administration of the United States Department of Justice that Scalzo was a special agent assigned to
the Philippines at all times relevant to the complaint, and the special power of attorney executed by him in favor of
his previous counsel6 to show (a) that the United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo
to be a member of the diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on
14 October 1985 until his departure on 10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine
law enforcement officials and in the exercise of his functions as member of the mission, he investigated Minucher for
alleged trafficking in a prohibited drug, and (c) that the Philippine Department of Foreign Affairs itself recognized that
Scalzo during his tour of duty in the Philippines (14 October 1985 up to 10 August 1988) was listed as being an
Assistant Attaché of the United States diplomatic mission and accredited with diplomatic status by the Government
of the Philippines. In his Exhibit 12, Scalzo described the functions of the overseas office of the United States Drugs
Enforcement Agency, i.e., (1) to provide criminal investigative expertise and assistance to foreign law enforcement
agencies on narcotic and drug control programs upon the request of the host country, 2) to establish and maintain
liaison with the host country and counterpart foreign law enforcement officials, and 3) to conduct complex criminal
investigations involving international criminal conspiracies which affect the interests of the United States.

The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and, by the time
of its ratification on 18 April 1961, its rules of law had long become stable. Among the city states of ancient Greece,
among the peoples of the Mediterranean before the establishment of the Roman Empire, and among the states of
India, the person of the herald in time of war and the person of the diplomatic envoy in time of peace were
universally held sacrosanct.7 By the end of the 16th century, when the earliest treatises on diplomatic law were
published, the inviolability of ambassadors was firmly established as a rule of customary international
law.8Traditionally, the exercise of diplomatic intercourse among states was undertaken by the head of state himself,
as being the preeminent embodiment of the state he represented, and the foreign secretary, the official usually
entrusted with the external affairs of the state. Where a state would wish to have a more prominent diplomatic
presence in the receiving state, it would then send to the latter a diplomatic mission. Conformably with the Vienna
Convention, the functions of the diplomatic mission involve, by and large, the representation of the interests of the
sending state and promoting friendly relations with the receiving state.9

The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios accredited
to the heads of state,10 (b) envoys,11 ministers or internuncios accredited to the heads of states; and (c) charges d'
affairs12 accredited to the ministers of foreign affairs.13 Comprising the "staff of the (diplomatic) mission" are the
diplomatic staff, the administrative staff and the technical and service staff. Only the heads of missions, as well as
members of the diplomatic staff, excluding the members of the administrative, technical and service staff of the
mission, are accorded diplomatic rank. Even while the Vienna Convention on Diplomatic Relations provides for
immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding that the same be
restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested with blanket diplomatic
immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the heads of missions or
members of the diplomatic staff, thus impliedly withholding the same privileges from all others. It might bear
stressing that even consuls, who represent their respective states in concerns of commerce and navigation and
perform certain administrative and notarial duties, such as the issuance of passports and visas, authentication of
documents, and administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and privileges
accorded diplomats, mainly for the reason that they are not charged with the duty of representing their states in
political matters. Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the
determination of whether or not he performs duties of diplomatic nature.

Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of the United States
diplomatic mission and was accredited as such by the Philippine Government. An attaché belongs to a category of
officers in the diplomatic establishment who may be in charge of its cultural, press, administrative or financial affairs.
There could also be a class of attaches belonging to certain ministries or departments of the government, other than
the foreign ministry or department, who are detailed by their respective ministries or departments with the
embassies such as the military, naval, air, commercial, agricultural, labor, science, and customs attaches, or the
like. Attaches assist a chief of mission in his duties and are administratively under him, but their main function is to
observe, analyze and interpret trends and developments in their respective fields in the host country and submit
reports to their own ministries or departments in the home government.14 These officials are not generally regarded
as members of the diplomatic mission, nor are they normally designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and 791, all issued
post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November 1992. The presentation did
nothing much to alleviate the Court's initial reservations in G.R. No. 97765, viz:

"While the trial court denied the motion to dismiss, the public respondent gravely abused its discretion in dismissing
Civil Case No. 88-45691 on the basis of an erroneous assumption that simply because of the diplomatic note, the
private respondent is clothed with diplomatic immunity, thereby divesting the trial court of jurisdiction over his
person.

"x x x x x x x x x

"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting aside for the
moment the issue of authenticity raised by the petitioner and the doubts that surround such claim, in view of the fact
that it took private respondent one (1) year, eight (8) months and seventeen (17) days from the time his counsel filed
on 12 September 1988 a Special Appearance and Motion asking for a first extension of time to file the Answer
because the Departments of State and Justice of the United States of America were studying the case for the
purpose of determining his defenses, before he could secure the Diplomatic Note from the US Embassy in Manila,
and even granting for the sake of argument that such note is authentic, the complaint for damages filed by petitioner
cannot be peremptorily dismissed.

"x x x x x x x x x

"There is of course the claim of private respondent that the acts imputed to him were done in his official capacity.
Nothing supports this self-serving claim other than the so-called Diplomatic Note. x x x. The public respondent then
should have sustained the trial court's denial of the motion to dismiss. Verily, it should have been the most proper
and appropriate recourse. It should not have been overwhelmed by the self-serving Diplomatic Note whose belated
issuance is even suspect and whose authenticity has not yet been proved. The undue haste with which respondent
Court yielded to the private respondent's claim is arbitrary."

A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the Office of
Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant Secretary,
certifying that "the records of the Department (would) show that Mr. Arthur W. Scalzo, Jr., during his term of office in
the Philippines (from 14 October 1985 up to 10 August 1988) was listed as an Assistant Attaché of the United States
diplomatic mission and was, therefore, accredited diplomatic status by the Government of the Philippines." No
certified true copy of such "records," the supposed bases for the belated issuance, was presented in evidence.

Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the government.
In World Health Organization vs. Aquino,15 the Court has recognized that, in such matters, the hands of the courts
are virtually tied. Amidst apprehensions of indiscriminate and incautious grant of immunity, designed to gain
exemption from the jurisdiction of courts, it should behoove the Philippine government, specifically its Department of
Foreign Affairs, to be most circumspect, that should particularly be no less than compelling, in its post litem motam
issuances. It might be recalled that the privilege is not an immunity from the observance of the law of the territorial
sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction.16 The
government of the United States itself, which Scalzo claims to be acting for, has formulated its standards for
recognition of a diplomatic agent. The State Department policy is to only concede diplomatic status to a person who
possesses an acknowledged diplomatic title and "performs duties of diplomatic nature."17 Supplementary criteria for
accreditation are the possession of a valid diplomatic passport or, from States which do not issue such passports, a
diplomatic note formally representing the intention to assign the person to diplomatic duties, the holding of a non-
immigrant visa, being over twenty-one years of age, and performing diplomatic functions on an essentially full-time
basis.18 Diplomatic missions are requested to provide the most accurate and descriptive job title to that which
currently applies to the duties performed. The Office of the Protocol would then assign each individual to the
appropriate functional category.19

But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently established that,
indeed, he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of
suspected drug activities within the country on the dates pertinent to this case. If it should be ascertained that Arthur
Scalzo was acting well within his assigned functions when he committed the acts alleged in the complaint, the
present controversy could then be resolved under the related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary
international law then closely identified with the personal immunity of a foreign sovereign from suit20 and, with the
emergence of democratic states, made to attach not just to the person of the head of state, or his representative, but
also distinctly to the state itself in its sovereign capacity.21 If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing
a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for the
benefit of an individual but for the State, in whose service he is, under the maxim - par in parem, non habet
imperium - that all states are sovereign equals and cannot assert jurisdiction over one another.22 The implication, in
broad terms, is that if the judgment against an official would require the state itself to perform an affirmative act to
satisfy the award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit
must be regarded as being against the state itself, although it has not been formally impleaded.23

In United States of America vs. Guinto,24 involving officers of the United States Air Force and special officers of the
Air Force Office of Special Investigators charged with the duty of preventing the distribution, possession and use of
prohibited drugs, this Court has ruled -

"While the doctrine (of state immunity) appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of
their duties. x x x. It cannot for a moment be imagined that they were acting in their private or unofficial capacity
when they apprehended and later testified against the complainant. It follows that for discharging their duties as
agents of the United States, they cannot be directly impleaded for acts imputable to their principal, which has not
given its consent to be sued. x x x As they have acted on behalf of the government, and within the scope of their
authority, it is that government, and not the petitioners personally, [who were] responsible for their acts."25

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals26 elaborates:

"It is a different matter where the public official is made to account in his capacity as such for acts contrary to law
and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of
Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): `Inasmuch as the State authorizes only legal acts by
its officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the
officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is
not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that
an action at law or suit in equity against a State officer or the director of a State department on the ground that,
while claiming to act for the State, he violates or invades the personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State
within the constitutional provision that the State may not be sued without its consent. The rationale for this ruling is
that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.

"x x x x x x x x x

"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in
his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of
the government is removed the moment they are sued in their individual capacity. This situation usually arises
where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle
of law that a public official may be liable in his personal private capacity for whatever damage he may have caused
by his act done with malice and in bad faith or beyond the scope of his authority and jurisdiction."27

A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be
established that he is acting within the directives of the sending state. The consent of the host state is an
indispensable requirement of basic courtesy between the two sovereigns. Guinto and Shauf both involve officers
and personnel of the United States, stationed within Philippine territory, under the RP-US Military Bases Agreement.
While evidence is wanting to show any similar agreement between the governments of the Philippines and of the
United States (for the latter to send its agents and to conduct surveillance and related activities of suspected drug
dealers in the Philippines), the consent or imprimatur of the Philippine government to the activities of the United
States Drug Enforcement Agency, however, can be gleaned from the facts heretofore elsewhere mentioned. The
official exchanges of communication between agencies of the government of the two countries, certifications from
officials of both the Philippine Department of Foreign Affairs and the United States Embassy, as well as the
participation of members of the Philippine Narcotics Command in the "buy-bust operation" conducted at the
residence of Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic status" of the latter but
they give enough indication that the Philippine government has given its imprimatur, if not consent, to the activities
within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. The job description of
Scalzo has tasked him to conduct surveillance on suspected drug suppliers and, after having ascertained the target,
to inform local law enforcers who would then be expected to make the arrest. In conducting surveillance activities on
Minucher, later acting as the poseur-buyer during the buy-bust operation, and then becoming a principal witness in
the criminal case against Minucher, Scalzo hardly can be said to have acted beyond the scope of his official function
or duties.

All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States Drug
Enforcement Agency allowed by the Philippine government to conduct activities in the country to help contain the
problem on the drug traffic, is entitled to the defense of state immunity from suit.

WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-1988 February 24, 1948

JESUS MIQUIABAS, petitioner,

vs.
COMMANDING GENERAL, PHILIPPINE-RYUKYUS COMMAND, UNITED STATES ARMY, respondents.

Lorenzo Sumulong and Esteban P. Garcia for petitioner.

J. A. Wolfson for respondent.

MORAN, C.J.:

This is a petition for a writ of habeas corpus filed by Jesus Miquiabas against the Commanding General Philippine-
Ryukyus Command, United States Army, who is alleged to have petitioner under custody and to have appointed a
General Court-Martial to try petitioner in connection with an offense over which the said court has no jurisdiction.

Petitioner is a Filipino citizen and a civilian employee of the United States Army in the Philippines, who has been
charged with disposing in the Port of Manila Area of things belonging to the United States Army, in violation of the
94th Article of War of the United States. He has been arrested for that reason and a General Court-Martial
appointed by respondent tried and found him guilty and sentenced him to 15 years imprisonment. This sentence,
however, is not yet final for it is still subject to review.

It may be stated as a rule that the Philippines, being a sovereign nation, has jurisdiction over all offenses committed
within its territory, but it may, by treaty or by agreement, consent that the United States or any other foreign nation,
shall exercise jurisdiction over certain offenses committed within certain portions of said territory. On March 11,
1947, the Republic of the Philippines and the Government of the United States of America, entered into an
agreement concerning military bases, and Article XIII thereof is as follows:

JURISDICTION

1. The Philippines consents that the United States shall have the right to exercise jurisdiction over the
following offenses:

(a) Any offense committed by any person within any base except where the offender and offended
parties are both Philippine citizens (not members of the armed forces of the United States on active
duty) or the offense is against the security of the Philippines;

(b) Any offense committed outside the bases by any member of the armed forces of the United
States in which the offended party is also a member of the armed forces of the United States; and

(c) Any offense committed outside the bases by any member of the armed forces of the United
States against the security of the United States.

2. The Philippines shall have the right to exercise jurisdiction over all other offenses committed outside the
bases by any member of the armed forces of the United States.

3. Whenever for special reasons the United States may desire not to exercise the jurisdiction reserved to it
in paragraphs 1 and 6 of this Article, the officer holding the offender in custody shall so notify the fiscal
(prosecuting attorney) of the city or province in which the offense has been committed within ten days after
his arrest, and in such case the Philippines shall exercise jurisdiction.
 4. Whenever for special reasons the Philippines may desire not to exercise the jurisdiction reserved to it in
paragraph 2 of this Article, the fiscal (prosecuting attorney) of the city or province where the offense has
been committed shall so notify the officer holding the offender in custody within ten days after his arrest, and
in such a case the United States shall be free to exercise jurisdiction. If any offense falling under paragraph
2 of this article is committed by any member of the armed forces of the United States.

(a) While engaged in the actual performance of a specific military duty, or

(b) during a period of national emergency declared by either Government and the fiscal (prosecuting
attorney) so finds from the evidence, he shall immediately notify the officer holding the offender in
custody that the United States is free to exercise jurisdiction. In the event the fiscal (prosecuting
attorney) finds that the offense was not committed in the actual performance of a specific military
duty, the offender's commanding officer shall have the right to appeal from such finding to the
Secretary of Justice within ten days from the receipt of the decision of the fiscal and the decision of
the Secretary of Justice shall be final.

5. In all cases over which the Philippines exercises jurisdiction the custody of the accused, pending trial and
final judgment, shall be entrusted without delay to the commanding officer of the nearest base, who shall
acknowledge in writing that such accused has been delivered to him for custody pending trial in a competent
court of the Philippines and that he will be held ready to appear and will be produced before said court when
required by it. The commanding officer shall be furnished by the fiscal (prosecuting attorney) with a copy of
the information against the accused upon the filing of the original in the competent court.

6. Notwithstanding the foregoing provisions, it is naturally agreed that in time of war the United States shall
have the right to exercise exclusive jurisdiction over any offenses which may be committed by members of
the armed forces of the United States in the Philippines.

7. The United States agrees that it will not grant asylum in any of the bases to any person fleeing from the
lawful jurisdiction of the Philippines. Should such person be found in any base, he will be surrendered on
demand to the competent authorities of the Philippines.

8. In every case in which jurisdiction over an offense is exercised by the United States, the offended party
may institute a separate civil action against the offender in the proper court of the Philippines to enforce the
civil liability which under the laws of the Philippines may arise from the offense.

Under paragraph 1 (a), the General Court-Martial would have jurisdiction over the criminal case against petitioner if
the offense had been committed within a base. Under paragraph 1 (b), if the offense had been committed outside a
base, still the General Court-Martial would have jurisdiction if the offense had been committed by a "member of the
armed forces of the United States" there being no question that the offended party in this case is the United States.
It is not necessary therefore, to consider whether the offense is against "the security of the United States" under
paragraph 1 (c), or whether petitioner committed it in "the actual performance of a specific military duty" or in time of
a declared "national emergency" under paragraph 4, or whether we are still in a state of war under paragraph 6, for
in all these instances the military jurisdiction depends also upon whether the offender is a member of the armed
forces of the United States. We shall then determine in this case (1) whether the offense has been committed within
or without a base, and, in the second instance, (2) whether the offender is or is not a member of the armed forces of
the United States.

As to the first question, Article XXVI of the Agreement provides that "bases are those area named in Annex A and
Annex B and such additional areas as may be acquired for military purposes pursuant to the terms of this
Agreement." Among the areas specified in Annexes A and B, there is none that has reference to the Port Area of
Manila where the offense has allegedly been committed. On the contrary, it appears in Annex A that "army
communications system" is included, but with "the deletion of all stations in the Port of Manila Area."

Paragraph 2 of Article XXI is invoked by respondent. The whole article is as follows:

TEMPORARY INSTALLATIONS
 1. It is mutually agreed that the United States shall retain the right to occupy temporary quarters and
installations now existing outside the bases mentioned in Annex A and Annex B, for such reasonable time,
not exceeding two years, as may be necessary to develop adequate facilities within the bases for the United
States armed forces. If circumstances require an extension of time, such a period will be fixed by mutual
agreement of the two Governments; but such extension shall not apply to the existing temporary quarters
and installations within the limits of the City of Manila and shall in no case exceed a period of three years.

2. Notwithstanding the provisions of the preceding paragraph, the Port of Manila reservation with boundaries
as of 1941 will be available for use to the United States armed forces until such time as other arrangements
can be made for the supply of the bases by mutual agreement of the two Governments.

3. The terms of this agreement pertaining to bases shall be applicable to temporary quarters and
installations referred to in paragraph 1 of this article while they are so occupied by the armed forces of the
United States; provided, that offenses committed within the temporary quarters and installations located
within the present limits of the City of Manila shall not be considered as offenses within the bases but shall
be governed by the provisions of Article XIII, paragraphs 2 and 4, except that the election not to exercise the
jurisdiction reserved to the Philippines shall be made by the Secretary of Justice. It is agreed that the United
States shall have full use and full control of all these quarters and installations while they are occupied by
the armed forces of the United States, including the exercise of such measures as may be necessary to
police said quarters for the security of the personnel and property therein.

The subject matter of this article, as indicated by its heading, is "Temporary Installations." Paragraph 1 refers to
temporary quarters and installations existing outside the bases specified in Annex A and Annex B, which may be
retained by the United States armed forces for such reasonable time as may be necessary not exceeding two years
in duration, extendible fro not more than three years, the extension not being applicable to existing temporary
quarters and installations within the limits of the City of Manila.

Paragraph 2, of Article XXI, refers to the Port of Manila Reservation, which will be available for use to the United
States armed forces, also as a temporary quarters and installations, its temporariness not being for a definite period
of time, but "until such time as other arrangements can be made for supply of the bases by mutual agreement of the
two Governments." There is in paragraph 2 absolutely nothing that may be construed as placing the Port of Manila
Reservation in the category of a permanent base.

Paragraph 3, of Article XXI, provides "that offenses committed within the temporary quarters and installations
located within the present limits of the City of Manila shall not be considered as offenses within the bases but shall
be governed by the provisions of Article XIII, paragraphs 2 and 4." Therefore, the offense at bar cannot be
considered as committed within, but without, a base, since it has been committed in the Port of Manila Area, which
is not one of the bases mentioned in Annexes A and B to the Agreement, and is merely temporary quarters located
within the present limits of the City of Manila.

The next inquiry is whether or not the offender may be considered as a member of the armed forces of the United
States under Article XIII, paragraph 1 (b). As above stated, petitioner is a Filipino citizen and a civilian employee of
the United States Army in the Philippines. Under the terms of the Agreement, a civilian employee cannot be
considered as a member of the armed forces of the United States. Articles XI, XVI and XVIII of the Agreement make
mention of civilian employees separately from members of the armed forces of the United States, which is a
conclusive indication that under said Agreement armed forces do not include civilian employees.

Respondent invokes Articles II of the Articles of War of the United States, which enumerates, among the persons
subject to military law, persons accompanying or serving with the armies of the United States. But this case should
be decided not under the Articles of War, but under the terms of the Base Agreement between the United States
and the Philippines. And not because a person is subject to military law under the Articles of War does he become,
for that reason alone, a member of the armed forces under the Base Agreement. And even under the Articles of
War, the mere fact that a civilian employee is in the service of the United States Army does not make him a member
of the armed forces of the United States. Otherwise, it would have been necessary for said Article to enumerate
civilian employees separately from members of the armed forces of the United States.

Respondent maintains that petitioner has no cause of action because the Secretary of Justice had not notified the
officer holding the petitioner in custody whether or not the Philippines desired to retain jurisdiction under Article XXI,
paragraph 3, of the Military Base Agreement. It is sufficient to state in this connection that in cases like the present
where the offender is a civilian employee and not a member of the Unites States armed forces, no waiver can be
made either by the prosecuting attorney of by the Secretary of Justice, under paragraphs 2 and 4 of Article XIII in
connection with paragraph 3 of Article XXI, of the Agreement.

We are, therefore, of the opinion and so hold, that the General Court-Martial appointed by respondent has no
jurisdiction to try petitioner for the offense allegedly committed by him and, consequently, the judgment rendered by
said court sentencing the petitioner to 15 years' imprisonment is null and void for lack of jurisdiction.

It is ordered that petitioner be released immediately by respondent without prejudice to any criminal action which
may be instituted in the proper court of the Philippines.

Let a copy of this decision be sent immediately to the Honorable, Secretary of Justice.

Paras, Feria, Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason, JJ, concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5270 January 15, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
H. N. BULL, defendant-appellant.

Bruce & Lawrence, for appellant.

Office of the Solicitor-General Harvey, for appellee.

ELLIOTT, J.:

The appellant was convicted in the Court of First Instance of a violation of section 1 of Act No. 55, as amended by
section 1 of Act No. 275, and from the judgment entered thereon appealed to this court, where under proper
assignments of error he contends: (1) that the complaint does not state facts sufficient to confer jurisdiction upon the
court; (2) that under the evidence the trial court was without jurisdiction to hear and determine the case; (3) that Act
No. 55 as amended is in violation of certain provisions of the Constitution of the United States, and void as applied
to the facts of this case; and (4) that the evidence is insufficient to support the conviction.

The information alleges:

That on and for many months prior to the 2d day of December, 1908, the said H. N. Bull was then and there
master of a steam sailing vessel known as the steamship Standard, which vessel was then and there
engaged in carrying and transporting cattle, carabaos, and other animals from a foreign port and city of
Manila, Philippine Islands; that the said accused H. N. Bull, while master of said vessel, as aforesaid, on or
about the 2d day of December, 1908, did then and there willfully, unlawfully, and wrongly carry, transport,
and bring into the port and city of Manila, aboard said vessel, from the port of Ampieng, Formosa, six
hundred and seventy-seven (677) head of cattle and carabaos, without providing suitable means for
securing said animals while in transit, so as to avoid cruelty and unnecessary suffering to the said animals,
in this, to wit, that the said H. N. Bull, master, as aforesaid, did then and there fail to provide stalls for said
animals so in transit and suitable means for trying and securing said animals in a proper manner, and did
then and there cause some of said animals to be tied by means of rings passed through their noses, and
allow and permit others to be transported loose in the hold and on the deck of said vessel without being tied
or secured in stalls, and all without bedding; that by reason of the aforesaid neglect and failure of the
accused to provide suitable means for securing said animals while so in transit, the noses of some of said
animals were cruelly torn, and many of said animals were tossed about upon the decks and hold of said
vessel, and cruelly wounded, bruised, and killed.

All contrary to the provisions of Acts No. 55 and No. 275 of the Philippine Commission.

Section 1 of Act No. 55, which went into effect January 1, 1901, provides that —

The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle, sheep, swine, or
other animals, from one port in the Philippine Islands to another, or from any foreign port to any port within
the Philippine Islands, shall carry with them, upon the vessels carrying such animals, sufficient forage and
fresh water to provide for the suitable sustenance of such animals during the ordinary period occupied by
the vessel in passage from the port of shipment to the port of debarkation, and shall cause such animals to
be provided with adequate forage and fresh water at least once in every twenty-four hours from the time that
the animals are embarked to the time of their final debarkation.

By Act No. 275, enacted October 23, 1901, Act No. 55 was amended by adding to section 1 thereof the following:
 The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle, sheep, swine, or
other animals from one port in the Philippine Islands to another, or from any foreign port to any port within
the Philippine Islands, shall provide suitable means for securing such animals while in transit so as to avoid
all cruelty and unnecessary suffering to the animals, and suitable and proper facilities for loading and
unloading cattle or other animals upon or from vessels upon which they are transported, without cruelty or
unnecessary suffering. It is hereby made unlawful to load or unload cattle upon or from vessels by swinging
them over the side by means of ropes or chains attached to the thorns.

Section 3 of Act No. 55 provides that —

Any owner or master of a vessel, or custodian of such animals, who knowingly and willfully fails to comply
with the provisions of section one, shall, for every such failure, be liable to pay a penalty of not less that one
hundred dollars nor more that five hundred dollars, United States money, for each offense. Prosecution
under this Act may be instituted in any Court of First Instance or any provost court organized in the province
or port in which such animals are disembarked.

1. It is contended that the information is insufficient because it does not state that the court was sitting at a port
where the cattle were disembarked, or that the offense was committed on board a vessel registered and licensed
under the laws of the Philippine Islands.

Act No. 55 confers jurisdiction over the offense created thereby on Courts of First Instance or any provost court
organized in the province or port in which such animals are disembarked, and there is nothing inconsistent therewith
in Act No. 136, which provides generally for the organization of the courts of the Philippine Islands. Act No. 400
merely extends the general jurisdiction of the courts over certain offenses committed on the high seas, or beyond
the jurisdiction of any country, or within any of the waters of the Philippine Islands on board a ship or water craft of
any kind registered or licensed in the Philippine Islands, in accordance with the laws thereof. (U.S. vs. Fowler, 1
Phil. Rep., 614.) This jurisdiction may be exercised by the Court of First Instance in any province into which such
ship or water upon which the offense or crime was committed shall come after the commission thereof. Had this
offense been committed upon a ship carrying a Philippine registry, there could have been no doubt of the
Jurisdiction of the court, because it is expressly conferred, and the Act is in accordance with well recognized and
established public law. But the Standard was a Norwegian vessel, and it is conceded that it was not registered or
licensed in the Philippine Islands under the laws thereof. We have then the question whether the court had
jurisdiction over an offense of this character, committed on board a foreign ship by the master thereof, when the
neglect and omission which constitutes the offense continued during the time the ship was within the territorial
waters of the United States. No court of the Philippine Islands had jurisdiction over an offenses or crime committed
on the high seas or within the territorial waters of any other country, but when she came within 3 miles of a line
drawn from the headlines which embrace the entrance to Manila Bay, she was within territorial waters, and a new
set of principles became applicable. (Wheaton, Int. Law (Dana ed.), p. 255, note 105; Bonfils, Le Droit Int., sec
490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction of the territorial
sovereign subject through the proper political agency. This offense was committed within territorial waters. From the
line which determines these waters the Standard must have traveled at least 25 miles before she came to anchor.
During that part of her voyage the violation of the statue continued, and as far as the jurisdiction of the court is
concerned, it is immaterial that the same conditions may have existed while the vessel was on the high seas. The
offense, assuming that it originated at the port of departure in Formosa, was a continuing one, and every element
necessary to constitute it existed during the voyage across the territorial waters. The completed forbidden act was
done within American waters, and the court therefore had jurisdiction over the subject-matter of the offense and the
person of the offender.

The offense then was thus committed within the territorial jurisdiction of the court, but the objection to the jurisdiction
raises the further question whether that jurisdiction is restricted by the fact of the nationality of the ship. Every. Every
state has complete control and jurisdiction over its territorial waters. According to strict legal right, even public
vessels may not enter the ports of a friendly power without permission, but it is now conceded that in the absence of
a prohibition such ports are considered as open to the public ship of all friendly powers. The exemption of such
vessels from local jurisdiction while within such waters was not established until within comparatively recent times.
In 1794, Attorney-General Bradford, and in 1796 Attorney-General Lee, rendered opinions to the effect that "the
laws of nations invest the commander of a foreign ship of war with no exemption from the jurisdiction of the country
into which he comes." (1, Op. U.S. Attys. Gen., 46, 87.) This theory was also supported by Lord Stowell in an
opinion given by him to the British Government as late as 1820. In the leading case of the Schooner Exchange
vs. McFadden (7 Cranch (U.S.), 116, 144), Chief Justice Marshall said that the implied license under which such
vessels enter a friendly port may reasonably be construed as "containing exemption from the jurisdiction of the
sovereign within whose territory she claims the rights of hospitality." The principle was accepted by the Geneva
Arbitration Tribunal, which announced that "the priviledge of exterritoriality accorded to vessels of war has been
admitted in the law of nations; not as an absolute right, but solely as a proceeding founded on the principle of
courtesy and mutual deference between nations."
(2 Moore, Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55; Taylor, Int. Law, sec. 256; Ortolan, Dip de la Mer,
2. C.X.)

Such vessels are therefore permitted during times of peace to come and go freely. Local official exercise but little
control over their actions, and offenses committed by their crew are justiciable by their own officers acting under the
laws to which they primarily owe allegiance. This limitation upon the general principle of territorial sovereignty is
based entirely upon comity and convenience, and finds its justification in the fact that experience shows that such
vessels are generally careful to respect local laws and regulation which are essential to the health, order, and well-
being of the port. But comity and convenience does not require the extension of the same degree of exemption to
merchant vessels. There are two well-defined theories as to extent of the immunities ordinarily granted to them,
According to the French theory and practice, matters happening on board a merchant ship which do not concern the
tranquillity of the port or persons foreign to the crew, are justiciable only by the court of the country to which the
vessel belongs. The French courts therefore claim exclusive jurisdiction over crimes committed on board French
merchant vessels in foreign ports by one member of the crew against another. (See Bonfils, Le Droit Int. (quat. ed.),
secs. 624-628; Martens, Le Droit Int., tome 2, pp. 338, 339; Ortolan, Dip. de la Mer, tit. 1, p. 292; Masse, Droit Int.,
tome 2, p. 63.) Such jurisdiction has never been admitted or claim by Great Britain as a right, although she has
frequently conceded it by treaties. (Halleck, Int. Law (Baker's ed.), vol. 1, 231; British Territorial Waters Act, 1878.)
Writers who consider exterritoriality as a fact instead of a theory have sought to restrict local jurisdiction, but Hall,
who is doubtless the leading English authority, says that —

It is admitted by the most thoroughgoing asserters of the territoriality of merchant vessels that so soon as
the latter enter the ports of a foreign state they become subject to the local jurisdiction on all points in which
the interests of the country are touched. (Hall, Int. Law, p. 263.)

The United States has adhered consistently to the view that when a merchant vessel enters a foreign port it is
subject to the jurisdiction of the local authorities, unless the local sovereignty has by act of acquiescence or through
treaty arrangements consented to waive a portion of such jurisdiction. (15 Op. Attys. Gen., U. S., 178; 2 Moore, Int.
Law Dig., sec. 204; article by Dean Gregory, Mich. Law Review, Vol. II, No. 5.) Chief Justice Marshall, in the case of
the Exchange, said that —

When merchant vessels enter for the purpose of trade, in would be obviously in convinient and dangerous to
society and would subject the laws to continual infraction and the government to degradation if such
individual merchants did not owe temporary and local allegiance, and were not amendable to the jurisdiction
of the country.

The Supreme Court of the United States has recently said that the merchant vessels of one country visiting the ports
of another for the purpose of trade, subject themselves to the laws which govern the ports they visit, so long as they
remain; and this as well in war as in peace, unless otherwise provided by treaty. (U. S. vs. Diekelman, 92 U. S., 520-
525.)

Certain limitations upon the jurisdiction of the local courts are imposed by article 13 of the treaty of commerce and
navigation between Sweden and Norway and the United States, of July 4, 1827, which concedes to the consul, vice-
consuls, or consular agents of each country "The right to sit as judges and arbitrators in such differences as may
arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their
charge, without the interference of the local authorities, unless the conduct of the crews or of the captains should
disturb the order or tranquillity of the country." (Comp. of Treaties in Force, 1904, p. 754.) This exception applies to
controversies between the members of the ship's company, and particularly to disputes regarding wages. (2 Moore,
Int. Law Dig., sec. 206, p. 318; Tellefsen vs. Fee, 168 Mass., 188.) The order and tranquillity of the country are
affected by many events which do not amount to a riot or general public disturbance. Thus an assault by one
member of the crew upon another, committed upon the ship, of which the public may have no knowledge whatever,
is not by this treaty withdrawn from the cognizance of the local authorities.
In 1876 the mates of the Swedish bark Frederike and Carolina engaged in a "quarrel" on board the vessel in the port
of Galveston, Texas. They were prosecuted before a justice of the peace, but the United States district attorney was
instructed by the Government to take the necessary steps to have the proceedings dismissed, and the aid of the
governor of Texas was invoked with the view to "guard against a repetition of similar proceedings." (Mr. Fish,
Secretary of State, to Mr. Grip, Swedish and Norwegian charged, May 16, 1876; Moore, Int. Law Dig.) It does not
appear that this "quarrel" was of such a nature as to amount to a breach of the criminal laws of Texas, but when in
1879 the mate for the Norwegian bark Livingston was prosecuted in the courts of Philadelphia County for an assault
and battery committed on board the ship while lying in the port of Philadelphia, it was held that there was nothing in
the treaty which deprived the local courts of jurisdiction. (Commonwealth vs. Luckness, 14 Phila. (Pa.), 363.)
Representations were made through diplomatic channels to the State Department, and on July 30, 1880, Mr. Evarts,
Secretary of State, wrote to Count Lewenhaupt, the Swedish and Norwegian minister, as follows:

I have the honor to state that I have given the matter careful consideration in connection with the views and
suggestion of your note and the provisions of the thirteenth article of the treaty of 1827 between the United
States and Sweden and Norway. The stipulations contained in the last clause of that article . . . are those
under which it is contended by you that jurisdiction is conferred on the consular officers, not only in regard to
such differences of a civil nature growing out of the contract of engagement of the seamen, but also as to
disposing of controversies resulting from personal violence involving offense for which the party may be held
amenable under the local criminal law.

This Government does not view the article in question as susceptible of such broad interpretation. The
jurisdiction conferred upon the consuls is conceived to be limited to their right to sit as judges or abitrators in
such differences as may arise between captains and crews of the vessels, where such differences do not
involve on the part of the captain or crew a disturbance of the order or tranquillity of the country. When,
however, a complaint is made to a local magistrate, either by the captain or one or more of the crew of the
vessel, involving the disturbance of the order or tranquillity of the country, it is competent for such magistrate
to take cognizance of the matter in furtherance of the local laws, and under such circumstances in the
United States it becomes a public duty which the judge or magistrate is not at liberty voluntarily to forego. In
all such cases it must necessarily be left to the local judicial authorities whether the procedure shall take
place in the United States or in Sweden to determine if in fact there had been such disturbance of the local
order and tranquillity, and if the complaint is supported by such proof as results in the conviction of the party
accused, to visit upon the offenders such punishment as may be defined against the offense by the
municipal law of the place." (Moore, Int. Law Dig., vol. 2, p. 315.)

The treaty does not therefore deprive the local courts of jurisdiction over offenses committed on board a merchant
vessel by one member of the crew against another which amount to a disturbance of the order or tranquillity of the
country, and a fair and reasonable construction of the language requires un to hold that any violation of criminal
laws disturbs the order or traquillity of the country. The offense with which the appellant is charged had nothing to so
with any difference between the captain and the crew. It was a violation by the master of the criminal law of the
country into whose port he came. We thus find that neither by reason of the nationality of the vessel, the place of the
commission of the offense, or the prohibitions of any treaty or general principle of public law, are the court of the
Philippine Islands deprived of jurisdiction over the offense charged in the information in this case.

It is further contended that the complaint is defective because it does not allege that the animals were disembarked
at the port of Manila, an allegation which it is claimed is essential to the jurisdiction of the court sitting at that port. To
hold with the appellant upon this issue would be to construe the language of the complaint very strictly against the
Government. The disembarkation of the animals is not necessary in order to constitute the completed offense, and a
reasonable construction of the language of the statute confers jurisdiction upon the court sitting at the port into
which the animals are bought. They are then within the territorial jurisdiction of the court, and the mere fact of their
disembarkation is immaterial so far as jurisdiction is concerned. This might be different if the disembarkation of the
animals constituted a constitutional element in the offense, but it does not.

It is also contended that the information is insufficient because it fails to allege that the
defendant knowingly and willfully failed to provide suitable means for securing said animals while in transit, so as to
avoid cruelty and unnecessary suffering. The allegation of the complaint that the act was committed willfully includes
the allegation that it was committed knowingly. As said in Woodhouse vs. Rio Grande R.R. Company (67 Texas,
416), "the word 'willfully' carries the idea, when used in connection with an act forbidden by law, that the act must be
done knowingly or intentionally; that, with knowledge, the will consented to, designed, and directed the act." So in
Wong vs. City of Astoria (13 Oregon, 538), it was said: "The first one is that the complaint did not show, in the words
of the ordinance, that the appellant 'knowingly' did the act complained of. This point, I think, was fully answered by
the respondent's counsel — that the words 'willfully' and 'knowingly' conveyed the same meaning. To 'willfully' do an
act implies that it was done by design — done for a certain purpose; and I think that it would necessarily follow that it
was 'knowingly' done." To the same effect is Johnson vs. The People (94 Ill., 505), which seems to be on all fours
with the present case.

The evidence shows not only that the defendant's acts were knowingly done, but his defense rests upon the
assertion that "according to his experience, the system of carrying cattle loose upon the decks and in the hold is
preferable and more secure to the life and comfort of the animals." It was conclusively proven that what was done
was done knowingly and intentionally.

In charging an offense under section 6 of General Orders, No. 58, paragraph 3, it is only necessary to state the act
or omission complained of as constituting a crime or public offense in ordinary and concise language, without
repitition. It need not necessarily be in the words of the statute, but it must be in such form as to enable a person of
common understanding to know what is intended and the court to pronounce judgment according to right. A
complaint which complies with this requirement is good. (U.S. vs. Sarabia, 4 Phil. Rep., 556.)

The Act, which is in the English language, impose upon the master of a vessel the duty to "provide suitable means
for securing such animals while in transit, so as to avoid all cruelty and unnecessary suffering to the animals." The
allegation of the complaint as it reads in English is that the defendant willfully, unlawfully, and wrongfully carried the
cattle "without providing suitable means for securing said animals while in transit, so as to avoid cruelty and
unnecessary suffering to the said animals in this . . . that by reason of the aforesaid neglect and failure of the
accused to provide suitable means for securing said animals were cruelty torn, and many of said animals were
tossed about upon the decks and hold of said vessels, and cruelty wounded, bruised, and killed."

The appellant contends that the language of the Spanish text of the information does not charge him with failure to
provide "sufficient" and "adequate" means. The words used are "medios suficientes" and "medios adecuados." In
view of the fact that the original complaint was prepared in English, and that the word "suitable" is translatable by
the words "adecuado," "suficiente," and "conveniente," according to the context and circumstances, we determine
this point against the appellant, particularly in view of the fact that the objection was not made in the court below,
and that the evidence clearly shows a failure to provide "suitable means for the protection of the animals."

2. The appellant's arguments against the constitutionality of Act No. 55 and the amendment thereto seems to rest
upon a fundamentally erroneous conception of the constitutional law of these Islands. The statute penalizes acts
and ommissions incidental to the transportation of live stock between foreign ports and ports of the Philippine
Islands, and had a similar statute regulating commerce with its ports been enacted by the legislature of one of the
States of the Union, it would doubtless have been in violation of Article I, section 3, of the Constitution of the United
States. (Stubbs vs. People (Colo.), 11 L. R. A., N. S., 1071.)

But the Philippine Islands is not a State, and its relation to the United States is controlled by constitutional principles
different from those which apply to States of the Union. The importance of the question thus presented requires a
statement of the principles which govern those relations, and consideration of the nature and extent of the legislative
power of the Philippine Commission and the Legislature of the Philippines. After much discussion and considerable
diversity of opinion certain applicable constitutional doctrines are established.

The Constitution confers upon the United States the express power to make war and treaties, and it has the power
possessed by all nations to acquire territory by conquest or treaty. Territory thus acquired belongs to the United
States, and to guard against the possibility of the power of Congress to provide for its government being questioned,
the framers of the Constitution provided in express terms that Congress should have the power "to dispose of and
make all needful rules and regulations respecting territory and other property belonging to the United States." (Art.
IV, sec. 3, par. 3.) Upon the acquisition of the territory by the United States, and until it is formally incorporated into
the Union, the duty of providing a government therefor devolves upon Congress. It may govern the territory by its
direct acts, or it may create a local government, and delegate thereto the ordinary powers required for local
government. (Binns vs. U. S., 194 U. S., 486.) This has been the usual procedure. Congress has provided such
governments for territories which were within the Union, and for newly acquired territory not yet incorporated therein.
It has been customary to organize a government with the ordinary separation of powers into executive, legislative,
and judicial, and to prescribe in an organic act certain general conditions in accordance with which the local
government should act. The organic act thus became the constitution of the government of the territory which had
not been formally incorporated into the Union, and the validity of legislation enacted by the local legislature was
determined by its conformity with the requirements of such organic act. (National Bank vs. Yankton, 11 Otto (U. S.),
129.) To the legislative body of the local government Congress has delegated that portion of legislative power which
in its wisdom it deemed necessary for the government of the territory, reserving, however, the right to annul the
action of the local legislature and itself legislate directly for the territory. This power has been exercised during the
entire period of the history of the United States. The right of Congress to delegate such legislative power can no
longer be seriously questioned. (Dorr vs. U. S., 195 U. S., 138; U. S. vs. Heinszen, 206 U. S., 370, 385.)

The Constitution of the United States does not by its own force operate within such territory, although the liberality of
Congress in legislating the Constitution into contiguous territory tended to create an impression upon the minds of
many people that it went there by its own force. (Downes vs. Bidwell, 182 U. S., 289.) In legislating with reference to
this territory, the power of Congress is limited only by those prohibitions of the Constitution which go to the very root
of its power to act at all, irrespective of time or place. In all other respects it is plenary. (De Lima vs. Bidwell, 182 U.
S., 1; Downes vs. Bidwell, 182 U. S., 244; Hawaii vs. Mankichi, 190 U. S., 197; Dorr vs. U. S., 195 U. S., 138;
Rassmussen vs. U. S., 197 U. S., 516.)

This power has been exercised by Congress throughout the whole history of the United States, and legislation
founded on the theory was enacted long prior to the acquisition of the present Insular possessions. Section 1891 of
the Revised Statutes of 1878 provides that "The Constitution and all laws of the United States which are not locally
inapplicable shall have the same force and effect within all the organized territories, and in every Territory hereafter
organized, as elsewhere within the United States." When Congress organized a civil government for the Philippines,
it expressly provided that this section of the Revised Statutes should not apply to the Philippine Islands. (Sec. 1, Act
of 1902.)

In providing for the government of the territory which was acquired by the United States as a result of the war with
Spain, the executive and legislative authorities have consistently proceeded in conformity with the principles above
state. The city of Manila was surrendered to the United States on August 13, 1898, and the military commander was
directed to hold the city, bay, and harbor, pending the conclusion of a peace which should determine the control,
disposition, and government of the Islands. The duty then devolved upon the American authorities to preserve
peace and protect person and property within the occupied territory. Provision therefor was made by proper orders,
and on August 26 General Merritt assumed the duties of military governor. The treaty of peace was signed
December 10, 1898. On the 22d of December, 1898, the President announced that the destruction of the Spanish
fleet and the surrender of the city had practically effected the conquest of the Philippine Islands and the suspension
of the Spanish sovereignty therein, and that by the treaty of peace the future control, disposition, and government of
the Islands had been ceded to the United States. During the periods of strict military occupation, before the treaty of
peace was ratified, and the interim thereafter, until Congress acted (Santiago vs. Noueral, 214 U.S., 260), the
territory was governed under the military authority of the President as commander in chief. Long before Congress
took any action, the President organized a civil government which, however, had its legal justification, like the purely
military government which it gradually superseded, in the war power. The military power of the President embraced
legislative, executive personally, or through such military or civil agents as he chose to select. As stated by
Secretary Root in his report for 1901 —

The military power in exercise in a territory under military occupation includes executive, legislative, and
judicial authority. It not infrequently happens that in a single order of a military commander can be found the
exercise of all three of these different powers — the exercise of the legislative powers by provisions
prescribing a rule of action; of judicial power by determination of right; and the executive power by the
enforcement of the rules prescribed and the rights determined.

President McKinley desired to transform military into civil government as rapidly as conditions would permit. After full
investigation, the organization of civil government was initiated by the appointment of a commission to which civil
authority was to be gradually transferred. On September 1, 1900, the authority to exercise, subject to the approval of
the President. "that part of the military power of the President in the Philippine Islands which is legislative in its
character" was transferred from the military government to the Commission, to be exercised under such rules and
regulations as should be prescribed by the Secretary of War, until such time as complete civil government should be
established, or congress otherwise provided. The legislative power thus conferred upon the Commission was
declared to include "the making of rules and orders having the effect of law for the raising of revenue by taxes,
customs duties, and imposts; the appropriation and expenditure of public funds of the Islands; the establishment of
an educational system to secure an efficient civil service; the organization and establishment of courts; the
organization and establishment of municipal and departmental government, and all other matters of a civil nature
which the military governor is now competent to provide by rules or orders of a legislative character." This grant of
legislative power to the Commission was to be exercised in conformity with certain declared general principles, and
subject to certain specific restrictions for the protection of individual rights. The Commission were to bear in mind
that the government to be instituted was "not for our satisfaction or for the expression of our theoretical views, but
for the happiness, peace, and prosperity of the people of the Philippine Island, and the measures adopted should be
made to conforms to their customs, their habits, and even their prejudices, to the fullest extent consistent with the
accomplishment of the indispensable requisites of just and effective government." The specific restrictions upon
legislative power were found in the declarations that "no person shall be deprived of life, liberty, or property without
due process of law; that private property shall not be taken for public use without just compensation; that in all
criminal prosecutions the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and
cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his defense; that excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishment inflicted; that no person shall be put twice
in jeopardy for the same offense or be compelled in any criminal case to be a witness against himself; that the right
to be secure against unreasonable searches and seizures shall not be violated; that neither slavery nor involuntary
servitude shall exist except as a punishment for crime; that no bill of attainder or ex post facto law shall be passed;
that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to
peaceably assemble and petition the Government for a redress of grievances; that no law shall be made respecting
an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of
religious profession and worship without discrimination or preference shall forever be allowed."

To prevent any question as to the legality of these proceedings being raised, the Spooner amendment to the Army
Appropriation Bill passed March 2, 1901, provided that "all military, civil, and judicial powers necessary to govern the
Philippine Islands . . . shall until otherwise provided by Congress be vested in such person and persons, and shall
be exercised in such manner, as the President of the United States shall direct, for the establishment of civil
government, and for maintaining and protecting the inhabitants of said Islands in the free enjoyment of their liberty,
property, and religion." Thereafter, on July 4, 1901, the authority, which had been exercised previously by the
military governor, was transferred to that official. The government thus created by virtue of the authority of the
President as Commander in Chief of the Army and Navy continued to administer the affairs of the Islands under the
direction of the President until by the Act of July 1, 1902, Congress assumed control of the situation by the
enactment of a law which, in connection with the instructions of April 7, 1900, constitutes the organic law of the
Philippine Islands.

The Act of July 1, 1902, made no substancial changes in the form of government which the President had erected.
Congress adopted the system which was in operation, and approved the action of the President in organizing the
government. Substantially all the limitations which had been imposed on the legislative power by the President's
instructions were included in the law, Congress thus extending to the Islands by legislative act nor the Constitution,
but all its provisions for the protection of the rights and privileges of individuals which were appropriate under the
conditions. The action of the President in creating the Commission with designated powers of government, in
creating the office of the Governor-General and Vice-Governor-General, and through the Commission establishing
certain executive departments, was expressly approved and ratified. Subsequently the action of the President in
imposing a tariff before and after the ratification of the treaty of peace was also ratified and approved by Congress.
(Act of March 8, 1902; Act of July 1, 1902; U.S. vs. Heinszen, 206 U.S., 370; Lincoln vs. U.S., 197 U.S., 419.) Until
otherwise provided by law the Islands were to continue to be governed "as thereby and herein provided." In the
future the enacting clause of all statutes should read "By authority of the United States" instead of "By the authority
of the President." In the course of time the legislative authority of the Commission in all parts of the Islands not
inhabited by Moros or non-Christian tribes was to be transferred to a legislature consisting of two houses — the
Philippine Commission and the Philippine Assembly. The government of the Islands was thus assumed by
Congress under its power to govern newly acquired territory not incorporated into the United States.

This Government of the Philippine Islands is not a State or a Territory, although its form and organization somewhat
resembles that of both. It stands outside of the constitutional relation which unites the States and Territories into the
Union. The authority for its creation and maintenance is derived from the Constitution of the United States, which,
however, operates on the President and Congress, and not directly on the Philippine Government. It is the creation
of the United States, acting through the President and Congress, both deriving power from the same source, but
from different parts thereof. For its powers and the limitations thereon the Government of the Philippines looked to
the orders of the President before Congress acted and the Acts of Congress after it assumed control. Its organic
laws are derived from the formally and legally expressed will of the President and Congress, instead of the popular
sovereign constituency which lies upon any subject relating to the Philippines is primarily in Congress, and when it
exercise such power its act is from the viewpoint of the Philippines the legal equivalent of an amendment of a
constitution in the United States.

Within the limits of its authority the Government of the Philippines is a complete governmental organism with
executive, legislative, and judicial departments exercising the functions commonly assigned to such departments.
The separation of powers is as complete as in most governments. In neither Federal nor State governments is this
separation such as is implied in the abstract statement of the doctrine. For instance, in the Federal Government the
Senate exercises executive powers, and the President to some extent controls legislation through the veto power. In
a State the veto power enables him to exercise much control over legislation. The Governor-General, the head of
the executive department in the Philippine Government, is a member of the Philippine Commission, but as executive
he has no veto power. The President and Congress framed the government on the model with which Americans are
familiar, and which has proven best adapted for the advancement of the public interests and the protection of
individual rights and priviliges.

In instituting this form of government of intention must have been to adopt the general constitutional doctrined which
are inherent in the system. Hence, under it the Legislature must enact laws subject to the limitations of the organic
laws, as Congress must act under the national Constitution, and the States under the national and state
constitutions. The executive must execute such laws as are constitutionally enacted. The judiciary, as in all
governments operating under written constitutions, must determine the validity of legislative enactments, as well as
the legality of all private and official acts. In performing these functions it acts with the same independence as the
Federal and State judiciaries in the United States. Under no other constitutional theory could there be that
government of laws and not of men which is essential for the protection of rights under a free and orderly
government.

Such being the constitutional theory of the Government of the Philippine Islands, it is apparent that the courts must
consider the question of the validity of an act of the Philippine Commission or the Philippine Legislature, as a State
court considers an act of the State legislature. The Federal Government exercises such powers only as are
expressly or impliedly granted to it by the Constitution of the United States, while the States exercise all powers
which have not been granted to the central government. The former operates under grants, the latter subject to
restrictions. The validity of an Act of Congress depends upon whether the Constitution of the United States contains
a grant of express or implied authority to enact it. An act of a State legislature is valid unless the Federal or State
constitution expressly or impliedly prohibits its enaction. An Act of the legislative authority of the Philippines
Government which has not been expressly disapproved by Congress is valid unless its subject-matter has been
covered by congressional legislation, or its enactment forbidden by some provision of the organic laws.

The legislative power of the Government of the Philippines is granted in general terms subject to specific limitations.
The general grant is not alone of power to legislate on certain subjects, but to exercise the legislative power subject
to the restrictions stated. It is true that specific authority is conferred upon the Philippine Government relative to
certain subjects of legislation, and that Congress has itself legislated upon certain other subjects. These, however,
should be viewed simply as enactments on matters wherein Congress was fully informed and ready to act, and not
as implying any restriction upon the local legislative authority in other matters. (See Opinion of Atty. Gen. of U. S.,
April 16, 1908.)

The fact that Congress reserved the power to annul specific acts of legislation by the Government of the Philippine
tends strongly to confirm the view that for purposes of construction the Government of the Philippines should be
regarded as one of general instead of enumerated legislative powers. The situation was unusual. The new
government was to operate far from the source of its authority. To relieve Congress from the necessity of legislating
with reference to details, it was thought better to grant general legislative power to the new government, subject to
broad and easily understood prohibitions, and reserve to Congress the power to annul its acts if they met with
disapproval. It was therefore provided "that all laws passed by the Government of the Philippine Islands shall be
reported to Congress, which hereby reserves the power and authority to annul the same." (Act of Congress, July 1,
1902, sec. 86.) This provision does not suspend the acts of the Legislature of the Philippines until approved by
Congress, or when approved, expressly or by acquiescence, make them the laws of Congress. They are valid acts
of the Government of the Philippine Islands until annulled. (Miners Bank vs. Iowa, 12 How. (U. S.), 1.)
In order to determine the validity of Act No. 55 we must then ascertain whether the Legislature has been expressly
or implication forbidden to enact it. Section 3, Article IV, of the Constitution of the United States operated only upon
the States of the Union. It has no application to the Government of the Philippine Islands. The power to regulate
foreign commerce is vested in Congress, and by virtue of its power to govern the territory belonging to the United
States, it may regulate foreign commerce with such territory. It may do this directly, or indirectly through a legislative
body created by it, to which its power in this respect if delegate. Congress has by direct legislation determined the
duties which shall be paid upon goods imported into the Philippines, and it has expressly authorized the
Government of the Philippines to provide for the needs of commerce by improving harbors and navigable waters. A
few other specific provisions relating to foreign commerce may be found in the Acts of Congress, but its general
regulation is left to the Government of the Philippines, subject to the reserved power of Congress to annul such
legislation as does not meet with its approval. The express limitations upon the power of the Commission and
Legislature to legislate do not affect the authority with respect to the regulation of commerce with foreign countries.
Act No. 55 was enacted before Congress took over the control of the Islands, and this act was amended by Act No.
275 after the Spooner amendment of March 2, 1901, was passed. The military government, and the civil
government instituted by the President, had the power, whether it be called legislative or administrative, to regulate
commerce between foreign nations and the ports of the territory. (Cross vs. Harrison, 16 How. (U.S.), 164, 190;
Hamilton vs. Dillin, 21 Wall. (U.S.), 73, 87.) This Act has remained in force since its enactment without annulment or
other action by Congress, and must be presumed to have met with its approval. We are therefore satisfied that the
Commission had, and the Legislature now has, full constitutional power to enact laws for the regulation of commerce
between foreign countries and the ports of the Philippine Islands, and that Act No. 55, as amended by Act No. 275,
is valid.

3. Whether a certain method of handling cattle is suitable within the meaning of the Act can not be left to the
judgment of the master of the ship. It is a question which must be determined by the court from the evidence. On
December 2, 1908, the defendant Bull brought into and disembarked in the port and city of Manila certain cattle,
which came from the port of Ampieng, Formosa, without providing suitable means for securing said animals while in
transit, so as to avoid cruelty and unnecessary suffering to said animals, contrary to the provisions of section 1 of
Act No. 55, as amended by section 1 of Act No. 275. The trial court found the following facts, all of which are fully
sustained by the evidence:

That the defendant, H. N. Bull, as captain and master of the Norwegian steamer known as the Standard, for
a period of six months or thereabouts prior to the 2d day of December, 1908, was engaged in the
transportation of cattle and carabaos from Chines and Japanese ports to and into the city of Manila,
Philippine Islands.

That on the 2d day of December, 1908, the defendant, as such master and captain as aforesaid, brought
into the city of Manila, aboard said ship, a large number of cattle, which ship was anchored, under the
directions of the said defendant, behind the breakwaters in front of the city of Manila, in Manila Bay, and
within the jurisdiction of this court; and that fifteen of said cattle then and there had broken legs and three
others of said cattle were dead, having broken legs; and also that said cattle were transported and carried
upon said ship as aforesaid by the defendant, upon the deck and in the hold of said ship, without suitable
precaution and care for the transportation of said animals, and to avoid danger and risk to their lives and
security; and further that said cattle were so transported abroad said ship by the defendant and brought into
the said bay, and into the city of Manila, without any provisions being made whatever upon said decks of
said ship and in the hold thereof to maintain said cattle in a suitable condition and position for such
transportation.

That a suitable and practicable manner in which to transport cattle abroad steamship coming into Manila
Bay and unloading in the city of Manila is by way of individual stalls for such cattle, providing partitions
between the cattle and supports at the front sides, and rear thereof, and cross-cleats upon the floor on which
they stand and are transported, of that in case of storms, which are common in this community at sea, such
cattle may be able to stand without slipping and pitching and falling, individually or collectively, and to avoid
the production of panics and hazard to the animals on account or cattle were transported in this case.
Captain Summerville of the steamship Taming, a very intelligent and experienced seaman, has testified, as
a witness in behalf of the Government, and stated positively that since the introduction in the ships with
which he is acquainted of the stall system for the transportation of animals and cattle he has suffered no loss
whatever during the last year. The defendant has testified, as a witness in his own behalf, that according to
his experience the system of carrying cattle loose upon the decks and in the hold is preferable and more
 secure to the life and comfort of the animals, but this theory of the case is not maintainable, either by the
proofs or common reason. It can not be urged with logic that, for instance, three hundred cattle supports for
the feet and without stalls or any other protection for them individually can safely and suitably carried in
times of storm upon the decks and in the holds of ships; such a theory is against the law of nature. One
animal falling or pitching, if he is untied or unprotected, might produce a serious panic and the wounding of
half the animals upon the ship if transported in the manner found in this case.

The defendant was found guilty, and sentenced to pay a fine of two hundred and fifty pesos, with subsidiary
imprisonment in case of insolvency, and to pay the costs. The sentence and judgment is affirmed. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5887 December 16, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
LOOK CHAW (alias LUK CHIU), defendant-appellant.

Thos. D. Aitken for appellant.

Attorney-General Villamor for appellee.

ARELLANO, C. J.:

The first complaint filed against the defendant, in the Court of First Instance of Cebu, stated that he "carried, kept,
possessed and had in his possession and control, 96 kilogrammes of opium," and that "he had been surprised in the
act of selling 1,000 pesos worth prepared opium."

The defense presented a demurrer based on two grounds, the second of which was the more than one crime was
charged in the complaint. The demurrer was sustained, as the court found that the complaint contained two charges,
one, for the unlawful possession of opium, and the other, for the unlawful sale of opium, and, consequence of that
ruling, it ordered that the fiscal should separated one charge from the other and file a complaint for each violation;
this, the fiscal did, and this cause concerns only the unlawful possession of opium. It is registered as No. 375, in the
Court of First Instance of Cebu, and as No. 5887 on the general docket of this court.

The facts of the case are contained in the following finding of the trial court:

The evidence, it says, shows that between 11 and 12 o'clock a. m. on the present month (stated as August
19, 1909), several persons, among them Messrs. Jacks and Milliron, chief of the department of the port of
Cebu and internal-revenue agent of Cebu, respectively, went abroad the steamship Erroll to inspect and
search its cargo, and found, first in a cabin near the saloon, one sack (Exhibit A) and afterwards in the hold,
another sack (Exhibit B). The sack referred to as Exhibit A contained 49 cans of opium, and the other,
Exhibit B, the larger sack, also contained several cans of the same substance. The hold, in which the sack
mentioned in Exhibit B was found, was under the defendant's control, who moreover, freely and of his own
will and accord admitted that this sack, as well as the other referred to in Exhibit B and found in the cabin,
belonged to him. The said defendant also stated, freely and voluntarily, that he had bought these sacks of
opium, in Hongkong with the intention of selling them as contraband in Mexico or Vera Cruz, and that, as his
hold had already been searched several times for opium, he ordered two other Chinamen to keep the sack.
Exhibit A.

It is to be taken into account that the two sacks of opium, designated as Exhibits A and B, properly constitute
the corpus delicti. Moreover, another lot of four cans of opium, marked, as Exhibit C, was the subject matter of
investigation at the trial, and with respect to which the chief of the department of the port of Cebu testified that they
were found in the part of the ship where the firemen habitually sleep, and that they were delivered to the first officer
of the ship to be returned to the said firemen after the vessel should have left the Philippines, because the firemen
and crew of foreign vessels, pursuant to the instructions he had from the Manila custom-house, were permitted to
retain certain amounts of opium, always provided it should not be taken shore.

And, finally, another can of opium, marked "Exhibit D," is also corpus delicti and important as evidence in this cause.
With regard to this the internal-revenue agent testified as follows: itc-alf
 FISCAL. What is it?

WITNESS. It is a can opium which was bought from the defendant by a secret-service agent and taken to
the office of the governor to prove that the accused had opium in his possession to sell.

On motion by the defense, the court ruled that this answer might be stricken out "because it refers to a sale." But,
with respect to this answer, the chief of the department of customs had already given this testimony, to wit:

FISCAL. Who asked you to search the vessel?

WITNESS. The internal-revenue agent came to my office and said that a party brought him a sample of
opium and that the same party knew that there was more opium on board the steamer, and the agent asked
that the vessel be searched.

The defense moved that this testimony be rejected, on the ground of its being hearsay evidence, and the court only
ordered that the part thereof "that there was more opium, on board the vessel" be stricken out.

The defense, to abbreviate proceedings, admitted that the receptacles mentioned as Exhibits A, B, and C, contained
opium and were found on board the steamship Erroll, a vessel of English nationality, and that it was true that the
defendant stated that these sacks of opium were his and that he had them in his possession.

According to the testimony of the internal-revenue agent, the defendant stated to him, in the presence of the
provincial fiscal, of a Chinese interpreter (who afterwards was not needed, because the defendant spoke English),
the warden of the jail, and four guards, that the opium seized in the vessel had been bought by him in Hongkong, at
three pesos for each round can and five pesos for each one of the others, for the purpose of selling it, as
contraband, in Mexico and Puerto de Vera Cruz; that on the 15th the vessel arrived at Cebu, and on the same day
he sold opium; that he had tried to sell opium for P16 a can; that he had a contract to sell an amount of the value of
about P500; that the opium found in the room of the other two Chinamen prosecuted in another cause, was his, and
that he had left it in their stateroom to avoid its being found in his room, which had already been searched many
times; and that, according to the defendant, the contents of the large sack was 80 cans of opium, and of the small
one, 49, and the total number, 129.

It was established that the steamship Erroll was of English nationality, that it came from Hongkong, and that it was
bound for Mexico, via the call ports of Manila and Cebu.

The defense moved for a dismissal of the case, on the grounds that the court had no jurisdiction to try the same and
the facts concerned therein did not constitute a crime. The fiscal, at the conclusion of his argument, asked that the
maximum penalty of the law be imposed upon the defendant, in view of the considerable amount of opium seized.
The court ruled that it did not lack jurisdiction, inasmuch as the crime had been committed within its district, on the
wharf of Cebu.

The court sentenced the defendant to five years' imprisonment, to pay a fine of P10,000, with additional subsidiary
imprisonment in case of insolvency, though not to exceed one third of the principal penalty, and to the payment of
the costs. It further ordered the confiscation, in favor of the Insular Government, of the exhibits presented in the
case, and that, in the event of an appeal being taken or a bond given, or when the sentenced should have been
served, the defendant be not released from custody, but turned over to the customs authorities for the purpose of
the fulfillment of the existing laws on immigration.

From this judgment, the defendant appealed to this court. lawphi1.net

The appeal having been heard, together with the allegations made therein by the parties, it is found: That, although
the mere possession of a thing of prohibited use in these Islands, aboard a foreign vessel in transit, in any of their
ports, does not, as a general rule, constitute a crime triable by the courts of this country, on account of such vessel
being considered as an extension of its own nationality, the same rule does not apply when the article, whose use is
prohibited within the Philippine Islands, in the present case a can of opium, is landed from the vessel upon
Philippine soil, thus committing an open violation of the laws of the land, with respect to which, as it is a violation of
the penal law in force at the place of the commission of the crime, only the court established in that said place itself
had competent jurisdiction, in the absence of an agreement under an international treaty.

It is also found: That, even admitting that the quantity of the drug seized, the subject matter of the present case, was
considerable, it does not appear that, on such account, the two penalties fixed by the law on the subject, should be
imposed in the maximum degree.

Therefore, reducing the imprisonment and the fine imposed to six months and P1,000, respectively, we affirm in all
other respects the judgment appealed from, with the costs of this instance against the appellant. So ordered
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-13005 October 10, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
AH SING, defendant-appellant.

Antonio Sanz for appellant.

Acting Attorney-General Paredes for appellee.

MALCOLM, J.:

This is an appeal from a judgment of the Court of First Instance of Cebu finding the defendant guilty of a violation of
section 4 of Act No. 2381 (the Opium Law), and sentencing him to two years imprisonment, to pay a fine of P300 or
to suffer subsidiary imprisonment in case of insolvency, and to pay the costs.

The following facts are fully proven: The defendant is a subject of China employed as a fireman on the
steamship Shun Chang. The Shun Chang is a foreign steamer which arrived at the port of Cebu on April 25, 1917,
after a voyage direct from the port of Saigon. The defendant bought eight cans of opium in Saigon, brought them on
board the steamship Shun Chang, and had them in his possession during the trip from Saigon to Cebu. When the
steamer anchored in the port of Cebu on April 25, 1917, the authorities on making a search found the eight cans of
opium above mentioned hidden in the ashes below the boiler of the steamer's engine. The defendant confessed that
he was the owner of this opium, and that he had purchased it in Saigon. He did not confess, however, as to his
purpose in buying the opium. He did not say that it was his intention to import the prohibited drug into the Philippine
Islands. No other evidence direct or indirect, to show that the intention of the accused was to import illegally this
opium into the Philippine Islands, was introduced.

Has the crime of illegal importation of opium into the Philippine Islands been proven?

Two decisions of this Court are cited in the judgment of the trial court, but with the intimation that there exists
inconsistently between the doctrines laid down in the two cases. However, neither decision is directly a precedent
on the facts before us.

In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the opinion handed down by the Chief Justice,
it is found —

That, although the mere possession of a thing of prohibited use in these Islands, aboard a foreign vessel in
transit, in any of their ports, does not, as a general rule, constitute a crime triable by the courts of this
country, on account of such vessel being considered as an extension of its own nationality, the same rule
does no apply when the article, whose use is prohibited within the Philippine Islands, in the present case a
can of opium, is landed from the vessel upon Philippine soil, thus committing an open violation of the laws of
the land, with respect to which, as it is a violation of the penal law in force at the place of the commission of
the crime, only the court established in the said place itself has competent jurisdiction, in the absence of an
agreement under an international treaty. 1aw phil.net

A marked difference between the facts in the Look Chaw case and the facts in the present instance is readily
observable. In the Look Chaw case, the charge case the illegal possession and sale of opium — in the present case
the charge as illegal importation of opium; in the Look Chaw case the foreign vessel was in transit — in the present
case the foreign vessel was not in transit; in the Look Chaw case the opium was landed from the vessel upon
Philippine soil — in the present case of United States vs. Jose ([1916], 34 Phil., 840), the main point, and the one on
which resolution turned, was that in a prosecution based on the illegal importation of opium or other prohibited drug,
the Government must prove, or offer evidence sufficient to raise a presumption, that the vessel from which the drug
is discharged came into Philippine waters from a foreign country with the drug on board. In the Jose case, the
defendants were acquitted because it was not proved that the opium was imported from a foreign country; in the
present case there is no question but what the opium came from Saigon to Cebu. However, in the opinion in the
Jose case, we find the following which may be obiter dicta, but which at least is interesting as showing the view of
the writer of the opinion:

The importation was complete, to say the least, when the ship carrying it anchored in Subic Bay. It was not
necessary that the opium discharged or that it be taken from the ship. It was sufficient that the opium was
brought into the waters of the Philippine Islands on a boat destined for a Philippine port and which
subsequently anchored in a port of the Philippine Islands with intent to discharge its cargo.

Resolving whatever doubt was exist as to the authority of the views just quoted, we return to an examination of the
applicable provisions of the law. It is to be noted that section 4 of Act No. 2381 begins, "Any person who shall
unlawfully import or bring any prohibited drug into the Philippine Islands." "Import" and "bring" are synonymous
terms. The Federal Courts of the United States have held that the mere act of going into a port, without breaking
bulk, is prima facie evidence of importation. (The Mary [U. S.], 16 Fed. Cas., 932, 933.) And again, the importation is
not the making entry of goods at the custom house, but merely the bringing them into port; and the importation is
complete before entry of the Custom House. (U. S. vs. Lyman [U. S.], 26, Fed. Cas., 1024, 1028; Perots vs. U. S.,
19 Fed. Cas., 258.) As applied to the Opium Law, we expressly hold that any person unlawfully imports or brings
any prohibited drug into the Philippine Islands, when the prohibited drug is found under this person's control on a
vessel which has come direct from a foreign country and is within the jurisdictional limits of the Philippine Islands. In
such case, a person is guilty of illegal importation of the drug unless contrary circumstances exist or the defense
proves otherwise. Applied to the facts herein, it would be absurb to think that the accused was merely carrying
opium back and forth between Saigon and Cebu for the mere pleasure of so doing. It would likewise be impossible
to conceive that the accused needed so large an amount of opium for his personal use. No better explanation being
possible, the logical deduction is that the defendant intended this opium to be brought into the Philippine Islands.
We accordingly find that there was illegal importation of opium from a foreign country into the Philippine Islands. To
anticipate any possible misunderstanding, let it be said that these statements do not relate to foreign vessels in
transit, a situation not present.

The defendant and appellant, having been proved guilty beyond a reasonable doubt as charged and the sentence of
the trial court being within the limits provided by law, it results that the judgment must be affirmed with the costs of
this instance against the appellant. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-18924 October 19, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,

vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.

Attorney-General Villa-Real for appellant.

Eduardo Gutierrez Repide for appellee.

ROMUALDEZ, J.:

In this appeal the Attorney-General urges the revocation of the order of the Court of First Instance of Manila,
sustaining the demurrer presented by the defendant to the information that initiated this case and in which the
appellee is accused of having illegally smoked opium, aboard the merchant vessel Changsa of English nationality
while said vessel was anchored in Manila Bay two and a half miles from the shores of the city.

The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and dismissed the case.

The question that presents itself for our consideration is whether such ruling is erroneous or not; and it will or will not
be erroneous according as said court has or has no jurisdiction over said offense.

The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the one herein involved,
committed aboard merchant vessels anchored in our jurisdiction waters. 1awph!l.net

There are two fundamental rules on this particular matter in connection with International Law; to wit, the French
rule, according to which crimes committed aboard a foreign merchant vessels should not be prosecuted in the
courts of the country within whose territorial jurisdiction they were committed, unless their commission affects the
peace and security of the territory; and the English rule, based on the territorial principle and followed in the United
States, according to which, crimes perpetrated under such circumstances are in general triable in the courts of the
country within territory they were committed. Of this two rules, it is the last one that obtains in this jurisdiction,
because at present the theories and jurisprudence prevailing in the United States on this matter are authority in the
Philippines which is now a territory of the United States.

In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief Justice Marshall
said:

. . . When merchant vessels enter for the purposes of trade, it would be obviously inconvenient and
dangerous to society, and would subject the laws to continual infraction, and the government to degradation,
if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the
jurisdiction of the country. . . .

In United States vs. Bull (15 Phil., 7), this court held:

. . . No court of the Philippine Islands had jurisdiction over an offense or crime committed on the high seas or
within the territorial waters of any other country, but when she came within three miles of a line drawn from
the headlands, which embrace the entrance to Manila Bay, she was within territorial waters, and a new set
of principles became applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit
Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the
jurisdiction of the territorial sovereign subject to such limitations as have been conceded by that sovereignty
through the proper political agency. . . .
It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs. Keeper of the Common
Jail (120 U.., 1), wherein it was said that:

. . . The principle which governs the whole matter is this: Disorder which disturb only the peace of the ship or
those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which
disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper
authorities of the local jurisdiction. It may not be easy at all times to determine which of the two jurisdictions
a particular act of disorder belongs. Much will undoubtedly depend on the attending circumstances of the
particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if
the proper authorities are proceeding with the case in the regular way the consul has no right to interfere to
prevent it.

Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:

Although the mere possession of an article of prohibited use in the Philippine Islands, aboard a foreign
vessel in transit in any local port, does not, as a general rule, constitute a crime triable by the courts of the
Islands, such vessels being considered as an extension of its own nationality, the same rule does not apply
when the article, the use of which is prohibited in the Islands, is landed from the vessels upon Philippine soil;
in such a case an open violation of the laws of the land is committed with respect to which, as it is a violation
of the penal law in force at the place of the commission of the crime, no court other than that established in
the said place has jurisdiction of the offense, in the absence of an agreement under an international treaty.

As to whether the United States has ever consented by treaty or otherwise to renouncing such jurisdiction or a part
thereof, we find nothing to this effect so far as England is concerned, to which nation the ship where the crime in
question was committed belongs. Besides, in his work "Treaties, Conventions, etc.," volume 1, page 625, Malloy
says the following:

There shall be between the territories of the United States of America, and all the territories of His Britanic
Majesty in Europe, a reciprocal liberty of commerce. The inhabitants of the two countries, respectively, shall
have liberty freely and securely to come with their ships and cargoes to all such places, ports and rivers, in
the territories aforesaid, to which other foreigners are permitted to come, to enter into the same, and to
remain and reside in any parts of the said territories, respectively; also to hire and occupy houses and
warehouses for the purposes of their commerce; and, generally, the merchants and traders of each nation
respectively shall enjoy the most complete protection and security for their commerce, but subject always to
the laws and statutes of the two countries, respectively. (Art. 1, Commerce and Navigation Convention.)

We have seen that the mere possession of opium aboard a foreign vessel in transit was held by this court not triable
by or courts, because it being the primary object of our Opium Law to protect the inhabitants of the Philippines
against the disastrous effects entailed by the use of this drug, its mere possession in such a ship, without being
used in our territory, does not being about in the said territory those effects that our statute contemplates avoiding.
Hence such a mere possession is not considered a disturbance of the public order.

But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly a breach of
the public order here established, because it causes such drug to produce its pernicious effects within our territory. It
seriously contravenes the purpose that our Legislature has in mind in enacting the aforesaid repressive statute.
Moreover, as the Attorney-General aptly observes:

. . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the port of Manila in
open defiance of the local authorities, who are impotent to lay hands on him, is simply subversive of public
order. It requires no unusual stretch of the imagination to conceive that a foreign ship may come into the port
of Manila and allow or solicit Chinese residents to smoke opium on board.

The order appealed from is revoked and the cause ordered remanded to the court of origin for further proceedings in
accordance with law, without special findings as to costs. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 17958 February 27, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
LOL-LO and SARAW, defendants-appellants.

Thos. D. Aitken for appellants.

Acting Attorney-General Tuason for appellee.

MALCOLM, J.:

The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery and Captain Kidd and
Bartholomew Roberts gripped the imagination, when grostesque brutes like Blackbeard flourished, seem far away in
the pages of history and romance. Nevertheless, the record before us tells a tale of twentieth century piracy in the
south seas, but stripped of all touches of chivalry or of generosity, so as to present a horrible case of rapine and
near murder.

On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another Dutch possession. In one
of the boats was one individual, a Dutch subject, and in the other boat eleven men, women, and children, likewise
subjects of Holland. After a number of days of navigation, at about 7 o'clock in the evening, the second boat arrived
between the Islands of Buang and Bukid in the Dutch East Indies. There the boat was surrounded by
six vintas manned by twenty-four Moros all armed. The Moros first asked for food, but once on the Dutch boat, too
for themselves all of the cargo, attacked some of the men, and brutally violated two of the women by methods too
horrible to the described. All of the persons on the Dutch boat, with the exception of the two young women, were
again placed on it and holes were made in it, the idea that it would submerge, although as a matter of fact, these
people, after eleven days of hardship and privation, were succored violating them, the Moros finally arrived at
Maruro, a Dutch possession. Two of the Moro marauder were Lol-lo, who also raped one of the women, and Saraw.
At Maruro the two women were able to escape.

Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands. There they were
arrested and were charged in the Court of First Instance of Sulu with the crime of piracy. A demurrer was interposed
by counsel de officio for the Moros, based on the grounds that the offense charged was not within the jurisdiction of
the Court of First Instance, nor of any court of the Philippine Islands, and that the facts did not constitute a public
offense, under the laws in force in the Philippine Islands. After the demurrer was overruled by the trial judge, trial
was had, and a judgment was rendered finding the two defendants guilty and sentencing each of them to life
imprisonment (cadena perpetua), to return together with Kinawalang and Maulanis, defendants in another case, to
the offended parties, the thirty-nine sacks of copras which had been robbed, or to indemnify them in the amount of
924 rupees, and to pay a one-half part of the costs.

A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a process of
elimination, however, certain questions can be quickly disposed of.

The proven facts are not disputed. All of the elements of the crime of piracy are present. Piracy is robbery or forcible
depredation on the high seas, without lawful authority and done animo furandi, and in the spirit and intention of
universal hostility.

It cannot be contended with any degree of force as was done in the lover court and as is again done in this court,
that the Court of First Instance was without jurisdiction of the case. Pirates are in law hostes humani generis. Piracy
is a crime not against any particular state but against all mankind. It may be punished in the competent tribunal of
any country where the offender may be found or into which he may be carried. The jurisdiction of piracy unlike all
other crimes has no territorial limits. As it is against all so may it be punished by all. Nor does it matter that the crime
was committed within the jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral to war, are not
neutral to crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)

The most serious question which is squarely presented to this court for decision for the first time is whether or not
the provisions of the Penal Code dealing with the crime of piracy are still in force. Article 153 to 156 of the Penal
Code reads as follows:

ART. 153. The crime of piracy committed against Spaniards, or the subjects of another nation not at war
with Spain, shall be punished with a penalty ranging from cadena temporal to cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with Spain, it shall be
punished with the penalty of presidio mayor.

ART. 154. Those who commit the crimes referred to in the first paragraph of the next preceding article shall
suffer the penalty of cadena perpetua or death, and those who commit the crimes referred to in the second
paragraph of the same article, from cadena temporal to cadena perpetua:

1. Whenever they have seized some vessel by boarding or firing upon the same.

2. Whenever the crime is accompanied by murder, homicide, or by any of the physical injuries
specified in articles four hundred and fourteen and four hundred and fifteen and in paragraphs one
and two of article four hundred and sixteen.

3. Whenever it is accompanied by any of the offenses against chastity specified in Chapter II, Title
IX, of this book.

4. Whenever the pirates have abandoned any persons without means of saving themselves.

5. In every case, the captain or skipper of the pirates.

ART. 155. With respect to the provisions of this title, as well as all others of this code, when Spain is
mentioned it shall be understood as including any part of the national territory.

ART. 156. For the purpose of applying the provisions of this code, every person, who, according to the
Constitution of the Monarchy, has the status of a Spaniard shall be considered as such.

The general rules of public law recognized and acted on by the United States relating to the effect of a transfer of
territory from another State to the United States are well-known. The political law of the former sovereignty is
necessarily changed. The municipal law in so far as it is consistent with the Constitution, the laws of the United
States, or the characteristics and institutions of the government, remains in force. As a corollary to the main rules,
laws subsisting at the time of transfer, designed to secure good order and peace in the community, which are strictly
of a municipal character, continue until by direct action of the new government they are altered or repealed.
(Chicago, Rock Islands, etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)

These principles of the public law were given specific application to the Philippines by the Instructions of President
McKinley of May 19, 1898, to General Wesley Meritt, the Commanding General of the Army of Occupation in the
Philippines, when he said:

Though the powers of the military occupant are absolute and supreme, and immediately operate upon the
political condition of the inhabitants, the municipal laws of the conquered territory, such as affect private
rights of person and property, and provide for the punishment of crime, are considered as continuing in
force, so far as they are compatible with the new order of things, until they are suspended or superseded by
the occupying belligerent; and practice they are not usually abrogated, but are allowed to remain in force,
and to be administered by the ordinary tribunals, substantially as they were before the occupations. This
enlightened practice is so far as possible, to be adhered to on the present occasion. (Official Gazette,
Preliminary Number, Jan. 1, 1903, p. 1. See also General Merritt Proclamation of August 14, 1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were meant to include the
Philippine Islands. Article 156 of the Penal Code in relation to article 1 of the Constitution of the Spanish Monarchy,
would also make the provisions of the Code applicable not only to Spaniards but to Filipinos.

The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the civil law, and he has
never been disputed. The specific provisions of the Penal Code are similar in tenor to statutory provisions elsewhere
and to the concepts of the public law. This must necessarily be so, considering that the Penal Code finds its
inspiration in this respect in the Novelas, the Partidas, and the Novisima Recopilacion.

The Constitution of the United States declares that the Congress shall have the power to define and punish piracies
and felonies committed on the high seas, and offenses against the law of nations. (U.S. Const. Art. I, sec. 8, cl. 10.)
The Congress, in putting on the statute books the necessary ancillary legislation, provided that whoever, on the high
seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the
United States, shall be imprisoned for life. (U.S. Crim. Code, sec. 290; penalty formerly death: U.S. Rev. Stat., sec.
5368.) The framers of the Constitution and the members of Congress were content to let a definition of piracy rest
on its universal conception under the law of nations.

It is evident that the provisions of the Penal Code now in force in the Philippines relating to piracy are not
inconsistent with the corresponding provisions in force in the United States.

By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical construction of articles of
the Penal Code, like the articles dealing with the crime of piracy, would be that wherever "Spain" is mentioned, it
should be substituted by the words "United States" and wherever "Spaniards" are mentioned, the word should be
substituted by the expression "citizens of the United States and citizens of the Philippine Islands." somewhat similar
reasoning led this court in the case of United States vs. Smith ([1919], 39 Phil., 533) to give to the word "authority"
as found in the Penal Code a limited meaning, which would no longer comprehend all religious, military, and civil
officers, but only public officers in the Government of the Philippine Islands.

Under the construction above indicated, article 153 of the Penal Code would read as follows:

The crime of piracy committed against citizens of the United States and citizens of the Philippine Islands, or
the subjects of another nation not at war with the United States, shall be punished with a penalty ranging
from cadena temporal to cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with the United States, it
shall be punished with the penalty of presidio mayor.

We hold those provisions of the Penal code dealing with the crime of piracy, notably articles 153 and 154, to be still
in force in the Philippines.

The crime falls under the first paragraph of article 153 of the Penal Code in relation to article 154. There are present
at least two of the circumstances named in the last cited article as authorizing either cadena perpetua or death. The
crime of piracy was accompanied by (1) an offense against chastity and (2) the abandonment of persons without
apparent means of saving themselves. It is, therefore, only necessary for us to determine as to whether the penalty
of cadena perpetua or death should be imposed. In this connection, the trial court, finding present the one
aggravating circumstance of nocturnity, and compensating the same by the one mitigating circumstance of lack of
instruction provided by article 11, as amended, of the Penal Code, sentenced the accused to life imprisonment. At
least three aggravating circumstances, that the wrong done in the commission of the crime was deliberately
augmented by causing other wrongs not necessary for its commission, that advantage was taken of superior
strength, and that means were employed which added ignominy to the natural effects of the act, must also be taken
into consideration in fixing the penalty. Considering, therefore, the number and importance of the qualifying and
aggravating circumstances here present, which cannot be offset by the sole mitigating circumstance of lack of
instruction, and the horrible nature of the crime committed, it becomes our duty to impose capital punishment.

The vote upon the sentence is unanimous with regard to the propriety of the imposition of the death penalty upon
the defendant and appellant Lo-lo (the accused who raped on of the women), but is not unanimous with regard to
the court, Mr. Justice Romualdez, registers his nonconformity. In accordance with provisions of Act No. 2726, it
results, therefore, that the judgment of the trial court as to the defendant and appellant Saraw is affirmed, and is
reversed as to the defendant and appellant Lol-lo, who is found guilty of the crime of piracy and is sentenced
therefor to be hung until dead, at such time and place as shall be fixed by the judge of first instance of the Twenty-
sixth Judicial District. The two appellants together with Kinawalang and Maulanis, defendants in another case, shall
indemnify jointly and severally the offended parties in the equivalent of 924 rupees, and shall pay a one-half part of
the costs of both instances. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-30026 January 30, 1971

MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO AGAPITO, EPIFANIO PADUA and PATERNO
PALMARES, petitioners,
vs.
THE DIRECTOR OF THE BUREAU OF PRISONS, respondent.

Jose W. Diokno for petitioners.

Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio A. Torres and Solicitor Eduardo
C. Abaya for respondent.

FERNANDO, J.:

Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in number, for their release from
imprisonment. Meted out life terms for the complex crime of rebellion with murder and other crimes, they would
invoke the People v. Hernandez1 doctrine, negating the existence of such an offense, a ruling that unfortunately for them
was not handed down until after their convictions had become final. Nor is this the first instance, a proceeding of this
character was instituted, as in Pomeroy v. Director of Prisons,2 likewise a petition for habeas corpus, a similar question
was presented. The answer given was in the negative. Petitioners plead for a new look on the matter. They would premise
their stand on the denial of equal protection if their plea would not be granted. Moreover they did invoke the codal
provision that judicial decisions shall form part of the legal system of the Philippines,3 necessarily resulting in the
conclusion that the Hernandez decision once promulgated calls for a retroactive effect under the explicit mandate of the
Revised Penal Code as to penal laws having such character even if at the time of their application a final sentence has
been rendered "and the convict is serving the same."4 These arguments carry considerable persuasion. Accordingly we
find for petitioners, without going so far as to overrule Pomeroy.

Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5, 1953 to suffer reclusion perpetua for the
complex crime of rebellion with multiple murder, robbery, arson and kidnapping. Petitioners Gaudencio Agapito,
Paterno Palmares and Epifanio Padua, likewise pleaded guilty to the complex crime of rebellion with multiple murder
and other offenses, and were similarly made to suffer the same penalty in decisions rendered, as to the first two, on
March 8, 1954 and, as to the third, on December 15, 1955. The last petitioner, Blas Bagolbagol, stood trial also for
the complex crime of rebellion with multiple murder and other offenses and on January 12, 1954 penalized
with reclusion perpetua. Each of the petitioners has been since then imprisoned by virtue of the above convictions.
Each of them has served more than 13 years.5

Subsequently, in People v. Hernandez,6 as above noted, this Court ruled that the information against the accused in
that case for rebellion complexed with murder, arson and robbery was not warranted under Article 134 of the
Revised Penal Code, there being no such complex offense.7 In the recently-decided case of People vs. Lava,8 we
expressly reaffirmed the ruling in the Hernandez case rejecting the plea of the Solicitor General for the abandonment of
such doctrine. It is the contention of each of the petitioners that he has served, in the light of the above, more than the
maximum penalty that could have been imposed upon him. He is thus entitled to freedom, his continued detention being
illegal.9

The fear that the Pomeroy ruling stands as an obstacle to their release on a habeas corpus proceeding prompted
petitioners, as had been mentioned, to ask that it be appraised anew and, if necessary, discarded. We can resolve
the present petition without doing so. The plea there made was unconvincing, there being a failure to invoke the
contentions now pressed vigorously by their counsel, Attorney Jose W. Diokno, as to the existence of a denial of a
constitutional right that would suffice to raise a serious jurisdictional question and the retroactive effect to be given a
judicial decision favorable to one already sentenced to a final judgment under Art. 22 of the Revised Penal Code. To
repeat, these two grounds carry weight. We have to grant this petition.

1. The fundamental issue, to repeat, is the availability of the writ of habeas corpus under the circumstances
disclosed. Its latitudinarian scope to assure that illegality of restraint and detention be avoided is one of the truisms
of the law. It is not known as the writ of liberty for nothing. The writ imposes on judges the grave responsibility of
ascertaining whether there is any legal justification for a deprivation of physical freedom. Unless there be such a
showing, the confinement must thereby cease. If there be a valid sentence it cannot, even for a moment, be
extended beyond the period provided for by law. Any deviation from the legal norms call for the termination of the
imprisonment.

Rightly then could Chafee refer to the writ as "the most important human rights provision" in the fundamental
law. 10Nor is such praise unique. Cooley spoke of it as "one of the principal safeguards to personal liberty." 11 For
Willoughby, it is "the greatest of the safeguards erected by the civil law against arbitrary and illegal imprisonment by
whomsoever detention may be exercised or ordered." 12 Burdick echoed a similar sentiment, referring to it as "one of the
most important bulwarks of liberty." 13 Fraenkel made it unanimous, for to him, "without it much else would be of no
avail." 14 Thereby the rule of law is assured.

A full awareness of the potentialities of the writ of habeas corpus in the defense of liberty coupled with its limitations
may be detected in the opinions of former Chief Justices Arellano, 15 Avanceña, 16 Abad
Santos, 17 Paras, 18Bengzon, 19 and the present Chief Justice. 20 It fell to Justice Malcolm's lot, however to emphasize quite
a few times the breadth of its amplitude and of its reach. In Villavicencio v. Lukban, 21 the remedy came in handy to
challenge the validity of the order of the then respondent Mayor of Manila who, for the best of reasons but without legal
justification, ordered the transportation of more than 150 inmates of houses of ill-repute to Davao. After referring to the
writ of habeas corpus as having been devised and existing "as a speedy and effectual remedy to relieve persons from
unlawful restraint" the opinion of Justice Malcolm continued: "The essential object and purpose of the writ of habeas
corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient." 22

The liberality with which the judiciary is to construe habeas corpus petitions even if presented in pleadings on their
face devoid of merit was demonstrated in Ganaway v. Quilen, 23 where this Court, again through Justice Malcolm,
stated: "As standing alone the petition for habeas corpus was fatally defective in its allegations, this court, on its motion,
ordered before it the record of the lower court in the case entitled Thomas Casey, et al. v. George Ganaway." 24 It is to
Justice Malcolm likewise in Conde v. Rivera, 25 to whom is traceable the doctrine, one that broadens the field of the
operation of the writ, that a disregard of the constitutional right to speedy trial ousts the court of jurisdiction and entitles the
accused if "restrained of his liberty, by habeas corpus to obtain his
freedom." 26

So it is in the United States. An 1830 decision 27 of Chief Justice Marshall put the matter thus: "The writ of habeas
corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may
be imprisoned without sufficient cause." Then there is this affirmation from an 1869 decision 28 of the then Chief Justice
Chase: "The great writ of habeas corpus has been for centuries esteemed the best and only sufficient defense of personal
freedom." The passing of the years has only served to confirm its primacy as a weapon on in the cause of liberty. Only the
other year, Justice Fortas spoke for the United States Supreme Court thus: "The writ of habeas corpus is the fundamental
instrument for safeguarding individual freedom against arbitrary and lawless state action. ... The scope and flexibility of
the writ — its capacity to reach all manner of illegal detention — its ability to cut through barriers of form and procedural
mazes — have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ
demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its
reach are surfaced and corrected." 29 Justice Fortas explicitly made reference to Blackstone, who spoke of it as "the great
and efficacious writ, in all manner of illegal confinement." Implicit in his just estimate of its pre-eminent role is his adoption
of Holmes' famous dissent in Frank v. Mangum: 30 "But habeas corpus cuts through all forms and goes to the very tissue
of the structure."

2. Where, however, the detention complained of finds its origin in what has been judicially ordained, the range of
inquiry in a habeas corpus proceeding is considerably narrowed. For if "the person alleged to be restrained of his
liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a
court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the
order," the writ does not lie. 31 That principle dates back to 1902, 32 when this Court announced that habeas corpus was
unavailing where the person detained was in the custody of an officer under process issued by a court or magistrate. This
is understandable, as during the time the Philippines was under American rule, there was necessarily an adherence to
authoritative doctrines of constitutional law there followed.

One such principle is the requirement that there be a finding of jurisdictional defect. As summarized by Justice
Bradley in Ex parte Siebold, an 1880 decision: "The only ground on which this court, or any court, without some
special statute authorizing it, will give relief on habeas corpus to a prisoner under conviction and sentence of
another court is the want of jurisdiction in such court over the person or the cause, or some other matter rendering
its proceedings void." 33

There is the fundamental exception though, that must ever be kept in mind. Once a deprivation of a constitutional
right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is
the appropriate remedy to assail the legality of the detention. 34

3. Petitioners precisely assert a deprivation of a constitutional right, namely, the denial of equal protection.
According to their petition: "In the case at bar, the petitioners were convicted by Courts of First Instance for the very
same rebellion for which Hernandez, Geronimo, and others were convicted. The law under which they were
convicted is the very same law under which the latter were convicted. It had not and has not been changed. For the
same crime, committed under the same law, how can we, in conscience, allow petitioners to suffer life
imprisonment, while others can suffer only prision mayor?" 35

They would thus stress that, contrary to the mandate of equal protection, people similarly situated were not similarly
dealt with. What is required under this required constitutional guarantee is the uniform operation of legal norms so
that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred
and the liabilities imposed. As was noted in a recent decision: "Favoritism and undue preference cannot be allowed.
For the principle is that equal protection and security shall be given to every person under circumstances, which if
not identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should
be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 36

The argument of petitioners thus possesses a persuasive ring. The continued incarceration after the twelve-year
period when such is the maximum length of imprisonment in accordance with our controlling doctrine, when others
similarly convicted have been freed, is fraught with implications at war with equal protection. That is not to give it life.
On the contrary, it would render it nugatory. Otherwise, what would happen is that for an identical offense, the only
distinction lying in the finality of the conviction of one being before the Hernandez ruling and the other after, a
person duly sentenced for the same crime would be made to suffer different penalties. Moreover, as noted in the
petition before us, after our ruling in People v. Lava, petitioners who were mere followers would be made to languish
in jail for perhaps the rest of their natural lives when the leaders had been duly considered as having paid their
penalty to society, and freed. Such a deplorable result is to be avoided.

4. Petitioners likewise, as was made mention at the outset, would rely on Article 22 of the Revised Penal Code
which requires that penal judgment be given a retroactive effect. In support of their contention, petitioners cite U.S.
v. Macasaet, 37 U.S. vs.Parrone, 38 U.S. v. Almencion, 39 People v. Moran, 40 and People v. Parel. 41 While reference in the
above provision is made not to judicial decisions but to legislative acts, petitioners entertain the view that it would be
merely an exaltation of the literal to deny its application to a case like the present. Such a belief has a firmer foundation.
As was previously noted, the Civil Code provides that judicial decisions applying or interpreting the Constitution, as well as
legislation, form part of our legal system. Petitioners would even find support in the well-known dictum of Bishop Hoadley:

"Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all
intents and purposes, and not the person who first thought or spoke them." It is to be admitted that constitutional law
scholars, notably
Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as well as the jurist John Chipman Gray, were much
impressed with the truth and the soundness of the above observations. We do not have to go that far though. Enough for
present purposes that both the Civil Code and the Revised Penal Code allow, if they do not call for, a retroactive
application.

It being undeniable that if the Hernandez ruling were to be given a retroactive effect petitioners had served the full
term for which they could have been legally committed, is habeas corpus the appropriate remedy? The answer
cannot be in doubt. As far back as 1910 the prevailing doctrine was announced in Cruz v. Director of
Prisons. 45Thus: "The courts uniformly hold that where a sentence imposes punishment in excess of the power of the
court to impose, such sentence is void as to the excess, and some of the courts hold that the sentence is void in toto; but
the weight of authority sustains the proposition that such a sentence is void only as to the excess imposed in case the
parts are separable, the rule being that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he
has served out so much of the sentence as was valid." 46 There is a reiteration of such a principle in Director v. Director of
Prisons 47 where it was explicitly announced by this Court "that the only means of giving retroactive effect to a penal
provision favorable to the accused ... is the writ of habeas corpus." 48 While the above decision speaks of a trial judge
losing jurisdiction over the case, insofar as the remedy of habeas corpus is concerned, the emphatic affirmation that it is
the only means of benefiting the accused by the retroactive character of a favorable decision holds true. Petitioners clearly
have thus successfully sustained the burden of justifying their release.

WHEREFORE, the petition for habeas corpus is granted, and it is ordered that petitioners be forthwith set at liberty.

Dizon and Zaldivar, JJ., concur.

Concepcion, C.J., concurs in the result.

Castro and Makasiar, JJ., took no part.

Separate Opinions

TEEHANKEE, J., concurring and dissenting:

The petitioners at bar, three of whom pleaded guilty1 and two of whom stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called complex crime of rebellion with multiple murder
and other crimes, and have served or are now entering into their 17th year of imprisonment, save for petitioner Epifanio
Padua who was sentenced on December 15, 1955 and is completing his 15th year of imprisonment, (excluding the
periods they were under pre-conviction detention). The leaders of the rebellion who were meted out death and life
sentences for the same charge by the Court of First Instance of Manila had their sentences reduced last near to ten years
of prision mayor by the Court in People v. Lava,3 wherein the Court expressly re-affirmed the doctrine first laid down in
1956 in People vs. Hernandez,4 that the crime of rebellion cannot be complexed with other common crimes since such
common crimes "assume the political complexion of the main crime of which they are mere ingredients and consequently
cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver
penalty." The Court rejected therein the State's plea for the reexamination and setting aside of such doctrine, declaring
that "(T)his Court has given this plea of the Solicitor General a very serious consideration, but after a mature deliberation
the members of this Court have decided to maintain that ruling in the Hernandez case and to adhere to what this Court
said in that case." The said leaders have since been duly freed as having served out their penalty, but their followers,
herein petitioners, are still serving their life sentences.

I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that "(W)ith reference to persons in custody
pursuant to a final judgment, the rule is that the writ of habeas corpus can issue only for want of jurisdiction of the
sentencing court, and cannot function as a writ of error." "I grant, too, that at the time of the Pomeroy decision in 1960, as
noted therein, "the existence of the 'complexed' rebellion (was) still upheld by a sizable number of lawyers, prosecutors,
judges and even justices of this Court." But with the doctrine first enunciated in 1956 in Hernandez by a bare six-to-four
majority vote having withstood the test of time6 and having been just last year unreservedly reaffirmed without a single
dissent in Lava, it cannot now be gainsaid that it is now part of our legal system that the crime of "complexed" rebellion
does not exist in our Revised Penal Code. No prosecutor would now file an information for "complexed" rebellion but
simply for the offense of simple rebellion as defined in Article 134 of the Revised Penal Code, and even if such an
information for "complexed" rebellion to be so filed, the trial courts would be bound to quash such information as not
charging an offense on the strength of Lava and Hernandez.

Petitioners have therefore properly invoked in their favor the provisions of Article 22 of the Revised Penal Code that:
 ART. 22. Retroactive effect of penal laws.—Penal laws shall have a retroactive effect insofar as they
favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in rule 5 of
article 62 of this Code, although at the time of the publication of such laws a final sentence has been
pronounced and the convict is serving the same.

in relation to the provisions of Article 8 of the Civil Code that "(J)udicial decisions applying or interpreting the laws or
the Constitution shall form a part of the legal system of the Philippines."

The situation of petitioners is no different than it would be if, say, the penalty of reclusion perpetua were imposed by
statute for the crime of simple rebellion at the time of their conviction and they were accordingly sentenced, and the
statutory penalty were now reduced to prision mayor or 12 years imprisonment; having served out the maximum
penalty of 12 years now imposed by the amended statute, they would be entitled to invoke the retroactive effect of
the statute favoring them. The only difference between the situation given and the present case is that here it is this
lâwphî1.ñèt

Supreme Court, interpreting the laws in discharge of its constitutional prerogative, that has laid down the doctrine
since Hernandez in 1956 that no offense of "complexed" rebellion exists and petitioners should therefore be now
equally entitled to the retroactive favorable effect of such doctrine.

The actual case of petitioners is that at the time of their conviction, it was
believed — erroneously — that the crime committed by them was punishable by life imprisonment, but the Court has
subsequently judicially determined it not be so and that the maximum imposable penalty is prision mayor or 12
years. Petitioners-convicts are entitled to the benefit of this later judicial declaration, just as if a statutory amendment
had been enacted—not because the sentencing court had no jurisdiction or is now ousted of jurisdiction. The writ
prayed for should issue, since as held in Directo vs. Director of Prisons,7 "the only means of giving retroactive effect to
a penal provision favorable to the accused where the trial judge has lost jurisdiction over the case, is the writ of habeas
corpus."

The question of jurisdiction of the sentencing court therefore is moot, for it is universally recognized that relief
by habeas corpus may be properly sought in cases of imposition of excessive penalty, such that the part of the
sentence beyond or in excess of the power of the court to impose is held void, the applicant having already served
out the entire part of the sentence within the court's power. 8 As pointed out by the Court in Rodriguez vs. Director
of Prisons,9 furthermore, "Article 22 of the Revised Penal Code ... extends its benefits even to convicts serving sentence,
and the only legal remedy open to them to make use of such benefits is the writ of habeas corpus inasmuch as, if the
penalty imposed upon them under the former penal law was decreased by the revised code, the excess has become
illegal."

Regardless, therefore, of whether the trial courts that sentenced petitioners to life sentences had jurisdiction or not
to impose such penalty, or were right or wrong in imposing such penalty, the only relevant question now is whether
petitioners have served the maximum — and lesser — sentence of prision mayor that this Court has by firm judicial
doctrine since 1956 determined to be the penalty that the Revised Penal Code fixes for the crime of rebellion. Since
they have actually served much more than the maximum imposable penalty, the excess of the sentence imposed
upon them over the imposable maximum of twelve years of prision mayor cannot but be declared illegal and they
should now be set free.

In People vs. Parel, 10 the Court held that the provisions of a new law (Act 3030) for the prescription of certain election
offenses (fixing the same at one year after commission) were more favorable to the accused than those of the pre-existing
law and were therefore retroactive as to the same offenses committed before the enactment of the new law. In meeting
the objection that the reduced prescription period was by its terms applicable only to offenses resulting from the new law
(which amended the pre-existing Election Law) and could not be given retroactive effect, the Court found "that practically
all of the offenses defined in the former law are also defined in the same language in Act 3030 (the new law), the only
difference being that the penalties have been increased." Holding that the retroactivity clause of Article 22 of the Penal
Code must apply in all in which the new law is more favorable to the accused, in the absence of any express statutory
exception, the Court drew this analogy: "Let us suppose that a statute is enacted defining the crime of murder in the same
language in which it is defined in the Penal Code, but providing that the maximum penalty for the crime defined in the new
statute shall be life imprisonment, the statute containing no provision that it shall not be retroactive in its effect. Would
anyone then maintain that the death penalty might still be imposed for murder committed before the new statute was
enacted?"

The case at bar for petitioners is much stronger. Here, there is no question even as to the enactment of a law
statute describing the crime in the same language and imposing a lesser penalty, but the settled doctrine of this
Court that there does not exist in our legal system the complex crime of rebellion of which the petitioners stand
convicted, "since rebellion cannot form a complex with common crimes, because the latter are either absorbed by
the rebellion itself or are punishable as independent offenses." 11 Petitioners here have been convicted for the very
same rebellion and under the very same law for which their leaders, Jose Lava et al., have been convicted. Yet, while
their leaders have since been freed after serving their sentences of ten years of prision mayor, petitioners as mere
followers are serving out the life sentences imposed on them, notwithstanding their already having served out much more
than the maximum penalty of twelve years of prision mayor imposable upon them. The fact that the legal doubts about the
non-existence of the crime of "complexed" rebellion were cleared up only in 1956 after they had already been convicted
and were serving their sentences does not make the excess in the penalty imposed upon them beyond the maximum of
twelve years any less illegal.

The rule of prospective and non-retroactive operation of judicial doctrines, and its corollary rule of the law of the
case, have no application here. These salutary rules decree that rights of parties having been decisively settled and
determined by final judgment of the court of competent jurisdiction with the party adversely affected having had the
opportunity to raise in the case all relevant questions, the decision becomes the law of the case, and vested rights
would be impaired, judicial chaos and disorder ensue and litigation would be never-ending and would become more
intolerable than the wrongs it is intended to redress, should an adjudicated case be reopened simply because in
another and subsequent case, this Court adopted a new or different construction of the law under which a different
result of the adjudicated case might have been obtained. Here, the whole question
turns — simply — on the nature of the crime of rebellion as defined in section 134 of the Revised Penal Code and
the maximum penalty imposable therefor under section 135 of the same Code. As this Court had ruled since 1956--
which is now settled doctrine—that only the crime of simple rebellion exists in our legal system for which the
maximum penalty of prision mayor may be imposed, the excess of the life sentences imposed upon petitioners over
the imposable maximum of prision mayor cannot stand and must necessarily be declared void.

Prescinding then from the question of jurisdiction of the sentencing courts, the case at bar presents a clear case of
an excess in penalty imposed beyond twelve years of prision mayor which has become illegal by virtue of this
Court's settled doctrine that the crime of rebellion cannot be complexed with other common crimes. On this ground,
as well as on the further and more fundamental ground that to hold them liable to continue serving life sentences for
a crime that the law—at the time of their conviction as well as now—punishes only with prision mayor which they
have more than fully served, would be to deny them their constitutional rights of due process and equal protection of
the law.

Any further detention of petitioners, in my view as above discussed, is illegal and unconstitutional and the petition
for habeas corpus should be granted and petitioners forthwith set at liberty.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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 Criminal Cases
Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the conviction of the accused in a decision
rendered on September 8, 1970, with the following pronouncement:

Thus, we have a crime of MURDER qualified by treachery with the aggravating circumstance of
evident premeditation offset by the mitigating circumstance of voluntary surrender. 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 of murder,

(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA, to indemnify
the heirs of the deceased Davis Q. Fleischer in the sum of P 12,000.00 as compensatory 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, to indemnify
the heirs of the deceased Flaviano Rubia in the sum of P12,000.00 as compensatory 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 and Cesar Ibanez
together with the two deceased Davis Fleischer and Flaviano Rubia, were fencing the land of
George Fleischer, father of deceased Davis Fleischer. The place was in the boundary of the highway
and the hacienda owned by George Fleischer. This is located in the municipality of Maitum, South
Cotabato. At the place of the fencing is the house and rice drier of appellant Mamerto Narvaez (pp.
179-182, t.s.n., Pieza II). At that time, appellant was taking his rest, but when he heard that the walls
of his house were being chiselled, he arose and there he saw the fencing going on. If the fencing
would go on, appellant would be prevented from getting into his house and the bodega of his
ricemill. So he addressed the group, saying 'Pare, if possible you stop destroying my house 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 shot Fleischer, hitting him. As
Fleischer fell down, Rubia ran towards the jeep, and knowing there 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 the Fleischer and
Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased Rubia the assistant 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 take judicial notice of
the following antecedent facts:

Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937 and settled in
Maitum, a former sitio of Kiamba and now a separate municipality of South Cotabato. He established his residence
therein, built his house, cultivated the area, and was among those who petitioned then President Manuel L. Quezon
to order the subdivision of the defunct Celebes Plantation and 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 in Negros
Oriental, filed sales application No. 21983 on June 3, 1937 over the same area formerly leased and 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 the survey
report was not submitted until 1946 because of the outbreak of the second world war. According to the survey, only
300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales Application No.
21983, while the rest were subdivided into sublots of 5 to 6 hectares each to be distributed 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 for disposition,
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 the settlers the corresponding award in
its favor was held in abeyance, while an investigator was sent by the Director of Lands to Kiamba in the person of
Atty. Jose T. Gozon Atty. Gozon came back after ten days with an amicable settlement signed by the representative
of the settlers. This amicable settlement was later repudiated by the settlers, but the Director of Lands, acting upon
the report of Atty. Gozon, approved the same and ordered the formal award of the land in question to Fleischer and
Company. The settlers appealed to the Secretary of Agriculture and Natural Resources, who, however, affirmed the
decision in favor of the company.

On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato which then
consisted only of one sala, for the purpose of annulling the order of the Secretary of Agriculture and Natural
Resources which affirmed the order of the Director of Lands awarding the contested land to the company. The
settlers as plaintiffs, lost that case in view of the amicable settlement which they had repudiated as resulting from
threats and intimidation, deceit, misrepresentation and fraudulent machination 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 the company.

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 the appellant who, to avoid
trouble, voluntarily dismantled his house, built in 1947 at a cost of around P20,000.00, and transferred to his other
house which he built in 1962 or 1963 near the highway. The second house is not far from the site of the dismantled
house. Its ground floor has a store operated by Mrs. June Talens who was renting a portion thereof. He also
transferred his store from his former residence to the house near the highway. Aside from the store, he also had a
rice mill located about 15 meters east of the house and a concrete pavement between the rice mill and the house,
which is used for drying grains and copra.

On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and other leaders filed
Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I. to obtain an injunction or annulment of the
order of award with prayer for preliminary injunction. During the pendency of this case, appellant on February 21,
1967 entered into a contract of lease with the company whereby he agreed 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 signed the contract although the ownership of the land was still uncertain,
in order to avoid trouble, until the question 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 him a letter with the following tenor:

You have not paid six months rental to Fleischers & Co., Inc. for that portion of land in which 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 no alternative but to
terminate our agreement on this date.

I am giving you six months to remove your house, ricemill, bodega, and water pitcher pumps from
the land of Fleischers & Co., Inc. This six- month period shall expire on December 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 putting bamboo
posts along the property line parallel to the highway. Some posts were planted right on the concrete drier of
appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to
appellant's house (p. 231, t.s.n., supra). The fence, when finished, would have the effect of shutting off the
accessibility to appellant's house and rice mill from the highway, since the 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 out of the window,
he found that one of the laborers of Fleischer was indeed chiselling the wall of his house with a crowbar (p. 129,
t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and deceased Fleischer was commanding his
laborers. The jeep used by the deceased was parked on the highway. The rest of the incident is narrated in the
People's Brief as above-quoted. Appellant surrendered to the police thereafter, 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-appellant despite the
fact that he acted in defense of his person; and

Second 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 them from 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 exempt from criminal liability.

Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the Revised 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 following words: "Hindi,
sigue, gademit, avante", in answer to his request addressed to his compadre, the deceased 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 house being 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). According to appellant, Fleischer's remarks caused this reaction in him: "As if, I lost my senses
and unknowingly I took 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 towards the jeep and
knowing that there was a firearm in the jeep and thinking that if he will take that 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 they did 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 of appellant's house. The
fence they were putting up was made of bamboo posts to which were being nailed strands 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 the chiselling on his walls, his first reaction was to look out of the
window. Then he saw the damage being done to his house, compounded by the fact that his house and rice mill will
be shut off from the highway by the fence once it is finished. He therefore appealed to his compadre, the deceased
Rubia, to stop what they 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 have resulted in the
further chiselling of the walls of appellant's house as well as the closure of the access to and from his house and
rice mill-which were not only imminent but were actually in progress. There is no question, therefore, that there was
aggression on the part of the victims: Fleischer was ordering, and Rubia was actually participating in the fencing.
This was indeed aggression, not on the person of appellant, but on his property rights.

The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the contested
property, to destroy appellant's house and to shut off his ingress and egress to his residence and 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 of award to
Fleischer and Company was still pending in the Court of First Instance of Cotabato. The parties could 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 (by the 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 the subsequent repudiation by the settlers of said
compromise agreement; and that such 1970 dismissal also carried 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 comply with the mandatory requirements for publication. The dismissal of the government's
supplemental petition was premised on the ground that after its filing on November 28, 1968, nothing more was
done by the petitioner Republic of the Philippines except to adopt all the evidence and arguments of plaintiffs with
whom it joined as parties-plaintiffs.

Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil Case No. 755
filed on November 14, 1966 and his execution of the contract of lease on February 21, 1967 was just 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 because even
though we do not know who really owns this portion to avoid trouble. To avoid trouble we better pay
 while waiting for the case because at that time, it was not known who is the right owner of the place.
So we decided until things will clear up and determine who 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) within which to
vacate the land. He should have allowed appellant the peaceful enjoyment of his properties up to that time, instead
of chiselling the walls of his house and closing appellant's entrance and exit to the highway.

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 as there is a
possessor who objects thereto. He who believes that he has an action or a right to deprive another
of the holding of a thing must invoke the aid of the competent court, if the holder should refuse to
deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed
therein he shall be protected in or restored to said possession by the means established by the laws
and the Rules of Court (Articles 536 and 539, Civil Code of the Philippines).

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

Illegal aggression is equivalent to assault or at least threatened assault of immediate and imminent
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 to resist,
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 person from the
enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense or defense
of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the appellant fired his 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 sufficient provocation on the
part of appellant who was defending his property. As a matter of fact, there was no provocation at all on his part,
since he was asleep at first and was only awakened by the noise produced by the victims and their laborers. His
plea for the deceased and their men to stop and talk things over with him 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 for justification
are present. He should therefore be held responsible for the death of his victims, but he could be 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 be appreciated in
this case because of the presence of provocation on the part of the deceased. As WE held earlier in People vs.
Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is therefore lacking.

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

On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying corn near the
house of Mr. and Mrs. Mamerto Narvaez at the crossing, Maitum, South Cotabato, when the
accused and his wife talked to him. Mrs. Narvaez asked him to help them, as he was working in the
hacienda. She further told him that if they fenced their house, there is a head that will be broken.
Mamerto Narvaez added 'Noy, it is better that you will tell Mr. Fleischer because there will be nobody
who will break his head but I will be the one.' He relayed this to Mr. Flaviano Rubia, but the latter told
him not to believe as they 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 evident
premeditation. As WE have consistently held, there must be "direct evidence of the planning or preparation to kill the
victim, .... it is not enough that premeditation be suspected or surmised, but the criminal intent must be evidenced by
notorious outward acts evincing the determination to commit the crime" (People vs. Ordioles, 42 SCRA 238).
Besides, there must be a "showing" that the accused premeditated the killing; that the culprit clung to their (his)
premeditated act; and that there was sufficient interval between the premeditation and the execution of the crime to
allow them (him) to reflect upon the consequences 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 nor that the
accused premeditated the killing, and clung to his premeditated act, the trial court's conclusion as to the presence of
such circumstance may not be endorsed.

Evident premeditation is further negated by appellant pleading with the victims to stop the fencing and destroying 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 voluntary surrender, 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 appellant awoke to find
his house being damaged and its accessibility to the highway as well as of his rice mill bodega being closed. Not
only was his house being unlawfully violated; his business was also in danger of closing down for lack of access to
the highway. These circumstances, coming so near to the time when his first house was dismantled, thus forcing
him to transfer to his only remaining house, must have so aggravated his obfuscation that he lost momentarily all
reason causing him to reach for his shotgun and fire at the victims in defense of his rights. Considering the
antecedent facts of this case, where appellant had thirty years earlier migrated to this so-called "land of promise"
with dreams and hopes of relative prosperity and tranquility, only to find his castle crumbling at the hands of the
deceased, his dispassionate plea going unheeded-all these could be too much for any man-he should be credited
with this mitigating circumstance.

Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any qualifying nor
aggravating circumstance, but extenuated by the privileged mitigating circumstance of incomplete 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 voluntary surrender and passion and obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion temporal. Pursuant to Article
69, supra, the penalty lower by one or two degrees shall be imposed if the deed 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 be lowered by two degrees, i.e., to prision correccional And
under paragraph 5 of Article 64, the same may further be reduced by one degree, i.e., arresto mayor, because of
the presence of two mitigating circumstances and no aggravating circumstance.
The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American World Airways (43
SCRA 397), the award for moral damages was reduced because the plaintiff contributed to the gravity of
defendant's reaction. In the case at bar, the victims not only contributed but they actually provoked the attack by
damaging appellant's properties and business. Considering appellant's standing in the community, being married to
a municipal councilor, the victims' actuations were apparently designed to 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 linking her to the killings. She was dropped as a defendant only upon
motion of the prosecution dated October 31, 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 its extensive
landholdings in a Central Visayan province, to extend its accumulation of public lands to the resettlement areas of
Cotabato. Since it had the capability-financial and otherwise-to carry out its land accumulation scheme, the lowly
settlers, who uprooted their families from their native soil in Luzon to take advantage of the government's
resettlement program, but had no sufficient means to fight the big landowners, were the ones prejudiced. Thus, the
moral and material suffering of appellant and his family deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision correccional or arrests
mayor and fine who has no property with which to meet his civil liabilities to serve a subsidiary imprisonment at the
rate of one (1) day for each P 2.50. However, the amendment introduced by Republic Act No. 5465 on April 21,
1969 made the provisions of Art. 39 applicable to fines only and not to 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 be given 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 INCOMPLETE SELF-
DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER
AND OBFUSCATION, WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY
SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY
EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR
THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT 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 IMMEDIATE RELEASE IS HEREBY
ORDERED. NO COSTS.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 198904 December 11, 2013

DELIA INES RINGOR, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

RESOLUTION

REYES, J.:

Before this Court is a Petition for Review on Certiorari1under Rule 45 of the Rules of Court seeking to annul and set
aside the Decision2 dated August 12, 2011 and the Resolution3 dated October 5, 2011 of the Court of Appeals (CA)
in CA-G.R. CR No. 32945, which found Delia Ines Ringor (petitioner) guilty beyond reasonable doubt of qualified
theft punished under Article 310 of the Revised Penal Code (RPC).

The Facts

The petitioner was charged in an Information for estafa under paragraph 1(b), Article 315 of the RPC, docketed as
Criminal Case No. 2278-K before the Regional Trial Court (RTC) of Cabugao, Ilocos Sur, which reads:

That on or about the 24th day of March, 2003, in the municipality of Sinait, province of Ilocos Sur, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, being then employed as Sales Clerk
belonging to Peoples Consumer[,] Inc., with intent to gain and with abuse of confidence, did then and there, willfully,
unlawfully and feloniously by means of deceit defraud one Annelyn I. Ingan in the following manner, to wit: The said
accused was assigned as Sales Clerk/Agent for the purpose of collecting sales for goods delivered to different
customers one LA Currimao Inc. as in fact did collect sales in the total amount of SIXTY-SIX THOUSAND EIGHT
HUNDRED SIXTY PESOS and NINETY CENTAVOS ([P]66,860.90) with the obligation to turn over the same to
owner/complainant but said accused once in possession of said amount, with abuse of confidence, did then and
there willfully, unlawfully and feloniously misappropriate, misapply and convert the same for her own personal use
and benefit and despite repeated demands made upon her by the owner to turn the amount of [P]66,860.90 said
accused had deliberately refused and still refuses to deliver the same up to the present, to the damage and
prejudice of the offended party in the amount of [P]66,860.90, Philippine currency.4

Upon arraignment on October 21, 2004, the petitioner entered a plea of not guilty to the offense charged. On
November 4, 2004, the pre-trial conference was deemed terminated. Trial on the merits ensued thereafter.

The petitioner was employed as sales clerk/agent of Peoples Consumer Store (PCS) – a merchandise distributor
owned by Honesto Ibarra and managed by Annelyn Ingan (Ingan). As PCS’s sales clerk/agent, the petitioner scouts
the towns of Sinait, Badoc, Currimao, and Batac, Ilocos Sur to look for customers, takes note of their orders, and
submits the said orders to Ingan for approval. Once approved, the petitioner, together with a driver and a helper,
delivers the ordered merchandise to the customers. After delivery, the petitioner turns over the delivery receipts to
Ingan. Seven days after delivery, the petitioner would then collect the payment from their customers and remit the
same to Ingan.

On March 24, 2003, the petitioner booked an order of grocery products from L.A. Currimao Store (LACS) in the
amount of ₱68,622.90; the value, however, of the delivered merchandise to LACS only amounted to ₱66,860.90 as
one item in the order was not available at that time. After delivering the merchandise to LACS, the petitioner gave a
handwritten delivery receipt to Ingan.
Seven days thereafter, the petitioner informed Ingan and her brother Nestor Ibarra (Ibarra) that she lost the money
she collected from LACS, claiming that she was a victim of a robbery. Later, the petitioner claimed that she lost the
amount collected from LACS in a mini bus. However, upon inquiry by Ingan, the driver of the said mini bus said that
the petitioner’s claim was impossible since they only had a few passengers then.

After the incident, the petitioner no longer reported back to work. Neither did the petitioner remit the amount she
collected from LACS. Ingan alleged that, during a meeting between her and the petitioner in a police station, in
response to inquiries regarding the unremitted amount to PCS, the petitioner stated that she no longer have the
amount which she collected from LACS and that she would just have to go to jail.

On the other hand, the petitioner denied that she was a sales clerk/agent of PCS, claiming that she was merely a
sales lady therein. While she admitted that she solicited orders from prospective customers in various towns in
Ilocos Sur, the petitioner alleged that she was not the only one who received the payments from PCS’s customers.
Likewise, the petitioner admitted that she delivered the merchandise to LACS, but claimed that the latter has yet to
pay for the same.

The RTC Decision

On September 8, 2009, the RTC rendered a Decision5 finding the petitioner guilty beyond reasonable doubt
of estafa under paragraph 1(b), Article 315 of the RPC, viz:

WHEREFORE, premises considered, the guilt of accused DELIA RINGOR having been proven beyond reasonable
doubt of the crime of Estafa, defined and penalized under paragraph 1(b) of Article 315 of the Revised Penal Code,
the Court hereby sentences her to suffer an indeterminate penalty of 4 years and 2 months of prision
correccional as minimum to 10 years, 8 months and 21 days of prision mayor as maximum.

Accused is hereby ordered to indemnify the Peoples Consumer Store the sum of [P]66,860.90 as actual damages.

SO ORDERED.6

The RTC opined that the petitioner received the merchandise to be delivered to LACS in trust for PCS, with the
corresponding duty to remit to PCS the amount to be paid by LACS. The RTC held that the failure of the petitioner to
account for the amount paid by LACS is evidence of misappropriation, which indubitably prejudiced PCS.

The CA Decision

On appeal, the CA rendered the Decision dated August 12, 2011, which affirmed with modification the RTC Decision
dated September 8, 2009. Thus:

WHEREFORE, the trial court’s Decision dated September 8, 2009 is AFFIRMED, subject to
the MODIFICATION that accused appellant Delia Ringor is convicted of qualified theft and sentenced to suffer an
indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to twenty (20) years
of reclusion temporal, as maximum. The award of actual damages to private complainant in the amount of
₱66,860.90 is AFFIRMED.

SO ORDERED.7

The CA opined that the petitioner only had physical possession of the merchandise that were to be delivered to
LACS and not juridical possession. Thus, even if there was proof of misappropriation, the CA held that the petitioner
could not be convicted of the felony of estafa under paragraph 1(b), Article 315 of the RPC. Be that as it may, the
CA averred that the petitioner is nevertheless liable for qualified theft under Article 310 in relation to Article 308 of
the RPC, pointing out that the Information that was filed against her sufficiently alleged all the elements of the said
felony.

The petitioner sought a reconsideration of the CA Decision dated August 12, 2011,8 but it was denied by the CA in
its Resolution dated October 5, 2011.
In support of the instant petition, the petitioner claims that the CA erred in convicting her of the felony of qualified
theft; that the prosecution failed to establish all the elements for the said felony. She alleges that the prosecution
failed to present direct evidence showing that she indeed took the amount that was paid by LACS. In the same vein,
the petitioner avers that the prosecution was not able to establish that it was indeed part of the petitioner’s job
description to collect the payments from PCS’s customers. The foregoing circumstances, the petitioner asserts,
engenders reasonable doubt as to her guilt for the felony charged.

Issue

Essentially, the issue presented for the Court’s resolution is whether the CA erred in convicting the petitioner for the
felony of qualified theft under Article 310 in relation to Article 308 of the RPC.

The Court’s Ruling

The petition is bereft of any merit.

The felony of theft is defined under Article 308 of the RPC, viz:

Article 308. Who are liable for theft.—Theft is committed by any person who, with intent to gain but without violence,
against, or intimidation of neither persons nor force upon things, shall take personal property of another without the
latter’s consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its
owner;

2. Any person who, after having maliciously damaged the property of another, shall remove or make use of
the fruits or objects of the damage caused by him; and

3. Any person who shall enter an enclosed estate or a field where trespass is forbidden or which belongs to
another and without the consent of its owner, shall hunt or fish upon the same or shall gather fruits, cereals,
or other forest or farm products.

On the other hand, Article 310 of the RPC reads:

Article 310. Qualified Theft.—The crime of theft shall be punished by the penalties next higher by two degrees than
those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse
of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken
from the premises of a plantation, fish taken from a fishpond or fishery or if property is taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. (Emphasis
ours)

In précis, the elements of qualified theft punishable under Article 310 in relation to Article 308 of the RPC are as
follows: (1) there was a taking of personal property; (2) the said property belongs to another; (3) the taking was done
without the consent of the owner; (4) the taking was done with intent to gain; (5) the taking was accomplished
without violence or intimidation against person, or force upon things; and (6) the taking was done under any of the
circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence.9

All elements for the felony of qualified theft under Article 310 in relation to Article 308 of the RPC are present in this
case. As to the first element, the prosecution was able to establish that the petitioner, as part of her duty as sales
clerk/agent of PCS, received the payment from LACS in the amount of ₱66,860.90 for the merchandise delivered to
it and that she failed to remit the same to Ingan. This fact was testified to by Ibarra during the proceedings before
the RTC, thus:

Q: What about her failure to remit the value of the goods she delivered? Why do you know of this fact?
A: I was at home when she came and she did not remit any amount, ma’am.

Q: And so[,] what happened when she informed you ……. Who was with you when she came to your house?

A: My sister, ma’am.

Q: And so[,] what happened upon having been informed, what did Delia Ringor do?

A: She informed us that she lost the money, ma’am.

Q: Did she inform you why she lost the money?

A: At first she claimed that she was a victim of a hold-up but when we were about to go and look for it she claimed
again that she lost it in a mini bus, ma’am.

Q: When was that information given to you by Delia Ringor, Mr. Witness?

A: After she reported telling us that she lost the money, ma’am.

Q: So that will [be] how many days after the delivery was made by the accused?

A: About seven (7) days after the delivery, ma’am.

x x x x10

Further, Ingan testified that:

Q: When the accused failed to report back for duty and failed to remit the amount, what did you do?

A: I informed her, sir.

Q: When you said you informed her, what form of information?

A: I called her mother because she disappeared and she fixed a date at the police station for us to talk over the
matter, sir.

Q: And were you able to talk the same with the office of the police?

A: Yes, sir.

Q: What transpired during your talk at the police?

A: She told me: "That is no longer existing, I just go to jail," sir.

x x x x11

The foregoing testimonies clearly prove that the petitioner received the amount paid by LACS for the merchandise
delivered to it and that she failed to remit the same to PCS.

The second, third and fifth elements of qualified theft were likewise established by the prosecution; that the amount
paid by LACS, taken by the petitioner without authority and consent, belongs to PCS, and that the taking was
accomplished without the use of violence or intimidation against persons, or force upon things, is not disputed.
Anent the fourth element, intent to gain on the part of the petitioner was likewise established. Intent to gain
or animus lucrandi is an internal act that is presumed from the unlawful taking by the offender of the thing subject of
asportation. Actual gain is irrelevant as the important consideration is the intent to gain.12

Intent to gain on the part of the petitioner is readily apparent from the testimonies of the prosecution’s witnesses.
Particularly, Ibarra, Ingan’s brother, testified that the petitioner told him and his sister that she lost the money she
collected from LACS. At first, the petitioner claimed that she was robbed. Later, she changed her story and claimed
that she lost the money when she rode a mini-bus. Curiously, once Ingan discovered that her story did not check
out, the petitioner no longer reported for work. The foregoing circumstances, coupled with the fact that the petitioner
took the money paid by LACS and failed to remit the same to PCS, clearly evince intent to gain on the part of the
petitioner.

As regards the sixth element, the petitioner claims that the prosecution failed to show that there was grave abuse of
confidence on her part. She pointed out that there was no evidence that it was indeed her duty, as an employee of
PCS, to personally collect the payments from the customers of PCS. The petitioner asserts that the failure of the
prosecution to show evidence that it was indeed part of her duty, as sales clerk/agent of PCS to personally collect
payments from PCS’s customers negates the element of grave abuse of confidence.

The Court does not agree. The petitioner’s claim is belied by the allegations in the appellant’s brief13 she filed with
the CA. Thus:

Delia Ringor (DELIA for brevity), is a 43-year old sales lady and a resident of Barangay Duyayat, Sinait, Ilocos Sur.
She denied the allegation imputed against her and maintained that since 1989, she had been working as a sales
lady of Peoples Consumer Store. As such, she would go out to collect orders from customers in different towns of
Ilocos. She would list the orders and give the same to Alma Agbayani, who in turn, submits it to Annelyn for
approval. Delia would then deliver the goods to the customers and collect the payments thereon on her next
delivery.14 (Emphasis ours)

Grave abuse of confidence, as an element of the felony of qualified theft, must be the result of the relation by reason
of dependence, guardianship, or vigilance, between the appellant and the offended party that might create a high
degree of confidence between them which the appellant abused.15 The element of grave abuse of confidence is
present in this case. Verily, the petitioner, as sales clerk/agent of PCS, is duty-bound to remit to Ingan the payments
which she collected from the customers of PCS. She would not have been able to take the money paid by LACS if it
were not for her position in PCS. In failing to remit to Ingan the money paid by LACS, the petitioner indubitably
gravely abused the confidence reposed on her by PCS.

In sum, the Court yields to the factual findings of the RTC which were affirmed by the CA, there being no compelling
reason to disregard the same. In a criminal case, factual findings of the trial court are generally accorded great
weight and respect on appeal, especially when such findings are supported by substantial evidence on record. It is
only in exceptional circumstances, such as when the trial court overlooked material and relevant matters, that this
Court will re-calibrate and evaluate the factual findings of the court below.16

Under Article 310 of the RPC, the penalty for qualified theft is two degrees higher than that specified in Article 309.
Article 309 of the RPC, in part, provides that:

Article 309. Penalties.—Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more
than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter
amount the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for
each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed
twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the
purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the
case may be.

x x x x (Emphasis ours)
Thus, the penalty for qualified theft is reclusion temporal in its medium and maximum periods. Considering,
1âwphi1

however, that the petitioner stole ₱66,860.90 from PCS, the imposable penalty on the petitioner should be the
maximum period of reclusion temporal medium and maximum and an incremental penalty of one year for every
₱10,000.00 in excess of ₱22,000.00, but the same shall not exceed 20 years.

Applying the Indeterminate Sentence Law, the minimum term shall be prision mayor in its maximum period
to reclusion temporal in its minimum period or within the range of ten (10) years and one (1) day to fourteen (14)
years and eight (8) months. The maximum term of the penalty to be imposed on the petitioner is twenty (20)
years.17Accordingly, the CA correctly imposed on the petitioner the indeterminate penalty of ten (10) years and one
(1) day of prision mayor as minimum to twenty (20) years of reclusion temporal as maximum.

WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED. The Decision dated August
12, 2011 and the Resolution dated October 5, 2011 of the Court of Appeals in CA-G.R. CR No. 32945 are
hereby AFFIRMED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 100210 April 1, 1998

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and ANTONIO A.
TUJAN, respondents.

MARTINEZ, J.:

Is the Court of Appeals, in affirming the order of the Regional Trial Court, correct in ruling that Subversion is the
"main offense" in a charge of Illegal Possession of Firearm and Ammunition in Furtherance of Subversion under
P.D. No. 1866, as amended, and that, therefore, the said charge should be quashed in view of a previous charge
of Subversion under R.A. No. 1700, as amended by P.D. No. 885, against the same accused pending in another
court?

Stated differently, is the accused charged with the same offense in both cases, which would justify the dismissal of
the second charge on the ground of double jeopardy?

This is the pith issue presented before us in this appeal by certiorari interposed by the People under Rule 45 of the
Revised Rules of Court, seeking a review of the decision1 of the Court of Appeals (Sixteenth Division) dated May 27,
1991, in CA-G.R. SP No. 24273, entitled "THE PEOPLE OF THE PHILIPPINES, Petitioner, versus HON. OSCAR B.
PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and ANTONIO A. TUJAN, Respondents."

The record discloses the following antecedent facts:

As early as 1983, private respondent Antonio Tujan was charged with Subversion under Republic Act No. 1700 (the
Anti-Subversion Law), as amended, before the Regional Trial Court of Manila (Branch 45), National Capital Region,
docketed as Criminal Case No. 64079.2 As a consequence thereof, a warrant for his arrest was issued on July 29,
1983,3 but it remained unserved as he could not be found.

Almost seven (7) years thereafter, or on June 5, 1990, Antonio Tujan was arrested on the basis of the warrant of
arrest in the subversion case.4 When arrested, an unlicensed .38 caliber special revolver and six (6) rounds of live
ammunition were found in his possession.5

Consequently, on June 14, 1990, Antonio Tujan was charged with Illegal Possession of Firearm and Ammunition in
Furtherance of Subversion under Presidential Decree No. 1866, as amended, before the Regional Trial Court of
Makati (Branch 148), docketed as Criminal Case No. 1789. The Information reads:

That on or about the 5th day of June, 1990, in the Municipality of Parañaque, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, being a member of a communist
party of the Philippines, and its front organization, did then and there willfully, unlawfully and feloniously
have in his possession, control and custody, in furtherance of or incident to, or in connection with the crime
of subversion, a special edition ARMSCOR PHILS. caliber .38 special revolver with Serial No. 1026387 and
 with six (6) live ammunitions, without first securing the necessary license or permit thereof from competent
government authority.6

The above Information recommended no bail for Antonio Tujan, which recommendation was approved by the trial
court in an Order dated June 19, 1990.7 The same order also directed the continued detention of Antonio Tujan at
MIG 15 of the Intelligence Service of the Armed Forces of the Philippines (ISAFP), Bago Bantay, Quezon City, while
his case is pending.

On June 26, 1990, Antonio Tujan, through counsel, filed a motion8 invoking his right to a preliminary investigation
pursuant to Section 7, Rule 112 of the Revised Rules of Court and praying that his arraignment be held in abeyance
until the preliminary investigation is terminated.

However, on June 27, 1990, during the hearing of Antonio Tujan's motion for preliminary investigation, his counsel
withdrew the motion since he would file a motion to quash the Information, for which reason counsel requested a
period of twenty (20) days to do so. This was granted by the trial court on that same day.9

On July 16, 1990, Antonio Tujan did file the motion to quash10 the Information in Criminal Case No. 1789 on the
ground that he "has been previously in jeopardy of being convicted of the offense charged" in Criminal Case No.
64079 (for subversion) of the Regional Trial Court of Manila (Branch 45). The said ground is based on Sections 3 (h)
and 7, Rule 117 of the 1985 Rules on Criminal Procedure. In support of the motion, Antonio Tujan contends that
"common crimes such as illegal possession of firearms and ammunition should actually be deemed absorbed in
subversion,"11 citing the cases of Misolas vs. Panga, et al. (G.R. No. 83341, January 30, 1990, 181 SCRA 648)
and Enrile vs. Salazar, et al. (G.R. No. 92163, June 5, 1990, 186 SCRA 217). Antonio Tujan then avers that "the
present case is the twin prosecution" of "the earlier subversion case" and, therefore, he "is entitled to invoke the
constitutional protection against double jeopardy."12

The petitioner opposed13 the motion to quash, arguing that Antonio Tujan does not stand in jeopardy of being
convicted a second time because: (a) he has not even been arraigned in the subversion case, and (b) the offense
charged against him in Criminal Case No. 64079 is for Subversion, punishable under Republic Act No. 1700; while
the present case is for Illegal Possession of Firearm and Ammunition in Furtherance of Subversion, punishable
under a different law (Presidential Decree No. 1866). Moreover, petitioner contends that Antonio Tujan's reliance on
the Misolas and Enrile cases "is misplaced."14 Tujan merely relies on the dissenting opinions in the Misolas case.
Also, the Enrile case which involved a complex crime of rebellion with murder is inapplicable to the instant case
which is not a complex offense. Thus, the "absorption rule" as held applicable in the Enrile ruling "has no room for
application in the present case because (illegal) possession of firearm and ammunition is not a necessary means of
committing the offense of subversion, nor is subversion a necessary means of committing the crime of illegal
possession of firearm and ammunition."15

The trial court, in an order dated October 12, 1990, granted the motion to quash the Information in Criminal Case
No. 1789, the dispositive portion of the order reading:

WHEREFORE, the motion to quash the information is hereby GRANTED, but only in so far as the accused
may be placed in jeopardy or in danger of being convicted or acquitted of the crime of Subversion and as a
consequence the Information is hereby quashed and the case dismissed without prejudice to the filing of
Illegal Possession of Firearm.

SO ORDERED.16

It is best to quote the disquisition of the respondent court in quashing the information and dismissing the case:

xxx xxx xxx

In other words, the main offense the accused is being charged in this case is also Subversion considering
that the alleged Illegal Possession of the Firearm and Ammunition is only in furtherance thereof.

Now, subversion being a continuing offense as has been previously held by the Supreme Court, the fact that
the accused has been previously charged of Subversion before another court before the institution of this
 instant case is just a continuing offense of his former charge or that his acts constituting subversion is a
continuation of the acts he committed before.

The court therefore cannot subscribe to the position taken by the prosecution that this case is very different
from the other case and that double jeopardy will attach in this particular case.

This court agrees with the position taken by the defense that double jeopardy will attach to the accusation of
subversion, punishable now under Republic Act 1700, as Rule 117 of the Rules of Court particularly Section
1 thereof, provides:

Time to move to quash — At anytime before entering his plea, the accused may move to
quash the complaint or information.(la)

In other words, there is no necessity that the accused should be arraigned first before he can move to quash
the information. It is before he pleads which the accused did in this case.

On the other submissions by the prosecution, that the possession of firearms and ammunitions is not a
necessary means of committing the offense of subversion or vice versa, then if the court follows such
argument, there could be no offense of Illegal Possession of Firearm and Ammunition in furtherance of
Subversion, for even the prosecution admits also that in subversion which is an offense involving
propaganda, counter propaganda, a battle of the hearts and mind of the people does not need the
possession or use of firearms and ammunitions.

The prosecution even admits and to quote:

The defense of double jeopardy. while unquestionably available to the accused, had not
been clearly shown to be invokable(sic) at this point in time.

But the rule says otherwise as previously stated as provided for under Section 1 of Rule 117 of the Rules of
Court.

Thus, if ever the accused is caught in possession of a firearm and ammunition which is separate and distinct
from the crime of subversion and is not a necessary ingredient thereof and the court believed so, the
prosecution will have to file another information as they may wish. The court therefore has to grant the
motion to quash on the aforestated grounds, subject to Section 5 of Rule 117, considering that the only
offense to which the accused in this case may be placed in jeopardy is Subversion and not Illegal
Possession of Firearms and Ammunitions.

The prosecution may file any information as warranted within ten (10) days from receipt of this order
otherwise the court will order the release of the accused, unless he is in custody for some other
offense.17(Emphasis ours)

Petitioner's motion for reconsideration18 was also denied in an order dated December 28, 1990.19

The petitioner elevated the case to the Court of Appeals through a petition for certiorari, docketed as CA-G.R. SP
No. 24273. However, the appellate court found that the trial court did not commit any grave abuse of discretion
amounting to lack or excess of jurisdiction in quashing the questioned Information. In dismissing the petition, the
appellate court, in its decision dated May 27, 1991, basically reiterated the aforequoted ruling of the trial court.

Petitioner now comes to this Court, claiming that: (1) the decision of the Court of Appeals is not in accord with the
law and applicable jurisprudence; and (2) it was deprived of due process to prosecute and prove its case against
private respondent Antonio Tujan in Criminal Case No. 1789.

We agree with the petitioner.

The Court of Appeals considered as duplicitous the Information for violation of P.D. No. 1866 filed against private
respondent Antonio Tujan. It ruled:
 The foregoing information (for Illegal Possession of Firearm and Ammunition in Furtherance of Subversion)
filed before the Makati court shows that the main case is subversion considering that there is an allegation
that the alleged illegal possession of firearms was made "in furtherance of or incident to, or in connection
with the crime of subversion." Also, the information alleged likewise that the accused is a member of a
communist party of the Philippines and its front organization. Basically, the information refers to the crime of
Subversion qualified by Illegal Possession of Firearms. . . .20

The ruling of the Court of Appeals is erroneous.

Section 1 of Presidential Decree No. 1866, under which Antonio Tujan is charged in Criminal Case No. 1789 before
the Regional Trial Court of Makati (Branch 148), provides as follows:

Sec. 1. Unlawful Manufacture, Sales, Acquisition, Disposition or Possession of Firearms or Ammunition or

Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. — The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire, dispose, or posses any firearms, part of firearm, ammunition,
or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition.

If homicide or murder is committed with the use of an unlicensed firearms, the penalty of death shall be
imposed.

If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion,
insurrection or subversion, the penalty of death shall be imposed.

The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the
owner, president, manager, director or other responsible officer of any public or private firm, company,
corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company,
corporation or entity to be used by any person or persons found guilty of violating the provisions of the
preceding paragraphs.

The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside
his residence without legal authority therefor. (Emphasis ours)

The above-quoted provisions of P.D. No. 1866 are plain and simple. Under the first paragraph of Section 1,
the mere possession of an unlicensed firearm or ammunition is the crime itself which carries the penalty of reclusion
temporal in its maximum period to reclusion perpetua. The third paragraph of the same Section makes the use of
said firearm and ammunition "in furtherance of, or incident to, or in connection with the crimes of rebellion,
insurrection or subversion" a circumstance to increase the penalty to death. Thus, the allegation in the Information in
Criminal Case No. 1789 that the unlicensed firearm found in the possession of Antonio Tujan, "a member of the
communist party of the Philippines and its front organization," was used "in furtherance of or incident to, or in
connection with the crime of subversion" does not charge him with the separate and distinct crime of Subversion in
the same Information, but simply describes the mode or manner by which the violation of Section 1 of P.D. No. 1866
was committed21 so as to qualify the penalty to death.

There is, therefore, only one offense charged in the questioned information, that is, the illegal possession of firearm
and ammunition, qualified by its being used in furtherance of subversion.22 There is nothing in P.D. No. 1866,
specifically Section 1 thereof, which decrees categorically or by implication that the crimes of rebellion, insurrection
or subversion are the very acts that are being penalized. This is clear from the title of the law itself which boldly
indicates the specific acts penalized under it:

CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE,

DEALING IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR
EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS,
AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN
VIOLATIONS THEREOFAND FOR RELEVANT PURPOSES. (Emphasis ours)
On the other hand, the previous subversion charge against Antonio Tujan in Criminal Case No. 64079, before the
Regional Trial Court of Manila (Branch 45), is based on a different law, that is, Republic Act No. 1700, as amended.
Section 3 thereof penalizes any person who "knowingly, willfully and by overt act affiliates with, becomes or remains
a member of a subversive association or organization . . ." Section 4 of said law further penalizes "such member [of
the Communist Party of the Philippines and/or its successor or of any subversive association] (who) takes up arms
against the Government." Thus, in the present case, private respondent Antonio Tujan could be charged either
under P.D. No. 1866 or R.A. No. 1700,23 or both.

This leads us to the issue of whether or not private respondent Antonio Tujan was placed in double jeopardy with
the filing of the second Information for Illegal Possession of Firearm and Ammunition in Furtherance of Subversion.

We rule in the negative.

Article III of the Constitution provides:

Sec. 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished
by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution
for the same act. (Emphasis ours)

Complementing the above constitutional provision, Rule 117 of the Revised Rules of Court states:

Sec. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court
of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or
acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the former complaint or information.

xxx xxx xxx

The right of an accused against double jeopardy is a matter which he may raise in a motion to quash to defeat a
subsequent prosecution for the same offense. The pertinent provision of Rule 117 of the Revised Rules of Court
provides:

Sec. 3. Grounds. — The accused may move to quash the complaint or information on any of the following
grounds:

xxx xxx xxx

(h) That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the
offense charged. (2a) (Emphasis ours)

In order that the protection against double jeopardy may inure to the benefit of an accused, the following requisites
must have obtained in the first criminal action: (a) a valid complaint or information; (b) a competent court; (c) the
defendant had pleaded to the charge;24 and (d) the defendant was acquitted, or convicted, or the case against him
was dismissed or otherwise terminated without his express consent.25

Suffice it to say that in the present case, private respondent's motion to quash filed in the trial court did not actually
raise the issue of double jeopardy simply because it had not arisen yet. It is noteworthy that the private respondent
has not even been arraigned in the first criminal action for subversion. Besides, as earlier discussed, the two
criminal charges against private respondent are not of the same offense as required by Section 21, Article III of the
Constitution.

It is clear from the foregoing, that the assailed decision of the Court of Appeals is not in accordance with the law and
jurisprudence and thus should be reversed.
While we hold that both the subversion charge under R.A. No. 1700, as amended, and the one for illegal possession
of firearm and ammunition in furtherance of subversion under P.D. No. 1866, as amended, can co-exist,
the subsequent enactment of Republic Act No. 7636 on September 22, 1992, totally repealing R.A. No. 1700, as
amended, has substantially changed the complexion of the present case, inasmuch as the said repealing law being
favorable to the accused-private respondent, who is not a habitual delinquent, should be given retroactive effect.26

Although this legal effect of R.A. No. 7636 on private-respondent's case has never been raised as an issue by the
parties — obviously because the said law came out only several months after the questioned decision of the Court
of Appeals was promulgated and while the present petition is pending with this Court — we should nonetheless fulfill
our duty as a court of justice by applying the law to whomsoever is benefited by it regardless of whether or not the
accused or any party has sought the application of the beneficent provisions of the repealing law.27

That R.A. No. 7636 should apply retroactively to accused-private respondent is beyond question. The repeal by said
law of R.A. No. 1700, as amended, was categorical, definite and absolute. There was no saving clause in the
repeal. The legislative intent of totally abrogating the old anti-subversion law is clear. Thus, it would be illogical for
the trial courts to try and sentence the accused-private respondent for an offense that no longer exists.28

As early as 1935, we ruled in People vs. Tamayo:29

There is no question that at common law and in America a much more favorable attitude towards the
accused exists relative to statutes that have been repealed than has been adopted here. Our rule is more in
conformity with the Spanish doctrine, but even in Spain, where the offense ceases to be criminal,
prosecution cannot be had. (1 Pacheco Commentaries, 296) (Emphasis ours)

Where, as here, the repeal of a penal law is total and absolute and the act with was penalized by a prior law ceases
to be criminal under the new law, the previous offense is obliterated.30 It is a recognized rule in this jurisdiction that a
total repeal deprives the courts of jurisdiction to try, convict and sentence persons charged with violation of the old
law prior to the repeal.31

With the enactment of R.A. No. 7636, the charge of subversion against the accused-private respondent has no more
legal basis and should be dismissed.

As regards the other charge of illegal possession of firearm and ammunition, qualified by subversion, this charge
should be amended to simple illegal possession of firearm and ammunition since, as earlier discussed, subversion
is no longer a crime.

Moreover, the offense of simple illegal possession of firearm and ammunition is now bailable under Republic Act No.
8294 which was enacted on June 6, 1997. R.A. No. 8294 has amended Presidential Decree No. 1866, as amended,
by eliminating the provision in said P.D. that if the unlicensed firearm is used in furtherance of subversion, the
penalty of death shall he imposed.32 Under the new law (R.A. No. 8294), the penalty prescribed for simple illegal
possession of firearm (.38 caliber) is now reduced to prision correccional in its maximum period and a fine of not
less than Fifteen thousand pesos (P15,000.00).33 The reduced penalty of imprisonment — which is four (4) years,
two (2) months and one (1) day to six (6) years — entitles the accused-private respondent to bail. Considering,
however, that the accused-private respondent has been detained since his arrest on June 5, 1990 up to the present
(as far as our record has shown), or more than seven (7) years now, his immediate release is in order. This is so
because even if he were convicted for illegal possession of firearm and ammunition, the length of his detention while
his case is pending has already exceeded the penalty prescribed by the new law.

WHEREFORE, the assailed decision of the Court of Appeals dated May 27, 1991, in CA-G.R. SP No. 24273,
including the orders dated October 12, 1990 and December 28, 1990 of the Regional Trial Court of Makati (Branch
148), National Capital Region, in Criminal Case No. 1789, are hereby REVERSED and SET ASIDE.

The subversion charge against accused-private respondent Antonio A. Tujan in Criminal Case No. 64079 of the
Regional Trial Court of Manila, Branch 45, is hereby DISMISSED.

The other Information for illegal possession of firearm and ammunition in furtherance of subversion against the
same accused in Criminal Case No. 1789 of the Regional Trial Court of Makati, Branch 148, is DEEMED
AMENDED to Simple Illegal Possession of Firearm and Ammunition. The accused-appellant is hereby ordered
RELEASED IMMEDIATELY from detention for the reason stated above, unless he is being detained for any other
offense.

This decision is IMMEDIATELY EXECUTORY.

No pronouncement as to costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-2873 February 28, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EUGENIO GARCIA Y MADRIGAL, defendant-appellant.

Dominador A. Alafriz for appellant.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Rafael P. Cañiza for appellee.

TUASON, J.:

The sole question presented on this appeal is whether the appellant, being 17 years of age at the time of at the time of the
commission of the crime, was entitled to the privileged mitigating circumstance of article 68, paragraph 2, of the Revised
Penal Code. The lower court, ignoring defendant's minority, sentenced him to an indeterminate penalty of from 4 years, 2
months and 1 day of prision correccional to 8 years of prision mayor for the crime of robbery of which he was found guilty.
He was also sentenced to pay the offended party, jointly and severally with the other accused, the sum of P85 as
indemnity.

Republic Act No. 47, which amended article 80 of the Revised Penal Code by reducing from 18 to 16 the age below which
accused have to "be committed to the custody or care of a public or private, benevolent or charitable institution," instead
of being convicted and sentenced to prison, has given rise to the controversy. The Solicitor General believes that the
amendment by implication has also amended paragraph 2 of article 68 of the Revised Pena Code, which provides that
when the offender is over fifteen and under eighteen years age, "The penalty next lower than that prescribed by law shall
be imposed, but always in the proper period."

There are well recognized rules of statutory construction which are against the Government's contention.

One of these rules is that all parts of a statute are to be harmonized and reconciled so that effect may be given to each
and every part thereof, and that conflicting intention in the same statute are never to be supposed or so regarded, unless
forced upon the court by an unambiguous language. (59 C. J., 999.)

This rule applies in the construction of a statute and its amendment, both being read together as whole. "An amended act
is ordinarily to be construed as if the original statute has been repealed, and a new and independent act in the amended
form had been adopted in its stead; or, as frequently stated by the courts, so far as regards any action after the adoption
of the amendment, as if the statute had been originally enacted in its amended form the amendment becomes a part of
the original statute as if it had always been contained therein, unless such amendment involves the abrogation of
contractual relations between the state and others. Where an amendment leaves certain portions of the original act
unchanged, such portions are continued in force, with the same meaning and effect they had before the amendment. So
where an amendatory act provides that an existing statute shall be amended to read as recited in the amendatory act,
such portions of the existing law as are retained, either literally or substantially, are regarded as a continuation of the
existing law, and not as a new enactment." (59 C. J., 1096, 1097.)

We find no irreconcilable conflict between article 68, paragraph 2, as it nowstands and article 80 as amended. There is no
incompatibility between granting accused of the ages of 15 to 18 a privileged mitigating circumstance and fixing at 16 the
maximum age of persons who are to be placed in a reformatory institution. In other words, there is no inconsistency
between sending defendants of certain ages to prison and giving them a penalty lower than the imposable one on adults
under the same or similar circumstances. Let it be remember that the privilege of article 68, supra, is not by its nature
inherent in age but purely statutory and conventional, and that this privilege is granted adult offenders under given
conditions.

At least there is no clear intention on the part of the Congress to amend article 68. Indeed the rational presumption is that
if there had been such an intention the lawmakers should have said so expressly, instead of leaving the change to
inference.
One other rule of interpretation that quarrels with the theory of implied repeal or amendment is that penal law is to be
construed, in case of doubt, strictly against the state. "Criminal and penal statutes must be strictly construed, that is, they
cannot be enlarged or extended by intendment, implication, or by any equitable considerations. In other words, the
language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purpose for
which the statute was enacted. Only those persons, offenses, and penalties, clearly included, beyond any reasonable
doubt, will be considered within the statute's operation. They must come clearly within both the spirit and the letter of the
statute, and where there is any reasonable doubt, it must be resolved in favor of the person accused of violating the
statute; that is, all questions in doubt will be resolved in favor of those from whom the penalty is sought." (Statutory
Construction, Crawford, pp. 460-462.)

The offense charged in the information of which the appellant was found guilty is punishable under article 294, case No. 5,
of the Revised Penal Code, as amended by section 6 of Republic Act No. 18, with prision correccional in its maximum
period to prision mayor in its medium period. The penalty one degree lower than this is arresto mayor in its maximum
period to prision correccional in its medium period. There being no modifying circumstance, the appropriate penalty in the
present case is from 6 months and 1 day of arresto mayor to 2 years and 4 months ofprision correccional. Being entitled
to an indeterminate penalty as provided in section 1 of Act No. L-4103 as amended, the accused should be, and he is
hereby sentenced to imprisonment of not less than 4 months of arresto mayor and not more than 2 years and 4 months of
prision correccional. In all other respect the appealed judgment is affirmed. The appellant will pay the costs of this appeal.

Moran, C.J., Ozaeta, Pablo, Bengzon, Padilla, Montemayor, Reyes and Torres, JJ., concur.

RESOLUTION ON MOTION FOR RECONSIDERATION

April 12, 1950

TUASON, J.:

This is a motion for reconsideration of our decision.

The main theme of the Solicitor General's argument is that articles 13 (2) and 68 (2) of the Revised Penal code
"complement each other;" that "the application of article 68 takes place only when the court has to render judgment and
impose a penalty upon a minor who has been proceeded against in accordance with article 80 and who had misbehaved
or is found incorrigible," and that "article 80 must be applied first before article 68 can come into operation, and the court
can not apply the latter article in total disregard of the former." In short, as we infer from this line of reasoning, what article
80 does not touch, article 68 can not touch.

We do not think the premise and conclusion of the motion are correct. There seems to be a confusion of ideas.

It may do us well to make brief review of the legislation, past and present, relative to juvenile offenders and dissect and
analyze its various provisions and the differences between them and the role assigned to each. .

Article 68 of the Revised Penal code provides:.

Penalty to be imposed upon a person under eighteen years of age. — When the offender is a minor under
eighteen years and his case is one coming under the provisions of the paragraph next to the last of article 80 of
this Code, the following rules shall be observed:

1. Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason of the
court having declared that he acted with discernment, a discretionary penalty shall be imposed, but always lower
by two degrees at least than that prescribed by law for the crime which he committed.

2. Upon a person over fifteen and under eighteen years of the penalty next lower than that prescribed by law shall
be imposed but always in the proper period.

Sub-paragraph 1 and 2 of the foregoing article are a reproduction of article 85 of the Spanish Penal Code.
Into the Revised Penal Code, the Juvenile Delinquency Act was incorporated. It has become in the new code article 80,
the first paragraph of which provides that "whenever a minor under 18 years of age, of either sex, be accused of a crime,
the court . . . shall commit such minor to the custody or care of a public or private, benevolent or charitable, institution,
etc." And in the paragraph immediately preceding the last, it is further provided that "In case the minor fails to behave
properly or to comply with the regulation of the institution to which he has been committed, or with the conditions imposed
upon him when he was committed to the care of a responsible person, or in case he should be found incorrigible or his
continued stay in such institution should be inadvisable, he shall be returned to the court in order that the same may
render the judgment corresponding to the crime committed by him."

The latest legislation on the subject was Republic Act No. 47, which amended article 80 of the Revised Penal Code so as
to reduce to below 16 the age of minors coming within its purview.

A close examination of articles 68 and 80 will disclose that article 68, according to its main paragraph, is to lay off and
watch while the minor is in the hands of a charitable institution or person mentioned in article 80 trying to reform him or
her. This has to be so because article 68 is a rule for the application of penalties, and there is no penalty when there is no
judgment when the delinquent is in Welfareville or other place of similar character or entrusted to the care of a private
person. However, if and when the minor turns out to be hopeless or incorrigible, he is returned to the proper court and the
court passes sentence on him or her. In other words, article 80 withdraws, as it were, and sub-paragraph 1 and 2, as the
case maybe, of article 68 takes control.

From this it will be seen that article 68 is not dependent on article 80, nor do these articles complement each other if by
complement is meant that they are two mutually completing parts so that article 68 could not stand without article 80. It is
more appropriate to say that article 68 merely adjusts itself to article 80 but is, in all other respects, self-sufficient and
independent of the latter. Parts of one system of penology and working in coordination with each other, they pursue
different ends. It is to be noticed that article 68 falls under section 2 of Chapter IV entitled "Application of Penalties," while
article 80 comes under section 1 of Chapter V entitled "Execution and Service of Penalties." Two different subjects, these.

It will also be seen that article 68, sub-paragraphs 1 and 2, and article 80 of the Revised Penal Code do not function at the
same time and are designed for different purposes. Each has its assigned, separate sphere of action without in any way
intermingling with the other. When article 80 operates, article 68 keeps out of the way; article 68 steps in when article 80
steps out.

While a minor is in the process of being reformed he is, in a manner of speaking, in an intermediate or indeterminate
state, neither in prison nor free. Through repentance and by observing good conduct, he is rewarded with freedom,
released upon reaching the age of majority or before, but if he shows no promise of turning a new leaf, Bilibid claims him.

It is the minors so situated; it is selection of two should be committed to are formatory school or to the custody of a private
person with which article 80 has to do, and no more. Article 80 does not concern itself with what should be done with
minors when they are consigned to jail because of misbehavior; much less is it concerned over minors who, after the
passage of Republic Act No. 47, are condemned to prison without having been under the custody of a benevolent
institution or private person like youths between 16 and 18. On the other hand, article 68 is intended for minors who are
sent to jail, a matter foreign to the province of article 80.

To press the argument further, article 85 of the original Penal Code conferred upon minors under 18 the right to a penalty.
Then came the Juvenile Delinquency Act giving additional concession to juvenile delinquents. When, later, Republic Act
No. 47 amended article 80 so as to eliminate from its beneficent provisions minor of the age of 16 or over and under 18,
the logical effect of the amendment can no other than to correspondingly reduce the age of minors regarding whom the
suspensory inhibition on article 68 is to be confined. Only to the extent and within the limits that article 80 applies is article
68 bound to defer to that article. Where article 80 does not apply article 68 is supreme. When article 80 says that it will
deal only with minors below 16, it relinquishes authority over minors above that age in favor of article 68. When and if
article 80 should by amendment further reduce the age to 15, to that extent the operation of article 68 will be
correspondingly enlarged.

In fact, if Republic Act No. 47, instead of limiting the operation of article 80 to minors under 16, had totally abolished the
scheme of juvenile reformation, sub-paragraphs 1 and 2 of article 68 of the Revised Penal Code would, in our opinion,
remain intact, with the only difference that, as before, they would have full sway, unhampered by any consideration of
suspended judgment. The predecessor of article 68 was in the original Penal Code since that code was put in force in
Spain in 1870 and in the Philippines in 1884, long before the idea embodied in article 80 was conceived. Before the
Revised Penal Code went into effect, article 85 of the old Penal Code and the Juvenile Delinquency Act worked in the
manner herein set forth although there was not any express provision coordinating their operation. It can safely be said
that the main paragraph of article 68 was inserted merely to explain in clear and express terms when it should stand aloof
and when it should play its role. The Revised Penal Code merely states the obvious as befits a scientific system of law.

In conclusion, when Republic Act No. 47 amended article 80 of the Revised Penal Code by reducing the age of persons
who may be placed on probation under that article, the amendment did not change in any form or manner the degree of
punishment that should be meted out to those who are to be committed to jail or how they are to treated. After the minor is
turned over to the court for sentence, article 80 ceases to have any interest in him or her. In saying that the 16-and 18-
year old should no longer be given a trial or placed on probation in a reformatory institution but should go straight to prison
upon conviction, Republic Act No. 47 does not, by implication or otherwise, connote that such minors should also be
deprived of a reduced penalty. In no standard of statutory construction is there support for the proposition that the
mitigating circumstance which minors between 16 and 18 enjoyed before Republic Act No. 47 came into
being, notwithstanding the fact that they had shown evidence of incorrigibility, should be denied them now for no other
reason than that the right to be committed to a reformatory school has been taken away from them; now that they are
confined in jail without having committed any fault other than the crime for which they were prosecuted in the first
instance.

Let it be remembered that by virtue of the amendment minors between 16 and 18 do not now come under the provisions
of the paragraph next to the last of article 80.

Of course, the effect of a law amendment would different if the amendatory law had absorbed the law which it had
amended. In that case, the original law become part and parcel of the new law, with the result that if the amendatory law
be later repealed, both that law and the law which it had superseded or amended would be considered abrogated. There
was no law of its own force could survive. But, as we have indicated, article 68 as well as its predecessor is an
independent provision and has not been merged with article 80 or any other article of the Revised Penal code. It is an
independent provision inoperative only during the suspension of the sentence but possessing all the vigor which article 85
of Spanish Code had, when the minors are sentenced to jail.

In the decision sought to be reconsidered, we emphasize the rule of statutory construction to the effect that all parts of a
statute are to be harmonized and reconciled so that effect may be given to each and every part thereof, and that
conflicting intentions in the same statute are never to be supposed or so regarded, unless forced upon the court by an
unambiguous language. (59 C. J., 999.) The motion for reconsideration has not pointed to any conflict, and we can not
find any, between the retention of the privileged or special mitigating circumstance in favor of minors below 18 and over
16 and the fact that such minors are not entitled to the benefits of article 80 under any circumstances. The motion for
reconsideration is conspicuous for its silence on any incongruity or absurdity that might result from our ruling on the scope
and extent of Republic Act No. 47.

The sole consideration that might commend itself in favor of the Government's position is the general welfare. For the
good of society it may have been better if Republic Act No. 47 had amended articles 13 and 68 also by correspondingly
reducing the age of accused minors entitled to a mitigating circumstance by reason of age. But it is write to say that we
are not authorized to insert into a law what we think should be in it or to supply what we think the legislature would have
supplied if its attention had been called to the omission. This is specially true in penal legislation which, as we have
repeatedly stressed in our decision, has to be construed strictly. But there is not even room for construction in this case.
The preamble or explanatory note to Republic Act No. 47 can not be used as basis for giving it an meaning not apparent
on its face. A preamble or explanatory not is resorted to only for clarification in cases of doubt. There is no ambiguity in
Republic Act No. 47.

The motion and the request to set it for oral argument are denied.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G. R. No. 160188 June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents.

DECISION

TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes
having performed the felonious acts imputed against him, but instead insists that as a result, he should be adjudged
guilty of frustrated theft only, not the felony in its consummated stage of which he was convicted. The proposition
rests on a common theory expounded in two well-known decisions1 rendered decades ago by the Court of Appeals,
upholding the existence of frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.

As far as can be told,2 the last time this Court extensively considered whether an accused was guilty of frustrated or
consummated theft was in 1918, in People v. Adiao.3 A more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla,4 and in 1984, in Empelis v. IAC.5 This
petition now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission
under the Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an Information6 charging petitioner Aristotel
Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m.,
petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM)
complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at the open
parking area of the supermarket. Lago saw petitioner, who was wearing an identification card with the mark
"Receiving Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the well-known "Tide" brand.
Petitioner unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then returned
inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramatic and again
unloaded these boxes to the same area in the open parking space.7

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking
space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the
vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area.
When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but
Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered.8 The filched items seized from the duo were four
(4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods
with an aggregate value of ₱12,090.00.9

Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to
the Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police
investigation records that apart from petitioner and Calderon, four (4) other persons were apprehended by the
security guards at the scene and delivered to police custody at the Baler PNP Station in connection with the
incident. However, after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and
Calderon were charged with theft by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the
day after the incident.10

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent
bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by
Lago and his fellow security guards after a commotion and brought to the Baler PNP Station. Calderon alleged that
on the afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by
his neighbor, Leoncio Rosulada.11 As the queue for the ATM was long, Calderon and Rosulada decided to buy
snacks inside the supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading
them to head out of the building to check what was

transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus commencing their
detention.12 Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela,13 had been at
the parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they
saw the security guard Lago fire a shot. The gunshot caused him and the other people at the scene to start running,
at which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained
at the security office until around 9:00 p.m., at which time he and the others were brought to the Baler Police
Station. At the station, petitioner denied having stolen the cartons of detergent, but he was detained overnight, and
eventually brought to the prosecutor’s office where he was charged with theft.14 During petitioner’s cross-
examination, he admitted that he had been employed as a "bundler" of GMS Marketing, "assigned at the
supermarket" though not at SM.15

In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90,
convicted both petitioner and Calderon of the crime of consummated theft. They were sentenced to an
indeterminate prison term of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as
maximum.17 The RTC found credible the testimonies of the prosecution witnesses and established the convictions
on the positive identification of the accused as perpetrators of the crime.

Both accused filed their respective Notices of Appeal,18 but only petitioner filed a brief19 with the Court of Appeals,
causing the appellate court to deem Calderon’s appeal as abandoned and consequently dismissed. Before the
Court of Appeals, petitioner argued that he should only be convicted of frustrated theft since at the time he was
apprehended, he was never placed in a position to freely dispose of the articles stolen.20 However, in its Decision
dated 19 June 2003,21 the Court of Appeals rejected this contention and affirmed petitioner’s conviction.22 Hence the
present Petition for Review,23 which expressly seeks that petitioner’s conviction "be modified to only of Frustrated
Theft."24

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his
actual participation in the theft of several cases of detergent with a total value of ₱12,090.00 of which he was
charged.25 As such, there is no cause for the Court to consider a factual scenario other than that presented by the
prosecution, as affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the
given facts, the theft should be deemed as consummated or merely frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites26 two decisions rendered many years
ago by the Court of Appeals: People v. Diño27 and People v. Flores.28 Both decisions elicit the interest of this Court,
as they modified trial court convictions from consummated to frustrated theft and involve a factual milieu that bears
similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the
appellate court did not expressly consider the import of the rulings when it affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and Flores rulings since they have
not yet been expressly adopted as precedents by this Court. For whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the
silence on our part, Diño and Flores have attained a level of renown reached by very few other appellate court
rulings. They are comprehensively discussed in the most popular of our criminal law annotations,29 and studied in
criminal law classes as textbook examples of frustrated crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law
exams more than they actually occur in real life. Indeed, if we finally say that Diño and Flores are doctrinal, such
conclusion could profoundly influence a multitude of routine theft prosecutions, including commonplace shoplifting.
Any scenario that involves the thief having to exit with the stolen property through a supervised egress, such as a
supermarket checkout counter or a parking area pay booth, may easily call for the application of Diño and Flores.
The fact that lower courts have not hesitated to lay down convictions for frustrated theft further validates that Diño
and Flores and the theories offered therein on frustrated theft have borne some weight in our jurisprudential system.
The time is thus ripe for us to examine whether those theories are correct and should continue to influence
prosecutors and judges in the future.

III.

To delve into any extended analysis of Diño and Flores, as well as the specific issues relative to "frustrated theft," it
is necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal Code.30

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is
consummated "when all the elements necessary for its execution and accomplishment are present." It is frustrated
"when the offender performs all the acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the perpetrator." Finally, it is
attempted "when the offender commences the commission of a felony directly by overt acts, and does not perform
all the acts of execution which should produce the felony by reason of some cause or accident other than his own
spontaneous desistance."

Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts constituting the
crime included between the act which begins the commission of the crime and the last act performed by the offender
which, with prior acts, should result in the consummated crime.31 After that point has been breached, the subjective
phase ends and the objective phase begins.32 It has been held that if the offender never passes the subjective
phase of the offense, the crime is merely attempted.33 On the other hand, the subjective phase is completely passed
in case of frustrated crimes, for in such instances, "[s]ubjectively the crime is complete."34

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies
on the other. So long as the offender fails to complete all the acts of execution despite commencing the commission
of a felony, the crime is undoubtedly in the attempted stage. Since the specific acts of execution that define each
crime under the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining whether a
crime is attempted only would need to compare the acts actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession
that all of the acts of execution have been performed by the offender. The critical distinction instead is whether the
felony itself was actually produced by the acts of execution. The determination of whether the felony was "produced"
after all the acts of execution had been performed hinges on the particular statutory definition of the felony. It is the
statutory definition that generally furnishes the elements of each crime under the Revised Penal Code, while the
elements in turn unravel the particular requisite acts of execution and accompanying criminal intent.

The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important characteristic of a
crime, that "ordinarily, evil intent must unite with an unlawful act for there to be a crime," and accordingly, there can
be no crime when the criminal mind is wanting.35 Accepted in this jurisdiction as material in crimes mala in se,36mens
rea has been defined before as "a guilty mind, a guilty or wrongful purpose or criminal intent,"37 and "essential for
criminal liability."38 It follows that the statutory definition of our mala in se crimes must be able to supply what the
mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that "a criminal law that contains
no mens rea requirement infringes on constitutionally protected rights."39 The criminal statute must also provide for
the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough that mens rea be
shown; there must also be an actus reus.40

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is
produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the
language of the law expressly provide when the felony is produced. Without such provision, disputes would
inevitably ensue on the elemental question whether or not a crime was committed, thereby presaging the
undesirable and legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes.
Fortunately, our Revised Penal Code does not suffer from such infirmity. From the statutory definition of any felony,
a decisive passage or term is embedded which attests when the felony is produced by the acts of execution. For
example, the statutory definition of murder or homicide expressly uses the phrase "shall kill another," thus making it
clear that the felony is produced by the death of the victim, and conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are
spelled out as follows:

Art. 308. Who are liable for theft.— Theft is committed by any person who, with intent to gain but without violence
against or intimidation of persons nor force upon things, shall take personal property of another without the latter’s
consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits
or object of the damage caused by him; and

3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another
and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm
products.

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which
theft may be committed.41 In the present discussion, we need to concern ourselves only with the general definition
since it was under it that the prosecution of the accused was undertaken and sustained. On the face of the
definition, there is only one operative act of execution by the actor involved in theft ─ the taking of personal property
of another. It is also clear from the provision that in order that such taking may be qualified as theft, there must
further be present the descriptive circumstances that the taking was with intent to gain; without force upon things or
violence against or intimidation of persons; and it was without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal
Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the
taking be accomplished without the use of violence against or intimidation of persons or force upon things.42

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as
defined by Gaius, was so broad enough as to encompass "any kind of physical handling of property belonging to
another against the will of the owner,"43 a definition similar to that by Paulus that a thief "handles (touches, moves)
the property of another."44 However, with the Institutes of Justinian, the idea had taken hold that more than mere
physical handling, there must further be an intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei
fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve."45 This requirement of animo
lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has since been
abandoned in Great Britain.46

In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to characterize theft.
Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and application.
Spanish law had already discounted the belief that mere physical taking was constitutive of apoderamiento, finding
that it had to be coupled with "the intent to appropriate the object in order to constitute apoderamiento; and to
appropriate means to deprive the lawful owner of the thing."47 However, a conflicting line of cases decided by the
Court of Appeals ruled, alternatively, that there must be permanency in the taking48 or an intent to permanently
deprive the owner of the stolen property;49 or that there was no need for permanency in the taking or in its intent, as
the mere temporary possession by the offender or disturbance of the proprietary rights of the owner already
constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there
was no need of an intent to permanently deprive the owner of his property to constitute an unlawful taking.51
So long as the "descriptive" circumstances that qualify the taking are present, including animo lucrandi and
apoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at
least, that the transgression went beyond the attempted stage. As applied to the present case, the moment
petitioner obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure
motivated by intent to gain, completed without need to inflict violence or intimidation against persons nor force upon
things, and accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating
benefit a conviction for only attempted theft would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the
Revised Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only,
once the acts committed by petitioner, if ordinarily sufficient to produce theft as a consequence, "do not produce
[such theft] by reason of causes independent of the will of the perpetrator." There are clearly two determinative
factors to consider: that the felony is not "produced," and that such failure is due to causes independent of the will of
the perpetrator. The second factor ultimately depends on the evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised Penal Code52 as
to when a particular felony is "not produced," despite the commission of all the acts of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly
is the felony of theft "produced." Parsing through the statutory definition of theft under Article 308, there is one
apparent answer provided in the language of the law — that theft is already "produced" upon the "tak[ing of]
personal property of another without the latter’s consent."

U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with theft after he
abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom
House. At no time was the accused able to "get the merchandise out of the Custom House," and it appears that he
"was under observation during the entire transaction."54 Based apparently on those two circumstances, the trial court
had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive,
and holding instead that the accused was guilty of consummated theft, finding that "all the elements of the
completed crime of theft are present."55 In support of its conclusion that the theft was consummated, the Court cited
three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate below:

The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the
fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but
sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen
who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from
taking full possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the
Supreme Court of Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on
account of the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently,
however, while the defendant was still inside the church, the offended party got back the money from the defendant.
The court said that the defendant had performed all the acts of execution and considered the theft as consummated.
(Decision of the Supreme Court of Spain, December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the
case took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales
and 20 centimos, and then he placed the money over the cover of the case; just at this moment he was caught by
two guards who were stationed in another room near-by. The court considered this as consummated robbery, and
said: "[x x x] The accused [x x x] having materially taken possession of the money from the moment he took it from
the place where it had been, and having taken it with his hands with intent to appropriate the same, he executed all
the acts necessary to constitute the crime which was thereby produced; only the act of making use of the thing
having been frustrated, which, however, does not go to make the elements of the consummated crime." (Decision of
the Supreme Court of Spain, June 13, 1882.)56

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in
all these cases had been able to obtain full possession of the personal property prior to their apprehension. The
interval between the commission of the acts of theft and the apprehension of the thieves did vary, from "sometime
later" in the 1898 decision; to the very moment the thief had just extracted the money in a purse which had been
stored as it was in the 1882 decision; and before the thief had been able to spirit the item stolen from the building
where the theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of those cases was consummated by the actual
possession of the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than
consummated theft. The case is People v. Sobrevilla,57 where the accused, while in the midst of a crowd in a public
market, was already able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the
theft, "caught hold of the [accused]’s shirt-front, at the same time shouting for a policeman; after a struggle, he
recovered his pocket-book and let go of the defendant, who was afterwards caught by a policeman."58 In rejecting
the contention that only frustrated theft was established, the Court simply said, without further comment or
elaboration:

We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that
determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the
[accused’s] criminal liability, which arose from the [accused] having succeeded in taking the pocket-book.59

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the
fact that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how
momentary, was able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this
case. Yet to simply affirm without further comment would be disingenuous, as there is another school of thought on
when theft is consummated, as reflected in the Diño and Flores decisions.

Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The
accused therein, a driver employed by the United States Army, had driven his truck into the port area of the South
Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused
drove away his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped
by an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that
he had been stopped by four men who had loaded the boxes with the agreement that they were to meet him and
retrieve the rifles after he had passed the checkpoint. The trial court convicted accused of consummated theft, but
the Court of Appeals modified the conviction, holding instead that only frustrated theft had been committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles "pass
through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it
would be allowed to pass through the check point without further investigation or checking."60 This point was
deemed material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that
"the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it
were more or less momentary."61 Support for this proposition was drawn from a decision of the Supreme Court of
Spain dated 24 January 1888 (1888 decision), which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de
hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella,
siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede
decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar la
cosa ajena.62

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of
the culprits, the articles stolen must first be passed through the M.P. check point, but since the offense was
opportunely discovered and the articles seized after all the acts of execution had been performed, but before the
loot came under the final control and disposal of the looters, the offense can not be said to have been fully
consummated, as it was frustrated by the timely intervention of the guard. The offense committed, therefore, is that
of frustrated theft.63
Diño thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of
apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again
by the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that
decided it, bore "no substantial variance between the circumstances [herein] and in [Diño]."64 Such conclusion is
borne out by the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company,
issued a delivery receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van
onto his truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery receipt to
the guard on duty at the gate of the terminal. However, the guards insisted on inspecting the van, and discovered
that the "empty" sea van had actually contained other merchandise as well.65 The accused was prosecuted for theft
qualified by abuse of confidence, and found himself convicted of the consummated crime. Before the Court of
Appeals, accused argued in the alternative that he was guilty only of attempted theft, but the appellate court pointed
out that there was no intervening act of spontaneous desistance on the part of the accused that "literally frustrated
the theft." However, the Court of Appeals, explicitly relying on Diño, did find that the accused was guilty only of
frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found "no substantial variance" between Diño and Flores then before
it. The prosecution in Flores had sought to distinguish that case from Diño, citing a "traditional ruling" which
unfortunately was not identified in the decision itself. However, the Court of Appeals pointed out that the said
"traditional ruling" was qualified by the words "is placed in a situation where [the actor] could dispose of its contents
at once."66 Pouncing on this qualification, the appellate court noted that "[o]bviously, while the truck and the van
were still within the compound, the petitioner could not have disposed of the goods ‘at once’." At the same time, the
Court of Appeals conceded that "[t]his is entirely different from the case where a much less bulk and more common
thing as money was the object of the crime, where freedom to dispose of or make use of it is palpably less
restricted,"67 though no further qualification was offered what the effect would have been had that alternative
circumstance been present instead.

Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as to whether the crime of theft
was produced is the ability of the actor "to freely dispose of the articles stolen, even if it were only momentary." Such
conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in
determining whether theft had been consummated, "es preciso que so haga en circunstancias tales que permitan al
sustractor de aquella, siquiera sea mas o menos momentaneamente." The qualifier "siquiera sea mas o menos
momentaneamente" proves another important consideration, as it implies that if the actor was in a capacity to freely
dispose of the stolen items before apprehension, then the theft could be deemed consummated. Such circumstance
was not present in either Diño or Flores, as the stolen items in both cases were retrieved from the actor before they
could be physically extracted from the guarded compounds from which the items were filched. However, as implied
in Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been
"free disposition," as in the case where the chattel involved was of "much less bulk and more common x x x, [such]
as money x x x."68

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Diño ruling:

There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of the
stolen articles even if it were more or less momentary. Or as stated in another case[69 ], theft is consummated upon
the voluntary and malicious taking of property belonging to another which is realized by the material occupation of
the thing whereby the thief places it under his control and in such a situation that he could dispose of it at once. This
ruling seems to have been based on Viada’s opinion that in order the theft may be consummated, "es preciso que
se haga en circumstancias x x x [70 ]"71

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that "[i]n theft
or robbery the crime is consummated after the accused had material possession of the thing with intent to
appropriate the same, although his act of making use of the thing was frustrated."72

There are at least two other Court of Appeals rulings that are at seeming variance with the Diño and Flores rulings.
People v. Batoon73 involved an accused who filled a container with gasoline from a petrol pump within view of a
police detective, who followed the accused onto a passenger truck where the arrest was made. While the trial court
found the accused guilty of frustrated qualified theft, the Court of Appeals held that the accused was guilty of
consummated qualified theft, finding that "[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x
indicate that actual taking with intent to gain is enough to consummate the crime of theft."74
In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply depot and loaded them
onto a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by the Military
Police running the checkpoint. Even though those facts clearly admit to similarity with those in Diño, the Court of
Appeals held that the accused were guilty of consummated theft, as the accused "were able to take or get hold of
the hospital linen and that the only thing that was frustrated, which does not constitute any element of theft, is the
use or benefit that the thieves expected from the commission of the offense."76

In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that "[w]hen the meaning of an
element of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that
felony."77 Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as frustrated theft
is concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself, the
question can even be asked whether there is really such a crime in the first place.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As
we undertake this inquiry, we have to reckon with the import of this Court’s 1984 decision in Empelis v. IAC.78

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his
plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner within the
plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene, dropping
the coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police.
After trial, the accused were convicted of qualified theft, and the issue they raised on appeal was that they were
guilty only of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised Penal
Code,79 but further held that the accused were guilty only of frustrated qualified theft.

It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was
raised by any of the parties. What does appear, though, is that the disposition of that issue was contained in only
two sentences, which we reproduce in full:

However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the
acts of execution which should have produced the felony as a consequence. They were not able to carry the
coconuts away from the plantation due to the timely arrival of the owner.80

No legal reference or citation was offered for this averment, whether Diño, Flores or the Spanish authorities who
may have bolstered the conclusion. There are indeed evident problems with this formulation in Empelis.

Empelis held that the crime was only frustrated because the actors "were not able to perform all the acts of
execution which should have produced the felon as a consequence."81 However, per Article 6 of the Revised Penal
Code, the crime is frustrated "when the offender performs all the acts of execution," though not producing the felony
as a result. If the offender was not able to perform all the acts of execution, the crime is attempted, provided that the
non-performance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes
that the crime was

frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However,
following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only
attempted, especially given that the acts were not performed because of the timely arrival of the owner, and not
because of spontaneous desistance by the offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two
sentences we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code, such
passage bears no reflection that it is the product of the considered evaluation of the relevant legal or jurisprudential
thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise so settled it required
no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot
see how Empelis can contribute to our present debate, except for the bare fact that it proves that the Court had once
deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as a precedent for
frustrated theft, its doctrinal value is extremely compromised by the erroneous legal premises that inform it, and also
by the fact that it has not been entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction.
Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot present any efficacious
argument to persuade us in this case. Insofar as Empelis may imply that convictions for frustrated theft are beyond
cavil in this jurisdiction, that decision is subject to reassessment.

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de España was then in place. The
definition of the crime of theft, as provided then, read as follows:

Son reos de hurto:

1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni fuerza en las cosas, toman las
cosas muebles ajenas sin la voluntad de su dueño.

2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co intención de lucro.

3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los casos previstos en los
artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo párrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed
down. However, the said code would be revised again in 1932, and several times thereafter. In fact, under the
Codigo Penal Español de 1995, the crime of theft is now simply defined as "[e]l que, con ánimo de lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado"82

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of the property is
not an element or a statutory characteristic of the crime. It does appear that the principle originated and perhaps
was fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal
de España. Therein, he raised at least three questions for the reader whether the crime of frustrated or
consummated theft had occurred. The passage cited in Diño was actually utilized by Viada to answer the question
whether frustrated or consummated theft was committed "[e]l que en el momento mismo de apoderarse de la cosa
ajena, viéndose sorprendido, la arroja al suelo."83 Even as the answer was as stated in Diño, and was indeed
derived from the 1888 decision of the Supreme Court of Spain, that decision’s factual predicate occasioning the
statement was apparently very different from Diño, for it appears that the 1888 decision involved an accused who
was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a mannequin, and
who then proceeded to throw away the garment as he fled.84

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme
Court of Spain that have held to that effect.85 A few decades later, the esteemed Eugenio Cuello Calón pointed out
the inconsistent application by the Spanish Supreme Court with respect to frustrated theft.

Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro
que los conducia a otro que tenían preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la
intervención de la policia situada en el local donde se realizó la sustracción que impidió pudieran los reos disponer
de lo sustraído, 30 de octubre 1950. Hay "por lo menos" frustración, si existe apoderamiento, pero el culpale no
llega a disponer de la cosa, 12 abril 1930; hay frustración "muy próxima" cuando el culpable es detenido por el
perjudicado acto seguido de cometer la sustracción, 28 febrero 1931. Algunos fallos han considerado la existencia
de frustración cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, éstos, conforme a lo
antes expuesto, son hurtos consumados.86
Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually possible:

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la
disposición del agente. Con este criterio coincide la doctrina sentada últimamente porla jurisprudencia española que
generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y ésta quede por tiempo
más o menos duradero bajo su poder. El hecho de que éste pueda aprovecharse o no de lo hurtado es indiferente.
El delito no pierde su carácter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere
recuperada. No se concibe la frustración, pues es muy dificil que el que hace cuanto es necesario para la
consumación del hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante,
declara hurtos frustrados son verdaderos delitos consumados.87 (Emphasis supplied)

Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish
Supreme Court decisions on the matter, Cuello Calón actually set forth his own thought that questioned whether
theft could truly be frustrated, since "pues es muy dificil que el que hace cuanto es necesario para la consumación
del hurto no lo consume efectivamente." Otherwise put, it would be difficult to foresee how the execution of all the
acts necessary for the completion of the crime would not produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us
to accept frustrated theft, as proposed in Diño and Flores. A final ruling by the Court that there is no crime of
frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of
Cuello Calón’s position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective,
as we are not bound by the opinions of the respected Spanish commentators, conflicting as they are, to accept that
theft is capable of commission in its frustrated stage. Further, if we ask the question whether there is a mandate of
statute or precedent that must compel us to adopt the Diño and Flores doctrines, the answer has to be in the
negative. If we did so, it would arise not out of obeisance to an inexorably higher command, but from the exercise of
the function of statutory interpretation that comes as part and parcel of judicial review, and a function that allows
breathing room for a variety of theorems in competition until one is ultimately adopted by this Court.

V.

The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature,
through statute, to define what constitutes a particular crime in this jurisdiction. It is the legislature, as
representatives of the sovereign people, which determines which acts or combination of acts are criminal in nature.
Judicial interpretation of penal laws should be aligned with what was the evident legislative intent, as expressed
primarily in the language of the law as it defines the crime. It is Congress, not the courts, which is to define a crime,
and ordain its punishment.88 The courts cannot arrogate the power to introduce a new element of a crime which was
unintended by the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a "narrow interpretation" is appropriate. "The Court must take heed of language,
legislative history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids."89

With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability of the offender to freely
dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in
Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. To
restate what this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the
Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3)
that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that
the taking be accomplished without the use of violence against or intimidation of persons or force upon things.90

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal
property of another without the latter’s consent. While the Diño/Flores dictum is considerate to the mindset of the
offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender,
compounded by the deprivation of property on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is
again, when is the crime of theft produced? There would be all but certain unanimity in the position that theft is
produced when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that
perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of
execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner
alone has already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquino’s
commentaries, as earlier cited, that "[i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the thing was
frustrated."91

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of
"taking" itself, in that there could be no true taking until the actor obtains such degree of control over the stolen item.
But even if this were correct, the effect would be to downgrade the crime to its attempted, and not frustrated stage,
for it would mean that not all the acts of execution have not been completed, the "taking not having been
accomplished." Perhaps this point could serve as fertile ground for future discussion, but our concern now is
whether there is indeed a crime of frustrated theft, and such consideration proves ultimately immaterial to that
question. Moreover, such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired physical
possession of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a
spot in the parking lot, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no opportunity to dispose of the same.92 And long ago, we
asserted in People v. Avila:93

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the physical
power of the thief, which idea is qualified by other conditions, such as that the taking must be effected animo
lucrandi and without the consent of the owner; and it will be here noted that the definition does not require that the
taking should be effected against the will of the owner but merely that it should be without his consent, a distinction
of no slight importance.94

Insofar as we consider the present question, "unlawful taking" is most material in this respect. Unlawful taking, which
is the deprivation of one’s personal property, is the element which produces the felony in its consummated stage. At
the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all.

With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot
have a frustrated stage. Theft can only be attempted or consummated.

Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained
possession over the stolen items, the effect of the felony has been produced as there has been deprivation of
property. The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact
that the owners have already been deprived of their right to possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule —that the inability of the offender to freely dispose of
the stolen property frustrates the theft — would introduce a convenient defense for the accused which does not
reflect any legislated intent,95 since the Court would have carved a viable means for offenders to seek a mitigated
penalty under applied circumstances that do not admit of easy classification. It is difficult to formulate definite
standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the
psychological belief of the offender at the time of the commission of the crime, as implied in Diño?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the
property, the location of the property, the number and identity of people present at the scene of the crime, the
number and identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the
manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility
or edibility of the stolen item would come into account, relevant as that would be on whether such property is
capable of free disposal at any stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed
deprived of property by one who intended to produce such deprivation for reasons of gain. For such will remain the
presumed fact if frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have
been completed. If the facts establish the non-completion of the taking due to these peculiar circumstances, the
effect could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been completed, causing the unlawful
deprivation of property, and ultimately the consummation of the theft.

Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the
legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in
such fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly
allows that the "free disposition of the items stolen" is in any way determinative of whether the crime of theft has
been produced. Diño itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later
Flores was ultimately content in relying on Diño alone for legal support. These cases do not enjoy the weight of
stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them susceptible to
reversal. The same holds true of Empilis, a regrettably stray decision which has not since found favor from this
Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched
the success of his appeal on our acceptance of the Diño and Flores rulings, his petition must be denied, for we
decline to adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be
no frustrated theft under the Revised Penal Code does not detract from the correctness of this conclusion. It will
take considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our
deference to Viada yields to the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-38725 October 31, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
PEDRO MANABA, defendant-appellant.

Jose Ma. Cavanna for appellant.

Office of the Solicitor-General Hilado for appellee.

VICKERS, J.:

This is an appeal from a decision of Judge Eulalio Garcia in this Court of First Instance of Oriental Negros in criminal
case No. 1827 dated November 15, 1932, finding the defendant guilty of rape and sentencing him to suffer
seventeen years and four months of reclusion temporal, and the accessory penalties of the law, to indemnify the
offended party, Celestina Adapon, in the amount of P500, to maintain the offspring, if any, at P5 a month until said
offspring should become of age, and to pay the costs.

The defendant appealed to this court, and his attorney de oficio now makes the following assignments of error:

1. El juzgado a quo erro al no estimar en favor del acusado apelante la defensa de double jeopardy o legal
jeopardy que ha interpuesto.

2. El Juzgado a quo erro al no declarar insuficientes las pruebas de identificacion del acusado apelante.

3. El Juzgado a quo tambien erro al pasar por alto las incoherencias de los testigos de la acusacion y al no
declarar que no se ha establecido fuera de toda duda la responsabilidad del apelante.

4. El Juzgado a quo erro al condenar al acusado apelante por el delito de violacion y al no acceder a su
mocion de nueva vista.

It appears that on May 10, 1932, the chief of police of Dumaguete subscribed and swore to a criminal complaint
wherein he charged Pedro Manaba with the crime of rape, committed on the person of Celestina Adapon. This
complaint was filed with the justice of the peace of Dumaguete on June 1, 1932 and in due course the case reached
the Court of First Instance. The accused was tried and convicted, but on motion of the attorney for the defendant the
judgment was set aside and the case dismissed on the ground that the court had no jurisdiction over the person of
the defendant or the subject matter of the action, because the complaint had not been filed by the offended party,
but by the chief of police (criminal case No. 1801).

On August 17, 1932, the offended girl subscribed and swore to a complaint charging the defendant with the crime of
rape. This complaint was filed in the Court of First Instance (criminal case No. 1872), but was referred to the justice
of the peace of Dumaguete for preliminary investigation. The defendant waived his right to the preliminary
investigation, but asked for the dismissal of the complaint on the ground that he had previously been placed in
jeopardy for the same offense. This motion was denied by the justice of the peace, and the case was remanded to
the Court of First Instance, where the provincial fiscal in an information charged the defendant with having
committed the crime of rape as follows: 1awphil.net
 Que en o hacia la noche del dia 9 de mayo de 1932, en el Municipio de Dumaguete, Provincia de Negros
Oriental, Islas Filipinas, y dentro de la jurisdiccion de este Juzgado. el referido acusado Pedro Manaba,
aprovechandose de la oscuridad de la noche y mediante fuerza, violencia e intimidacion, voluntaria, ilegal y
criminalmente yacio y tuvo acceso carnal con una niña llamada Celestina Adapon, contra la voluntad de
esta. El acusado Pedro Manaba ya ha sido convicto por Juzgado competente y en sentencia firme por este
mismo delito de violacion.

Hecho cometido con infraccion de la ley.

The defendant renewed his motion for dismissal in the case on the ground of double jeopardy, but his motion was
denied; and upon the termination of the trial the defendant was found guilty and sentenced as hereinabove stated.

Whether the defendant was placed in jeopardy for the second time or not when he was tried in the present case
depends on whether or not he was tried on a valid complaint in the first case. The offense in question was
committed on May 9, 1932, or subsequent to the date when the Revised Penal Code became effective.

The third paragraph of the article 344 of the Revised Penal Code, which relates to the prosecution of the crimes of
adultery, concubinage, seduction, rape and acts of lasciviousness reads as follows:

The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a
complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the
offender has been expressly pardoned by the above-named persons, as the case may be.

The Spanish text of this paragraph is as follows:

Tampoco puede procederse por causa de estupro, rapto, violacion o abusos deshonestos, sino en virtud de
denuncia de la parte agraviada, o de sus padres, o abuelos o tutor, ni despues de haberse otorgado al
ofensor, perdon expreso por dicha partes, segun los casos.

It will be observed that the Spanish equivalent of the word "filed" is not found in the Spanish text, which is
controlling, as it was the Spanish text of the Revised Penal Code that was approved by the Legislature.

The first complaint filed against the defendant was signed and sworn to by the chief of police of Dumaguete. As it
was not the complaint of the offended party, it was not a valid complaint in accordance with the law. The judgment of
the court was therefore void for lack of jurisdiction over the subject matter, and the defendant was never in jeopardy.

It might be observed in this connection that the judgment was set aside and the case dismissed on the motion of
defendant's attorney, who subsequently set up the plea of double jeopardy in the present case.

The other assignments of error relate to the sufficiency of the evidence, which in our opinion fully sustains the
findings of the trial judge.

The recommendation of the Solicitor-General is erroneous in several respects, chiefly due to the fact that it is based
on the decision of July 30, 1932 that was set aside, and not on the decision now under consideration. The accused
should not be ordered to acknowledge the offspring, if should there be any, because the record shows that the
accused is a married man.

It appears that the lower court should have taken into consideration the aggravating circumstances of nocturnity.
The defendant is therefore sentenced to suffer seventeen years, four months, and one day of reclusion temporal, to
indemnify the offended party, Celestina Adapon, in the sum of P500, and to support the offspring, if any. As thus
modified, the decision appealed from is affirmed, with the costs of both instances against the appellant.

Street, Abad Santos, Imperial, and Butte, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-3246 November 29, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ABELARDO FORMIGONES, defendant-appellant.

Luis Contreras for appellant.

Office of the Solicitor General Felix Bautista Angelo and Solicitor Felix V. Makasiar for appellee.

MONTEMAYOR, J.:

This is an appeal from the decision of the Court of First Instance of Camarines Sur finding the appellant guilty of parricide
and sentencing him to reclusion perpetua, to indemnify the heirs of the deceased in the amount of P2,000, and to pay the
costs. The following facts are not disputed.

In the month of November, 1946, the defendant Abelardo Formigones was living on his farm in Bahao, Libmanan,
municipality of Sipocot, Camarines Sur, with his wife, Julia Agricola, and his five children. From there they went to live in
the house of his half-brother, Zacarias Formigones, in the barrio of Binahian of the same municipality of Sipocot, to find
employment as harvesters of palay. After about a month's stay or rather on December 28, 1946, late in the afternoon,
Julia was sitting at the head of the stairs of the house. The accused, without any previous quarrel or provocation
whatsoever, took his bolo from the wall of the house and stabbed his wife, Julia, in the back, the blade penetrating the
right lung and causing a severe hemorrhage resulting in her death not long thereafter. The blow sent Julia toppling down
the stairs to the ground, immediately followed by her husband Abelardo who, taking her up in his arms, carried her up the
house, laid her on the floor of the living room and then lay down beside her. In this position he was found by the people
who came in response to the shouts for help made by his eldest daughter, Irene Formigones, who witnessed and testified
to the stabbing of her mother by her father.

Investigated by the Constabulary, defendant Abelardo signed a written statement, Exhibit D, wherein he admitted that he
killed The motive was admittedly of jealousy because according to his statement he used to have quarrels with his wife for
the reason that he often saw her in the company of his brother Zacarias; that he suspected that the two were maintaining
illicit relations because he noticed that his had become indifferent to him (defendant).

During the preliminary investigation conducted by the justice of the peace of Sipocot, the accused pleaded guilty, as
shown by Exhibit E. At the trial of the case in the Court of First Instance, the defendant entered a plea of not guilty, but did
not testify. His counsel presented the testimony of two guards of the provincial jail where Abelardo was confined to the
effect that his conduct there was rather strange and that he behaved like an insane person; that sometimes he would
remove his clothes and go stark naked in the presence of his fellow prisoners; that at times he would remain silent and
indifferent to his surroundings; that he would refused to take a bath and wash his clothes until forced by the prison
authorities; and that sometimes he would sing in chorus with his fellow prisoners, or even alone by himself without being
asked; and that once when the door of his cell was opened, he suddenly darted from inside into the prison compound
apparently in an attempt to regain his liberty.

The appeal is based merely on the theory that the appellant is an imbecile and therefore exempt from criminal liability
under article 12 of the Revised Penal Code. The trial court rejected this same theory and we are inclined to agree with the
lower court. According to the very witness of the defendant, Dr. Francisco Gomez, who examined him, it was his opinion
that Abelardo was suffering only from feeblemindedness and not imbecility and that he could distinguish right from wrong.

In order that a person could be regarded as an imbecile within the meaning of article 12 of the Revised Penal Code so as
to be exempt from criminal liability, he must be deprived completely of reason or discernment and freedom of the will at
the time of committing the crime. The provisions of article 12 of the Revised Penal Code are copied from and based on
paragraph 1, article 8, of the old Penal Code of Spain. Consequently, the decisions of the Supreme Court of Spain
interpreting and applying said provisions are pertinent and applicable. We quote Judge Guillermo Guevara on his
Commentaries on the Revised Penal Code, 4th Edition, pages 42 to 43:
 The Supreme Court of Spain held that in order that this exempting circumstances may be taken into account, it is
necessary that there be a complete deprivation of intelligence in committing the act, that is, that the accused be
deprived of reason; that there be no responsibility for his own acts; that he acts without the least
discernment;1 that there be a complete absence of the power to discern, or that there be a total deprivation of
freedom of the will. For this reason, it was held that the imbecility or insanity at the time of the commission of the
act should absolutely deprive a person of intelligence or freedom of will, because mere abnormality of his mental
faculties does not exclude imputability. 2

The Supreme Court of Spain likewise held that deaf-muteness cannot be equaled to imbecility or insanity.

The allegation of insanity or imbecility must be clearly proved. Without positive evidence that the defendant had
previously lost his reason or was demented, a few moments prior to or during the perpetration of the crime, it will
be presumed that he was in a normal condition. Acts penalized by law are always reputed to be voluntary, and it
is improper to conclude that a person acted unconsciously, in order to relieve him from liability, on the basis of his
mental condition, unless his insanity and absence of will are proved.

As to the strange behaviour of the accused during his confinement, assuming that it was not feigned to stimulate insanity,
it may be attributed either to his being feebleminded or eccentric, or to a morbid mental condition produced by remorse at
having killed his wife. From the case of United States vs. Vaquilar (27 Phil. 88), we quote the following syllabus:

Testimony of eye-witnesses to a parricide, which goes no further than to indicate that the accused was moved by
a wayward or hysterical burst of anger or passion, and other testimony to the effect that, while in confinement
awaiting trial, defendant acted absentmindedly at times, is not sufficient to establish the defense of insanity. The
conduct of the defendant while in confinement appears to have been due to a morbid mental condition produced
by remorse.

After a careful study of the record, we are convinced that the appellant is not an imbecile. According to the evidence,
during his marriage of about 16 years, he has not done anything or conducted himself in anyway so as to warrant an
opinion that he was or is an imbecile. He regularly and dutifully cultivated his farm, raised five children, and supported his
family and even maintained in school his children of school age, with the fruits of his work. Occasionally, as a side line he
made copra. And a man who could feel the pangs of jealousy to take violent measure to the extent of killing his wife whom
he suspected of being unfaithful to him, in the belief that in doing so he was vindicating his honor, could hardly be
regarded as an imbecile. Whether or not his suspicions were justified, is of little or no import. The fact is that he believed
her faithless.

But to show that his feeling of jealousy had some color of justification and was not a mere product of hallucination and
aberrations of a disordered mind as that an imbecile or a lunatic, there is evidence to the following effect. In addition to the
observations made by appellant in his written statement Exhibit D, it is said that when he and his wife first went to live in
the house of his half brother, Zacarias Formigones, the latter was living with his grandmother, and his house was vacant.
However, after the family of Abelardo was settled in the house, Zacarias not only frequented said house but also used to
sleep there nights. All this may have aroused and even partly confirmed the suspicions of Abelardo, at least to his way of
thinking.

The appellant has all the sympathies of the Court. He seems to be one of those unfortunate beings, simple, and even
feebleminded, whose faculties have not been fully developed. His action in picking up the body of his wife after she fell
down to the ground, dead, taking her upstairs, laying her on the floor, and lying beside her for hours, shows his feeling of
remorse at having killed his loved one though he thought that she has betrayed him. Although he did not exactly surrender
to the authorities, still he made no effort to flee and compel the police to hunt him down and arrest him. In his written
statement he readily admitted that he killed his wife, and at the trial he made no effort to deny or repudiate said written
statement, thus saving the government all the trouble and expense of catching him, and insuring his conviction.

Although the deceased was struck in the back, we are not prepared to find that the aggravating circumstance of treachery
attended the commission of the crime. It seems that the prosecution was not intent or proving it. At least said aggravating
circumstance was not alleged in the complaint either in the justice of the peace court or in the Court of First Instance. We
are inclined to give him the benefit of the doubt and we therefore declined to find the existence of this aggravating
circumstance. On the other hand, the fact that the accused is feebleminded warrants the finding in his favor of the
mitigating circumstance provided for in either paragraph 8 or paragraph 9 of article 13 of the Revised Penal Code, namely
that the accused is "suffering some physical defect which thus restricts his means of action, defense, or communication
with his fellow beings," or such illness "as would diminish the exercise of his will power." To this we may add the mitigating
circumstance in paragraph 6 of the same article, — that of having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation. The accused evidently killed his wife in a fit of jealousy.

With the presence of two mitigating circumstances without any aggravating circumstance to offset them, at first we
thought of the possible applicability of the provisions of article 64, paragraph 5 of the Revised Penal Code for the purpose
of imposing the penalty next lower to that prescribed by article 246 for parricide, which is reclusion perpetuato death. It will
be observed however, that article 64 refers to the application of penalties which contain three periods whether it be a
single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the
provisions of articles 76 and 77, which is not true in the present case where the penalty applicable for parricide is
composed only of two indivisible penalties. On the other hand, article 63 of the same Code refers to the application of
indivisible penalties whether it be a single divisible penalty, or two indivisible penalties like that of reclusion perpetua to
death. It is therefore clear that article 63 is the one applicable in the present case.

Paragraph 2, rule 3 of said article 63 provides that when the commission of the act is attended by some mitigating
circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. Interpreting a similar legal
provision the Supreme Court in the case of United States vs. Guevara (10 Phil. 37), involving the crime of parricide, in
applying article 80, paragraph 2 (rule 3 of the old Penal Code) which corresponds to article 63, paragraph 2 (rule 3 of the
present Revised Penal Code), thru Chief Justice Arellano said the following:

And even though the court should take into consideration the presence of two mitigating circumstances of a
qualifying nature, which it can not afford to overlook, without any aggravating one, the penalty could not be
reduced to the next lower to that imposed by law, because, according to a ruling of the court of Spain, article 80
above-mentioned does not contain a precept similar to that contained in Rule 5 of article 81 (now Rule 5, art. 64
of the Rev. Penal Code.) (Decision of September 30, 1879.)

Yet, in view of the excessive penalty imposed, the strict application of which is inevitable and which, under the
law, must be sustained, this court now resorts to the discretional power conferred by paragraph 2 of article 2 of
the Penal Code; and.

Therefore, we affirm the judgment appealed from with costs, and hereby order that a proper petition be filed with
the executive branch of the Government in order that the latter, if it be deemed proper in the exercise of the
prerogative vested in it by the sovereign power, may reduce the penalty to that of the next lower.

Then, in the case of People vs. Castañeda (60 Phil. 604), another parricide case, the Supreme Court in affirming the
judgment of conviction sentencing defendant to reclusion perpetua, said that notwithstanding the numerous mitigating
circumstances found to exist, inasmuch as the penalty for parricide as fixed by article 246 of the Revised Penal Code is
composed of two indivisible penalties, namely, reclusion perpetua to death, paragraph 3 of article 63 of the said Code
must be applied. The Court further observed:

We are likewise convinced that appellant did not have that malice nor has exhibited such moral turpitude as
requires life imprisonment, and therefore under the provisions of article 5 of the Revised Penal Code, we
respectfully invite the attention of the Chief Executive to the case with a view to executive clemency after
appellant has served an appreciable amount of confinement.

In conclusion, we find the appellant guilty of parricide and we hereby affirm the judgment of the lower court with the
modification that the appellant will be credited with one-half of any preventive imprisonment he has undergone. Appellant
will pay costs.

Following the attitude adopted and the action taken by this same court in the two cases above cited, and believing that the
appellant is entitled to a lighter penalty, this case should be brought to the attention of the Chief Executive who, in his
discretion may reduce the penalty to that next lower to reclusion perpetua to death or otherwise apply executive clemency
in the manner he sees fit.
 SECOND DIVISION

G.R. No. 138962 October 4, 2002

PRESCILLA TUATES and ANDRES DE LA PAZ, petitioners,

vs.
HON. LUCAS P. BERSAMIN, as Presiding Judge, Branch 96, RTC Quezon City,
People of the Philippines and I.C. Construction, Inc., respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to annul the following: (1)
Decision dated April 30, 1999 and Resolution dated June 9, 1999, rendered by the Court of Appeals in CA-G.R. SP
No. 46845;1 (2) Decision dated September 10, 1997 and the Order dated January 28, 1998 issued by the Regional
Trial Court of Quezon City (Branch 96) in Criminal Cases Nos. Q-97-70428 and Q-97-70429;2 and (3) Decision
dated December 16, 1996 of the Metropolitan Trial Court of Quezon City (Branch 38) in Criminal Cases Nos. 38-
0130 and 38-0131.3

The facts are as follows:

Convicted by the MTC-Quezon City (Branch 38) of the crime of Violation of Presidential Decree No. 772 or the Anti-
Squatting Law, petitioners Prescilla Tuates and Andres de la Paz, appealed to the RTC of Quezon City (Branch 96).
Their conviction was affirmed in toto by the RTC in its decision dated September 10, 1997. Pending resolution of
their motion for reconsideration, however, Republic Act No. 8368, "An Act Repealing Presidential Decree No. 772,
entitled ‘Penalizing Squatting and Other Similar Acts’" was enacted.

In its Order, dated January 28, 1998, the RTC ruled that only petitioners’ criminal convictions were extinguished by
R.A. 8368, and the civil aspect, i.e., the removal of petitioners’ illegally constructed house and improvements, shall
remain executory against them.4

On a petition for review, the Court of Appeals sustained the ruling of the RTC and denied due course to the petition
per its Decision, dated April 30, 1999.5 Petitioners’ motion for reconsideration was likewise denied by the CA in its
Resolution dated June 9, 1999.6

Hence, the present recourse taken by petitioners, raising the following issues:

"1. That petitioners, being charged with Violation of Presidential Decree No. 772, the express repeal of said
decree absolves the petitioners of any criminal or civil liability;

"2. That public respondent erred in holding that ‘the civil aspect of the judgment rendered x x x shall be
executory against the accused; and

"3. That the Honorable Court of Appeals, in affirming the Order of the Regional Trial Court of Quezon City
(Branch 96), dated June 9, 1999, grossly erred in ignoring applicable laws and jurisprudence."7
Petitioners argue that the repeal of P.D. 772 by R.A. 8368 carries with it the extinction of both the criminal and civil
aspects of the crime. Private respondent, however, insists that public respondents were correct in ruling that only
the criminal liability was absolved and the civil liability remains inasmuch as it was not extinguished in accordance
with Article 113 of the Revised Penal Code, which reads:

"ART. 113. Obligation to satisfy civil liability. -- Except in case of extinction of his civil liability as provided in the next
preceding article, the offender shall continue to be obliged to satisfy the civil liability resulting from the crime
committed by him, notwithstanding the fact that he has served his sentence consisting of deprivation of liberty or
other rights, or has not been required to serve the same by reason of amnesty, pardon, commutation of sentence or
any other reason."

In its Motion to Deny Due Course, private respondent also argues that the petition should now be denied as its title
to the land subject of this case has already been adjudged in its favor. 8

In its Comment, the Office of the Solicitor General, in behalf of public respondents, agrees with petitioners that both
the criminal and civil liability were rendered extinct with the repeal of P.D. 772, and recommended that the assailed
issuances be reversed and set aside.

We find the petition to be meritorious.

Republic Act No. 8368, otherwise known as the "Anti-Squatting Law Repeal Act of 1997," provides:

"SECTION 1. Title. -- This Act shall be known as the ‘Anti-Squatting Law Repeal Act of 1997.’

"SEC. 2. Repeal. -- Presidential Decree No. 772, entitled ‘Penalizing Squatting and Other Similar Acts’ is
hereby repealed.

"SEC. 3. Effect on Pending Cases. -- All pending cases under the provisions of Presidential Decree No. 772
shall be dismissed upon the effectivity of this Act.

"SEC. 4. Effect on Republic Act No. 7279. -- Nothing herein shall be construed to nullify, eliminate or
diminish in any way Section 27 of Republic Act No. 7279 or any of its provisions relative to sanctions against
professional squatters and squatting syndicates.

"SEC. 5. Effectivity. -- This Act shall take effect thirty (30) days after its publication in two (2) newspapers of
national circulation.

"Approved, October 27, 1997."9

The repeal of P.D. No. 772 under Section 2 of R.A. No. 8368 is explicit, categorical, definite and absolute. As such,
the act that was penalized by P.D. 772, i.e., squatting, ceases to be criminal under R.A. 8368, and the previous
offense is obliterated. 10

In the same vein, the absolute repeal of P.D. 772 has the effect of depriving a court of its authority to punish a
person charged with violation of the old law prior to its repeal. This is because an unqualified repeal of a penal law
constitutes a legislative act of rendering legal what had been previously declared as illegal, such that the offense no
longer exists and it is as if the person who committed it never did so.11 Specially so, as in the present case where it
is unconditionally stated in Section 3 of R.A. No. 8368 that: "(A)ll pending cases under the provisions of Presidential
Decree No. 772 shall be dismissed upon the effectivity of this Act."12 Obviously, it was the clear intent of the law to
decriminalize or do away with the crime of squatting. Hence, there being no criminal liability, there is likewise no civil
liability because the latter is rooted in the former. Where an act or omission is not a crime, no person can be held
liable for such act or omission. There being no delict, logically, civil liability ex delicto is out of the question. 13

In fact, in People v. Leachon, Jr.14 we implicitly recognized the unconditional repeal of P.D. 772 by R.A. 8368 when
we ordered the dismissal of the petition filed in said case, without any qualification whatsoever, because of the
enactment of R.A. 8368, viz.:
"But the foregoing antecedent facts and proceedings notwithstanding, the petition cannot now prosper because on
October 27, 1997, Republic Act No. 8368, entitled ‘An Act Repealing Presidential Decree No. 772 Entitled
‘Penalizing Squatting and Other Similar Acts’ was "enacted. Section 3 of the said Act provides that ‘all pending
cases under the provisions of Presidential Decree No. 772 shall be dismissed upon the effectivity of this Act.’"15

This is not to say, however, that people now have the unbridled license to illegally occupy lands they do not own.
R.A. No. 836816 was unanimously approved by the members of the Senate of the Philippines present on its third
reading.17 The legislature considered it a major piece of legislation on the country’s anti-poverty program18 as it
sought to confront the perennial problem of poverty at its root, abolish an otherwise inutile and oppressive law, and
pave the way for a genuine urban housing and land reform program. Senate records reveal that it is the manifest
intent of the authors of R.A. 8368 to decriminalize squatting but does not encourage or protect acts of squatting on
somebody else’s land.19 The law is not intended to compromise the property rights of legitimate
landowners.20Recourse may be had in cases of violation of their property rights, such as those provided for in
Republic Act No. 7279 or the Urban Development and Housing Act, penalizing professional squatters and squatting
syndicates as defined therein, who commit nefarious and illegal activities21; the Revised Penal Code providing for
criminal prosecution in cases of Trespass to Property,22 Occupation of Real Property or Usurpation of Real Rights in
Property,23 and similar violations, and, cases for Forcible Entry and Unlawful Detainer under the Rules of Court,24as
well as civil liability for Damages under the Civil Code.

Considering that prosecution for criminal as well as civil liability under P.D. 772 has been rendered nugatory with the
passage of R.A. 8368, both criminal and civil aspects of Criminal Cases Nos. Q-97-70428 and Q-97-70429 in the
RTC as well as Criminal Cases Nos. 38-0130 and 38-0131 in the MTC filed against petitioners should be dismissed.

WHEREFORE, finding the petition for review to be with merit, the Decision dated April 30, 1999 of the Court of
Appeals in CA-G.R. SP No. 46845, is REVERSED and SET ASIDE. A new judgment is hereby entered modifying
the Decision dated September 10, 1997 of the Regional Trial Court of Quezon City (Branch 96) in Criminal Cases
No. Q-97-70428 and Q-97-70429 and the Decision dated December 16, 1996 issued by the Metropolitan Trial Court
of Quezon City (Branch 38), to the effect that the dismissal of the aforementioned criminal cases likewise include the
dismissal of the civil aspects thereof, without prejudice to the filing of civil and/or criminal actions under the
prevailing laws.

No costs.

SO ORDERED.
 SECOND DIVISION

G.R. No. 125359 September 4, 2001

ROBERTO S. BENEDICTO and HECTOR T. RIVERA, petitioners,

vs.
THE COURT OF APPEALS, HON. GUILLERMO L. LOJA, SR., PRESIDING JUDGE, REGIONAL TRIAL COURT
OF MANILA, BRANCH 26, and PEOPLE OF THE PHILIPPINES, respondents.

QUISUMBING, J.:

Assailed in this petition is the consolidated decision rendered on May 23, 1996, by the Court of Appeals in CA-G.R.
SP No. 35928 and CA-G.R. SP No. 35719. CA-G.R. SP No. 35928 had affirmed the order dated September 6,
1994, of the Regional Trial Court, Manila, Branch 26, insofar as it denied petitioners’ respective Motions to Quash
the Informations in twenty-five (25) criminal cases for violation of Central Bank Circular No. 960. Therein included
were informations involving: (a) consolidated Criminal Cases Nos. 91-101879 to 91-101883 filed against Mrs.
Imelda R. Marcos, Roberto S. Benedicto, and Hector T. Rivera; (b) consolidated Criminal Cases Nos. 91-101884 to
91-101892 filed against Mrs. Marcos and Benedicto; and (c) Criminal Cases Nos. 92-101959 to 92-101969 also
against Mrs. Marcos and Benedicto. Note, however, that the Court of Appeals already dismissed Criminal Case No.
91-101884.

The factual antecedents of the instant petition are as follows:

On December 27, 1991, Mrs. Imelda Marcos and Messrs. Benedicto and Rivera were indicted for violation of
Section 10 of Circular No. 9601 relation to Section 342 of the Central Bank Act (Republic Act No. 265, as amended)
in five Informations filed with the Regional Trial Court of Manila. Docketed as Criminal Cases Nos. 91-101879 to 91-
101883, the charge sheets alleged that the trio failed to submit reports of their foreign exchange earnings from
abroad and/or failed to register with the Foreign Exchange Department of the Central Bank within the period
mandated by Circular No. 960. Said Circular prohibited natural and juridical persons from maintaining foreign
exchange accounts abroad without prior authorization from the Central Bank.3 It also required all residents of the
Philippines who habitually earned or received foreign currencies from invisibles, either locally or abroad, to report
such earnings or receipts to the Central Bank. Violations of the Circular were punishable as a criminal offense under
Section 34 of the Central Bank Act.

That same day, nine additional Informations charging Mrs. Marcos and Benedicto with the same offense, but
involving different accounts, were filed with the Manila RTC, which docketed these as Criminal Cases Nos. 91-
101884 to 91-101892. The accusatory portion of the charge sheet in Criminal Case No. 91-101888 reads:

That from September 1, 1983 up to 1987, both dates inclusive, and for sometime thereafter, both accused,
conspiring and confederating with each other and with the late President Ferdinand E. Marcos, all residents
of Manila, Philippines, and within the jurisdiction of this Honorable Court, did then and there wilfully,
unlawfully and feloniously fail to submit reports in the prescribed form and/or register with the Foreign
Exchange Department of the Central Bank within 90 days from October 21, 1983 as required of them being
residents habitually/customarily earning, acquiring or receiving foreign exchange from whatever source or
from invisibles locally or from abroad, despite the fact they actually earned interests regularly every six (6)
months for the first two years and then quarterly thereafter for their investment of $50-million, later reduced
to $25-million in December 1985, in Philippine-issued dollar denominated treasury notes with floating rates
and in bearer form, in the name of Bank Hofmann, AG, Zuring, Switzerland, for the benefit of Avertina
Foundation, their front organization established for economic advancement purposes with secret foreign
 exchange account Category (Rubric) C.A.R. No. 211925-02 in Swiss Credit Bank (also known as SKA) in
Zurich, Switzerland, which earned, acquired or received for the accused Imelda Romualdez Marcos and her
late husband an interest of $2,267,892 as of December 16, 1985 which was remitted to Bank Hofmann, AG,
through Citibank, New York, United States of America, for the credit of said Avertina account on December
19, 1985, aside from the redemption of $25 million (one-half of the original $50-M) as of December 16, 1985
and outwardly remitted from the Philippines in the amounts of $7,495,297.49 and $17,489,062.50 on
December 18, 1985 for further investment outside the Philippine without first complying with the Central
Bank reporting/registering requirements. 1âwphi1.nêt

CONTRARY TO LAW.4

The other charge sheets were similarly worded except the days of the commission of the offenses, the name(s) of
the alleged dummy or dummies, the amounts in the foreign exchange accounts maintained, and the names of the
foreign banks where such accounts were held by the accused.

On January 3, 1992, eleven more Informations accusing Mrs. Marcos and Benedicto of the same offense, again in
relation to different accounts, were filed with the same court, docketed as Criminal Cases Nos. 92-101959 to 92-
101969. The Informations were similarly worded as the earlier indictments, save for the details as to the dates of the
violations of Circular No. 960, the identities of the dummies used, the balances and sources of the earnings, and the
names of the foreign banks where these accounts were maintained.

All of the aforementioned criminal cases were consolidated before Branch 26 of the said trial court.

On the same day that Criminal Cases Nos. 92-101959 to 92-101969 were filed, the Central Bank issued Circular
No. 13185 which revised the rules governing non-trade foreign exchange transactions. It took effect on January 20,
1992.

On August 24, 1992, the Central Bank, pursuant to the government’s policy of further liberalizing foreign exchange
transactions, came out with Circular No. 1356,6 which amended Circular No. 1318. Circular No. 1353 deleted the
requirement of prior Central Bank approval for foreign exchange-funded expenditures obtained from the banking
system.

Both of the aforementioned circulars, however, contained a saving clause, excepting from their coverage pending
criminal actions involving violations of Circular No. 960 and, in the case of Circular No. 1353, violations of both
Circular No. 960 and Circular No. 1318.

On September 19, 1993, the government allowed petitioners Benedicto and Rivera to return to the Philippines, on
condition that they face the various criminal charges instituted against them, including the dollar-salting cases.
Petitioners posted bail in the latter cases.

On February 28, 1994, petitioners Benedicto and Rivera were arraigned. Both pleaded not guilty to the charges of
violating Central Bank Circular No. 960. Mrs. Marcos had earlier entered a similar plea during her arraignment for
the same offense on February 12, 1992.

On August 11, 1994, petitioners moved to quash all the Informations filed against them in Criminal Cases Nos. 91-
101879 to 91-101883; 91-101884 to 91-101892, and 91-101959 to 91-101969. Their motion was grounded on lack
of jurisdiction, forum shopping, extinction of criminal liability with the repeal of Circular No. 960, prescription,
exemption from the Central Bank’s reporting requirement, and the grant of absolute immunity as a result of a
compromise agreement entered into with the government.

On September 6, 1994, the trial court denied petitioners’ motion. A similar motion filed on May 23, 1994 by Mrs.
Marcos seeking to dismiss the dollar-salting cases against her due to the repeal of Circular No. 960 had earlier been
denied by the trial court in its order dated June 9, 1994. Petitioners then filed a motion for reconsideration, but the
trial court likewise denied this motion on October 18, 1994.

On November 21, 1994, petitioners moved for leave to file a second motion for reconsideration. The trial court, in its
order of November 23, 1994, denied petitioners’ motion and set the consolidated cases for trial on January 5, 1995.
Two separate petitions for certiorari and prohibition, with similar prayers for temporary restraining orders and/or writs
of preliminary injunction, docketed as CA-G.R. SP No. 35719 and CA-G.R. SP No. 35928, were respectively filed by
Mrs. Marcos and petitioners with the Court of Appeals. Finding that both cases involved violations of Central Bank
Circular No. 960, the appellate court consolidated the two cases.

On May 23, 1996, the Court of Appeals disposed of the consolidated cases as follows:

WHEREFORE, finding no grave abuse of discretion on the part of respondent Judge in denying petitioners’
respective Motions to Quash, except that with respect to Criminal Case No. 91-101884, the instant petitions
are hereby DISMISSED for lack of merit. The assailed September 6, 1994 Order, in so far as it denied the
Motion to Quash Criminal Case No. 91-101884 is hereby nullified and set aside, and said case is hereby
dismissed. Costs against petitioners.

SO ORDERED.7

Dissatisfied with the said decision of the court a quo, except with respect to the portion ordering the dismissal of
Criminal Case No. 91-101884, petitioners filed the instant petition, attributing the following errors to the appellate
court:

THAT THE COURT ERRED IN NOT FINDING THAT THE INFORMATIONS/CASES FILED AGAINST
PETITIONERS-APPELLANTS ARE QUASHABLE BASED ON THE FOLLOWING GROUNDS:

(A) LACK OF JURISDICTION/FORUM SHOPPING/NO VALID PRELIMINARY INVESTIGATION

(B) EXTINCTION OF CRIMINAL LIABILITY

1) REPEAL OF CB CIRCULAR NO. 960 BY CB CIRCULAR NO. 153;

2) REPEAL OF R.A. 265 BY R.A. 76538

(C) PRESCRIPTION

(D) EXEMPTION FROM CB REPORTING REQUIREMENT

GRANT OF ABSOLUTE IMMUNITY.9

Simply stated, the issues for our resolution are:

(1) Did the Court of Appeals err in denying the Motion to Quash for lack of jurisdiction on the part of the trial
court, forum shopping by the prosecution, and absence of a valid preliminary investigation?

(2) Did the repeal of Central Bank Circular No. 960 and Republic Act No. 265 by Circular No. 1353 and
Republic Act No. 7653 respectively, extinguish the criminal liability of petitioners?

(3) Had the criminal cases in violation of Circular No. 960 already prescribed?

(4) Were petitioners exempted from the application and coverage of Circular No. 960?

(5) Were petitioners’ alleged violations of Circular No. 960 covered by the absolute immunity granted in the
Compromise Agreement of November 3, 1990?

On the first issue, petitioners assail the jurisdiction of the Regional Trial Court. They aver that the dollar-salting
charges filed against them were violations of the Anti-Graft Law or Republic Act No. 3019, and the Sandiganbayan
has original and exclusive jurisdiction over their cases.
Settled is the rule that the jurisdiction of a court to try a criminal case is determined by the law in force at the time
the action is instituted.10 The 25 cases were filed in 1991-92. The applicable law on jurisdiction then was Presidential
Decree 1601.11 Under P.D. No. 1606, offenses punishable by imprisonment of not more than six years fall within the
jurisdiction of the regular trial courts, not the Sandiganbayan.12

In the instant case, all the Informations are for violations of Circular No. 960 in relation to Section 34 of the Central
Bank Act and not, as petitioners insist, for transgressions of Republic Act No. 3019. Pursuant to Section 34 of
Republic Act No. 265, violations of Circular No. 960 are punishable by imprisonment of not more than five years and
a fine of not more than P20,000.00. Since under P.D. No. 1606 the Sandiganbayan has no jurisdiction to try criminal
cases where the imposable penalty is less than six years of imprisonment, the cases against petitioners for
violations of Circular No. 960 are, therefore cognizable by the trial court. No error may thus be charged to the Court
of Appeals when it held that the RTC of Manila had jurisdiction to hear and try the dollar-salting cases.

Still on the first issue, petitioners next contend that the filing of the cases for violations of Circular No. 960 before the
RTC of Manila Constitutes forum shopping. Petitioners argue that the prosecution, in an attempt to seek a favorable
verdict from more than one tribunal, filed separate cases involving virtually the same offenses before the regular trial
courts and the Sandiganbayan. They fault the prosecution with splitting the cases. Petitioners maintain that while the
RTC cases refer only to the failure to report interest earnings on Treasury Notes, the Sandiganbayan cases seek to
penalize the act of receiving the same interest earnings on Treasury Notes in violation of the Anti-Graft Law’s
provisions on prohibited transactions. Petitioners aver that the violation of Circular No. 960 is but an element of the
offense of prohibited transactions punished under Republic Act No. 3019 and should, thus, be deemed absorbed by
the prohibited transactions cases pending before the Sandiganbayan.

For the charge of forum shopping to prosper, there must exist between an action pending in one court and another
action pending in one court and another action before another court: (a) identity of parties, or at least such parties as
represent the same interests in both actions; (b) identity of rights asserted and relief prayed for, the relief being
founded on the same facts; and (c) the identity of the two preceding particulars is such that any judgment rendered
in the other action will, regardless of which party is successful, amount to res judicata in the action under
consideration.13 Here, we find that the single act of receiving unreported interest earnings on Treasury Notes held
abroad constitutes an offense against two or more distinct and unrelated laws, Circular No. 960 and R.A. 3019. Said
laws define distinct offenses, penalize different acts, and can be applied independently.14 Hence, no fault lies at the
prosecution’s door for having instituted separate cases before separate tribunals involving the same subject matter.

With respect to the RTC cases, the receipt of the interest earnings violate Circular No. 960 in relation to Republic
Act No. 265 because the same was unreported to the Central Bank. The act to be penalized here is the failure to
report the interest earnings from the foreign exchange accounts to the proper authority. As to the anti-graft cases
before the Sandiganbayan involving the same interest earnings from the same foreign exchange accounts, the
receipt of the interest earnings transgresses Republic Act No. 3019 because the act of receiving such interest is a
prohibited transaction prejudicial to the government. What the State seeks to punish in these anti-graft cases is
the prohibited receipt of the interest earnings. In sum, there is no identity of offenses charged, and prosecution
under one law is not an obstacle to a prosecution under the other law. There is no forum shopping.

Finally, on the first issue, petitioners contend that the preliminary investigation by the Department of Justice was
invalid and in violation of their rights to due process. Petitioners argue that government’s ban on their travel
effectively prevented them from returning home and personally appearing at the preliminary investigation. Benedicto
and Rivera further point out that the joint preliminary investigation by the Department of Justice, resulted to the
charges in one set of cases before the Sandiganbayan for violations of Republic Act No. 3019 and another set
before the RTC for violation of Circular No. 960.

Preliminary investigation is not part of the due process guaranteed by the Constitution.15 It is an inquiry to determine
whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof.16 Instead, the right to a preliminary investigation is personal. It is afforded to
the accused by statute, and can be waived, either expressly or by implication.17 The waiver extends to any
irregularity in the preliminary investigation, where one was conducted.

The petition in the present case contains the following admissions:

 1. Allowed to return to the Philippines on September 19, 1993 … on the condition that he face the criminal
charges pending in courts, petitioner-appellant Benedicto, joined by his co-petitioner Rivera, lost no time in
attending to the pending criminal charges by posting bail in the above-mentioned cases.

2. Not having been afforded a real opportunity of attending the preliminary investigation because of their
forced absence from the Philippines then, petitioners-appellants invoked their right to due process thru
motions for preliminary investigation … Upon denial of their demands for preliminary investigation, the
petitioners intended to elevate the matter to the Honorable Court of Appeals and actually caused the filing of
a petition for certiorari/prohibition sometime before their arraignment but immediately caused the withdrawal
thereof … in view of the prosecution’s willingness to go to pre-trial wherein petitioner would be allowed
access to the records of preliminary investigation which they could use for purposes of filing a motion to
quash if warranted.

3. Thus, instead of remanding the Informations to the Department of Justice … respondent Judge set the
case for pre-trial in order to afford all the accused access to the records of prosecution…

xxx

5. On the basis of disclosures at the pre-trial, the petitioners-appellants Benedicto and Rivera moved for the
quashing of the informations/cases…18

The foregoing admissions lead us to conclude that petitioners have expressly waived their right to question any
supposed irregularity in the preliminary investigation or to ask for a new preliminary investigation. Petitioners, in the
above excerpts from this petition, admit posting bail immediately following their return to the country, entered their
respective pleas to the charges, and filed various motions and pleadings. By so doing, without simultaneously
demanding a proper preliminary investigation, they have waived any and all irregularities in the conduct of a
preliminary investigation.19 The trial court did not err in denying the motion to quash the informations on the ground
of want of or improperly conducted preliminary investigation. The absence of a preliminary investigation is not a
ground to quash the information.20

On the second issue, petitioners contend that they are being prosecuted for acts punishable under laws that have
already been repealed. They point to the express repeal of Central Bank Circular No. 960 by Circular Nos. 1318 and
1353 as well as the express repeal of Republic Act No. 265 by Republic Act No. 7653. Petitioners, relying on Article
22 of the Revised Penal Code,21 contend that repeal has the effect of extinguishing the right to prosecute or punish
the offense committed under the old laws.22

As a rule, an absolute repeal of a penal law has the effect of depriving a court of its authority to punish a person
charged with violation of the old law prior to its repeal.23 This is because an unqualified repeal of a penal law
constitutes a legislative act of rendering legal what had been previously declared as illegal, such that the offense no
longer exists and it is as if the person who committed it never did so. There are, however, exceptions to the rule.
One is the inclusion of a saving clause in the repealing statute that provides that the repeal shall have no effect on
pending actions.24 Another exception is where the repealing act reenacts the former statute and punishes the act
previously penalized under the old law. In such instance, the act committed before the reenactment continues to be
an offense in the statute books and pending cases are not affected, regardless of whether the new penalty to be
imposed is more favorable to the accused.25

In the instant case, it must be noted that despite the repeal of Circular No. 960, Circular No. 1353 retained the same
reportorial requirement for residents receiving earnings or profits from non-trade foreign exchange
transactions.26Second, even the most cursory glance at the repealing circulars, Circular Nos. 1318 and 1353 shows
that both contain a saving clause, expressly providing that the repeal of Circular No. 960 shall have no effect on
pending actions for violation of the latter Circular.27 A saving clause operates to except from the effect of the
repealing law what would otherwise be lost under the new law.28 In the present case, the respective saving clauses
of Circular Nos. 1318 and 1353 clearly manifest the intent to reserve the right of the State to prosecute and punish
offenses for violations of the repealed Circular No. 960, where the cases are either pending or under investigation.

Petitioners, however, insist that the repeal of Republic Act No. 265, particularly Section 34,29 by Republic Act No.
7653, removed the applicability of any special sanction for violations of any non-trade foreign exchange transactions
previously penalized by Circular No. 960. Petitioners posit that a comparison of the two provisions shows that
Section 3630 of Republic Act No. 7653 neither retained nor reinstated Section 34 of Republic Act No. 265. Since, in
creating the Bangko Sentral ng Pilipinas, Congress did not include in its charter a clause providing for the
application of Section 34 of Republic Act No. 265 to pending cases, petitioners’ pending dollar-salting cases are now
bereft of statutory penalty, the saving clause in Circular No. 1353 notwithstanding. In other words, absent a
provision in Republic Act No. 7653 expressly reviving the applicability of any penal sanction for the repealed
mandatory foreign exchange reporting regulations formerly required under Circular No. 960, violations of aforesaid
repealed Circular can no longer be prosecuted criminally.

A comparison of the old Central Bank Act and the new Bangko Sentral’s charter repealing the former show that in
consonance with the general objective of the old law and the new law "to maintain internal and external monetary
stability in the Philippines and preserve the international value of the peso,"31 both the repealed law and the
repealing statute contain a penal cause which sought to penalize in general, violations of the law as well as orders,
instructions, rules, or regulations issued by the Monetary Board. In the case of the Bangko Sentral, the scope of the
penal clause was expanded to include violations of "other pertinent banking laws enforced or implemented by
the Bangko Sentral." In the instant case, the acts of petitioners sought to be penalized are violations of rules and
regulations issued by the Monetary Board. These acts are proscribed and penalized in the penal clause of the
repealed law and this proviso for proscription and penalty was reenacted in the repealing law. We find, therefore,
that while Section 34 of Republic Act No. 265 was repealed, it was nonetheless, simultaneously reenacted in
Section 36 of Republic Act No. 7653. Where a clause or provision or a statute for the matter is simultaneously
repealed and reenacted, there is no effect, upon the rights and liabilities which have accrued under the original
statute, since the reenactment, in effect "neutralizes" the repeal and continues the law in force without
interruption.32 The rule applies to penal laws and statutes with penal provisions. Thus, the repeal of a penal law or
provision, under which a person is charged with violation thereof and its simultaneous reenactment penalizing the
same act done by him under the old law, will neither preclude the accused’s prosecution nor deprive the court of its
jurisdiction to hear and try his case.33 As pointed out earlier, the act penalized before the reenactment continues to
remain an offense and pending cases are unaffected. Therefore, the repeal of Republic Act No. 265 by Republic Act
No. 7653 did not extinguish the criminal liability of petitioners for transgressions of Circular No. 960 and cannot,
under the circumstances of this case, be made a basis for quashing the indictments against petitioners.

Petitioners, however, point out that Section 36 of Republic Act No. 7653, in reenacting Section 34 of the old Central
Act, increased the penalty for violations of rules and regulations issued by the Monetary Board. They claim that such
increase in the penalty would give Republic Act No. 7653 an ex post facto application, violating the Bill of Rights.34

Is Section 36 of Republic Act No. 7653 and ex post facto legislation?

An ex post facto law is one which: (1) makes criminal an act done before the passage of the law and which was
innocent when done, and punishes such an act; (2) aggravates a crime, or makes it greater than it was when
committed; (3) changes the punishment and inflicts a greater punishment than the law annexed to the crime when
committed; (4) alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the
law required at the time of the commission of the offense; (5) assuming to regulate civil rights, and remedies only, in
effect imposes penalty or deprivation of a right for something which when done was lawful; and (6) deprives a
person accused of a crime of some lawful protection to which he has become entitled such as the protection of a
former conviction or acquittal, or a proclamation of amnesty.35

The test whether a penal law runs afoul of the ex post facto clause of the Constitution is: Does the law sought to be
applied retroactively take "from an accused any right that was regarded at the time of the adoption of the
constitution as vital for the protection of life and liberty and which he enjoyed at the time of the commission of the
offense charged against him."36

The crucial words in the test are "vital for the protection of life and liberty."37 We find, however, the test inapplicable
to the penal clause of Republic Act No. 7653. Penal laws and laws which, while not penal in nature, nonetheless
have provisions defining offenses and prescribing penalties for their violation operate prospectively.38 Penal laws
cannot be given retroactive effect, except when they are favorable to the accused.39 Nowhere in Republic Act No.
7653, and in particular Section 36, is there any indication that the increased penalties provided therein were
intended to operate retroactively. There is, therefore, no ex post facto law in this case.

On the third issue, petitioners ask us to note that the dollar interest earnings subject of the criminal cases instituted
against them were remitted to foreign banks on various dates between 1983 to 1987. They maintain that given the
considerable lapse of time from the dates of the commission of the offenses to the institution of the criminal actions
in 1991 and 1992, the State’s right to prosecute them for said offenses has already prescribed. Petitioners assert
that the Court of Appeals erred in computing the prescriptive period from February 1986. Petitioners theorize that
since the remittances were made through the Central Bank as a regulatory authority, the dates of the alleged
violations are known, and prescription should thus be counted from these dates.

In ruling that the dollar-salting cases against petitioners have not yet prescribed, the court a quo quoted with
approval the trial court’s finding that:

[T]he alleged violations of law were discovered only after the EDSA Revolution in 1986 when the
dictatorship was toppled down. The date of the discovery of the offense, therefore, should be the basis in
computing the prescriptive period. Since (the) offenses charged are punishable by imprisonment of not more
than five (5) years, they prescribe in eight (8) years. Thus, only a little more than four (4) years had elapsed
from the date of discovery in 1986 when the cases were filed in 1991.40

The offenses for which petitioners are charged are penalized by Section 34 of Republic Act No. 265 "by a fine of not
more than Twenty Thousand Pesos (P20,000.00) and by imprisonment of not more than five years." Pursuant to Act
No. 3326, which mandates the periods of prescription for violations of special laws, the prescriptive period for
violations of Circular No. 960 is eight (8) years.41 The period shall commence "to run from the day of the commission
of the violation of the law, and if the same be not known at the time, from the discovery thereof and institution of
judicial proceedings for its investigation and punishment."42 In the instant case, the indictments against petitioners
charged them with having conspired with the late President Ferdinand E. Marcos in transgressing Circular No. 960.
Petitioners’ contention that the dates of the commission of the alleged violations were known and prescription
should be counted from these dates must be viewed in the context of the political realities then prevailing.
Petitioners, as close associates of Mrs. Marcos, were not only protected from investigation by their influence and
connections, but also by the power and authority of a Chief Executive exercising strong-arm rule. This Court has
taken judicial notice of the fact that Mr. Marcos, his family, relations, and close associates "resorted to all sorts of
clever schemes and manipulations to disguise and hide their illicit acquisitions."43 In the instant case, prescription
cannot, therefore, be made to run from the dates of the commission of those offenses were not known as of those
dates. It was only after the EDSA Revolution of February, 1986, that the recovery of ill-gotten wealth became a
highly prioritized state policy,44 pursuant to the explicit command of the Provisional Constitution.45 To ascertain the
relevant facts to recover "ill-gotten properties amassed by the leaders and supporters of the (Marcos)
regime"46 various government agencies were tasked by the Aquino administration to investigate, and as the
evidence on hand may reveal, file and prosecute the proper cases. Applying the presumption "that official duty has
been regularly performed",47 we are more inclined to believe that the violations for which petitioners are charged
were discovered only during the post-February 1986 investigations and the tolling of the prescriptive period should
be counted from the dates of discovery of their commission. The criminal actions against petitioners, which gave rise
to the instant case, were filed in 1991 and 1992, or well within the eight-year prescriptive period counted from
February 1986.

The fourth issue involves petitioners’ claim that they incurred no criminal liability for violations of Circular No. 960
since they were exempted from its coverage.

Petitioners postulate that since the purchases of treasury notes were done through the Central Bank’s Securities
Servicing Department and payments of the interest were coursed through its Securities Servicing
Department/Foreign Exchange Department, their filing of reports would be surplusage, since the requisite
information were already with the Central Bank. Furthermore, they contend that the foreign currency investment
accounts in the Swiss banks were subject to absolute confidentiality as provided for by Republic Act No. 6426,48 as
amended by Presidential Decree Nos. 1035, 1246, and 1453, and fell outside the ambit of the reporting
requirements imposed by Circular No. 960. Petitioners further rely on the exemption from reporting provided for in
Section 10(q),49 Circular No. 960, and the confidentiality granted to Swiss bank accounts by the laws of Switzerland.

Petitioners correctly point out that Section 10(q) of Circular No. 960 exempts from the reporting requirement foreign
currency eligible for deposit under the Philippine Foreign Exchange Currency Deposit System, pursuant to Republic
Act No. 6426, as amended. But, in order to avail of the aforesaid exemption, petitioners must show that they fall
within its scope. Petitioners must satisfy the requirements for eligibility imposed by Section 2, Republic Act No.
6426.50 Not only do we find the record bare of any proof to support petitioners’ claim of falling within the coverage of
Republic Act No. 6426, we likewise find from a reading of Section 2 of the Foreign Currency Deposit Act that said
law is inapplicable to the foreign currency accounts in question. Section 2, Republic Act No. 6426 speaks of "deposit
with such Philippine banks in good standing, as may…be designated by the Central Bank for the purpose."51 The
criminal cases filed against petitioners for violation of Circular No. 960 involve foreign currency accounts maintained
in foreign banks, not Philippine banks. By invoking the confidentiality guarantees provided for by Swiss banking
laws, petitioners admit such reports made. The rule is that exceptions are strictly construed and apply only so far as
their language fairly warrants, with all doubts being resolved in favor of the general proviso rather than the
exception.52 Hence, petitioners may not claim exemption under Section 10(q).

With respect to the banking laws of Switzerland cited by petitioners, the rule is that Philippine courts cannot take
judicial notice of foreign laws.53 Laws of foreign jurisdictions must be alleged and proved.54 Petitioners failed to prove
the Swiss law relied upon, either by: (1) an official publication thereof; or (2) a copy attested by the officer having the
legal custody of the record, or by his deputy, and accompanied by a certification from the secretary of the Philippine
embassy or legation in such country or by the Philippine consul general, consul, vice-consul, or consular agent
stationed in such country, or by any other authorized officer in the Philippine foreign service assigned to said country
that such officer has custody.55 Absent such evidence, this Court cannot take judicial cognizance of the foreign law
invoked by Benedicto and Rivera.

Anent the fifth issue, petitioners insist that the government granted them absolute immunity under the Compromise
Agreement they entered into with the government on November 3, 1990. Petitioners cite our decision in Republic v.
Sandiganbayan, 226 SCRA 314 (1993), upholding the validity of the said Agreement and directing the various
government agencies to be consistent with it. Benedicto and Rivera now insist that the absolute immunity from
criminal investigation or prosecution granted to petitioner Benedicto, his family, as well as to officers and employees
of firms owned or controlled by Benedicto under the aforesaid Agreement covers the suits filed for violations of
Circular No. 960, which gave rise to the present case.

The pertinent provisions of the Compromise Agreement read:

WHEREAS, this Compromise Agreement covers the remaining claims and the cases of the Philippine
Government against Roberto S. Benedicto including his associates and nominees, namely, Julita C.
Benedicto, Hector T. Rivera, x x x

WHEREAS, specifically these claims are the subject matter of the following cases (stress supplied):

1. Sandiganbayan Civil Case No. 9

2. Sandiganbayan Civil Case No. 24

3. Sandiganbayan Civil Case No. 34

4. Tanodbayan (Phil-Asia)

5. PCGG I.S. No. 1.

xxx

WHEREAS, following the termination of the United States and Swiss cases, and also without admitting the
merits of their respective claims and counterclaims presently involved in uncertain, protracted and expensive
litigation, the Republic of the Philippines, solely motivated by the desire for the immediate accomplishment
of its recovery mission and Mr. Benedicto being interested to lead a peaceful and normal pursuit of his
endeavors, the parties have decided to withdraw and/or dismiss their mutual claims and
counterclaims under the cases pending in the Philippines, earlier referred to (underscoring supplied);

xxx

II. Lifting of Sequestrations, Extension of Absolute Immunity and Recognition of the Freedom to Travel
 a) The Government hereby lifts the sequestrations over the assets listed in Annex "C" hereof, the same
being within the capacity of Mr. Benedicto to acquire from the exercise of his profession and conduct of
business, as well as all the haciendas listed in his name in Negro Occidental, all of which were inherited by
him or acquired with income from his inheritance…and all the other sequestered assets that belong to
Benedicto and his corporation/nominees which are not listed in Annex "A" as ceded or to be ceded to the
Government.

Provided, however, (that) any asset(s) not otherwise settled or covered by this Compromise Agreement,
hereinafter found and clearly established with finality by proper competent court as being held by Mr.
Roberto S. Benedicto in trust for the family of the late Ferdinand E. Marcos, shall be returned or surrendered
to the Government for appropriate custody and disposition.

b) The Government hereby extends absolute immunity, as authorized under the pertinent provisions of
Executive Orders Nos. 1, 2, 14 and 14-A, to Benedicto, the members of his family, officers and employees of
his corporations above mentioned, who are included in past, present and future cases and investigations of
the Philippine Government, such that there shall be no criminal investigation or prosecution against said
persons for acts (or) omissions committed prior to February 25, 1986, that may be alleged to have violated
any laws, including but not limited to Republic Act No. 3019, in relation to the acquisition of any asset
treated, mentioned or included in this Agreement. lawphil.net

x x x56

In construing contracts, it is important to ascertain the intent of the parties by looking at the words employed to
project their intention. In the instant case, the parties clearly listed and limited the applicability of the Compromise
Agreement to the cases listed or identified therein. We have ruled in another case involving the same Compromise
Agreement that:

[T]he subject matters of the disputed compromise agreement are Sandiganbayan Civil Case No. 0009, Civil
Case No. 00234, Civil Case No. 0034, the Phil-Asia case before the Tanodbayan and PCGG I.S. No. 1. The
cases arose from complaints for reconveyance, reversion, accounting, restitution, and damages against
former President Ferdinand E. Marcos, members of his family, and alleged cronies, one of whom was
respondent Roberto S. Benedicto.57

Nowhere is there a mention of the criminal cases filed against petitioners for violations of Circular No. 960.
Conformably with Article 1370 of the Civil Code,58 the Agreement relied upon by petitioners should include only
cases specifically mentioned therein. Applying the parol evidence rule,59 where the parties have reduced their
agreement into writing, the contents of the writing constitute the sole repository of the terms of the agreement
between the parties.60 Whatever is not found in the text of the Agreement should thus be construed as waived and
abandoned.61 Scrutiny of the Compromise Agreement will reveal that it does not include all cases filed by the
government against Benedicto, his family, and associates.

Additionally, the immunity covers only "criminal investigation or prosecution against said persons for acts (or)
omissions committed prior to February 25, 1986 that may be alleged to have violated any penal laws, including but
not limited to Republic Act No. 3019, in relation to the acquisition of any asset treated, mentioned, or included in this
Agreement."62 It is only when the criminal investigation or case involves the acquisition of any ill-gotten wealth
"treated mentioned, or included in this Agreement"63 that petitioners may invoke immunity. The record is bereft of
any showing that the interest earnings from foreign exchange deposits in banks abroad, which is the subject matter
of the present case, are "treated, mentioned, or included" in the Compromise Agreement. The phraseology of the
grant of absolute immunity in the Agreement precludes us from applying the same to the criminal charges faced by
petitioners for violations of Circular No. 960. A contract cannot be construed to include matters distinct from those
with respect to which the parties intended to contract.64

In sum, we find that no reversible error of law may be attributed to the Court of Appeals in upholding the orders of
the trial court denying petitioners’ Motion to Quash the Informations in Criminal Case Nos. 91-101879 to 91-101883,
91-101884 to 91-101892, and 92-101959 to 92-101969. In our view, none of the grounds provided for in the Rules
of Court65 upon which petitioners rely, finds applications in this case.
On final matter. During the pendency of this petition, counsel for petitioner Roberto S. Benedicto gave formal notice
to the Court that said petitioner died on May 15, 2000. The death of an accused prior to final judgment terminates
his criminal liability as well as the civil liability based solely thereon.66

WHEREFORE, the instant petition is DISMISSED. The assailed consolidated Decision of the Court of Appeals
dated May 23, 1996, in CA-G.R. SP No. 35928 and CA G.R. SP No. 35719, is AFFIRMED WITH
MODIFICATION that the charges against deceased petitioner, Roberto S. Benedicto, particularly in Criminal Cases
Nos. 91-101879 to 91-101883, 91-101884 to 101892, and 92-101959 to 92-101969, pending before the Regional
Trial Court of Manila, Branch 26, are ordered dropped and that any criminal as well as civil liability ex delicto that
might be attributable to him in the aforesaid cases are declared extinguished by reason of his death on May 15,
2000. No pronouncement as to costs.
lawphil.net

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-35748 December 14, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants.

Teofilo Mendoza for appellants.

Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:

Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First Instance of
Bulacan convicting them upon the information of the crime of arson as follows: The former as principal by direct
participation, sentenced to fourteen years, eight months, and one day of cadena temporal, in accordance with
paragraph 2 of article 550, Penal Code; and the latter as accomplice, sentenced to six years and one day of presidio
mayor; and both are further sentenced to the accessories of the law, and to pay each of the persons whose houses
were destroyed by the fire, jointly and severally, the amount set forth in the information, with costs.

Counsel appointed by the court to defend the accused- appellants de oficio, after delivering his argument, prayed for
the affirmance of the judgment with reference to the appellant Martin Atienza, and makes the following assignments
of error with reference to Romana Silvestre, to wit:

1. The lower court erred in convincing Romana Silvestre as accomplice of the crime charged in the
information.

2. Finally, the court erred in not acquitting said defendant from the information upon the ground of
insufficient evidence, or at the least, of reasonable doubt.

The following facts were proved at the hearing beyond a reasonable doubt:

Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her codefendant Martin Atienza
from the month of March, 1930, in the barrio of Masocol, municipality of Paombong, Province of Bulacan. On May
16, 1930, the complaining husband, Domingo Joaquin, filed with the justice of the peace for that municipality, a
sworn complaint for adultery, supported by affidavits of Gerardo Cabigao and Castor de la Cruz (Exhibit B). On the
same date, May 16, 1930, the said accused were arrested on a warrant issued by said justice of the peace. On the
20th of the month, they were released on bail, each giving a personal bond of P6,000. Pending the preliminary
investigation of the case, the two defendants begged the municipal president of Paombong, Francisco Suerte
Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw the complaint, the two accused binding
themselves to discontinue cohabitation, and promising not to live again in the barrio of Masocol; Martin Atienza
voluntarily signed the promise (Exhibit A). The municipal president transmitted the defendants' petition to the
complaining husband, lending it his support. Domingo Joaquin acceded to it, and on May 20, 1930, filed a motion for
the dismissal of his complaint. In consideration of this petition, the justice of the peace of Paombong dismissed the
adultery case commenced against the accused, and cancelled the bonds given by them, with the costs against the
complainant.

The accused then left the barrio of Masocol and went to live in that of Santo Niño, in the same municipality of
Paombong.
About November 20, 1930, the accused Romana Silvestre met her son by her former marriage, Nicolas de la Cruz,
in the barrio of Santo Niño, and under pretext of asking him for some nipa leaves, followed him home to the village
of Masocol, and remained there. The accused, Martin Atienza, who had continued to cohabit with said Romana
Silvestre, followed her and lived in the home of Nicolas de la Cruz. On the night of November 25, 1930, while
Nicolas de la Cruz and his wife, Antonia de la Cruz, were gathered together with the appellants herein after supper,
Martin Atienza told said couple to take their furniture out of the house because he was going to set fire to it. Upon
being asked by Nicolas and Antonia why he wanted to set fire to the house, he answered that that was the only way
he could be revenged upon the people of Masocol who, he said, had instigated the charge of adultery against him
and his codefendant, Romana Silvestre. As Martin Atienza was at that time armed with a pistol, no one dared say
anything to him, not even Romana Silvestre, who was about a meter away from her codefendant. Alarmed at what
Martin Atienza had said, the couple left the house at once to communicate with the barrio lieutenant, Buenaventura
Ania, as to what they had just heard Martin Atienza say; but they had hardly gone a hundred arms' length when they
heard cries of "Fire! Fire!" Turning back they saw their home in flames, and ran back to it; but seeing that the fire
had assumed considerable proportions, Antonia took refuge in the schoolhouse with her 1 year old babe in her
arms, while Nicolas went to the home of his parents-in-law, took up the furniture he had deposited there, and carried
it to the schoolhouse. The fire destroyed about forty-eight houses. Tomas Santiago coming from the barrio artesian
well, and Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe Clemente, an old man 61 years of
age, coming from their homes, to the house on fire, saw Martin Atienza going away from the house where the fire
started, and Romana Silvestre leaving it.lawphil.net

As stated in the beginning, counsel appointed by this court to defend the accused-appellant de oficio, prays for the
affirmance of the judgment appealed from with reference to defendant Martin Atienza. The facts related heretofore,
proved beyond a reasonable doubt at the hearing, justify this petition of the de oficio counsel, and establish beyond
a reasonable doubt said defendant's guilt of arson as charged, as principal by direct participation.

With respect to the accused-appellant Romana Silvestre, the only evidence of record against her are: That, being
married, she lived adulterously with her codefendant Martin Atienza, a married man; that both were denounced for
adultery by Domingo Joaquin, Romana Silvestre's second husband; that in view of the petition of the accused, who
promised to discontinue their life together, and to leave the barrio of Masocol, and through the good offices of the
municipal president of Paombong, the complaining husband asked for the dismissal of the complaint; that in
pursuance of their promise, both of the accused went to lived in the barrio of Santo Niño, in the same municipality;
that under pretext for some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who had gone to
the barrio of Santo Niño, Romana Silvestre followed him to his house in the barrio of Masocol on November 23,
1930, and remained there; that her codefendant, Martin Atienza followed her, and stayed with his coaccused in the
same house; that on the night of November 25, 1930, at about 8 o'clock, while all were gathered together at home
after supper, Martin Atienza expressed his intention of burning the house as the only means of taking his revenge
on the Masocol resident, who had instigated Domingo Joaquin to file the complaint for adultery against them, which
compelled them to leave the barrio of Masocol; that Romana Silvestre listened to her codefendant's threat without
raising a protest, and did not give the alarm when the latter set fire to the house. Upon the strength of these facts,
the court below found her guilty of arson as accomplice.

Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be one who does
not take a direct part in the commission of the act, who does not force or induce other to commit it, nor cooperates in
the commission of the act by another act without which it would not have been accomplished, yet cooperates in the
execution of the act by previous or simultaneous actions.

Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson committed by her
codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de la Cruz and Antonia de la Cruz,
to take away their furniture because he was going to set fire to their house as the only means of revenging himself
on the barrio residents, her passive presence when Martin Atienza set fire to the house, where there is no evidence
of conspiracy or cooperation, and her failure to give the alarm when the house was already on fire?

The complicity which is penalized requires a certain degree of cooperation, whether moral, through advice,
encouragement, or agreement, or material, through external acts. In the case of the accused-appellant Romana
Silvestre, there is no evidence of moral or material cooperation, and none of an agreement to commit the crime in
question. Her mere presence and silence while they are simultaneous acts, do not constitute cooperation, for it does
not appear that they encouraged or nerved Martin Atienza to commit the crime of arson; and as for her failure to
give the alarm, that being a subsequent act it does not make her liable as an accomplice.
The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in article 550,
paragraph 2, of the Penal Code, which reads as follows:

ART. 550. The penalty of cadena temporal shall be imposed upon:

xxx xxx xxx

2. Any person who shall set fire to any inhabited house or any building in which people are accustomed to
meet together, without knowing whether or not such building or house was occupied at the time, or any
freight train in motion, if the damage caused in such cases shall exceed six thousand two hundred and
fifty pesetas.

While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there was nobody in
De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely arson less serious than what
the trial court sentenced him for, inasmuch as that house was the means of destroying the others, and he did not
know whether these were occupied at the time or not. If the greater seriousness of setting fire to an inhabited house,
when the incendiary does not know whether there are people in it at the time, depends upon the danger to which the
inmates are exposed, not less serious is the arson committed by setting fire to inhabited houses by means of
another inhabited house which the firebrand knew to be empty at the moment of committing the act, if he did not
know whether there were people or not in the others, inasmuch as the same danger exists.

With the evidence produced at the trial, the accused-appellant Martin Atienza might have been convicted of the
crime of arson in the most serious degree provided for in article 549 of the Penal Code, if the information had
alleged that at the time of setting fire to the house, the defendant knew that the other houses were occupied, taking
into account that barrio residents are accustomed to retire at the tolling of the bell for the souls in purgatory, i.e., at 8
o'clock at night.

For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive presence at the scene
of another's crime, mere silence and failure to give the alarm, without evidence of agreement or conspiracy, do not
constitute the cooperation required by article 14 of the Penal Code for complicity in the commission of the crime
witnessed passively, or with regard to which one has kept silent; and (2) he who desiring to burn the houses in a
barrio, without knowing whether there are people in them or not, sets fire to one known to be vacant at the time,
which results in destroying the rest, commits the crime of arson, defined and penalized in article 550, paragraph 2,
Penal Code.

By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference to the accused-
appellant Martin Atienza, and reversed with reference to the accused-appellant Romana Silvestre, who is hereby
acquitted with
one-half of the costs de oficio. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-32126 July 6, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NEMESIO TALINGDAN, MAGELLAN TOBIAS, AUGUSTO BERRAS, PEDRO BIDES and TERESA
DOMOGMA, accused-appellants.

PER CURIAM:

Appeal from the conviction for the crime of murder and the sentence of life imprisonment, with indemnity to the
offended party, the heirs of the deceased Bernardo Bagabag, in the amount of P12,000, rendered by the Court of
First Instance of Abra in its Criminal Case No. 686, of all the accused the namely, Nemesio Talingdan, Magellan
Tobias, Augusta Berras, Pedro Bides and Teresa Domogma, the last being the supposed wife of the deceased,
who, because no certificate nor any other proof of their marriage could be presented by the prosecution, could not
be charged with parricide.

Prior to the violent death of Bernardo Bagabag on the night of June 24, 1967, he and appellant Teresa Domogma
and their children, arrived together in their house at Sobosob, Salapadan, Abra, some 100 meters distant from the
municipal building of the place. For sometime, however, their relationship had been strained and beset with troubles,
for Teresa had deserted their family home a couple of times and each time Bernardo took time out to look for her.
On two (2) different occasions, appellant Nemesis Talingdan had visited Teresa in their house while Bernardo was
out at work, and during those visits Teresa had made Corazon, their then 12-year old daughter living with them, go
down the house and leave them. Somehow, Bernardo had gotten wind that illicit relationship was going on between
Talingdan and Teresa, and during a quarrel between him and Teresa, he directly charged the latter that should she
get pregnant, the child would not be his. About a month or so before Bernardo was killed, Teresa had again left their
house and did not come back for a period of more than three (3) weeks, and Bernardo came to know later that she
and Talingdan were seen together in the town of Tayum Abra during that time; then on Thursday night, just two (2)
days before he was gunned down, Bernardo and Teresa had a violent quarrel; Bernardo slapped Teresa several
times; the latter went down the house and sought the help of the police, and shortly thereafter, accused Talingdan
came to the vicinity of Bernardo's house and called him to come down; but Bernardo ignored him, for accused
Talingdan was a policeman at the time and was armed, so the latter left the place, but not without warning Bernardo
that someday he would kin him. Between 10:00 and 11:00 o'clock the following Friday morning, Bernardo's
daughter, Corazon, who was then in a creek to wash clothes saw her mother, Teresa, meeting with Talingdan and
their co-appellants Magellan Tobias, Augusto Berras and Pedro Bides in a small hut owned by Bernardo, some 300
to 400 meters away from the latter's house; as she approached them, she heard one of them say "Could he elude a
bullet"; and when accused Teresa Domogma noticed the presence of her daughter, she shoved her away saying
"You tell your father that we will kill him".

Shortly after the sun had set on the following day, a Saturday, June 24, 1967, while the same 12-year old daughter
of Bernardo was cooking food for supper in the kitchen of their house, she saw her mother go down the house
through the stairs and go to the yard where she again met with the other appellants. As they were barely 3-4 meters
from the place where the child was in the "batalan", she heard them conversing in subdued tones, although she
could not discern what they were saying. She was able to recognize all of them through the light coming from the
lamp in the kitchen through the open "batalan" and she knows them well for they are all residents of Sobosob and
she used to see them almost everytime. She noted that the appellants had long guns at the time. Their meeting did
not last long, after about two (2) minutes Teresa came up the house and proceeded to her room, while the other
appellants went under an avocado tree nearby. As supper was then ready, the child caged her parents to eat,
Bernardo who was in the room adjoining the kitchen did not heed his daughter's call to supper but continued
working on a plow, while Teresa also excused herself by saying she would first put her small baby to sleep. So
Corazon ate supper alone, and as soon as she was through she again called her parents to eat. This time, she
informed her father about the presence of persons downstairs, but Bernardo paid no heed to what she said. He
proceeded to the kitchen and sat himself on the floor near the door. Corazon stayed nearby watching him. At that
moment, he was suddenly fired upon from below the stairs of the "batalan". The four accused then climbed the
stairs of the "batalan" carrying their long guns and seeing that Bernardo was still alive, Talingdan and Tobias fired at
him again. Bides and Berras did not fire their guns at that precise time, but when Corazon tried to call for help Bides
warned her, saying "You call for help and I will kill you", so she kept silent. The assailants then fled from the scene,
going towards the east.

The first to come to the aid of the family was Corazon's male teacher who lived nearby. Teresa came out of her
"silid" later; she pulled Corazon aside and questioned her, and when Corazon informed her that she recognized the
killers of her father to be her co-appellants herein, she warned her not to reveal the matter to anyone, threatening to
kill her if she ever did so. Still later on, other persons arrived and helped fix and dress the lifeless body of the victim,
Bernardo, autopsy on which was performed in his own house by the Municipal Health Officer of the place on June
26, 1967, about 36 hours after death; burial took place on the same day. The victim's brother who came from Manila
arrived one day after the burial followed by their mother who came from La Paz, Abra where she resides. Corazon,
who had not earlier revealed the Identities of the killers of her father because she was afraid of her own mother, was
somehow able to reveal the circumstances surrounding his killing to these immediate relatives of hers, and the
sworn statement she thereafter executed on August 5, 1967 (Exh. B) finally led to the filing of the information for
murder against the herein five (5) appellants.

On the other hand, according to the evidence for the defense: Teresa prior to her marriage with Bernardo, was a
resident of the town of Manabo, Abra. She has a sister in Manila and two (2) brothers in America who love her
dearly, that is why said brothers of hers had been continuously and regularly sending her monthly $100.00 in
checks, starting from the time she was still single up to the time of her husband's violent death on June 24, 1967,
and thereafter. After their marriage, they moved to and resided in her husband's place in Sallapadan, Abra, bringing
with them three (3) carabaos and two (2) horses, which Bernardo and she used in tilling a parcel of land in said
place, separate and distinct from the parcel of land worked on by Bernardo's parents and their other children. She
and Bernardo lived in their own house which was about 4-5 meters away from the house of her parents-in-law. She
loved Bernardo dearly, they never quarreled, and her husband never maltreated her; although sometimes she had
to talk to Bernardo when he quarrels with his own mother who wanted that Bernardo's earnings be given to her, (the
mother) which Bernardo never did, and at those times, Bernardo would admonish Teresa "You leave me alone". Her
in-laws also hated her because her mother-in-law could not get the earnings of Bernardo for the support of her other
son, Juanito, in his schooling. On his part, Juanito also disliked her because she did not give him any of the
carpentry tools which her brothers in America were sending over to her. She never left their conjugal home for any
long period of time as charged by her mother-in-law, and if she ever did leave the house to go to other places they
were only during those times when she had to go to Bangued to cash her dollar checks with the PNB branch there,
and even on said trips, she was sometimes accompanied by Bernardo, or if she had to go alone and leaves
Sallapadan in the morning, she rode in a weapons carrier along with merchants going to Bangued in the morning
and always rode back with them to Sallapadan in the afternoon of the same day because the weapons carrier is
owned by a resident of Sallapadan who waits for them. Teresa came to know Talingdan only when the latter
became a policeman in Sallapadan, as whenever any of the carabaos and horses they brought from Manabo to
Sallapadan got lost, she and Bernardo would go and report the matter to the Mayor who would then refer the matter
to his policemen, one of whom is Talingdan, so that they may help locate the lost animals; Teresa knew Talingdan
well because they are neighbors, the latter's home being only about 250-300 meters away from theirs. But illicit
relationship had never existed between them.

Early in the evening of June 24, 1967, Teresa was in the kitchen of their house cooking their food for supper. Two of
the children, Corazon and Judit, were with her. Her husband, Bernardo, was then in the adjoining room making a
plow. He had to make the plow at that time of the night because at daytime he worked as a carpenter in the convent.
As soon as the food was ready, she and the children moved over to the adjoining room where Bernardo was to call
him for supper, and he then proceeded to the kitchen to eat. Teresa and the two children were about to follow him to
the kitchen when suddenly they heard more than five (5) or six (6) successive gun shots coming from near their
"batalan". They were all so terrified that they immediately cried for help, albeit she did not know yet at that precise
time that her husband was shot, as she and the children were still in the other room on their way to the kitchen,
about three (3) meters away from Bernardo. But soon Teresa heard her husband crying in pain, and as soon as she
reached him, she took Bernardo into her arms. She did not see the killers of her husband, as the night was then
very dark and it was raining. Bernardo was in her arms when the first group of people who responded to their cry for
help arrived. Among them were the chief of police, some members of the municipal council and appellant Tobias
who even advised Teresa not to carry the lifeless body of Bernardo to avoid abortion as she was then six (6) months
pregnant. The chief of police then conducted an investigation of the surroundings and he found some empty shells
and foot prints on the ground some meters away from the "batalan". He also found some bullet holes on the
southern walls of said "batalan" and on the nothern wallings of the kitchen. Later, Teresa requested some persons
to relay the information about the death of her husband to her relatives in Manabo, Abra, and they in turn passed on
the news to Bernardo's mother and her family in La Paz, Abra, where they were then residing, as they have left their
house in Sallapadan about two (2) months previous after they lost the land they used to till there in a case with the
natives called Tingians. Two (2) PC soldiers arrived in the afternoon of June 26, 1967, and after Bernardo's remains
was autopsied and he was buried under their house, they conducted an investigation, but she did not give them any
information relative to the Identity of the persons who shot her husband because she did not really see them. Her
mother-in-law and a brother-in-law, Juanita Bagabag, arrived later, the former from the town of La Paz, Abra, and
the latter from Manila, and after the usual nine (9) days mourning was over, they left Sallapadan, taking Teresa's
children under their custody. Teresa suspects that since her mother-in-law and her brother-in-law have axes to grind
against her and they have her daughter, Corazon, under their custody, they had forced the said child to testify
against her. She further declared that her late husband, Bernardo, had enemies during his lifetime, as he had
quarrels with some people over the land they work on.

Furthermore, the defense presented evidence to the effect that: Talingdan was not in Sallapadan at the time of the
killing of Bernardo on June 24, 1967; being a policeman of the place at the time, he was one of the two (2)
policemen who escorted and acted as bodyguard of the Mayor, when the latter attended the cursillo in Bangued, all
of them leaving Sallapadan on June 22 and returning thereto four (4) days later on June 26, hence, he could not
have anything to do with the said killing. On the other hand, Tobias claimed to be in the house of one Mrs.
Bayongan in Sallapadan on the date of said killing, but he was one of the persons who was called upon by the chief
of police of the place to accompany him in answer to the call for help of the wife of the victim. The other two
appellants Bides and Berras also alleged that they were in the same house of Mrs. Bayongan on that date; they are
tillers of the land of said Mrs. Bayongan and had been staying in her house for a long time. They were sleeping
when the chief of police came that evening and asked Tobias, who was then municipal secretary, to accompany him
to the place of the shooting. They did not join them, but continued sleeping. They never left the said house of Mrs.
Bayongan, which is about 250-300 meters away from the place of the killing, that evening of June 24, 1967.

After carefully weighing the foregoing conflicting evidence of the prosecution and defense, We have no doubt in Our
mind that in that fatal evening of June 24, 1967, appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras
and Pedro Bides, all armed with long firearms and acting inconspiracy with each other gunned down Bernardo as
the latter was sitting by the supper table in their house at Sobosob, Sallapadan, Abra. They were actually seen
committing the offense by the witness Corazon. She was the one who prepared the food and was watching her
father nearby. They were all known to her, for they were all residents of Sobosob and she used to see them often
before that night. Although only Talingdan and Tobias continued firing at her father after they had climbed the stairs
of the "batalan", it was Bides who threatened her that he would kill her if she called for help. Berras did not fire any
shot then. But even before the four appellants went up the "batalan", they already fired shots from downstairs.

We also fully believe Corazon's testimony that two nights before, or on Thursday, June 22, 1967, the deceased
Bernardo and appellant Teresa had a violent quarrel during which he slapped her several times. She went to seek
the help of the police, and it was appellant Talingdan, a policeman of their town, who went to the vicinity of their
house and challenged her father to come down, but the latter refused because the former was a policeman and was
armed. And so, Talingdan left after shouting to her father that "If I will find you someday, I will kill you."

We likewise accept as truthful, Corazon's declaration regarding the amorous relationship between her mother and
appellant Talingdan, as already related earlier above. So also her testimony that in the morning following the quarrel
between her father and her mother and the threat made by Talingdan to the former, between 10:00 and 11:00
o'clock, she saw all the herein four male accused-appellants meeting with her mother in a small hut some 300 or
400 meters away from their house, near where she was then washing clothes, and that on said occasion she
overheard one of them ask "Could (sic) he elude a bullet?", We have our doubts, however, as to whether or not her
mother did say to her in shoving her away upon seeing her approach, "You tell your father we will kill him." If it were
true that there was really such a message, it is to be wondered why she never relayed the same to her father,
specially when she again saw the said appellants on the very night in question shortly before the shooting talking
together in subdued tones with her mother and holding long arms. Moreover, it is quite unnatural that such a
warning could have been done in such a manner.
Accordingly, it is Our conclusion from the evidence related above and which We have carefully reviewed that
appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras and Pedro Bides are guilty of murder qualified by
treachery, as charged, and that they committed the said offense in conspiracy with each other, with evident
premeditation and in the dwelling of the offended party. In other words, two aggravating circumstances attended the
commission of the offense, namely, evident premeditation and that it was committed in the dwelling of the victim. No
mitigating circumstance has been proven.

Appellants insist in their brief that the lone testimony of Corazon suffered from vital contradictions and
inconsistencies and badges of falsehood because of patently unnatural circumstances alleged by her. We do not
agree. As the Solicitor General has well pointed out, the fact that the witness varied on cross-examination the exact
time of some of the occurrences she witnessed, such as, (1) whether it was before or after Bernardo had began
eating when he was shot; (2) whether it was before or after seeing her mother's meeting with her co-accused in the
morning of Friday, June 23, 1967, that she went to wash clothes; and (3) whether or not the accused were already
upstairs or still downstairs when they first fired their guns, cannot alter the veracity of her having seen appellants in
the act of mercilessly and cold-bloodedly shooting her father to death.

Contrary to the contention of appellants, there was nothing inherently unnatural in the circumstances related by her.
We agree with the following rebuttal of the Solicitor General:

Appellants also attempt to buttress their attack against the credibility of Corazon Bagabag by
pointing out five supposed unnatural declarations in her testimony; First, she said that her father,
appeared unconcerned when she informed him of the presence of people downstairs. But as
correctly observed by the prosecuting fiscal the witness does not know then "the mentality of her
father" (p. 62, t.s.n., hearing of March 29, 1968). Second, Corazon also declared that the accused
conversed that Saturday night preceding the day the crime charged was committed in a lighted place
although there was a place which was unlighted in the same premises. But this only proves that the
accused were too engrossed in their conversation, unmindful of whether the place where they were
talking was lighted or not, and unmindful even of the risk of recognition. Third, witness declared that
Pedro Bides and Augusto Berras did not fire their guns. Even if these accused did withhold their fire,
however, since they were privies to the same criminal design, would this alter their culpability?
Should the witness Corazon Bagabag be discredited for merely stating an observation on her part
which is not inherently unnatural? Fourth, Corazon also declared that only three bullets from the
guns of the four male accused found their mark on the body of her father. But would this not merely
prove that not all the accused were good shots? And fifth, the witness declared that her father was
still able to talk after he was shot yet Dr. Jose Dalisan declared that his death was instantaneous It is
respectfully submitted, however, that the doctor's opinion could yield to the positive testimony of
Corazon Bagabag in this regard without in the least affecting the findings of said doctor as regards
the cause of the death of the deceased. As thus viewed, there are no evident badges of falsehood in
the whole breadth and length of Corazon Bagabag's testimony. (Pp. 9-10, People's Brief.)

Why and how Corazon could have concocted her version of the killing of her father, if it were not basically true, is
hardly conceivable, considering she was hardly thirteen (13) years old when she testified, an age when according to
Moore, a child , is, as a rule, but little influenced by the suggestion of others" because "he has already got some
principles, lying is distasteful to him, because he thinks it is mean, he is no stranger to the sentiment of self- respect,
and he never loses an opportunity of being right in what he affirms." (II Moore on Facts, pp. 1055-1056.) No cogent
explanation has been offered why she would attribute the assault on her father to three other men, aside from
Talingdan whom she knew had relations with her mother, were she merely making-up her account of how he was
shot, no motive for her to do so having been shown.

Demolishing the theory of the accused that such testimony was taught to her by her uncle, His Honor pointed out
that said "testimony, both direct and cross, would show that she was constant, firm and steady in her answers to
questions directed to her." We have Ourselves read said testimony and We are convinced of the sincerity and
truthfulness of the witness. We cannot, therefore, share appellants' apprehension in their Seventh Assignment of
Error that the grave imputation of a mother's infidelity and her suggested participation in the killing of her husband,
would if consistently impressed in the mind of their child, constitute a vicious poison enough to make the child, right
or wrong, a willing instrument in any scheme to get even with her wicked mother. We feel Corazon was too young to
he affected by the infidelity of her mother in the manner the defense suggests. We are convinced from a reading of
her whole testimony that it could not have been a fabrication. On the whole, it is too consistent for a child of thirteen
years to be able to substantially maintain throughout her stay on the witness stand without any fatal flaw, in the face
of severe and long cross-interrogations, if she had not actually witnessed the event she had described. We reject
the possibility of her having been "brainwashed or coached" to testify as she did.

The second to the sixth assignments of error in the appeal brief do not merit serious consideration. Anent these
alleged errors, suffice it to say that the following refutations of the Solicitor General are well taken:

Appellants also decry that the trial court allegedly failed to consider the testimony of Dr. Dalisan that
the distance between the assailants and the deceased could have been 4 to 5 meters when the
shots were fired. But the appellants overlook the testimony of Corazon Bagabag that when the first
shot was fired, the gunman was about 3-½ meters from her father (p. 60, t.s.n., hearing of March 29,
1968), which disproves the theory of the defense that the killers fired from a stonepile under
an avocado tree some 4 to 5 meters away from the deceased's house. Appellants also insist that the
Court a quo ignored the testimonies of defense witness Cpl. Bonifacio Hall and Chief of Police
Rafael Berras on their having found bullet marks on the southern walling of the house of the
deceased, as well as empty cal. 30 carbine shells under the aforementioned avocado tree. The trial
court, however, made the following apt observations on the testimony of defense witness Cpl.
Bonifacio Hall:

This witness stated that we went to the house of the deceased to investigate the crime after the
deceased had already been buried; that he investigated the widow as well as the surroundings of the
house where the deceased was shot. He found empty shells of carbine under the avocado tree. He
stated that the 'batalan' of the house of the deceased has a siding of about 1-½ meters high and that
he saw bullet holes on the top portion of the wall directly pointing to the open door of the 'batalan' of
the house of the deceased. When the court asked the witness what could have been the position of
the assailant in shooting the deceased, he stated that the assailant might have been standing. The
assailant could not have made a bullet hole on the top portion of the sidings of the 'batalan' because
the 'batalan' is only 1-½ meters high, and further, when asked as to the level of the ground in relation
to the top sidings of the 'batalan,' he answered that it is in the same level with the ground. If this is
true, it is impossible for the assailant to make a bullet hole at the top portion sidings of the 'batalan,'
hence, the testimony of this witness who is a PC corporal is of no consequence and without merit.
The court is puzzled to find a PC corporal testifying for the defense in this case, which case was filed
by another PC sergeant belonging to the same unit and assigned in the same province of Abra (pp.
324- 325, rec.).

As regards the empty shells also found in the vicinity of the shooting, suffice it to state that no
testimony has been presented, expert or otherwise, linking said shells to the bullets that were fired
during the shooting incident. Surmises in this respect surely would not overcome the positive
testimony of Corazon Bagabag that the accused shot her father as they came up the 'batalan' of
their house. (Pp. 11-12, People's Brief.)

At the trial, the four male appellants tried to prove that they were not at the scene of the crime when it happened.
This defense of alibi was duly considered by the trial court, but it was properly brushed aside as untenable. In their
brief, no mention thereof is made, which goes to show that in the mind of the defense itself,. it cannot be
successfully maintained and they do not, therefore, insist on it. Nonetheless, it would do well for this Court to
specifically affirm the apt pertinent ratiocination of His Honor in reference thereto thus:

This defense, therefore, is alibi which, in the opinion of the court, can not stand firmly in the face of a
positive and unwavering testimony of the prosecution witness who pointed out to the accused as the
authors of the crime. This is so because, first, according to the three accused — Bides, Tobias and
Berras — they were sleeping at 8:00 o'clock that night in the house of Mrs. Bayongan which is only
250 meters away from the scene of the crime. Granting, for the sake of argument, but without
admitting, that they were already sleeping at 8:00 o'clock in the house of Mrs. Bayongan, Corazon
Bagabag clearly stated that her father was gunned down at sunset which is approximately between
6:00 and 6:30 in the evening, hence, the accused Tobias, Berras and Bides could have committed
the crime and went home to sleep in the house of Mrs. Bayongan after the commission of the crime.
According to Pedro Bides, the house of Mrs. Bayongan is only 250 meters away from the house of
the victim. Second, the three accused have failed miserably to present the testimony of Mrs.
 Bayongan, the owner of the house where they slept that night to corroborate or bolster their defense
of alibi. (Pp. 27A-28A, Annex of Appellants' Brief.)

xxx xxx xxx

Nemesio Talingdan, alias Oming, the last of the accused, also in his defense of alibi, stated that on
June 22, 1967, he accompanied Mayor Gregorio Banawa of Sallapadan to Bangued, together with
policeman Cresencio Martinez for the purpose of attending a cursillo in Bangued They started in
Sallapadan in the early morning of June 22, 1967 and arrived in Bangued the same day. According
to him, he went to accompany the mayor to the cursillo house near the Bangued Cathedral and after
conducting the mayor to the cursillo house, he went to board in the house of the cousin of Mayor
Banawa near the Filoil Station at Bangued, Abra. From that time, he never saw the mayor until after
they went home to Sallapadan on June 26th.

This kind of alibi could not gain much weight because he could have returned anytime on the
evening of June 22 or anytime before the commission of the offense to Sallapadan and commit the
crime on the 24th at sunset, then returned to Bangued, Abra to fetch the mayor and bring him back
to Sallapadan on the 26th.

The irony of this defense of alibi is that the mayor who was alleged to have been accompanied by
witness-accused is still living and very much alive. As a matter of fact, Mayor Gregorio Banawa is
still the mayor of Sallapadan, Abra, and also policeman Cresencio Martinez, another policeman who
accompanied the mayor to Bangued, is also still living and still a policeman of Sallapadan. Why were
not the mayor and the policeman presented to corroborate or deny the testimony of Nemesio
Talingdan?

Conrado B. Venus, Municipal Judge of Penarrubia Abra, and a member of the Cursillo Movement,
was presented as rebuttal witness for the prosecution. On the witness stand, he stated that he
belongs to Cursillo No. 3 of the Parish of Bangued, Abra, and said cursillo was held on October 20 to
23, 1966, at the St. Joseph Seminary in Galicia, Pidigan Abra, and not on June 23 to 26, 1967. As a
matter of fact, Mayor Banawa of Sallapadan also attended the cursillo held on October 20 to 23,
1966, as could be seen in his 'Guide Book' where the signature of Gregorio Banawa appears
because they both attended Cursillo No. 3 of the Parish of Bangued.

(To) this testimony of the rebuttal witness belies partly, if not in full, the testimony of accused
Nemesio Talingdan. (Pp. 29A-30A, Annex of Appellants' Brief.)

Coming now to the particular case of appellant Teresa Domogma, as to whom the Solicitor General has submitted a
recommendation of acquittal, We find that she is not as wholly innocent in law as she appears to the Counsel of the
People. It is contended that there is no evidence proving that she actually joined in the conspiracy to kill her
husband because there is no showing of 'actual cooperation" on her part with her co-appellants in their culpable acts
that led to his death. If at all, what is apparent, it is claimed, is "mere cognizance, acquiescence or approval" thereof
on her part, which it is argued is less than what is required for her conviction as a conspirator per People vs.
Mahlon, 99 Phil. 1068. We do not see it exactly that way.

True it is that the proof of her direct participation in the conspiracy is not beyond reasonable doubt, for which reason,
sue cannot have the same liability as her co-appellants. Indeed, she had no hand at all in the actual shooting of her
husband. Neither is it clear that she helped directly in the planning and preparation thereof, albeit We are convinced
that she knew it was going to be done and did not object. (U.S. vs. Romulo, 15 Phil. 408, 411-414.) It is not definitely
shown that she masterminded it either by herself alone or together with her co-appellant Talingdan. At best, such
conclusion could be plain surmise, suspicion and conjecture, not really includible. After all, she had been having her
own unworthy ways with him for quite a long time, seemingly without any need of his complete elimination. Why go
to so much trouble for something she was already enjoying, and not even very surreptitiously? In fact, the only
remark Bernardo had occasion to make to Teresa one time was "If you become pregnant, the one in your womb is
not my child." The worst he did to her for all her faults was just to slap her.

But this is not saying that she is entirely free from criminal liability. There is in the record morally convincing proof
that she is at the very least an accessory to the offense committed by her co-accused. She was inside the room
when her husband was shot. As she came out after the shooting, she inquired from Corazon if she was able to
recognize the assailants of her father. When Corazon Identified appellants Talingdan, Tobias, Berras and Bides as
the culprits, Teresa did not only enjoin her daughter not to reveal what she knew to anyone, she went to the extent
of warning her, "Don't tell it to anyone. I will kill you if you tell this to somebody." Later, when the peace officers who
repaired to their house to investigate what happened, instead of helping them with the information given to her by
Corazon, she claimed she had no suspects in mind. In other words, whereas, before the actual shooting of her
husband, she was more or less passive in her attitude regarding her co-appellants' conspiracy, known to her, to do
away with him, after Bernardo was killed, she became active in her cooperation with them. These subsequent acts
of her constitute "concealing or assisting in the escape of the principal in the crime" which makes her liable as an
accessory after the fact under paragraph 3 of Article 19 of the Revised Penal Code.

As already indicated earlier, the offense committed by appellants was murder qualified by treachery. It being
obvious that appellants deliberately chose nighttime to suddenly and without warning assault their victim, taking
advantage of their number and arms, it is manifest that they employed treachery to insure success in attaining their
malevolent objective. In addition, it is indisputable that appellants acted with evident premeditation. Talingdan made
the threat to kill Bernardo Thursday night, then he met with his co-accused to work out their conspiracy Friday and
again on Saturday evening just before the actual shooting. In other words, they had motive Talingdan's taking up the
cudgels for his paramour, Teresa and enough time to meditate, and desist, if they were not resolved to proceed with
their objective. Finally, they committed the offense in the dwelling of the offended party.

In these premises, the crime committed by the male appellants being murder, qualified by treachery, and attended
by the generic aggravating circumstances of evident premeditation and that the offense was committed in the
dwelling of the offended party, the Court has no alternative under the law but to impose upon them the capital
penalty. However, as to appellant Teresa, she is hereby found guilty only as an accessory to the same murder.

WHEREFORE, with the above finding of guilt beyond reasonable doubt of the appellants Nemesio Talingdan,
Magellan Tobias, Augusto Berras and Pedro Bides of the crime of murder with two aggravating circumstances,
without any mitigating circumstance to offset them, they are each hereby sentenced to DEATH to be executed in
accordance with law. Guilty beyond reasonable doubt as accessory to the same murder, appellant Teresa
Domogma is hereby sentenced to suffer the indeterminate penalty of five (5) years of prision correccional as
minimum to eight (8) years of prision mayor as maximum, with the accessory penalties of the law. In all other
respects, the judgment of the trial court is affirmed, with costs against appellants.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 80762 March 19, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FAUSTA GONZALES, AUGUSTO GONZALES, CUSTODIO GONZALES, SR., CUSTODIO GONZALES, JR.,
NERIO GONZALES and ROGELIO LANIDA, accused, CUSTODIO GONZALES, SR., accused-appellant.

SARMIENTO, J.:

In a decision 1 dated October 31, 1984, the Regional Trial Court of Iloilo, Branch XXXVIII (38), in Criminal Case No.
13661, entitled "People of the Philippines vs. Fausta Gonzales, Augusto Gonzales, Custodia Gonzales, Custodio
Gonzales, Jr., Nerio Gonzales and Rogelio Lanida," found all the accused, except Rogelio Lanida who eluded arrest
and up to now has remain at large and not yet arrained, guilty beyond reasonable doubt of the crime of murder as
defined under Article 248 of the Revised Penal Code. They were sentenced "to suffer the penalty of imprisonment of
twelve (12) years and one (1) day to seventeen (17) years and four (4) months of reclusion temporal, to indemnify
the heirs of the deceased victim in the amount of P40,000.00, plus moral damages in the sum of P14,000.00 and to
pay the costs." 2 The victim was Lloyd Peñacerrada, 44, landowner, and a resident of Barangay Aspera, Sara, Iloilo.

Through their counsel, all the accused, except of course Rogelio Lanida, filed a notice of appeal from the trial court's
decision. During the pendency of their appeal and before judgment thereon could be rendered by the Court of
Appeals, however, all the accused-appellants, except Custodio Gonzales, Sr., withdrew their appeal and chose
instead to pursue their respective applications for parole before the then Ministry, now Department, of Justice,
Parole Division. 3

On October 27, 1987, the Court of Appeals rendered a decision 4 on the appeal of Custodio Gonzales, Sr. It
modified the appealed decision in that the lone appellant was sentenced to reclusion perpetua and to indemnify the
heirs of Lloyd Peñacerrada in the amount of P30,000.00. In all other respect, the decision of the trial court was
affirmed. Further, on the basis of our ruling in People vs. Ramos, 5 the appellate court certified this case to us for
review.6

The antecedent facts are as follows:

At around 9:00 o'clock in the evening of February 21, 1981, Bartolome Paja, the barangay captain of Barangay
Tipacla, Ajuy, Iloilo, was awakened from his sleep by the spouses Augusto and Fausta Gonzales. Augusto informed
Paja that his wife had just killed their landlord, Lloyd Peñacerrada, and thus would like to surrender to the
authorities. Seeing Augusto still holding the knife allegedly used in the killing and Fausta with her dress smeared
with blood, Paja immediately ordered a nephew of his to take the spouses to the police authorities at the Municipal
Hall in Poblacion, Ajuy. As instructed, Paja's nephew brought the Gonzales spouses, who "backrode" on his
motorcycle, to the municipal building. 7 Upon reaching the Ajuy Police sub-station, the couple informed the police on
duty of the incident. That same night, Patrolman Salvador Centeno of the Ajuy Police Force and the Gonzales
spouses went back to Barangay Tipacla. Reaching Barangay Tipacla the group went to Paja's residence where
Fausta was made to stay, while Paja, Patrolman Centeno, and Augusto proceeded to the latter's residence at Sitio
Nabitasan where the killing incident allegedly occurred. 8 There they saw the lifeless body of Lloyd Peñacerrada,
clad only in an underwear, sprawled face down inside the bedroom. 9 The group stayed for about an hour during
which time Patrolman Centeno inspected the scene and started to make a rough sketch thereof and the immediate
surroundings. 10 The next day, February 22, 1981, at around 7:00 o'clock in the morning, Patrolman Centeno,
accompanied by a photographer, went back to the scene of the killing to conduct further investigations. Fausta
Gonzales, on the other hand, was brought back that same day by Barangay Captain Paja to the police substation in
Ajuy. When Patrolman Centeno and his companion arrived at Sitio Nabitasan, two members of the 321st P.C.
Company stationed in Sara, Iloilo, who had likewise been informed of the incident, were already there conducting
their own investigation. Patrolman Centeno continued with his sketch; photographs of the scene were likewise
taken. The body of the victim was then brought to the Municipal Hall of Ajuy for autopsy.

The autopsy of Lloyd Peñacerrada's cadaver was performed at about 11:20 a.m. on February 22, 1981; after
completed, a report was made with the following findings:

PHYSICAL FINDINGS

1. Deceased is about 5 ft. and 4 inches in height, body moderately built and on cadaveric rigidity.

EXTERNAL FINDINGS

1. Puncture wound, 1 cm. in width, 9 cm. in length, located at the lower 3rd anterior aspect of the
arm, right, directed upward to the right axillary pit.

2. Stab wound, thru and thru, located at the proximal 3rd, forearm right, posterior aspect with an
entrance of 5 cm. in width and 9 cm. in length with an exit at the middle 3rd, posterior aspect of the
forearm, right, with 1 cm. wound exit.

3. Stab wound, thru and thru, located at the middle 3rd, posterior aspect of the forearm right, 1 cm.
in width.

4. Incised wound, 4 cm. long, depth visualizing the right lateral border of the sternum, 6th and 7th
ribs, right located 1.5 inches below the right nipple.

5. Stab wound, 2 cm. in width, 10.5 cm. in depth, directed inward to the thoracic cavity right, located
at the left midclavicular line at the level of the 5th rib left.

6. Stab wound, 2 cm. in width, 9.5 cm. in depth directed toward the right thoracic cavity, located at
the mid left scapular line at the level of the 8th intercostal space.

7. Puncture wound, 1 cm. in width, located at the base of the left armpit directed toward the left
thoracic cavity.

8. Puncture wound, 1 cm. in width, 11 cm. in length, directed toward the left deltoid muscle, located
at the upper 3rd axilla left.

9. Puncture wound, 3 cm in width, 11.5 cm in length, located at the anterior aspect, proximal 3rd arm
left, directed downward.

10. Stab wound, thru and thru, 2.5 cm. in width, and 5 cm. in length, medial aspect, palm right.

11. Stabwound, 4 cm.in width, iliac area, right, directed inward with portion of large intestine and
mysentery coming out.

12. Stab wound, 4 cm. in width, located at the posterior portion of the shoulder, right, directed
downward to the aspex of the light thoracic cavity.

13. Incised wound, 1 cm. in width, 10 cm. in length, located at the medial portion of the medial
border of the right scapula.

14. Incised wound, 1 cm. in width, 4.5 cm. in length, located at the posterior aspect of the right
elbow.

15. Incised wound, 1 cm. in width, 2 cm. in length, located at the posterior portion, middle 3rd,
forearm, right.
 16. Lacerated wound at the anterior tantanelle with fissural fracture of the skull.

INTERNAL FINDINGS:

1. Stab wound No. 5, injuring the left ventricle of the heart.

2. Stab wound No. 6, severely injuring the right lower lobe of the lungs.

3. Stab wound No. 7, injuring the right middle lobe of the lungs.

4. Stab wound No. 11, injuring the descending colon of the large intestine, thru and
thru.

5. Stab wound No. 12, severely injuring the apex of the right lungs (sic).

CAUSE OF DEATH:

MASSIVE HEMMORRHAGE DUE TO MULTIPLE LACERATED,

STABBED (sic), INCISED AND PUNCTURED WOUNDS.

JESUS D. ROJAS, M.D.

Rural Health Physician
Ajuy, Iloilo 11

The autopsy report thus showed that Dr. Rojas "found sixteen (16) wounds, five (5) of which are fatal because they
penetrated the internal organs, heart, lungs and intestines of the deceased." 12

On February 23, two days after the incident, Augusto Gonzales appeared before the police sub-station in the
poblacion of Ajuy and voluntarily surrendered to Police Corporal Ben Sazon for detention and protective custody for
"having been involved" in the killing of Lloyd Peñacerrada. He requested that he be taken to the P.C. headquarters
in Sara, Iloilo where his wife, Fausta, was already detained having been indorsed thereat by the Ajuy police force. 13

Based on the foregoing and on the investigations conducted by the Ajuy police force and the 321st P.C. Company,
an information for murder dated August 26, 1981, was filed by the Provincial Fiscal of Iloilo against the spouses
Augusto and Fausta Gonzales. The information read as follows:

The undersigned Provincial Fiscal accuses FAUSTA GONZALES and AUGUSTO GONZALES of
the crime of MURDER committed as follows:

That on or about the 21st day of February, 1981, in the Municipality of Ajuy, Province of Iloilo,
Philippines, and within the jurisdiction of this Court, the above-named accused with four other
companions whose identities are still unknown and are still at large, armed with sharp-pointed and
deadly weapons, conspiring, confederating and helping each other, with treachery and evident
premeditation, with deliberate intent and decided purpose to kill, and taking advantage of their
superior strength and number, did then and there wilfully, unlawfully and feloniously attack, assault,
stab, hack, hit and wound Lloyd D. Peñacerrada, with the weapons with which said accused were
provided at the time, thereby inflicting upon said Lloyd D. Peñacerrada multiple wounds on different
parts of his body as shown by autopsy report attached to the record of this case which multifarious
wounds caused the immediate death of said Lloyd D. Peñacerrada.

CONTRARY TO LAW.

Iloilo City, August 26, 1981. 14

When arraigned on September 16, 1981, Augusto and Fausta both entered a plea of not guilty. Before trial,
however, Jose Huntoria 15 who claimed to have witnessed the killing of Lloyd Peñacerrada, presented himself to
Nanie Peñacerrada, the victim's widow, on October 6, 1981, and volunteered to testify for the prosecution. A
reinvestigation of the case was therefore conducted by the Provincial Fiscal of Iloilo on the basis of which an
Amended Information, 16 dated March 3, 1982, naming as additional accused Custodio Gonzales, Sr. (the herein
appellant), Custodio Gonzales, Jr., Nerio Gonzales, and Rogelio Lanida, was filed. Again, all the accused except as
earlier explained, Lanida, pleaded not guilty to the crime.

At the trial, the prosecution presented Dr. Jesus Rojas, the Rural Health physician of Ajuy who conducted the
autopsy on the body of the victim; Bartolome Paja, the barangay captain of Barangay Tipacla; Patrolman Salvador
Centeno and Corporal Ben Sazon of the Ajuy Police Force; Sgt. (ret) Nicolas Belicanao and Sgt. Reynaldo Palomo
of the 321st P.C. Company based in Sara, Iloilo; Jose Huntoria; and Nanie Peñacerrada, the widow.

Dr. Jesus Rojas testified that he performed the autopsy on the body of the deceased Lloyd Penacerrada at around
11:20 a.m. on February 22, 1981 after it was taken to the municipal hall of Ajuy. 17 His findings revealed that the
victim suffered from 16 wounds comprising of four (4) punctured wounds, seven (7) stab wounds, four (4) incised
wounds, and one (1) lacerated wound. In his testimony, Dr. Rojas, while admitting the possibility that only one
weapon might have caused all the wounds (except the lacerated wound) inflicted on the victim, nevertheless opined
that due to the number and different characteristics of the wounds, the probability that at least two instruments were
used is high. 18 The police authorities and the P.C. operatives for their part testified on the aspect of the investigation
they respectively conducted in relation to the incident. Nanie Peñacerrada testified mainly on the expenses she
incurred by reason of the death of her husband while Barangay Captain Bartolome Paja related the events
surrounding the surrender of the spouses Augusto and Fausta Gonzales to him, the location of the houses of the
accused, as well as on other matters.

By and large, the prosecution's case rested on Huntoria's alleged eyewitness account of the incident. According to
Huntoria, who gave his age as 30 when he testified on July 27, 1982, 19 at 5:00 o'clock in the afternoon on February
21, 1981, he left his work at Barangay Central, in Ajuy, Iloilo where he was employed as a tractor driver by one Mr.
Piccio, and walked home; 20 he took a short-cut route. 21 While passing at the vicinity of the Gonzales spouses' house
at around 8:00 o'clock in the evening, he heard cries for help. 22 Curiosity prompted him to approach the place where
the shouts were emanating. When he was some 15 to 20 meters away, he hid himself behind a clump of banana
trees. 23 From where he stood, he allegedly saw all the accused ganging upon and takings turns in stabbing and
hacking the victim Lloyd Peñacerrada, near a "linasan" or threshing platform. He said he clearly recognized all the
accused as the place was then awash in moonlight. 24 Huntoria further recounted that after the accused were
through in stabbing and hacking the victim, they then lifted his body and carried it into the house of the Gonzales
spouses which was situated some 20 to 25 meters away from the "linasan". 25 Huntoria then proceeded on his way
home. Upon reaching his house, he related what he saw to his mother and to his wife 26 before he went to
sleep. 27Huntoria explained that he did not immediately report to the police authorities what he witnessed for fear of
his life. 28 In October 1981 however, eight months after the extraordinary incident he allegedly witnessed, bothered
by his conscience plus the fact that his father was formerly a tenant of the victim which, to his mind, made him
likewise a tenant of the latter, he thought of helping the victim's widow, Nanie Peñacerrada. Hence, out of his
volition, he travelled from his place at Sitio Nabitasan, in Barangay Tipacla Municipality of Ajuy, to Sara, Iloilo where
Mrs. Peñacerrada lived, and related to her what he saw on February 21, 1981. 29

Except Fausta who admitted killing Lloyd Peñacerrada in defense of her honor as the deceased attempted to rape
her, all the accused denied participation in the crime. The herein accused-appellant, Custodio Gonzales, Sr.,
claimed that he was asleep 30 in his house which was located some one kilometer away from the scene of the
crime 31 when the incident happened. He asserted that he only came to know of it after his grandchildren by Augusto
and Fausta Gonzales went to his house that night of February 21, 1981 to inform him. 32

The trial court disregarded the version of the defense; it believed the testimony of Huntoria.

On appeal to the Court of Appeals, Custodia Gonzales, Sr., the lone appellant, contended that the trial court erred in
convicting him on the basis of the testimony of Jose Huntoria, the lone alleged eyewitness, and in not appreciating
his defense of alibi.

The Court of Appeals found no merit in both assigned errors. In upholding Huntoria's testimony, the appellate court
held that:
 . . . Huntoria positively identified all the accused, including the herein accused-appellant, as the
assailants of Peñacerrada. (TSN, p. 43, July 27, 1982) The claim that Huntoria would have difficulty
recognizing the assailant at a distance of 15 to 20 meters is without merit, considering that Huntoria
knew all the accused. (Id., pp. 37-39) If Huntoria could not say who was hacking and who was
stabbing the deceased, it was only because the assailant were moving around the victim.

As for the delay in reporting the incident to the authorities, we think that Huntoria's explanation is
satisfactory. He said he feared for his life. (Id., pp. 50-51, 65) As stated in People vs. Realon, 99
SCRA 442, 450 (1980): "The natural reticence of most people to get involved in a criminal case is of
judicial notice. As held in People v. Delfin, '. . . the initial reluctance of witnesses in this country to
volunteer information about a criminal case and their unwillingness to be involved in or dragged into
criminal investigations is common, and has been judicially declared not to affect credibility.'"

It is noteworthy that the accused-appellant self admitted that he had known Huntoria for about 10
years and that he and Huntoria were in good terms and had no misunderstanding whatsoever. (TSN,
p. 33, July 18, 1984) He said that he could not think of any reason why Huntoria should implicate
him. (Id., p. 34) Thus, Huntoria's credibility. is beyond question. 33

The Court of Appeals likewise rejected the appellant's defense of alibi. 34 The appellate court, however, found the
sentence imposed by the trial court on the accused-appellant erroneous. Said the appellate court:

Finally, we find that the trial court erroneously sentenced the accused-appellant to 12 years and 1
day to 17 years and 4 months of reclusion temporal. The penalty for murder under Article 248
is reclusion temporal in its maximum period to death. As there was no mitigating or aggravating
circumstance, the imposible penalty should be reclusion perpetua. Consequently, the appeal should
have been brought to the Supreme Court. With regard to the indemnity for death, the award of
P40,000.00 should be reduced to P30,000.00, in accordance with the rulings of the Supreme Court.
(E.g., People v. De la Fuente, 126 SCRA 518 (1983); People v. Atanacio, 128 SCRA 31 (1984);
People v. Rado, 128 SCRA 43 (1984); People v. Bautista, G.R. No. 68731, Feb. 27, 1987).35

The case, as mentioned earlier, is now before us upon certification by the Court of Appeals, the penalty imposed
being reclusion perpetua.

After a careful review of the evidence adduced by the prosecution, we find the same insufficient to convict the
appellant of the crime charged.

To begin with, the investigation conducted by the police authorities leave much to be desired. Patrolman Centeno of
the Ajuy police force in his sworn statements 36 even gave the date of the commission of the crime as "March 21,
1981." Moreover, the sketch 37 he made of the scene is of little help. While indicated thereon are the alleged various
blood stains and their locations relative to the scene of the crime, there was however no indication as to their
quantity. This is rather unfortunate for the prosecution because, considering that there are two versions proferred on
where the killing was carried out, the extent of blood stains found would have provided a more definite clue as to
which version is more credible. If, as the version of the defense puts it, the killing transpired inside the bedroom of
the Gonzales spouses, there would have been more blood stains inside the couple's bedroom or even on the
ground directly under it. And this circumstance would provide an additional mooring to the claim of attempted rape
asseverated by Fausta. On the other hand, if the prosecution's version that the killing was committed in the field
near the linasan is the truth, then blood stains in that place would have been more than in any other place.

The same sloppiness characterizes the investigation conducted by the other authorities. Police Corporal Ben Sazon
who claimed that accused Augusto Gonzales surrendered to him on February 23, 1981 failed to state clearly the
reason for the "surrender." It would even appear that Augusto "surrendered" just so he could be safe from possible
revenge by the victim's kins. Corporal Sazon likewise admitted that Augusto never mentioned to him the
participation of other persons in the killing of the victim. Finally, without any evidence on that point, P.C.
investigators of the 321st P.C. Company who likewise conducted an investigation of the killing mentioned in their
criminal complaint 38 four other unnamed persons, aside from the spouses Augusto and Fausta Gonzales, to have
conspired in killing Lloyd Peñacerrada.
Now on the medical evidence. Dr. Rojas opined that it is possible that the sixteen wounds described in the autopsy
report were caused by two or more bladed instruments. Nonetheless, he admitted the possibility that one bladed
instrument might have caused all. Thus, insofar as Dr. Rojas' testimony and the autopsy report are concerned,
Fausta Gonzales' admission that she alone was responsible for the killing appears not at all too impossible. And
then there is the positive testimony of Dr. Rojas that there were only five wounds that could be fatal out of the
sixteen described in the autopsy report. We shall discuss more the significance of these wounds later.

It is thus clear from the foregoing that if the conviction of the appellant by the lower courts is to be sustained, it can
only be on the basis of the testimony of Huntoria, the self-proclaimed eyewitness. Hence, a meticulous scrutiny of
Huntoria's testimony is compelling.

To recollect, Huntoria testified that he clearly saw all the accused, including the appellant, take turns in hacking and
stabbing Lloyd Peñacerrada, at about 8:00 o'clock in the evening, on February 21, 1981, in the field near a "linasan"
while he (Huntoria) stood concealed behind a clump of banana trees some 15 to 20 meters away from where the
crime was being committed. According to him, he recognized the six accused as the malefactors because the scene
was then illuminated by the moon. He further stated that the stabbing and hacking took about an hour. But on cross-
examination, Huntoria admitted that he could not determine who among the six accused did the stabbing and/or
hacking and what particular weapon was used by each of them.

ATTY. GATON (defense counsel on cross-examination):

Q And you said that the moon was bright, is it correct?

A Yes, Sir.

Q And you would like us to understand that you saw the hacking and the stabbing, at
that distance by the herein accused as identified by you?

A Yes, sir, because the moon was brightly shining.

Q If you saw the stabbing and the hacking, will you please tell this Honorable Court
who was hacking the victim?

A Because they were surrounding Peñacerrada and were in constant movement, I

could not determine who did the hacking.

ATTY. GATON:

The interpretation is not clear.

COURT:

They were doing it rapidly.

A The moving around or the hacking or the "labu" or "bunu" is rapid. I only saw the
rapid movement of their arms, Your Honor, and I cannot determine who was hacking
and who was stabbing. But I saw the hacking and the stabbing blow.

ATTY. GATON:

Q You cannot positively identify before this Court who really hacked Lloyd
Peñacerrada?

A Yes sir, I cannot positively tell who did the hacking.

Q And likewise you cannot positively tell this Honorable Court who did the stabbing?
 A Yes sir, and because of the rapid movements.

Q I noticed in your direct testimony that you could not even identify the weapons
used because according to you it was just flashing?

A Yes, sir.39

(Emphasis supplied)

From his very testimony, Huntoria failed to impute a definite and specific act committed, or contributed, by the
appellant in the killing of Lloyd Peñacerrada.

It also bears stressing that there is nothing in the findings of the trial court and of the Court of Appeals which would
categorize the criminal liability of the appellant as a principal by direct participation under Article 17, paragraph 1 of
the Revised Penal Code. Likewise, there is nothing in the evidence for the prosecution that inculpates him by
inducement, under paragraph 2 of the same Article 17, or by indispensable cooperation under paragraph 3 thereof.
What then was the direct part in the killing did the appellant perform to support the ultimate punishment imposed by
the Court of Appeals on him?

Article 4 of the Revised Penal Code provides how criminal liability is incurred.

Art. 4. Criminal liability — Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done be different from that
which he intended.

2. By any person performing an act which would be an offense against persons or property, were it
not for the inherent impossibility of its accomplishment or on account of the employment of
inadequate or ineffectual means.

(Emphasis supplied.)

Thus, one of the means by which criminal liability is incurred is through the commission of a felony. Article 3 of the
Revised Penal Code, on the other hand, provides how felonies are committed.

Art. 3. Definition — Acts and omissions punishable by law are felonies (delitos).

Felonies are committed not only by means of deceit (dolo) but also by means of fault (culpa).

There is deceit when the act is performed with deliberate intent; and there is fault when the wrongful
act results from imprudence, negligence, lack of foresight, or lack of skill.

(Emphasis supplied.)

Thus, the elements of felonies in general are: (1) there must be an act or omission; (2) the act or omission must be
punishable under the Revised Penal Code; and (3) the act is performed or the omission incurred by means of deceit
or fault.

Here, while the prosecution accuses, and the two lower courts both found, that the appellant has committed a felony
in the killing of Lloyd Peñacerrada, forsooth there is paucity of proof as to what act was performed by the appellant.
It has been said that "act," as used in Article 3 of the Revised Penal Code, must be understood as "any bodily
movement tending to produce some effect in the external world." 40 In this instance, there must therefore be shown
an "act" committed by the appellant which would have inflicted any harm to the body of the victim that produced his
death.
Yet, even Huntoria, as earlier emphasized, admitted quite candidly that he did not see who "stabbed" or who
"hacked" the victim. Thus this principal witness did not say, because he could not whether the appellant "hacked or
"stabbed" victim. In fact, Huntoria does not know what specific act was performed by the appellant. This lack of
specificity then makes the case fall short of the test laid down by Article 3 of the Revised Penal Code previously
discussed. Furthermore, the fact that the victim sustained only five fatal wounds out of the total of sixteen inflicted,
as adverted to above, while there are six accused charged as principals, it follows to reason that one of the six
accused could not have caused or dealt a fatal wound. And this one could as well be the appellant, granted ex gratia
argumenti that he took part in the hacking and stabbing alleged by Huntoria. And why not him? Is he not after all the
oldest (already sexagenarian at that time) and practically the father of the five accused? And pursuing this argument
to the limits of its logic, it is possible, nay even probable, that only four, or three, or two of the accused could have
inflicted all the five fatal wounds to the exclusion of two, three, or four of them. And stretching the logic further, it is
possible, nay probable, that all the fatal wounds, including even all the non-fatal wounds, could have been dealt by
Fausta in rage against the assault on her womanhood and honor. But more importantly, there being not an iota of
evidence that the appellant caused any of the said five fatal wounds, coupled with the prosecution's failure to prove
the presence of conspiracy beyond reasonable doubt, the appellant's conviction can not be sustained.

Additionally, Huntoria's credibility as a witness is likewise tarnished by the fact that he only came out to testify in
October 1981, or eight long months since he allegedly saw the killing on February 21, 1981. While ordinarily the
failure of a witness to report at once to the police authorities the crime he
had witnessed should not be taken against him and should not affect his credibility,41 here, the unreasonable delay in
Huntoria's coming out engenders doubt on his veracity. 42 If the silence of coming out an alleged eyewitness for
several weeks renders his credibility doubtful, 43 the more it should be for one who was mute for eight months.
Further, Huntoria's long delay in reveiling what he allegedly witnessed, has not been satisfactorily explained. His
lame excuse that he feared his life would be endangered is too pat to be believed. There is no showing that he was
threatened by the accused or by anybody. And if it were true that he feared a possible retaliation from the
accused, 44 why did he finally volunteer to testify considering that except for the spouses Augusto and Fausta
Gonzales who were already under police custody, the rest of the accused were then still free and around; they were
not yet named in the original information, 45 thus the supposed danger on Huntoria's life would still be clear and
present when he testified.

Moreover, Huntoria is not exactly a disinterested witness as portrayed by the prosecution. He admitted that he was
a tenant of the deceased. In fact, he stated that one of the principal reasons why he testified was because the victim
was also his landlord.

xxx xxx xxx

Q Now, Mr. Huntoria, why did it take you so long from the time you saw the stabbing
and hacking of Lloyd Peñacerrada when you told Mrs. Peñacerrada about what
happened to her husband?

A At first I was then afraid to tell anybody else but because I was haunted by my
conscience and secondly the victim was also my landlord I revealed what I saw to
the wife of the victim.46

xxx xxx xxx

(Emphasis ours.)

At this juncture, it may be relevant to remind that under our socioeconomic set-up, a tenant owes the very source of
his livelihood, if not existence itself, from his landlord who provides him with the land to till. In this milieu, tenants like
Huntoria are naturally beholden to their landlords and seek ways and means to ingratiate themselves with the latter.
In this instance, volunteering his services as a purported eyewitness and providing that material testimony which
would lead to the conviction of the entire family of Augusto Gonzales whose wife, Fausta, has confessed to the
killing of Lloyd Peñacerrada, would, in a perverted sense, be a way by which Huntoria sought to ingratiate himself
with the surviving family of his deceased landlord. This is especially so because the need to get into the good
graces of his landlord's family assumed a greater urgency considering that he ceased to be employed as early as
May 1981. 47 Volunteering his services would alleviate the financial distress he was in. And Huntoria proved quite
sagacious in his choice of action for shortly after he volunteered and presented himself to the victim's widow, he was
taken under the protective wings of the victim's uncle, one Dr. Biclar, who gave him employment and provided
lodging for his family. 48 Given all the foregoing circumstances, we can not help but dismiss Huntoria as an unreliable
witness, to say the least.

At any rate, there is another reason why we find the alleged participation of the appellant in the killing of Lloyd
Peñacerrada doubtful — it is contrary to our customs and traditions. Under the Filipino family tradition and culture,
aging parents are sheltered and insulated by their adult children from any possible physical and emotional harm. It is
therefore improbable for the other accused who are much younger and at the prime of their manhood, to summon
the aid or allow the participation of their 65-year old 49 father, the appellant, in the killing of their lone adversary,
granting that the victim was indeed an adversary. And considering that the appellant's residence was about one
kilometer from the scene of the crime, 50 we seriously doubt that the appellant went there just for the purpose of
aiding his three robust male sons (Custodia Jr., Nerio, and Augusta), not to mention the brother and sister, Rogelio
and Fausta, in the killing of Lloyd Peñacerrada, even if the latter were a perceived enemy.

Finally, while indeed alibi is a weak defense, 51 under appropriate circumstances, like in the instant case in which the
participation of the appellant is not beyond cavil it may be considered as exculpatory. Courts should not at once look
with disfavor at the defense of alibi for if taken in the light of the other evidence on record, it may be sufficient to
acquit the accused. 52

In fine, the guilt of the appellant has not been proven beyond reasonable doubt.

WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and the appellant is hereby
ACQUITTED. Costs de oficio.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 80762 March 19, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FAUSTA GONZALES, AUGUSTO GONZALES, CUSTODIO GONZALES, SR., CUSTODIO GONZALES, JR.,
NERIO GONZALES and ROGELIO LANIDA, accused, CUSTODIO GONZALES, SR., accused-appellant.

SARMIENTO, J.:

In a decision 1 dated October 31, 1984, the Regional Trial Court of Iloilo, Branch XXXVIII (38), in Criminal Case No.
13661, entitled "People of the Philippines vs. Fausta Gonzales, Augusto Gonzales, Custodia Gonzales, Custodio
Gonzales, Jr., Nerio Gonzales and Rogelio Lanida," found all the accused, except Rogelio Lanida who eluded arrest
and up to now has remain at large and not yet arrained, guilty beyond reasonable doubt of the crime of murder as
defined under Article 248 of the Revised Penal Code. They were sentenced "to suffer the penalty of imprisonment of
twelve (12) years and one (1) day to seventeen (17) years and four (4) months of reclusion temporal, to indemnify
the heirs of the deceased victim in the amount of P40,000.00, plus moral damages in the sum of P14,000.00 and to
pay the costs." 2 The victim was Lloyd Peñacerrada, 44, landowner, and a resident of Barangay Aspera, Sara, Iloilo.

Through their counsel, all the accused, except of course Rogelio Lanida, filed a notice of appeal from the trial court's
decision. During the pendency of their appeal and before judgment thereon could be rendered by the Court of
Appeals, however, all the accused-appellants, except Custodio Gonzales, Sr., withdrew their appeal and chose
instead to pursue their respective applications for parole before the then Ministry, now Department, of Justice,
Parole Division. 3

On October 27, 1987, the Court of Appeals rendered a decision 4 on the appeal of Custodio Gonzales, Sr. It
modified the appealed decision in that the lone appellant was sentenced to reclusion perpetua and to indemnify the
heirs of Lloyd Peñacerrada in the amount of P30,000.00. In all other respect, the decision of the trial court was
affirmed. Further, on the basis of our ruling in People vs. Ramos, 5 the appellate court certified this case to us for
review.6

The antecedent facts are as follows:

At around 9:00 o'clock in the evening of February 21, 1981, Bartolome Paja, the barangay captain of Barangay
Tipacla, Ajuy, Iloilo, was awakened from his sleep by the spouses Augusto and Fausta Gonzales. Augusto informed
Paja that his wife had just killed their landlord, Lloyd Peñacerrada, and thus would like to surrender to the
authorities. Seeing Augusto still holding the knife allegedly used in the killing and Fausta with her dress smeared
with blood, Paja immediately ordered a nephew of his to take the spouses to the police authorities at the Municipal
Hall in Poblacion, Ajuy. As instructed, Paja's nephew brought the Gonzales spouses, who "backrode" on his
motorcycle, to the municipal building. 7 Upon reaching the Ajuy Police sub-station, the couple informed the police on
duty of the incident. That same night, Patrolman Salvador Centeno of the Ajuy Police Force and the Gonzales
spouses went back to Barangay Tipacla. Reaching Barangay Tipacla the group went to Paja's residence where
Fausta was made to stay, while Paja, Patrolman Centeno, and Augusto proceeded to the latter's residence at Sitio
Nabitasan where the killing incident allegedly occurred. 8 There they saw the lifeless body of Lloyd Peñacerrada,
clad only in an underwear, sprawled face down inside the bedroom. 9 The group stayed for about an hour during
which time Patrolman Centeno inspected the scene and started to make a rough sketch thereof and the immediate
surroundings. 10 The next day, February 22, 1981, at around 7:00 o'clock in the morning, Patrolman Centeno,
accompanied by a photographer, went back to the scene of the killing to conduct further investigations. Fausta
Gonzales, on the other hand, was brought back that same day by Barangay Captain Paja to the police substation in
Ajuy. When Patrolman Centeno and his companion arrived at Sitio Nabitasan, two members of the 321st P.C.
Company stationed in Sara, Iloilo, who had likewise been informed of the incident, were already there conducting
their own investigation. Patrolman Centeno continued with his sketch; photographs of the scene were likewise
taken. The body of the victim was then brought to the Municipal Hall of Ajuy for autopsy.

The autopsy of Lloyd Peñacerrada's cadaver was performed at about 11:20 a.m. on February 22, 1981; after
completed, a report was made with the following findings:

PHYSICAL FINDINGS

1. Deceased is about 5 ft. and 4 inches in height, body moderately built and on cadaveric rigidity.

EXTERNAL FINDINGS

1. Puncture wound, 1 cm. in width, 9 cm. in length, located at the lower 3rd anterior aspect of the
arm, right, directed upward to the right axillary pit.

2. Stab wound, thru and thru, located at the proximal 3rd, forearm right, posterior aspect with an
entrance of 5 cm. in width and 9 cm. in length with an exit at the middle 3rd, posterior aspect of the
forearm, right, with 1 cm. wound exit.

3. Stab wound, thru and thru, located at the middle 3rd, posterior aspect of the forearm right, 1 cm.
in width.

4. Incised wound, 4 cm. long, depth visualizing the right lateral border of the sternum, 6th and 7th
ribs, right located 1.5 inches below the right nipple.

5. Stab wound, 2 cm. in width, 10.5 cm. in depth, directed inward to the thoracic cavity right, located
at the left midclavicular line at the level of the 5th rib left.

6. Stab wound, 2 cm. in width, 9.5 cm. in depth directed toward the right thoracic cavity, located at
the mid left scapular line at the level of the 8th intercostal space.

7. Puncture wound, 1 cm. in width, located at the base of the left armpit directed toward the left
thoracic cavity.

8. Puncture wound, 1 cm. in width, 11 cm. in length, directed toward the left deltoid muscle, located
at the upper 3rd axilla left.

9. Puncture wound, 3 cm in width, 11.5 cm in length, located at the anterior aspect, proximal 3rd arm
left, directed downward.

10. Stab wound, thru and thru, 2.5 cm. in width, and 5 cm. in length, medial aspect, palm right.

11. Stabwound, 4 cm.in width, iliac area, right, directed inward with portion of large intestine and
mysentery coming out.

12. Stab wound, 4 cm. in width, located at the posterior portion of the shoulder, right, directed
downward to the aspex of the light thoracic cavity.

13. Incised wound, 1 cm. in width, 10 cm. in length, located at the medial portion of the medial
border of the right scapula.

14. Incised wound, 1 cm. in width, 4.5 cm. in length, located at the posterior aspect of the right
elbow.

15. Incised wound, 1 cm. in width, 2 cm. in length, located at the posterior portion, middle 3rd,
forearm, right.
 16. Lacerated wound at the anterior tantanelle with fissural fracture of the skull.

INTERNAL FINDINGS:

1. Stab wound No. 5, injuring the left ventricle of the heart.

2. Stab wound No. 6, severely injuring the right lower lobe of the lungs.

3. Stab wound No. 7, injuring the right middle lobe of the lungs.

4. Stab wound No. 11, injuring the descending colon of the large intestine, thru and
thru.

5. Stab wound No. 12, severely injuring the apex of the right lungs (sic).

CAUSE OF DEATH:

MASSIVE HEMMORRHAGE DUE TO MULTIPLE LACERATED,

STABBED (sic), INCISED AND PUNCTURED WOUNDS.

JESUS
D.
ROJAS
, M.D.
Rural
Health
Physici
an
Ajuy,
Iloilo 11

The autopsy report thus showed that Dr. Rojas "found sixteen (16) wounds, five (5) of which are fatal because they
penetrated the internal organs, heart, lungs and intestines of the deceased." 12

On February 23, two days after the incident, Augusto Gonzales appeared before the police sub-station in the
poblacion of Ajuy and voluntarily surrendered to Police Corporal Ben Sazon for detention and protective custody for
"having been involved" in the killing of Lloyd Peñacerrada. He requested that he be taken to the P.C. headquarters
in Sara, Iloilo where his wife, Fausta, was already detained having been indorsed thereat by the Ajuy police force. 13

Based on the foregoing and on the investigations conducted by the Ajuy police force and the 321st P.C. Company,
an information for murder dated August 26, 1981, was filed by the Provincial Fiscal of Iloilo against the spouses
Augusto and Fausta Gonzales. The information read as follows:

The undersigned Provincial Fiscal accuses FAUSTA GONZALES and AUGUSTO GONZALES of
the crime of MURDER committed as follows:

That on or about the 21st day of February, 1981, in the Municipality of Ajuy, Province of Iloilo,
Philippines, and within the jurisdiction of this Court, the above-named accused with four other
companions whose identities are still unknown and are still at large, armed with sharp-pointed and
deadly weapons, conspiring, confederating and helping each other, with treachery and evident
premeditation, with deliberate intent and decided purpose to kill, and taking advantage of their
superior strength and number, did then and there wilfully, unlawfully and feloniously attack, assault,
stab, hack, hit and wound Lloyd D. Peñacerrada, with the weapons with which said accused were
provided at the time, thereby inflicting upon said Lloyd D. Peñacerrada multiple wounds on different
parts of his body as shown by autopsy report attached to the record of this case which multifarious
wounds caused the immediate death of said Lloyd D. Peñacerrada.
 CONTRARY TO LAW.

Iloilo City, August 26, 1981. 14

When arraigned on September 16, 1981, Augusto and Fausta both entered a plea of not guilty. Before trial,
however, Jose Huntoria 15 who claimed to have witnessed the killing of Lloyd Peñacerrada, presented himself to
Nanie Peñacerrada, the victim's widow, on October 6, 1981, and volunteered to testify for the prosecution. A
reinvestigation of the case was therefore conducted by the Provincial Fiscal of Iloilo on the basis of which an
Amended Information, 16 dated March 3, 1982, naming as additional accused Custodio Gonzales, Sr. (the herein
appellant), Custodio Gonzales, Jr., Nerio Gonzales, and Rogelio Lanida, was filed. Again, all the accused except as
earlier explained, Lanida, pleaded not guilty to the crime.

At the trial, the prosecution presented Dr. Jesus Rojas, the Rural Health physician of Ajuy who conducted the
autopsy on the body of the victim; Bartolome Paja, the barangay captain of Barangay Tipacla; Patrolman Salvador
Centeno and Corporal Ben Sazon of the Ajuy Police Force; Sgt. (ret) Nicolas Belicanao and Sgt. Reynaldo Palomo
of the 321st P.C. Company based in Sara, Iloilo; Jose Huntoria; and Nanie Peñacerrada, the widow.

Dr. Jesus Rojas testified that he performed the autopsy on the body of the deceased Lloyd Penacerrada at around
11:20 a.m. on February 22, 1981 after it was taken to the municipal hall of Ajuy. 17 His findings revealed that the
victim suffered from 16 wounds comprising of four (4) punctured wounds, seven (7) stab wounds, four (4) incised
wounds, and one (1) lacerated wound. In his testimony, Dr. Rojas, while admitting the possibility that only one
weapon might have caused all the wounds (except the lacerated wound) inflicted on the victim, nevertheless opined
that due to the number and different characteristics of the wounds, the probability that at least two instruments were
used is high. 18 The police authorities and the P.C. operatives for their part testified on the aspect of the investigation
they respectively conducted in relation to the incident. Nanie Peñacerrada testified mainly on the expenses she
incurred by reason of the death of her husband while Barangay Captain Bartolome Paja related the events
surrounding the surrender of the spouses Augusto and Fausta Gonzales to him, the location of the houses of the
accused, as well as on other matters.

By and large, the prosecution's case rested on Huntoria's alleged eyewitness account of the incident. According to
Huntoria, who gave his age as 30 when he testified on July 27, 1982, 19 at 5:00 o'clock in the afternoon on February
21, 1981, he left his work at Barangay Central, in Ajuy, Iloilo where he was employed as a tractor driver by one Mr.
Piccio, and walked home; 20 he took a short-cut route. 21 While passing at the vicinity of the Gonzales spouses' house
at around 8:00 o'clock in the evening, he heard cries for help. 22 Curiosity prompted him to approach the place where
the shouts were emanating. When he was some 15 to 20 meters away, he hid himself behind a clump of banana
trees. 23 From where he stood, he allegedly saw all the accused ganging upon and takings turns in stabbing and
hacking the victim Lloyd Peñacerrada, near a "linasan" or threshing platform. He said he clearly recognized all the
accused as the place was then awash in moonlight. 24 Huntoria further recounted that after the accused were
through in stabbing and hacking the victim, they then lifted his body and carried it into the house of the Gonzales
spouses which was situated some 20 to 25 meters away from the "linasan". 25 Huntoria then proceeded on his way
home. Upon reaching his house, he related what he saw to his mother and to his wife 26 before he went to
sleep. 27Huntoria explained that he did not immediately report to the police authorities what he witnessed for fear of
his life. 28 In October 1981 however, eight months after the extraordinary incident he allegedly witnessed, bothered
by his conscience plus the fact that his father was formerly a tenant of the victim which, to his mind, made him
likewise a tenant of the latter, he thought of helping the victim's widow, Nanie Peñacerrada. Hence, out of his
volition, he travelled from his place at Sitio Nabitasan, in Barangay Tipacla Municipality of Ajuy, to Sara, Iloilo where
Mrs. Peñacerrada lived, and related to her what he saw on February 21, 1981. 29

Except Fausta who admitted killing Lloyd Peñacerrada in defense of her honor as the deceased attempted to rape
her, all the accused denied participation in the crime. The herein accused-appellant, Custodio Gonzales, Sr.,
claimed that he was asleep 30 in his house which was located some one kilometer away from the scene of the
crime 31 when the incident happened. He asserted that he only came to know of it after his grandchildren by Augusto
and Fausta Gonzales went to his house that night of February 21, 1981 to inform him. 32

The trial court disregarded the version of the defense; it believed the testimony of Huntoria.
On appeal to the Court of Appeals, Custodia Gonzales, Sr., the lone appellant, contended that the trial court erred in
convicting him on the basis of the testimony of Jose Huntoria, the lone alleged eyewitness, and in not appreciating
his defense of alibi.

The Court of Appeals found no merit in both assigned errors. In upholding Huntoria's testimony, the appellate court
held that:

. . . Huntoria positively identified all the accused, including the herein accused-appellant, as the
assailants of Peñacerrada. (TSN, p. 43, July 27, 1982) The claim that Huntoria would have difficulty
recognizing the assailant at a distance of 15 to 20 meters is without merit, considering that Huntoria
knew all the accused. (Id., pp. 37-39) If Huntoria could not say who was hacking and who was
stabbing the deceased, it was only because the assailant were moving around the victim.

As for the delay in reporting the incident to the authorities, we think that Huntoria's explanation is
satisfactory. He said he feared for his life. (Id., pp. 50-51, 65) As stated in People vs. Realon, 99
SCRA 442, 450 (1980): "The natural reticence of most people to get involved in a criminal case is of
judicial notice. As held in People v. Delfin, '. . . the initial reluctance of witnesses in this country to
volunteer information about a criminal case and their unwillingness to be involved in or dragged into
criminal investigations is common, and has been judicially declared not to affect credibility.'"

It is noteworthy that the accused-appellant self admitted that he had known Huntoria for about 10
years and that he and Huntoria were in good terms and had no misunderstanding whatsoever. (TSN,
p. 33, July 18, 1984) He said that he could not think of any reason why Huntoria should implicate
him. (Id., p. 34) Thus, Huntoria's credibility. is beyond question. 33

The Court of Appeals likewise rejected the appellant's defense of alibi. 34 The appellate court, however, found the
sentence imposed by the trial court on the accused-appellant erroneous. Said the appellate court:

Finally, we find that the trial court erroneously sentenced the accused-appellant to 12 years and 1
day to 17 years and 4 months of reclusion temporal. The penalty for murder under Article 248
is reclusion temporal in its maximum period to death. As there was no mitigating or aggravating
circumstance, the imposible penalty should be reclusion perpetua. Consequently, the appeal should
have been brought to the Supreme Court. With regard to the indemnity for death, the award of
P40,000.00 should be reduced to P30,000.00, in accordance with the rulings of the Supreme Court.
(E.g., People v. De la Fuente, 126 SCRA 518 (1983); People v. Atanacio, 128 SCRA 31 (1984);
People v. Rado, 128 SCRA 43 (1984); People v. Bautista, G.R. No. 68731, Feb. 27, 1987).35

The case, as mentioned earlier, is now before us upon certification by the Court of Appeals, the penalty imposed
being reclusion perpetua.

After a careful review of the evidence adduced by the prosecution, we find the same insufficient to convict the
appellant of the crime charged.

To begin with, the investigation conducted by the police authorities leave much to be desired. Patrolman Centeno of
the Ajuy police force in his sworn statements 36 even gave the date of the commission of the crime as "March 21,
1981." Moreover, the sketch 37 he made of the scene is of little help. While indicated thereon are the alleged various
blood stains and their locations relative to the scene of the crime, there was however no indication as to their
quantity. This is rather unfortunate for the prosecution because, considering that there are two versions proferred on
where the killing was carried out, the extent of blood stains found would have provided a more definite clue as to
which version is more credible. If, as the version of the defense puts it, the killing transpired inside the bedroom of
the Gonzales spouses, there would have been more blood stains inside the couple's bedroom or even on the
ground directly under it. And this circumstance would provide an additional mooring to the claim of attempted rape
asseverated by Fausta. On the other hand, if the prosecution's version that the killing was committed in the field
near the linasan is the truth, then blood stains in that place would have been more than in any other place.

The same sloppiness characterizes the investigation conducted by the other authorities. Police Corporal Ben Sazon
who claimed that accused Augusto Gonzales surrendered to him on February 23, 1981 failed to state clearly the
reason for the "surrender." It would even appear that Augusto "surrendered" just so he could be safe from possible
revenge by the victim's kins. Corporal Sazon likewise admitted that Augusto never mentioned to him the
participation of other persons in the killing of the victim. Finally, without any evidence on that point, P.C.
investigators of the 321st P.C. Company who likewise conducted an investigation of the killing mentioned in their
criminal complaint 38 four other unnamed persons, aside from the spouses Augusto and Fausta Gonzales, to have
conspired in killing Lloyd Peñacerrada.

Now on the medical evidence. Dr. Rojas opined that it is possible that the sixteen wounds described in the autopsy
report were caused by two or more bladed instruments. Nonetheless, he admitted the possibility that one bladed
instrument might have caused all. Thus, insofar as Dr. Rojas' testimony and the autopsy report are concerned,
Fausta Gonzales' admission that she alone was responsible for the killing appears not at all too impossible. And
then there is the positive testimony of Dr. Rojas that there were only five wounds that could be fatal out of the
sixteen described in the autopsy report. We shall discuss more the significance of these wounds later.

It is thus clear from the foregoing that if the conviction of the appellant by the lower courts is to be sustained, it can
only be on the basis of the testimony of Huntoria, the self-proclaimed eyewitness. Hence, a meticulous scrutiny of
Huntoria's testimony is compelling.

To recollect, Huntoria testified that he clearly saw all the accused, including the appellant, take turns in hacking and
stabbing Lloyd Peñacerrada, at about 8:00 o'clock in the evening, on February 21, 1981, in the field near a "linasan"
while he (Huntoria) stood concealed behind a clump of banana trees some 15 to 20 meters away from where the
crime was being committed. According to him, he recognized the six accused as the malefactors because the scene
was then illuminated by the moon. He further stated that the stabbing and hacking took about an hour. But on cross-
examination, Huntoria admitted that he could not determine who among the six accused did the stabbing and/or
hacking and what particular weapon was used by each of them.

ATTY. GATON (defense counsel on cross-examination):

Q And you said that the moon was bright, is it correct?

A Yes, Sir.

Q And you would like us to understand that you saw the hacking and the stabbing, at
that distance by the herein accused as identified by you?

A Yes, sir, because the moon was brightly shining.

Q If you saw the stabbing and the hacking, will you please tell this Honorable Court
who was hacking the victim?

A Because they were surrounding Peñacerrada and were in constant movement, I

could not determine who did the hacking.

ATTY. GATON:

The interpretation is not clear.

COURT:

They were doing it rapidly.

A The moving around or the hacking or the "labu" or "bunu" is rapid. I only saw the
rapid movement of their arms, Your Honor, and I cannot determine who was hacking
and who was stabbing. But I saw the hacking and the stabbing blow.

ATTY. GATON:
 Q You cannot positively identify before this Court who really hacked Lloyd
Peñacerrada?

A Yes sir, I cannot positively tell who did the hacking.

Q And likewise you cannot positively tell this Honorable Court who did the stabbing?

A Yes sir, and because of the rapid movements.

Q I noticed in your direct testimony that you could not even identify the weapons
used because according to you it was just flashing?

A Yes, sir.39

(Emphasis supplied)

From his very testimony, Huntoria failed to impute a definite and specific act committed, or contributed, by the
appellant in the killing of Lloyd Peñacerrada.

It also bears stressing that there is nothing in the findings of the trial court and of the Court of Appeals which would
categorize the criminal liability of the appellant as a principal by direct participation under Article 17, paragraph 1 of
the Revised Penal Code. Likewise, there is nothing in the evidence for the prosecution that inculpates him by
inducement, under paragraph 2 of the same Article 17, or by indispensable cooperation under paragraph 3 thereof.
What then was the direct part in the killing did the appellant perform to support the ultimate punishment imposed by
the Court of Appeals on him?

Article 4 of the Revised Penal Code provides how criminal liability is incurred.

Art. 4. Criminal liability — Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done be different from that
which he intended.

2. By any person performing an act which would be an offense against persons or property, were it
not for the inherent impossibility of its accomplishment or on account of the employment of
inadequate or ineffectual means.

(Emphasis supplied.)

Thus, one of the means by which criminal liability is incurred is through the commission of a felony. Article 3 of the
Revised Penal Code, on the other hand, provides how felonies are committed.

Art. 3. Definition — Acts and omissions punishable by law are felonies (delitos).

Felonies are committed not only by means of deceit (dolo) but also by means of fault (culpa).

There is deceit when the act is performed with deliberate intent; and there is fault when the wrongful
act results from imprudence, negligence, lack of foresight, or lack of skill.

(Emphasis supplied.)

Thus, the elements of felonies in general are: (1) there must be an act or omission; (2) the act or omission must be
punishable under the Revised Penal Code; and (3) the act is performed or the omission incurred by means of deceit
or fault.
Here, while the prosecution accuses, and the two lower courts both found, that the appellant has committed a felony
in the killing of Lloyd Peñacerrada, forsooth there is paucity of proof as to what act was performed by the appellant.
It has been said that "act," as used in Article 3 of the Revised Penal Code, must be understood as "any bodily
movement tending to produce some effect in the external world." 40 In this instance, there must therefore be shown
an "act" committed by the appellant which would have inflicted any harm to the body of the victim that produced his
death.

Yet, even Huntoria, as earlier emphasized, admitted quite candidly that he did not see who "stabbed" or who
"hacked" the victim. Thus this principal witness did not say, because he could not whether the appellant "hacked or
"stabbed" victim. In fact, Huntoria does not know what specific act was performed by the appellant. This lack of
specificity then makes the case fall short of the test laid down by Article 3 of the Revised Penal Code previously
discussed. Furthermore, the fact that the victim sustained only five fatal wounds out of the total of sixteen inflicted,
as adverted to above, while there are six accused charged as principals, it follows to reason that one of the six
accused could not have caused or dealt a fatal wound. And this one could as well be the appellant, granted ex gratia
argumenti that he took part in the hacking and stabbing alleged by Huntoria. And why not him? Is he not after all the
oldest (already sexagenarian at that time) and practically the father of the five accused? And pursuing this argument
to the limits of its logic, it is possible, nay even probable, that only four, or three, or two of the accused could have
inflicted all the five fatal wounds to the exclusion of two, three, or four of them. And stretching the logic further, it is
possible, nay probable, that all the fatal wounds, including even all the non-fatal wounds, could have been dealt by
Fausta in rage against the assault on her womanhood and honor. But more importantly, there being not an iota of
evidence that the appellant caused any of the said five fatal wounds, coupled with the prosecution's failure to prove
the presence of conspiracy beyond reasonable doubt, the appellant's conviction can not be sustained.

Additionally, Huntoria's credibility as a witness is likewise tarnished by the fact that he only came out to testify in
October 1981, or eight long months since he allegedly saw the killing on February 21, 1981. While ordinarily the
failure of a witness to report at once to the police authorities the crime he
had witnessed should not be taken against him and should not affect his credibility,41 here, the unreasonable delay in
Huntoria's coming out engenders doubt on his veracity. 42 If the silence of coming out an alleged eyewitness for
several weeks renders his credibility doubtful, 43 the more it should be for one who was mute for eight months.
Further, Huntoria's long delay in reveiling what he allegedly witnessed, has not been satisfactorily explained. His
lame excuse that he feared his life would be endangered is too pat to be believed. There is no showing that he was
threatened by the accused or by anybody. And if it were true that he feared a possible retaliation from the
accused, 44 why did he finally volunteer to testify considering that except for the spouses Augusto and Fausta
Gonzales who were already under police custody, the rest of the accused were then still free and around; they were
not yet named in the original information, 45 thus the supposed danger on Huntoria's life would still be clear and
present when he testified.

Moreover, Huntoria is not exactly a disinterested witness as portrayed by the prosecution. He admitted that he was
a tenant of the deceased. In fact, he stated that one of the principal reasons why he testified was because the victim
was also his landlord.

xxx xxx xxx

Q Now, Mr. Huntoria, why did it take you so long from the time you saw the stabbing
and hacking of Lloyd Peñacerrada when you told Mrs. Peñacerrada about what
happened to her husband?

A At first I was then afraid to tell anybody else but because I was haunted by my
conscience and secondly the victim was also my landlord I revealed what I saw to
the wife of the victim.46

xxx xxx xxx

(Emphasis ours.)

At this juncture, it may be relevant to remind that under our socioeconomic set-up, a tenant owes the very source of
his livelihood, if not existence itself, from his landlord who provides him with the land to till. In this milieu, tenants like
Huntoria are naturally beholden to their landlords and seek ways and means to ingratiate themselves with the latter.
In this instance, volunteering his services as a purported eyewitness and providing that material testimony which
would lead to the conviction of the entire family of Augusto Gonzales whose wife, Fausta, has confessed to the
killing of Lloyd Peñacerrada, would, in a perverted sense, be a way by which Huntoria sought to ingratiate himself
with the surviving family of his deceased landlord. This is especially so because the need to get into the good
graces of his landlord's family assumed a greater urgency considering that he ceased to be employed as early as
May 1981. 47 Volunteering his services would alleviate the financial distress he was in. And Huntoria proved quite
sagacious in his choice of action for shortly after he volunteered and presented himself to the victim's widow, he was
taken under the protective wings of the victim's uncle, one Dr. Biclar, who gave him employment and provided
lodging for his family. 48 Given all the foregoing circumstances, we can not help but dismiss Huntoria as an unreliable
witness, to say the least.

At any rate, there is another reason why we find the alleged participation of the appellant in the killing of Lloyd
Peñacerrada doubtful — it is contrary to our customs and traditions. Under the Filipino family tradition and culture,
aging parents are sheltered and insulated by their adult children from any possible physical and emotional harm. It is
therefore improbable for the other accused who are much younger and at the prime of their manhood, to summon
the aid or allow the participation of their 65-year old 49 father, the appellant, in the killing of their lone adversary,
granting that the victim was indeed an adversary. And considering that the appellant's residence was about one
kilometer from the scene of the crime, 50 we seriously doubt that the appellant went there just for the purpose of
aiding his three robust male sons (Custodia Jr., Nerio, and Augusta), not to mention the brother and sister, Rogelio
and Fausta, in the killing of Lloyd Peñacerrada, even if the latter were a perceived enemy.

Finally, while indeed alibi is a weak defense, 51 under appropriate circumstances, like in the instant case in which the
participation of the appellant is not beyond cavil it may be considered as exculpatory. Courts should not at once look
with disfavor at the defense of alibi for if taken in the light of the other evidence on record, it may be sufficient to
acquit the accused. 52

In fine, the guilt of the appellant has not been proven beyond reasonable doubt.

WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and the appellant is hereby
ACQUITTED. Costs de oficio.

SO ORDERED.
 FIRST DIVISION

[G.R. No. 5126. September 2, 1909. ]

THE UNITED STATES, Plaintiff-Appellee, v. CATALINO APOSTOL, Defendant-Appellant.

Francisco Ortigas for Appellant.

Solicitor-General Harvey for Appellee.

SYLLABUS

1. ARSON; EDIFICE USED AS DWELLING. — The words "Edifice used as a dwelling" in paragraph 1 of article 553 of the Penal
Code, signify and edifice intended for human habitation, in an uninhabited place, at a time when it is unoccupied.

DECISION

ARELLANO, C.J. :

The judgment entered in this case by the Court of First Instance of Nueva Ecija finds that on the 16th of December, 1907,
five individuals, among them being the accused herein, went to the house where Pedro Tabilisima, Celestino Vergara, and
Tranquilino Manipul were living, and there inquired after some carabaos that had disappeared, and because these above-
mentioned inmates answered that they knew nothing about the matter, ordered them to leave the house, but as the three
men named above refused to do so, the accused, Catalino Apostol, set fire to the hut and the same was burnt down.

In the opinion of the trial court the responsibility of the accused has been fully established by the testimony of the injured
parties. And inasmuch as,, according to the same, the act comes within the provisions of article 549 of the Penal Code,
Catalino Apostol was sentenced to sixteen years and one day of cadena temporal, to the accessories of the law, to indemnity
the value of the burnt hut in the sum of P1, and to pay the costs.

An appeal having been taken to this court, the defense claimed, on behalf of the offender: (1) The absence of proof of
criminal intent; (2) that in view of the fact that the burnt hut was situated in an uninhabited place, it is not proper to apply
article 549, but article 554 of the Penal Code.

Criminal intent as well as the will to commit a crime are always presumed to exist on the part of the person who executes an
act which the law punishes, unless the contrary shall appear. (Art. 1, Penal Code.)

As to the circumstances connected with the burning of the hut, Pedro Tabilisima testified that he and his friends were in the
same; that the accused and his companions arrived at 8 p.m. and questioned them about carabaos that they said had been
stolen from them; that after they replied that they knew nothing, the former set fire to the house and they jumped out of it;
that the witness and two companions lived in the house; that it was situated in an uninhabited place, surrounded by fields;
that the nearest houses were far away, and cries could not be heard from one house to another; and that the burnt house
was not worth more than P1, because it was a small one, the witness himself having constructed it.

Celestino Vergara says that several individuals arrived at 8 o’clock at night, asked them for carabaos that they claimed to
have lost, wounded Tranquilino Manipul, who was asleep, and Pedro Tabilisima, forced them to leave the house, and as they
did not want to do so for fear of being assaulted the accused set fire to the same; they tried to put out the fire as long as
they could, but when no longer able jumped out of the house. The house was in an uninhabited locality, in the fields, the
nearest house being a small store to which the cry of a person might carry, and the neighboring houses could be seen.

Tranquilino Manipul testified in almost the same terms as this last witness. The argument which the defense advances, based
on article 554, which in connection with 553 punishes the setting fire to a building intended for habitation, in an uninhabited
place, does not apply, because the article in question refers to an edifice intended for human habitation in an uninhabited
place at a time when the same is unoccupied. It is article 549, which punishes with the very severe penalties of cadena
temporal to cadena perpetua "those who shall set fire to any edifice, farmhouse, hut, shed, or vessel in port, with knowledge
that one or more persons were within the same," that must be applied.

The law must be applied as laid down in the abovequoted excerpt.

But the court, in view of the nature of the crime and considering the circumstances attending the same, recognizes the
extreme severity of the penalty; therefore we apply the remedy afforded it by article 2, paragraph 2, of the Penal Code,
when a strict application of the provisions of the code would result in an excessive penalty, taking into consideration the
degree of malice and the injury caused by the crime.

For the reasons above set forth the judgment appealed from is hereby affirmed with costs against the Appellant. Ten days
from date let a confirming judgment be entered, and ten days thereafter let the case be remanded to the lower court for
action.

Without prejudice to the immediate execution of the judgment, let the clerk of this court, as provided in the said article 2 of
the Penal Code, respectfully address a communication to the Honorable, the Governor-General of these Islands, giving the
result of this decision and the sentence, requesting him, should he so desire, to make use of the prerogative with which he is
invested in order to reduce or mitigate the penalty imposed. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-6486 March 2, 1911

THE UNITED STATES, plaintiff-appellee,

vs.
RAFAEL B. CATOLICO, defendant-appellant.

B. Pobre for appellant.

Acting Attorney-General Harvey for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of the Province of Cagayan, Hon. Charles A. Low
presiding, convicting the defendant of the crime of malversation of public funds and sentencing him to two months'
imprisonment, to perpetual disqualification to hold public office or public employment of any kind, and to the payment of
the costs.

It appears from the proofs of the prosecution that the accused as justice of the peace of Baggao, Province of Cagayan, on
the 2d day of October, 1909, had before him sixteen separate civil cases commenced by Juan Canillas against sixteen
distinct individuals, each one for damages resulting from a breach of contract; that said cases were all decided by the
appellant in favor of the plaintiff; that each one of the defendant in said cases appealed from the decision of the justice of
the peace and deposited P16 as required by law, at the same time giving a bond of P50, each one of which was approved
by the court; that on the 12th day of said month the plaintiff in said cases presented a writing to the appellant as said
justice of the peace, alleging that the sureties on the said bonds were insolvent and later demonstrated this to the
satisfaction of the appellant; that thereupon the latter ordered the cancellation of the said bonds and, in the same order,
required each of the appellants to file another bond within fifteen days, that, inasmuch as none of the appellants in said
causes presented new bonds within the time fixed, the plaintiff in said causes applied to the appellant, as said court, for
an order declaring final the judgment entered in each of the said sixteen cases and commanding the execution of the
same, at the same time asking that the sums deposited by the defendants in said actions be attached (so called in the
record) and delivered to him in satisfaction of said judgments; that the accused acceded to the petition of the plaintiff,
ordered said sums attached and delivered same to the plaintiff, at the same time requiring of the plaintiff a bond of P50 for
each attachment, conditioned that he would respond for the damages which should result from such attachment.

After this attachment (so called) the attorney for the defendants in the said sixteen cases presented a complaint against
the appellant to the Court of First Instance, by virtue of which said court ordered that the plaintiff, Juan Canillas, deliver to
the clerk of the Court of First Instance the sums deposited by the defendants in said actions. Canillas obeyed the order of
the court and made the delivery as required.

Upon these facts the Acting Attorney-General recommends the acquittal of the accused. We are in entire accord with that
recommendation. The case made against the appellant lacks many of the essential elements required by law to be
present in the crime of malversation of public funds. The accused did not convert the money to his own use or to the use
of any other person; neither did he feloniously permit anybody else to convert it. Everything he did was done in good faith
under the belief that he was acting judicially and correctly. The fact that he ordered the sums, deposited in his hands by
the defendants — appellants in the sixteen actions referred to, attached for the benefit of the plaintiff in those actions,
after the appeals had been dismissed and the judgments in his court had become final, and that he delivered the said
sums to the plaintiff in satisfaction of the judgment which he held in those cases, can not be considered an appropriation
or a taking of said sums within the meaning of Act No. 1740. He believed that, as presiding officer of the court of justice of
the peace, he had a perfect right under the law to cancel the bonds when it was clearly shown to him that the sureties
thereon were insolvent, to require the filing of new undertakings, giving the parties ample time within which to do so, to
dismiss the appeals in case said undertakings were not filed, and to declare the judgment final. He believed that after said
appeals had been dismissed and said judgment had become final, the sums deposited were subject to be applied in
payment of the judgments in the actions in which said sums had been deposited and that he was acting judicially and
legally in making such applications.
To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent,
or by such negligence or indifference to duty or to consequences, as, in law, is equivalent to criminal intent. The maxim
is, actus non facit reum, nisi mens rea — a crime is not committed if the mind of the person performing the act complained
of be innocent.

In the case at bar the appellant was engaged in exercising the functions of a court of justice of the peace. He had
jurisdictions of the actions before him. He had a right and it was his duty to require the payment by each appellant of P16,
as well as the giving of a proper undertaking with solvent sureties. While, in dismissing the appeals and delivering the
P256 to the plaintiff in the said cases, he may have exceeded his authority as such court and passed beyond the limits of
his jurisdiction and power, a question we do not now discuss or decide, it was, so far as appears from the record, at most
a pure mistake of judgment, an error of the mind operating upon a state of facts. Giving the act complained of the
signification most detrimental to the appellant, it, nevertheless, was simply the result of the erroneous exercise of the
judicial function, and not an intention to deprive any person of his property feloniously. His act had back of it the purpose
to do justice to litigants and not to embezzle property. He acted that honest debts might be paid to those to whom they
were legally and justly due, and not to enrich himself or another by criminalmisappropriation. It was an error committed by
a court, not an act done by a criminal-minded man. It was a mistake, not a crime.

It is true that a presumption of criminal intention may arise from proof of the commission of a criminal act; and the general
rule is that, if it is proved that the accused committed the criminal act charged, it will be presumed that the act was done
with criminal intention, and that it is for the accused to rebut this presumption. But it must be borne in mind that the act
from which such presumption springs must be a criminal act. In the case before us the act was not criminal. It may have
been an error; it may have been wrong and illegal in the sense that it would have been declared erroneous and set aside
on appeal or other proceeding in the superior court. It may well be that his conduct was arbitrary to a high degree, to such
a degree in fact as properly to subject him to reprimand or even suspension or removal from office. But, from the facts of
record, it was not criminal. As a necessary result no presumption of criminal intention arises from the act.

Neither can the presumption of a criminal intention arise from the act complained of, even though it be admitted that the
crime, if any, is that of malversation of public funds as defined and penalized in Act No. 1740. It is true that that Act
provides that "In all prosecutions for violations of the preceding section, the absence of any of the public funds or property
of which any person described in said section has charge, and any failure or inability of such person to produce all the
funds and property properly in his charge on the demand of any officer authorized to examine or inspect such person,
office, treasury, or depositary shall be deemed to be prima facie evidence that such missing funds or property have been
put to personal uses or used for personal ends by such person within the meaning of the preceding section."
Nevertheless, that presumption is a rebuttable one and constitutes only a prima facie case against the person accused. If
he present evidence showing that, in fact, he has not put said funds or property to personal uses, then that presumption is
at an end and the prima facie case destroyed. In the case at bar it was necessary for the accused to offer any such
evidence, for the reason that the people's own pleading alleged, and its own proofs presented, along with the criminal
charge, facts which showed, of themselves, that said money had not been put to personal uses or used for personal ends.
In other words, the prosecution demonstrated, both by the allegations in its information filed against the accused and by
its proofs on the trial, that the absence of the funds in question was not due to the personal use thereof by the accused,
thus affirmatively and completely negativing the presumption which, under the act quoted, arises from the absence of the
funds. The presumption was never born. It never existed. The facts which were presented for the purpose of creating such
presumption were accompanied by other facts which absolutely prevented its creation.

On the other hand, if it be admitted that the crime, if any, is that of estafa, as defined in paragraph 5 of article 535 of the
Penal Code, then the presumption just referred to does not arise. Mere absence of the funds is not sufficient proof of
conversion. Neither is the mere failure of the accused to turn over the funds at any given time sufficient to make even
a prima facie case. (U. S. vs. Morales, 15 Phil. Rep., 236; U. S. vs. Dominguez, 2 Phil. Rep., 580.) Conversion must be
affirmatively proved, either by direct evidence or by the production of facts from which conversion necessarily follows. (U.
S. vs. Morales, supra.)

The judgment of conviction is reversed and the defendant ordered discharged from custody forthwith.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 97471 February 17, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias "Enry," accused-appellants.

The Solicitor General for plaintiff-appellee.

Edward C. Castañeda for accused-appellants.

REGALADO, J.:

The primal issue for resolution in this case is whether accused-appellants committed the felony of kidnapping for ransom
under Article 267 of the Revised Penal Code, as charged in the information; or a violation of Presidential Decree No. 532
(Anti-Piracy and Anti-Highway Robbery Law of 1974), as contended by the Solicitor General and found by the trial court;
or the offense of simple robbery punished by Paragraph 5, Article 294 of the Revised Penal Code, as claimed by the
defense.

In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon City, Branch 103, as Criminal
Case No. Q-57404 thereof, appellants were charged with kidnapping for ransom allegedly committed in the following
manner:

That on or about the 13th day of January, 1988 in Quezon City, Philippines and within the jurisdiction of
this Honorable Court, the said accused, being then private individuals, conspiring together, confederating
with and mutually helping each other, did, then and there, wilfully, unlawfully and feloniously kidnap and
carry away one MARIA DEL SOCORRO SARMIENTO y MUTUC * for the purpose of extorting ransom, to
the damage and prejudice of the said offended party in such amount as may be awarded to her under the
provisions of the Civil Code.1

On a plea of not guilty when arraigned,2 appellants went to trial which ultimately resulted in a judgment promulgated on
September 26, 1990 finding them guilty of robbery with extortion committed on a highway, punishable under Presidential
Decree No. 532, with this disposition in the fallo thereof:

ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO PUNO and ENRIQUE
AMURAO GUILTY as principals of robbery with extortion committed on a highway and, in accordance
with P.D. 532, they are both sentenced to a jail term of reclusion perpetua.

The two accused are likewise ordered to pay jointly and severally the offended private victim Ma. Socorro
M. Sarmiento the sum of P7,000.00 as actual damages and P3,000.00 as temperate damages.3

Before us now in this appeal, appellants contend that the court a quo erred (1) in convicting them under Presidential
Decree No. 532 since they were not expressly charged with a crime therein; (2) in applying Sections 4 and 5, Rule 120 of
the Rules of Court since the charge under said presidential decree is not the offense proved and cannot rightly be used as
the offense proved which is necessarily included in the offense charged.4

For the material antecedents of this case, we quote with approval the following counter-statement of facts in the People's
brief5 which adopted the established findings of the court a quo, documenting the same with page references to the
transcripts of the proceedings, and which we note are without any substantial divergence in the version proffered by the
defense.
 This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988 by the two accused
(tsn, Jan. 8, 1990, p. 7).

Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon City called Nika
Cakes and Pastries. She has a driver of her own just as her husband does (Ibid., pp. 4-6).

At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who is the personal
driver of Mrs. Sarmiento's husband (who was then away in Davao purportedly on account of local election
there) arrived at the bakeshop. He told Mrs. Socorro that her own driver Fred had to go to Pampanga on
an emergency (something bad befell a child), so Isabelo will temporary (sic) take his place (Id., pp. 8-9).

Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the Mercedes Benz of
her husband with Isabelo on (sic) the wheel. After the car turned right in (sic) a corner of Araneta Avenue,
it stopped. A young man, accused Enrique Amurao, boarded the car beside the driver (Id., pp. 9-10).

Once inside, Enrique clambered on top of the back side of the front seat and went onto where Ma.
Socorro was seated at the rear. He poke (sic) a gun at her (Id., p. 10).

Isabelo, who earlier told her that Enrique is his nephew announced, "ma'm, you know, I want to get
money from you." She said she has money inside her bag and they may get it just so they will let her go.
The bag contained P7,000.00 and was taken (Id., pp. 11-14).

Further on, the two told her they wanted P100,000.00 more. Ma. Socorro agreed to give them that but
would they drop her at her gas station in Kamagong St., Makati where the money is? The car went about
the Sta. Mesa area. Meanwhile, Ma. Socorro clutched her Rosary and prayed. Enrique's gun was
menacingly storing (sic) at her soft bread (sic) brown, perfumed neck. He said he is an NPA and
threatened her (Id., p.15).

The car sped off north towards the North superhighway. There Isabelo, Beloy as he is called, asked Ma.
Socorro to issue a check for P100,000.00. Ma. Socorro complied. She drafted 3 checks in denominations
of two for P30 thousand and one for P40 thousand. Enrique ordered her to swallow a pill but she refused
(Id., pp. 17-23).

Beloy turned the car around towards Metro Manila. Later, he changed his mind and turned the car again
towards Pampanga. Ma. Socorro, according to her, jumped out of the car then, crossed to the other side
of the superhighway and, after some vehicles ignored her, she was finally able to flag down a fish
vendors van. Her dress had blood because, according to Ma. Socorro, she fell down on the ground and
was injured when she jumped out of the car. Her dress was torn too (Id., pp. 23-26).

On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27).

Both accused were, day after, arrested. Enrique was arrested trying to encash Ma. Socorro's P40,000.00
check at PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13)6

As observed by the court below, the defense does not dispute said narrative of complainant, except that, according to
appellant Puno, he stopped the car at North Diversion and freely allowed complainant to step out of the car. He even
slowed the car down as he drove away, until he saw that his employer had gotten a ride, and he claimed that she fell
down when she stubbed her toe while running across the highway. 7

Appellants further testified that they brought the Mercedez Benz car to Dolores, San Fernando, Pampanga and parked it
near a barangay or police outpost. They thereafter ate at a restaurant and divided their loot.8 Much later, when he took the
stand at the trial of this case, appellant Puno tried to mitigate his liability by explaining that he was in dire need of money
for the medication of his ulcers.9

On these relatively simple facts, and as noted at the start of this opinion, three theories have been advanced as to what
crime was committed by appellants. The trial court cohered with the submission of the defense that the crime could not be
kidnapping for ransom as charged in the information. We likewise agree.
Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination of the crime for which the
accused should be held liable in those instances where his acts partake of the nature of variant offenses, and the same
holds true with regard to the modifying or qualifying circumstances thereof, his motive and specific intent in perpetrating
the acts complained of are invaluable aids in arriving at a correct appreciation and accurate conclusion thereon.

Thus, to illustrate, the motive of the accused has been held to be relevant or essential to determine the specific nature of
the crime as, for instance, whether a murder was committed in the furtherance of rebellion in which case the latter
absorbs the former, or whether the accused had his own personal motives for committing the murder independent of his
membership in the rebellious movement in which case rebellion and murder would constitute separate offenses. 10 Also,
where injuries were inflicted on a person in authority who was not then in the actual performance of his official duties, the
motive of the offender assumes importance because if the attack was by reason of the previous performance of official
duties by the person in authority, the crime would be direct assault; otherwise, it would only be physical injuries. 11

In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to or at the time they
committed the wrongful acts against complainant, other than the extortion of money from her under the compulsion of
threats or intimidation. This much is admitted by both appellants, without any other esoteric qualification or dubious
justification. Appellant Puno, as already stated, candidly laid the blame for his predicament on his need for funds for, in his
own testimony, "(w)hile we were along the way Mam (sic) Corina was telling me "Beloy, I know your family very well and I
know that your (sic) not (a) bad person, why are you doing this?" I told her "Mam, (sic), because I need money and I had
an ulcer and that I have been getting an (sic) advances from our office but they refused to give me any bale (sic). . . ." 12

With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the victim, we can rely on the
proverbial rule of ancient respectability that for this crime to exist, there must be indubitable proof that
the actual intent of the malefactors was to deprive the offended party of her liberty, 13 and not where such restraint of her
freedom of action was merely an incident in the commission of another offense primarily intended by the offenders.
Hence, as early as United States vs. Ancheta, 14 and consistently reiterated thereafter, 15 it has been held that the
detention and/or forcible taking away of the victims by the accused, even for an appreciable period of time but for the
primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such other offenses they
committed in relation thereto, but the incidental deprivation of the victims' liberty does not constitute kidnapping or serious
illegal detention.

That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her personal liberty is
clearly demonstrated in the veritably confessional testimony of appellant Puno:

Q At what point did Mrs. Sarmiento handed (sic) the bag containing the P7,000.00 to your
nephew?

A Santo Domingo Exit.

Q And how about the checks, where were you already when the checks was (sic) being
handed to you?

A Also at the Sto. Domingo exit when she signed the checks.

Q If your intention was just to robbed (sic) her, why is it that you still did not allow her to
stay at Sto. Domingo, after all you already received the money and the checks?

A Because we had an agreement with her that when she signed the checks we will take
her to her house at Villa (sic) Verde.

Q And why did you not bring her back to her house at Valle Verde when she is (sic)
already given you the checks?

A Because while we were on the way back I (sic) came to my mind that if we reach
Balintawak or some other place along the way we might be apprehended by the police.
So when we reached Santa Rita exit I told her "Mam (sic) we will already stop and allow
you to get out of the car." 16
Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom, considering the
immediacy of their obtention thereof from the complainant personally. Ransom, in municipal criminal law, is the money,
price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from
captivity. 17 It can hardly be assumed that when complainant readily gave the cash and checks demanded from her at gun
point, what she gave under the circumstances of this case can be equated with or was in the concept of ransom in the law
of kidnapping. These were merely amounts involuntarily surrendered by the victim upon the occasion of a robbery or of
which she was summarily divested by appellants. Accordingly, while we hold that the crime committed is robbery as
defined in Article 293 of the Code, we, however, reject the theory of the trial court that the same constitutes the highway
robbery contemplated in and punished by Presidential Decree No. 532.

The lower court, in support of its theory, offers this ratiocination:

The court agrees that the crime is robbery. But it is also clear from the allegation in the information that
the victim was carried away and extorted for more money. The accused admitted that the robbery was
carried on from Araneta Avenue up to the North Superhighway. They likewise admitted that along the way
they intimidated Ma. Socorro to produce more money that she had with her at the time for which reason
Ma. Socorro, not having more cash, drew out three checks. . . .

In view of the foregoing the court is of the opinion that the crimes committed is that punishable under P.D.
532 (Anti-Piracy and Anti-Highway Robbery Law of 1974) under which where robbery on the highway is
accompanied by extortion the penalty is reclusion perpetua.18

The Solicitor General concurs, with the observation that pursuant to the repealing clause in Section 5 of said decree, "P.D.
No- 532 is a modification of the provisions of the Revised Penal Code, particularly Article 267 which
are inconsistent with it." 19 Such opinion and complementary submission consequently necessitate an evaluation of the
correct interplay between and the legal effects of Presidential Decree No. 532 on the pertinent Provisions of the Revised
Penal Code, on which matter we are not aware that any definitive pronouncement has as yet been made.

Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a modification of Article 267 of the
Revised Penal Code on kidnapping and serious illegal detention, but of Articles 306 and 307 on brigandage. This is
evident from the fact that the relevant portion thereof which treats of "highway robbery" invariably uses this term in the
alternative and synonymously with brigandage, that is, as "highway robbery/brigandage." This is but in line with our
previous ruling, and which still holds sway in criminal law, that highway robbers (ladrones) and brigands are
synonymous. 20

Harking back to the origin of our law on brigandage (bandolerismo) in order to put our discussion thereon in the proper
context and perspective, we find that a band of brigands, also known as highwaymen or freebooters, is more than a gang
of ordinary robbers. Jurisprudence on the matter reveals that during the early part of the American occupation of our
country, roving bands were organized for robbery and pillage and since the then existing law against robbery was
inadequate to cope with such moving bands of outlaws, the Brigandage Law was passed. 21

The following salient distinctions between brigandage and robbery are succinctly explained in a treatise on the subject
and are of continuing validity:

The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of the
offense consists in the formation of a band by more than three armed persons for the purpose indicated in
art. 306. Such formation is sufficient to constitute a violation of art. 306. It would not be necessary to
show, in a prosecution under it, that a member or members of the band actually committed robbery or
kidnapping or any other purpose attainable by violent means. The crime is proven when the organization
and purpose of the band are shown to be such as are contemplated by art 306. On the other hand, if
robbery is committed by a band, whose members were not primarily organized for the purpose of
committing robbery or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply
because robbery was committed by a band of more than three armed persons, it would not follow that it
was committed by a band of brigands. In the Spanish text of art. 306, it is required that the band "sala a
los campos para dedicarse a robar." 22 (Emphasis supplied).

In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery,
the crime is only robbery, or robbery in band if there are at least four armed participants. 23 The martial law legislator, in
creating and promulgating Presidential Decree No. 532 for the objectives announced therein, could not have been
unaware of that distinction and is presumed to have adopted the same, there being no indication to the contrary. This
conclusion is buttressed by the rule on contemporaneous construction, since it is one drawn from the time when and the
circumstances under which the decree to be construed originated. Contemporaneous exposition or construction is the
best and strongest in the law. 24

Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated by
outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of robbery
committed against only a predetermined or particular victim, is evident from the preambular clauses thereof, to wit:

WHEREAS, reports from law-enforcement agencies reveal that lawless elements are still committing acts
of depredation upon the persons and properties of innocent and defenseless inhabitants who travel from
one place to another, thereby disturbing the peace, order and tranquility of the nation and stunting the
economic and social progress of the people:

WHEREAS, such acts of depredations constitute . . . highway robbery/brigandage which are among the
highest forms of lawlessness condemned by the penal statutes of all countries;

WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts of
depredaions by imposing heavy penalty on the offenders, with the end in view of eliminating all obstacles
to the economic, social, educational and community progress of the people. (Emphasis supplied).

Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the accused as their
specific victim could be considered as committed on the "innocent and defenseless inhabitants who travel from one place
to another," and which single act of depredation would be capable of "stunting the economic and social progress of the
people" as to be considered "among the highest forms of lawlessness condemned by the penal statutes of all countries,"
and would accordingly constitute an obstacle "to the economic, social, educational and community progress of the people,
" such that said isolated act would constitute the highway robbery or brigandage contemplated and punished in said
decree. This would be an exaggeration bordering on the ridiculous.

True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the Revised Penal Code by
increasing the penalties, albeit limiting its applicability to the offenses stated therein when committed on the highways and
without prejudice to the liability for such acts if committed. Furthermore, the decree does not require that there be at least
four armed persons forming a band of robbers; and the presumption in the Code that said accused are brigands if they
use unlicensed firearms no longer obtains under the decree. But, and this we broadly underline, the essence of
brigandage under the Code as a crime of depredation wherein the unlawful acts are directed not only against specific,
intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whosoever
they may potentially be, is the same as the concept of brigandage which is maintained in Presidential Decree No. 532, in
the same manner as it was under its aforementioned precursor in the Code and, for that matter, under the old Brigandage
Law. 25

Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery committed by
appellants should be covered by the said amendatory decree just because it was committed on a highway. Aside from
what has already been stressed regarding the absence of the requisite elements which thereby necessarily puts the
offense charged outside the purview and intendment of that presidential issuance, it would be absurd to adopt a literal
interpretation that any unlawful taking of property committed on our highways would be covered thereby. It is an
elementary rule of statutory construction that the spirit or intent of the law should not be subordinated to the letter thereof.
Trite as it may appear, we have perforce to stress the elementary caveat that he who considers merely the letter of an
instrument goes but skin deep into its meaning, 26 and the fundamental rule that criminal justice inclines in favor of the
milder form of liability in case of doubt.

If the mere fact that the offense charged was committed on a highway would be the determinant for the application of
Presidential Decree No. 532, it would not be farfetched to expect mischievous, if not absurd, effects on the corpus of our
substantive criminal law. While we eschew resort to a reductio ad absurdum line of reasoning, we apprehend that the
aforestated theory adopted by the trial court falls far short of the desideratum in the interpretation of laws, that is, to avoid
absurdities and conflicts. For, if a motor vehicle, either stationary or moving on a highway, is forcibly taken at gun point by
the accused who happened to take a fancy thereto, would the location of the vehicle at the time of the unlawful taking
necessarily put the offense within the ambit of Presidential Decree No. 532, thus rendering nugatory the categorical
provisions of the Anti-Carnapping Act of 1972? 27 And, if the scenario is one where the subject matter of the unlawful
asportation is large cattle which are incidentally being herded along and traversing the same highway and are impulsively
set upon by the accused, should we apply Presidential Decree No. 532 and completely disregard the explicit prescriptions
in the Anti-Cattle Rustling Law of 1974? 28
We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present case was committed
inside a car which, in the natural course of things, was casually operating on a highway, is not within the situation
envisaged by Section 2(e) of the decree in its definition of terms. Besides, that particular provision precisely defines
"highway robbery/brigandage" and, as we have amply demonstrated, the single act of robbery conceived and committed
by appellants in this case does not constitute highway robbery or brigandage.

Accordingly, we hold that the offense committed by appellants is simple robbery defined in Article 293 and punished under
Paragraph 5 of Article 294 of the Revised Penal Code with prision correccional in its maximum period to prision mayor in
its medium period. Appellants have indisputably acted in conspiracy as shown by their concerted acts evidentiary of a
unity of thought and community of purpose. In the determination of their respective liabilities, the aggravating
circumstances of craft 29 shall be appreciated against both appellants and that of abuse of confidence shall be further
applied against appellant Puno, with no mitigating circumstance in favor of either of them. At any rate, the intimidation
having been made with the use of a firearm, the penalty shall be imposed in the maximum period as decreed by Article
295 of the Code.

We further hold that there is no procedural obstacle to the conviction of appellants of the crime of simple robbery upon an
information charging them with kidnapping for ransom, since the former offense which has been proved is necessarily
included in the latter offense with which they are charged. 30 For the former offense, it is sufficient that the elements of
unlawful taking, with intent to gain, of personal property through intimidation of the owner or possessor thereof shall be, as
it has been, proved in the case at bar. Intent to gain (animus lucrandi) is presumed to be alleged in an information where it
is charged that there was unlawful taking (apoderamiento) and appropriation by the offender of the things subject of the
robbery. 31

These foregoing elements are necessarily included in the information filed against appellants which, as formulated, allege
that they wilfully, unlawfully and feloniously kidnapped and extorted ransom from the complainant. Such allegations, if not
expressly but at the very least by necessary implication, clearly convey that the taking of complainant's money and checks
(inaccurately termed as ransom) was unlawful, with intent to gain, and through intimidation. It cannot be logically argued
that such a charge of kidnapping for ransom does not include but could negate the presence of any of the elements of
robbery through intimidation of persons. 32

WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is rendered CONVICTING
accused-appellants Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as Punished in Paragraph 5 of
Article 294, in relation to Article 295, of the Revised Penal Code and IMPOSING on each of them an indeterminate
sentence of four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as
maximum, and jointly and severally pay the offended party, Maria del Socorro M. Sarmiento, the amounts of P7,000.00 as
actual damages and P20,000.00 as moral damages, with costs.

SO ORDERED.