MALUM PROHIBITUM
Republic of the Philippines leave his revolver in his automobile, which he himself was
SUPREME COURT
Manila
EN BANC
G.R. No. L-42288 February 16, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
CORNELIO BAYONA, defendant-appellant.
Gervasio Diaz for appellant.
Office of the Solicitor-General Hilado for appellee.
VICKERS, J.:
This is an appeal from a decision of Judge Braulio Bejasa
in the Court of First Instance of Capiz, finding the defendant
guilty of a violation of section 416 of the Election Law and
sentencing him to suffer imprisonment for thirty days and to
pay a fine of P50, with subsidiary imprisonment in case of
insolvency, and to pay the costs.
The facts as found by the trial judge are as follows:
A eso de las once de la mañana del dia 5 de junio de
1934, mientras se celebrahan las elecciones generales en el
precinto electoral numero 4, situado en el Barrio de
Aranguel del Municipio de Pilar, Provincia de Capiz, el aqui
acusado fue sorprendido por Jose E. Desiderio, que era
entonces el representante del Departamento del Interior
para inspecionar las elecciones generales en la Provincia de
Capiz, y por el comandante de la Constabularia F.B.
Agdamag que iba en aquella ocasion con el citado Jose E.
Desiderio, portando en su cinto el revolver Colt de calibre
32, No. 195382, Exhibit A, dentro del cerco que rodeaba el
edificio destinado para el citado colegio electoral numero 4
y a una distancia de 22 metros del referido colegio
electoral. Inmediatament Jose E. Desiderio se incauto del
revolver en cuestion.
La defensa, por medio del testimonio de Jose D. Benliro y
de Dioscoro Buenvenida, trato de establecer que el aqui
acusado paro en la calle que daba frente al colegio
electoral numero 4 a invitacion de dicho Jose D. Benliro y
con el objeto de suplicarle al mencionado acusado para
llevar a su casa a los electores del citado Jose D. Benliro que
ya habian terminado de votar, y que cuando llegaron Jose
E. Desidierio y el comadante F.B. Agdamag, el aqui
acusado estaba en la calle. Desde el colegio electoral
hasta el sitio en que, segun dichos testigos, estaba el
acusado cuando se le quito el revolver Exhibit a, hay una
distancia de 27 metros.
Appellant's attorney makes the following assignments of
error:
1. El Juzgado a quo erro al declarar que el apelante fue
sorprendido con su revolver dentro del cerco de la casa
escuela del Barrio de Aranguel, Municipio de Pilar, que fue
habilitado como colegio electoral.
2. El Juzgado a quo erro al declarar al apelante culpable
de la infraccion de la Ley Electoral querrellada y, por
consiguiente, al condenarle a prision y multa.
As to the question of fact raised by the first assignment of
error, it is sufficient to say that the record shows that both
Jose E. Desiderio, a representative of the Department of the
Interior, and Major Agdamag of the Philippine Constabulary,
who had been designated to supervise the elections in the
Province of Capiz, testified positively that the defendant was
within the fence surrounding the polling place when
Desiderio took possession of the revolver the defendant was
carrying. This also disposes of that part of the argument
under the second assignment of error based on the theory
that the defendant was in a public road, where he had a
right to be, when he was arrested. The latter part of the
argument under the second assignment of error is that if it
be conceded that the defendant went inside of the fence,
he is nevertheless not guilty of a violation of the Election Law,
because he was called by a friend and merely approached
him to find out what he wanted and had no interest in the
election; that there were many people in the public road in
front of the polling place, and the defendant could not
Page 1 of 41
driving, without running the risk of losing it and thereby
incurring in a violation of the law.
As to the contention that the defendant could not leave
his revolver in his automobile without the risk of losing it
because he was alone, it is sufficient to say that under the
circumstances it was not necessary for the defendant to
leave his automobile merely because somebody standing
near the polling place had called him, nor does the record
show that it was necessary for the defendant to carry arms
on that occasion.
The Solicitor-General argues that since the Government
does not especially construct buildings for electoral
precincts but merely utilizes whatever building there may be
available, and all election precincts are within fifty meters
from some road, a literal application of the law would be
absurd, because members of the police force or
Constabulary in pursuit of a criminal would be included in
that prohibition and could not use the road in question if
they were carrying firearms; that people living in the vicinity
of electoral precincts would be prohibited from cleaning or
handling their firearms within their own residences on
registration and election days;
That the object of the Legislature was merely to prohibit
the display of firearms with intention to influence in any way
the free and voluntary exercise of suffrage;
That if the real object of the Legislature was to insure the
free exercise of suffrage, the prohibition in question should
only be applied when the facts reveal that the carrying of
the firearms was intended for the purpose of using them
directly or indirectly to influence the free choice of the
electors (citing the decision of this court in the case of
People vs. Urdeleon [G.R. No. 31536, promulgated
November 20, 1929, not reported], where a policeman, who
had been sent to a polling place to preserve order on the
request of the chairman of the board of election inspectors,
was acquitted); that in the case at bar there is no evidence
that the defendant went to the election precinct either to
vote or to work for the candidacy of anyone, but on the
other hand the evidence shows that the defendant had no
intention to go to the electoral precinct; that he was merely
passing along the road in front of the building where the
election was being held when a friend of his called him; that
while in the strict, narrow interpretation of the law the
defendant is guilty, it would be inhuman and unreasonable
to convict him.
We cannot accept the reasons advanced by the
Solicitor-General for the acquittal of the defendant. The law
which the defendant violated is a statutory provision, and
the intent with which he violated it is immaterial. It may be
conceded that the defendant did not intend to intimidate
any elector or to violate the law in any other way, but when
he got out of his automobile and carried his revolver inside
of the fence surrounding the polling place, he committed
the act complained of, and he committed it willfully. The act
prohibited by the Election Law was complete. The intention
to intimidate the voters or to interfere otherwise with the
election is not made an essential element of the offense.
Unless such an offender actually makes use of his revolver, it
would be extremely difficult, if not impossible, to prove that
he intended to intimidate the voters.
The rule is that in acts mala in se there must be a criminal
intent, but in those mala prohibita it is sufficient if the
prohibited act was intentionally done. "Care must be
exercised in distinguishing the difference between the intent
to commit the crime and the intent to perpetrate the act. ..."
(U.S. vs. Go Chico, 14 Phil., 128.)
While it is true that, as a rule and on principles of abstract
justice, men are not and should not be held criminally
responsible for acts committed by them without guilty
knowledge and criminal or at least evil intent (Bishop's New
Crim. Law, vol. I, sec. 286), the courts have always
recognized the power of the legislature, on grounds of
public policy and compelled by necessity, "the great master
of things", to forbid in a limited class of cases the doing of
 MALUM PROHIBITUM
certain acts, and to make their commission criminal without
regard to the intent of the doer. (U.S. vs. Go Chico, 14 Phil.,
128; U.S. vs. Ah Chong, 15 Phil., 488.) In such cases no judicial
authority has the power to require, in the enforcement of the
law, such knowledge or motive to be shown. (U.S. vs. Siy
Cong Bieng and Co Kong, 30 Phil., 577.)
The cases suggested by the Solicitor-General do not
seem to us to present any difficulty in the enforcement of the
law. If a man with a revolver merely passes along a public
road on election day, within fifty meters of a polling place,
he does not violate the provision of law in question, because
he had no intent to perpetrate the act prohibited, and the
same thing would be true of a peace officer in pursuing a
criminal; nor would the prohibition extend to persons living
within fifty meters of a polling place, who merely clean or
handle their firearms within their own residences on election
day, as they would not be carrying firearms within the
contemplation of the law; and as to the decision in the case
of People vs. Urdeleon, supra, we have recently held in the
case of People vs. Ayre, and Degracia (p. 169, ante), that a
policeman who goes to a polling place on the request of
the board of election inspectors for the purpose of
maintaining order is authorized by law to carry his arms.
If we were to adopt the specious reasoning that the
appellant should be acquitted because it was not proved
that he tried to influence or intended to influence the mind
of any voter, anybody could sell intoxicating liquor or hold a
cockfight or a horse race on election day with impunity.
As to the severity of the minimum penalty provided by
law for a violation of the provision in question, that is a
matter for the Chief Executive or the Legislature.
For the foregoing reasons, the decision appealed from is
affirmed, with the costs against the appellant.
Avanceña, C.J., Street, Abad Santos, and Hull, JJ.,
concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4690 November 13, 1952
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
GERVASIO ALGER, defendant-appellee.
Office of the Solicitor General Pompeyo Diaz and Solicitor
Jesus A. Avanceña for appellant.
Primitivo N. Sato, Jose P. Aliño, and Alejandro A. Abarquez
for appellee.
BAUTISTA ANGELO, J.:
Gervacio Alger was charged in the Court of First Instance
of Cebu with illegal possession of a .30 caliber rifle, model
1917, serial No. 137428 and three rounds of ammunition.
When the case was called for trial, defendant made an oral
motion to dismiss contending that, if it be continued, he
would be placed in double jeopardy. It appears that
defendant has been previously accused and convicted of a
crime of homicide for the perpetration of which he used a
weapon which was made the subject of the present
charge. After the parties has been heard in support of their
respective contentions, the court issued an order sustaining
the plea of jeopardy. Hence this appeal.
The plea of jeopardy is predicated on section 9, Rule 113,
which provides:
SEC. 9. Former conviction or acquittal or former jeopardy.
— When a defendant shall have been convicted or
acquitted, or the case against him dismissed or otherwise
terminated without the express consent of the defendant,
by a court of competent jurisdiction, upon a valid complaint
or information or other formal charge sufficient in form and
substance to sustain a conviction, and after the defendant
had pleaded to the charge, the conviction or acquittal of
Page 2 of 41
the defendant or the dismissal of the case shall be a bar to
another prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof, or for any
offense which necessarily includes or is necessarily included
in the offense charged in the former complaint or
information.
It appears from the above-quoted provision that when a
defendant is convicted of a crime by a court of competent
jurisdiction upon a valid information, his conviction "shall be
a bar to another prosecution for the offense charged or for
any attempt to commit the same or frustration thereof, or for
any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or
information". In order that a former conviction may be a bar
to another prosecution, it is, therefore, important to
determine if the accused is newly prosecuted either for the
same offense, or for any offense which necessarily includes
or is necessarily included in the offense charged. Stated in
another way, the new charge should refer to the same
offense, or to any other necessarily included in it.
This situation does not here obtain. The record shows that
the defendant has been previously charged and convicted
of a crime of homicide whereas in the present case he is
charged with illegal possession of a firearm. The two crimes
are distinct from each other. It is true that the crime of
homicide has been perpetrated with the same weapon
subject of the present case, but this is of no consequence it
appearing that the present offense was not included in the
case of homicide for the reason that the information does
not state that such weapon or firearm did not have the
permit required by law. The gauge to determine if an
offense is necessarily included in another offense is whether
the accused could be held liable and convicted of that
offense. The defendant in this case could not have been
convicted of illegal possession of firearm in the homicide
case because of the failure to allege therein an essential
element constituting that offense.
We have taken notice of the fact that the trial court was
persuaded to sustain the plea of double jeopardy in view of
the ruling laid down in two cases previously decided by this
Court (U.S. vs. Poh Chi, 20 Phil., 140; U.S. vs. Gustilo, 19 Phil.,
208). But the ruling enunciated in said cases is not on all fours
with present because there the accused committed the
acts with one criminal act and did so impelled by a single
criminal intent. In the case at bar, the defendant committed
two different acts with two separate criminal intents, to wit,
the desire to take unlawfully the life of a person, and the
willful violation of the law which prohibits the possession of a
firearm without the required permit. Under the
circumstances of this case, the plea of double jeopardy is of
no avail.
The order appealed from is hereby set aside, without
costs. The Court orders that this case be remanded to the
lower court for further proceedings.
Paras, C.J., Bengzon, Padilla, Montemayor, Jugo and
Labrador, JJ., concur.
SECOND DIVISION
[G.R. No. 125059. March 17, 2000]
FRANCISCO T. SYCIP, JR., petitioner, vs. COURT OF
APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
QUISUMBING, J.:
For review on certiorari is the decision of the Court of
Appeals, dated February 29, 1996, in CA-G.R. CR No. 15993,
which affirmed the judgment of the Regional Trial Court of
Quezon City, Branch 95, in Criminal Cases Nos. Q-91-25910 to
15, finding petitioner guilty beyond reasonable doubt of
violating B.P. Blg. 22, the Bouncing Checks Law.
The facts in this case, as culled from the records, are as
follows:
 MALUM PROHIBITUM
On August 24, 1989, Francisco T. Sycip agreed to buy, on
installment, from Francel Realty Corporation (FRC), a
townhouse unit in the latter's project at Bacoor, Cavite.
Upon execution of the contract to sell, Sycip, as required,
issued to FRC, forty-eight (48) postdated checks, each in the
amount of P9,304.00, covering 48 monthly installments.
After moving in his unit, Sycip complained to FRC
regarding defects in the unit and incomplete features of the
townhouse project. FRC ignored the complaint. Dissatisfied,
Sycip served on FRC two (2) notarial notices to the effect
that he was suspending his installment payments on the unit
pending compliance with the project plans and
specifications, as approved by the Housing and Land Use
Regulatory Board (HLURB). Sycip and 12 out of 14 unit buyers
then filed a complaint with the HLURB. The complaint was
dismissed as to the defects, but FRC was ordered by the
HLURB to finish all incomplete features of its townhouse
project. Sycip appealed the dismissal of the complaint as to
the alleged defects.
Notwithstanding the notarial notices, FRC continued to
present for encashment Sycip's postdated checks in its
possession. Sycip sent "stop payment orders" to the bank.
When FRC continued to present the other postdated checks
to the bank as the due date fell, the bank advised Sycip to
close his checking account to avoid paying bank charges
every time he made a "stop payment" order on the
forthcoming checks. Due to the closure of petitioner's
checking account, the drawee bank dishonored six
postdated checks. FRC filed a complaint against petitioner
for violations of B.P. Blg. 22 involving said dishonored checks.
On November 8, 1991, the Quezon City Prosecutor's
Office filed with the RTC of Quezon City six Informations
docketed as Criminal Cases No. Q-91-25910 to Q-91-25915,
charging petitioner for violation of B.P. Blg. 22.
The accusative portion of the Information in Criminal
Case No. Q-91-25910 reads:
"That on or about the 30th day of October 1990 in
Quezon City, Philippines and within the jurisdiction of this
Honorable Court, the said accused, did then and there,
willfully, unlawfully and feloniously make, draw and issue in
favor of Francel Realty Corporation a check 813514 drawn
against Citibank, a duly established domestic banking
institution in the amount of P9,304.00 Philippine Currency
dated/postdated October 30, 1990 in payment of an
obligation, knowing fully well at the time of issue that she/he
did not have any funds in the drawee bank of (sic) the
payment of such check; that upon presentation of said
check to said bank for payment, the same was dishonored
for the reason that the drawer thereof, accused Francisco T.
Sycip, Jr. did not have any funds therein, and despite notice
of dishonor thereof, accused failed and refused and still fails
and refused (sic) to redeem or make good said check, to
the damage and prejudice of the said Francel Realty
Corporation in the amount aforementioned and in such
other amount as may be awarded under the provisions of
the Civil Code.
"CONTRARY TO LAW."[1]
Criminal Cases No. Q-91-25911 to Q-91-25915, with
Informations similarly worded as in Criminal Case No. Q-91-
25910, except for the dates, and check numbers [2] were
consolidated and jointly tried.
When arraigned, petitioner pleaded "Not Guilty" to each
of the charges. Trial then proceeded.
The prosecution's case, as summarized by the trial court
and adopted by the appellate court, is as follows:
"The prosecution evidence established that on or about
August 24, 1989, at the office of the private complainant
Francel Realty Corporation (a private domestic corporation
engaged in the real estate business) at 822 Quezon Avenue,
QC, accused Francisco Sycip, Jr. drew, issued, and delivered
to private complainant Francel Realty Corporation (FRC
hereinafter) six checks (among a number of other checks),
each for P9,304.00 and drawn pay to the order of FRC and
against Francisco's account no. 845515 with Citibank, to wit:
Page 3 of 41
Check No. 813514 dated October 30, 1990 (Exh. C), Check
No. 813515 dated November 30, 1990 (Exh. D), Check No.
813518 dated February 28,1991 (Exh. E), Check No. 813516
dated December 30, 1990 (Exh. F), Check No. 813517 dated
January 30, 1991 (Exh. G) and Check No. 813519 dated
March 30, 1991 (Exh. H), as and in partial payment of the
unpaid balance of the purchase price of the house and lot
subject of the written contract executed and entered into
by and between FRC as seller and Francisco as buyer on
said date of August 24, 1989 (Exh. B, also Exh. 1). The total
stipulated purchase price for the house and lot was
P451,700.00, of which Francisco paid FRC in the sum of
P135,000.00 as down payment, with Francisco agreeing and
committing himself to pay the balance of P316,000.00 in 48
equal monthly installments of P9,304.00 (which sum already
includes interest on successive monthly balance) effective
September 30, 1989 and on the 30th day of each month
thereafter until the stipulated purchase price is paid in full.
The said six Citibank checks, Exhs. C thru H, as earlier
indicated were drawn, issued, and delivered by Francisco in
favor of FRC as and in partial payment of the said 48 equal
monthly installments under their said contract (Exh. B, also
Exh. 1). Sometime in September 1989, the Building Official's
certificate of occupancy for the subject house -a residential
townhouse -was issued (Exh. N) and Francisco took
possession and started in the use and occupancy of the
subject house and lot.
"When the subject six checks, Exhs. C thru H, were
presented to the Citibank for payment on their respective
due dates, they were all returned to FRC dishonored and
unpaid for the reason: account closed as indicated in the
drawee bank's stamped notations on the face and back of
each check; in fact, as indicated in the corresponding
record of Francisco's account no. 815515 with Citibank, said
account already had a zero balance as early as September
14, 1990 (Exh. 1-5). Notwithstanding the fact that FRC, first
thru its executive vice president and project manager and
thereafter thru its counsel, had notified Francisco, orally and
in writing, of the checks' dishonor and demanded from him
the payment of the amount thereof, still Francisco did not
payor make good any of the checks (Exhs. I thru K)..."[3]
The case for the defense, as summarized also by the trial
court and adopted by the Court of Appeals, is as follows:
"The defense evidence in sum is to the effect that after
taking possession and starting in the use and occupancy of
the subject townhouse unit, Francisco became aware of its
various construction defects; that he called the attention of
FRC, thru its project manager, requesting that appropriate
measures be forthwith instituted, but despite his several
requests, FRC did not acknowledge, much less attend to
them; that Francisco thus mailed to FRC a verified letter
dated June 6, 1990 (Exh. 2) in sum giving notice that
effective June 1990, he will cease and desist 'from paying
my monthly amortization of NINE THOUSAND THREE HUNDRED
FOUR (P9,304.00) PESOS towards the settlement of my
obligation concerning my purchase of Unit No. 14 of FRC
Townhomes referred to above, unless and until your Office
satisfactorily complete(s) the construction, renovation
and/or repair of my townhouses (sic) unit referred to above
and that should FRC 'persist in ignoring my aforesaid
requests, I shall, after five (5) days from your receipt of this
Verified Notice, forthwith petition the [HLURB] for Declaratory
Relief and Consignation to grant me provisional relief from
my obligation to pay my monthly amortization to your good
Office and allow me to deposit said amortizations with
[HLURB] pending your completion of FRC Townhomes Unit in
question'; that Francisco thru counsel wrote FRC, its
president, and its counsel notices/letters in sum to the effect
that Francisco and all other complainants in the [HLURB]
case against FRC shall cease and desist from paying their
monthly amortizations unless and until FRC satisfactorily
completes the construction of their units in accordance with
the plans and specifications thereof as approved by the
[HLURB] and as warranted by the FRC in their contracts and
that the dishonor of the subject checks was a natural
consequence of such suspension of payments, and also
 MALUM PROHIBITUM
advising FRC not to encash or deposit all other postdated
checks issued by Francisco and the other complainants and
still in FRC's possession (Exhs. 3 thru 5); that Francisco and the
other complainants filed the [HLURB] case against FRC and
later on a decision was handed down therein and the same
is pending appeal with the Board (Exhs. 6, 7, & 12 thru 17,
also Exh. 8); that as of the time of presentation of the subject
checks for payment by the drawee bank, Francisco had at
least P150,000.00 cash or credit with Citibank (Exhs. 10 & 11)
and, that Francisco closed his account no. 845515 with
Citibank conformably with the bank's customer service
officer's advice to close his said account instead of making
a stop-payment order for each of his more than 30 post-
dated checks still in FRC's possession at the time, so as to
avoid the P600.00-penalty imposed by the bank for every
check subject of a stop-payment order."[4]
On March 11, 1994, the trial court found petitioner guilty
of violating Section 1 of B.P. Blg. 22 in each of the six cases,
disposing as follows:
"WHEREFORE, in each of Crim. Cases Nos. Q-91-25910, Q-
91-25911, Q-91-25912, Q-91-25913, Q-91-25914 and Q-91-
25915, the Court finds accused Francisco T. Sycip, Jr. guilty
beyond reasonable doubt of a violation of Sec. 1 of Batas
Pambansa Blg. 22 and, accordingly, he is hereby sentenced
in and for each case to suffer imprisonment of thirty (30)
days and pay the costs. Further, the accused is hereby
ordered to pay the offended party, Francel Realty
Corporation, as and for actual damages, the total sum of
fifty-five thousand eight hundred twenty four pesos
(P55,824.00) with interest thereon at the legal rate from date
of commencement of these actions, that is, November 8,
1991, until full payment thereof.
"SO ORDERED."[5]
Dissatisfied, Sycip appealed the decision to the Court of
Appeals. His appeal was docketed as CA-G.R. CR No. 15993.
But on February 29, 1996, the appellate court ruled:
"On the basis of the submission of the People, We find
and so hold that appellant has no basis to rely on the
provision of PD 957 to justify the non-payment of his
obligation, the closure of his checking account and the
notices sent by him to private complainant that he will stop
paying his monthly amortizations."[6]
Petitioner filed a motion for reconsideration on March 18,
1996, but it was denied per Resolution dated April 22, 1996.
Hence, the instant petition anchored on the following
assignment of errors:
I may be rebutted. If not rebutted or contradicted, it will
"THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION
OF THE LOWER COURT FINDING THAT THE ACCUSED-
APPELLANT DID NOT HAVE ANY JUSTIFIABLE CAUSE TO STOP
OR OTHERWISE PREVENT THE PAYMENT OF THE SUBJECT
CHECKS BY THE DRAWEE BANK.
II
"THE LOWER COURT ERRED IN FINDING THAT THE
ACCUSED-APPELLANT MUST BE DEEMED TO HAVE WAIVED HIS
RIGHT TO COMPLAIN AGAINST THE DEVELOPMENT OF THE
TOWNHOUSE UNIT AND THE TOWNHOUSE PROJECT.
III
"THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION
OF THE LOWER COURT THAT THE ACCUSED-APPELLANT DID
NOT HAVE SUFFICIENT FUNDS WITH THE DRAWEE BANK TO
COVER THE SUBJECT CHECKS UPON PRESENTMENT FOR
PAYMENT THEREOF.
IV
"THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION
OF THE LOWER COURT CONVICTING THE ACCUSED-
APPELLANT AND AWARDING DAMAGES IN FAVOR OF
PRIVATE COMPLAINANT."[7]
The principal issue before us is whether or not the Court of
Appeals erred in affirming the conviction of petitioner for
violation of the Bouncing Checks Law.
Page 4 of 41
Petitioner argues that the court a quo erred when it
affirmed his conviction for violation of B.P. Blg. 22,
considering that he had cause to stop payment of the
checks issued to respondent. Petitioner insists that under P.D.
No. 957, the buyer of a townhouse unit has the right to
suspend his amortization payments, should the subdivision or
condominium developer fail to develop or complete the
project in accordance with duly-approved plans and
specifications. Given the findings of the HLURB that certain
aspects of private complainant's townhouse project were
incomplete and undeveloped, the exercise of his right to
suspend payments should not render him liable under B.P.
Blg. 22.
The Solicitor General argues that since what petitioner
was charged with were violations of B.P. Blg. 22, the intent
and circumstances surrounding the issuance of a worthless
check are immaterial.[8] The gravamen of the offense
charged is the act itself of making and issuing a worthless
check or one that is dishonored upon its presentment for
payment. Mere issuing of a bad check is malum
prohibitum, pernicious and inimical to public welfare. In his
view, P.D. No. 957 does not provide petitioner a sufficient
defense against the charges against him.
Under the provisions of the Bouncing Checks Law (B.P.
No. 22),[9] an offense is committed when the following
elements are present:
(1) the making, drawing and issuance of any check to
apply for account or for value;
(2) the knowledge of the maker, drawer, or issuer that at
the time of issue he does not have sufficient funds in or credit
with the drawee bank for the payment of such check in full
upon its presentment; and
(3) the subsequent dishonor of the check by the drawee
bank for insufficiency of funds or credit or dishonor for the
same reason had not the drawer, without any valid cause,
ordered the bank to stop payment.[10]
In this case, we find that although the first element of the
offense exists, the other elements have not been established
beyond reasonable doubt.
To begin with, the second element
involves knowledge on the part of the issuer at the time of
the check's issuance that he did not have enough funds or
credit in the bank for payment thereof upon its presentment.
B.P. No. 22 creates a presumption juris tantum that the
second element prima facie exists when the first and third
elements of the offense are present.[11] But such evidence
suffice to sustain a judgment in favor of the issue, which it
supports.[12] As pointed out by the Solicitor General, such
knowledge of the insufficiency of petitioner's funds "is legally
presumed from the dishonor of his checks for insufficiency of
funds."[13]But such presumption cannot hold if there is
evidence to the contrary. In this case, we find that the other
party has presented evidence to contradict said
presumption. Hence, the prosecution is duty bound to prove
every element of the offense charged, and not merely rely
on a rebuttable presumption.
Admittedly, what are involved here are postdated
checks. Postdating simply means that on the date indicated
on its face, the check would be properly funded, not that
the checks should be deemed as issued only then. [14] The
checks in this case were issued at the time of the signing of
the Contract to Sell in August 1989. But we find from the
records no showing that the time said checks were issued,
petitioner had knowledge that his deposit or credit in the
bank would be insufficient to cover them when presented
for encashment.[15] On the contrary, there is testimony by
petitioner that at the time of presentation of the checks, he
had P150,000.00 cash or credit with Citibank.
As the evidence for the defense showed, the closure of
petitioner's Account No. 845515 with Citibank was not for
insufficiency of funds. It was made upon the advice of the
drawee bank, to avoid payment of hefty bank charges
each time petitioner issued a "stop payment" order to
 MALUM PROHIBITUM
prevent encashment of postdated checks in private
respondent's possession.[16] Said evidence contradicts
the prima facie presumption of knowledge of insufficiency of
funds. But it establishes petitioner's state of mind at the time
said checks were issued on August 24, 1989. Petitioner
definitely had no knowledge that his funds or credit would
be insufficient when the checks would be presented for
encashment. He could not have foreseen that he would be
advised by his own bank in the future, to close his account
to avoid paying the hefty banks charges that came with
each "stop payment" order issued to prevent private
respondent from encashing the 30 or so checks in its
possession. What the prosecution has established is the
closure of petitioner's checking account. But this does not
suffice to prove the second element of the offense under
B.P. Blg. 22, which explicitly requires "evidence of knowledge
of insufficient funds" by the accused at the time the check or
checks are presented for encashment.
To rely on the presumption created by B.P. No. 22 as the
prosecution did in this case, would be to misconstrue the
import of requirements for conviction under the law. It must
be stressed that every element of the offense must be
proved beyond reasonable doubt, never presumed.
Furthermore, penal statutes are strictly construed against the
State and liberally in favor of the accused. Under the
Bouncing Checks Law, the punishable act must come
clearly within both the spirit and letter of the statute.[17]
While B.P. Blg. 22 was enacted to safeguard the interest
of the banking system,[18] it is difficult to see how conviction
of the accused in this case will protect the sanctity of the
financial system. Moreover, protection must also be afforded
the interest of townhouse buyers under P.D. No. 957.[19] A
statute must be construed in relation to other laws so as to
carry out the legitimate ends and purposes intended by the
legislature.[20] Courts will not strictly follow the letter of one
statute when it leads away from the true intent of legislature
and when ends are inconsistent with the general purpose of
the act.[21] More so, when it will mean the contravention of
another valid statute. Both laws have to be reconciled and
given due effect.
Note that we have upheld a buyer's reliance on Section
23 of P.D. 957 to suspend payments until such time as the
owner or developer had fulfilled its obligations to the
buyer.[22]This exercise of a statutory right to suspend
installment payments, is to our mind, a valid defense against
the purported violations of B.P. Blg. 22 that petitioner is
charged with.
Given the findings of the HLURB as to incomplete features
in the construction of petitioner's and other units of the
subject condominium bought on installment from FRC, we
are of the view that petitioner had a valid cause to order his
bank to stop payment. To say the least, the third element of
"subsequent dishonor of the check... without valid cause"
appears to us not established by the prosecution. As already
stated, the prosecution tried to establish the crime on
a prima facie presumption in B.P. Blg. 22. Here that
presumption is unavailing, in the presence of a valid cause
to stop payment, thereby negating the third element of the
crime.
Offenses punished by a special law, like the Bouncing
Checks Law, are not subject to the Revised Penal Code, but
the Code is supplementary to such a law.[23] We find nothing
in the text of B.P. Blg. 22, which would prevent the Revised
Penal Code from supplementing it. Following Article 11
(5)[24] of the Revised Penal Code, petitioner's exercise of a
right of the buyer under Article 23 of P.D. No. 957 is a valid
defense to the charges against him.
WHEREFORE, the instant petition is GRANTED. Petitioner
Francisco T. Sycip, Jr., is ACQUITTED of the charges against
him under Batas Pambansa Blg. 22, for lack of sufficient
evidence to prove the offenses charged beyond
reasonable doubt. No pronouncement as to costs.
SO ORDERED.
Page 5 of 41
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr.,
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-11425 August 2, 1916
THE UNITED STATES, plaintiff-appellee,
vs.
NGAN PING, defendant-appellant.
Beaumont and Tenney for appellant.
Attorney-General Avanceña for appellee.
JOHNSON, J.:
This defendant was charged with the illegal possession of
opium. The complaint alleged that on or about the 12th of
August, 1915, in the city of Manila, Philippine Islands, he did
then and there willfuly, unlawfully, and feloniously have in his
possession and under his control forty centigrams of
cocaine, contrary to law.
Upon said complaint the defendant was arrested,
arraigned, pleaded not guilty, was tried, found guilty, and
sentenced to be imprisoned for a period of three months
and to pay a fine of P300. From that sentence the
defendant appealed to this court and alleges that the facts
adduced during the trial of the cause are not sufficient to
show that he is guilty of the crime charged in the complaint.
The defendant is a Chinese boy, seventeen years of age.
At the time of his arrest he was employed in a tiendalocated
on Calle Nueva, city of Manila, which tienda belonged to his
father, his uncle, and his brother. The defendant had no
interest whatever in said tienda , but was evidently working
therein, assisting his father, uncle and brother.
An examination of the proof shows that on or about the
12th of August, 1915, the defendant was in the tienda ,
together with his brother, and one of the other owners of the
same; that between six and seven o'clock in the evening of
said day, one Henry Rusland, a policeman, and Samuel
Stokes, an employee in a saloon, who was then, as the
record shows, acting as a spy, entered said tienda and
asked the defendant for a small package; that the
defendant offered to deliver the package to Stokes,
whereupon Stokes told him to deliver the same to Rusland.
The proof further shows tat at about 1 o'clock in the
afternoon of the same day, the said Stokes entered
the tienda where the defendant was working and left with
him a package, stating that he would call for it later; that
Stokes was an occasional visitor or customer at the tienda ,
buying wine from time to time; that the defendant took the
package from Stokes and laid it on a shelf near the cock in
the tienda , and it was in plain view to all persons in
the tienda ; that the package which had been delivered to
the defendant at 1 o'clock on the day in question and
which was laid upon the shelf in the tienda was the same
package which the defendant tried to deliver to Stokes and
Rusland at about 6 o'clock in the evening of that day. In our
opinion there is nothing in the record which justifies a finding
that the defendant is guilty of having in his possession
cocaine. There is no proof that he knew what the package
contained. There is no proof that he tried to find out what
was in the package. There is not the slightest proof showing
that the defendant intended to violate the Opium Law.
From all of the foregoing, we are of the opinion that the
sentence of the lower court should be reversed, that the
defendant should be absolved from all liability under the
law, the complaint dismissed, and that he be discharged
from the custody of the law. And without any finding as to
costs it is so ordered.
Torres, Moreland, Trent, and Araullo, JJ., concur.
SECOND DIVISION
[G.R. No. 149275. September 27, 2004]
 MALUM PROHIBITUM
VICKY C. TY, petitioner, vs. PEOPLE OF THE PHILIPPINES,
respondent.
DECISION
TINGA, J.:
Petitioner Vicky C. Ty (Ty) filed the instant Petition for
Review under Rule 45, seeking to set aside the Decision[1] of
the Court of Appeals Eighth Division in CA-G.R. CR No. 20995,
promulgated on 31 July 2001. The Decision affirmed with
modification the judgment of the Regional Trial Court (RTC)
of Manila, Branch 19, dated 21 April 1997, finding her guilty
of seven (7) counts of violation of Batas Pambansa Blg.
22[2] (B.P. 22), otherwise known as the Bouncing Checks Law.
This case stemmed from the filing of seven
(7) Informations for violation of B.P. 22 against Ty before the
RTC of Manila. The Informations were docketed as Criminal
Cases No. 93-130459 to No. 93-130465. The accusatory
portion of the Information in Criminal Case No. 93-130465
reads as follows:
That on or about May 30, 1993, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and feloniously make or draw and issue to Manila
Doctors Hospital to apply on account or for value to Editha
L. Vecino Check No. Metrobank 487712 dated May 30, 1993
payable to Manila Doctors Hospital in the amount
of P30,000.00, said accused well knowing that at the time of
issue she did not have sufficient funds in or credit with the
drawee bank for payment of such check in full upon its
presentment, which check when presented for payment
within ninety (90) days from the date hereof, was
subsequently dishonored by the drawee bank for Account
Closed and despite receipt of notice of such dishonor, said
accused failed to pay said Manila Doctors Hospital the
amount of the check or to make arrangement for full
payment of the same within five (5) banking days after
receiving said notice.
Contrary to law.[3]
The other Informations are similarly worded except for the
number of the checks and dates of issue. The data are
hereunder itemized as follows:
Criminal Case No. Check No. Postdated Amount
93-130459 487710 30 March 1993 30,000.00
93-130460 487711 30 April 1993 P30,000.00
93-130461 487709 01 March 1993 P30,000.00
93-130462 487707 30 December 1992 P30,000.00
93-130463 487706 30 November 1992 P30,000.00
93-130464 487708 30 January 1993 P30,000.00
93-130465 487712 30 May 1993 P30,000.00[4]
The cases were consolidated and jointly tried. At her
arraignment, Ty pleaded not guilty.[5]
The evidence for the prosecution shows that Tys mother
Chua Lao So Un was confined at the Manila Doctors Hospital
(hospital) from 30 October 1990 until 4 June 1992.Being the
patients daughter, Ty signed the Acknowledgment of
Responsibility for Payment in the Contract of Admission
dated 30 October 1990.[6] As of 4 June 1992, the Statement
of Account[7] shows the total liability of the mother in the
amount of P657,182.40. Tys sister, Judy Chua, was also
confined at the hospital from 13 May 1991 until 2 May 1992,
incurring hospital bills in the amount of P418,410.55.[8] The
total hospital bills of the two patients amounted
to P1,075,592.95. On 5 June 1992, Ty executed a promissory
note wherein she assumed payment of the obligation in
installments.[9] To assure payment of the obligation, she drew
several postdated checks against Metrobank payable to
the hospital. The seven (7) checks, each covering the
amount of P30,000.00, were all deposited on their due
dates. But they were all dishonored by the drawee bank and
returned unpaid to the hospital due to insufficiency of funds,
with the Account Closed advice. Soon thereafter, the
complainant hospital sent demand letters to Ty by registered
mail. As the demand letters were not heeded, complainant
filed the seven (7) Informations subject of the instant case.[10]
Page 6 of 41
For her defense, Ty claimed that she issued the checks
because of an uncontrollable fear of a greater injury. She
averred that she was forced to issue the checks to obtain
release for her mother whom the hospital inhumanely and
harshly treated and would not discharge unless the hospital
bills are paid. She alleged that her mother was deprived of
room facilities, such as the air-condition unit, refrigerator and
television set, and subject to inconveniences such as the
cutting off of the telephone line, late delivery of her mothers
food and refusal to change the latters gown and
bedsheets. She also bewailed the hospitals suspending
medical treatment of her mother. The debasing treatment,
she pointed out, so affected her mothers mental,
psychological and physical health that the latter
contemplated suicide if she would not be discharged from
the hospital. Fearing the worst for her mother, and to comply
with the demands of the hospital, Ty was compelled to sign
a promissory note, open an account with Metrobank and
issue the checks to effect her mothers immediate
discharge.[11]
Giving full faith and credence to the evidence offered by
the prosecution, the trial court found that Ty issued the
checks subject of the case in payment of the hospital bills of
her mother and rejected the theory of the defense.[12] Thus,
on 21 April 1997, the trial court rendered a Decision finding Ty
guilty of seven (7) counts of violation of B.P. 22 and
sentencing her to a prison term. The dispositive part of
the Decision reads:
CONSEQUENTLY, the accused Vicky C. Ty, for her acts of
issuing seven (7) checks in payment of a valid obligation,
which turned unfounded on their respective dates of
maturity, is found guilty of seven (7) counts of violations of
Batas Pambansa Blg. 22, and is hereby sentenced to suffer
the penalty of imprisonment of SIX MONTHS per count or a
total of forty-two (42) months.
SO ORDERED.[13]
Ty interposed an appeal from the Decision of the trial
court. Before the Court of Appeals, Ty reiterated her defense
that she issued the checks under the impulse of an
uncontrollable fear of a greater injury or in avoidance of a
greater evil or injury. She also argued that the trial court
erred in finding her guilty when evidence showed there was
absence of valuable consideration for the issuance of the
checks and the payee had knowledge of the insufficiency
of funds in the account. She protested that the trial court
should not have applied the law mechanically, without due
regard to the principles of justice and equity.[14]
In its Decision dated 31 July 2001, the appellate court
affirmed the judgment of the trial court with modification. It
set aside the penalty of imprisonment and instead
sentenced Ty to pay a fine of sixty thousand pesos
(P60,000.00) equivalent to double the amount of the check,
in each case.[15]
In its assailed Decision, the Court of Appeals rejected Tys
defenses of involuntariness in the issuance of the checks and
the hospitals knowledge of her checking accounts lack of
funds. It held that B.P. 22 makes the mere act of issuing a
worthless check punishable as a special offense, it being
a malum prohibitum. What the law punishes is the issuance
of a bouncing check and not the purpose for which it was
issued nor the terms and conditions relating to its issuance.[16]
Neither was the Court of Appeals convinced that there
was no valuable consideration for the issuance of the
checks as they were issued in payment of the hospital bills of
Tys mother.[17]
In sentencing Ty to pay a fine instead of a prison term, the
appellate court applied the case of Vaca v. Court of
Appeals[18] wherein this Court declared that in determining
the penalty imposed for violation of B.P. 22, the philosophy
underlying the Indeterminate Sentence Law should be
observed, i.e., redeeming valuable human material and
preventing unnecessary deprivation of personal liberty and
economic usefulness, with due regard to the protection of
the social order.[19]
 MALUM PROHIBITUM
Petitioner now comes to this Court basically alleging the
same issues raised before the Court of Appeals. More
specifically, she ascribed errors to the appellate court based
on the following grounds:
A. THERE IS CLEAR AND CONVINCING EVIDENCE
THAT PETITIONER WAS FORCED TO OR COMPELLED IN
THE OPENING OF THE ACCOUNT AND THE ISSUANCE OF
THE SUBJECT CHECKS.
B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF
AN UNCONTROLLABLE FEAR OF A GREATER INJURY OR
IN AVOIDANCE OF A GREATER EVIL OR INJURY.
C. THE EVIDENCE ON RECORD PATENTLY
SHOW[S] ABSENCE OF VALUABLE CONSIDERATION IN
THE ISSUANCE OFTHE SUBJECT CHECKS.
D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE
CHECKS WAS FULLY AWARE OF THE LACK OF FUNDS IN
THE ACCOUNT.
E. THE HONORABLE COURT OF APPEALS, AS WELL AS
THE HONORABLE TRIAL COURT [,] SHOULD NOT HAVE
APPLIED CRIMINAL LAW MECHANICALLY, WITHOUT DUE
REGARD TO THE PRINCIPLES OF JUSTICE AND EQUITY.
In its Memorandum,[20] the Office of the Solicitor General
(OSG), citing jurisprudence, contends that a check issued as
an evidence of debt, though not intended to be presented
for payment, has the same effect as an ordinary check;
hence, it falls within the ambit of B.P. 22. And when a check
is presented for payment, the drawee bank will generally
accept the same, regardless of whether it was issued in
payment of an obligation or merely to guarantee said
obligation. What the law punishes is the issuance of a
bouncing check, not the purpose for which it was issued nor
the terms and conditions relating to its issuance. The mere
act of issuing a worthless check is malum prohibitum.[21]
We find the petition to be without merit and accordingly
sustain Tys conviction.
Well-settled is the rule that the factual findings and
conclusions of the trial court and the Court of Appeals are
entitled to great weight and respect, and will not be
disturbed on appeal in the absence of any clear showing
that the trial court overlooked certain facts or circumstances
which would substantially affect the disposition of the
case.[22]Jurisdiction of this Court over cases elevated from
the Court of Appeals is limited to reviewing or revising errors
of law ascribed to the Court of Appeals whose factual
findings are conclusive, and carry even more weight when
said court affirms the findings of the trial court, absent any
showing that the findings are totally devoid of support in the
record or that they are so glaringly erroneous as to constitute
serious abuse of discretion.[23]
In the instant case, the Court discerns no compelling
reason to reverse the factual findings arrived at by the trial
court and affirmed by the Court of Appeals.
Ty does not deny having issued the seven (7) checks
subject of this case. She, however, claims that the issuance
of the checks was under the impulse of an uncontrollable
fear of a greater injury or in avoidance of a greater evil or
injury. She would also have the Court believe that there was
no valuable consideration in the issuance of the checks.
However, except for the defenses claim of uncontrollable
fear of a greater injury or avoidance of a greater evil or
injury, all the grounds raised involve factual issues which are
best determined by the trial court. And, as previously
intimated, the trial court had in fact discarded the theory of
the defense and rendered judgment accordingly.
Moreover, these arguments are a mere rehash of
arguments unsuccessfully raised before the trial court and
the Court of Appeals. They likewise put to issue factual
questions already passed upon twice below, rather than
questions of law appropriate for review under a Rule 45
petition.
The only question of law raisedwhether the defense of
uncontrollable fear is tenable to warrant her exemption from
criminal liabilityhas to be resolved in the negative. For this
Page 7 of 41
exempting circumstance to be invoked successfully, the
following requisites must concur: (1) existence of an
uncontrollable fear; (2) the fear must be real and imminent;
and (3) the fear of an injury is greater than or at least equal
to that committed.[24]
It must appear that the threat that caused the
uncontrollable fear is of such gravity and imminence that
the ordinary man would have succumbed to it.[25] It should
be based on a real, imminent or reasonable fear for ones life
or limb.[26] A mere threat of a future injury is not enough. It
should not be speculative, fanciful, or remote.[27] A person
invoking uncontrollable fear must show therefore that the
compulsion was such that it reduced him to a mere
instrument acting not only without will but against his will as
well.[28] It must be of such character as to leave no
opportunity to the accused for escape.[29]
In this case, far from it, the fear, if any, harbored by Ty
was not real and imminent. Ty claims that she was
compelled to issue the checksa condition the hospital
allegedly demanded of her before her mother could be
dischargedfor fear that her mothers health might deteriorate
further due to the inhumane treatment of the hospital or
worse, her mother might commit suicide. This is speculative
fear; it is not the uncontrollable fear contemplated by law.
To begin with, there was no showing that the mothers
illness was so life-threatening such that her continued stay in
the hospital suffering all its alleged unethical treatment
would induce a well-grounded apprehension of her
death. Secondly, it is not the laws intent to say that any fear
exempts one from criminal liability much less petitioners
flimsy fear that her mother might commit suicide. In other
words, the fear she invokes was not impending or
insuperable as to deprive her of all volition and to make her
a mere instrument without will, moved exclusively by the
hospitals threats or demands.
Ty has also failed to convince the Court that she was left
with no choice but to commit a crime. She did not take
advantage of the many opportunities available to her to
avoid committing one. By her very own words, she admitted
that the collateral or security the hospital required prior to
the discharge of her mother may be in the form of
postdated checks or jewelry.[30] And if indeed she was
coerced to open an account with the bank and issue the
checks, she had all the opportunity to leave the scene to
avoid involvement.
Moreover, petitioner had sufficient knowledge that the
issuance of checks without funds may result in a violation of
B.P. 22. She even testified that her counsel advised her not to
open a current account nor issue postdated checks
because the moment I will not have funds it will be a big
problem.[31] Besides, apart from petitioners bare assertion,
the record is bereft of any evidence to corroborate and
bolster her claim that she was compelled or coerced to
cooperate with and give in to the hospitals demands.
Ty likewise suggests in the prefatory statement of
her Petition and Memorandum that the justifying
circumstance of state of necessity under par. 4, Art. 11 of the
Revised Penal Code may find application in this case.
We do not agree. The law prescribes the presence of
three requisites to exempt the actor from liability under this
paragraph: (1) that the evil sought to be avoided actually
exists; (2) that the injury feared be greater than the one
done to avoid it; (3) that there be no other practical and less
harmful means of preventing it.[32]
In the instant case, the evil sought to be avoided is
merely expected or anticipated. If the evil sought to be
avoided is merely expected or anticipated or may happen
in the future, this defense is not applicable.[33] Ty could have
taken advantage of an available option to avoid
committing a crime. By her own admission, she had the
choice to give jewelry or other forms of security instead of
postdated checks to secure her obligation.
Moreover, for the defense of state of necessity to be
availing, the greater injury feared should not have been
 MALUM PROHIBITUM
brought about by the negligence or imprudence, more so,
the willful inaction of the actor.[34] In this case, the issuance
of the bounced checks was brought about by Tys own
failure to pay her mothers hospital bills.
The Court also thinks it rather odd that Ty has chosen the
exempting circumstance of uncontrollable fear and the
justifying circumstance of state of necessity to absolve her of
liability. It would not have been half as bizarre had Ty been
able to prove that the issuance of the bounced checks was
done without her full volition. Under the circumstances,
however, it is quite clear that neither uncontrollable fear nor
avoidance of a greater evil or injury prompted the issuance
of the bounced checks.
Parenthetically, the findings of fact in the Decision of the
trial court in the Civil Case[35] for damages filed by Tys
mother against the hospital is wholly irrelevant for purposes
of disposing the case at bench. While the findings therein
may establish a claim for damages which, we may add,
need only be supported by a preponderance of evidence,
it does not necessarily engender reasonable doubt as to
free Ty from liability.
As to the issue of consideration, it is presumed, upon
issuance of the checks, in the absence of evidence to the
contrary, that the same was issued for valuable
consideration.[36] Section 24[37] of the Negotiable Instruments
Law creates a presumption that every party to an instrument
acquired the same for a consideration[38] or for value.[39] In
alleging otherwise, Ty has the onus to prove that the checks
were issued without consideration. She must present
convincing evidence to overthrow the presumption.
A scrutiny of the records reveals that petitioner failed to
discharge her burden of proof. Valuable consideration may
in general terms, be said to consist either in some right,
interest, profit, or benefit accruing to the party who makes
the contract, or some forbearance, detriment, loss or some
responsibility, to act, or labor, or service given, suffered or
undertaken by the other aide. Simply defined, valuable
consideration means an obligation to give, to do, or not to
do in favor of the party who makes the contract, such as the
maker or indorser.[40]
In this case, Tys mother and sister availed of the services
and the facilities of the hospital. For the care given to her kin,
Ty had a legitimate obligation to pay the hospital by virtue
of her relationship with them and by force of her signature
on her mothers Contract of Admission acknowledging
responsibility for payment, and on the promissory note she
executed in favor of the hospital.
Anent Tys claim that the obligation to pay the hospital
bills was not her personal obligation because she was not
the patient, and therefore there was no consideration for
the checks, the case of Bridges v. Vann, et al.[41] tells us that
it is no defense to an action on a promissory note for the
maker to say that there was no consideration which was
beneficial to him personally; it is sufficient if the consideration
was a benefit conferred upon a third person, or a detriment
suffered by the promisee, at the instance of the promissor. It
is enough if the obligee foregoes some right or privilege or
suffers some detriment and the release and extinguishment
of the original obligation of George Vann, Sr., for that of
appellants meets the requirement. Appellee accepted one
debtor in place of another and gave up a valid, subsisting
obligation for the note executed by the appellants. This, of
itself, is sufficient consideration for the new notes.
At any rate, the law punishes the mere act of issuing a
bouncing check, not the purpose for which it was issued nor
the terms and conditions relating to its issuance.[42] B.P. 22
does not make any distinction as to whether the checks
within its contemplation are issued in payment of an
obligation or to merely guarantee the obligation.[43] The
thrust of the law is to prohibit the making of worthless checks
and putting them into circulation.[44] As this Court held in Lim
v. People of the Philippines,[45] what is primordial is that such
issued checks were worthless and the fact of its
worthlessness is known to the appellant at the time of their
issuance, a required element under B.P. Blg. 22.
Page 8 of 41
The law itself creates a prima facie presumption of
knowledge of insufficiency of funds. Section 2 of B.P. 22
provides:
Section 2. Evidence of knowledge of insufficient funds. -
The making, drawing and issuance of a check payment of
which is refused by the drawee bank because of insufficient
funds in or credit with such bank, when presented within
ninety (90) days from the date of the check, shall be prima
facie evidence of knowledge of such insufficiency of funds
or credit unless such maker or drawer pays the holder
thereof the amount due thereon, or makes arrangements for
payment in full by the drawee of such check within five (5)
banking days after receiving notice that such check has not
been paid by the drawee.
Such knowledge is legally presumed from the dishonor of
the checks for insufficiency of funds.[46] If not rebutted, it
suffices to sustain a conviction.[47]
Petitioner likewise opines that the payee was aware of
the fact that she did not have sufficient funds with the
drawee bank and such knowledge necessarily exonerates
her liability.
The knowledge of the payee of the insufficiency or lack
of funds of the drawer with the drawee bank is immaterial as
deceit is not an essential element of an offense penalized by
B.P. 22. The gravamen of the offense is the issuance of a bad
check, hence, malice and intent in the issuance thereof is
inconsequential.[48]
In addition, Ty invokes our ruling in Magno v. Court of
Appeals[49] wherein this Court inquired into the true nature of
transaction between the drawer and the payee and finally
acquitted the accused, to persuade the Court that the
circumstances surrounding her case deserve special
attention and do not warrant a strict and mechanical
application of the law.
Petitioners reliance on the case is misplaced. The material
operative facts therein obtaining are different from those
established in the instant petition. In the 1992 case, the
bounced checks were issued to cover a warranty deposit in
a lease contract, where the lessor-supplier was also the
financier of the deposit. It was a modus operandi whereby
the supplier was able to sell or lease the goods while
privately financing those in desperate need so they may be
accommodated. The maker of the check thus became an
unwilling victim of a lease agreement under the guise of a
lease-purchase agreement. The maker did not benefit at all
from the deposit, since the checks were used as collateral
for an accommodation and not to cover the receipt of an
actual account or credit for value.
In the case at bar, the checks were issued to cover the
receipt of an actual account or for value. Substantial
evidence, as found by the trial court and Court of Appeals,
has established that the checks were issued in payment of
the hospital bills of Tys mother.
Finally, we agree with the Court of Appeals in deleting
the penalty of imprisonment, absent any proof that
petitioner was not a first-time offender nor that she acted in
bad faith. Administrative Circular 12-2000,[50] adopting the
rulings in Vaca v. Court of Appeals[51] and Lim v.
People,[52] authorizes the non-imposition of the penalty of
imprisonment in B.P. 22 cases subject to certain
conditions. However, the Court resolves to modify the
penalty in view of Administrative Circular 13-2001[53] which
clarified Administrative 12-2000. It is stated therein:
The clear tenor and intention of Administrative Circular
No. 12-2000 is not to remove imprisonment as an alternative
penalty, but to lay down a rule of preference in the
application of the penalties provided for in B.P. Blg. 22.
Thus, Administrative Circular 12-2000 establishes a rule of
preference in the application of the penal provisions of B.P.
Blg. 22 such that where the circumstances of both the
offense and the offender clearly indicate good faith or a
clear mistake of fact without taint of negligence, the
imposition of a fine alone should be considered as the more
appropriate penalty. Needless to say, the determination of
 MALUM PROHIBITUM
whether circumstances warrant the imposition of a fine
alone rests solely upon the Judge. Should the judge decide
that imprisonment is the more appropriate penalty,
Administrative Circular No. 12-2000 ought not be deemed a
hindrance.
It is therefore understood that: (1) Administrative Circular
12-2000 does not remove imprisonment as an alternative
penalty for violations of B.P. 22; (2) the judges concerned
may, in the exercise of sound discretion, and taking into
consideration the peculiar circumstances of each case,
determine whether the imposition of a fine alone would best
serve the interests of justice, or whether forbearing to impose
imprisonment would depreciate the seriousness of the
offense, work violence on the social order, or otherwise be
contrary to the imperatives of justice; (3) should only a fine
be imposed and the accused unable to pay the fine, there
is no legal obstacle to the application of the Revised Penal
Code provisions on subsidiary imprisonment.[54]
WHEREFORE, the instant Petition is DENIED and the
assailed Decision of the Court of Appeals, dated 31 July
2001, finding petitioner Vicky C. Ty GUILTY of violating Batas
Pambansa Bilang 22 is AFFIRMED with
MODIFICATIONS. Petitioner Vicky C. Ty is ORDERED to pay a
FINE equivalent to double the amount of each dishonored
check subject of the seven cases at bar with subsidiary
imprisonment in case of insolvency in accordance with
Article 39 of the Revised Penal Code. She is also ordered to
pay private complainant, Manila Doctors Hospital, the
amount of Two Hundred Ten Thousand Pesos (P210,000.00)
representing the total amount of the dishonored
checks. Costs against the petitioner.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, and Callejo, Sr.,
JJ., concur.
Chico-Nazario, J., on leave.
EN BANC
[G.R. Nos. 139788 & 139827. October 3, 2002]
PEOPLE OF THE PHILIPPINES, appellee, vs. ROGELIO DEL
AYRE y LITRAN, appellant.
DECISION
PANGANIBAN, J.:
It is well-settled that the death penalty cannot be
imposed in incestuous rapes, if the information does not
allege or specify the relationship of the victim to the
offender.
The Case
For automatic review by this Court is the Decision [1] dated
May 28, 1999, issued by the Regional Trial Court (RTC) of
Malolos, Bulacan (Branch 78). The RTC found Rogelio del
Ayre y Litran guilty beyond reasonable doubt of two (2)
counts of rape and sentenced him to death for one count
and to reclusion perpetua for the other. The decretal portion
of the Decision reads as follows:
WHEREFORE, the foregoing considered, this Court hereby
finds accused ROGELIO DEL AYRE Y LITRAN GUILTY beyond
reasonable doubt of two (2) counts of Rape defined and
penalized under Article 335 of the Revised Penal Code as
amended by Republic Act No. 7659, and hereby sentences
him to suffer the penalty of Reclusion Perpetua for Crim.
Case No. 1402-M-97 and Death for Crim. Case No 1403-M-97
and to pay private complainant Zaira M. del Ayre the
amount of Seventy Five Thousand Pesos (P75,000.00) as
moral damages. With costs.
SO ORDERED.[2]
Two separate Informations,[3] both dated October 16,
1997, charged appellant as follows:
Criminal Case No. 1402-M-97
That on or about the 16th day of February, 1993 in the
[M]unicipality of Obando, [P]rovince of Bulacan, Philippines
and within the jurisdiction of this Honorable Court, the
Page 9 of 41
above-named accused, did then and there wilfully,
unlawfully and feloniously, with lewd designs, have carnal
knowledge of the offended party Zaira M. del Ayre, a nine
years of age [sic], against her will and without her consent.[4]
Criminal Case No. 1403-M-97
That on or about the 26th day of September, 1994, in the
[M]unicipality of Obando, [P]rovince of Bulacan, Philippines
and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there wilfully,
unlawfully and feloniously, with lewd designs, have carnal
knowledge of the offended party Zaira M. del Ayre, a ten
years of age [sic], against her will and without her consent.[5]
When arraigned on November 7, 1997, appellant,
assisted by his counsel de oficio,[6] pleaded not guilty.[7] In
due course, he was tried and found guilty.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarized the
evidence for the prosecution in this wise:
On February 16, 1993, at about 5:00 oclock in the
morning, appellant Rogelio L. del Ayre arrived at their house
located at Bonoanagan, Obando, Bulacan from the public
market located at Barangay Paco, Obando, Bulacan where
he had left his wife who was selling oysters. In the house, his
9-year old daughter Zaira del Ayre was attending to her five-
year old sister Laiza.Appellant ordered Zaira to serve him a
cup of coffee. Zairas four (4) other siblings were fast asleep
inside their house.
Appellant did not drink the coffee but instead forcibly
rolled up Zairas sleeveless blouse. Zaira tried to resist and said
ayoko po, but appellant removed her blouse, shorts and
panty. Zaira was made to lie down on a wooden bed while
appellant removed his short pants and brief. Appellant [lay]
on top of Zaira and inserted his finger into her vagina while
commanding her not to speak out loud as it would [only
take] a few minutes. She tried to resist but appellant
squeezed her body. Appellant inserted his finger into her
vagina after which he inserted his penis and made push and
pull movements for about three (3) minutes. Then appellant
threatened Zaira that if the matter was divulged, he would
kill the members of the family. Afraid, Zaira proceeded
outside their house and cried.
On September 26, 1994, Zaira was together with her sister
Laiza inside their house. Appellant forcibly pulled Zaira
towards him and forced her to lie down on their wooden
bed. She tried to resist but appellant prevailed upon her and
told her that it would only take a few minutes. Appellant
took off Zaira's short pants and panty while the former took
off his shorts and brief.Appellant placed himself on top of
Zaira, inserted his penis inside her vagina and made push
and pull movements for about five (5) minutes. Then
appellant inserted his finger into Zairas vagina while mashing
her breasts for a few minutes. Appellant threatened her not
to report the incident to anybody. It was only on July 20,
1997 when Zaira mustered enough courage to report the
matter to her grandmother which led to the apprehension of
appellant.
On July 21, 1997, Zaira underwent medical examination
by a medico legal officer from the National Bureau of
Investigation (NBI), Manila and it was found that her hymen
[was] intact but distendible and its orifice wide (2.5 cm in
diameter) as to allow complete penetration by an average
size adult Filipino male organ in full erection without
producing any genital injury.[8](Citations omitted)
Version of the Defense
On the other hand, appellant presents his version of the
incident as follows:
Accused ROGELIO DEL AYRE testified that on February 16,
1993 at around 5:00 A.M., he was with his wife in the market
selling oysters. He sells oysters with his wife from Monday to
Sunday. He was also in the market on September 26,
1994. He was sure that he was in the market on both dates
when the alleged rape was committed because, that is his
 MALUM PROHIBITUM
daily activity. He was not aware about the charges filed by
his daughter against him. He was just arrested in the market
on July 1997 by the Barangay Captain. All the charges
against him are not true because every time he scolded
Zaira, he would hit her. Then she would proceed to the
house of his mother-in-law. It was his mother-in-law who
instigated the filing of these cases against him. The last time
that he scolded Zaira and hit her was about 2 or 3 days
before he was arrested. He scolded and hit Zaira because
she denied using the money that he told her to keep and
that is why he slapped her face strongly.
From the time he and his wife got married, his mother-in-
law was mad at him because she (mother-in-law) doesnt like
him added by the fact that he disagreed to register in her
(mother-in-law) name the lot where their house was built.
His house is located at the coastal area where the houses
are built adjacent to each other. They applied for that land
from the government and when it was approved, his
mother-in-law told him to register that land to one person
but he disagreed because he thought of his family. His
mother-in-law, then got mad at him and told him that she
will find ways to get rid of him.
Because of that, he decided to talk to his wife and went
on vacation for 5 years in the province. After 5 years, he
returned to his family only to find out that his mother-in[-]law
was still mad at him. He learned that his mother-in-law was
telling his children nothing but his faults, that is why his
children are mad at him.
When he returned to his family, Zaira filed a case of rape
against him.
RAYMOND DEL AYRE, 19 years old, elder brother of
private complainant, testified that on February 16, 1993 at
5:00 in the afternoon, he was in their house taking care of his
siblings. On the same day, he woke up at 3:00 in the
morning. His father and mother were then in the market. His
father arrived between 8:00 and 8:30 in the morning. There
was no room, nor division inside their small house, which is
made up of wood and yero (iron sheets). Their house is
located in Binuangan, Obando, Bulacan. Their nearest
neighbor is about an arms length. Beside their house is that
of their maternal grandmother. Their aunt likewise lives in the
same area. When asked to describe his relationship with his
father on the dates when the alleged rape happened, he
stated that his father is strict, always cursing and hot-
headed.
On cross-examination, he admitted having executed a
sworn statement and subscribed it before Judge
Quilantang, but his statement therein that he witnessed the
rape incident on February 26, 1994 was a mere fabrication
by him.
On re-direct examination, he pointed to the policemen
and the barangay captain as those who dictated the
contents of his sworn statement.[9] (Citations omitted)
Ruling of the Trial Court
Finding complainants categorical and coherent
declarations credible, the trial court ruled that appellant
had carnal knowledge of complainant on February 16, 1993
and September 26, 1994. It held that his explicit threat to kill
her and the other members of her family was strong enough
to cow her into submission.[10]
The court a quo further held that the alibi of appellant
was unconvincing, considering the short distance and travel
time between his house and the market, where he claimed
to be at the time of the rape incidents.
Hence, this automatic review.[11]
Assignment of Errors
In his Brief, appellant faults the court a quo with the
following alleged errors:
I A Yes, sir.
The trial court gravely erred in finding the accused guilty
beyond reasonable doubt of two (2) counts of rape in
Criminal Case Nos. 1402-M-97 and 1403-M-97 despite the
insufficiency of evidence for the prosecution.
Page 10 of 41
II
The trial court erred in not giving any credence to the
testimonial evidences for the defense of the accused.
III
Assuming in arguendo that the accused is guilty, the trial
court committed grave error in imposing the death penalty
in Criminal Case No. 1403-M-97 despite the lack of any
qualifying circumstances alleged in the information.[12]
The Courts Ruling
The appeal is partly meritorious.
First Issue:
Sufficiency of Evidence
By the very nature of rape, conviction or acquittal
depends almost entirely on the credibility of the
complainant and her testimony. Because the direct
participants are often the only ones who have had personal
knowledge of the commission of the rape, they are usually
the only ones who can directly testify as to its
occurrence.[13] Thus, the strength of the prosecutions
evidence ultimately revolves around the credibility of the
complaining witness.[14] In the present case, complainant
related how her father had abused her as follows:
Q On February 16, 1993 at around five oclock in the
morning, do you remember where you were?
xxxxxxxxx
A I was in our house.
xxxxxxxxx
Q What about your father, where was your father at that
time?
A He accompanied my mother to the market.
Q Did he return?
A Yes, sir.
Q What time did he return?
A I do not know, sir. Because it was dawn.
Q Together with your mother?
A No. He was alone when he came back.
xxxxxxxxx
Q What about your father, what did he do while inside
the house?
A None, sir, ginalaw na po niya ako.
Q When you said, ginalaw na po niya ako, what do you
mean by that?
A He raped me, sir.
Q How did your father rape you?
A He removed my dress.
FISCAL:
May we make it on record at this juncture when the
question propounded how the father raped the victim, the
victim started to cry.
Q What were you wearing at that time?
A I was wearing a short and sleeveless blouse.
Q How your father removed you dress?
A He forced me.
Q What kind of force was employed by your father?
A He forcibly rolled up my blouse[.]
Q While your father was forcibly rolling up your blouse,
what did you do if you did any?
A No. I told him, ayoko po.
Q Why did you say ayoko po to your father?
A Because at that time he was about to rape me.
Q Was he able to remove your upper apparel?
Q After your father removed your blouse, what did he do
next?
A He asked me to lie.
 MALUM PROHIBITUM
Q To lie in what particular place? A Outside the house.
A In the wooden bed. Q Before he proceeded outside of your house, did he
Q [D]id you follow the request of your father? utter something?
A No. He made me to lie on the wooden bed. A Yes, sir.
Q After you were lied on the wooden bed, what Q Wha[t] did he tell you?
transpired next? A He told me not to report the matter to anybody or else
A He removed his short he was using for fishing. he would kill my relative.[15]
Q What else did he remove if any? xxxxxxxxx
A His brie[f] and after that he lied on top of me. Q Please, tell the court how you were raped on
September 26, 1994?
Q What about your lower dress, what did he do with your
lower dress? A He likewise employed force as x x x he did on February
16, 1993.
A He took it off, sir.
Q Please specify. What kind of force did he employ [on]
Q When did he remove your short pants?
you on September 26, 1994?
A On that early morning.
A He pulled me, sir.
Q Was it immediately after removing your blouse?
Q How did he pull you?
A Yes, sir.
A Because he was then at the door of the house.
Q What else did he remove aside from your blouse and
Q The front door of the house?
short pants?
A Yes, sir.
A My panty, sir.
Q How did your father employ the force while you were
Q You said you were laid on the wooden bed and after
at the door of the house?
you made to lie on the wooden bed, what your father do?
A He was telling me that it would [take] only a few
A He [lay] on top of me.
minutes and I told him I [did] not want because I kn[e]w he
Q When he [lay] on top of you, was he already naked? will rape me. I tried to resist but I could not because he was
A Yes, sir. pulling my arms.
Q When your father [lay] on top of you, what did he do? Q What happened next after your father x x x forced
A He inserted his finger inside my vagina. you?

Q When your father [lay] on top of you did you not try to A He was able to bring me inside the house where he
resist? undressed and raped me.

A I tried but he squeezed my body. Q From the door were you resisting when your father was
trying to bring you inside the house?
Q Did he not utter something before he [lay] on top of
you? A Yes, sir.

A There was. Q How did you resist?

Q What was it? A I tried to hold a piece of wood so that he could not
bring me inside.
A He told me not to speak loud because it [w]ould only
take only a few minutes. Q Inspite [of] that resistance your father was able to bring
you inside? the house?
Q You said your father [lay] on top of you and he inserted
his finger [into] your vagina, is it not? A Yes, sir.

A Yes, sir. Q Were you forced to lie down?

Q After inserted his finger [into] your vagina what did he A Yes, sir.
do next? Q On the same wooden bed?
A [H]e inserted his penis [into] my vagina. A Yes, sir.
Q How did you know that his penis was inserted [into] Q And after you were forced to lie on the wooden bed,
your vagina? what did he do next?
A I felt it, sir. A He took off my short pants and panty and he removed
Q When your fathers penis was inside your vagina how his short and brief.
was the body of your (father) while he was on top of you? Q What about your upper garment?
A (Witness demonstrating push and pull movement as if A He did not take it off.
he is pumping). Q And after your short pants and panty were removed by
Q For how long did he move that way[, that] push and your father, what did he do next?
pull movement? A He took off his brief[s] and short[s].
A I can no longer recall. Q After he removed your short pants and panty?
Q About two to three minutes? A [He lay] on top of me.
A Probably more than that. Q When he was already lying on top of you, what did he
Q More than three minutes? do?
A Yes, sir. A He inserted his penis inside my vagina.
Q And after the lapse of three minutes, what did he do Q How did you come to know that his penis was inserted
next? [into] your vagina?
A After raping me he stood up. A I felt it, sir.
Q And what did he do? Q How was the body of your father moving on top of
A He dressed himself wearing his short[s] and brief[s]. you?
Q What about you what did you do after he was through A Also in the same movement as if he was pushing his
with his sexual abuse? body towards me.

A I went beside our house and cried. xxxxxxxxx

Q And where did your father [proceed]?

Page 11 of 41
 MALUM PROHIBITUM
Q When the accused was on top of you and moving that
way[, in that] push and pull movement, what were you
doing?
A I was trying to get out of him while he was on top of
me.
Q Inspite of your resistance you were not able to get out
of him?
A No, sir.[16]
The clear and categorical declarations of complainant
more than sufficiently established carnal knowledge and,
consequently, appellants culpability. Well-settled is the rule
that when an alleged victim of rape says she has been
violated, she says in effect all that is necessary to show that
rape has been inflicted on her. So long as her testimony
meets the test of credibility, the accused may be convicted
on that basis.[17]
Also sufficiently established was the employment of force
by appellant on complainant, as well as the resistance she
put up. His acts of dragging her as she defiantly clung to the
door, removing her clothes, and placing her on the bed
despite her objections clearly evinced the use of
force. Resistance need not be carried out to the point of
inviting death or sustaining physical injuries at the hands of
the rapist.[18] The force or violence that is required in rape
cases is relative; when applied, it need not be overpowering
or irresistible. That it enables the offender to consummate his
purpose is enough.[19] The parties relative age, size and
strength should be taken into account in evaluating the
existence of the element of force in the crime of rape.[20]
In the present case, Zaira was just nine to ten years old at
the time of the incidents and was no match against
appellant, who was already an adult in the prime of his
life.Furthermore, he was her father. Actual force and
intimidation is not even necessary in incestuous rape. In a
rape committed by a father against his own daughter, the
moral ascendency of the former over the latter substitutes
for violence or intimidation.[21]
Moreover, where the girl -- such as complainant herein --
is below twelve (12) years of age at the time of the incident,
violence or intimidation is not required, and the only subject
of inquiry is whether carnal knowledge took place.[22] Proof
of force and consent becomes immaterial, because force is
not an element of statutory rape; when the rape victim is
below age twelve, the absence of free consent is
presumed.[23]
Appellant contends that the age of the offended party
was not sufficiently proven, because the prosecution did not
present her birth certificate. We clarify. The presentation of
the birth certificate is not an all-exclusive requisite in proving
the age of the victim. Certainly, her age may be proven by
evidence other than that. This principle was upheld
in People v. Tipay, which we quote:[24]
This does not mean, however, that the presentation of
the certificate of birth is at all times necessary to prove
minority. The minority of a victim of tender age who may be
below the age of ten is quite manifest and the court can
take judicial notice thereof. The crucial years pertain to the
ages of fifteen to seventeen where minority may seem to be
dubitable due to ones physical appearance.
Likewise, in People v. Boras we held as follows:[25]
The testimony of the mother as to the age of her child is
admissible in evidence for who else would be in the best
position to know when she delivered the child. Besides, the
court could very well assess whether or not the victim is
below twelve years old by simply looking at her physique
and built.
Current jurisprudence requires the presentation of the
birth certificate of the alleged victim to ascertain her actual
age, only when it is between 13 and 18 [26] at the time of the
sexual assault, or when there are ambiguous or conflicting
testimonies[27] on record regarding it.
In the case at bar, there is no doubt that complainant
was nine years old on February 16, 1993, and ten years old
Page 12 of 41
on September 26, 1994. Her categorical statement that she
was 13 years old when questioned under oath in July [28] and
December[29] 1997 was not inconsistent with her
testimony. On the witness stand, she said that she was nine
(9) when her father had carnal knowledge of her for the first
time on February 16, 1993; and ten (10) years old when the
second incident took place on September 26, 1994.Her
testimony regarding her age remains uncontradicted in the
records. Even appellant categorically confirmed that she
was 9 and 10 years old when the two incidents
occurred. Indeed, with personal knowledge of his own
daughters age, he himself offered unsolicited, independent
and categorical statements[30] on it, consistent with her
claim.
Appellant also contends that her claim of rape is not
supported by the medical findings, which state that the
hymen [of the victim] is intact but distendible and its orifice
wide (2.5 cm in diameter) as to allow complete penetration
by an average sized adult, Filipino male organ in full erection
without producing any genital injury. We disagree.The intact
state of the victims hymen does not negate
rape,[31] especially considering its self-explanatory
qualification or description in this case. That it is broken or
lacerated is not an essential element of rape, not even
where the victim is an innocent child.[32]
Second Issue:
Alibi
Appellant, together with his wife, claims to have been in
the market on the dates when the rapes were
committed. However, no disinterested witness corroborated
his alibi. Uncorroborated, it cannot prevail over the positive
identification of him by complainant as the man who had
raped her.[33]
For alibi to succeed as a defense, appellant must
establish by clear and convincing evidence (a) his presence
at another place at the time of the perpetration of the
offense and (b) the physical impossibility of his presence at
the scene of the crime.[34] Thus, his alibi is demolished by the
fact that it was not physically impossible for him to have
been at their home where the rapes occurred. The market
was just 15 minutes[35] away. He could have easily gone to
the market, returned home, raped his daughter, and then
proceeded back to the market, as in fact testified to by the
latter.
Third Issue:
Proper Penalty
In both cases, appellant is liable for simple rape only,
which is punishable with reclusion perpetua.[36] The rape that
occurred on February 16, 1993 (Criminal Case No. 1402-M-
97) cannot be punished with death, because RA 7659 was
not yet effective at the time. Although it was already in
effect when the rape on September 26, 1994 took place, still,
the penalty of death cannot be imposed on him.
The reason why the death penalty cannot be imposed,
even for the second offense, is that the father-daughter
relationship of the parties was not alleged in the Information.
Such failure is fatal and bars conviction for rape in its
qualified form, which is punishable with death. The
concurrence of the minority of the victim and her
relationship to the offender is a special qualifying
circumstance that should both be alleged in the information
and proven during the trial in order to warrant the imposition
of the death penalty.[37] Even the OSG concedes that the
death penalty was erroneously imposed by the trial court.[38]
The court below did not award civil indemnity or
exemplary damages to the victim. In accordance with
current jurisprudence,[39] civil indemnity of P50,000 and
exemplary damages of P25,000 are in order. Since the
relationship was not alleged in either of the two Informations,
it cannot be used to aggravate or qualify the
rapes. However, even if not so alleged, an aggravating
circumstance, when proven to have attended the
commission of the crime, entitles the complainant to
exemplary damages. In several cases, we have held that
 MALUM PROHIBITUM
the relationship between the appellant and the rape victim
justifies this civil award in order to deter fathers with perverse
sexual behavior from abusing their daughters.[40] Civil
indemnity of P75,000 is awarded when death is also
imposed.
The trial court awarded moral damages of P75,000. This
should be lowered to P50,000 for each case in accordance
with current jurisprudence.[41]
WHEREFORE, the appealed Decision of the Regional Trial
Court of Malolos, Bulacan (Branch 78) is
hereby AFFIRMED with the following MODIFICATIONS : (a) In
Criminal Case No. 1403-M-97, the penalty is reduced
to reclusion perpetua; (b) the victim is granted, in each
case, civil indemnity ex delicto of P50,000 and exemplary
damages of P25,000; and (c) the award of moral damages
is changed to P50,000.
SO ORDERED.
Bellosillo, (Acting C.J.,), Puno, Vitug, Quisumbing, Ynares-
Santiago, Carpio, Austria-Martinez, Corona, Carpio-
Morales, and Callejo, Sr., JJ., concur.
Davide, Jr., C.J., Mendoza and Sandoval-Gutierrez, JJ.,
abroad, on official leave.
FIRST DIVISION
[G.R. No. 129577-80. February 15, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BULU
CHOWDURY, accused-appellant.
DECISION
PUNO, J.:
In November 1995, Bulu Chowdury and Josephine Ong
were charged before the Regional Trial Court of Manila with
the crime of illegal recruitment in large scalecommitted as
follows:
"That sometime between the period from August 1994 to
October 1994 in the City of Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused, representing themselves to have the capacity to
contract, enlist and transport workers for employment
abroad, conspiring, confederating and mutually helping
one another, did then and there willfully, unlawfully and
feloniously recruit the herein complainants: Estrella B. Calleja,
Melvin C. Miranda and Aser S. Sasis, individually or as a
group for employment in Korea without first obtaining the
required license and/or authority from the Philippine
Overseas Employment Administration."[1]
They were likewise charged with three counts of estafa
committed against private complainants.[2] The State
Prosecutor, however, later dismissed the estafa charges
against Chowdury[3] and filed an amended information
indicting only Ong for the offense.[4]
Chowdury was arraigned on April 16, 1996 while Ong
remained at large. He pleaded "not guilty" to the charge of
illegal recruitment in large scale.[5]
Trial ensued.
The prosecution presented four witnesses: private
complainants Aser Sasis, Estrella Calleja and Melvin Miranda,
and Labor Employment Officer Abbelyn Caguitla.
Sasis testified that he first met Chowdury in August 1994
when he applied with Craftrade Overseas Developers
(Craftrade) for employment as factory worker in South
Korea. Chowdury, a consultant of Craftrade, conducted the
interview. During the interview, Chowdury informed him
about the requirements for employment. He told him to
submit his passport, NBI clearance, passport size picture and
medical certificate. He also required him to undergo a
seminar. He advised him that placement would be on a first-
come-first-serve basis and urged him to complete the
requirements immediately. Sasis was also charged a
processing fee of P25,000.00. Sasis completed all the
requirements in September 1994. He also paid a total
amount of P16,000.00 to Craftrade as processing fee. All
payments were received by Ong for which she issued three
Page 13 of 41
receipts.[6]Chowdury then processed his papers and
convinced him to complete his payment.[7]
Sasis further said that he went to the office of Craftrade
three times to follow up his application but he was always
told to return some other day. In one of his visits to
Craftrades office, he was informed that he would no longer
be deployed for employment abroad. This prompted him to
withdraw his payment but he could no longer find
Chowdury. After two unsuccessful attempts to contact him,
he decided to file with the Philippine Overseas Employment
Administration (POEA) a case for illegal recruitment against
Chowdury. Upon verification with the POEA, he learned that
Craftrade's license had already expired and has not been
renewed and that Chowdury, in his personal capacity, was
not a licensed recruiter.[8]
Calleja testified that in June 1994, she applied with
Craftrade for employment as factory worker in South Korea.
She was interviewed by Chowdury. During the interview, he
asked questions regarding her marital status, her age and
her province. Toward the end of the interview, Chowdury
told her that she would be working in a factory in Korea. He
required her to submit her passport, NBI clearance, ID
pictures, medical certificate and birth certificate. He also
obliged her to attend a seminar on overseas employment.
After she submitted all the documentary requirements,
Chowdury required her to pay P20,000.00 as placement fee.
Calleja made the payment on August 11, 1994 to Ong for
which she was issued a receipt.[9] Chowdury assured her that
she would be able to leave on the first week of September
but it proved to be an empty promise. Calleja was not able
to leave despite several follow-ups. Thus, she went to the
POEA where she discovered that Craftrade's license had
already expired. She tried to withdraw her money from
Craftrade to no avail. Calleja filed a complaint for illegal
recruitment against Chowdury upon advice of POEA's legal
counsel.[10]
Miranda testified that in September 1994, his cousin
accompanied him to the office of Craftrade in Ermita,
Manila and introduced him to Chowdury who presented
himself as consultant and interviewer. Chowdury required
him to fill out a bio-data sheet before conducting the
interview. Chowdury told Miranda during the interview that
he would send him to Korea for employment as factory
worker. Then he asked him to submit the following
documents: passport, passport size picture, NBI clearance
and medical certificate. After he complied with the
requirements, he was advised to wait for his visa and to
pay P25,000.00 as processing fee. He paid the amount
of P25,000.00 to Ong who issued receipts
therefor.[11] Craftrade, however, failed to deploy him. Hence,
Miranda filed a complaint with the POEA against Chowdury
for illegal recruitment.[12]
Labor Employment Officer Abbelyn Caguitla of the
Licensing Branch of the POEA testified that she prepared a
certification on June 9, 1996 that Chowdury and his co-
accused, Ong, were not, in their personal capacities,
licensed recruiters nor were they connected with any
licensed agency. She nonetheless stated that Craftrade was
previously licensed to recruit workers for abroad which
expired on December 15, 1993. It applied for renewal of its
license but was only granted a temporary license effective
December 16, 1993 until September 11, 1994. From
September 11, 1994, the POEA granted Craftrade another
temporary authority to process the expiring visas of overseas
workers who have already been deployed. The POEA
suspended Craftrade's temporary license on December 6,
1994.[13]
For his defense, Chowdury testified that he worked as
interviewer at Craftrade from 1990 until 1994. His primary
duty was to interview job applicants for abroad. As a mere
employee, he only followed the instructions given by his
superiors, Mr. Emmanuel Geslani, the agencys President and
General Manager, and Mr. Utkal Chowdury, the agency's
Managing Director. Chowdury admitted that he interviewed
private complainants on different dates. Their office
 MALUM PROHIBITUM
secretary handed him their bio-data and thereafter he led
them to his room where he conducted the interviews. During
the interviews, he had with him a form containing the
qualifications for the job and he filled out this form based on
the applicant's responses to his questions. He then submitted
them to Mr. Utkal Chowdury who in turn evaluated his
findings. He never received money from the applicants. He
resigned from Craftrade on November 12, 1994.[14]
Another defense witness, Emelita Masangkay who
worked at the Accreditation Branch of the POEA presented
a list of the accredited principals of Craftrade Overseas
Developers[15] and a list of processed workers of Craftrade
Overseas Developers from 1988 to 1994.[16]
The trial court found Chowdury guilty beyond reasonable
doubt of the crime of illegal recruitment in large scale. It
sentenced him to life imprisonment and to pay a fine
of P100,000.00. It further ordered him to pay Aser Sasis the
amount of P16,000.00, Estrella Calleja, P20,000.00 and Melvin
Miranda, P25,000.00. The dispositive portion of the decision
reads:
"WHEREFORE, in view of the foregoing considerations, the
prosecution having proved the guilt of the accused Bulu
Chowdury beyond reasonable doubt of the crime of Illegal
Recruitment in large scale, he is hereby sentenced to suffer
the penalty of life imprisonment and a fine of P100,000.00
under Art. 39 (b) of the New Labor Code of the Philippines.
The accused is ordered to pay the complainants Aser Sasis
the amount of P16,000.00; Estrella Calleja the amount
of P20,000.00; Melvin Miranda the amount of P25,000.00."[17]
Chowdury appealed.
The elements of illegal recruitment in large scale are:
(1) The accused undertook any recruitment activity
defined under Article 13 (b) or any prohibited practice
enumerated under Article 34 of the Labor Code;
(2) He did not have the license or authority to lawfully
engage in the recruitment and placement of workers; and
(3) He committed the same against three or more
persons, individually or as a group.[18]
The last paragraph of Section 6 of Republic Act (RA)
8042[19] states who shall be held liable for the offense, thus:
"The persons criminally liable for the above offenses are
the principals, accomplices and accessories. In case of
juridical persons, the officers having control, management or
direction of their business shall be liable."
The Revised Penal Code which supplements the law on
illegal recruitment[20] defines who are the principals,
accomplices and accessories. The principals are: (1) those
who take a direct part in the execution of the act; (2) those
who directly force or induce others to commit it; and (3)
those who cooperate in the commission of the offense by
another act without which it would not have been
accomplished.[21] The accomplices are those persons who
may not be considered as principal as defined in Section 17
of the Revised Penal Code but cooperate in the execution
of the offense by previous or simultaneous act.[22] The
accessories are those who, having knowledge of the
commission of the crime, and without having participated
therein, either as principals or accomplices, take part
subsequent to its commission in any of the following manner:
(1) by profiting themselves or assisting the offenders to profit
by the effects of the crime; (2) by concealing or destroying
the body of the crime, or the effects or instruments thereof,
in order to prevent its discovery; and (3) by harboring,
concealing, or assisting in the escape of the principal of the
crime, provided the accessory acts with abuse of his public
functions or whenever the author of the crime is guilty of
treason, parricide, murder, or an attempt at the life of the
chief executive, or is known to be habitually guilty of some
other crime.[23]
Citing the second sentence of the last paragraph of
Section 6 of RA 8042, accused-appellant contends that he
may not be held liable for the offense as he was merely an
employee of Craftrade and he only performed the tasks
Page 14 of 41
assigned to him by his superiors. He argues that the ones
who should be held liable for the offense are the officers
having control, management and direction of the agency.
As stated in the first sentence of Section 6 of RA 8042, the
persons who may be held liable for illegal recruitment are
the principals, accomplices and accessories. An employee
of a company or corporation engaged in illegal recruitment
may be held liable as principal, together with his
employer,[24] if it is shown that he actively and consciously
participated in illegal recruitment.[25] It has been held that
the existence of the corporate entity does not shield from
prosecution the corporate agent who knowingly and
intentionally causes the corporation to commit a crime. The
corporation obviously acts, and can act, only by and
through its human agents, and it is their conduct which the
law must deter. The employee or agent of a corporation
engaged in unlawful business naturally aids and abets in the
carrying on of such business and will be prosecuted as
principal if, with knowledge of the business, its purpose and
effect, he consciously contributes his efforts to its conduct
and promotion, however slight his contribution may
be.[26] The law of agency, as applied in civil cases, has no
application in criminal cases, and no man can escape
punishment when he participates in the commission of a
crime upon the ground that he simply acted as an agent of
any party.[27] The culpability of the employee therefore
hinges on his knowledge of the offense and his active
participation in its commission. Where it is shown that the
employee was merely acting under the direction of his
superiors and was unaware that his acts constituted a crime,
he may not be held criminally liable for an act done for and
in behalf of his employer.[28]
The fundamental issue in this case, therefore, is whether
accused-appellant knowingly and intentionally participated
in the commission of the crime charged.
We find that he did not.
Evidence shows that accused-appellant interviewed
private complainants in the months of June, August and
September in 1994 at Craftrade's office. At that time, he was
employed as interviewer of Craftrade which was then
operating under a temporary authority given by the POEA
pending renewal of its license.[29] The temporary license
included the authority to recruit workers.[30] He was
convicted based on the fact that he was not registered with
the POEA as employee of Craftrade. Neither was he, in his
personal capacity, licensed to recruit overseas workers.
Section 10 Rule II Book II of the Rules and Regulation
Governing Overseas Employment (1991) requires that every
change, termination or appointment of officers,
representatives and personnel of licensed agencies be
registered with the POEA. Agents or representatives
appointed by a licensed recruitment agency whose
appointments are not previously approved by the POEA are
considered "non-licensee " or "non-holder of authority" and
therefore not authorized to engage in recruitment activity.[31]
Upon examination of the records, however, we find that
the prosecution failed to prove that accused-appellant was
aware of Craftrade's failure to register his name with the
POEA and that he actively engaged in recruitment despite
this knowledge. The obligation to register its personnel with
the POEA belongs to the officers of the agency.[32] A mere
employee of the agency cannot be expected to know the
legal requirements for its operation. The evidence at hand
shows that accused-appellant carried out his duties as
interviewer of Craftrade believing that the agency was duly
licensed by the POEA and he, in turn, was duly authorized by
his agency to deal with the applicants in its behalf.
Accused-appellant in fact confined his actions to his job
description. He merely interviewed the applicants and
informed them of the requirements for deployment but he
never received money from them. Their payments were
received by the agency's cashier, Josephine Ong.
Furthermore, he performed his tasks under the supervision of
its president and managing director. Hence, we hold that
the prosecution failed to prove beyond reasonable doubt
 MALUM PROHIBITUM
accused-appellant's conscious and active participation in
the commission of the crime of illegal recruitment. His
conviction, therefore, is without basis.
This is not to say that private complainants are left with no
remedy for the wrong committed against them. The
Department of Justice may still file a complaint against the
officers having control, management or direction of the
business of Craftrade Overseas Developers (Craftrade), so
long as the offense has not yet prescribed. Illegal
recruitment is a crime of economic sabotage which need to
be curbed by the strong arm of the law. It is important,
however, to stress that the government's action must be
directed to the real offenders, those who perpetrate the
crime and benefit from it.
IN VIEW WHEREOF, the assailed decision of the Regional
Trial Court is REVERSED and SET ASIDE. Accused-appellant is
hereby ACQUITTED. The Director of the Bureau of Corrections
is ordered to RELEASE accused-appellant unless he is being
held for some other cause, and to REPORT to this Court
compliance with this order within ten (10) days from receipt
of this decision. Let a copy of this Decision be furnished the
Secretary of the Department of Justice for his information
and appropriate action.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Kapunan,
Pardo, and Ynares-Santiago, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-68997 April 27, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROBERTO LIBAG Y CABADING, accused-appellant.
The Solicitor General for plaintiff-appellee.
Custodio O. Parlade for accused-appellant.
PARAS, J.:
Roberto Libag y Cabading, found guilty beyond
reasonable doubt of violating Section 4, Article II of Republic
Act No. 6425 (Dangerous Drugs Act of 1972 as amended) by
the Regional Trial Court, First Judicial Region, Branch V,
Baguio City and sentenced to suffer the penalty of
imprisonment for life, to pay a fine of P20,000.00 and costs,
now seeks a reversal of the said decision and prays for his
acquittal on the ground that the trial court erred in finding
him guilty for the following reasons —
1. THE TRIAL COURT CORRECTLY DISREGARDED THE
INHERENTLY HEARSAY TESTIMONY OF THE TWO ARRESTING
OFFICERS, THE ALLEGED "BUYER" NOT HAVING BEEN
PRESENTED AS A WITNESS.
2. THE POLICE OFFICERS, THROUGH THEIR INFORMER,
INSTIGATED THE COMMISSION OF THE OFFENSE;
3. THE FISCAL CONDUCTED THE PRELIMINARY
INVESTIGATION AND FILED THE INFORMATION AGAINST THE
ACCUSED-APPELLANT ONLY IN VIOLATION OF RULE 110,
SECTION 1, REVISED RULES OF COURT WHICH REQUIRES THAT
A CRIMINAL ACTION BE COMMENCED "AGAINST ALL
PERSONS WHO APPEAR TO BE RESPONSIBLE" FOR THE OFFENSE
CHARGED;
4. THE TRIAL COURT CONVICTED THE ACCUSED-APPELLANT
NOTWITHSTANDING THE INHERENT INCREDIBILITY OF THE
EVIDENCE FOR THE PROSECUTION AND THE MATERIAL
CONTRADICTIONS IN THE TESTIMONY OF THE TWO ARRESTING
OFFICERS;
5. THE TRIAL COURT FAILED TO APPLY BOTH THE LAW AND
APPLICABLE JURISPRUDENCE AND THEREBY CONVICTED THE
ACCUSED-APPELLANT NOTWITHSTANDING INDUBITABLE
EVIDENCE THAT THE LATTER DID NOT KNOW THAT THE PLASTIC
BAG, TOPPED BY "PECHAY" CONTAINED MARIJUANA
FLOWERING TOPS AT THE BOTTOM." (p. 102, Rollo)
Page 15 of 41
The information filed against the accused alleged:
That on or about the 7th day of November, 1983, in the
City of Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there wilfully, unlawfully, and feloniously attempt to sell,
deliver, give away to another and distribute three (3) kilos of
marijuana flowering tops, a prohibited drug, well-knowing
that the sale, delivery and distribution to another of such
drug is prohibited without authority of law to do so, in
violation of the aforesaid law.
CONTRARY TO LAW. (p. 4, Rollo)
That guilt was established beyond reasonable doubt was
justified by the trial court in its now assailed decision in this
wise —
The prosecution has established an overwhelmingly
convincing case against Libag, In fact, he could do nothing
but admit having delivered the plastic bag containing the
marijuana. His pretension that he did not know the
contraband contents of the bag as he was merely sent on
an errand to deliver it, is incredulous, if not preposterous. It is
simply unbelievable that three complete strangers would
pick on him to do the errand considering its highly
dangerous nature and for him to oblige for the paltry sum of
P2.00. What is more, it appears odd that he did not even ask
for the names of the three men who supposedly sent him on
the errand so he could give the corresponding information
to the other end nor did he inquire from them to whom in
particular he was going to deliver the bag. All these would
only suggest that his line of defense is the product of
desperation. (p. 8, Rollo)
The prosecution's evidence upon which the finding of
guilt beyond reasonable doubt was based was narrated by
the trial court thus —
Cpl. Eduardo Garcia and Pfc. Virgilio Visperas, both of
the Vice and Narcotics Division of the Baguio City Police
Station, testified that in the afternoon of November 7, 1983,
at about 1:00 o'clock, one of their informers reported that
two male persons were offering to sell him marijuana.
Forthwith, the late Lt. Manansala, then the Chief of the
Division, prepared a buy-bust operation. He told the informer
to contact the would-be sellers and make an arrangement
for the purchase of five kilos of the prohibited stuff. In the
company of Cpl. Garcia and Visperas, the informer
proceeded to Elena's Lunch on Abanao Street where the
latter made contact with the would-be sellers. After making
the contact, the informer told Cpl. Garcia and Visperas that
the deal would be carried out at the Leisure Lodge on
Magsaysay Avenue later in the afternoon because the
would-be sellers would still fetch the stuff from La Trinidad,
Benguet.
After preparing the entrapment or boodle money, Cpl.
Garcia, Pfc. Visperas and the informer proceeded to the
Leisure Lodge to wait for the would-be sellers. That was at
about 3:00 o'clock. At about 4:15 o'clock, two male persons
arrived, one of whom was carrying a multi-colored plastic
bag. The person carrying the bag entered the Lodge while
his companion stayed behind at the driveway.
Once inside the Lodge, the person carrying the bag
handed the said bag to the informer who was infront of
Room 104. Thereupon, the informer gave the pre-arranged
signal that delivery had been made. Pfc. Visperas, who was
at the lobby about 10 to 12 meters away, closed in and
arrested the person who turned out to be the herein
accused Roberto Libag. Libag's companion was able to
elude apprehension.
Still at the Lodge, the plastic bag (Exhibit "E") delivered by
Libag to the informer was examined and was found to
contain three (3) separate bundles of suspected dried
marijuana flowering tops (Exhibit "B", "C" and "D"). Together
with the confiscated items, Libag was brought to the police
station where he was searched but only a lighter was found
in his person.
Both Cpl. Garcia and Pfc. Visperas did not see what the
informer did with the entrapment money. According to Cpl.
 MALUM PROHIBITUM
Garcia, the informer was about to pull out the money from
his pocket when Libag's arrest was effected. The money was
later on returned to Lt. Manansala as it belonged to him.
The plastic bag and its contents were promptly referred
to the PC Crime Laboratory at Camp Dangwa La Trinidad,
Benguet, for chemical analysis (Exhibit "A"). Forensic Chemist
Carlos Figueroa performed the examination and found out
that the three bundles of dried flowering tops contained in
the bag were positive to the test for marijuana (Exhibit "F").
The stuff had an aggregate weight of 3.20 kilos, and Exhibit
"B" — 9. 5 kilos; Exhibit "C" — 1.10 kilos, and Exhibit "D" — 1.15
kilos). (pp. 6-7, Rollo)
On the other hand, the accused narrated a different
version of what transpired. Also as stated by the trial court —
Libag, a native of Kapangan, Benguet, who was then
above 17 but below 18 years of age, having been born on
December 1, 1965 (Exhibit "1"), admitted that he delivered a
plastic bag to a big house near the Philippine Rabbit
Terminal on Magsaysay Avenue, Baguio City, in the
afternoon of November 7, 1983. However, he disclaimed
ownership of the bag and knowing its contents, except for
the pechay on top. He further asserted that he handed the
bag to a woman in the big house.
Narrating how he came upon the bag, Libag declared
that he was then on Magsaysay Avenue waiting for a ride to
La Trinidad when three (3) men, one of whom was holding a
bag, approached him and requested him to deliver the bag
to a big house nearby. At first, he refused but upon being
offered P2.00 for the errand, he finally agreed. He took the
bag to the big house and on seeing a woman there, he told
her that he was leaving the bag. However, the woman
asked him to bring the bag to a room inside the house. The
woman opened the door to the room and once Libag was
inside, she followed him and then locked the door. The
woman threw a stone at another door and two policemen
appeared. They inspected the bag and found marijuana
inside. Despite his protestations that the bag did not belong
to him, Libag was taken by the policemen to the police
station where he was frisked but only a lighter was found in
his person.
Libag also tried to show that he was then in Baguio only
to buy bean seedlings and that be had never been to
Elena's Lunch.
Libag was corroborated by Alsado A-at, a townmate in
Kapangan, Benguet, who was then allegedly also on
Magsaysay Avenue at the time, waiting for a ride for La
Trinidad, and he thus over-heard the conversation between
Libag and the three men who requested Libag to deliver the
bag. But A-at went on further to say that the bag is
prosecution's evidence marked Exhibit "E" with its pechay
content visible at the top. (pp. 7-8, Rollo)
The trial court found that the evidence of the prosecution
did not sufficiently prove a case of illegal sale of marijuana.
Nonetheless it found that there was consummated delivery
of marijuana. Thus,
Coming now to Libag's degree of culpability, the
prosecution evidence does not sufficiently show a case of
illegal sale of the prohibited stuff. This is for the reason that
the police informer who arranged the deal was not
presented as a witness. The testimonies of Cpl. Garcia and
Pfc. Visperas that a sale was intended are hearsay and
bereft of probative value since they have no first-hand
knowledge of the real transaction between the informer and
Libag.
Nonetheless, consummation of the delivery of the
marijuana by Libag to the informer has been proven within
the context of the term "deliver" under the law which is
defined as a "person's act of knowingly passing a dangerous
drug to another personally or otherwise; and by any means,
with or without consideration" (Article 1, Section 2(f), R.A. No.
6425).
Although the indictment charges merely an attempt,
while the proof has established a consummated offense, the
variance is of no moment for under Article IV, Section 21(b)
Page 16 of 41
of the law violated, an attempted delivery of dangerous
drugs is punished by the same penalty as that prescribed for
consummated delivery.
The imposable penalty is life imprisonment to death and
a fine of P20,000.00 to P30,000.00 (Article II, Section 4).
Considering that Libag was, at the time of the
commission of the offense, a minor above 17 but below 18
years of age, the Court shall impose on him the minimum
penalty although strictly speaking his minority is not a
mitigating circumstance since the violation is against a
special law and not against the Revised Penal Code. (pp. 8-
9, Rollo)
This Court once said in People v. Ale, 145 SCRA 50, 58 —
Judges trying narcotics Cases are often placed in a non-
enviable predicament. The threat posed by drugs against
human dignity and the integrity of society is malevolent and
incessant. Courts should not hamper, in any way, the
dedicated although sometimes puny efforts to stem the
giant menace. Courts should not unwittingly tie down the
hands of narcotic agents whose work is already difficult and
dangerous enough without legal and procedural obstacles
to successful prosecutions.
At the same time, we cannot close our eyes to the many
reports of evidence being planted on unwary persons either
for extorting money or exacting personal vengeance. By the
very nature of anti-narcotics operations, the need for
entrapment procedures, the use of shady characters as
informants, the case with which sticks of marijuana or grains
of heroin can be planted in pockets or hands of
unsuspecting provincial licks, and the secrecy that inevitably
shrouds all drug deals, the possibility of abuse is great. Courts
must also be extra-vigilant in trying drug charges lest an
innocent person is made to suffer the unusually severe
penalties for drug offenses.
In the instant case, We find that the evidence for the
prosecution, upon which the trial court based its finding of
guilt beyond reasonable doubt, is not strong enough to
convince a reasonable mind to conclude that the herein
accused-appellant had knowledge that the bag he
delivered contained marijuana.
The Trial Court, in its decision, said: "Cpl. Eduardo Garcia
and Pfc. Virgilio Visperas, both of the Vice and Narcotic
Division of the Baguio City Police Station, testified that in the
afternoon of November 7, 1983, at about 1:00 o'clock, one
of their informers reported that two male persons were
offering to sell him marijuana." (p. 1, Decision)
Forthwith, the late Lt. Manansala, then the Chief of the
Division, prepared a buy-bust operation. He told the informer
to contact the would-be sellers and make an arrangement
for the purchase of five kilos of the prohibited stuff. In the
company of Cpl. Garcia and Visperas, the informer
proceeded to Elena's Lunch on Banao St. where the latter
made contact with the would-be sellers. After making the
contact, the informer told Cpl. Garcia and Visperas that the
deal would be carried out at the Leisure Lodge on
Magsaysay Avenue later in the afternoon because the
would-be sellers would still fetch the stuff from La Trinidad,
Benguet. (Id.)
It must be noted that the testimony of the police officers
summarized by the Trial Court, as quoted above, was based
not on their personal knowledge of what transpired between
the informer and the "two male persons" but on what their
alleged would-be buyer narrated, and it is the alleged
agreement to sell forged between the "buyer" and the "two
male persons" that the Trial Court relied upon to conclude
that the accused-appellant knew he was carrying marijuana
flowering tops in the plastic bag, and that he carried them
and knowingly delivered them to the "buyer" pursuant to the
alleged agreement to sell. It is for that reason that it
becomes necessary to present the alleged poseur-buyer as
witness to testify on the said agreement to sell.
During the trial, Pfc. Visperas, one of the arresting officers
was asked on cross-examination this question:
Can you tell us the name of that informer ("buyer")?
 MALUM PROHIBITUM
The fiscal promptly objected to the question and the Trial
Court sustained the objection. (t.s.n., February 1, 1984, p. 13)
Likewise, when the second arresting officer, Cpl. Eduardo
Garcia was being cross-examined, he was asked the
question:
Q. Are you at liberty to inform us who your informer was?
A. I'm sorry, we could not give you or tell you the identity
of my informer.
Before the prosecution concluded the presentation of
testimonial evidence, Fiscal Carbonell manifested in open
court:
I was trying to convince my witnesses, the arresting
officers, to reveal the identity of their informer but they seem
to be reluctant, Your Honor. However, may we be given time
to convince them, to convince these police officers? (t.s.n.,
March 6, 1984, p. 9).
At the next hearing, however, Fiscal Carbonell informed
the Trial Court that "We are ready to close the evidence for
the Government Prosecution, Your Honor." (t.s.n., March 26,
1984).
It may not be amiss to say that the prosecution willfully
suppressed evidence vital in the case. Apparently, Fiscal
Carbonell was aware of the consequence of such action
when he informed the Trial Court that he will try to convince
his witnesses to reveal the identity of the alleged would-be-
buyer. Apparently too, the police officers were unmoved.
Thus, not only had the prosecution failed to present a
material witness, but by refusing to disclose the identity of
their poseur-buyer, the accused-appellant was deprived of
the opportunity to require production of the said witness by
compulsory process. While it is true that the non-revelation of
the identity of an informer is a standard practice in drug
cases, such is inapplicable in the case at bar as the
circumstances are different. The would-be buyer's testimony
was absolutely necessary because it could have helped the
Trial Court in determining whether or not the accused-
appellant had knowledge that the bag contained
marijuana, such knowledge being an essential ingredient of
the offense for which he was convicted. The testimony of the
poseur-buyer (not as an informer but as a "buyer") as to the
alleged agreement to sell therefore became indispensable
to arrive at a just and proper disposition of this case.
The presumption that the accused-appellant had
knowledge that he was delivering marijuana is a rebuttable
presumption. Against this presumption, the accused has
consistently denied such knowledge. The testimony of the
would-be-buyer could have confirmed the claim of the
accused that he did not know that the bag he delivered
contained marijuana and thus should have resulted in his
acquittal. Absent such evidence, We are constrained to
reverse the Trial Court's judgment of conviction for failure of
the prosecution to sufficiently prove an essential element of
the offense charged. Clearly, the only basis for the judgment
of conviction were the testimonies of the two police officers,
uncorroborated by any other evidence. Fundamental is the
rule that the prosecution has the burden of proving the guilt
of the accused beyond reasonable doubt. It is not
incumbent upon the accused to disprove his guilt. Stated
otherwise, the prosecution must rely on the strength of its
own evidence and not on the weakness of the evidence for
the defense.
(a) Cpl. Eduardo Garcia testified in a manner that
conveyed the idea that the "buyer" was a male. Thus, when
asked the distance of the "buyer" from the accused at the
time of arrest, the witness replied: "He is only facing the
accused in front of the door of Room 104" (t.s.n., March 1,
1984, p. 8). When asked whether the "buyer" was able to
deliver the money to the accused, the witness said that "he
was not able to do so" (Id.). When asked what the "buyer"
was doing with the money at the time of the arrest, the
witness replied: "he placed it . . . he was about to pull out
from his pocket."
In the Joint Affidavit of witnesses Visperas and Garcia,
they declared that "they received reliable information from
Page 17 of 41
one of our "buyers" that he was able to contact two (2)
suspected male pushers . . . they advised him to order five
kilos of marijuana leaves. . ." (Exh. "G").
These declarations leave no doubt that the identified
"buyer" referred to by the two police officers was
a maleperson.1âwphi1 Yet, the accused in his contradicted
testimony was that he left a plastic bag found later to
contain marijuana flowering tops to a woman infront of a
room inside Leisure Lodge and that he was arrested after he
had done so.
(b) Pfc. Visperas said that the "buyer" had something like
P5,000.00 of which P2,000.00 was in cash, and the others
were sheets of bond paper presumably made to look like
money. (t.s.n., Feb. 1, 1984, p. 10).
In the course of his testimony, Pfc. Visperas declared that
the "buyer" had P5,000.00 of which P2,000.00 was in cash
and the rest consisted of what he described was "boodle"
money or bond paper presumably cut to the required size to
buy five (5) kilos of marijuana. (Id., p. 14, t.s.n., Feb. 1, 1984,
p. 10).
Cpl. Garcia, however declared that at the time Pfc.
Visperas and he proceeded to Leisure Lodge, the "buyer"
received P3,000.00 of which P1,000.00 was in cash and the
rest in: "model" money consisting of paper folded to look like
real money (t.s.n., March 6, 1984, p. 6).
(c) The trial court in its decisions said: "Both Cpl. Garcia
and Pfc. Visperas did not see what the "buyer" did with the
entrapment money. According to Cpl. Garcia, the "buyer"
was about to pull out the money from his pocket when
Libag's arrest was effected. The money was later on returned
to Lt. Manansala as it belonged to him." (p. 2, Decision)
There is no doubt that upon his arrest, the accused was
frisked and the only object found on his body was a lighter
— no money was found with him (t.s.n., March 6, 1984, p. 7).
The "buyer" was not able to deliver the money to him. (Id., p.
8).
No mention was made of any money which the "buyer"
had which the latter pulled out of his/her pocket to be
handed over to the accused. The most that Pfc. Visperas
was able to say was "I presume it was handed to the pusher,
sir." (t.s.n., Feb. 1, 1984, p. 12). He was only 10 to 20 meters
away from the "buyer" and the accused (Id., p. 15).
Notwithstanding the short distance, he did not see the
"buyer" hand the money to the accused. (Id.,).
(d) During the trial, the police officers testified and
confirmed the presence of two suspects. But the accused
was not investigated about his possible associated activities,
the source or sources of marijuana, the persons who sell
them, where they are sold, to whom they are sold and
whether or not they belong to a criminal syndicate. The
failure to conduct this investigation is most unusual unless the
policemen and later the investigating fiscal knew that the
accused was what he represented to be — an innocent by-
stander — a person who unknowingly participated in an
unlawful act.
Due to the above-stated contradictions and
inaccuracies of the evidence for the prosecution, the
evidence for the defense merits careful evaluation.
According to appellant he was waiting for a ride at the
Philippine Rabbit Station when three (3) men one of whom
was holding a bag, approached him and requested him to
deliver the bag to a big house nearby. At first, he refused but
upon being offered P2.00 for the errand, he finally agreed.
He took the bag to the big house and on seeing a woman
there, he told her that he was leaving the bag. However, the
woman asked him to bring the bag to a room inside the
house. The woman opened the door to the room and once
Libag was inside, she followed him and then locked the
door.
This testimony was not contradicted by the prosecution.
Nevertheless, the trial court found the evidence of guilt
against the accused "overwhelming". "His pretension that he
did not know the contraband content of the bag or he was
 MALUM PROHIBITUM
merely sent on an errand to deliver it, is incredulous, if not
preposterous. It is simply unbelievable that three complete
strangers would pick on him to do the errand considering its
highly dangerous nature, and for him to oblige for the paltry
sum of P2.00. What is more, it appears odd that he did not
even ask for the names of the three men who supposedly
sent him on the errand so he could give the corresponding
information to the others nor did he inquire from them to
whom in particular he was going to deliver the bag. All of
these would only suggest that this line of defense is a
product of desperation." (p. 8 Rollo)
We cannot in conscience agree with the opinion of the
Trial Court. The accused-appellant was a penniless youth
who was offered the opportunity to earn P2.00 by carrying a
plastic bag believed by him to contain "pechay" to a
woman at a nearby building. The Leisure Lodge happened
to be a motel. The accused apparently did not know what
sort of establishment it was. To him it was a "big house". The
door was opened to him by a woman. He did not expect to
be paid by the person who will receive the bag, hence,
after making the delivery he made a move to leave at
once. But this was not proceeding according to the plan.
The male "buyer" who was not too far away neither had the
opportunity to receive the plastic bag nor to pull out his
money, much less pretend to comb his hair. The police had
to move in to effect the arrest.
This could account for the inexplicable failure to present
the poseur-buyer as a witness. His testimony would confirm
the statement of the accused that he had no knowledge
that the plastic bag contained marijuana flowering tops.
Also, this could explain why the poseur buyer was not able to
deliver the marked money to the accused. The bag was
delivered to the wrong person.
The police officers talked of a "second man" who was
allegedly the companion of the accused at the time the
plastic bag was delivered. But this "second man" was not
arrested nor charged even as a John Doe defendant. The
accused was not even investigated about the identity of this
"second-man". Could it be that there was no "second man"?
If the inculpatory facts and circumstances are capable
of two or more explanations, one of which is consistent with
the innocence of the accused and the other consistent with
his guilt, then the evidence does not fulfill the test of moral
certainty and is not sufficient to support a conviction.
(People v. Parayno, 24 SCRA 3, People v. Ale, supra).
As stated in the case of People v. Alcaraz, (G.R. No.
66509, April 25, 1985):
. . . The Constitution and the law are clear that in case of
reasonable doubt the accused must be acquitted. Our
jurisprudence is built upon the concept that it is preferable
for the guilty to remain unpunished than for an innocent
person to suffer a long prison term unjustly.
Finally, the information accused Roberto Libag of the
"attempt to sell, deliver, give away to another and distribute
three (3) kilos of marijuana flowering tops, a prohibited
drug well-knowing that the sale, delivery and distribution to
another of such drug is prohibited. . . .
It is basic that in a criminal case, the prosecution avers
the guilt of the accused who is presumed to be innocent
until the contrary is proved. Therefore, the prosecution must
prove such guilt by establishing the existence of all the
elements of the crime charged. In so doing, the prosecution
must rely on the strength of its own evidence, not on the
weakness of the defense. Clearly, one of the elements of the
offense is that the accused knowingly delivered a
dangerous drug to another. The prosecution must prove
knowledge of the accused, not that he knew that marijuana
is classified as a dangerous drug, but that he knew as
marijuana the contents of the plastic bag he delivered.
The evidence of the prosecution definitely is wanting on
this point.
PREMISES CONSIDERED, We hold that the guilt of
appellant Roberto Libag has not been established beyond
reasonable doubt.
Page 18 of 41
WHEREFORE, for lack of proof of his guilt beyond
reasonable doubt, Roberto Libag y Cabading is hereby
ACQUITTED of the crime charged. Costs de oficio.
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ.,
concur.
SECOND DIVISION
[G.R. No. 84857. January 16, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. RODOLFO DELA ROSA Y AVILES, ANTONIO DELA ROSA Y
AVILES, and RODOLFO QUIMSON Y NAVA (At
large), accused-appellants.
DECISION
PUNO, J.:
Rodolfo dela Rosa y Aviles appeals the decision of the
Regional Trial Court, First Judicial Region, Branch 38,
Lingayen, Pangasinan, convicting him of illegal possession of
firearms and explosives and imposing the penalty of
reclusion perpetua.[1]
On January 27, 1987, an information for illegal possession
of firearms and explosives was filed against RODOLFO DELA
ROSA y AVILES, ANTONIO DELA ROSA y AVILES, CRESENCIO
REYES y DELA CRUZ and RODOLFO QUIMSON y NAVA, to wit:
"That on or about the 9th of December 1986, in sitio (sic)
Kadampat, Barangay Bolo, municipality (sic) of Labrador,
province (sic) of Pangasinan, New Republic of the
Philippines and within the jurisdiction of this Honorable Court,
the abovementioned accused, conspiring, confederating
and helping one another, did then and there wilfully (sic),
unlawfully and feloniously have in their possession, custody
and control three (3) homemade gauge 12 shotguns and
fourteen (14) pieces of dynamite explosives, without first
securing the necessary permit/license to possess the same.
"Contrary to Presidential Decree No. 1866."[2]
All accused pleaded not guilty when arraigned on
February 3, 1987. On March 12, 1987, the four accused
withdrew their plea of not guilty and substituted it with a
plea of guilt. After ascertaining that the plea of guilt was not
made improvidently, the lower court imposed upon them
the corresponding penalty.[3] However, on March 19, 1987,
the four (4) accused filed a motion withdrawing their plea of
guilt.[4] The lower court granted the motion in a resolution
dated March 25, 1987.[5] Thereafter, trial
proceeded.However, accused Cresencio Reyes changed
his mind again and pleaded guilty to a lesser offense
punishable under the last paragraph of Section 1 of
Presidential Decree No. 1866. The court accepted the plea
and sentenced him accordingly. He was utilized as a witness
by the prosecution. The trial proceeded against the three
remaining accused.
The prosecution established that in the morning of
December 9, 1986, Rodolfo dela Rosa, Antonio dela Rosa,
Cresencio Reyes and Rodolfo Quimson, surrendered
toKagawad Valeriano Rigor of Sitio Kadampat, Bolo,
Labrador, Pangasinan claiming they want to lead a new
life. They informed him that Benjamin Nano, alias Kumander
Tamang, a member of the New People's Army (NPA), was
shot by one of them. The four had with them a short shotgun
(Exhibit A) and a bag containing several sticks of dynamite
(Exhibit C to C-7).[6] Kagawad Rigor offered them breakfast
and afterwards went to the police station to report the
presence of four (4) surrenderees in his house. At the police
station, Patrolman Gasline Fernandez recorded the report in
the police blotter. Cpl. Crispin Cancino, the station
commander, brought along several policemen and
proceeded to the house of Kagawad Rigor. When the group
arrived, only Kagawad Rigor and Cpl. Cancino entered the
 MALUM PROHIBITUM
house. The other policemen stayed outside to secure the
area. Inside the house, Kagawad Rigor introduced the
surrenderees to Cpl. Cancino and showed him the short
shotgun (Exhibit A) and the bag (Exhibit C to C-7) containing
several sticks of dynamite. Then, all accused, except Rodolfo
Quimson, who was left behind to guide the police in
recovering the body of Kumander Tamang, were brought to
the Philippine Constabulary (PC) Headquarters in
Lingayen. In Lingayen, they proceeded at the municipal
building and called on Mayor Calixto Pancho. The
surrenderees had their picture taken with Mayor Pancho
and Kagawad Rigor. Afterwards, they were brought to the
police headquarters, where their statements were taken by
Cpl. Arsenio Paragas and Cpl. Cipriano
Castillo.[7] Meanwhile, the charred body of Benjamin Nano
was recovered by the police in Sitio Tebel Patar.[8]
The following day, Cresencio Reyes informed the police
that there were firearms left buried in Sitio Tebel Patar. Reyes
pointed to the hiding place which was covered by banana
leaves. When the banana leaves were removed, the police
unearthed two (2) long barreled shotguns (Exhibits B and
D).[9]
On the other hand, the three accused contend they
were recruited by Kumander Tamang on different dates.
Accused Rodolfo dela Rosa testified that he first saw
Kumander Tamang on October 28, 1986 at a relative's
wake. Kumander Tamang asked him whether he owned a
piece of land. He said he did not, for he was only a sawali
maker. Kumander Tamang then convinced him to join the
New People's Army (NPA). He told Kumander Tamang he
would think it over. On November 1, 1986, Kumander
Tamang went to his house and reiterated his offer to
him. Cresencio Reyes was with Kumander Tamang at that
time. Reyes was carrying a bag (Exhibit C) while Kumander
Tamang had a shotgun (Exhibit A). On November 10, 1986,
Kumander Tamang went to his house and succeeded in
persuading him to join the NPA. Kumander Tamang brought
him at a hideout in the mountains of Sitio Tebel Patar,
Labrador, Pangasinan.
On the evening of November 14, 1986, Rodolfo dela
Rosa, Kumander Tamang and Cresencio Reyes, descended
the mountains and proceeded to the house of Antonio dela
Rosa, who was Rodolfo's cousin. At that time, Kumander
Tamang was carrying a shotgun (Exhibit A) while Reyes was
carrying a bag (Exhibit C). When they arrived at said place,
Kumander Tamang and Reyes entered the house and
stayed inside for ten (10) minutes. When the two came out,
dela Rosa was with them. All of them headed for the
mountains afterwards. On November 20, 1986, Rodolfo dela
Rosa, Kumander Tamang Cresencio Reyes and Antonio dela
Rosa went to the house of Rodolfo Quimson. Again, only
Kumander Tamang and Reyes entered Quimson's
house. They stayed inside for 15 minutes. When the two
came out, Quimson was with them.Afterwards, they returned
to their hideout in the mountains.[10]
On December 8, 1986, at 10:00 o'clock in the morning,
Kumander Tamang called them to a meeting. Kumander
Tamang took the bag (Exhibit C) which Reyes always carries
and opened it. The bag yielded several sticks of
dynamite. Kumander Tamang told them that at five o'clock
in the afternoon they would go down Sitio Kadampat and
assassinate Kagawad Rigor.[11] He then instructed them on
how to use the explosives. After the meeting, they returned
to their hut and rested. At two o'clock in the afternoon, they
heard a gunshot from the hut of Kumander Tamang. They
rushed outside and saw Reyes holding Kumander Tamang's
shotgun. He announced that Kumander Tamang was
dead. He told them it would be better to surrender
themselves to the authorities. He ordered them to gather the
shotgun and the sticks of dynamite while he set on fire
Kumander Tamang's hut. At five o'clock in the afternoon,
they descended the mountains and headed towards Sitio
Kadampat. At 7:00 a.m., the following day, they reached
the house of Kagawad Rigor. They saw the Kagawad sitting
by himself on a bench outside his house. Only Reyes
approached the Kagawad, so as not to frighten him. The
Page 19 of 41
three others waited by the roadside. After five (5) minutes,
Reyes signalled the three to approach the house. Kagawad
Rigor let them inside the house and offered them
breakfast. Reyes placed the shotgun and the bag on top of
the dining table. Kagawad Rigor then left the house and
went to the police station.[12] He returned with several
policemen. At first, the policemen pointed their guns at the
accused but Kagawad Rigor told them there was no need
for they were surrendering themselves to the
authorities.Kagawad Rigor then showed the policemen the
shotgun and the bag containing the sticks of dynamite. The
policemen took all the surrenderees to the Municipal Hall,
except Rodolfo Quimson, who was left behind, to lead the
police to Kumander Tamang's body. At the Municipal Hall,
Mayor Calixto Pancho greeted and congratulated them for
coming back to the fold of law. They had their picture taken
with Mayor Pancho and Kagawad Rigor. Afterwards, they
were brought to the police headquarters. When an
investigator started to question them, they asked for a
lawyer to assist them but the investigator said they would not
need one for they were surrenderees and would soon be
freed. Hence, they gave their subscribed statements to the
police. After their statements were taken, the police took
them back to the police station in Labrador, where they
were detained. On January 5, 1987, they were transferred to
the provincial jail in Lingayen. They denied ever seeing the
two (2) long firearms (Exhibits C and D) which were
recovered in Sitio Tebel Patar. They saw said firearms for the
first time when the prosecution presented them as exhibits
during the trial.[13]
When trial concluded, the lower court convicted the
three (3) accused. Antonio dela Rosa did not
appeal [14] while Rodolfo Quimson escaped[15] from the
National Bilibid Prisons (NBP) where he was detained after
the lower court convicted him. Only Rodolfo dela Rosa
appealed contending that:
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-
APPELLANT RODOLFO DELA ROSA GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF ILLEGAL POSSESSION
OF FIREARMS AND EXPLOSIVES, DEFINED AND PENALIZED
UNDER THE PROVISIONS OF PRESIDENTIAL DECREE NO. 1866.
We find merit in the appeal.
It is undisputed that accused-appellant Rodolfo dela
Rosa and his companions were the ones who surrendered
the subject firearm (Exhibit A) and explosives (Exhibit C to C-
7) to Kagawad Rigor. However, Rodolfo dela Rosa denies
that he was in possession of said ammunitions in the manner
punishable by law. According to him, his real intention was
merely to turn over the ammunitions, which were owned by
Kumander Tamang, to the authorities. The trial court
perceived otherwise. It declared that since Rodolfo dela
Rosa joined the New People's Army (NPA), there is reason to
conclude that he provided himself with arms such as Exhibits
A, B, C to C-7 and D.[16] And since mere possession is
sufficient to convict a person for crimes which are malum
prohibitum like illegal possession of firearms, appellant dela
Rosa must be convicted. It is of no moment that he
surrendered the ammunitions to the authorities.
We fail to see how appellant dela Rosa could be
convicted of illegal possession of firearms based on the
above reasoning. Section 1 of Presidential Decree No. 1866
punishes any person who shall "x x x unlawfully manufacture,
deal in, acquire, dispose or possess any firearms, part of
firearm, ammunition, or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or
ammunition."(Underscoring supplied) [17]
Broken down into its salient elements, illegal possession of
firearms is committed when the holder thereof:
(i) possesses a firearm; and
(ii) lacks the authority or license to possess it.[18]
In People v. de Gracia,[19] we clarified the meaning
of possession for the purpose of convicting a person under
PD 1866, thus:
 MALUM PROHIBITUM
"But, is the mere fact of physical or constructive
possession sufficient to convict a person for unlawful
possession of firearms or must there be an intent to possess
to constitute a violation of the law? This query assumes
significance for illegal possession of firearms is a malum
prohibitum, punished by a special law, in which case good
faith and absence of criminal intent are not valid defenses.
"When a crime is punished by a special law, as a rule,
intent to commit the crime is not necessary, it is sufficient
that the offender has the intent to perpetrate the act
prohibited by the special law. Intent to commit the crime
and intent to perpetrate the act must be distinguished. A
person may not have consciously intended to commit a
crime but he intended to commit an act, and that act is by
the very nature of things, the crime itself. In the first (intent to
commit the crime), there must be criminal intent; in the
second (intent to perpetrate the act) it is enough that the
prohibited act is done freely and consciously.
In the present case, a distinction should be made
between criminal intent and intent to possess. While mere
possession without criminal intent, is sufficient to convict a
person for illegal possession of a firearm, it must still be
shown that there was animus possidendi or an intent to
possess on the part of the accused.Such intent to possess is,
however, without regard to any other criminal or felonious
intent which the accused may have harbored in possessing
the firearm.Criminal intent here refers to the intention of the
accused to commit an offense with the use of an unlicensed
firearm. This is not important in convicting a person under
Presidential Decree No. 1866. Hence, in order that one may
be found guilty of a violation of the decree, it is sufficient that
the accused had no authority or license to possess a firearm,
and that he intended to possess the same, even if such
possession was made in good faith and without criminal
intent."
In the early case of People v. Estoista,[20] we held that
a temporary, incidental, casual, or harmless possession of
firearms is not punishable. We stated therein that:
"The terms "control" and "dominion" themselves are
relative terms not susceptible of exact definition, and
opinions on the degree and character of control or dominion
sufficient to constitute a violation vary. The rule laid down in
the United States courts - rule which we here adopt - is that
temporary, incidental, casual or harmless possession or
control of a firearm is not a violation of a statute prohibiting
the possessing or carrying of this kind of weapon. A typical
example of such possession is where "a person picks up a
weapon or hands it to another to examine or hold for a
moment."
Also, in People v. Remereta,[21] where the question posed
was whether an accused who stole a firearm could
simultaneously be prosecuted for theft and illegal possession
of firearms, we held that transient possession is not sufficient
to convict one under the latter crime, thus:
"While in stealing a firearm the accused must necessarily
come into possession thereof, the crime of illegal possession
of firearms is not committed by mere transient possession of
the weapon. x x x Thus, stealing a firearm with intent not to
use but to render the owner defenseless, may suffice for
purposes of establishing a case of theft, but would not justify
a charge for illegal possession of firearm, since intent to hold
and eventually use the weapon would be lacking."
Hence, the kind of possession punishable under PD No.
1866 is one where the accused possessed a firearm either
physically or constructively with animus possidendior
intention to possess the same.[22] It is not enough that the
firearm was found in the person of the accused who held
the same temporarily and casually or for the purpose of
surrendering the same. Admittedly, animus possidendi is a
state of mind. As such, what goes on into the mind of an
accused, as his real intent, could be determined solely
based on his prior and coetaneous acts and the surrounding
circumstances explaining how the subject firearm came to
his possession.[23]
Page 20 of 41
Thus, in People v. Leo Lian,[24] we rejected the argument
of the accused that the charge against him should be
dismissed because there was no animus possidendi on his
part. In said case, the accused contended that he was on
his way to the municipal hall to surrender the firearm when
he met some of his friends. He then forgot about the firearm,
until the police officer unceremoniously seized the same
from him, affording him no chance to surrender it himself.
In rejecting accused-appellant's claim, Justice Regalado
wrote that:
"x x x, the Court finds it hard to believe that appellant still
had to hide the firearm in his waist before setting out to
surrender it to the authorities when he could have taken the
gun to the town hall in the same bag in which he found it, in
which case it would have been safer and would have
avoided detection. In fine, the indispensable elements of
possession without the necessary authority or license and the
corresponding attendance of animus possidendi have both
been convincingly established by the prosecution to warrant
appellant's conviction x x x."
That animus possidendi is determinable from the prior and
simultaneous acts of the accused is further exemplified by
People v. Lubo.[25] In this case, while accused-appellant
pleaded lack of animus possidendi, his conduct belied the
same. Accused-appellant Lubo was found to have secured
a "temporary license" for the subject firearm.Under such
circumstance, we held that accused-appellant intended to
possess the subject firearm beyond reasonable doubt.
Coming now to the case before us, it is undisputed that
the police officers never really arrested Rodolfo dela Rosa,
for the truth of the matter was that there was no need for
such arrest. Dela Rosa and his companions had surrendered
the ammunitions to Kagawad Rigor even before the police
arrived. In fact, the police learned of the surrender because
Kagawad Rigor reported it to the police station in
Labrador. This is in contrast to People v. Leo Lian, where
appellant Lian merely feigned intention to surrender the
firearm which the police found in his possession. In the case
at bar, appellant dela Rosa's intention to surrender the
ammunitions was very clear from the beginning and he was
able to execute the same.
Corollarily, the Office of the Solicitor General's contention
that dela Rosa was in constructive possession of the
ammunitions is irrelevant for possession -whether physical or
constructive- without animus possidendi is not
punishable. Dela Rosa's possession was harmless, temporary
and only incidental for the purpose of surrendering the
ammunitions to the authorities. Consequently, the
prosecution failed to establish the first element of animus
possidendi.
Similarly, the records are bereft of sufficient proof that
Rodolfo dela Rosa possessed the ammunitions without
authority to do so. Except for the preliminary examination of
Pfc. Cipriano P. Castillo conducted by Municipal Circuit Trial
Judge Benjamin N. Abella,[26] the prosecution offered no
other evidence during the trial which showed lack of license.
In the preliminary examination, the only relevant question
asked by the judge was:
"JUDGE ABELLA
"Q: Did you or the Stn. Commander ask or verify whether
any or all of the above-named suspects have any license to
possess the above-mentioned firearms and explosives?
"A: Yes, sir. But they stated that they have no license to
possess any of the firearms and explosives which were
recovered from their possession, control and custody."
The Office of the Solicitor General offers the extrajudicial
statement of accused Rodolfo dela Rosa[27] that Kumander
Tamang supplied him with explosives and dynamite in
furtherance of subversive activities.[28] According to the
Solicitors, the extrajudicial statement is sufficient to prove
that the firearms were illegally possessed. The presumption is
erroneous. Aside from the fact that dela Rosa repudiated
the extrajudicial statement because it was
uncounselled,[29] the same did not contain any admission
 MALUM PROHIBITUM
that he had no license to possess the firearm. And, even if it
had contained an admission that he had no license, it still
would not have sufficed.
In People v. Solayao,[30] the prosecution relied only on the
testimonial evidence that accused-appellant admitted
before the police officer who accosted him that he did not
have any authority or license to carry the subject firearm
when he was asked if he had one. In acquitting the
accused-appellant, we stressed that the prosecution has the
burden of proving beyond reasonable doubt the lack of
license which is a negative averment. [31] The burden is in
consonance with the evidentiary rule that "when a negative
is averred in a pleading, or a plaintiff's case depends upon
the establishment of a negative, and the means of proving
the fact are equally within the control of each party, then
the burden of proof is upon the party averring the
negative."[32] More importantly, the burden placed on the
shoulders of the prosecution to prove beyond reasonable
doubt the lack of license is premised on the constitutional
presumption of innocence of the accused.[33] Thus,
in People v. Solayao, this Court suggested that the
prosecution could have, at the very least, presented a
certification from the Firearms and Explosives Unit that the
accused did not have the license to the gun. But, an
extrajudicial admission of the accused, solely, will not suffice.
The Office of the Solicitor General contends that for
accused-appellant to join the New People's Army and stay
in the mountains without arming themselves is highly
improbable. Thus, there is reason to believe that they illegally
possessed the ammunitions to further their subversive
activities even prior to surrendering them to the
authorities. We reiterate that mere suspicion will not prove
the prosecution's case in court. In a prosecution under
Presidential Decree No. 1866, it is incumbent on the
Government to prove both elements of the crime: (1) that
the accused possessed the firearm and (2) that he had not
first obtained a license or permit from the appropriate
authorities.[34]
As always, mere speculations and probabilities cannot
substitute for proof required to establish the guilt of an
accused beyond reasonable doubt. The rule is the same
whether the offenses are punishable under the Revised
Penal Code which are mala in se or in crimes which
are malum prohibitum by virtue of special law.[35] We find
that such quantum of proof was not adequately presented
in this case.
IN VIEW WHEREOF, accused-appellant Rodolfo dela Rosa
is acquitted in Criminal Case No. L-3616. His immediate
release from the National Bilibid Prisons (NBP) is ordered,
except if charged and detained for other offenses.
SO ORDERED.
Regalado, (Chairman), Mendoza, and Martinez,
JJ., concur.
EN BANC
[G.R. No. 115988. March 29, 1996]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO LIAN
y VERANO, accused-appellant.
DECISION
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES;
TESTIMONIES; TO BE REGARDED WITH CREDENCE, IT MUST
HAVE BEEN DECLARED NOT ONLY BY A CREDIBLE WITNESS BUT
THE SAME MUST IN ITSELF BE BELIEVABLE. - In the case of
appellant, there is no dispute, for he admitted in court that
he was apprehended possessing a firearm and live bullet
without the necessary authority or license. Moreover, the
police officer who arrested him, Sgt. Orlandino Lales, testified
to the fact that at the time he nabbed Lian, he asked the
former whether he had any license to carry the gun but
appellant could not produce then or thereafter the
necessary documents that would have attested to lawful
possession of the firearm and its ammunition. This much
Page 21 of 41
regarding Sgt. Lales testimony was also conceded by
appellant himself. Also, Sgt. Lales categorically identified in
court the firearm and live bullet that he had confiscated
from appellant who was in actual physical possession
thereof. Hence, the first essential element of possession
without authority or license has been clearly demonstrated
by the prosecution. It is on the matter of putative lack
of animus possidendi that appellant is essaying his appeal for
reversal of the trial courts judgment. Appellant testified that
from the time he first got hold of the firearm, he had thought
of surrendering it to the authorities, knowing the danger of
possessing it, and that he was on his way. to the municipal
town hail to surrender it when he unfortunately ran into long-
lost friends at the market who invited him for some drinks. It
was on account of this that he forgot all about the
firearm. He hastens to add that he could very well have
properly given the gun to Sgt. Lales were it not for the fact
that the firearm was unceremoniously seized from him, thus
affording him no opportunity for effecting its lawful
surrender. Appellants foregoing narration pitiably bears the
badges or indicia of incredibility. It is elementary that for
testimonial evidence to be regarded with credence, it must
have been declared not only by a credible witness but that
the same must in itself be believable. Conformity with human
experience is the test.
2. CRIMINAL LAW; PRESIDENTIAL DECREE NO. 1866; ILLEGAL
POSSESSION OF FIREARMS AND AMMUNITIONS; OWNERSHIP IS
NOT AN ESSENTIAL ELEMENT; CASE AT BAR. -Presidential
Decree No. 1866, as amended, which was passed to curb
criminality affecting public order and safety,
punishes, inter alia, both actual physical possession and
constructive possession of firearms, ammunition, and
explosives without authority or license therefor. Ownership
thus is not an essential element. In the case of constructive
possession, it refers to the subjection of the articles in
question to ones control and management. Once the
prosecution evidence indubitably points to possession
without the requisite authority or license, coupled
with animus possidendi or intent to possess on the part of the
accused, conviction for violation of the said law must
follow. Contrarily, where there is no animus possidendi or
intent to possess by the accused, as when ones possession or
control of a firearm is merely temporary, incidental, or
casual, no violation of Presidential Decree No. 1866, as
amended, may be successfully imputed to such an
individual. Animus possidendi, it has been held, is a state of
mind, the presence and determination of which is largely
dependent on the circumstances obtaining in each
case. What the courts must take into consideration are the
prior and coetaneous acts of the accused and the
surrounding circumstances anent his possession of the
prohibited articles.
3. ID.; ID.; ID.; ESTABLISHED IN CASE AT BAR.- Thus, from all
that has hereinbefore been said, animus possidendi cannot
but be clearly inferred. Additionally, the Court finds it hard to
believe that appellant still had to hide the firearm in his waist
before setting out to surrender it to the authorities when he
could have taken the gun to the town hall in the same bag
in which he found it, in which case it would have been safer
and would have avoided detection. In fine, the
indispensable elements of possession without the necessary
authority or license and the corresponding attendance
of animus possidendi have both been convincingly
established by the prosecution to warrant appellants
conviction of a violation of Presidential Decree No. 1866, as
amended, the imposable penalties wherein have been
decried as unduly heavy and disproportionate to the
offenses defined therein.
4. ID.; ID.; ID.; RULES FOR GRADUATING OF PENALTIES
UNDER THE REVISED PENAL CODE; APPLICABLE IN CASE AT
BAR. In the case at bar, no mitigating or aggravating
circumstances have been alleged or proved. In
accordance with the doctrine regarding special laws
explained in People vs. Simon, (G.R. No. 93028, July 29, 1994,
234 SCRA 555), although Presidential Decree No. 1866 is a
special law, the penalties therein were taken from the
 MALUM PROHIBITUM
Revised Penal Code, hence the rules in said Code for
graduating by degrees or determining the proper period
should be applied. Consequently, the penalty for the
offense of simple illegal possession of firearm is the medium
period of the complex penalty in said Section 1, that is, 18
years, 8 months and 1 day to 20 years. This penalty, being
that which is to be actually imposed in accordance with the
rules therefor and not merely imposable as a general
prescription under the law, shall be the maximum of the
range of the indeterminate sentence.The minimum thereof
shall be taken, as aforesaid, from any period of the penalty
next lower in degree, which is, prision mayor in its maximum
period to reclusion temporal in its medium period.
REGALADO, J.:
In this appeal, accused-appellant Leo Lian y Verano
bewails his conviction by the Regional Trial Court, Branch 31,
of Agoo, La Union for the offense of illegal possession of
firearm and ammunition punished by Section 1 of
Presidential Decree No. 1866, as amended. Appellant
maintains that the charge against him under said law should
have been dismissed by the trial court in view of the
absence of animus possidendi on his part. The evidence,
however, shows otherwise.
On October 11, 1990, Second Assistant Provincial
Prosecutor Rogelio C. Hipol commenced Criminal Case No.
A-2106 before the trial court through an information indicting
appellant with illegal possession of firearm and ammunition,
with the allegations
That on or about the 27th day of June, 1990, in the
Municipality of Pugo, Province of La Union, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused did then and there wilfully, unlawfully, and
feloniously have in his actual possession, control, and
custody, one (1) caliber .45 pistol with Serial No. 603514 and
one (1) live ammunition of the same caliber, without the
corresponding license to possess the same and/or permit to
carry it outside his residence.
CONTRARY TO PRESIDENTIAL DECREE NO. 1866.[1]
At his arraignment on January 8, 1991 with the assistance
of counsel de oficio, appellant entered a negative plea.[2] In
the trial that followed, the prosecution presented as its
witnesses Sgt. Orlandino Lales, the apprehending police
officer; Abelardo Macaraeg, a barangay tanod in Pugo;
and Capt. Edgar Basbas of the Philippine National Police
(PNP) Provincial Command of San Fernando, La Union. The
firearm and ammunition confiscated from appellant were
likewise offered as evidence in court. On the other hand,
it was only appellant who appeared in his defense. The
decision of the trial court promulgated on August 10,
1993 pronounced appellant guilty as charged and
sentenced him to suffer the penalty of reclusion temporal in
its maximum period to reclusion perpetua, and to pay the
costs. The seized articles were ordered to be turned over to
the PNP Director General for proper disposition.[3]
I mind, the presence and determination of which is largely
Appellant was apprehended in the early evening of June
27, 1990 having in his possession a caliber .45 Colt pistol,
together with a live bullet, at the public market of Pugo, La
Union by Sgt. Orlandino Lales, PNP Station Commander of
said municipality. Prior to appellants apprehension, one
Abelardo Macaraeg, a barangay tanod, had reported to
Lales, who was then at the Pugo police station, that he saw
Lian at the public market of Pugo with a handgun tucked in
his waist. Lales then proceeded to the market to look for
appellant, but to no avail. He then went home but, a few
minutes thereafter, Macaraeg reappeared and informed
him that Lian had returned to the market.[4]
Once more, Lales sought out appellant at the
marketplace. This time, he saw appellant standing near an
electric post. He forthwith approached appellant and, at
that instant, he noticed something which was bulging at the
latters waist. Lales then asked appellant in Ilocano, What is
that protruding in your waistline? but this elicited an angry
Page 22 of 41
look from Lian. The latter then reached toward his waist as if
to draw something therefrom and, in the process, the
handgun tucked there was revealed. Lales, who was then
only a meter away from appellant, was able to quickly grab
the firearm which, upon inspection, had a bullet in its
chamber. As appellant could not show any license to carry
the firearm, Lales arrested him and brought him to the police
station.[5]
Appellant admits having had in his possession the firearm,
together with a bullet, at the time of his apprehension. What
he underscores is the fact that he had all along intended to
surrender that firearm. He narrated during his trial that in the
afternoon of June 27, 1990, he went to his sisters house at
Poblacion East of Pugo where he partook of some
food. After eating, he proceeded to open a brown bag
which he had earlier found in the bus where he
rode. Appellant says he saw a firearm inside, wrapped in a
handkerchief. He took the gun and tucked it in his waist
before he went on his way to surrender it. At the public
market, he met some friends whom he had not seen for a
while and he had a drinking spree with them. Appellant
adds that he forgot all about the gun, and that he and his
friends continued with their version of an alcoholic soiree
that evening. It was shortly thereafter, he now recalls, that
he was accosted by Sgt. Lales at the market.[6]
In his appellate brief, Lian imputes to the trial court the
reversible error of having convicted him of the offense
charged in spite of insufficiency of evidence. The element of
intent to possess or animus possidendi, according to
appellant, has not been established by the prosecution. In
his words, his possession of the subject firearm was merely
temporary or incidental and that it was really his intention to
surrender the same from the start. Appellant furthermore
argues that he did not have control over the firearm since it
was immediately confiscated from him before he could
surrender the same. These are puerile and specious
arguments.
Presidential Decree No. 1866, as amended, which was
passed to curb criminality affecting public order and safety,
punishes, inter alia, both actual physical possession and
constructive possession of firearms, ammunition, and
explosives without authority or license therefor. Ownership
thus is not an essential element. In the case of constructive
possession, it refers to the subjection of the articles in
question to ones control and management. Once the
prosecution evidence indubitably points to possession
without the requisite authority or license, coupled
with animus possidendi or intent to possess on the part of the
accused, conviction for violation of the said law must
follow.[7]
Contrarily, where there is no animus possidendi or intent
to possess by the accused, as when ones possession or
control of a firearm is merely temporary, incidental, or
casual, no violation of Presidential Decree No. 1866, as
amended, may be successfully imputed to such an
individual. Animus possidendi, it has been held, is a state of
dependent on the circumstances obtaining in each
case. What the courts must take into consideration are the
prior and coetaneous acts of the accused and the
surrounding circumstances anent his possession of the
prohibited articles.[8]
In the case of appellant, there is no dispute, for he
admitted in court that he was apprehended possessing a
firearm and live bullet without the necessary authority or
license. Moreover, the police officer who arrested him, Sgt.
Orlandino Lales, testified to the fact that at the time he
nabbed Lian, he asked the former whether he had any
license to carry the gun but appellant could not produce
then or thereafter the necessary documents that would
have attested to lawful possession of the firearm and its
ammunition. This much regarding Sgt. Lales testimony was
also conceded by appellant himself. Also, Sgt. Lales
categorically identified in court the firearm and live bullet
that he had confiscated from appellant who was in actual
 MALUM PROHIBITUM
physical possession thereof. Hence, the first essential element
of possession without authority or license has been clearly
demonstrated by the prosecution.
It is on the matter of putative lack of animus
possidendi that appellant is essaying his appeal for reversal
of the trial courts judgment. Appellant testified that from the
time he first got hold of the firearm, he had thought of
surrendering it to the authorities, knowing the danger of
possessing it, and that he was on his way to the municipal
town hall to surrender it when he unfortunately ran into long-
lost friends at the market who invited him for some drinks. It
was on account of this that he forgot all about the
firearm. He hastens to add that he could very well have
properly given the gun to Sgt. Lales were it not for the fact
that the firearm was unceremoniously seized from him, thus
affording him no opportunity for effecting its lawful surrender.
Appellants foregoing narration pitiably bears the badges
or indicia of incredibility. It is elementary that for testimonial
evidence to be regarded with credence, it must have been
declared not only by a credible witness but that the same
must in itself be believable. Conformity with human
experience is the test. On appellants version, we need
merely to refer to this rebuttal of the Solicitor General
regarding the formers arguments:
Appellant does not deny that he indeed had the gun in
his possession, hence, he has the burden of proving that his
possession thereof was merely temporary or incidental. His
defense, however, that he merely found the gun in his bag
and intended to surrender the same to the authorities is
incredible and unbelievable.
First, if appellant really had the intention of surrendering
the gun to the authorities, he should have done so right
away. The danger of carrying a gun, loaded at that, should
have been foremost in his mind instead of joining his friends
for a drink before surrendering the gun.
Second, appellant testified that they started drinking
at 3:30 oclock in the afternoon up to 7:00 oclock in the
evening (p. 5, tsn, August 28, 1991.) He also testified that he
forgot about the gun while drinking with his friends. (id.)
Appellant could not have forgotten about the gun
considering that he carried it in his waist all the time. Its
weight and the danger of carrying it should have been
sufficient reminder that he had a gun in his waist which he
should surrender to the authorities if it was really not his.
Third, appellant failed to present corroborative testimony
to prove his defense that he was not able to surrender the
gun to the authorities because he was invited by his friends
to go drinking.Taking into consideration the gravity of the
offense with which he was charged, none of his friends with
whom he supposedly went drinking, came to his rescue by
testifying in his favor. This only leads one to question the truth
of his allegations.
Fourth, the testimony of Macaraeg and Lales, as
Barangay Tanod and Station Commander respectively,
should be given weight as public officials who are presumed
to have regularly performed their official duties in
accordance with Section 5(m), Rule 131 of the Rules of
Court. Furthermore, no ill motive, on the part of Macaraeg
and Lales, to concoct a story against the accused has been
shown.[9]
Thus, from all that has hereinbefore been said, animus
possidendi cannot but be clearly inferred. Additionally, the
Court finds it hard to believe that appellant still had to hide
the firearm in his waist before setting out to surrender it to the
authorities when he could have taken the gun to the town
hall in the same bag in which he found it, in which case it
would have been safer and would have avoided
detection. In fine, the indispensable elements of possession
without the necessary authority or license and the
corresponding attendance of animus possidendi have both
been convincingly established by the prosecution to warrant
appellants conviction of a violation of Presidential Decree
No. 1866, as amended, the imposable penalties wherein
Page 23 of 41
have been decried as unduly heavy and disproportionate to
the offenses defined therein.
This accordingly brings us to the matter of the penalties
imposed by said decree, particularly for simple illegal
possession under Section 1 thereof, to which we shall confine
this opinion since that is the offense involved in the present
case. In several decisions on this type of illegal
possession,[10] the penalties have not only been variantly
assessed but no consistent rule of application was
followed. The objections to the penalties were cavalierly
sought to be mollified by the trite rejoinder of dura lex, sed
lex, thus shifting the onus of relief to the legislature. Notably,
the possibility of judicial relief on this aspect was never
explored, and we intend to do so now. While for cases
already decided, our judgment and discussion here will
appear to be post-factum dicta, the case at bar provides
the opportunity for reexamination of those previous
judgments and the penalties imposed therein.
II
The first paragraph of Section 1 of Presidential Decree No.
1866, as amended, punishes the crime of simple illegal
possession of firearm[11] with reclusion temporal in its
maximum period to reclusion perpetua. In unquestioning
obedience, the trial court merely adopted that very same
penalty which it just quoted verbatim in its judgment in this
case. In effect, therefore, it imposed an indeterminate
sentence the minimum and maximum extent of which are
legally indeterminable.
The maximum period of reclusion temporal consists of 17
years, 4 months and 1 day to 20 years. This is supposed to be
the penalty which should serve as the basis for fixing the
minimum of the indeterminate sentence, but the court
below failed to specify the duration of that minimum. On the
other hand, reclusion perpetua, pursuant to a recent
statutory amendment, now has a duration of 40 years[12] but
it is nevertheless an indivisible penalty.[13] Hence, in order
that it may be used as the maximum of the indeterminate
sentence, the only feasible way is to put the same at either
20 years and 1 day or 40 years, but which the court a
quo likewise did not do.
In all events, it would have been pointless if it had just
done so as such an indeterminate sentence would, in the
first place, be unauthorized and invalid. There can be no
indeterminate sentence if the penalty imposed is reclusion
perpetua or life imprisonment,[14] otherwise it will result in
commingling divisible and indivisible penalties in the same
sentence to be served by the convict. Hence, the
indeterminate sentence imposed by the trial court in this
case is legally indefensible for lack of specification of the
minimum and maximum range thereof, aside from the
proscription against an indeterminate sentence if the
penalty imposed, as the court below has done, extends
to reclusion perpetua.
This does not mean, however, that there is any legal
obstacle to the application and graduation of the penalty in
the aforesaid Section 1 of the decree involved nor, for that
matter, to the imposition of an indeterminate sentence
properly taken therefrom. The penalty of reclusion
temporal in its maximum period to reclusion perpetua is not
singular, unusual or prohibited in the scheme of penalties in
the Revised Penal Code. That is the same penalty for
malversation of more than P22,000.00,[15] for attempted or
frustrated robbery with homicide,[16] and, before the
subsequent amendments to the Code, for destructive
arson.[17]
In fact, such a penalty is contemplated in Article 61 of
the Code which speaks of a principal penalty composed of
one indivisible penalty and the maximum period of a
divisible penalty, in which case the penalty next lower in
degree consists of the three succeeding periods taken from
the penalties next lower in degree, that is, prision mayor in its
maximum period to reclusion temporal in its medium
period. What is sought to be emphasized and clarified by
this illustration, and which appears to have been overlooked
in previous decisions, is that the aforesaid penalty
 MALUM PROHIBITUM
of reclusion temporal in its maximum period to reclusion
perpetua is a complex and divisible penalty consisting of
three periods.
Now, the second paragraph of Article 77 of the Code,
which deals with complex penalties, provides that
(w)henever the penalty prescribed does not have one of
the forms specially provided for in this Code, the periods shall
be distributed, applying by analogy the prescribed rules,
that is, those in Articles 61 and 76. Hence, where as in this
case, the penalty provided by Section 1 of Presidential
Decree No. 1866, as amended, is reclusion temporal in its
maximum period to reclusion perpetua, the minimum period
thereof is 17 years, 4 months and 1 day to 18 years and 8
months; the medium period is 18 years, 8 months and 1 day
to 20 years; and the maximum period is reclusion perpetua.
In the case at bar, no mitigating or aggravating
circumstances have been alleged or proved. In
accordance with the doctrine regarding special laws
explained in People vs. Simon,[18] although Presidential
Decree No. 1866 is a special law, the penalties therein were
taken from the Revised Penal Code, hence the rules in said
Code for graduating by degrees[19] or determining the
proper period[20] should be applied. Consequently, the
penalty for the offense of simple illegal possession of firearm
is the medium period of the complex penalty in said Section
1, that is, 18 years, 8 months and 1 day to 20 years.
This penalty, being that which is to be actually imposed in
accordance with the rules therefor and not merely
imposable as a general prescription under the law, shall be
the maximum of the range of the indeterminate
sentence.[21] The minimum thereof shall be taken, as
aforesaid, from any period of the penalty next lower in
degree, which is, prision mayor in its maximum period
to reclusion temporal in its medium period.
WHEREFORE, the appealed judgment of the trial court is
hereby MODIFIED and accused-appellant Leo Lian y Verano
is hereby sentenced to serve an indeterminate penalty of
ten (10) years and one (1) day of prision mayor, as minimum,
to eighteen (18) years, eight (8) months and one (1) day of
reclusion temporal, as maximum. In all other respects, said
judgment is AFFIRMED.
SO ORDERED.
Narvasa, C.J., Padilla, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Vitug, Kapunan, Mendoza, Francisco,
Hermosisima, Jr., and Panganiban, JJ., concur.
Torres, Jr., J., on leave.
FIRST DIVISION
[G.R. No. 138929. October 2, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. FLORENTINO DEL MUNDO, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
This is a direct appeal of the decision of the Regional Trial
Court of Balayan, Batangas, Branch 10, in Criminal Case No.
4139, the dispositive portion of which reads:
WHEREFORE, the Court finds the accused Florentino del
Mundo GUILTY beyond reasonable doubt of violation of Sec.
4, Art. II of Republic Act No. 6425, as amended, and hereby
sentences him to suffer the penalty of reclusion perpetua, to
pay a fine of P500,000.00 and the costs.
SO ORDERED.[1]
Accused-appellant Florentino del Mundo y de las Alas
(a.k.a. Boy) was charged with violation of Section 4, Article II
of R.A. 6425, otherwise known as the Dangerous Drugs Act of
1972, as amended, in an Information which reads:
That on or about the 20th day of November, 1997, at
about 4:30 oclock in the afternoon, at Barangay Real,
Municipality of Calatagan, Province of Batangas, Philippines
and within the jurisdiction of this Honorable Court, the
Page 24 of 41
above-named accused, without having been authorized by
law, did then and there wilfully, unlawfully and feloniously
sell, distribute and transport two (2) bricks of marijuana
fruiting tops weighing one thousand seven hundred twenty
(1,720) grams, the said accused being fully aware that the
said marijuana he is selling is a dangerous and a prohibited
drug.
Contrary to law.[2]
Accused-appellant del Mundo pleaded not guilty when
arraigned before the trial court. Trial then ensued.
The prosecution presented three (3) witnesses, namely:
PO2 Ramon Ancheta and PO1 Romeo Jonson, both of the
Calatagan, Batangas Police Station, and P/Sr. Insp. Mary
Jean Geronimo of the PNP Regional Crime Laboratory Office
at Camp Vicente Lim, Canlubang, Laguna. The two (2)
policemen were part of the arresting team that was
dispatched by the Chief of Police of Calatagan in response
to information received at around 3:05 oclock in the
afternoon of November 20, 1997, to the effect that accused-
appellant was at that very moment selling illegal drugs in
Barangay Real, Calatagan.
Considering that accused-appellant was among those
listed in their order of battle against illegal drugs, a team of
four (4) policemen were immediately instructed to go to the
said barangay and to apprehend the suspect. PO2 Ancheta
and PO1 Jonson rode tandem on a motorcycle, while PO2
Leonardo Creus and PO2 Arnulfo Umali drove to the place in
an owner-type jeep.
Arriving at Barangay Real on or about 4:30 oclock of that
same afternoon, the team saw accused-appellant standing
beside a tricycle, conversing with another person whom the
policemen could not identify. From a distance, they
observed accused-appellant hand something over to the
other person. Upon the policemens approach, accused-
appellant hurriedly boarded his tricycle and sped away
while his companion fled on foot into the sugarcane
fields. The latter was chased by PO2 Creus and PO2 Umali,
but they failed to catch him. Meanwhile, PO2 Ancheta and
PO1 Jonson caught up with accused-appellant after a brief
chase.
The arresting officers asked accused-appellant to alight
from his vehicle, after which PO2 Ancheta subjected him to
a body search. Finding no illegal drugs or weapons on
accused-appellants person, the two police officer
proceeded to search the tricycle. There they found a
package wrapped in newspaper inside a plastic bag. Upon
closer inspection, the policemen detected the distinct scent
of marijuana. When they opened the package, they found
what appeared to be two (2) bricks of marijuana fruiting
tops. They arrested accused-appellant and brought him to
the police headquarters for investigation.
The package and its contents were sent to the PNP Crime
Laboratory for scientific analysis. The forensic chemist, P/Sr.
Inspector Mary Jean Geronimo, later testified that the
laboratory examination she conducted on the contents of
the package revealed that the same was marijuana
weighing 1,720 grams. The results of the examination were
reflected in Chemistry Report No. D-1892-97.[3]
On the other hand, the defense presented only one (1)
witness, accused-appellant himself. He vehemently denied
the allegations of the prosecution, and testified that on the
afternoon in question, while he was plying the Barangay
Lucsuhin, Calatagan route on his tricycle, a man boarded
the vehicle carrying a plastic bag, asking to be ferried to
Barangay Real. While they were on their way, said
passenger told accused-appellant that he wanted to be
dropped off at Barangay Sambungan instead. They arrived
at the said place and, while the passenger was about to
pay his fare, two unidentified men aboard a motorcycle
approached with firearms aimed at accused-appellant and
the passenger.
Fearing for their lives, accused-appellant drove his
tricycle away from the scene while his passenger ran
towards the sugarcane field. He was chased by the two (2)
 MALUM PROHIBITUM
policemen, and when they caught up with him, they frisked
him and searched his vehicle. They found on the floor of the
tricycle a plastic bag which the passenger had left behind in
his frantic escape. Accused-appellant denied that he was
the owner of the bag and its contents, which upon
inspection turned out to be two (2) bricks of marijuana
fruiting tops. Nevertheless, he was placed under arrest and
incarcerated at the Calatagan Police Station.
After evaluating the evidence presented by the
prosecution and the defense, the trial court found that the
apprehending policemen positively testified that the
marijuana was confiscated from the vehicle owned and
driven by accused-appellant; that the police officers did not
have any ill-motive that would move them to fabricate such
a serious charge against accused-appellant; and that the
policemen were presumed to have regularly performed their
duties.
Moreover, the trial court noted accused-appellants
hasty, albeit unsuccessful, escape from the approaching
policemen thereby failing to elude arrest and his
contradictory statements concerning what he and the
passenger were doing and talking about immediately prior
to his arrest.
Finally, the trial court upheld the validity of the warrantless
arrest of accused-appellant and the seizure of the plastic
bag containing the marijuana, which was found in the
possession of the accused.
Accordingly, the trial court rendered judgment
convicting accused-appellant for violation of Section 4,
Article II of Republic Act No. 6425, and sentencing him to
suffer the penalty of reclusion perpetua and to pay a fine of
P500,000.00.
Hence this appeal, assigning to the trial court the
following errors:
I The trial court did not err when it ruled that it was
THE LOWER COURT ERRED IN FINDING THAT THE
OWNERSHIP OF THE CONFISCATED MARIJUANA IS NOT
IN ISSUE.
II
THE LOWER COURT ERRED IN FINDING THAT THE MERE
FACT THAT THE CONFISCATED MARIJUANA WAS FOUND
IN HIS TRICYCLE IS ENOUGH TO SUSTAIN HIS
CONVICTION.
III
THE LOWER COURT ERRED IN NOT FINDING THAT THE
UNIDENTIFIED PASSENGER WAS THE OWNER AND
TRANSPORTER OF THE CONFISCATED MARIJUANA.
IV
THE LOWER COURT ERRED IN HOLDING VALID THE
WARRANTLESS ARREST OF THE ACCUSED AND
WARRANTLESS SEIZURE OF THE CONFISCATED
MARIJUANA.
V defense. It is negative and self-serving evidence which has
THE LOWER COURT ERRED IN FINDING THE ACCUSED
GUILTY OF THE OFFENSE CHARGED.
Discussing all the above issues jointly, accused-appellant
argues that the prosecution failed to prove that he was the
owner of the marijuana, or that he was selling, distributing or
transporting the same with full knowledge that he was
transporting a prohibited drug. The fact that the policemen
also chased the unidentified passenger indicated that they
themselves were also in doubt as to who was the real owner
of the marijuana; and where the ownership of the prohibited
drug is doubtful, such doubt must always be resolved in
favor of the accused.
Accused-appellant further contends that the search of
the vehicle and consequent seizure of the marijuana were
illegal since there was neither a warrant of arrest nor a
search warrant issued prior to the incident. He argues that
without a warrant, his vehicle cannot be searched nor can
he be subjected to a body search because inspection is
merely limited to a visual search.When the policemen
Page 25 of 41
unwrapped the package and smelled the contents, they
went beyond a visual search since it is evident that the
marijuana was not immediately visible.
He also stressed that his arrest was illegal because it was
prompted in part by his being included in the order of battle
drawn up by the police to arrest suspected drug dealers in
the area; and yet, no such copy of the order of battle was
ever presented by the prosecution.
Finally, accused-appellant emphasizes the prosecutions
failure to prove that he was arrested while in the act of
selling marijuana when all that the arresting officers testified
to was that he was seen conversing with another person
who just happened to be a passenger paying his fare at the
very instance that the policemen approached them.
The prosecution counters that accused-appellants
arguments are bereft of merit for Section 4, Article II of
Republic Act No. 6425, as amended, punishes the sale,
administration, delivery, distribution and transportation of
prohibited drugs. Since these acts are considered malum
prohibitum, ownership of the drugs or prohibited substance is
not an essential element of the crime committed. Also,
accused-appellants arrest, though warrantless, was
lawful. Accused-appellants flight upon seeing the
approaching policemen gave rise to suspicions that he was
indeed committing a crime. Under Rule 113, Section 5(a),
the policemens arrest of the accused-appellant was lawful,
since there was reasonable ground to conclude that he
either committed, was actually committing, or was about to
commit a crime. Consequently, the search of his tricycle and
the inspection of the contents of the package found on the
floor of said vehicle was valid as it was incidental to a lawful
arrest.
After a careful and thorough review of the facts and
issues of this case, we affirm accused-appellants conviction.
immaterial whether or not accused-appellant was the
owner of the marijuana. Proof of ownership of the marijuana
is not necessary in the prosecution of illegal drug
cases. Accused-appellants defense that the package
containing marijuana actually belonged to the unidentified
passenger is much too convenient and trite an alibi to instill
belief.[4]
Section 4, Article II of the Dangerous Drugs Act, as
amended, makes punishable any of the acts specified
therein, such as selling, administering, delivering, giving
away, distributing, dispatching in transit or transporting, and
the like.[5] Thus, when an accused is charged with illegal
possession or transportation of prohibited drugs, the
ownership thereof is immaterial.[6]Consequently, proof of
ownership of the confiscated marijuana is not necessary; it is
sufficient that such prohibited substance was found in
accused-appellants tricycle at the time he was
apprehended.[7]
Accused-appellants bare denial is an intrinsically weak
no weight in law.[8] His lone testimony was not substantiated
by clear and convincing evidence and hence, it cannot
prevail over the positive testimony of the prosecution
witnesses and the physical evidence that supports the
judgment of conviction.[9] Just as accused-appellants bare
denial has negligible probative value, his uncorroborated
assertion that the unidentified passenger was the owner and
transporter of the marijuana cannot constitute a valid
defense. Apart from his solitary testimony, there is nothing by
way of credible evidence that the courts can rely on to
even consider his defense.
Accused-appellant denies knowledge that the package
supposedly left behind by the passenger contained
marijuana. Nevertheless, lack of knowledge cannot
constitute a valid defense, for lack of criminal intent and
good faith are not exempting circumstances where the
crime charged is malum prohibitum.[10] Thus, this Court has
uniformly held that the uncorroborated claim of an accused
of lack of knowledge that he had a prohibited drug in his
 MALUM PROHIBITUM
possession is insufficient.[11] To warrant his acquittal, accused-
appellant must show that his act of transporting the
package containing marijuana in his tricycle was done
without intent to possess a prohibited drug.[12] Despite his
protestations to the contrary, his reaction to the arrival of the
policemen belied his claim of innocence.
Uncorroborated as his testimony was, whatever credibility
that may be appreciated in his favor was dispelled by
accused-appellants own actuations. If indeed he did not
know that the package in his tricycle contained marijuana,
he would not have attempted to flee from the approaching
policemen. His story that the policemen had their guns
drawn and he fled out of fear is too hackneyed an excuse
and is contrary to human experience. An innocent person
caught in a like situation would more likely stay and profess
his innocence rather than further endanger his life by fleeing.
In the parallel case of People v. Baludda,[13] this Court
held:
x x x Indeed, the tale of appellant, too trite and
hackneyed to be believed, does not suffice to overcome
the prima facie evidence of appellants awareness of his
possession of prohibited drugs.Worse still for appellant is the
undeniable fact that he and his companions, except
Maximo Baludda, fled towards different directions after the
police authorities announced their presence. If appellant
had nothing to do with the transporting of subject prohibited
drugs, or if he really had no knowledge that the sack he
carried contained marijuana, there would have been no
cause for him to flee. If he had to run at all, it would have
been more consistent with his protestation of innocence if he
ran towards, and not away from, the police
officers. Obviously, what appellant did removed any shred
of doubt over his guilt; exemplifying the biblical adage: The
wicked flee when no man pursueth; but the righteous are as
bold as a lion. (Underscoring ours)
It is obvious that his escape attempt was precipitated by
his knowledge that the package contained marijuana. That
he and his passenger were caught in the middle of a
transaction or deal is clearly manifested by their
spontaneous attempt to flee when they saw the policemen
approaching. Jurisprudence has repeatedly declared that
flight is an indication of guilt.[14] The flight of an accused, in
the absence of a credible explanation, would be a
circumstance from which an inference of guilt may be
established for a truly innocent person would normally grasp
the first available opportunity to defend himself and to assert
his innocence.[15]
In the recent case of People v. Tang Wai Lan,[16] citing
the ruling in People v. Burton,[17] this Court pointed out that
an explanation, standing by itself, which is too trite and
hackneyed to be accepted at its face value, since it is
obviously contrary to human experience is insufficient to
overcome the prima facie evidence that accused had
knowledge of his possession of prohibited drugs.
Be that as it may, accused-appellant posits that, at the
very least, his testimony should have raised reasonable
doubt in the mind of the court. However, bare denials
unsubstantiated by convincing evidence are not enough to
engender reasonable doubt particularly where the
prosecution presents sufficiently telling proof of
guilt.[18] Besides, absolute certainty of guilt is not required for
a conviction. Moral certainty as to the presence of the
elements constituting the offense is sufficient as long as the
identity of the offender is established.[19]
Accused-appellant cannot feign ignorance of the fact
that the package he was transporting contained
marijuana. That it was found in his tricycle is prima facie
evidence of knowledge or animus possidendi and it is
enough to convict in the absence of a satisfactory
explanation.[20] In the case at bar, the constitutional
presumption of innocence will not apply as long as there is
some logical connection between the fact proved and the
ultimate fact presumed, and the inference of one fact from
proof of another shall not be so unreasonable as to be a
purely arbitrary mandate. Accordingly, the onus of evidence
Page 26 of 41
to prove absence of animus possidendi is thus shifted to the
possessor of the dangerous drugs.[21]
In the instant case, the evidence on record established
beyond any doubt that accused-appellant was in
possession of the package containing the marijuana. It was
found inside the vehicle he owned and was driving at the
time he was apprehended. In fact, he sought to evade
arrest by driving his vehicle away from the scene with the
package on board. His possession thereof gives rise to the
disputable presumption under Section 3(j), Rule 131 of the
Rules of Court, that he is the owner of the package and its
contents. His bare, unpersuasive and uncorroborated
disavowal that the package belonged to his unidentified
passenger is a mere denial which by itself is insufficient to
overcome this presumption.[22] It is well-established that this
defense, in the absence of convincing evidence, is
invariably viewed with disfavor by the courts for it can be
easily concocted. In fact, it is the most common defense
tactic employed in most cases involving illegal drugs.[23]
The evidence shows that accused-appellant was
apprehended in the act of delivering or transporting illegal
drugs. Transport as used under the Dangerous Drugs Act is
defined to mean: to carry or convey from one place to
another.[24] When accused-appellant used his vehicle to
convey the package containing marijuana to an unknown
destination, his act was part of the process of transporting
the said prohibited substance.[25] Inherent in the crime of
transporting the prohibited drug is the use of a motor
vehicle. The very act of transporting a prohibited drug, like in
the instant case, is a malum prohibitum since it is punished as
an offense under a special law. The mere commission of the
act constitutes the offense and is sufficient to validly charge
and convict an individual committing the act, regardless of
criminal intent.[26] Since the appellant was caught
transporting marijuana, the crime being mala prohibita,
accused-appellants intent, motive, or knowledge thereof
need not be shown.[27]
There is no reason to doubt the credibility of the
policemens testimonies, and after scrutinizing the records on
hand, this Court finds no ground to disregard the findings of
the lower court giving credence to the prosecutions
evidence. It is a well-settled rule that the trial court has the
distinct advantage to observe closely the deportment and
demeanor of witnesses on the stand as well as their manner
of testifying. The trial judge has the unparalleled opportunity
to observe the witnesses and to assess their credibility by the
various indicia available but not reflected in the
record.[28] Unless it is clear that the trial court discarded or
omitted certain facts of significance that may alter the
outcome of the case, the trial courts findings deserve the
respect and approbation of the appellate
court.[29] Accused-appellant, however, failed to present
justifiable grounds to show that the trial court misconstrued
or overlooked any evidence of substance that would
necessitate the reversal of the trial courts judgment.[30]
Finally, there is no question that the warrantless arrest of
accused-appellant and the warrantless seizure of the
marijuana was valid and legal. Accused-appellant was
caught attempting to flee from the pursuing policemen who
were ordered to go to the specific place where accused-
appellant was suspected to be dealing drugs. As it
happened, they found him in the act of either selling,
delivering or transporting marijuana. Accused- appellants
attempt to escape was indicative of his guilt, and bolstered
the policemens suspicion that he had either committed, was
actually committing, or was attempting to commit an
offense when they found him talking to an unidentified
person beside his tricycle. Under the given circumstances,
the warrantless arrest of accused-appellant was valid since
the policemen had reasonable grounds to believe that he
was dealing or transporting prohibited drugs, having been so
informed by a reliable police informer and acting upon
orders of their superior officer. This reasonable belief was
indelibly confirmed when both accused-appellant and the
unidentified person fled at the sight of the policemen
 MALUM PROHIBITUM
approaching, and ultimately upon the discovery and seizure
of the marijuana in a package inside his tricycle.[31]
Even assuming that accused-appellants warrantless arrest
overstepped the bounds of legality, the same is not a
jurisdictional defect.[32] It is a well-entrenched rule that any
objection, defect or irregularity attending an arrest must be
made before the accused enters his plea on
arraignment.[33] Having failed to move for the quashing of
the Information against him before his arraignment,
accused-appellant is estopped from questioning the legality
of his arrest.[34] In fact, he never raised the issue of his
warrantless arrest before the trial court prior to or during the
proceedings thereat. It is a bit too late to do so in this
appeal.
Consequently, any evidence gathered and presented by
the prosecution as a result of the valid warrantless arrest
cannot be considered fruit of a poisonous tree, but were
admissible and competent to prove accused-appellants
guilt.[35] Accused-appellants argument that inspection of the
immediate premises must be limited to a visual search finds
no application in this case. The search of a moving vehicle is
one of the doctrinally accepted exceptions to the
constitutional mandate that no search or seizure shall be
made except by virtue of a warrant issued by a judge after
personally determining the existence of probable
cause.[36] The warrantless search of a moving vehicle is
justified on the ground that it is not practicable to secure a
warrant because the vehicle carrying the prohibited drugs
can be quickly moved out of the area or jurisdiction in which
the warrant must be sought.[37] Therefore, the warrantless
search of accused-appellants tricycle, which he used in
transporting the marijuana, and by which he attempted to
escape, was valid.
The policemen did not even have to open the package
to determine its contents. The scent of the marijuana, as
testified to by witness PO3 Ramon Ancheta, was evident
although it was wrapped in newspaper and placed in a
plastic bag.[38] It is of judicial notice that marijuana has a
distinct, sweet and unmistakable aroma very different from
that of ordinary tobacco.[39]Having detected the scent of
marijuana, the policemen had legal authority, as well as the
legal duty, to open the package and examine the contents
if indeed it was marijuana. There is thus no merit in accused-
appellants argument that the physical evidence presented
by the prosecution was obtained through an illegal
warrantless search. Besides, there is no showing that
accused-appellant objected to the search of his vehicle
and the opening of the package. Drugs discovered as a
result of a consented search are admissible in evidence.[40]
WHEREFORE, in view of the foregoing, the decision of the
Regional Trial Court of Balayan, Batangas, Branch 10, in
Criminal Case No. 4139, finding accused Florentino del
Mundo y de las Alas guilty beyond reasonable doubt for
violation of Section 4, Article II of R.A. 6425 (Dangerous Drugs
Act) as amended, and sentencing him to suffer the penalty
of reclusion perpetua and to pay a fine of P500,000.00, is
AFFIRMED in toto.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, and Pardo,
JJ., concur.
Kapunan, J., on official leave.
SECOND DIVISION
[G.R. No. 115581. August 29, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appelle, vs. VACITA
LATURA JONES, accused-appellant.
DECISION
TORRES, JR., J.:
The accused VACITA LATURA JONES, an Americal
national, appeals from her conviction for violation of Section
4, Article II of the Dangerous Drugs Act of 1972, i.e., R.A.
6425, as embodied in the Decision[1] of the Regional Trial
Page 27 of 41
Court of Pasay City, Branch 111 in Criminal Case No. 91-2026,
dated January 24, 1994.
The records disclose that the accused was charged on
December 16, 1991 for transporting 1.6 kilograms of heroin as
per Information filed by the Office of the Senior State
Prosecutor, as follows:
The undersigned Senior State Prosecutor of the
Department of Justice hereby accuses VACITA LATURA
JONES for violation of Section 4, Article 11 of R.A. 6425 as
amended, otherwise known as The Dangerous Drugs Act of
1972,commited as follows:
That on or about the 11th day of December, 1991, about
6:30 oclock in the morning at Ninoy Aquino International
Airport, Pasay City, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, did then
and there, willfully, unlawfully and feloniously transport
without lawful authority 1.6 kilograms of heroin more or less, a
prohibited drug.
CONTRARY TO LAW.
The accused pleaded not guilty upon arraignment on
June 9, 1992. Thereafter, trial proceeded with the
presentation of witness for the prosecution. To show that the
accused was caught in flagrante of trying to transport five
packets of heroin, a prohibited drug, from the country, the
prosecution presented Rubilinda Rosal, a PNP Police
Supervisor and civilian frisker, whose testimony was
corroborated on its material points by arresting officers SPO1
Ricardo Bariuad, SPO1 Neowillie de Castro, and SPO3
Arsenio Suma-Oy. The lone defense witness presented was
the accused herself, who denied all the charges set up
against her.
The facts of the case, appearing on record are hereby
reproduced verbatim:
The Narcotics Command (NARCOM) of the Philippine
National Police (PNP) maintains a team of its personnel
which conducts routinary security checks on all outgoing
passengers at the final check, West Satellite, International
Passenger Terminal, Departure Area, Ninoy Aquino
International Airport, Pasay City. In the morning of
December 11, 1991, the members of the NARCOM team
then assigned at the West Sattellite, Final Security Check,
Departure Area, International Passenger Terminal, Ninoy
Aquino International Airport were Senior Inspector Rustico C.
Francisco, SP03 Arsenio B. Suma-Oy, SP01 Ricardo Bariuad,
PO3 Neowillie U. de Castro and Rubilinda Rosal, a police
supervisor and civilian frisker.
At around 6:30 oclock in the morning of December 11,
1991, while Rubilinda Rosal was conducting the routinary
security check by frisking the bodies of all outgoing
passengers at the final check counter at the departure
area, she happened to touch something unusual on the
breast of an outgoing lady passenger. The frisker, Rubilinda
Rosal, brought the said lady passenger to the side of the
passengers passage where she was bodily searched. The
search yielded two (2) small packs (Exh. C-2 and C-3)
hidden inside her bra and another pack (Exh C-4) hidden in
the front part of her panty. Immediately upon discovering
the packs, Rubilinda Rosal informed SPO1 Bariuad of her
findings. PO3 de Castro was requested to examine the
contents of the packs, De Catro conducted a field test
which gave positive result of heroin.
Rubilinda Rosal was further requested to search the
personal belongings of the lady passenger. The black
leather jacket (Exh. F) was found to contain two (2) more
packs in its two pockets.The NARCOM personnel
immediately placed the lady passenger under arrest and
the corresponding Booking Sheet and Arrest Report (Exh. I)
was accomplished. The arrested lady passenger identified
herself as Miss VACITA LATURA JONES, 24 years old,
American national, a resident of 296 West Marposa, Altudin,
California, U.S.A. and an outgoing passenger of flight No.
NW-066 bound for U.S.A. and a holder of passport Number
130478972 (Exh. J). She is the same person now accused in
this case.
 MALUM PROHIBITUM
The five (packs) of suspected heroin were confiscated
with an estimated weight of 1.6 kilograms for which a receipt
(Exh. G) was duly issued. The NARCOM personnel involved in
the search and seizure of the suspected drugs executed a
joint affidavit (Exh. H). The person of the accused, Vacita
Latura Jones, the five (5) packs of suspected heroin and the
other travel documents of accused were subsequently
turned over to the Headquarters, PNP Narcotics Command,
Special Operations Division, for further investigation.
On the same date, December 11, 1991, a
communication (Exh. A) was addressed by Chief Inspector
Cezar D. Elezano, Division Chief of the Special Operations
Division, PNP Narcotics Command, to the Director of the PNP
Crime Laboratory requesting the latter to conduct
laboratory examination of the five (5) packs of suspected
heroin. Upon receiving the request (Exh. A), Insp. Leslie
Chambers, a Forensic Chemist at the PNP Crime Laboratory
conducted an examination of the five (5) packs of
suspected heroin with a total weight of almost 1.6 kilos. In her
Chemistry Report No. D-1441-91 (Exh. B) Insp. Chambers
arrived at the following
FINDINGS:
Qualitative examination conducted on the above-stated
specimens gave POSITIVE result to the test for Heroin, a
prohibited drug.
CONCLUSIONS:
Exhs. A-1 through A-3 and B-1 and B-2 contain heroin, a
prohibited drug.
The Chemistry Report (Exh. B) bears the approval of the
Chief Insp. Marlene M. Salangad, Chief of the Chemistry
Division and Chief Supt. Ricardo B. Trinidad, Director of the
PNP Crime Laboratory Service (See Exhs. B-2 and B-3).[2]
Upon such facts, the trial court found the accused guilty
of violating Section 4, Article II of R.A. 6425. The dispositive
portion of the courts decision reads:
"WHEREFORE, the Court finds the accused VACITA
LATURA JONES guilty beyond reasonable doubt of violating
Section 4 Article II of Republic Act No. 6425, as amended, as
charged in the information, and hereby sentences said
accused to life imprisonment and pay a fine TWENTY
THOUSAND (P20,000) PESOS. Let the heroin (Exhs. C-2, C-3, C-
4, D-2and D-3 remain in the custody and possession of the
Dangerous Drugs Board for proper disposition.
The immediate transfer and commitment of the accused
from the Pasay City Jail to the Bureau of Corrections in
Muntinlupa, Metro-Manila, is hereby ordered.
SO ORDERED.[3]
Taking exception to the decision of the trial court, the
accused appealed to the Court, raising the following
alleged errors of the trial court:
I drug, as she has not yet boarded the plane, and was still
THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE
PROSECUTIONS VERSION THAT ACCUSED-APPELLANT
WAS CAUGHT IN FLAGRANTE POSSESSING THE FIVE (5)
PACKS OF HEROIN WITH A TOTAL WEIGHT OF 1.6
KILOGRAMS, MORE OR LESS; WHEN SHE WAS FRISKED BY
A CIVILIAN EMPLOYEE OF THE PHILIPPINE NATIONAL
POLICE (PNP) AT THE NINOY AQUINO INTERNATIONAL
AIRPORT (NAIA) DEPARTURE AREA.
II
THE TRIAL COURT ERRED IN REJECTING THE DEFENSE
OF DENIAL INTERPOSED BY ACCUSED-APPELLANT,
COUPLED WITH A SHOWING OF THE FACTS AND
CIRCUMSTANCES INDICATING THAT THE SUBJECT PACKS
OF HEROIN COULD NOT HAVE BEEN IN HER POSESSION.
III
ASSUMING THAT ACCUSED-APPELLANT WAS
CAUGHT IN FLAGRANTE POSSESSING THE PACKS OF
HEROIN AT ISSUE, THE TRIAL COURT ERRED IN HOLDING
HER LIABLE FOR UNLAWFUL TRANSPORTATION THEREOF
UNDER SECTION 4, ARTICLE II OF REPUBLIC ACT NO.
6425, AS AMENDED, BECAUSE THERE WAS NO EVIDENCE
Page 28 of 41
INDICATING THE POINT OF ORIGIN OF SAID PACKS OF
PROHIBITED DRUG AND THEY WERE NOT FOUND TO BE IN
TRANSIT OR BEING TRANSPORTED.[4]
In furtherance of her appeal, the accused posits the
following as the true facts surrounding her arrest.
In the early morning of December 11, 1991, accused
Vacita Latura Jones, an American national, entered the
NAIA Departure Area. After she had handed her passport to
a security guard stationed therein, she proceeded to the
ticketline. Meanwhile, a man with the physical features of an
American came behind her. That man, later, introduced
himself as Henry Lugoye and identified himself as a
businessman and conversed with her. After that brief
conversation, she proceeded to the Immigration Security
Check where she was asked to present her passport and
plane ticket. When she was cleared, she went to the Final
Check Departure Area. She was followed by the man who
had previously talked with her. The said man approached
her and, while the area was busy, he placed his jacket on
her rolling cart and hurriedly left. At the final Check Area, she
was frisked by a woman who subsequently brought
accuseds luggage to a table, picked up the jacket and left.
(TSN, August 23, 1993, pp. 13-17)
After a short while, the woman-frisker came back in the
company of some men who directed accused to come with
them near the Final Check Departure Office. There, accused
saw the jacket and several packs on top of a table. She was
asked to sign something and to affix her signature on the
jacket. When she refused, she was boxed, prompting her to
place a call of the American Embassy for assistance. (TSN,
August 23, 1993, pp. 18-19)[5]
According to the accused, it was highly improbable, if
not impossible to her to conceal three of the five packets
subject packets of heroin in her bossom (two packets
weighing 288.8 grams and 330.7 grams; Exhs C-2 and C-3)
and in between her thighs (one packet weighing 271.2
grams; Exh C-4) because of their size. Corollary to this,
accused points out that the trial court took judicial notice of
the fact that the said packets were too big to be kept
between her bosom and between her legs. (TSN, April 22,
1993. Pp. 4-5) The two other packets, weighing 342 grams
and 295.4 grams (Exhs. D-2 and D-3), found in a black
leather jacket in her possession, could not be attributed to
her as the jacket was not hers, but belonged to an
American stranger she had met in the NAIA, just before she
was arrested.
In the alternative, the accused posits that under the facts
as found by the trial court, she could only be charged and
convicted of possession of the prohibited drug, as the act of
transporting was not proven by the prosecution, there being
no evidence of the place of origin of the drug. Neither may
the acussed be convicted of transporting the prohibited
within the Departure Area of NAIA.
The decisive issue raised by the appellant involves the
credibility of the prosecution witnesses, and the weight that
should be accorded by the Court to their testimonies.We
have carefully reviewed the evidence of the case and are
convinced that the above-cited posturings of the acussed
are untenable, and that the accused is guilty of transporing
the prohibited drug heroin.
Contrary to the defenses contention, it is not impossible
for the accused to conceal the three packets of heroin,
weighing 288.8, 330.7 and 271.2 grams, between her legs
breast and thighs. As the Solicitor General suggests, the two
packets concealed between here breasts were covered by
her bra, shirt, and jacket, while the third pack was hidden
inside her shorts. All the three packets were covered by
adhesive tape, and stuck to the accuseds body. Because of
the size of the packets, it is indeed, possible that they would
show, despite the attempts to conceal them. This fact only
lends credence to the assumption that witness Rubilinda
Rosal, who had frisked the accused, had discovered the
said packets in the accuseds body following the frisk.
 MALUM PROHIBITUM
The accused maintains that the packets of heroin found
in the black leather jacket, which was in her possession, did
not belong to her, but to a certain Henry Lugoye.However,
this fact, even if assumed to be true, does not exempt the
accused from liability. In the prosecution for transportation of
a prohibited drug under Section 4, Article II of R.A. 6425,
proof of ownership is not a requisite. The ownership of the
subject heroin is immaterial for the purpose of the change of
transporting prohibited drugs.[6] Thus, it was observed in
People vs. Alfonso;[7]
We agree with the Solicitor General that ownership is not
the basic issue here. The accused-appellant is charged with
transporting marijuana which he in fact did. In his testimony,
he stated that he admitted being the owner of the sack
containing the marijuana when questioned by the Narcom
agent in the bus (TSN, p. 7, March 2, 1987). He later denied
ownership in an effort to exculpate himself. How could it be
believed that he had no knowledge of the contents of the
sack being in possession of it and admitting its
ownership? And if it were true that he was not really the
owner but that he simply accepted the errand form one
who was not even friend, the explanation, standing by itself,
is too trite and hackneyed to be accepted at its face value,
it being contrary to human experience. For one, it was not
clear whether the person from whom he received the sack
was a stranger or someone closely known to him. Or worst,
he could be non-existent as he was never apprehended nor
presented in evidence. In his testimony on February 4, 1983
(TSN, pp. 36-37), the appellant stated that it was the first time
he saw Banghito in his brothers house and that their
relationship to each other was not close. Under the
circumstances, it would appear that Augusto Banghito was
virtually a stranger to the appellant. The particulars under
which the errand was being requested would have raised
doubts about the mysterious nature of the transaction.
(Underline supplied)
The accuseds testimony to the effect that the black
leather jacket did not belong to her, but to the American
stranger named Henry Lugoye she met at he NAIA, who left
the jacket in her rolling cart is unbelievable, considering that
no one of such description or appellation was found to be
within the NAIA at the time the accused was arrested, nor
was he presented before, during or after trial. Indeed, the
jacket would not have been in the possession of the
accused where it not to the accuseds concession. The
accuseds story shouts of concoction and creativity, in that
under ordinary circumstances, if the accuseds story is true,
she should have called the mans attention and returned the
jacket or she should have promptly called the attention of
the NAIA authorities and gave the jacket to the lost and
found. No one would just leave their possession to practical
strangers, and no one would accept such objects then pass
through an airport security check. It would be idiotic for the
accused to do this, but the evidence shows that the
accused is no such person. Accused claims to be a
businesswoman, buying wares for her clothing shop
abroad. In support of this, she presented receipts covering
transactions relative to her business ventures in the United
States. Her passport shows she is a frequent traveler to the
Philippines and other Asian countries. In short, the accused is
not as simple-minded as she claims. The improbabilities cited
earlier in People v. Alfonso, also exist in this instance, thus
meriting the Courts discrediting of the denials of the
accused.
The facts as proven by the prosecution, establish beyond
cavil that the accused was caught transporting heroin en
flagrante delicto. That the accused knew fully well what she
was doing is shown beyond moral certainty by the following
circumstances: (a) the prohibited drug was found in her
person and in her personal effects (b) that she attempted to
conceal the said substances, (c) that the leather in which
she hid some of the heroin was under her absolute control,
(d) she was at the departure area of the NAIA, holding
plane tickets and boarding pass bound for abroad, and
undergoing final security checks prior to boarding her
Page 29 of 41
flight. The combination of all these circumstances is such as
to produce a conviction beyond reasonable doubt.
In People vs. Claudio,[8] credence was accorded the
prosecutions evidence, more so as it is it consisted mainly of
testimonies of policemen. In the absence of proof to the
contrary, law enforcers are presumed to have regularly
performed their duties. This is especially true when there is no
showing of any ill-motive on the part of the law enforcers.
The accused claims that she was framed by her arresting
officers since they could not find the American Henry
Lugoye, who is allegedly the true owner and transporter of
the prohibited substance. Accused-appellant declares
ATTY. PADILLA
Q Now, do you of any reasonYou said that this
jacket is not yours and also you said that the heroin
which were allegedly found were not yours, will you tell
us the reason why these police officers will testify
against you?
A Because they could not arrest the man who
owned the jacket.
By pinning such unlawful intention on the arresting
officers, accused hopes to discredit their incriminating
testimonies. However, there is nothing to substantiate or
support this allegation of the defense. As it is, we find no
reason from the records why the prosecution witnesses
should fabricate their testimonies and implicate appellant in
such a serious crime. Where the defense of frame-up
appears hollow and self-serving, the same will not merit
belief from the courts. Stronger proof is needed to overcome
the findings of the trial court that the prosecution witnesses
are telling the truth.[9]
As to the accuseds third assignment of error, there is no
doubt in mind of the court that the accused was in the act
of transporting heroin when she was caught. The accused
was caught in the international airport, holding tickets issued
by Northwest Airlines for abroad. She had gone through the
usual process preceding departure, and was in fact in the
last stage of security checks, right before boarding, when
frisker Rubilinda Rosal discovered her hidden
contraband. Such circumstances leave no doubt to the
mind of the court the accused was transporting the
prohibited substance. There is no definitive moment when
the accused transports a prohibited drug. When the
circumstances established point to the purpose of the
accused to transport, and to the fact of transportation itself,
then there should be no question as to the perpetration of
the criminal act. As held by the court in People vs.
Omaweng.[10]
The fact that the appellant boarded the bus only at
Natubley, Baguias, Benguet, and not from Sagada to Baguio
as indicated in the information given to the agents of the
law is of no moment.What is material is that the accused
was transporting marijuana.
In People vs. Lo Ho Wing,[11] the Court defined the term
transport, as used under the Dangerous drug act to mean to
carry or convey from one place to another,[12] the operative
words being to carry or to convey. The fact that there is
actual conveyance suffices to support a finding that the act
of transporting was committed. It is immaterial whether or
not the place of destination was reached.
As the Court observes,
Moreover, the act of transporting a prohibited drug is
a malum prohibitum because it is punished as an offense
under a special law. It is a wrong because it is prohibited by
law. Without the law punishing the act, it cannot be
considered a wrong. As such, the mere commission of said
act is what constitutes the offense punished and suffices to
validly charge and convict an individual caught committing
the act so punished, regardless of the criminal intent.[13]
Though it was not raised on appeal, the matter of the
penalty imposable on the accused should be re-
examined. Before the Dangerous Drugs Act was amended
by R.A. 7659, the imposable penalty for the illegal
 MALUM PROHIBITUM
transportation of a prohibited drug under Section 14 Article II
of R.A. 6425 was life imprisonment to death. The accused in
this case was meted the penalty of life imprisonment by the
trial court. With the enactment and effectivity of R.A. 7659,
amending pertinent portions of the R.A. 6425, the penalty
imposable upon violators of Section 14 in now reclusion
perpetua to death, and the capital punishment having
been reinstituted. Since reclusion perpatua is a lighter
penalty than life imprisonment, and considering the rule that
criminal statutes with a favorable effect upon the accused
have, as to him, a retroactive effect, the penalty imposable
upon the accused should be reclusion perpetua and not life
imprisonment.
IN VIEW WHEREOF, the Court resolved the DENY the
accuseds appeal. The judgment of the trial court in Criminal
Case No. 91-2026, dated January 24, 1994 is hereby
AFFIRMED, with the MODIFICATION that the penalty imposed
upon he accused, besides the fine imposed by the court
below, shall be reclusion perpetua, in accordance with the
above-stated amendments thereto, and not life
imprisonment as heretofore imposed.
SO ORDERED.
Romero, Puno, and Mendoza, JJ., concur.
Regalado, J., (chairman), on leave.
THIRD DIVISION
[G.R. No. 109250. September 5, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NORIEL
LACERNA y CORDERO & MARLON
LACERNA y ARANADOR, accused.
MARLON LACERNA y ARANADOR, accused-appellant.
DECISION
PANGANIBAN, J.:
The unrelenting and pervading war against illegal drugs
has absorbed the attention of all branches of government,
both national and local, as well as media, parents,
educators, churches and the public at large. This case is one
more intrepid battle in such all-out war. Herein appellant
seeks acquittal on the ground that his acts did not constitute
the crime of giving away prohibited drugs penalized by
Section 4 of Republic Act No. 6425, as amended (The
Dangerous Drugs Act). Nonetheless, he cannot escape the
law because the very same deeds, which appellant admits
to have performed, show his culpability for illegal possession
of prohibited drugs -- penalized in Section 8 of R.A. 6425, as
amended -- which is necessarily included in the crime
charged in the Information.
Statement of the Case
This ruling is explained by the Court as it resolves this
appeal from the Decision,[1] dated February 24, 1993, of the
Regional Trial Court of Manila, Branch 16,[2] convicting
Appellant Marlon Lacerna y Aranador of violation of Section
4 of Republic Act No. 6425, as amended x x x.
Asst. City Prosecutor of Manila Juan O. Bermejo, Jr.
charged appellant and Noriel Lacerna in an
Information,[3] dated September 16, 1992, which reads as
follows:[4]
The undersigned accuses NORIEL LACERNA Y CORDERO
and MARLON LACERNA Y ARANADOR of a violation of
Section 4 Art. II, in relation to Section 21, Art. IV of Republic
Act 6425, as amended by Presidential Decree No. 1675, xxx
That on or about September 12, 1992, in the City of
Manila, Philippines, the said accused, not being authorized
by law to sell, deliver or give away to another or distribute
any prohibited drug, did then and there wilfully, unlawfully
and jointly sell, deliver or give away to another the following,
to wit:
Eighteen (18) blocks of marijuana
flowering tops - weight 18.235 kilograms
which is a prohibited drug.
Page 30 of 41
When the case was called for arraignment on October 7,
1992, appellant and his co-accused appeared without
counsel but they alleged that they had engaged the
services of a certain Atty. Kangleon. Thus, the trial court
provisionally appointed Atty. Rodolfo P. Libatique of the
Public Attorneys Office as counsel de oficio, in case Atty.
Kangleon did not appear for the arraignment on October
28, 1992.[5] Because the alleged counsel de parte failed to
show up during the arraignment on that date, Atty.
Libatique assisted the accused who pleaded not guilty.[6]
After trial on the merits, the court a quo promulgated the
assailed Decision, the dispositive portion of which reads:[7]
WHEREFORE, PREMISES CONSIDERED, judgment is hereby
rendered:
I. The guilt of the accused Marlon Lacerna having been
established beyond reasonable doubt for the crime of
violation of Section 4 of RA 6425, as amended, he is found
guilty of the same, sentencing him to life imprisonment and
to pay a fine of P20,000. With costs.
II. The guilt for the crime charged of accused Noriel
Lacerna not having been established beyond reasonable
doubt he is hereby ACQUITTED. The warden of the Manila
City Jail is ordered to release his person, unless held on other
charges.
The evidence seized in this case is to remain in the
custody of the NBI Director as Drugs Custodian of the
Dangerous Drugs Board. (RA 425, Sec. 36; Supreme Court
Circular No. 9 dated July 18, 1973) to be properly disposed of
after the final disposition of this case.
Hence, only Marlon Lacerna (his co-accused having
been acquitted) interposed this appeal direct to the
Supreme Court in view of the life penalty imposed.[8]
The Facts
Version of the Prosecution
The prosecution presented the following witnesses: PO3
Carlito P. Valenzuela, Forensic Chemist Aida A. Pascual, and
PO3 Rafael Melencio. Their testimonies are summarized by
the Solicitor General in the Appellees Brief as follows:[9]
On September 12, 1992, Police Officer 3 (PO3) Carlito P.
Valenzuela, a member of the Mobile Patrol Division of the
Western Police District (WPD), was assigned to man the
checkpoint and patrol the area somewhere along the
sidestreets of Radial Road near Moriones Street. The
assignment to monitor strategic places in the city and
barangays of Manila was a direct order from General
Nazareno. Thus, he and his companion PO3 Angelito
Camero went about cruising the area in their Mobile Patrol
car, with PO3 Valenzuela at the helm. At about 2:00 p.m.,
appellant and co-accused, who were aboard a taxicab,
passed by PO3 Valenzuelas place of assignment, which was
then heavy with traffic, looking suspicious (t.s.n., PO3
Valenzuela, Nov. 11, 1992, pp. 3-4; Nov. 20, 1992, pp. 2-7).
Appellant was seated beside the taxi driver while co-
accused was seated at the left back seat of the taxi. When
PO3 Valenzuela looked at the occupants of said taxi, the
latter bowed their heads and slouched, refusing to look at
him. Feeling that something was amiss, PO3 Valenzuela and
his companion stopped the vehicle, signaling the driver to
park by the side of the road (t.s.n., PO3 Valenzuela, Nov. 11,
1992, pp. 3-4).
PO3 Valenzuela and his co-police officer asked
permission to search the vehicle. As the occupants readily
agreed, the police officers went about searching the
luggages in the vehicle which consisted of a knapsack and
a dark blue plastic grocery bag. They asked appellant what
the contents of the plastic bag were. Co-accused Noriel
Lacerna immediately answered that the bag contained his
vomit (t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 4-5).
Skeptical of what appellant and co-accused disclosed as
regards the contents of the plastic bag, PO3 Valenzuela
made a hole in the bag and peeped inside. He found
several blocks wrapped in newspaper, with the distinct smell
of marijuana emanating from it. PO3 Valenzuela opened
 MALUM PROHIBITUM
one of the boxes and saw dried marijuana leaves. He told
appellant and co-accused that the contents of the bag
were marijuana, which co-accused readily
affirmed. According to both Lacernas, the bag was a
padala of their uncle. Specifically, they claimed that the
bag was sent by their uncle, who happened to be in Baguio
City, for shipment to Iloilo (t.s.n., PO3 Valenzuela, Nov. 11,
1992, pp. 5-7; Nov. 20, 1992, pp. 8-10).
Appellant and co-accused, and the plastic bag
containing blocks of marijuana were brought by PO3
Valenzuela and PO3 Camero to the WPD Headquarters on
UN Avenue, Manila.[10] At about 9:00 p.m. of the same day,
both appellant and co-accused were turned over to PO3
Rafael Melencio for investigation while the blocks were
turned over to Lt. de Soto (tsn., PO3 Melencio, Dec. 11, 1992,
pp. 3-5. 20).
Lt. de Soto counted the blocks of marijuana, numbering
eighteen (18) in all. Each block was wrapped in
newspaper. After seeing what the contents of the blocks
were, the specimens (Exhs. B to B-19) were brought to the
National Bureau of Investigation (NBI) for further
examination.[11] On the other hand, PO3 Melencio
investigated appellant and co-accused, informing them of
their constitutional rights during a custodial
investigation. Thereafter, he prepared the Affidavit of
Apprehension and the Booking Sheet and Arrest Report
(Exhs. A, G, List of Exhibits, pp. 1, 15; tsn., PO3 Melencio, Dec.
11, 1992, pp. 15-24).
NBI Forensic Chemist Aida A. Pascual examined the
eighteen (18) confiscated blocks which tested positive of
containing marijuana (Exhs. C, F to F-9. List of Exhibits, pp. 2-
14; tsn., A. Pascual, Dec. 2, 1992, pp. 2-5).
Version of the Defense
Appellant sets up the defense of denial, alleging that the
blue plastic bag was owned by his uncle who requested him
to bring it to Iloilo. He also denied knowing that it contained
marijuana. In his Brief prepared by the Public Attorneys
Office, he narrated his version of the factual circumstances
of this case, as follows:[12]
On September 12, 1992, at about 2:00 P.M., accused
Marlon and Noriel Lacerna were riding in a taxicab on their
way to (the) North Harbor to board a boat bound for Iloilo
City. While plying along Pier 15 their taxicab was flagged
down by a patrol mobile car. Accused Marlon Lacerna
(appellant herein) was sitting in front while accused Noriel
Lacerna was at the back of the taxicab. The accused
carried two bags. One bag contained their personal
belongings and the other bag contained things which their
uncle Edwin Lacerna asked them to bring along. When their
taxicab was stopped, the two policemen in the Mobile car
requested them that they and their baggage be
searched. Confident that they have not done anything
wrong, they allowed to be searched. During the (search),
the two accused were not allowed to alight from the
taxicab. The knapsack bag which contained their clothes
was first examined in front of them. The second bag was
taken out from the taxi and was checked at the back of the
taxicab. The accused were not able to see the checking
when the policemen brought the plastic bag at the back of
the taxi.After checking, the policemen told them its
positive. The accused were (asked) to alight and go to the
patrol car. They were brought to the WPD Headquarters at
United Nations. While there, they were brought inside a
room. They asked what wrong they have done but the
policemen told them to wait for Major Rival. At about 8:00
oclock P.M., Major Rival talked to them and asked them
where the baggage came from and they answered that it
was given to them by their uncle. Then Major Rival asked
them to hold the marijuana and pictures were taken. Later,
they were brought inside the cell where they were
maltreated by the Kabo. The Kabo forced them to admit
ownership of the marijuana. Noriel was boxed on the chest,
blindfolded and a plastic (bag) was placed on his neck and
was strangled. The mauling took place for about 30 minutes
inside the toilet. They refused to sign the Booking and Arrest
Page 31 of 41
Report but they impressed their fingerprint on a white bond
paper. They were brought by Melencio to the Inquest
Prosecutor at the City Hall. On the way to the Inquest
Prosecutor, Melencio told them to admit the charge against
them before the Inquest Fiscal, because if they will deny,
something (would happen) to them in the afternoon and
Melencio even uttered to them vulva of your
mother. Because they were apprehensive and afraid, they
admitted the charge before the Inquest Fiscal.
(Appellant) Marlon Lacerna first met his uncle Edwin
Lacerna at Munoz Market. The second time was on
September 11, 1992, when his uncle went to his brothers
house in Caloocan City and requested him to bring his
(uncle) personal belongings upon learning that he (Marlon)
is leaving for Iloilo city the next day, September 12, 1992. He
told his uncle to bring his personal belongings either in the
evening of that day or the following day at the (Grand)
Central (Station), Monumento because he was going to buy
a ticket for Noriel as he intend (sic) to bring the latter with
him in going home to the province. His uncle already gave a
ticket for him. When he and Noriel (arrived) at the Grand
Central at about 10:00 oclock A.M. on September 12, 1992,
their uncle was already there. The latter placed the plastic
bag besides their baggages. They no longer inspected the
contents of the bag as the same was twisted and knotted
on top. After getting a ticket from the office of Don Sulpicio
Lines, Marlon told Noriel to hail a taxi and then they
proceeded to the pier.
(Appellants) purpose in going home to Iloilo was to get all
the requirements needed in his application to enter the
Marines.
Accused Noriel just arrived in Manila three days before
September 12, 1992 to look for a job and was staying with
(appellant) at Caloocan City. In the evening of September
11, 1992, (appellant) requested him to come xxx with him to
Iloilo and assured him that he (would) be the one to pay for
(Noriels) fare. (TSN., January 6, 1993, pp. 3-23; January 8,
1993, pp. 2-12; January 11, 1993, pp. 2-18; January 20, 1992,
pp. 2-6; January 22, 1993, pp. 2-14)
Ruling of the Trial Court
The court a quo observed that appellant could not be
convicted of delivering prohibited drugs because the
Information did not allege that he knowingly delivered
marijuana. Neither could he be convicted of transporting or
dispatching in transit such prohibited drugs because these
acts were not alleged in the Information. The trial court
mused further that appellant could not be convicted of
selling marijuana because the elements constituting this
crime were not proven. However, the Information charged
appellant with giving away to another prohibited drugs, a
charge which was different from delivery defined under
Section 2 (f) [13] of R.A. 6245, as amended. Citing People vs.
Lo Ho Wing,[14] the trial court ruled that giving away to
another is akin to transporting prohibited drugs, a malum
prohibitum established by the mere commission of said
act.Thus, the court a quo convicted appellant of giving
away marijuana to another on the following premise:[15]
It is not denied by (appellant) that he did give to his co-
accused cousin Noriel Lacerna the bundled 18 blocks of
marijuana who thereupon seated himself at the rear of the
taxi with the marijuana. His claim that he did not know the
contents of the blue plastic bag can hardly be believed
because it is within judicial notice that the marijuana
contents readily emits a pungent odor so characteristic of
marijuana as what happened when the 18 blocks were
displayed in open Court. But as stated, guilty knowledge is
not required by the phrase GIVE AWAY TO ANOTHER (Sec.
4). It was clearly established that he gave the stuff to
another, that is, to his co-accused Noriel Lacerna. The law
does not distinguish as to whether the word another refers to
a third person other than a co-accused or to a co-
accused. The information, as in the case at bar, need not
allege guilty knowledge on the part of Marlon Lacerna in
giving away to another the marijuana. (Appellant) should,
therefor be found culpable for violating Section 4 of RA 6425,
 MALUM PROHIBITUM
as amended, as charged for giving away to another the
marijuana.
Accused Noriel Lacerna, on the other hand, was
acquitted for insufficiency of evidence. The court a
quo reasoned that it cannot be said that he did give away
to another the marijuana for it was (appellant) who gave
the marijuana to (Noriel). Besides, unlike appellant who was
urbanized in mannerism and speech, Noriel Lacerna
manifested probinsyano traits and was, thus, unlikely to have
dealt in prohibited drugs.
The Issues
Appellant objects to the trial courts Decision and assigns
the following errors:[16]
I Five generally accepted exceptions to the rule against
The lower court erred in making a sweeping statement
that the act of giving away to another() is not defined under
R.A. 6425 specifically requiring knowledge what intent one
(sic) is passing is a dangerous drug, as contradistinguished
from the term deliver; where knowledge is required.
II
The lower court erred in not giving credence to the
assertion of accused-appellant that he had no knowledge
that what were inside the plastic bag given to him by his
uncle were marijuana leaves.
III
The trial court erred in convicting accused-appellant
despite failure of the prosecution to prove his guilt beyond
reasonable doubt.
The Courts Ruling
After meticulously reviewing the records of the case and
taking into account the alleged errors cited above and the
argument adduced in support thereof, the Court believes
that the issues can be restated as follows: (1) Was appellants
right against warrantless arrest and seizure violated? (2) Was
the trial court correct in convicting appellant for giving away
to another 18 blocks of marijuana? and (3) May the
appellant be held guilty of illegal possession of prohibited
drugs? The Court answers the first two questions in the
negative and the third in the affirmative.
First Issue: Appellants Right Against
Warrantless Search and Seizure
The defense argues that the bricks of marijuana were
inadmissible in evidence as they were obtained through
illegal search and seizure. Appellant alleges that at the time
of the search and seizure, he and his co-accused were not
committing any crime as they were merely riding a taxicab
on the way to Pier 15, North Harbor in Manila. Hence, the
precipitate arrest and seizure violated their constitutional
right and the marijuana seized constituted fruits of the
poisonous tree.
The Solicitor General disagrees, contending that the
search and seizure were consistent with recent
jurisprudential trend liberalizing warrantless search and
seizure where the culprits are riding moving vehicles,
because a warrant cannot be secured in time to
apprehend the mobile target.
Both contentions are inaccurate. In the recent case
of People vs. Cuison,[17] this Court reiterated the principles
governing arrest, search and seizure. To summarize, let us
begin with Section 2, Article III of the 1987 Constitution which
provides:
SEC. 2. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
Page 32 of 41
The Constitution further decrees that any evidence
obtained in violation of the provision mentioned is
inadmissible in evidence:
SEC. 3. x x x
(2) Any evidence obtained in violation of x x x the
preceding section shall be inadmissible for any purpose in
any proceeding.
However, not being absolute, this right is subject to legal
and judicial exceptions. The Rules of Court, Section 12 of
Rule 126, provides that a person lawfully arrested may be
searched for dangerous weapons or anything which may be
used as proof of the commission of an offense, without a
search warrant.
warrantless arrest have also been judicially formulated as
follows: (1) search incidental to a lawful arrest, (2) search of
moving vehicles, (3) seizure in plain view, (4) customs
searches, and (5) waiver by the accused themselves of their
right against unreasonable search and seizure.[18]Search and
seizure relevant to moving vehicles are allowed in
recognition of the impracticability of securing a warrant
under said circumstances. In such cases however, the
search and seizure may be made only upon probable
cause, i.e., upon a belief, reasonably arising out of
circumstances known to the seizing officer, that an
automobile or other vehicle contains an item, article or
object which by law is subject to seizure and
destruction.[19] Military or police checkpoints have also been
declared to be not illegal per se as long as the vehicle is
neither searched nor its occupants subjected to body
search, and the inspection of the vehicle is merely visual.[20]
In the case at bar, the taxicab occupied by appellant
was validly stopped at the police checkpoint by PO3
Valenzuela. It should be stressed as a caveat that the search
which is normally permissible in this instance is limited to
routine checks -- visual inspection or flashing a light inside
the car, without the occupants being subjected to physical
or body searches. A search of the luggage inside the vehicle
would require the existence of probable cause.[21]
In applicable earlier Decisions, this Court held that there
was probable cause in the following instances: (a) where
the distinctive odor of marijuana emanated from the plastic
bag carried by the accused;[22] (b) where an informer
positively identified the accused who was observed to have
been acting suspiciously;[23] (c) where the accused fled
when accosted by policemen;[24] (d) where the accused
who were riding a jeepney were stopped and searched by
policemen who had earlier received confidential reports
that said accused would transport a large quantity of
marijuana;[25] and (e) where the moving vehicle was
stopped and searched on the basis of intelligence
information and clandestine reports by a deep penetration
agent or spy -- one who participated in the drug smuggling
activities of the syndicate to which the accused belonged --
that said accused were bringing prohibited drugs into the
country.[26]
In the case at hand, however, probable cause is not
evident. First, the radio communication from General
Nazareno, which the arresting officers received and which
they were implementing at that time, concerned possible
cases of robbery and holdups in their area.[27] Second, Noriel
Lacernas suspicious reactions of hiding his face and
slouching in his seat when PO3 Valenzuelas car passed
alongside the taxicab might have annoyed the latter, or any
other law enforcer, and might have caused him to suspect
that something was amiss. But these bare acts do not
constitute probable cause to justify the search and seizure of
appellants person and baggage. Furthermore,
the Claudio ruling cannot be applied to this case because
the marijuana was securely packed inside an airtight plastic
bag and no evidence, e.g., a distinctive marijuana odor,
was offered by the prosecution.
Nonetheless, we hold that appellant and his baggage
were validly searched, not because he was caught
 MALUM PROHIBITUM
in flagrante delicto, but because he freely consented to the
search. True, appellant and his companion were stopped by
PO3 Valenzuela on mere suspicion -- not probable cause --
that they were engaged in a felonious enterprise. But
Valenzuela expressly sought appellants permission for the
search. Only after appellant agreed to have his person and
baggage checked did the actual search commence. It was
his consent which validated the search, waiver being a
generally recognized exception to the rule against
warrantless search.[28]
We are aware that this Court in Aniag, Jr. vs.
COMELEC outlawed a search based on
an implied acquiescence, because such acquiescence was
not consent within the purview of the constitutional
guaranty, but was merely passive conformity to the search
given under intimidating and coercive circumstances.[29] In
the case before us, however, appellant himself who was
urbanized in mannerism and speech expressly said that he
was consenting to the search as he allegedly had nothing to
hide and had done nothing wrong.[30] In his brief, appellant
explicitly, even if awkwardly, reiterated this: Confident that
they [the accused] have not done anything wrong, they
allowed to be searched. This declaration of appellant is a
confirmation of his intelligent and voluntary acquiescence to
the search. The marijuana bricks were, therefore, obtained
legally through a valid search and seizure. They were
admissible in evidence; there was no poisonous tree to
speak of.
Second Issue: Did Appellant
Give Away the Prohibited Drug?
The trial court justified the conviction of appellant for
giving away to another the prohibited drugs, because he
literally handed to Noriel the plastic bag containing
marijuana, manually transferring the plastic bag from the
front seat to the backseat of the taxicab. We hold, however,
that this is not the act penalized by the Dangerous Drugs Act
of 1972.
Section 4 of R.A. 6425, as amended, the violation of
which is charged in the Information, penalizes any person
who, unless authorized by law, shall sell, administer,
deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any
of such transactions.
The phrase give away is commonly defined as to make a
present of; to donate, or to make a sacrifice.[31] As used in a
statute making it an offense to sell, give away, or otherwise
dispose of liquor without a license, this phrase was construed
as extending only to a disposition in ejusdem generis with a
sale or a gift.[32] It is synonymous with to furnish, a broad term
embracing the acts of selling and giving away with the
intent of transferring ownership. Selling by itself is one distinct
mode of committing the offense, and furnishing is intended
only to include other modes of affording something to others
besides selling it.[33]
As distinguished from delivery, which is an incident of
sale, giving away is a disposition other than a sale. It is,
therefore, an act short of a sale which involves no
consideration. The prohibited drug becomes an item or
merchandise presented as a gift or premium (giveaway),
where ownership is transferred.
According to appellant, he gave the plastic bag and the
knapsack to Noriel because the latter got into the taxicab
first and because there was more room in the backseat than
in the front. By handing the plastic bag to Noriel, appellant
cannot be punished for giving away marijuana as a gift or
premium to another. In Cuison,[34] this Court acquitted an
accused of carrying and transporting prohibited drugs
because the act per se of handing over a baggage at the
airport cannot in any way be considered criminal.
Further, adopting the trial courts interpretation would
lead to absurd conclusions. Following the trial courts line of
reasoning, Noriel should have been held liable for the same
crime when he gave the plastic bag to PO3 Valenzuela for
the latters inspection. And yet, the trial court inexplicably
Page 33 of 41
acquitted him. Valenzuela would similarly be criminally
culpable as he testified that he turned over the plastic bag
to his superior, Lt. de Soto. It is a well-settled rule that statutes
should receive a sensible construction so as to give effect to
the legislative intention and to avoid an unjust or an absurd
conclusion.[35]
Third Issue:
May Appellant Be Convicted
of Illegal Possession?
Appellants exoneration from giving away a prohibited
drug to another under Section 4 of the Dangerous Drugs Act
does not, however, spell freedom from all criminal liability. A
conviction for illegal possession of prohibited drugs,
punishable under Section 8 of the same Act, is clearly
evident.
In People vs. Tabar,[36] the Court convicted appellant of
illegal possession under Section 8 of said Act, although he
was charged with selling marijuana under Section 4, Article II
thereof.[37]
The prevailing doctrine is that possession of marijuana is
absorbed in the sale thereof, except where the seller is
further apprehended in possession of another quantity of the
prohibited drugs not covered by or included in the sale and
which are probably intended for some future dealings or use
by the seller.[38]
Possession is a necessary element in a prosecution for
illegal sale of prohibited drugs. It is indispensable that the
prohibited drug subject of the sale be identified and
presented in court.[39] That the corpus delicti of illegal sale
could not be established without a showing that the
accused possessed, sold and delivered a prohibited drug
clearly indicates that possession is an element of the
former. The same rule is applicable in cases of delivery of
prohibited drugs and giving them away to another.
In People vs. Manzano,[40] the Court identified the
elements of illegal sale of prohibited drugs, as follows: (1) the
accused sold and delivered a prohibited drug to another,
and (2) he knew that what he had sold and delivered was a
dangerous drug. Although it did not expressly state it, the
Court stressed delivery, which implies prior possession of the
prohibited drugs. Sale of a prohibited drug can never be
proven without seizure and identification of the prohibited
drug, affirming that possession is a condition sine qua non.
It being established that illegal possession is an element
of and is necessarily included in the illegal sale of prohibited
drugs, the Court will thus determine appellants culpability
under Section 8.
From the penal provision under consideration and from
the cases adjudicated, the elements of illegal possession of
prohibited drugs are as follows: (a) the accused is in
possession of an item or object which is identified to be a
prohibited drug; (b) such possession is not authorized by law;
and (c) the accused freely and consciously possessed the
prohibited drug.[41]
The evidence on record established beyond any doubt
that appellant was in possession of the plastic bag
containing prohibited drugs, without the requisite
authority. The NBI forensic chemists identification of the
marijuana or Indian hemp was conclusive.
Appellant protests the trial courts finding that he knew
that the plastic bag contained marijuana. The lower court
ruled that appellant could not have possibly missed the
pervasive pungent smell emitted by marijuana which was
duly noted when the marijuana was exhibited in open
court. This reasoning, however, is not supported by the
evidence; the plastic bag, at the time of the search and
seizure, was twisted and tied at the top, and thus
airtight. PO3 Valenzuela did not even notice this pervasive
characteristic smell until he poked a hole in the plastic bag
and unwrapped the newspaper covering one of
the marijuana bricks.
It is well-settled that criminal intent need not be proved in
the prosecution of acts mala prohibita. On grounds of public
 MALUM PROHIBITUM
policy and compelled by necessity, courts have always
recognized the power of the legislature, as the greater
master of things, to forbid certain acts in a limited class of
cases and to make their commission criminal without regard
to the intent of the doer.[42] Such legislative enactments are
based on the experience that repressive measures which
depend for their efficiency upon proof of the dealers
knowledge or of his intent are of little use and rarely
accomplish their purposes; besides, the prohibited act is so
injurious to the public welfare that, regardless of the persons
intent, it is the crime itself.[43]
This, however, does not lessen the prosecutions burden
because it is still required to show that the prohibited act
was intentional.[44] Intent to commit the crime and intent to
perpetrate the act must be distinguished. A person may not
have consciously intended to commit a crime; but if he did
intend to commit an act, and that act is, by the very nature
of things, the crime itself, then he can be held liable for
the malum prohibitum.[45] Intent to commit the crime is not
necessary, but intent to perpetrate the act prohibited by the
special law must be shown. In Bayona, the Court
declared:[46]
xxx The law which the defendant violated is a statutory
provision, and the intent with which he violated it is
immaterial. x x x x The act prohibited by the Election Law
was complete. The intention to intimidate the voters or to
interfere otherwise with the election is not made an essential
element of the offense. Unless such an offender actually
makes use of his revolver, it would be extremely difficult, if
not impossible, to prove that he intended to intimidate the
voters.
The rule is that in acts mala in se there must be a criminal
intent, but in those mala prohibita it is sufficient if the
prohibited act was intentionally done. Care must be
exercised in distinguishing the difference between the intent
to commit the crime and the intent to perpetrate the act. * *
* (U.S. vs. Go Chico, 14 Phil., 128).
In illegal possession of prohibited drugs under Section 8 of
the Dangerous Drugs Act, the prosecution is not excused
from proving that possession of the prohibited act was done
freely and consciously, which is an essential element of the
crime.
In the case at bar, appellant was found to have in his
possession a plastic bag containing 18 kg of marijuana
formed into 18 bricks which were separately wrapped. His
possession thereof gives rise to a disputable presumption
under Section 3[j], Rule 131 of the Rules of Court,[47] that he is
the owner of such bag and its contents. His bare,
unpersuasive, feeble and uncorroborated disavowal -- that
the plastic bag was allegedly given to him by his uncle
without his knowing the contents -- amounts to a denial
which by itself is insufficient to overcome this
presumption.[48] Besides, this defense, unless substantiated by
clear evidence, is invariably viewed with disfavor by courts,
for it can just as easily be concocted. Verily, it is a common
and standard defense ploy in most prosecutions involving
dangerous drugs.[49]
Further, the trial court did not give credence to
appellants denial. It is axiomatic that appellate courts
accord the highest respect to the assessment of witnesses
credibility by the trial court, because the latter was in a
better position to observe their demeanor and deportment
on the witness stand.[50] The defense failed to present
sufficient reasons showing that the trial court had overlooked
or misconstrued any evidence of substance that would
justify the reversal of its rejection of appellants defense of
denial.
Appellant is, therefore, liable for illegal possession of
prohibited drugs under Section 8 of the Dangerous Drugs
Act.[51]
WHEREFORE, the assailed Decision is
hereby MODIFIED. Appellant is CONVICTED of illegal
possession of prohibited drugs under Section 8 of R.A.
6425; SENTENCED, in accordance with the Indeterminate
Page 34 of 41
Sentence Law, to eight (8) years as minimum to twelve (12)
years as maximum; and ORDERED to pay a fine of twelve
thousand pesos (P12,000.00). Costs de oficio.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 75243 March 16, 1987
PAZ M. DINGLE, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE
PHILIPPINES, respondents.
Floriano R. Par for petitioner.
PARAS, J.:
Paz M. Dingle, herein petitioner, and her husband Nestor
Dingle, are owners of a family business known as "PMD
Enterprises" which was managed by the latter.
Nestor Dingle entered into a transaction with one Ernesto
Ang whereby PMD Enterprises would sell 400 of washed silica
sand to Ang and Ang gave as advanced payment a
certain amount to Nestor Dingle.
Nestor Dingle, however, failed to deliver the 400 tons of
washed silica sand, so he issued to Ang two (2) postdated
checks drawn by him and his wife as authorized signatories
of PMD Enterprises in the total amount of P51,885.93
representing the value of the undelivered washed silica
sand. The checks were dishonored for being "drawn against
insufficient funds." When informed of the dishonor Nestor
Dingle replaced the checks with one (1) Equitable Banking
Corporation Check in the amount of P51,885.93 which was
also signed by both spouses. This was also dishonored. Two
(2) letters were sent to and received by Nestor Dingle for the
payment of the amount covered by the dishonored check.
No payment was made. Hence, the spouses were charged
with the violation of BP Blg. 22, otherwise known as the Anti-
Bouncing Check Law.
The trial court found them guilty as charged and
sentenced each of them to suffer imprisonment of six (6)
months of arresto mayor, to pay a fine of P52,000.00 and to
indemnify the offended party the amount of P51,885.92.
Paz Dingle appealed and the Intermediate Appellate
Court (now the Court of Appeals) 1 modified the decision by
imposing. upon her the penalty of imprisonment for a period
of only 30 days.
Insisting on her innocence, Paz Dingle filed the instant
petition contending that she did not incur any criminal
liability under BP 22 because she had no knowledge of the
dishonor of the checks issued by her husband and for that
matter even the transaction of her husband with Ang.
The Solicitor General in his Memorandum recommended
that petitioner be acquitted of the instant charge because
from the testimony of the sole prosecution witness Ernesto
Ang, it was established that he dealt exclusively with Nestor
Ang. Nowhere in his testimony is the name of Paz Dingle ever
mentioned in connection with the transaction and with the
issuance of the check. In fact, Ang categorically stated that
it was Nestor Dingle who received his two (2) letters of
demand. This lends credence to the testimony of Paz Dingle
that she signed the questioned checks in blank together
with her husband without any knowledge of its issuance,
much less of the transaction and the fact of dishonor.
In the case of Florentino Lozano vs. Hon. Martinez,
promulgated December 18, 1986, it was held that an
essential element of the offense is knowledge on the part of
the maker or drawer of the check of the insufficiency of his
funds.
WHEREFORE, on reasonable doubt, the assailed decision
of the Intermediate Appellate Court (now the Court of
 MALUM PROHIBITUM
Appeals) is hereby SET ASIDE and a new one is hereby
rendered ACQUITTING petitioner on reasonable doubt.
SO ORDERED.
Fernan (Chairman), Alampay, Gutierrez, Jr., Padilla, Bidin
and Cortes, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 75954 October 22, 1992
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial
Court, Branch 52, Manila, and K.T. LIM alias MARIANO
LIM, respondents.
BELLOSILLO, J.:
Failing in his argument that B.P. 22, otherwise known as
the "Bouncing Check Law", is unconstitutional, 1 private
respondent now argues that the check he issued, a
memorandum check, is in the nature of a promissory note,
hence, outside the purview of the statute. Here, his
argument must also fail.
The facts are simple. Private respondent K.T. Lim was
charged before respondent court with violation of B.P. 22 in
an Information alleging ––
That on . . . January 10, 1985, in the City of Manila . . . the
said accused did then and there wilfully, unlawfully and
feloniously make or draw and issue to Fatima Cortez Sasaki .
. . Philippine Trust Company Check No. 117383 dated
February 9, 1985 . . . in the amount of P143,000.00, . . . well
knowing that at the time of issue he . . . did not have
sufficient funds in or credit with the drawee bank . . . which
check . . . was subsequently dishonored by the drawee bank
for insufficiency of funds, and despite receipt of notice of
such dishonor, said accused failed to pay said Fatima Cortez
Sasaki the amount of said check or to make arrangement
for full payment of the same within five (5) banking days
after receiving said notice. 2
On 18 July 1986, private respondent moved to quash the
Information of the ground that the facts charged did not
constitute a felony as B.P. 22 was unconstitutional and that
the check he issued was a memorandum check which was
in the nature of a promissory note, perforce, civil in nature.
On 1 September 1986, respondent judge, ruling that B.P. 22
on which the Information was based was unconstitutional,
issued the questioned Order quashing the Information.
Hence, this petition for review on certiorari filed by the
Solicitor General in behalf of the government.
Since the constitutionality of the "Bouncing Check Law"
has already been sustained by this Court in Lozano
v.Martinez 3 and the seven (7) other cases decided jointly
with it, 4 the remaining issue, as aptly stated by private
respondent in his Memorandum, is whether a memorandum
check issued postdated in partial payment of a pre-existing
obligation is within the coverage of B.P. 22.
Citing U.S. v. Isham, 5 private respondent contends that
although a memorandum check may not differ in form and
appearance from an ordinary check, such a check is given
by the drawer to the payee more in the nature of
memorandum of indebtedness and, should be sued upon in
a civil action.
We are not persuaded.
A memorandum check is in the form of an ordinary
check, with the word "memorandum", "memo" or "mem"
written across its face, signifying that the maker or drawer
engages to pay the bona fide holder absolutely, without
any condition concerning its presentment. 6 Such a check is
an evidence of debt against the drawer, and although may
not be intended to be presented, 7 has the same effect as
Page 35 of 41
an ordinary check, 8 and if passed to the third person, will
be valid in his hands like any other check. 9
From the above definition, it is clear that a memorandum
check, which is in the form of an ordinary check, is still drawn
on a bank and should therefore be distinguished from a
promissory note, which is but a mere promise to pay. If
private respondent seeks to equate memorandum check
with promissory note, as he does to skirt the provisions of B.P.
22, he could very well have issued a promissory note, and
this would be have exempted him form the coverage of the
law. In the business community a promissory note, certainly,
has less impact and persuadability than a check.
Verily, a memorandum check comes within the meaning
of Sec. 185 of the Negotiable Instruments Law which defines
a check as "a bill of exchange drawn on a bank payable on
demand." A check is also defined as " [a] written order or
request to a bank or persons carrying on the business of
banking, by a party having money in their hands, desiring
them to pay, on presentment, to a person therein named or
bearer, or to such person or order, a named sum of
money," citing 2 Dan. Neg. Inst. 528; Blair v. Wilson, 28 Gratt.
(Va.) 170; Deener v. Brown, 1 MacArth. (D.C.) 350; In re
Brown, 2 Sto. 502, Fed. Cas. No. 1,985. See Chapman
v. White, 6 N.Y. 412, 57 Am. Dec 464. 10 Another definition of
check is that is "[a] draft drawn upon a bank and payable
on demand, signed by the maker or drawer, containing an
unconditional promise to pay a sum certain in money to the
order of the payee," citing State v.Perrigoue, 81 Wash, 2d
640, 503 p. 2d 1063, 1066. 11
A memorandum check must therefore fall within the
ambit of B.P. 22 which does not distinguish but merely
provides that "[a]ny person who makes or draws and
issues any check knowing at the time of issue that he does
not have sufficient funds in or credit with the drawee bank . .
. which check is subsequently dishonored . . . shall be
punished by imprisonment . . ." (Emphasis supplied ). 12 Ubi lex
no distinguit nec nos distinguere debemus.
But even if We retrace the enactment of the "Bouncing
Check Law" to determine the parameters of the concept of
"check", We can easily glean that the members of the then
Batasang Pambansa intended it to be comprehensive as to
include all checks drawn against banks. This was particularly
the ratiocination of Mar. Estelito P. Mendoza, co-sponsor of
Cabinet Bill No. 9 which later became B.P. 22, when in
response to the interpellation of Mr. Januario T. Seño, Mr.
Mendoza explained that the draft or order must be
addressed to a bank or depository, 13 and accepted the
proposed amendment of Messrs. Antonio P. Roman and
Arturo M. Tolentino that the words "draft or order", and
certain terms which technically meant promissory notes,
wherever they were found in the text of the bill, should be
deleted since the bill was mainly directed against the
pernicious practice of issuing checks with insufficient or no
funds, and not to drafts which were not drawn against
banks. 14
A memorandum check, upon presentment, is generally
accepted by the bank. Hence it does not matter whether
the check issued is in the nature of a memorandum as
evidence of indebtedness or whether it was issued is partial
fulfillment of a pre-existing obligation, for what the law
punishes is the issuance itself of a bouncing check 15 and not
the purpose for which it was issuance. The mere act of
issuing a worthless check, whether as a deposit, as a
guarantee, or even as an evidence of a pre-existing debt,
is malum prohibitum. 16
We are not unaware that a memorandum check may
carry with it the understanding that it is not be presented at
the bank but will be redeemed by the maker himself when
the loan fall due. This understanding may be manifested by
writing across the check "Memorandum", "Memo" or "Mem."
However, with the promulgation of B.P. 22, such
understanding or private arrangement may no longer
prevail to exempt it from penal sanction imposed by the law.
To require that the agreement surrounding the issuance of
check be first looked into and thereafter exempt such
 MALUM PROHIBITUM
issuance from the punitive provision of B.P. 22 on the basis of
such agreement or understanding would frustrate the very
purpose for which the law was enacted — to stem the
proliferation of unfunded checks. After having effectively
reduced the incidence of worthless checks changing hands,
the country will once again experience the limitless
circulation of bouncing checks in the guise of memorandum
checks if such checks will be considered exempt from the
operation of B.P. 22. It is common practice in commercial
transactions to require debtors to issue checks on which
creditors must rely as guarantee of payment. To determine
the reasons for which checks are issued, or the terms and
conditions for their issuance, will greatly erode the faith the
public responses in the stability and commercial value of
checks as currency substitutes, and bring about havoc in
trade and in banking communities. 17
WHEREFORE, the petition is GRANTED and the Order of
respondent Judge of 1 September 1986 is SET ASIDE.
Consequently, respondent Judge, or whoever presides over
the Regional Trial Court of Manila, Branch 52, is hereby
directed forthwith to proceed with the hearing of the case
until terminated.
SO ORDERED.
Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino,
Medialdea, Regalado, Davide, Jr., Romero, Nocon, Bellosillo
and Melo, JJ., concur.
Narvasa, C.J., is on leave.
EN BANC
[G.R. No. L-31622. August 31, 1970.]
JOSE C. LUCIANO, Petitioner, v. MAXIMO ESTRELLA, TEOTIMO
GEALOGO, JUSTINO VENTURA, PEDRO ISON, IGNACIO
BABASA, BERNARDO NONATO, PROVINCIAL FISCAL B. JOSE
CASTILLO, COURT OF FIRST INSTANCE OF RIZAL, BRANCH VI,
PASIG, RIZAL, PEOPLE OF THE PHILIPPINES, AND THE COURT OF
APPEALS, Respondent.
DECISION
REYES, J.B.L., J.:
Original petition for quo warranto, certiorari, prohibition
and injunction filed with this Court by Jose C. Luciano, as
Acting Mayor or Makati, Rizal, to forestall the alleged
impending usurpation by suspended mayor Maximo Estrella
of the position he is presently occupying; and to question
the validity of the orders of the Court of Appeals granting
new trial to the respondents who were convicted in Criminal
Case No. 18821 of the Court of First Instance of Rizal, and
ordering the remand of the records of said criminal case to
the latter court for further proceedings.
Pertinent to the issue in this case are the following
facts:chanrob1es virtual 1aw library
On 18 January 1969, Maximo Estrella, Teotimo Gealogo,
Justino Ventura, Pedro Ison, Ignacio Babasa, Bernardo
Nonato, Eduardo S. Francisco, Cirilo Delmo, Jose San Mateo,
Lutgardo Ambrosio, Ciriaco Alano, Gualberto San Pedro,
Jose Gutierrez, Franco A. Gutierrez were charged with
violation of Sections 3-G and 4-B of Republic Act No. 3019
(Anti-Graft and Corrupt Practices Act) in an information
reading as follows:jgc:chanrobles.com.ph
"That on or about July 26, 1967, and for sometime prior and
subsequent thereto, in the Municipality of Makati, Province
of Rizal, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, Maximo
Estrella, then the Municipal Mayor of Makati, Rizal; Teotimo
Gealogo, Justino Ventura, Pedro Ison, Ignacio Babasa,
Bernardo Nonato, then Municipal Councilors of Makati, Rizal;
Eduardo Francisco, then Municipal Treasurer of Makati, Rizal;
Cirilo Delmo, then Assistant Municipal Treasurer of Makati,
Rizal; Lutgardo Ambrosio, then Chief of Traffic Control
Page 36 of 41
Bureau, Makati Police Department; Ciriaco Alano, then
confidential Private Secretary to the Municipal Mayor,
Gualberto San Pedro, then Provincial Auditor of the Province
of Rizal; Jose Gutierrez and Franco A. Gutierrez, owner
and/or representatives of the JEP Enterprises, respectively,
conspiring, and confederating together, did, then and
there, willfully, unlawfully and feloniously, on behalf of the
Municipal Government of Makati, Rizal, enter into a contract
or transaction with the JEP Enterprises, represented by Jose
Gutierrez and Franco A. Gutierrez, for the delivery and
installation by the JEP Enterprises to the Municipal
Government of Makati, Rizal of fifty-nine (59) units of traffic
deflectors valued at ONE THOUSAND FOUR HUNDRED AND
TWENTY-SIX PESOS AND FIFTY CENTAVOS (P1,426.60) each
unit, that thirty-four (34) units were delivered, installed and
paid for by the Municipality of Makati in favor of the JEP
Enterprises in the amount of FORTY-EIGHT THOUSAND EIGHT
HUNDRED FORTY ONE PESOS (P48,841.00), less ten percent
(10%) retention, which contract or transaction is manifestly
and grossly disadvantageous to the Municipal Government
of Makati, Rizal, to the damage and prejudice of the latter.
"That Jose Gutierrez and Franco C. Gutierrez, being the
owner, manager and/or representatives of the JEP
Enterprises, being private persons, did knowingly induce or
cause the above-mentioned public officials and officers to
enter into the aforementioned contract or
transaction."cralaw virtua1aw library
After due trial, during which the parties presented their
respective documentary and testimonial evidence, the
court rendered judgment on 17 May 1969, finding that the
contract for the purchase of 59 units of traffic deflectors at
P1,436.50 per unit, was manifestly and grossly
disadvantageous to the municipality of Makati, Rizal, and
that it was made possible through a sham bidding and a
series of falsifications participated in by most of the accused.
Thus, Accused Mayor Maximo Estrella, Councilors Teotimo
Gealogo, Justino Ventura, Pedro Ison, Ignacio Babasa and
Bernardo Nonato, Municipal Treasurer Eduardo Francisco,
Provincial Auditor Gualberto San Pedro, Chief of Police Jose
San Mateo, and Traffic Control Bureau Chief Lutgardo
Ambrosio were pronounced guilty as charged, and each
was sentenced to a prison term of 6 years, with perpetual
disqualification to hold public office. Thereupon, the
Provincial Sheriff was ordered to remove said public officials
from office pursuant to the provisions of Republic Act 3019. 1
Accused Franco A. Gutierrez, Cirilo Delmo and Ciriaco
Alano 2 were acquitted for insufficiency of evidence. On the
same day, 17 May 1961, Mayor Estrella and Councilors
Gealogo, Ventura, Ison, Babasa and Nonato perfected their
appeal to the Court of Appeals, where the case was
docketed as CA-G.R. No. 10250-CR.
On 28 November 1969, appellants Estrella, Et Al., filed in the
Court of Appeals a motion for new trial, based allegedly on
newly discovered and material evidence. The evidence
referred to consisted of the testimony of Acting Provincial
Auditor Conrado S. Declaro, who allegedly discovered in the
latter part of May 1969, or after the appealed decision had
been promulgated, that when the contract for the purchase
of the deflectors was entered into, the municipality of
Makati, Rizal, had an overdraft and, therefore, had no funds
available to cover such purchase; and that the contract
(Exhibit "E") does not have the necessary certification by the
municipal treasurer as to the availability of funds therefor.
The motion for new trial was accompanied by an affidavit of
Auditor Declaro to that affect, and a joint affidavit by
appellants stating that they learned of the state of the
municipality’s finances only on 24 July 1969 when so
informed by Declaro.
Required by the Court of Appeals to comment on the
motion, the Solicitor General, representing appellee People
of the Philippines, in effect offered no objection to the
granting of the motion for new trial, opining that favorable
action thereon would do no violence to judicial processes.
 MALUM PROHIBITUM
Consequently, on 31 January 1970, the Court of Appeals,
taking note that the circumstances pointed out by Auditor
Declaro were not, and could not have been, known to the
appellants, that the trial judge who rendered the appealed
judgment had already previously granted a new trial to two
other accused who did not appeal (Lutgardo Ambrosio and
Jose San Mateo), and that the subject matter of the
prosecution is one of first impression and of serious
consequences, granted the motion for new trial and
ordered the remand of the case to the court a quo for new
trial. Also, at the instance of the appellants, another
resolution was promulgated by the appellate court on 9
February 1970 declaring the order (granting new trial) final
and directing the immediate remanding of the records of
the case to the lower court. On 13 February 1970, herein
petitioner filed the present petition for the purposes earlier
stated; and, as prayed for, this Court issued writs of
preliminary injunction against the Court of Appeals, the
Provincial Fiscal of Rizal and the Court of First Instance of
Rizal, to restrain enforcement of the disputed orders of the
appellate court, and the holding of new trial.
The petition questions the legality of the grant of a new trial
by the Court of Appeals, as being contrary to law and
established jurisprudence, averring that the alleged newly
discovered evidence could have been discovered even
before the decision of the Court of First Instance by exercise
of due diligence; that said evidence is not of such character
as would change the result when taken in connection with
the evidence already on record. Petitioner further avers that
the motion and grant of new trial and the remand of the
records to the court below before the expiration of the
standard 15 days set by the Rules, were part of a plan to
secure a reinstatement of the accused to the positions they
formerly held, and the ouster of petitioner from his post as
Acting Mayor of Makati.
Answering the petition, the Solicitor General, on 23 February
1970, sided with the petitioner and pleaded that there was
no showing that the alleged newly discovered evidence
sought to be presented will likely change the result of the
case; that the facts and circumstances surrounding the
contract entered into by appellants-movants for the supply
of traffic deflector mirrors, such as the fact that they were
shown to be grossly overpriced and totally useless for the
purpose for which they were acquired, that the law on
public bidding was not followed, the accused’s undue haste
in pushing the transaction through, the paying of the
voucher before it was signed by the treasurer, the failure of
the accused to see the deflectors themselves, and the
appropriation of money for the purchase before the award
was made, show the guilt of the accused despite the
averred nullity of the contract of purchase without the
treasurer’s previous certificate of availability of funds. The
Solicitor General further pleaded that for a violation of
Section 3 (g) of the Anti-Graft Law (Republic Act No. 3019) it
is not necessary that the contract therein mentioned be
perfectly valid and binding, so long as the transaction
entered into in behalf of the Government be manifestly and
grossly disadvantageous. He prayed that the Court of
Appeals’ order for new trial be vacated.
Private respondents Estrella, Gealogo, Et Al., denied any
intent to reassume their offices unless authorized by the
courts; pleaded that they filed a motion for their
reinstatement in the Court of First Instance, on 14 February
1970, only to stop speculations that they would take over
their respective offices without judicial authorization; and
that the petition had no cause of action for quo warranto
and petitioner had no personality whatsoever to object to
the motion for new trial, not being a party to the criminal
case wherein it was granted; that petitioner is not the
offended party in said criminal case, nor could he question
or appeal from the grant of new trial, since the fiscal and the
Solicitor General are the ones authorized to represent the
People, and these had not opposed the new trial. They
further alleged that the Court of Appeals’ order for new trial
Page 37 of 41
and for the immediate entry thereof were proper and
neither personality to institute the proceedings nor has any
cause of action; that only the People of the Philippines could
do so; that the grant of new trial has become final and
executory; and that certiorariand prohibition are not a
substitute for timely appeal.
We consider it unnecessary, at present, for brevity’s sake, to
render an opinion on the question of petitioner Luciano’s
personality to institute these proceedings in view of the
Solicitor General’s answer to the petition, practically
adopting the latter and praying for the vacating of the
questioned resolutions of the Court of Appeals, granting the
motion for new trial of private respondents Estrella, Et Al.,
and remanding the records to the court of origin without
awaiting the expiration of the normal period of 15 days
prescribed by the Rules for the finality of said orders. Said
answer on behalf of the Republic is and should be treated
as its own petition for certiorari. The Solicitor General, in
representation of the Republic, the prosecutor and
complainant in Criminal Case No. 18821 of Branch VI of the
Court of First Instance of Rizal, has unquestionable
personality to assail the grant of new trial therein. This the
other respondents concede. It is no objection to the
application for a prerogative writ that the Solicitor General
had previously expressed no objection to the respondents,
motion for new trial, as filed in the Court of Appeals, for
nothing bars the Solicitor General from changing opinion
upon a more detailed and thorough consideration of the
facts and the law; and, anyway, it is a well known and
settled rule in our jurisdiction that the Republic, or its
government, is usually not estopped by mistake or error on
the part of its officials or agents. 3 Moreover, the correctness,
validity and legality of a grant of new trial in a criminal case
do not depend upon the consent of the parties thereto, but
upon the grant being made conformably to the
prescriptions of the Rules of Court and the applicable
jurisprudence.
Neither is the action taken by the Solicitor General in this
case barred by the lack of a seasonable appeal or of an
opposite motion to reconsider the questioned resolutions of
the Court of Appeals. In so far as they vacated the
judgment of conviction rendered by the court of origin and
decreed a new trial, said orders resolved no questions with
finality; they were in fact interlocutory, and, therefore, were
not independently appealable (Rule 41, section 2; Rule 122,
section 1, Revised Rules of Court). This Court has ruled that a
grant of new trial is not appealable since it is not a final
judgment. 4 As to the non-filing of a motion for
reconsideration, to the Court of Appeals itself foreclosed this
remedy by ordering the remand of the records to the court
of origin even before the 15-day period for finality had
expired.
Finally, in People v. Bocar (97 Phil. 398), this Court upheld as
proper the filing of a certiorari and prohibition case to
question a trial court’s order granting a motion for new trial.
Explaining the action taken by this Court, we said in that
case:jgc:chanrobles.com.ph
"To avoid any misapprehension and to explain why we
entertained the present petition for certiorari and prohibition
with preliminary injunction over an order granting a motion
for new trial, it should be stated that in civil cases the
granting of a new trial is considered a mere interlocutory
order not subject to appeal or special civil action. The
reason is that the party dissatisfied with the order granting
new trial may, after judgment, appeal from the same and
include in his appeal the supposed error committed in the
issuance of the interlocutory order. However, in a criminal
case like the present, that theory or procedure of appeal in
due time may not be practical or satisfactory for the reason
that at the conclusion of the new trial, the trial court
deciding the case anew, may acquit the defendant and
thereafter the prosecution would have no more opportunity
of bringing before the appellate court the question of the
 MALUM PROHIBITUM
legality or illegality of the order granting a new trial because
the defendant acquitted may plead double jeopardy."
(Cas. cit. at page 414).
We now proceed to the main issue in these proceedings:
was the grant of a new trial for allegedly new discovered
evidence granted improvidently and in grave abuse of
discretion?
We answer the question in the action of the Court of
Appeals was not in conformity with the applicable provisions
of Rule 124, in connection with Rule 121 and Rule 53.
By Section 13 of Rule 124,
"SEC. 13. Motion for new trial. — At any time after the appeal
from the lower court has been Perfected and before the
judgment of the appellate court convicting the accused
becomes final, the latter may move for a new trial on the
ground of newly discovered evidence material to his
defense, the motion to conform to the provisions of section
3, Rule 121."cralaw virtua1aw library
The motion for new trial of respondents Estrella, Et
Al., Accused in the court below is anchored on Section 2 (b)
of Rule 121, i.e., that new and material evidence has been
discovered which (1) the defendant could not with
reasonable diligence have discovered and produced at the
trial; and (2) which if introduced and admitted would
probably change the judgment.
Now, it will be recalled that the proffered new evidence
consisted of the testimony of auditor Conrado Declaro,
substantially to the effect that after testifying at the trial in
the court of origin he discovered for the first time that the
Municipality of Makati had an overdraft and, therefore, did
not have necessary funds to cover such purchase; that upon
examination of the contract itself, it was found to be without
the necessary certification of the municipal treasurer
regarding availability of funds therefor; that the execution of
the contract without such certificate of the municipal
treasurer renders the contract null and void, pursuant to
Sections 607 and 608 of the Revised Administrative Code;
that the foregoing information was relayed by Declaro to
respondents only in July, 1969, or after the promulgation of
the decision in the criminal case and the said respondents
had perfected their appeal to the Court of Appeals.
Measured against the recognized standard on newly-
discovered evidence, the above testimony of the auditor
clearly falls short of the requirement for the holding of a new
trial.
First, because for the purposes of the Rules, Declaro’s
detection of the sad condition of the municipality’s finances
can hardly be called a newly-discovered fact. The financial
position of the municipality in 1967 is a matter that the then
incumbent Provincial Auditor of Rizal and Municipal
Treasurer of Makati, who were accused together with the
herein respondents in Criminal Case No. 18821, should have
known all along and could have presented during the
hearing of the case. In fact, it was stated in Declaro’s
affidavit, attached to the motion for new trial, "that actually
the Municipal Treasurer used trust funds of the municipality to
partially pay" (Affidavit. paragraph 5) for the articles initially
delivered (P43,956.90, for the 34 units delivered, at P1,436.50
each less 10% retention), 5 thereby indicating that said
municipal official was actually aware of the lack of
available and uncommitted funds to cover the purchase.
That must even be the reason why he did not certify that
there were available funds for the purpose: because he
knew that there were none. And it is unconceivable that the
other accused did not discover this fact at the time. Besides,
it may be pointed out that for the duration of the criminal
case, i.e., from 18 January 1969 when the information was
filed in court up to 17 May 1969 when the decision was
rendered, respondents were occupying their respective
Page 38 of 41
positions as mayor and councilors of the municipality of
Makati. They could have obtained with facility the
information about the financial condition of the municipal
government when the question contract was entered into
had they wanted to. This, however, they failed to do, and
nothing appears in the records to explain such failure. In one
case, 6 not even the detention of the accused was
considered sufficient justification for his failure to present the
alleged new testimonies, this Court reasoning that he could
have secured and presented the "new" witness during the
original trial, through his relatives and friends, or through
compulsory process. As it is, the evidence now relied upon
by the respondents Estrella, Et Al., amounts to no more than
forgotten proof, the belated uncovering of which would not
justify an order to conduct a new trial. 7
Second, herein respondent municipal officials were charged
with violation of Republic Act 3019 under its Section 3(g), or
specifically, for having entered, on behalf of the
government, into a contract or transaction manifestly and
grossly disadvantageous to the government. It is not at all
difficult to see that to determine the culpability of the
accused under such provision, it need only be established
that the accused is a public officer; that he entered into a
contract or transaction on behalf of the government; and
that such contract or transaction is grossly and manifestly
disadvantageous to that government. In other words, the
act treated thereunder partakes of the nature of a malum
prohibitum; it is the commission of that act as defined by the
law, not the character or effect thereof, that determines
whether or not the provision has been violated. And this
construction would be in consonance with the announced
purpose for which Republic Act 3019 was enacted, which is
the repression of certain acts of Republic officers and private
persons constituting graft or corrupt practices or which may
lead thereto. 8 Note that the law does not merely
contemplate repression of acts that are unlawful or corrupt
per se, but even of those that may lead to or result in graft
and corruption. Thus, to require for conviction under the Anti-
Graft and Corrupt Practices Act that the validity of the
contract or transaction be first proved would be to
enervate, if not defeat, the intention of the Act. For what
would prevent the officials from entering into those kinds of
transactions against which Republic Act 3019 is directed,
and then deliberately omit the observance of certain
formalities just to provide a convenient leeway to avoid the
clutches of the law in the event of discovery and
consequent prosecution? In the present case, assuming
arguendo that the absence of certification by the municipal
treasurer as to availability of covering funds would materially
affect the validity of the contract, that matter would be
immaterial to the determination of respondents’ liability
under Republic Act 3019; so that the discovery of such fact
would not constitute a proper ground to support a motion
for the reopening and retrial of the case.
But the improvidence of the action taken by the Court of
Appeals goes further than the disregard of the specific
requirements that newly discovered evidence should meet
to justify granting a new trial. It goes deeper. Section 17 of
Rule 124, provides that —
"SEC. 17. Application of certain rules in civil to criminal cases.
— The provisions of Rules 46 to 56 relating to procedure in
the Court of Appeals and in the Supreme Court in original as
well as appealed civil cases shall, in so far as they are
applicable and not inconsistent with the provisions of this
rule, he applied to criminal cases."cralaw virtua1aw library
One of the rules thus made applicable to criminal cases is
Rule 53, Section 2 of which requires that in granting or
refusing a new trial "the Court of Appeals shall consider the
new evidence together with that adduced in the Court
below" (Emphasis supplied). The purpose is clearly to have
the new evidence weighed in conjunction with the old, in
order to ascertain whether the new proofs tendered would
probably change the result, as required by Section 2(b) of
 MALUM PROHIBITUM
Rule 121. Nowhere in the questioned resolution does it
appear that both the "new" and the "old" evidence were
considered jointly. In fact, the Court of Appeals could not
then have done so, for the petitioner avers, and it is not
denied, that when the motion for new trial was filed, the
testimony of the witnesses at the original trial was not yet
transcribed.
With these violations of the Rules of Court thus made patent,
we have no alternative but to conclude that the grant of
the motion for new trial by the Court of Appeals was made,
not only in error, but with grave abuse of discretion
amounting to excess of jurisdiction. We are left with no
alternative but to disavow and set aside the actuations of
the Appeals Court.
WHEREFORE, the writ prayed for is granted and the order of
the Court of Appeals granting a new trial for newly
discovered evidence in its Case CA-G.R. No. 10250-CR, as
well as its order remanding the records of the case to the
court of origin, are hereby revoked and set aside. The Court
of Appeals is consequently instructed to recall and proceed
with said criminal case until its termination in conformity with
the applicable law and rules of court.
The preliminary writs of injunction heretofore issued are
made permanent.
SO ORDERED. Costs against private respondents Estrella,
Gealogo, Ventura, Ison, Babasa and Nonato to be paid by
them jointly and severally in favor of the Republic of the
Philippines.
Concepcion, C.J., Dizon, Makalintal, Castro, Fernando,
Teehankee and Barredo, JJ., concur.
Zaldivar and Makasiar, JJ., did not take part.
Villamor, J., abstains.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 81031 February 20, 1989
DR. ARTURO L. ALEJANDRO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and THE HONORABLE
SANDIGANBAYAN, respondents.
Rodolfo B. Fernandez for petitioner.
The Solicitor General for respondent.
PADILLA, J.:
This is a petition for review on certiorari of the decision **
of the Sandiganbayan, dated 30 July 1987, finding petitioner
Dr. Arturo L. Alejandro guilty of the offense of violation of
Section 3(e) of R.A. 3019, known as the Anti-Graft and
Corrupt Practices Act. The factual background of the case is
as follows:
Dr. Arturo L. Alejandro was the duly appointed officer-
incharge (OIC) of the President Ferdinand E. Marcos
Emergency Hospital (FEMEH) in Diffun, Province of Quirino,
from 20 March 1982 until his retirement from the service on 31
July 1982, or for a period of at least four (4) months. The
service record of the petitioner shows that he had been in
the public service since July 1942 until his retirement, serving
the government for forty (40) long years. He first worked at
the Bayombong Hospital in Nueva Viscaya; thereafter, he
was made a resident physician of Mangan Hospital (now
known as Ifugao Community Hospital). He became the
Chief of Itbayan Emergency Hospital in 1965-1971, Mayayao
Emergency Hospital in 1971-1975 and the Aglipay
Emergency Hospital in 1975-1982.1
Page 39 of 41
On 20 March 1982, while still the Chief of Aglipay
Emergency Hospital, petitioner was appointed as OIC of
FEMEH. Petitioner held both positions concurrently, drawing
his salary from the Aglipay Emergency Hospital. He shuttled
from one hospital to the other to attend to and supervise
both hospitals. 2
On 20 September 1982, thirty (30) employees of FEMEH
filed a complaint against petitioner Dr. Arturo L. Alejandro,
Virgilio P. Bunao and Cesar R. Dupa, with the Office of the
President, alleging that during the term of petitioner as OIC
of FEMEH, the hospital received an allotment for the third
quarter of 1982 (July, August and September) in the amount
of P 93,950.00 for personnel services and P74,500.00 for
maintenance and other operating expenses. It is claimed
that upon Petitioner's retirement on 30 July 1982, nothing was
left of the funds of the hospital with the bank except for the
amount of P 168.00, as a result of which, the employees of
the hospital were not paid their salaries and allowances for
the second half of July and for the months of August and
September 1982. 3
Acting on behalf of the President, the Ministry of National
Defense referred the complaint to the Tanodbayan for
appropriate action. Pursuant to such referral, an
investigation was conducted by the NBI. After evaluating
the evidence submitted, the Director of the NBI made a
recommendation for further investigation of the case on the
ground that the specific liabilities of the accused could not
be ascertained due to the absence of vital evidence. 4
The Director of Regional Health Office No. 2 of
Tuguegarao, Cagayan also ordered the Regional Finance
Officer and Accountant to conduct an investigation.
In an information dated 18 September 1985, petitioner Dr.
Arturo L. Alejandro in his then capacity as OIC of FEMEH,
together with Virgilio P. Bunao and Cesar R. Dupa, in their
capacity as Administrative Officer and Bookkeeper of the
hospital, respectively, were charged with the crime of
Technical Malversation before the Sandiganbayan,
docketed as Criminal Case No. 9721. 5
Subsequently, another information was filed against the
same accused for violation of Section 3(e) of the Anti-Graft
and Corrupt Practices Act (R.A. No. 3019), docketed as
Criminal Case No. 10947. The information reads:
That during or between the period July 31, 1982 to
September 30, 1982 in the Municipality of Diffun, Quirino,
Philippines, and within the jurisdiction of this Honorable
Tribunal, accused Dr. Arturo L. Alejandro, Chief of Hospital,
Virgilio A. [sic] Bunao, Administrative Officer, and Cesar R.
Dupa, Bookkeeper, all of President Ferdinand E. Marcos
District Hospital of Diffun, Quirino Province, taking advantage
of their public positions through evident bad faith and/or
gross inexcusable negligence, did then and there wilfully
and unlawfully disbursed [sic] P 116,283.49 for the
maintenance and other operating expenses (MOOE) when
the third quarter 1982 allotment for the purpose was only P
74,500.00, thereby incurring over-expenditure amounting to
P 41,783.49 which latter amount was taken from the P
93,950.00 intended for personnel services resulting in the non-
payment of the salaries, wages and allowances of
employees of aforementioned hospital for the months of
July, August and September 1982, thereby causing undue
injury and damage to the employees of said hospital.
CONTRARY TO LAW. 6
It was established that two (2) finding checks were
released in favor of the hospital in July 1982 for the third
quarter of that same year in the amounts of P 93,950.00 and
P74,500.00, earmarked for personnel services and for
maintenance and other operating expenses, respectively.
Out of the P93,950.00 alloted for personnel services for the
third quarter of 1982, the amount of P45,389.93 was used for
payment of the back salaries of the hospital employees for
the second quarter of 1982, and the amount of P7,610.00
was used to pay for the salaries of the employees for the first
half of July 1982. The remaining balance of P40,950.07 was
spent for maintenance and other operating expenses, as a
 MALUM PROHIBITUM
consequence of which, the hospital employees were not
paid their salaries for the second half of July and for the
whole months of August and September 1982. The allotment
for the third quarter of 1982 for personnel services as well as
the fund reserved for maintenance and operating expenses
had already been used up before the end of the third
quarter or as early as 26 July 1982.
On 27 October 1982, the Regional Health Office
undertook payment of the salaries of the employees of
FEMEH for the remainder of the third quarter of 1982.
After joint hearing of the two (2) criminal cases against
petitioner and his co-accused, the Sandiganbayan
rendered a decision 7 dated 30 July 1987, acquitting the
accused of the charge of Technical Malversation, holding
that there was no proof of diversion of funds. As to the
criminal charge for violation of Section 3(e) of the Anti-Graft
and Corrupt Practices Act, the accused were found guilty
thereof.
The dispositive part of the decision reads as follows:
WHEREFORE, in Criminal Case No. 10947, the Court finds
the accused Dr. Arturo L. Alejandro, Virgilio P. Bunao and
Cesar R. Dupa GUILTY beyond reasonable doubt of the
offense of Violation of Sec. 3 (E) of R.A. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, as
approved on August 17, 1960. Appreciating in favor of the
accused the fact that the accused gave themselves up to
the authorities voluntarily and, there being no circumstances
in aggravation of the offense, the Court sentences each
and every one of the aforesaid accused, namely, Dr. Arturo
L. Alejandro, Virgilio P. Bunao and Cesar R. Dupa, to the
indeterminate penalty of imprisonment of, from ONE YEAR to
THREE YEARS; to perpetual disqualification from holding
public office; and to pay proportionate costs.
No civil liability is adjudged in view of the fact that the
offended parties were paid their back salaries and
allowances on October 27, 1982.
In Criminal Case No. 972 1, upon failure of proof beyond
reasonable doubt, it is the judgment of this Court that the
accused should be, as they are, hereby ACQUITTED of the
offense of Technical Malversation herein charged, with costs
de oficio.
The bail bonds posted by the accused for their temporary
liberty in respect to this case is ordered cancelled.
SO ORDERED. 8
A motion for reconsideration was filed by petitioner Dr.
Arturo L. Alejandro and Cesar R. Dupa, but the same was
denied in a resolution dated 1 December 1987. 9 From the
aforequoted decision, petitioner filed the appeal at bar
questioning his conviction for alleged violation of Section
3(e) of the Anti-Graft and Corrupt Practices Act. It is the
contention of Petitioner that in signing the disbursing checks
for July 1982, he did not commit any act amounting to
evident bad faith and/ or gross negligence for he never
derived any pecuniary benefit from said checks. He further
argues that he never had anything to do with the
preparation or filling up of the material data in the checks
and vouchers, and that all that be did was to ministerially
sign them after verifying that the necessary signatures and
approval of the administrative officer and the bookkeeper
existed. Good faith and lack of malice is a valid defense to
the charge of violation of Sec. 3(e) of the Anti-Graft and
Corrupt Practices Act.
On the other hand, the public respondent through the
Office of the Solicitor General, argues that when the
accused over-spent for maintenance and other operating
expenses, utilizing in the process funds allocated for
personnel services, and thereby failed to pay the salaries of
hospital employees for the entire third quarter of 1982,
causing damages to the latter, a violation of Sec. 3(e) of the
Anti-Graft and Corrupt Practices Act was committed; and
that petitioner's act amounted to a total abdication of duty
and responsibility amounting to gross negligence which rules
out the defense of good faith. Sec. 3(e) of the Anti-Graft
and Corrupt Practices Act punishes any public officer for-
Page 40 of 41
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of offices
or government corporations charged with the grant of
licenses or permits or other concessions.
In order that one may be held criminally liable under said
section, the act of the accused which caused undue injury
must have been done with evident bad faith or with gross
inexcusable negligence. Gross negligence has been
defined as negligence characterized by the want of even
slight care, acting or omitting to act in a situation where
there is a duty to act, not inadvertently but wilfully and
intentionally with a conscious indifference to consequences
in so far as other persons may be affected. 10 It is the
omission of that care which even inattentive and thoughtless
men never fail to take on their own property. 11
It has been established before the court a quo that in the
disbursements of funds of the hospital, a procedure had to
be faithfully complied with. Upon filing of a Requisition and
Issue Voucher (RIV) the Administrative Officer must first certify
that the expenditure is necessary and lawful. The RIV is then
sent to the Bookkeeper for certification as to the availability
of funds for the purpose. Only after the Chief of the Hospital
has approved the disbursement can the same be given due
course. The check covering the disbursement voucher has
to be signed by the Chief of the Hospital and the
Administrative Officer. 12
In case of refusal of any of said three (3) officials (i.e.,
Administrative Officer, Bookkeeper and Chief of the Hospital)
to sign the requisition and issue voucher (RIV) no fund could
be released for disbursement. The reason why each of these
three (3) officials was required to sign the RIV was to prevent
any unofficial expenditure, in the disbursement of funds,
each of said official having a separate responsibility or
obligation.
It was the responsibility of the Bookkeeper to inform the
Chief of the hospital whether or not there was an available
fund from the allocated amount for a given expenditure. If
there was, he would issue a certification attached to the RIV
upon its submission for approval to the Chief of the Hospital.
It was not, therefore, really the duty of the Chief of the
hospital to verify from the books of accounts of the hospital
whether there was an available fund every time a
disbursement was needed for release. The same rule was
also applied to the Administrative Officer who was required
to issue a certification to the effect that the expenditure was
necessary and lawful.
To impose criminal liability upon petitioner who was
misled into giving his approval to a particular disbursement
on the basis of the Bookkeeper's certification that there was
fund available for said expenditure would be too harsh and
inequitable (even if such fund turned out to be unavailable).
Petitioner's reliance on the correctness of the
certifications of the Bookkeeper and Administrative Officer
which resulted in the application of a portion of the fund for
personnel services to maintenance and other operating
expenses for the hospital, cannot be classified as "gross
inexcusable negligence". There was no evident bad faith or
malicious intent in his part to cause undue injury to the
hospital employees. In giving his approval to the
disbursements for that period, it was evident that he was
merely misled by the certification of the Bookkeeper.
Furthermore, the fund for personnel services was not solely
used for maintenance and other operating expenses of the
hospital but also in payment of the back salaries of the
hospital employees.
It was also shown in the court a quo that transfer or
"juggling" (if you may) of funds from one quarter to a
preceeding quarter had been practiced by the former Chief
of the hospital as early as 1978, and it was merely carried
over during the term of herein petitioner.
 MALUM PROHIBITUM
Petitioner acted as OIC of the hospital for only about four
(4) months, concurrently with his position as Chief of the
Aglipay Emergency Hospital. Considering that his duties as
Chief of both hospitals entailed a lot of responsibility not only
on the management side but also in the treatment of their
patients, it is almost unreasonable to have expected
petitioner to directly and personally check the books of
accounts of FEMEH to find out if indeed there was an
available fund from the allotted amount whenever a
disbursement was submitted to him for approval. His act of
relying upon the Bookkeeper's certification to the effect that
there was an available fund for the disbursement sought to
be approved cannot be considered gross inexcusable
negligence.
Moreover, one of the elements of the crime described in
Sec. 3(e) of the Anti-Graft and Corrupt Practices Act is that
there should be undue injury caused to any party. However,
in the 30 July 1987 decision of the respondent
Sandiganbayan, it is recognized that there was no proof of
damage caused to the employees of the hospital since they
were in fact paid on 27 October 1982 their salaries for the
entire third quarter of 1982. 13
WHEREFORE, the petition is GRANTED, and the decision of
the Sandiganbayan dated 30 July 1987 in Criminal Case No.
10947 is SET ASIDE. Petitioner is ACQUITTED of the charge of
violation of Sec. 3(e) of the Anti-Graft and Corrupt Practices
Act (R.A. 3019).
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr.,
Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes,
Griño-Aquino, Medialdea and Regalado JJ., concur.

Page 41 of 41