The petitioner in the present case appeared at the preliminary
EN BANC
G.R. No. L-2068 October 20, 1948
DOMINADOR B. BUSTOS, petitioner,
vs.
ANTONIO G. LUCERO, Judge of First Instance of Pampanga,
respondent.
E. M. Banzali for petitioner.
Acting Provincial Fiscal Albino L. Figueroa and Assistant
Provincial Fiscal Marcelo L. Mallari for respondent.
TUASON, J.:
The petitioner herein, an accused in a criminal case, filed a
motion with the Court of First Instance of Pampanga after he
had been bound over to that court for trial, praying that the
record of the case be remanded to the justice of the peace court
of Masantol, the court of origin, in order that the petitioner
might cross-examine the complainant and her witnesses in
connection with their testimony, on the strength of which
warrant was issued for the arrest of the accused. The motion was
denied and that denial is the subject matter of this proceeding.
According to the memorandum submitted by the petitioner's
attorney to the Court of First Instance in support of his motion,
the accused, assisted by counsel, appeared at the preliminary
investigation. In that investigation, the justice of the peace
informed him of the charges and asked him if he pleaded guilty
or not guilty, upon which he entered the plea of not guilty. "Then
his counsel moved that the complainant present her evidence so
that she and her witnesses could be examined and cross-
examined in the manner and form provided by law." The fiscal
and the private prosecutor objected, invoking section 11 of rule
108, and the objection was sustained. "In view thereof, the
accused's counsel announced his intention to renounce his right
to present evidence," and the justice of the peace forwarded the
case to the court of first instance.
Leaving aside the question whether the accused, after
renouncing his right to present evidence, and by reason of that
waiver he was committed to the corresponding court for trial, is
estopped, we are of the opinion that the respondent judge did
not act in excess of his jurisdiction or in abuse of discretion in
refusing to grant the accused's motion to return the record for
the purpose set out therein. In Dequito and Saling Buhay vs.
Arellano, G.R. No. L-1336, recently promulgated, in which case
the respondent justice of the peace had allowed the accused, over
the complaint's objection, to recall the complainant and her
witnesses at the preliminary investigation so that they might be
cross-examined, we sustained the justice of the peace's order. We
said that section 11 of Rule 108 does not curtail the sound
discretion of the justice of the peace on the matter. We said that
"while section 11 of Rule 108 defines the bounds of the
defendant's right in the preliminary investigation, there is
nothing in it or any other law restricting the authority, inherent
in a court of justice, to pursue a course of action reasonably
calculated to bring out the truth."
But we made it clear that the "defendant can not, as a matter of
right, compel the complaint and his witnesses to repeat in his
presence what they had said at the preliminary examination
before the issuance of the order of arrest." We called attention to
the fact that "the constitutional right of an accused to be
confronted by the witnesses against him does not apply to
preliminary hearings' nor will the absence of a preliminary
examination be an infringement of his right to confront
witnesses." As a matter of fact, preliminary investigation may
be done away with entirely without infringing the constitutional
right of an accused under the due process clause to a fair trial.
The foregoing decision was rendered by a divided court. The
minority went farther than the majority and denied even any
discretion on the part of the justice of the peace or judge holding
the preliminary investigation to compel the complainant and his
witnesses to testify anew.
Upon the foregoing considerations, the present petition is
dismissed with costs against the petitioner.
Moran, C.J., Paras, Pablo, Bengzon, and Briones, JJ., concur.
Separate Opinions
FERIA, J., dissenting:
I am sorry to dissent from the decision.
investigation before the Justice of the Peace of Masantol,
Pampanga, and after being informed of the criminal charges
against him and asked if he pleaded guilty or not guilty, pleaded
not guilty. "Then the counsel for the petitioner moved that the
complainant present her evidence so that her witnesses could be
examined and cross-examined in the manner and form provided
by law." The fiscal and the private prosecutor objected to
petitioner's motion invoking section 11, Rule 108, and the
objection was sustained. In view thereof, the accused refused to
present his evidence, and the case was forwarded to the Court of
First Instance of Pampanga.
The counsel for the accused petitioner filed a motion with the
Court of First Instance praying that the record of the case be
remanded to the justice of the peace of Masantol, in order that
the petitioner might cross-examine the complainant and her
witnesses in connection with their testimony. The motion was
denied, and for that reason the present special civil action of
mandamus was instituted.
It is evident that the refusal or waiver of the petitioner to
present his evidence during the investigation in the justice of the
peace, was not a waiver of his alleged right to be confronted with
and cross-examine the witnesses for the prosecution, that is, of
the preliminary investigation provided for in General Order No.
58 and Act No. 194, to which he claims to be entitled, as shown
by the fact that, as soon as the case was forwarded to the Court
of First Instance, counsel for the petitioner filed a motion with
said court to remand the case to the Justice of the Peace of
Masantol ordering the latter to make said preliminary
investigation. His motion having been denied, the petitioner has
filed the present action in which he squarely attacks the validity
of the provision of section 11, Rule 108, on the ground that it
deprives him of the right to be confronted with and cross-
examine the witnesses for the prosecution, contrary to the
provision of section 13, Article VIII, of the Constitution.
In the case of Dequito and Saling Buhay vs. Arellano, No. L-
1336, we did not discuss and decide the question of validity or
constitutionality of said section 11 in connection with section 1
of Rule 108, because that question was not raised therein, and
we merely construed the provisions on preliminary investigation
or Rule 108. In said case the writer of this dissenting opinion
said:
It may not be amiss to state that, modesty aside, the writer of
this dissenting opinion, then a practising attorney, was the one
who prepared the draft of the Rules of Court relating to criminal
procedure, and the provisions on preliminary investigation in
the draft were the same as those of the old law, which gave the
defendant the right to be confronted with and to cross-examine
the witnesses for the prosecution. But the Supreme Court
approved and adopted in toto the draft, except the part referring
to preliminary investigation which it modified, by suppressing
said right and enacting, in its stead, the provisions of section 11
of Rule 108 in its present form. I prefer the old to the new
procedure. But I can not subscribe to the majority decision,
which is a judicial legislation and makes the exercise of the right
of a defendant to be confronted, with and cross-examine the
witnesses against him, to depend entirely upon the whim or
caprice of a judge or officer conducting the preliminary
investigation.
But now the question of the validity of said section 11, Rule 108,
is squarely presented to this Court for decision, we have perforce
to pass upon it.
Section 13, Article VIII, of the Constitution prescribes that "the
Supreme Court shall have power to promulgate rules concerning
pleading, practice and procedure in all courts, but said rules
shall not diminish, increase or modify substantive rights." The
constitution added the last part of the above-quoted
constitutional precept in order to emphasize that the Supreme
Court is not empowered, and therefore can not enact or
promulgate substantive laws or rules, for it is obvious that rules
which diminish, increase or modify substantive rights, are
substantive and not adjective laws or rules concerning pleading,
practice and procedure.
It does not require an elaborate arguments to show that the
right granted by law upon a defendant to be confronted with and
cross-examine the witnesses for the prosecuted in preliminary
investigation as well as in the trial of the case is a substantive
right. It is based on human experience, according to which a
person is not prone to tell a lie against another in his presence,
knowing fully well that the latter may easily contradict him, and
that the credibility of a person or veracity of his testimony may
be efficaciously tested by a cross-examination. It is substantive
right because by exercising it, an accused person may show, even
if he has no evidence in his favor, that the testimonies of the
witnesses for the prosecution are not sufficient to indicate that
there is a probability that a crime has been committed and he is
guilty thereof, and therefore the accused is entitled to be
released and not committed to prison, and thus avoid an open
and public accusation of crime, the trouble, expense, and anxiety
of a public trial, and the corresponding anxiety or moral
suffering which a criminal prosecution always entails.
This right is not a constitutional but a statutory right granted
by law to an accused outside of the City of Manila because of the
usual delay in the final disposition of criminal cases in
provinces. The law does not grant such right to a person charged
with offenses triable by the Court of First Instance in the City of
Manila, because of the promptness, actual or presumptive, with
which criminal cases are tried and disposed of in the Court of
First Instance of said city. But this right, though not a
constitutional one, can not be modified, abridged, or diminished
by the Supreme Court, by virtue of the rule making power
conferred upon this Court by the Constitution.
Since the provisions of section 11 of Rule 108 as construed by
this Court in several cases, (in which the question of
constitutionality or validity of said section had not been squarely
raised) do away with the defendant's right under discussion, it
follows that said section 11 diminishes the substantive right of
the defendant in criminal case, and this Court has no power or
authority to promulgate it and therefore is null and void.
The fact that the majority of this Court has ruled in the above
cited case of Dequito and Saling Buhay vs. Arellano, that the
inferior or justice of the peace courts have discretion to grant a
defendant's request to have the witnesses for the prosecution
recalled to testify again in the presence of the defendant and be
cross-examined by the latter, does not validate said provision;
because to make the exercise of an absolute right discretionary
or dependent upon the will or discretion of the court or officer
making the preliminary investigation, is evidently to diminish
or modify it.
Petition is therefore granted.
PERFECTO, J., dissenting:
In our concurring and dissenting opinion in the case of Dequito
and Saling Buhay vs. Arellano, No. L-1336, we said:
In our opinion, section 11 of Rule 108 must be read, interpreted,
and applied in a way that will not contravene the constitutional
provision guaranteeing to all accused the right "to meet the
witnesses face to face." (Section 1 [17], Article III.)
Consequently, at the preliminary hearing contemplated by said
reglementary section, the defendant is entitled as a matter of
fundamental right to her the testimony of the witnesses for the
prosecution and to cross-examine them.
Although in such preliminary hearing the accused cannot finally
be convicted, he is liable to endure the ordeal eloquently depicted
in the decision, and the constitutional guarantee protects
defendants, not only from the jeopardy of being finally convicted
and punished, but also from the physical, mental and moral
sufferings that may unjustly be visited upon him in any one of
the stages of the criminal process instituted against him. He
must be afforded the opportunities to have the charges against
him quashed, not only at the final hearing, but also at the
preliminary investigation, if by confronting the witnesses for the
prosecution he can convince the court that the charges are
groundless. There is no justice in compelling him to undergo the
troubles of a final hearing if at the preliminary hearing the case
can be terminated in his favor. Otherwise, the preliminary
investigation or hearing will be an empty gesture that should
not have a place within the framework of dignified and solemn
judicial proceedings.
On the strength of the above quoted opinion the opinion should
be granted and so we vote.
Petition dismissed.
RESOLUTION
March 8, 1949
TUASON, J.:
This cause is now before us on a motion for reconsideration.
In the decision sought to be reconsidered, we said, citing Dequito
and Saling Buhay vs. Arellano, G.R. No. L-1336: "The
constitutional right of an accused to be confronted by the
witnesses against him does not apply to preliminary hearings;
nor will the absence of a preliminary examination be an
infringement of his right to confront witness. As a matter of fact,
preliminary investigation may be done away with entirely
without infringing the constitutional right of an accused under
the due process clause to a fair trial." We took this ruling to be
ample enough to dispose the constitutional question pleaded in
the application for certiorari. Heeding the wishes of the
petitioner, we shall enlarge upon the subject.
It is contended that section 11 of Rule 108 of the Rules of Court
1 infringes section 13, Article VIII, of the Constitution. 2 It is
said that the rule in question deals with substantive matters
and impairs substantive rights.
We can not agree with this view. We are of the opinion that
section 11 of Rule 108, like its predecessors, is an adjective law
and not a substantive law or substantive right. Substantive law
creates substantive rights and the two terms in this respect may
be said to be synonymous. Substantive rights is a term which
includes those rights which one enjoys under the legal system
prior to the disturbance of normal relations. (60 C.J., 980.)
Substantive law is that part of the law which creates, defines
and regulates rights, or which regulates the rights and duties
which give rise to a cause of action; that part of the law which
courts are established to administer; as opposed to adjective or
remedial law, which prescribes the method of enforcing rights or
obtains redress for their invasion. (36 C. J., 27; 52 C. J. S., 1026.)
As applied to criminal law, substantive law is that which
declares what acts are crimes and prescribes the punishment for
committing them, as distinguished from the procedural law
which provides or regulates the steps by which one who commits
a crime is to be punished. (22 C. J. S., 49.) Preliminary
investigation is eminently and essentially remedial; it is the first
step taken in a criminal prosecution.
As a rule of evidence, section 11 of Rule 108 is also procedural.
Evidence — which is the "the mode and manner of proving the
competent facts and circumstances on which a party relies to
establish the fact in dispute in judicial proceedings" — is
identified with and forms part of the method by which, in private
law, rights are enforced and redress obtained, and, in criminal
law, a law transgressor is punished. Criminal procedure refers
to pleading, evidence and practice. (State vs. Capaci, 154 So.,
419; 179 La., 462.) the entire rules of evidence have been
incorporated into the Rules of Court. We can not tear down
section 11 of Rule 108 on constitutional grounds without
throwing out the whole code of evidence embodied in these
Rules.
In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United
States Supreme Court said:
Expressions are to be found in earlier judicial opinions to the
effect that the constitutional limitation may be transgressed by
alterations in the rules of evidence or procedure. See Calder vs.
Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650; Cummings vs. Missouri,
4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs. Missouri, 107 U.
S. 221, 228, 232, 27 L. ed., 507, 508, 510, 2 Ct. Rep., 443. And
there may be procedural changes which operate to deny to the
accused a defense available under the laws in force at the time
of the commission of his offense, or which otherwise affect him
in such a harsh and arbitrary manner as to fall within the
constitutional prohibition. Kring vs. Missouri, 107 U. S., 221, 27
L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 U. S.,
343, 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is not well
settled that statutory changes in the mode of trial or the rules of
evidence, which do not deprive the accused of a defense and
which operate only in a limited and unsubstantial manner to his
disadvantage, are not prohibited. A statute which, after
indictment, enlarges the class of persons who may be witnesses
at the trial, by removing the disqualification of persons
convicted of felony, is not an ex post facto law. Hopt vs. Utah,
110 U. S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim.
Rep. 417. Nor is a statute which changes the rules of evidence
after the indictment so as to render admissible against the
accused evidence previously held inadmissible, Thompson vs.
Missouri, 171 U. S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep., 922; or
which changes the place of trial, Gut. vs. Minnesota, 9 Wall. 35,
19 L. ed., 573; or which abolishes a court for hearing criminal
appeals, creating a new one in its stead. See Duncan vs.
Missouri, 152 U. S., 377, 382, 38 L. ed., 485, 487, 14 sup. Ct.
Rep., 570.
Tested by this standard, we do not believe that the curtailment
of the right of an accused in a preliminary investigation to cross-
examine the witnesses who had given evidence for his arrest is
of such importance as to offend against the constitutional
inhibition. As we have said in the beginning, preliminary
investigation is not an essential part of due process of law. It
may be suppressed entirely, and if this may be done, mere
restriction of the privilege formerly enjoyed thereunder can not
be held to fall within the constitutional prohibition.
While section 11 of Rule 108 denies to the defendant the right to
cross-examine witnesses in a preliminary investigation, his
right to present his witnesses remains unaffected, and his
constitutional right to be informed of the charges against him
both at such investigation and at the trial is unchanged. In the
latter stage of the proceedings, the only stage where the
guaranty of due process comes into play, he still enjoys to the
full extent the right to be confronted by and to cross-examine the
witnesses against him. The degree of importance of a
preliminary investigation to an accused may be gauged by the
fact that this formality is frequently waived.
The distinction between "remedy" and "substantive right" is
incapable of exact definition. The difference is somewhat a
question of degree. (Dexter vs. Edmands, 89 F., 467; Beazell vs.
Ohio, supra.) It is difficult to draw a line in any particular case
beyond which legislative power over remedy and procedure can
pass without touching upon the substantive rights of parties
affected, as it is impossible to fix that boundary by general
condition. (State vs. Pavelick, 279 P., 1102.) This being so, it is
inevitable that the Supreme Court in making rules should step
on substantive rights, and the Constitution must be presumed
to tolerate if not to expect such incursion as does not affect the
accused in a harsh and arbitrary manner or deprive him of a
defense, but operates only in a limited and unsubstantial
manner to his disadvantage. For the Court's power is not merely
to compile, revise or codify the rules of procedure existing at the
time of the Constitution's approval. This power is "to promulgate
rules concerning pleading, practice, and procedure in all courts,"
which is a power to adopt a general, complete and
comprehensive system of procedure, adding new and different
rules without regard to their source and discarding old ones.
The motion is denied.
Moran, C.J., Paras, Pablo, Bengzon, Briones, and Montemayor,
JJ., concur.
FERIA, J., dissenting:
I dissent.
The motion for reconsideration must be granted.
According to the resolution, the right of a defendant to be
confronted with and cross-examine the witnesses for the
prosecution in a preliminary investigation granted by law or
provided for in General Orders, No. 58, as amended, in force
prior to the promulgation of the Rules of Court, is not a
substantive right but a mere matter of procedure, and therefore
this Court can suppress it in section 11, Rule 108, of the Rules
of Court, for the following reasons:
First. Because "preliminary investigation is eminently and
essentially remedial; it is the first step taken in a criminal
prosecution." . . . "As a rule of evidence, section 11 of Rule 108 is
also procedural." . . . "The entire rules of evidence have been
incorporated into the Rules of Court." And therefore "we can not
tear down section 11 of Rule 108 on constitutional grounds
without throwing out the whole Code of evidence embodied in
these rules."
Secondly. Because, "preliminary investigation is not an essential
part of due process of law. It may be suppressed entirely, and if
this may be done, mere restriction of the privilege formerly
enjoyed thereunder can not be held to fall within the
constitutional prohibition."
Lastly. Because, "the distinction between remedy and
'substantive right' is incapable of exact definition. The difference
is somewhat a question of degree" . . . It is difficult to draw a line
in any particular case beyond which legislative power over
remedy and procedure can pass without touching upon the
substantive rights of parties affected, as it is impossible to fix
that boundary by general condition. . . . "This being so, it is
inevitable that the Supreme Court in making rules should step
on substantive rights, and the Constitution must be presumed
to tolerate if not to expect such incursion as does not affect the
accused in a harsh and arbitrary manner or deprive him of a
defense, but operates only in a limited and unsubstantial
manner to his disadvantage."
Before proceeding it is necessary to distinguish substantive law
from procedure, for the distinction is not always well
understood. Substantive law is that part of the law which
creates, defines, and regulates rights as opposed to objective or
procedural law which prescribes the method of enforcing rights.
What constitutes practice and procedure in the law is the mode
or proceeding by which a legal right is enforced, "that which
regulates the formal steps in an action or judicial proceedings;
the course of procedure in courts; the form, manner and order in
which proceedings have been, and are accustomed to be had; the
form, manner and order of carrying on and conducting suits or
prosecutions in the courts through their various sages according
to the principles of law and the rules laid down by the respective
courts." 31 Cyc. Law and Procedure, p. 1153; id., 32, section 405;
Rapalje & Lawrence's Law Dictionary; Anderson Law
Dictionary; Bouvier's Law Dictionary.
Substantive rights may be created or granted either in the
Constitution or in any branch of the law, civil, criminal,
administrative or procedural law. In our old Code of Civil
Procedure, Act No. 190, as amended, there are provisions which
create, define and regulate substantive rights, and many of
those provisions such as those relating to guardianship,
adoption, evidence and many others are incorporated in the
Rules of Court for the sake of convenience and not because this
Court is empowered to promulgate them as rules of court. And
our old law of Criminal Procedure General Orders No. 58 grants
the offended party the right to commence a criminal action or
file a complaint against the offender and to intervene in the
criminal prosecution against him, and grants the defendant in
the Court of First Instance (except in the City of Manila) the
right to bail, and to a preliminary investigation including his
rights during said investigation, and the rights at the trial,
which are now reproduced or incorporated in Rules 106, 108,
110, and 111 of the Rules of Court, except the rights now in
question. And all these, and others not necessary for us to
mention, are obviously substantive rights.
(1) As to the first argument, the premise "the preliminary
investigation is eminently and essentially remedial is not
correct. Undoubtedly the majority means to say procedural, in
line with the conclusion in the resolution, because remedial law
is one thing, and procedural law is another. Obviously they are
different branches of the law. "Remedial statute" is "a statute
providing a remedy for an injury as distinguished from a penal
statute. A statute giving a party a mode of remedy for a wrong
where he had none or a different one before. . . . Remedial
statutes are those which are made to supply such defects, and
abridge such superfluities in the common law, as arise either
from the general imperfections of all human law, from change of
time and circumstances, from the mistakes and unadvised
determination of unlearned (or even learned) judges, or from any
other cause whatsoever." (Black's Law Dictionary, third edition,
pp. 1525, 1526.)
It is also not correct to affirm that section 11 of Rule 108 relating
to right of defendant after arrest "is a rule of evidence and
therefore is also procedural." In the first place, the provisions of
said section to the effect that "the defendant, after the arrest and
his delivery to the court has the right to be informed of the
complaint or information filed against him, and also to be
informed of the testimony and evidence presented against him,
and may be allowed to testify and present witnesses or evidence
for him if he so desires," are not rules of evidence; and in the
second place, it is evident that most of the rules of evidence, if
not all, are substantive laws that define, create or regulate
rights, and not procedural. "Rules of evidence are substantive
rights found in common law chiefly and growing out of
reasoning, experience and common sense of lawyers and courts."
(State vs. Pavelich, et al., 279 P., 1102.) "It is true that weighing
of evidence and the rules of practice with respect thereto form
part of the law of procedure, but the classification of proofs is
sometime determined by the substantive law." (U. S. vs. Genato,
15 Phil., 170, 176.) How can the law on judicial notice, conclusive
as well as juris tantum presumption, hearsay and best evidence
rule, parol evidence rule, interpretation of documents,
competency of a person to testify as a witness be considered
procedural?
Therefore, the argumentative conclusion that "we can not tear
down section 11 of Rule 108 on constitutional grounds without
throwing out the whole code of evidence embodied in these
Rules," is evidently wrong, not only for the reason just stated,
but because our contention that the defendant can not be
deprived of his right to be confronted with and cross-examine
the witness of the prosecution is a preliminary investigation
under consideration would not, if upheld, necessarily tear down
said section. Our theory, is that said section 11 should be so
construed as to be valid and effective, that is, that if the
defendant asks the court to recall the witness or witnesses for
the prosecution to testify again in his presence, and to allow the
former to cross-examine the latter, the court or officer making PERFECTO, J.:
the preliminary investigation is under obligation to grant the
We dissent. Our opinion in the Dequito case still stands. The
request. But if the defendant does not so ask the court, he should
motion for reconsideration should be granted.
be considered as waiving his right to be confronted with and
cross-examine the witness against him. Footnotes
(2) With respect to the second argument or reason, it is true that TUASON, J.:
the preliminary investigation as provided for in the General
Orders, No. 58, as amended, is not an essential part of due 1 Rights of defendant after arrest. — After the arrest of the
process of law, because "due process of law" is not iron clad in its defendant and his delivery to the court, he shall be informed of
meaning; its does not necessarily mean a particular procedure. the complaint or information filed against him. He shall also be
Due process of law simply requires a procedure that fully informed of the substance of the testimony and evidence
protects the life, liberty and property. For that reason the presented against him, and, if he desires to testify or to present
investigation to be made by the City Fiscal of the City of Manila witnesses or evidence in his favor, he may be allowed to do so.
under Act No. 612, now section 2465 of the Administrative Code, The testimony of the witnesses need not be reduced to writing
before filing an information, was considered by this Court as but that of the defendant shall be taken in writing and
sufficient to satisfy the due process of law constitutional subscribed by him.
requirement (U. S. vs. Ocampo, 18 Phil., 1; U. S. vs. Grant and 2 The Supreme Court shall have the power to promulgate
Kennedy, 18 Phil., 122). But it is also true that we have already rules concerning pleading, practice, and procedure in all
and correctly held that: "The law having explicitly recognized courts, and the admission to the practice of law. Said rules
and established that no person charged with the commission of
shall be uniform for all courts of the same grade and shall not
a crime shall be deprived of his liberty or subjected to trial
diminish, increase, or modify substantive rights. The existing
without prior preliminary investigation (provided for in General
orders, No. 58, as amended) that shall show that there are laws on pleading, practice, and procedure are hereby
reasonable grounds to believe him guilty, there can be no doubt repealed as statutes, and are declared Rules of Courts,
that the accused who is deprived of his liberty, tried and subject to the power of the Supreme Court to alter and modify
sentenced without the proper preliminary investigation having the same. The National Assembly shall have the power to
been made in his regard, is convicted without the process of law," repeal, alter, or supplement the rules concerning pleading,
(United States vs. Banzuela, 31 Phil., 564). practice, and procedure, and the admission to the practice of
law in the Philippines.Republic of the Philippines
The ruling in Beazell vs. Ohio, 269 U. S. 167, 70 Law. ed., 216,
quoted in the resolution, has no application to the present case,
for the question involved therein was the power of Congress to
alter the rules of evidence and procedure without violating the
constitutional precept that prohibits the passing of ex post facto
law, while the question herein involved is the power of the
Supreme Court to promulgate rules of pleading, practice and
procedure, which diminish the substantive right of a defendant,
expressly prohibited by the same provision of the Constitution
that confers upon this Court the power to promulgate said rules.
(3) The last reason or argument premised on the conclusion that
"the distinction between remedy and 'substantive right' is
incapable of exact definition;" indeed "the difference is
somewhat a question of degree," (Dexter vs. Edmonds, 89 F 487),
is immaterial, because, as we have already said in refuting the
majority's first reason, remedy and procedure are two
completely different things.
As above defined, substantive law is clearly differentiated from
procedural law and practice. But even assuming arguendo that
it is difficult to draw the line in any particular case beyond which
the power of the court over procedure can not pass without
touching upon the substantial right of the parties, what this
Court should do in that case would be to abstain from
promulgating such rule of procedure which many increase,
diminish or modify substantive right in order to avoid violating
the constitutional prohibition above referred to. Because as this
Supreme Court is not empowered by the Constitution to
legislate on or abrogate substantive rights, but only to
promulgate rules of pleading, practice and procedure which
"shall not diminish, increase or modify substantive rights," this
Court can not step on them in making the rules, and the
Constitution must be presumed not to tolerate nor expect such
incursion as would affect the substantive rights of the accused
in any manner.
Besides, depriving an accused of his right to be confronted and
cross-examine the witness against him in a preliminary
investigation would affect the accused not in a limited and
unsubstantial but in a harsh and arbitrary manner. The
testimony of a witness given in the absence of the defendant and
without an opportunity on the part of the latter to cross-examine
him is a hearsay evidence, and it should not be admitted against
the defendant in a preliminary investigation that is granted to
the latter as a protection against hasty, malicious and
oppressive prosecutions (U. S. vs. Grant and Kennedy, supra).
Otherwise, an accused who is innocent and should not be
arrested, or if arrested should be released immediately a short
time after his arrest after the preliminary investigation, would
have to be held for trial and wait for a considerable period of
time until the case is tried and acquitted after trial by the Courts
of First Instance in provinces on account of the admission of such
evidence in the preliminary investigation, evidence not
admissible at the trial.
Therefore, the motion for reconsideration is granted, and after
the necessary proceedings the decision of the majority reversed
or modified in accordance with my dissenting opinion.
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.1âwphi1.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.

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).1äwphï1.ñët 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 Ring............................................................ 20.00.
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...........................
Four men's rings...............................................
One and a half dozens handkerchiefs..........
Lady's wrist watch..........................................
Three ladies watches......................................
One men's watch.............................................
One Chinese gold necklace...........................
One Lady's wrist watch..................................
One Chinese gold necklace...........................
One Men's wrist watch...................................
One Men's wrist watch 'Tugaris'...................
Knife..................................................................
One Men's wrist watch...................................
'Omega' Seamaster...........................................
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.
30.00 III.
IN HOLDING THAT THE THREE EXTRA-JUDICIAL
32.00 CONFESSIONS BY THREE ACCUSED BEING
INTERLOCKING CONFESSIONS IS ENOUGH AND
SUFFICIENT TO SUSTAIN THEIR CONVICTIONS ON
34.50
PROOF BEYOND REASONABLE DOUBT;
IV.
30.00
IN HOLDING THAT THE THREE EXTRA-JUDICIAL
CONFESSIONS OF THREE ACCUSED INTERLOCKED
69.00
WITH EACH OTHER EVEN IF INADMISSIBLE AS
EVIDENCE BECAUSE OBTAINED THROUGH FORCE,
60.00 VIOLENCE, INTIMIDATION, ETC. IS ENOUGH TO
SUSTAIN THE CONVICTION OF ACCUSED TIMOTEO
CABURAL BECAUSE HE WAS SUFFICIENTLY IdENTIFIED
58.00
BY VICTIM AGRIPINA MAGLANGIT AS HER RAPIST;
V.
15.00
IN HOLDING THAT THE PROSECUTION EVIDENCE FOR
THE CONVICTIONS OF ACCUSED REACHED THE LEGAL
58.00
STANDARD OF PROOF BEYOND REASONABLE DOUBT AS
REQUIRED BY LAW.
60.00
On October 14, 1971, this Court granted the motion of Leonide
Cabual to withdraw his appeal (p. 60, rollo).
65.00
Appellant Cabural declared that from 2:00 in the afternoon of
September 13, 1960 to 3:00 in the early morning of September
12.00 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
385.00 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).
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.1äwphï1.ñët 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 Mabag etc., that where robbery with rape is committed but the
be pronounced criminal which is not clearly made so by the rape is qualified by the use of a deadly weapon or is committed
statute." 13 The same year, Justice Carson in United States v. by two persons, either of these two actors is singled out by the
Estapia 14 in rejecting the contention that the application of a amendatory Act, R.A. 4111, as supplying the controlling
penal provision even if not covered by its terms should be viewed qualification and mandates he imposition of the death penalty
by the judiciary as commendable, conducive as it is to the for the crime of qualified rape under Art. 335 of the Penal Code
repression of a reprehensible practice" pointed out: "To this it (and not the lesser penalty of perpetua under Art. 294 for the
should be sufficient answer to say that neither the executive nor complex crime of robbery with rape).
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 EN BANC
robbery alone. There is, therefore, no room for the application of
my separate opinions in the cited cases of Perello, Carandang, [G.R. No. 9726. December 8, 1914. ]
THE UNITED STATES, Plaintiff-Appellee, v. CARSON
TAYLOR, Defendant-Appellant.
C. W O’Brien, for Appellant.
Solicitor-General Corpus, for Appellee.
SYLLABUS
1. LIBEL AND SLANDER; PUBLICATION; EDITOR,
AUTHOR, PROPRIETOR, MANAGER. — Section 6 of the Libel
Law (Act No. 277) provides a punishment only for the "author,
editor, or proprietor," for the publication of a libel in a
newspaper. In the present case no person was represented to be
either the "author, the editor, or the proprietor" of the
newspaper in which the alleged libel was published. The proof
shows that the defendant was the "manager." There was not a
word of proof showing that as "manager" he was the author of
the article published or the editor or the proprietor of the
newspaper. The "manager" of a newspaper may be the author of
the articles published or the editor or the publisher of the
newspaper. His exact relation to the newspaper or publication is
a matter of proof. He can not avoid responsibility as the "author,
editor, or proprietor" by using some other term or word, when,
as a matter of fact, he is the "author, editor, or proprietor." The
"author, editor, or proprietor" of a newspaper or publication can
not avoid responsibility by simply calling himself the "manager"
or "printer." He can not wear the toga of "author, editor, or
proprietor" and hide his responsibility by giving himself some
other name. While the terms "author, editor, and proprietor" of
a newspaper are terms well defined, the particular words
"author, editor, or proprietor" are not material or important,
further than they are words which are intended to show the
relation of the responsible party to the publication. That relation
may as well exist under some other name or denomination.
DECISION
JOHNSON, J. :
This was an action for criminal libel.
The complaint alleged:
"That on the 25th day of September, 1913, the said Carson
Taylor, being then and there the acting editor and proprietor,
manager, printer, and publisher in the city of Manila, Philippine
Islands, of a certain daily bilingual newspaper, edited in the
English and Spanish languages, and known as the ’Manila Daily
Bulletin,’ a paper of large circulation throughout the Philippine
Islands, as well as in the United States and other countries in
all of which both languages are spoken and written, having as
such the supervision and control of said newspaper, did then and
there willfully, feloniously, maliciously, and with intent to
impeach the honesty, virtue, and reputation of one Ramon
Sotelo as member of the bar of the Philippine Islands and as a
private individual, and to expose him to public hatred, contempt
and ridicule, compose, print, edit, publish, and circulate and
procure to be composed, printed, edited, published, and
circulated in said newspaper’s issue of the above mentioned
date, September 25, 1913, a certain false and malicious
defamation and libel in the English language of and concerning
the said Ramon Sotelo, which reads as follows.
"‘OWNERS FIRED BUILDING TO COLLECT INSURANCE. —
CRIMINAL CHARGES FOLLOW CIVIL SUIT.
"‘Conspiracy divulged in three sworn statements made by
members of the party after a family disagreement. Sensational
statement sworn to. Mystery of Calle O’Donnell fire solved and
papers served.
"‘Conspiracy to defraud the insurance company.
"‘The building was fired to collect the amount of insurance.
"‘The movable furniture of value was removed before the fire.
"‘The full amount of the insurance was collected, and the
conspiracy was a success.
"‘The above is the gist of the sworn statements of Vicente Sotelo
and Eugenio Martin in connection with the fire that destroyed
house No. 2157 Calle O’Donnell on April 4.
"‘The case in question is a sensational one to say .he least, and
the court is being petitioned to set aside the ruling and cite the
parties to show cause why they should not be cited to answer
charges of conspiracy to defraud.
"‘On April 4, 1913, the house located at 2157 Calle O’Donnell
was destroyed by fire. The house was insured for P5,000, the
contents for an additional P5,000, with the West of Scotland
Insurance Association, of which Lutz & Co. are the local agents,
with an additional P1,500 with Smith, Bell & Co.
"‘The full amount of the insurance on the property was paid by
the agents of the insurance companies and the matter
apparently dropped from the records.
"‘Then there was internal trouble and information began to leak
out which resulted in sensational statements to the effect that
the destruction of the property had been an act of incendiarism
in order to collect the insurance. Then there was an
investigation started and it resulted in sworn statements of the
three persons above mentioned.
"‘Notarial returns were made yesterday by the sheriff, based on
the sworn statements and the parties are cited to appear in court
and show cause.
"‘The investigation also showed that the furniture, which was
supposed to be in the house at the time of the conflagration and
which was paid for by the insurance agents, sworn statements
having been made that it was destroyed in the fire, was in a
certain house in Montalban, where it was identified upon the
sworn statements of the above mentioned. Implicated in the
charges of conspiracy and fraud is the name of the attorney for
the plaintiff who made affidavit as to the burning of the house
and against whom criminal proceedings will be brought as well
as against the original owners.
"‘Attorney Burke, who represents Lutz & Co. in the proceedings,
was seen last night and asked for a statement as to the case. Mr.
Burke refused to talk on the case and stated that when it came
to trial it would be time enough to obtain the facts.
"‘The present action came before the court on a motion of
Attorney Burke to set aside the judgment, which, in the original
case, gave the owners of the property judgment for the amount
of the insurance.
"‘Attorney Burke filed the sworn statements with the court and
the notarial returns to the same were made yesterday afternoon,
the sworn statements as to the burning of the house being in the
hands of the sheriff.
"‘It was stated yesterday that a criminal action would follow the
civil proceedings instituted to recover the funds in the case
entitled on the court records, Maria Mortera de Eceiza and
Manuel Eceiza versus the west of Scotland Association, Limited,
No. 10191 on the court records.
"‘It might be stated also that Eugenio Martin was one of the
plaintiffs in the recent suit brought against Ex Governor W.
Cameron Forbes for lumber supplied for his Boston home.’
"That in this article is contained the following paragraph. to
wit:jgc:chanrobles.com.ph
"‘ . . .Implicated in the charges of conspiracy and fraud is the
name of the attorney for the plaintiff who made affidavit as to
the burning of the house and against whom criminal proceedings
will be brought as well as against the original owners,’ by which
the said accused meant to refer and did refer to the said Ramon
Sotelo, who then and there was the attorney for the plaintiff in
the case aforesaid, No. 10191 of the Court of First Instance of
the city of Manila, and so was understood by the public who read
the same; that the statements and allegations made in said
paragraph are wholly false and untrue, thus impeaching the
honesty, virtue and reputation of the said offended party as a
member of the bar of the Philippine Islands and as a private
individual, and exposing him to public hatred, contempt and
ridicule. Contrary to law."cralaw virtua1aw library
Upon said complaint the defendant was arrested, arraigned,
plead not guilty, was tried, found guilty of the crime charged,
and sentenced by the Honorable George N. Hurd, judge, to pay
a fine of P200. From that sentence the defendant appealed to
this court and made the following assignment of
error:jgc:chanrobles.com.ph
"First. The court erred in finding that the defendant was
responsible for and guilty of the alleged libel.
"Second. The court erred in finding that the defendant was the
proprietor and publisher of the ’Manila Daily Bulletin.’
"Third. The court erred in finding that the alleged libelous
article was libelous per se.
"Fourth. The court erred in holding that the article was libelous,
while finding that there was no malice.
"Fifth. The court erred in finding that the alleged libelous article
referred to attorney Ramon Sotelo.
"Sixth. The court erred in finding that Ramon Sotelo was
attorney for the plaintiffs in case No. 10191, when the alleged
libel was published."cralaw virtua1aw library
After a careful examination of the record and the arguments
presented by the appellant, we deem it necessary to discuss only
the first and second assignments of error.
In the Philippine Islands there exist no crimes such as are
known in the United States and England as common law crimes.
No act constitutes a crime here unless it is made so by law. Libel
is made a crime here by Act No. 277 of the United States
Philippine Commission. Said Act (No. 277) not only defines the
crime of libel and prescribes the particular conditions necessary
to constitute it, but it also names the persons who may be guilty
of such crime. In the present case the complaint alleges that the
defendant was, at the time of the publication of said alleged
article "the acting editor, proprietor, manager, printer,
publisher, etc. etc. of a certain bilingual newspaper, etc., known
as the ’Manila Daily Bulletin,’ a paper of large circulation
throughout the Philippine Islands, as well as in the United
States and other countries."cralaw virtua1aw library
It will be noted that the complaint charges the defendant as "the
acting editor, proprietor, manager, printer, and publisher."
From an examination of said Act No. 277, we find that section 6
provides that: "Every author, editor, or proprietor of any book,
newspaper, or serial publication is chargeable with the
publication of any words contained in any part of said book or
number of each newspaper or serial as fully as if he were the
author of the same."cralaw virtua1aw library
By an examination of said article, with reference to the persons
who may be liable for the publication of a libel in a newspaper,
we find that it only provides for the punishment of "the author,
editor, or proprietor." It would follow, therefore, that unless the
proof shows that the defendant in the present case is the
"author, editor, or proprietor" of the newspaper in which the libel
was published, he can not be held liable.
In the present case the Solicitor-General in his brief said that —
"No person is represented to be either the ’author, editor, or
proprietor.’" That statement of the Solicitor-General is fully
sustained by the record. There is not a word of proof in the record
showing that the defendant was either the "author, the editor,
or the proprietor." The proof shows that the defendant was the
"manager." He must, therefore, be acquitted of the crime
charged against him, unless it is shown by the proof that he, as
"manager" of the newspaper, was in some way directly
responsible for the writing, editing, or publishing of the matter
contained in said alleged libelous article. The prosecution
presented the newspaper, the "Manila Daily Bulletin," for the
purpose of showing the relation which the defendant had to it.
That was the only proof presented by the prosecution to show
the relation which the defendant had to the publication of the
libel in question. From an examination of the editorial page of
said exhibit, we find that it shows that the "Manila Daily
Bulletin" is owned by the "Bulletin Publishing Company," and
that the defendant was its manager. There is not a word of proof
in the record which shows what relation the manager had to the
publication of said newspaper. We might, by a series of
presumptions and assumptions, conclude that the manager of a
newspaper has some direct responsibility with its publication.
We believe, however, that such presumptions and assumptions,
in the absence of a single letter of proof relating thereto, would
be unwarranted and unjustified. The prosecuting attorney had
an opportunity to present proof upon that question. Either
because he had no proof or because no such proof was obtainable,
he presented none. It certainly is not a difficult matter to
ascertain who is the real person responsible for the publication
of a newspaper which is published daily and has a wide
circulation in a particular community. No question was asked
the defendant concerning his particular relation to the
publication of the newspaper in question. We do not desire to be
understood in our conclusions here as holding that the
"manager" or the "printer" may not, under certain conditions
and proper proof, be held to be the "author, editor, or proprietor"
of a newspaper. He may denominate himself as "manager" or
"printer" simply, and be at the same time the "author, editor, or
proprietor" of the newspaper. He can not avoid responsibility by
using some other term or word, indicating his relation to the
newspaper or the publication, when, as a matter of fact, he is the
"author, the editor, or the proprietor" of the same. His real
relation to the said publication is a matter of proof. The Solicitor-
General, in his brief, says that the defendant used the word
"manager" with the hope of evading legal responsibility, as the
Libel Law places the responsibility for publishing a libel, on
"every author, editor, or proprietor of any book, etc." Had the
prosecuting attorney in the trial of the cause believed that the
defendant, even though he called himself the "manager" was, in
fact, the "author, editor, or proprietor" of said publication, he
should have presented some proof supporting that contention.
Neither do we desire to be understood as holding that simply
because a person connected with the publication of a newspaper
who calls himself the "manager" or "printer" may not, in fact and
at the same time, be the "author, editor, or proprietor." The
"author, editor, or proprietor" can not avoid responsibility for the
writing and publication of a libelous article, by simply calling
himself the "manager" or the "printer" of a newspaper. That,
however, is a question of proof. The burden is upon the
prosecution to show that the defendant is, by whatever name he
may call himself, in truth and in fact, the "author, editor, or
proprietor" of a newspaper. The courts cannot assume, in the
absence of proof, that one who called himself "manager" was in
fact the "author, editor, or proprietor." We might assume,
perhaps, that the ’’manager" of a newspaper plays an important
part in the publication of the same by virtue of the general
signification of the word "manager." Men can not, however, be
sentenced upon the basis of a mere assumption. There must be
some proof. The word "manage" has been defined by Webster to
mean "to have under control and direction; to conduct; to guide;
to administer; to treat; to handle." Webster defines "manager" to
be "one who manages; a conductor or director; as, the manager
of a theater." A manager, as that word is generally understood,
we do not believe includes the idea of ownership. Generally
speaking it means one who is representing another as an agent.
That being true, his powers and duties and obligations are
generally defined by contract. He may have expressed as well as
implied powers, but whatever his powers and duties are they
must be dependent upon the nature of the business and the
terms of his contract. There is no fixed rule which indicates
particularly and definitely his duties, powers and obligations.
An examination into the character of the business and the
contract of his employment must be made for the purpose of
ascertaining definitely what his duties and obligations are. His
exact relation is always a matter of proof. It is incumbent upon
the prosecution in a case like the present, to show that whatever
title, name or designation the defendant may bear, he was, in
fact, the "author, the editor, or the proprietor" of the newspaper.
If he was in fact the "author, editor, or proprietor," he can not
escape responsibility by calling himself the "manager" or
"printer." It is the relation which he bears to the publication and
not the name or title which he has assumed, which is important
in an investigation. He can not wear the toga of author or editor
and hide his responsibility by giving himself some other name.
While the terms "author, editor, and proprietor" of a newspaper
are terms well defined, the particular words "author, editor, or
proprietor" are not material or important, further than that they
are words which are intended to show the relation of the
responsible party to the publication. That relation may as well
exist under some other name or denomination.
For the foregoing reasons. therefore, there being no proof
whatever in the record showing that the defendant was the
"author, the editor, or the proprietor" of the newspaper in
question, the sentence of the lower court must be reversed, the
complaint dismissed and the defendant discharged from the
custody of the law, with costs de officio. So ordered.
Arellano, C.J., Moreland, Trent and Araullo, JJ., concur.
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 Dean Diokno also contends that Article 315 of the Revised Penal
the incremental penalty rule unconstitutional, then that would Code constitutes cruel and unusual punishment. Citing Solem
... the void should be filled by Congress. v. Helm,30 Dean Diokno avers that the United States Federal
Supreme Court has expanded the application of a similar
JUSTICE PERALTA:
Constitutional provision prohibiting cruel and unusual
But in your presentation, you were fixing the amount at One punishment, to the duration of the penalty, and not just its form.
Hundred Thousand (₱100,000.00) Pesos ... The court therein ruled that three things must be done to decide
whether a sentence is proportional to a specific crime, viz.; (1)
DEAN DIOKNO: Compare the nature and gravity of the offense, and the
Well, my presen ... (interrupted) harshness of the penalty; (2) Compare the sentences imposed on
other criminals in the same jurisdiction, i.e., whether more
JUSTICE PERALTA: serious crimes are subject to the same penalty or to less serious
For every One Hundred Thousand (₱100,000.00) Pesos in excess penalties; and (3) Compare the sentences imposed for
of Twenty-Two Thousand (₱22,000.00) Pesos you were commission of the same crime in other jurisdictions.
suggesting an additional penalty of one (1) year, did I get you However, the case of Solem v. Helm cannot be applied in the
right? present case, because in Solem what respondent therein deemed
DEAN DIOKNO: cruel was the penalty imposed by the state court of South
Dakota after it took into account the latter’s recidivist statute
Yes, Your Honor, that is, if the court will take the route of and not the original penalty for uttering a "no account" check.
statutory interpretation. Normally, the maximum punishment for the crime would have
been five years imprisonment and a $5,000.00 fine. Nonetheless,
JUSTICE PERALTA:
respondent was sentenced to life imprisonment without the
Ah ... possibility of parole under South Dakota’s recidivist statute
because of his six prior felony convictions. Surely, the factual
DEAN DIOKNO:
antecedents of Solem are different from the present controversy.
If the Court will say that they can go beyond the literal wording
With respect to the crime of Qualified Theft, however, it is true
of the law...
that the imposable penalty for the offense is high. Nevertheless,
JUSTICE PERALTA: the rationale for the imposition of a higher penalty against a
domestic servant is the fact that in the commission of the crime,
But if we de ... (interrupted) the helper will essentially gravely abuse the trust and
DEAN DIOKNO: confidence reposed upon her by her employer. After accepting
and allowing the helper to be a member of the household, thus
....then.... entrusting upon such person the protection and safekeeping of
JUSTICE PERALTA: the employer’s loved ones and properties, a subsequent betrayal
of that trust is so repulsive as to warrant the necessity of
Ah, yeah. But if we declare the incremental penalty as imposing a higher penalty to deter the commission of such
unsconstitutional, the court cannot fix the amount ... wrongful acts.
DEAN DIOKNO: There are other crimes where the penalty of fine and/or
imprisonment are dependent on the subject matter of the crime
No, Your Honor.
and which, by adopting the proposal, may create serious
JUSTICE PERALTA: implications. For example, in the crime of Malversation, the
penalty imposed depends on the amount of the money malversed
... as the equivalent of one, as an incremental penalty in excess
by the public official, thus:
of Twenty-Two Thousand (₱22,000.00) Pesos.
Art. 217. Malversation of public funds or property; Presumption
DEAN DIOKNO:
of malversation. — Any public officer who, by reason of the
No, Your Honor. duties of his office, is accountable for public funds or property,
shall appropriate the same or shall take or misappropriate or
JUSTICE PERALTA: shall consent, through abandonment or negligence, shall permit
The Court cannot do that. any other person to take such public funds, or property, wholly
or partially, or shall otherwise be guilty of the misappropriation
DEAN DIOKNO: or malversation of such funds or property, shall suffer:
Could not be. 1. The penalty of prision correccional in its medium and
JUSTICE PERALTA: maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two hundred
The only remedy is to go to Congress... pesos.
DEAN DIOKNO: 2. The penalty of prision mayor in its minimum and medium
periods, if the amount involved is more than two hundred pesos
Yes, Your Honor.
but does not exceed six thousand pesos.
JUSTICE PERALTA:
3. The penalty of prision mayor in its maximum period to
... and determine the value or the amount. reclusion temporal in its minimum period, if the amount
involved is more than six thousand pesos but is less than twelve
DEAN DIOKNO:
thousand pesos.
Yes, Your Honor.
4. The penalty of reclusion temporal, in its medium and
JUSTICE PERALTA: maximum periods, if the amount involved is more than twelve
thousand pesos but is less than twenty-two thousand pesos. If
That will be equivalent to the incremental penalty of one (1) year the amount exceeds the latter, the penalty shall be reclusion
in excess of Twenty-Two Thousand (₱22,000.00) Pesos. temporal in its maximum period to reclusion perpetua.
DEAN DIOKNO: In all cases, persons guilty of malversation shall also suffer the
Yes, Your Honor. penalty of perpetual special disqualification and a fine equal to
the amount of the funds malversed or equal to the total value of
JUSTICE PERALTA: the property embezzled.
The amount in excess of Twenty-Two Thousand (₱22,000.00) The failure of a public officer to have duly forthcoming any
Pesos. public funds or property with which he is chargeable, upon
Thank you, Dean. demand by any duly authorized officer, shall be prima facie
evidence that he has put such missing funds or property to
DEAN DIOKNO: personal use.
Thank you. The above-provisions contemplate a situation wherein the
Government loses money due to the unlawful acts of the
xxx x29
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.
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:

Similar to the argument of Dean Diokno, one of Justice Antonio Per capita income.
Carpio’s opinions is that the incremental penalty provision PROFESSOR TADIAR:
should be declared unconstitutional and that the courts should
only impose the penalty corresponding to the amount of Per capita income.
₱22,000.00, regardless if the actual amount involved exceeds
JUSTICE PERALTA:
₱22,000.00. As suggested, however, from now until the law is
properly amended by Congress, all crimes of Estafa will no Consumer price index.
longer be punished by the appropriate penalty. A conundrum in
PROFESSOR TADIAR:
the regular course of criminal justice would occur when every
accused convicted of the crime of estafa will be meted penalties Yeah.
different from the proper penalty that should be imposed. Such
drastic twist in the application of the law has no legal basis and JUSTICE PERALTA:
directly runs counter to what the law provides. Inflation ...
It should be noted that the death penalty was reintroduced in PROFESSOR TADIAR:
the dispensation of criminal justice by the Ramos
Administration by virtue of Republic Act No. 765940 in Yes.
December 1993. The said law has been questioned before this JUSTICE PERALTA:
Court. There is, arguably, no punishment more cruel than that
of death. Yet still, from the time the death penalty was re- ... and so on. Is the Supreme Court equipped to determine those
imposed until its lifting in June 2006 by Republic Act No. factors?
9346,41 the Court did not impede the imposition of the death
PROFESSOR TADIAR:
penalty on the ground that it is a "cruel punishment" within the
purview of Section 19 (1),42 Article III of the Constitution. There are many ways by which the value of the Philippine Peso
Ultimately, it was through an act of Congress suspending the can be determined utilizing all of those economic terms.
imposition of the death penalty that led to its non-imposition
JUSTICE PERALTA:
and not via the intervention of the Court.
Yeah, but ...
Even if the imposable penalty amounts to cruel punishment, the
Court cannot declare the provision of the law from which the PROFESSOR TADIAR:
proper penalty emanates unconstitutional in the present action.
Not only is it violative of due process, considering that the State And I don’t think it is within the power of the Supreme Court to
and the concerned parties were not given the opportunity to pass upon and peg the value to One Hundred (₱100.00) Pesos to
comment on the subject matter, it is settled that the ...
constitutionality of a statute cannot be attacked collaterally JUSTICE PERALTA:
because constitutionality issues must be pleaded directly and
not collaterally,43 more so in the present controversy wherein Yeah.
the issues never touched upon the constitutionality of any of the PROFESSOR TADIAR:
provisions of the Revised Penal Code.
... One (₱1.00.00) Peso in 1930.
Besides, it has long been held that the prohibition of cruel and
unusual punishments is generally aimed at the form or JUSTICE PERALTA:
character of the punishment rather than its severity in respect
That is legislative in nature.
of duration or amount, and applies to punishments which public
sentiment has regarded as cruel or obsolete, for instance, those PROFESSOR TADIAR:
inflicted at the whipping post, or in the pillory, burning at the
That is my position that the Supreme Court ...
stake, breaking on the wheel, disemboweling, and the like. Fine
and imprisonment would not thus be within the prohibition. 44 JUSTICE PERALTA:
It takes more than merely being harsh, excessive, out of Yeah, okay.
proportion, or severe for a penalty to be obnoxious to the
Constitution. The fact that the punishment authorized by the PROFESSOR TADIAR:
statute is severe does not make it cruel and unusual. Expressed ... has no power to utilize the power of judicial review to in order
in other terms, it has been held that to come under the ban, the to adjust, to make the adjustment that is a power that belongs
punishment must be "flagrantly and plainly oppressive," "wholly to the legislature.
disproportionate to the nature of the offense as to shock the
moral sense of the community."45 JUSTICE PERALTA:

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
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 Considering that the amount of ₱98,000.00 is ₱76,000.00 more
in the past taken into consideration "changed conditions" or than the ₱22,000.00 ceiling set by law, then, adding one year for
"significant changes in circumstances" in its decisions. each additional ₱10,000.00, the maximum period of 6 years, 8
months and 21 days to 8 years of prision mayor minimum would
Similarly, the Chief Justice is of the view that the Court is not
be increased by 7 years. Taking the maximum of the prescribed
delving into the validity of the substance of a statute. The issue
penalty, which is 8 years, plus an additional 7 years, the
is no different from the Court’s adjustment of indemnity in
maximum of the indeterminate penalty is 15 years.
crimes against persons, which the Court had previously
adjusted in light of current times, like in the case of People v. Applying the Indeterminate Sentence Law, since the penalty
Pantoja.47 Besides, Article 10 of the Civil Code mandates a prescribed by law for the estafa charge against petitioner is
presumption that the lawmaking body intended right and prision correccional maximum to prision mayor minimum, the
justice to prevail. penalty next lower would then be prision correccional in its
minimum and medium periods.
With due respect to the opinions and proposals advanced by the
Chief Justice and my Colleagues, all the proposals ultimately Thus, the minimum term of the indeterminate sentence should
lead to prohibited judicial legislation. Short of being repetitious be anywhere from 6 months and 1 day to 4 years and 2 months.
and as extensively discussed above, it is truly beyond the powers
One final note, the Court should give Congress a chance to
of the Court to legislate laws, such immense power belongs to
perform its primordial duty of lawmaking. The Court should not
Congress and the Court should refrain from crossing this clear-
pre-empt Congress and usurp its inherent powers of making and
cut divide. With regard to civil indemnity, as elucidated before,
enacting laws. While it may be the most expeditious approach,
this refers to civil liability which is awarded to the offended
a short cut by judicial fiat is a dangerous proposition, lest the
party as a kind of monetary restitution. It is truly based on the
Court dare trespass on prohibited judicial legislation.
value of money. The same cannot be said on penalties because,
as earlier stated, penalties are not only based on the value of WHEREFORE, the Petition for Review on Certiorari dated
money, but on several other factors. Further, since the law is November 5, 2007 of petitioner Lito Corpuz is hereby DENIED.
silent as to the maximum amount that can be awarded and only Consequently, the Decision dated March 22, 2007 and
pegged the minimum sum, increasing the amount granted as Resolution dated September 5, 2007 of the Court of Appeals,
civil indemnity is not proscribed. Thus, it can be adjusted in light which affirmed with modification the Decision dated July 30,
of current conditions. 2004 of the Regional Trial Court, Branch 46, San Fernando City,
finding petitioner guilty beyond reasonable doubt of the crime of
Now, with regard to the penalty imposed in the present case, the
Estafa under Article 315, paragraph (1), sub-paragraph (b) of
CA modified the ruling of the RTC. The RTC imposed the
the Revised Penal Code, are hereby AFFIRMED with
indeterminate penalty of four (4) years and two (2) months of
MODIFICATION that the penalty imposed is the indeterminate
prision correccional in its medium period, as minimum, to
penalty of imprisonment ranging from THREE (3) YEARS, TWO
fourteen (14) years and eight (8) months of reclusion temporal
(2) MONTHS and ELEVEN DAYS of prision correccional, as
in its minimum period, as maximum. However, the CA imposed
minimum, to FIFTEEN (15) YEARS of reclusion temporal as
the indeterminate penalty of four (4) years and two (2) months
maximum.
of prision correccional, as minimum, to eight (8) years of prision
mayor, as maximum, plus one (1) year for each additional Pursuant to Article 5 of the Revised Penal Code, let a Copy of
₱10,000.00, or a total of seven (7) years. this Decision be furnished the President of the Republic of the
Philippines, through the Department of Justice.
In computing the penalty for this type of estafa, this Court's
ruling in Cosme, Jr. v. People48 is highly instructive, thus: Also, let a copy of this Decision be furnished the President of the
Senate and the Speaker of the House of Representatives.
With respect to the imposable penalty, Article 315 of the Revised
Penal Code provides: SO ORDERED.
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.
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 There is not a single constitutional provision applicable to the
present form. Firstly, it was the Military Government of the Philippines prescribing the name to be used as party plaintiff in
army of occupation which, in accordance with international law criminal cases.
and practice, was vested with legislative functions and in fact
The fact that the political status of this country is as yet
did legislate; afterwards, complying with the instructions of
undetermined and in a transitory stage, is, in our opinion,
President McKinley which later were ratified by Congress (sec.
responsible for the fact that there is no positive provision in our
1 of the Act of July 1, 1902) the legislative powers of the Military
constitutional law regarding the use of the name of the People
Government were transferred to the Philippine Commission;
of the Philippine Islands, as party plaintiff, in criminal
then, under the provisions of section 7 of the Act of Congress of
prosecutions, as is otherwise the case in the respective
July 1, 1902, the Philippine Assembly was created and it
constitutional charters of the States of the Union and
functioned as a colegislative body with the Philippine
incorporated territories — a situation which must not be
Commission. Finally, by virtue of the provisions of sections 12 of
understood as depriving the Government of the Philippines of
the Act of Congress of August 29, 1916, known as the Jones Law,
its power, however delegated, to prosecute public crimes. The
the Philippine Commission gave way to the Philippine Senate,
fact is undeniable that the present government of the
the Philippine Assembly became the House of Representatives,
Philippines, created by the Congress of the United States, is
and thus was formed the present Legislature composed of two
autonomous.
Houses which has enacted the aforesaid Act No. 2886.
This autonomy of the Government of the Philippines reaches all
As a matter of fact, Act No. 2886 is not the first law that amends
judicial actions, the case at bar being one of them; as an example
General Orders No. 58. The Philippine Commission, at various
of such autonomy, this Government, the same as that of Hawaii
times, had amended it by the enactment of laws among which
and Porto Rico (People of Porto Rico vs. Rosaly y Castillo [1913],
we may cite Act No. 194, regarding preliminary investigation,
227 U.S., 270; 57 L. ed., 507; 33 Sup. Ct. Rep., 352) cannot be
Act No. 440 relating to counsels de oficio and Act No. 590 about
sued without its consent. (Merritt vs. Government of the
preliminary investigations by justices of the peace of provincial
Philippine Islands, 34 Phil., 311; L. S. Moon & Co. vs. Harrison,
capitals. Later on, and before the enactment of Act No. 2886,
p. 27, ante.) The doctrine, laid down in these cases,
herein controverted, the Legislature had also amended this
acknowledges the prerogative of personality in the Government
General Orders No. 58 by the enactment of Act No. 2677
of the Philippines, which, if it is sufficient to shield it from any
regarding appeals to the Supreme Court of causes originating in
responsibility in court in its own name unless it consents
the justice of the peace courts and by Act No. 2709 which deals
thereto, it should be also, as sufficiently authoritative in law, to
with the exclusion of accused persons from the information in
give that government the right to prosecute in court in its own
order to be utilized as state's witnesses.
name whomsoever violates within its territory the penal laws in
These amendments repeatedly made by the Philippine force therein.
Commission as well as by our present Legislature are perfectly
However, limiting ourselves to the question relative to the form
within the scope of the powers of the said legislative bodies as
of the complaint in criminal matters, it is within the power of
the successors of the Military Government that promulgated
the Legislature to prescribe the form of the criminal complaint
General Orders No. 58.
as long as the constitutional provision of the accused to be
No proof is required to demonstrate that the present Legislature informed of the nature of the accusation is not violated.
had, and had, the power to enact and amend laws. (U.S. vs. Bull.
Under the Constitution of the United States and by like
15 Phil., 7.) That it has the power to legislate on criminal
provisions in the constitutions of the various states, the accused
matters is very evident from the wording of section 7 of the Jones
is entitled to be informed of the nature and cause of the
Law which says:
accusation against him . . .
That the legislative authority herein provided shall have power,
It is within the power of the legislatures under such a
when not inconsistent with this Act, by due enactment to amend,
constitutional provision to prescribe the form of the indictment
alter, modify, or repeal any law, civil or criminal, continued in
or information, and such form may omit averments regarded as
force by this Act as it may from time to time see fit.
necessary at common law. (22 Cyc., 285.)
It is urged the right to prosecute and punish crimes is an
All these considerations a priori are strengthened a
attributed of sovereignty. This assertion is right; but it is also
posteriori by the important reason disclosed by the following fact
true that by reason of the principle of territoriality as applied in
— that the Congress has tacitly approved Act No. 2886. Both the
the supression, of crimes, such power is delegated to subordinate
Act of Congress of July 1, 1902, section 86, and the Jones Law,
government subdivisions such as territories. As we have seen in
last paragraph of section 19, provide that all the laws enacted
the beginning, the territorial legislatures have the power to
by the Government of the Philippines or its Legislature shall be
define and punish crimes, a power also possessed by the
forwarded to the Congress of the United States, which body
Philippine Legislature by virtue of the provisions of sections 7,
reserves the right and power to annul them. And presuming, as
already quoted, of the Jones Law. These territorial governments
legally we must, that the provisions of these laws have been
are local agencies of the Federal Government, wherein
complied with, it is undisputed that the Congress of the United
sovereignty resides; and when the territorial government of the
States did not annul any of those acts already adverted to —
Philippines prosecutes and punishes public crimes it does so by
Nos. 194, 440, 490 (of the Philippine Commission), and 2677,
virtue of the authority delegated to it by the supreme power of
2709 and the one now in question No. 2886 (of the present
the Nation.
Legislature) — all of which were amendatory of General Orders
This delegation may be made either expressly as in the case of No. 58. The Act now under discussion (No. 2886) took effect on
the several States of the Union and incorporated territories like February 24, 1920, and the criminal complaint in this case was
Porto Rico and Hawaii, or tacitly as is the case with the filed on May 10, 1920. The silence of Congress regarding those
Philippines, which is an organized territory though not laws amendatory of the said General Order must be considered
incorporated with the Union. (Malcolm, Philippine as an act of approval.
Constitutional Law, 181-205.)
If Congress fails to notice or take action on any territorial
This tacit delegation to our Government needs no legislation the reasonable inference is that it approves such act.
demonstration. As a matter of fact, the crimes committed within (26 R.C.L., 679; vide Clinton vs. Englebrcht, 13 Wall., 434; 20 [L.
our territory, even before section 2 of General Orders No. 58 was ed.] 659; Tiaco vs. Forbes, 228 U.S., 549; 33 S. Ct. Rep., 585; 57
amended, were prosecuted and punished in this jurisdiction as [L. ed.], 960; Nixon vs. Reid, 8 S.d., 507; 67 N.W., 57; 32 L.R.A.,
is done at present; but then as now the repression of crimes was 315.)
done, and is still done, under the sovereign authority of the
Furthermore, supposing for the sake of argument, that the
United States, whose name appears as the heading in all
mention of the People of the Philippine Islands as plaintiff in the
pleadings in criminal causes and in other judicial papers and
title of the information constitutes a vice or defect, the same is
notarial acts.
not fatal when, as in the present case, it was not objected to in
The use of such a heading is prescribed for civil cases in form 1 the court below.
of section 784 of the Code of Civil Procedure; in criminal causes
An indictment must, in many states under express statutory or
the constant practice followed in this jurisdiction established its
constitutional provision, show by its title or by proper recitals in
use; and in notarial matters its use is provided by section 127 of
the caption or elsewhere that the prosecution is in the name and
Act No. 496. This long continued practice in criminal matters
by the authority of the state, the commonwealth, or the people
and the legal provision relating to civil cases and notarial acts
of the state, according to the practice in the particular
have not been amended by any law, much less by Act No. 2886,
jurisdictions; but omissions or defects in this respect may be
the subject of the present inquiry.
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.
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 It is, then, assumed that the said articles of the Penal Code are
false testimony. in force and are properly applicable to crimes of false testimony.
Therefore, in consideration of the fact that in the case at bar the
By the second paragraph of the final section of the last article of
evidence shows it to have been duly proven that the defendant,
the Administrative Code, or Act No. 2657, there was repealed,
Andres Pablo, in testifying in the cause prosecuted for gambling
among the other statutes therein mentioned, the said Act No.
at jueteng, perverted the truth, for the purpose of favoring the
1697 relating to perjury, and the repealing clause of the said
alleged gamblers, Maximo Malicsi and Antonio Rodrigo, with
Administrative Code does not say under what other penal law
the aggravating circumstance of the crime being committed
in force the crime of false testimony, at least, if not that of
through bribery, for it was also proved that the defendant Pablo
perjury, shall be punished.
received P15 in order that he should make no mention of the said
Under these circumstances, may the crime of perjury or of false two gamblers in his sworn testimony, whereby he knowingly
testimony go unpunished, and is there no penal sanction perverted the truth, we hold that, in the commission of the crime
whatever in this country for this crime? May the truth be freely of false testimony, there concurred the aggravating
perverted in testimony given under oath and which, for the very circumstance of price or reward, No. 3 of article 10 of the Code,
reason that it may save a guilty person from punishment, may with no mitigating circumstance to offset the effects of the said
also result in the conviction and punishment of an innocent aggravating one; wherefore the defendant has incurred the
person? If all this is not possible and is not right before the law maximum period of the penalty of arresto mayor in its
and good morals in a society of even mediocre culture, it must be maximum degree to prision correccional in its medium degree,
acknowledged that it is imperatively necessary to punish the and a fine.
crime of perjury or of false testimony — a crime which can
For the foregoing reasons, we hereby reverse the judgment
produce incalculable and far-reaching harm to society and cause
appealed from and sentence Andres Pablo to the penalty of two
infinite disturbance of social order.
years four months and one day of prision correccional, to pay a
The right of prosecution and punishment for a crime is one of fine of 1,000 pesetas, and, in case of insolvency, to suffer the
the attributes that by a natural law belongs to the sovereign corresponding subsidiary imprisonment, which shall not exceed
power instinctively charged by the common will of the members one-third of the principal penalty. He shall also pay the costs of
of society to look after, guard and defend the interests of the both instances. So ordered.
community, the individual and social rights and the liberties of
Johnson, Carson, Trent and Araullo, JJ., concur.
every citizen and the guaranty of the exercise of his rights.
Moreland, J., concurs in the re
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.