G.R. No. 87186 April 24, 1992 CAMILO VILLA, petitioner vs.SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

G.R. No. 87281 April 24, 1992RODOLFO E. MONTAYRE, petitioner, vs.SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, res. G.R. No. 87466 April 24, 1992JOSEFINA SUCALIT, petitioner, vs.SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, res. G.R. No. 87524 April 24, 1992ARTURO JIMENEZ, petitioner, vs.SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,res. The herein petitioners' basic contention is that as their alleged co-conspirators have been acquitted by the Court of Appeals, they too should have been absolved by the Sandiganbayan under the doctrine of "the law of the case." They also submit that, in any event, the evidence against them was insufficient to prove their guilt and, on that ground, they should have also been presumed innocent and acquitted. These are the relevant facts. Investigation of alleged anomalous transactions at the Civil Aeronautics Administration (CAA), Mactan International Airport, led to the filing in 1975 of criminal charges in the Circuit Criminal Court of Cebu City against Casimiro David, administrative assistant at CAA, Mactan, and chairman of the Bidding Committee; Estanislao Centeno, cash aide; Fernando Dario, airport attendant; and Serafin Robles, janitor, for 1 2 violation of Section 3, paragraphs (a) and (b) of R.A. 3019 in relation to the Unnumbered Presidential Memorandum dated April 22, 3 4 5 1971, as well as Sec. 12, Rule XVIII of the Civil Service Rules and Section 1(x) of Presidential Decree No. 6 dated September 27, 1972. The case involved questionable payments made by the CAA Mactan to Rocen Enterprises and Sprayway Corp., dealers in paper products and printed matter, for the purchase of electrical items and the cost of their installation, in the total amount of P299,175.00. Dario, Centeno and Robles represented these firms in the transaction. Another accused, Mactan Airport General Manager Arturo Jimenez, was dropped from the amended information after a reinvestigation. On October 20, 1978, the Circuit Criminal Court of Cebu City then presided by Judge Romeo Escareal (now Associate Justice and Chairman of the Second Division of the Sandiganbayan) rendered a decision finding all the accused guilty beyond reasonable doubt of violation of 6 7 Section 3, paragraphs (a), (e), (h), and (i) of R.A. 3019. All the accused appealed the judgment of conviction the Court of Appeals. The decision of the trial court included findings that Arturo Jimenez; Rodolfo Montayre, assistant airport general manager for operations; Camilo Villa, chief, logistics section; Josefina Sucalit, technical inspector, COA, assigned at CAA Mactan; Hereto Leonor, acting chief accountant; and Manuel Bustamante, regional auditor of Region 7, COA, conspired and were equally liable with the convicted accused. Accordingly, Judge Escareal directed Chief State Prosecutor Juan A. Sison of the Ministry of Justice to assign a State Prosecutor to conduct an investigation for possible violations of the Anti-Graft and Corrupt Practices Act, falsification of public documents, malversation of public funds, overpricing, unexplained wealth, and violation of accounting and auditing rules and regulations, and to file the corresponding charges if warranted. The investigation was conducted as directed and led to the filing of an information with the Sandiganbayan, where it was docketed as Criminal Case No 5915, against Jimenez, Montayre, Villa, Bustamante, Leonor and Sucalit for violation of Section 3, R.A. 3019. The information read as follows: That during the period from June 9 to 30, 1975, or thereabout, at Lapu-Lapu City, Philippines, and within the jurisdiction of this Honorable Sandiganbayan, the confederating together and mutually helping one another or otherwise, acting in concert, with intent to defraud and gain, did then and there, wilfully, unlawfully and feloniously cause to influence other public officials, or allow to be influenced, to violate rules and regulations duly promulgated by competent authority relative to their respective duties, and for financial and pecuniary interest, by then and there permitting, promoting and approving the negotiation, perfection and consummation of the purchase and payments of the Civil Aeronautics Administration (CAA), Mactan International Airport, Upon arraignment, all the accused pleaded not guilty. The case against Manuel Bustamante was, on motion of the prosecution, dismissed without prejudice for lack of prima facie case. Jimenez, Montayre, Villa and Sucalit were later suspended from public office during the pendency of the case. Through the testimonial and documentary evidence it presented at the trial, the prosecution sought to establish the following facts: Dario, Centeno and Robles negotiated with Jimenez for the purchase of transformers and electrical supplies for the Mactan International Airport. The three were on leave during that time. On June 1, 1975, Montayre issued Requisition and Issue Voucher 6-513-75 for the articles: 1 set three phase primary metering 13.8 KV 400 KVA, 60 cycles complete with demand metering, voltage and current transformers; 3 piece 150 KVA Distribution Transformers, single phase, 60 cycle 2400 volts-240 V/120V oil cooled; 3 pieces 150 KVA Power transformers, single phase, 60 cycles, 138 KV/2400 Volts oil cooled; 4 sets high voltage Changeover Switch, 3 poles double throw 15 KV; 6 sets-High Voltage fused cut outs, 15 KV; 750 feet of 750 MCKTHW 600 Volts Copper conductor. Purpose: For installation of commercial power at Mactan Centralized Emergency Power STM. Jimenez approved the requisition and Leonor certified to the availability of funds. Jimenez signed Advertisement No. 16-75, and in due time the required invitations to bid calling for sealed proposals for the furnishing and delivery of the supplies were issued. On June 15, 1975, Jimenez sent Sucalit to Manila to canvass the subject supplies at various reputable dealers or manufacturers in Manila. Sucalit delivered Advertisement Forms to Rocen Enterprises in Pasay City, Utilities Equipment and Supply Corporation (UTESCO) in Quezon City, and Intrade Corporation in Makati. On June 25, 1975, the sealed bids were opened by the Bidding Committee. The Committee prepared an Abstract of Bids signed by David, Villa, Sucalit, Wigberto Fuentebella, Leonardo Mahinay, and Fermin Beltran, approving the lowest bid, which was that of Rocen Enterprises.

On the same day, a Purchase Order addressed to Rocen Enterprises was prepared and signed by David and approved by Jimenez, with Leonor certifying to the availability of funds. From June 25-30, 1975, four reports of inspection were prepared and signed by Sucalit, Villa and Montayre; four certificates of delivery were signed by Montayre and Villa; and four general vouchers for P70,180, P75,900, P99,000 and P53,020 respectively were prepared and signed by Villa, Montayre, Leonor and Jimenez. On June 30, 1975, four treasury warrants in the amounts respectively of P70,180, P57,980, P99,000, P53,020, all payable to Rocen Enterprises and/or Fernando Dario, were issued in payment for the articles requisitioned. The Warrant Register at the airport shows that five checks in the separate amounts of P70,180, P99,000, P53,020, P57,980, P17,920, were delivered to Centeno. It turned out that the requisitioned articles were delivered at Cebu City only on July 6, 1975, and were shipped by UTESCO, a losing bidder, to Rocen Enterprises, c/o Mrs. Remedios Centeno via the vessel Sweet Faith. The freight and handling charges of P5,500.00 incurred in connection with the delivery were reimbursed under a General Voucher signed by Jimenez, Montayre and Leonor to Rocen Enterprises. Rocen Enterprises, the winning bidder, was ostensibly owned by Remedios Centeno, wife of Estanislao Centeno. Its line of business, as registered with the Bureau of Domestic Trade on August 9, 1974, was "paper products and printed matter." On August 11, 1975, the firm was incorporated and registered with the Securities and Exchange Commission as "Rocen Trading Incorporated" with an authorized capital stock of P100,000, P20,000 of which had been subscribed and P5,000 paid up. The incorporators were Remedios Centeno, Priscilla Robles, Glicerio Efren, Rogelio Santos, Estanislao Centeno and Serafin Robles. The common defense of all the accused was as follows: The acquisition of the electrical items was an emergency measure necessitated by the brownout at Mactan Airport on the night of June 1, 1975. Incoming flights had to be diverted as the runway and taxiway lights necessary for a proper landing were all out. Jesus Singson, CAA Director, directed Mactan officials to implement a plan to install commercial power at Mactan Airport which at that time depended on the Mactan Electric Company and the Philippine Air Force for its power source. For this purpose, Cash Disbursement Ceilings (CDC) in the total amount of P310,000.00 were released. As the CDCs would expire on June 30, 1975, it was necessary to make it appear in the vouchers, supporting documents, reports of inspection, and certificates of delivery that the items requisitioned were delivered and inspected on or before June 30, 1975. The CDCs had to be utilized before the end of the fiscal year as otherwise they would revert to the general fund. In view of the emergency nature of the purchase, there was no time to advertise and the Bidding Committee had to adopt the more expeditious mode of procurement. Anyway, the prices paid by the government were reasonable. Jimenez testified that he approved the vouchers after verifying that all the supporting documents were in order and duly certified by the proper officers. He disclaimed responsibility in determining the reputability of the supplier. He admitted he knew Dario, Centeno and Robles but denied that they were in his office at Mactan Airport to follow up the transaction. Montayre contended that his participation in the transaction was limited to requisitioning the electrical items. He was not a member of the Bidding Committee and so had nothing to do with the canvassing of the prices, the determination of the winning bidder, and the verification of reputability of the supplier. Villa, a member of the Bidding Committee, argued that he did not participate in the canvass of the requisitioned items. As chief of the logistics section, it was his duty to determine the items needed for the airport but not the availability of funds for their acquisition. He processed the vouchers before June 30, 1975, because the funds needed for the items requisitioned would not be available if not disbursed before that date. He did this upon Montayre's direction. Sucalit testified that she made a canvass of the items requisitioned independent of the Bidding Committee, to use as a basis for determining the reasonableness of the prices quoted by suppliers. She acted pursuant to the National Accounting and Auditing Rules. She added that she went to Manila to make the canvass because there was no supplier in Cebu City that could furnish the needed items. She had no responsibility to determine who were qualified to participate in the bidding as she was not a member of the Bidding Committee. She pre-audited and initialed the vouchers after verifying all supporting documents and certifications. She also said she signed the inspection reports ahead of the actual delivery of the items because the CDCs would expire on June 30, 1975. In its decision dated July 28, 1988, the First Division of the Sandiganbayan found all the accused guilty beyond reasonable doubt of violating Section 3, paragraphs(a), (c) 8 (h), and (i) of R.A. 3019, in relation to the Unnumbered Memorandum of the President dated April 22, 1971, Section 12, Rule XVIII of the Civil Service Rules and Section 1(x) of P.D. No. 6. Each of the accused was sentenced to suffer an indeterminate penalty ranging from a minimum of 3 years to a maximum of 6 years imprisonment and perpetual disqualification from public office. The Sandiganbayan said: Carefully evaluating the evidence on record, it has became abundantly clear to Us that accused Arturo S. Jimenez, Rodolfo E. Montayre, Camilo G. Villa, Josefina S. Sucalit, and Hereto C. Leonor had conspired with Fernando Dario, Estanislao Centeno, Serafin Robles and Casimiro David in the commission of the crime for which the last four were convicted by the Circuit Criminal Court in Case No. CCC-XIV-1457, namely, "Violation of Section 3, paragraphs (a), (c), (h), and (i), of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, in relation to the Unnumbered Memorandum of the President of the Philippines dated April 22, 1971, Section 12, Rule XVIII of the Civil Service Rules, and Section 1(x) of Presidential Decree No. 6. We are not disposed to disregard the finding of the court in that case that "a massive and gigantic conspiracy existed between and among the four accused herein, namely, David, Centeno, Dario, and Robles, as well as practically all of the high-ranking officials of CAA Mactan" (namely, Airport General Manager Arturo S. Jimenez, Asst. Airport General ,Manager Rodolfo E. Montayre, Camilo G. Villa as Chief of the Logistics Section, Mrs. Josefina S. Sucalit, Technical Property Inspector of the COA detail, and Chief Accountant Hereto C. Leonor), the purpose of which was to corner and monopolize all requisitions and purchases of supplies and equipment at CAA Mactan, regardless of the source or the reputability of the suppliers.

The Sandiganbayan observed that there was an overcharge in the four vouchers between the prices quoted by Rocen as reflected in the Abstract of Bids and the amounts actually paid. The overcharge, totaling P27,100, was meant to represent the cost of installation, but there was no justification for including this item in the vouchers and no proof either that Rocen undertook the installation. On the contrary, this work appeared to have been undertaken by Montayre and personnel from the Bureau of Air Transportation. The Sandiganbayan held: From all facts and circumstances, admitted or undisputed, as well as those inferences, deductions, and conclusions logically and reasonably proceeding therefrom, We are drawn into the conclusion that accused Arturo S. Jimenez, Rodolfo E. Montayre Camilo G. Villa, Josefina S. Sucalit and Hereto C. Leonor, indeed, had conspired with Casimiro David, Estanislao Centeno, Fernando Dario and Serafin Robles in a dastardly scheme to defraud the government. When accused Jimenez, Montayre, Villa, Sucalit and Leonor signed, approved and/or executed the documents that facilitated the consummation of the transaction in question, in conspiracy with David, Centeno, Dario and Robles, in direct violation of existing rules and regulations promulgated by competent authority, they have become criminally liable under Section 3. paragraph (a), of Republic Act No. 3019, as amended. They not only persuaded, induced, or influenced each other as public officers to commit such flagrant violations, but also allowed themselves to be so persuaded, induced or influenced to railroad the transaction in question. They had wittingly allowed the questioned purchase from Rocen Enterprises, an entity which is not a reputable manufacturer or a duly registered and licensed distributor of the equipment purchased, the same being engaged in the business only of "paper products and printed matters." By the questioned transaction, Rocen Enterprises was also given unwarranted benefits, advantage, or preference, to the exclusion of more established and/or reputable establishments manufacturing or dealing in the kind of equipment purchased. There was manifest partiality, evident bad faith, and inexcusable negligence in accepting the bid of Rocen Enterprises and approving the same within a period of only one day, in accomplishing the purchase order and general vouchers in payment of the requisitioned equipment within a period of one week, and delivering the corresponding warrants or checks in payment of the same, through a CAA employee even before delivery of said equipment. Section 3, paragraph (3) of Republic Act No. 3019, as amended, was thereby violated. By combining, confederating, and conspiring with Centeno, Dario, and Robles to promote or facilitate efforts that led to the violation of Section 3, paragraph (h) of Republic Act No. 3019, for which Centeno, Dario, and Robles were convicted, accused Jimenez, Montayre, Villa, Sucalit and Leonor rendered themselves equally liable. Finally, there can be no doubt at all that Jimenez, Montayre, Villa, Sucalit and Leonor are liable under Section 3, paragraph (i) since they participated in or were responsible for the approval of a manifestly unlawful, inequitable, or irregular transaction, by which actuations interest for personal gain shall be presumed against them. While the Sandiganbayan case was pending, the Court of Appeals, in a decision promulgated on January 29, 1988, reversed the judgment of conviction rendered by the Circuit Criminal Court, on the ground of insufficient evidence. This decision was subsequently, and quite understandably, invoked by the herein petitioners in their separate motions for reconsideration of the decision of the Sandiganbayan. In a resolution dated February 17, 1989, the Sandiganbayan denied all these motions for reconsideration. Hence, four separate petitions for review were filed with this Court, by Villa, in G.R. No. 87186; Montayre, in G.R. No. 87281; Sucalit, in G.R. No. 87466; and Jimenez, in G.R. No. 87524. Leonor did not appeal, On May 4, 1989, G.R. No. 87466 was dismissed for non-compliance with Circular No. 1-88. Sucalit filed a motion for reconsideration, which was denied with finality. On October 3, 1989, however, this Court resolved to hold in abeyance enforcement of final judgment on the petition pending resolution of the other petitions. On August 22, 1989, we resolved to consolidate these cases upon motion of the Solicitor General, who was directed to file a Consolidated Comment on all the cases. The common issues raised in these petitions are: 1. Whether or not the decision of acquittal of the Court of Appeals promulgated 6 months before the decision of the Sandiganbayan bars their conviction pursuant to the doctrine of "the law of the case." 2. Whether or not the testimonies of prosecution witnesses, which were discredited by the Court of Appeals as biased, merit belief by the Sandiganbayan. 3. Whether or not there was conspiracy among the petitioners. The petitioners contend that since their cases in the Sandiganbayan were merely an offshoot of Criminal Case No. CCC-XIV-1457 in the Circuit Criminal Court of Cebu City, which was reversed by the Court of Appeals in CA-G.R. No. 24142, the decision of the Court of Appeals has become the "law of the case" which cannot now be overturned by any court and should be applied in the case at bar. Accordingly, they should also be acquitted. This contention is erroneous. The doctrine has been defined as "that principle under which determinations of questions of law will generally be held to govern a case throughout all its subsequent stages where such determination has already been made on a prior appeal to a court of last resort. It is merely a rule of procedure and does not go to the power of the court, and will not be adhered to where its application will result in an unjust decision. It relates entirely to questions of law, and is confined in its operation to subsequent proceedings in the same case." 9 In Jarantilla v. Court of Appeals, we held: Law of the case" has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established, as the controlling legal rule of decision between the same parties in the same case continue to be law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicted continues to the fact of the before case before the court (21 C.J.S. 330) (Italic supplied). It need not be stated that the Supreme Court being the court of last resort, is the final arbiter of all legal question properly brought before it and that its decision in any given case constitutes the law of that particular case. . . (Emphasis

supplied). It is a rule of general application that the decision of an appellate court in a case is the law of the case on the points presented throught all the subsequent proceeding in the case in both the trial and the appellate courts, and no question necessarily involved and decided on that appeal will be considered on a second appeal or writ of error in the same case, provided the facts and issues are substantially the same as those on which the first question rested and, according to some authorities, provided the decision is on the merits. In light of these definitions, we find that the Sandiganbayan did not err in holding as follows: The decision of the Court of Appeals reversing the judgment of the Circuit Criminal Court in Case NO. CCC-XIV-1457, was not, however, a determination of a question of law. The present case is not merely a stage or subsequent proceedings of that case. Although related, they are entirely distinct and separate cases. While in both cases, the transaction involved, the charges laid, and the persons alluded to as co-conspirators are one and the same, there is definitely no identity of parties between the two cases. The persons accused in one differ from those in the other. There is, therefore, no way whereby the doctrine of the law of the case would apply. If ever the findings of the Court of Appeals in the case decided by it would be considered operative as the "law of the case," the same would be confined in its operations solely to the case and to those accused therein. The petitioners also invoke res judicata, pointing out that in Criminal Case No. CCC-XIV-1457 and the case at bar, there was identity of the transaction involved, the witnesses and documentary evidence presented, and the offenses charged. The judgment of acquittal in CA G.R. No. 24142 does not constitute res judicata so as to bar a judgment of conviction in Criminal Case No. 10 5915. One of the requisites of res judicata is that there must be substantial identity of parties, which is not present in the instant case. The petitioners claim that the Sandiganbayan "relied very heavily, if not mainly" on and has merely adopted the findings of facts of the Circuit Criminal Court in arriving at its judgment of conviction. With the reversal of the decision of the Circuit Criminal Court, the Sandiganbayan decision has also lost its basis. This argument is also unacceptable. While the Sandiganbayan did consider the decision of the Circuit Criminal Court in finding the petitioners guilty, this was not the sole reason for their conviction. Apart from the conclusions of that court, the Sandiganbayan made its own findings of fact based on the testimony of witnesses and documentary evidence submitted to it during the trial. In fact, the major part of its decision dwelt its own analysis of such evidence. The petitioners also invoke the decision of the Court of Appeals rejecting the charge of conspiracy and contend that its finding that David, Centeno, Dario and Robles did not conspire among themselves or with the herein petitioners precluded the Sandiganbayan from arriving at a contrary conclusion. 11 This defense is also untenable. In United States v. Remigio, the Court held that although "a conspiracy is in its nature a joint offense . . . it does not follow that one person only cannot be convicted of conspiracy. So long as the acquittal or death of a co-conspirator does not remove the bases for a charge of conspiracy, one defendant may be found guilty of the offense." Notably, the judgment of acquittal of the Court of Appeals invoked by the herein petitioners was based on the insufficiency of the evidence of guilt of the accused therein and not on a finding that no offense had been committed. The petitioners complain that the Sandiganbayan erred in giving credence to the testimony of the prosecution witnesses which had earlier been disbelieved by the Court of Appeals as biased. The answer to this is that the findings of fact of the Sandiganbayan in the cases before us are binding on this Court in the absence of a showing that they come under the established exception. It is also worth noting that the Sandiganbayan, being a trial court, was in a position to observe the demeanor of the witnesses, unlike the Court of Appeals which had to rely only, in the words of the Solicitor General, "on a mute transcript of stenographic notes." It is asserted that the omission to ascertain the reputability of the supplier would result only in administrative and not criminal liability, as held by the Court of Appeals. We do not think so. Not only administrative but also criminal liability under the aforementioned paragraphs (a) and (e) Section 3, of R.A. 3019 was incurred. The failure to ascertain the reputability of Rocen Enterprises constituted a violation of the rules and regulations promulgated by competent authority and comes under paragraph (a). The manifest partiality that resulted in unwarranted benefits to Rocen was in contravention of paragraph (e). 12 Also invoked is our ruling in Bayot v. Sandiganbayan. to wit: Petitioner herein, Reynaldo R. Bayot, together with, his co-accused Lorenzo Ga. Cesar, was one of the those charged and convicted in a joint decision by the Sandiganbayan, of the crime of estafa thru falsification of public documents. Both were sentenced to a total of 577 years imprisonment by the Sandiganbayan on exactly the same evidence which this Court had pronounced as "woefully inadequate" and "too conjectural and presumptive to establish personal culpability," (Cesar v. Sandiganbayan, 134 SCRA 105). The petition for review filed by Lorenzo Ga. Cesar was granted by this Court and in the decision rendered on January 17, 1985 in G.R. Nos. L-54719-50, 134 SCRA 105, the Court en banc, reversed the decision of the Sandiganbayan and acquitted Lorenzo Ga. Cesar. The charge and the evidence submitted against Lorenzo Ga. Cesar being one and the same against the herein petitioner Reynaldo R. Bayot, the Court should do no less with respect to the latter. 13 In Cesar v. Sandiganbayan, it was this Court en banc that reversed the decision convicting the accused of estafa through falsification of public documents because it had not been proved that Cesar signed the questioned vouchers. This served as the basis for acquitting Bayot in his own petition for review as they were charged under identical informations and convicted in a joint decision based on the same evidence presented before Sandiganbayan. In the case at bar, the first three accused were convicted by the Circuit Criminal Court and later acquitted by the Court of Appeals. The second batch of accused, the petitioners herein, were convicted directly by the Sandiganbayan. Obviously, we cannot rule on the decision of the Court of Appeals because it is not before us. What is the decision of the Sandiganbayan, which, is the case we can review. In so doing, we are not bound by the findings of the Court of Appeals, which have not been appealed to

this Court. We are confined only to the examination of the proceedings in the Sandiganbayan because it is its decision that has been elevated to us. From the records of that case, to repeat, we are satisfied that there was a conspiracy among some of the petitioners. 14 The failure to show that the petitioners profited from the transaction would not necessarily result in acquittal. In Luciano v Estrella, Justice J.B.L. Reyes, in interpreting paragraph (g), Section 3 of R.A. 3019, said: . . . the act treated thereunder partakes of the nature of 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 public officers and private persons constituting graft or corrupt practices or which may lead thereto. Note that the law does not merely contemplates repression of acts that are unlawful or corrupt per se, but even of those that may lead to or result in graft and corruption . . . The petitioners stress that the investigating fiscal who conducted the preliminary investigation cleared them of liability (while Tanodbayan Fernandez maintained there was conspiracy) and argue that the findings of the former should prevail pursuant to Quizo v. Sandiganbayan. 15 That case, in fact, argues against them. In Quizo, it was the Tanodbayan himself who moved for the dismissal of the information with the Sandiganbayan which denied the same and which denial we set aside. The investigating fiscal being the subordinate of the Tanodbayan, the letter's decision should prevail. 16 Also cited is the case of Pajaro v. Sandiganbayan, where it was held: In view of the findings of the Court of Appeals in CA-G.R.. No, SP-07493, April 30, 1987, the prosecution of petitioner in the Sandiganbayan should be discontinued for the Sandiganbayan may not review, revise or reverse the findings of the Court of Appeals in relation to which the Sandiganbayan, a special court with special and limited jurisdiction. is inferior. In that case, Pajaro, as officer-in-charge of the Office of the City Treasurer of Dagupan City, was charged before the Tanodbayan with violation of R.A. 3019 for having given undue advantage and benefits to a delinquent taxpayer by allowing it to pay in installment instead of collecting the taxes due within the period fixed in the Local Tax Code. While the case was pending, Llamas filed a petition for mandamus to compel Pajaro to collect the delinquent's tax liabilities. The trial court dismissed the suit and on appeal was upheld by the Court of Appeals on the ground that no prejudice had cause to the city, which in fact stood to gain more from the promissory note than the amount awarded by the trial court. The Tanodbayan filed the information against Pajaro but later recommended its dismissal, which the Sandiganbayan denied. Citing the Court of Appeals decision, Pajaro moved for reconsideration, which the Sandiganbayan also denied. This prompted the petition for certiorari and prohibition where we ruled in favor of Pajaro. The Pajaro Case is not applicable because, as correctly observed by the Solicitor General, one and the same act of the same party was the subject of separate cases before the Court of Appeals and the Sandiganbayan. In the cases before us, the parties absolved by the Court of Appeals are different from the parties in the Sandiganbayan case and the acts committed by the accused in this case are different from the acts committed by the accused in Criminal Case No. 7CC-XII-1457. Lastly, it is contended that there was denial of due process because the case against them was heard by several sets of justices as follows Nov. 8, 1983 Pamaran Molina Purisima Jun. 30, 1984 Pamaran Consolacion Jabson Jan. 31, 1984 Pamaran Consolacion Quimbo Mar. 26, 1984 Pamaran Molina Consoldcion Sept. 25, 1984 Pamaran Escareal Molina Mar. 11, 1985 Pamaran Molina Amores May 28, 1985 Pamaran Jabson Amores Sept. 23, 1985 Pamaran Amores VeraCruz July 1-2, 1986 Garchitorena Jabson Joson Sept. 8-10, 1986 Garchitarena Jabson Joson Nov. 4-6, 1986 Garchitorena Jabson Joson Moreover, the decision of conviction was signed by Justices Joson, Garchitorena and Chua while the resolution on the motion for reconsideration was signed by Justices Joson, Garchitorena and Hermosisima. 17 Invoked is the case of Cabigao vs. Saidiganbayan, where this Court held: At the same time, the too frequent rotation of Justices hearing this particular case borders on unfairness. The Sandiganbayan should devise a better system whereby, as much as possible, the same Justices who hear a case shall be the ones to decide it. The procedure in the Court of Appeals cannot be used as a precedent. Except in some isolated instances provided in Batas Pambansa Blg. 129, the Court of Appeals reviews and decides cases on the basis of the records and does not conduct trials. In reducing temporary changes in its divisions to the barest minimum, the Sandiganbayan also reduces the possibility of one Justice who hears all the witnesses, influencing the findings of the Justices who did not have the same opportunity. In that case, we set aside the decision of the Sandiganbayan and ordered a new trial not solely on the basis of the "too frequent rotation of justices" but also because "in addition to the newly-discovered evidence, there (were) serious allegations which call(ed) for a more thorough examination." Furthermore, temporary vacancies in a division of a collegiate court are to be expected and unavoidable. The "frequent rotation of Justices" decried by the petitioners was not deliberately done to prejudice them. It must also be noted that there was no categorical statement in Cabigao that "frequent rotation of justices" would result in the nullity of the proceedings. We now proceed to the liabilities of the petitioners.

The petitioners submit that their act of requisitioning the items approving and signing documents relative to the transaction and issuing the checks in payment of the items requisitioned were made in good faith to beat the expiry date in the CDCs on June 30, 1975, and allow their utilization before their reversion to the general fund. We agree that the issuance of and signatures on the reports of inspection, certificates of delivery and general vouchers, all before June 30, 1975, prior to the actual delivery of the requisitioned item, were innocent and justified by the emergency nature of the purchase and the need to beat the expiry dates of the CDCs. What we cannot come to terms with, however, is the glaring fact that the winning bidder, Rocen Enterprises, which was represented by Centeno, Robles and Dario, deals only in paper products and printed matter and merely procured the electrical items it supplied to CAA Mactan from UTESCO, one of the losing bidders. This transaction reveals that unwarranted advantage through manifest partiality were accorded Rocen notwithstanding its lack of reputability as a supplier of electrical equipment. Who and what made this possible? A close scrutiny of the circumstances of this case clearly indicates that Jimenez and Sucalit were indeed involved in a scheme violative of the Anti-Graft and Corrupt Practices Act. Dario, Centeno and Robles were CAA Manila employees and were on leave during the period of the questioned transaction. They were seen by prosecution witnesses at Mactan Airport in the company of Jimenez, who admitted he knew the three. Robles and Centeno are incorporators of Rocen Trading, Inc., which was the Rocen Enterprises at the time the transaction was consummated. This was a sole proprietorship registered in the name of Remedios Centeno, wife of Estanislao Centeno, and engaged only in the business of dealing in "paper products and printed matter." When the requisition of the items was made, Sucalit went to Manila pursuant to a travel order issued by Jimenez to canvass prices of the articles. It is not explained why she delivered an advertisement form to Rocen Enterprises, which was a supplier only of paper products and printed matter but not of the needed electrical items. Curiously, Rocen submitted the lowest quotation for the items requisitioned. When the contract was awarded to it, Rocen merely procured the items requisitioned from UTESCO, a losing bidder. Arturo Jimenez, Airport General Manager, had the responsibility, as head of office, to see to it that the purchases mole were from reputable suppliers pursuant to the Unnumbered Presidential Memorandum dated April 22, 1971. Instead of discharging this responsibility, Jimenez approved the award to Rocen Enterprises, which was represented by Centeno, Robles and Dario. Josefina Sucalit, who was sent by Jimenez to Manila to make a canvass, inexplicably delivered an advertisement for Rocen Enterprises, which was not a reputable supplier of' the needed items. In her Travel Report, she certified that she made a canvass from reputable suppliers. These acts and omissions of Jimenez and Sucalit violated paragraph (a) of Section 3 of R.A. 3019 in relation to the Unnumbered Presidential Memorandum. They were persuaded, induced or influenced, and persuaded, induced or influenced each other, to award the purchase of electrical items to an entity which was not even a supplier of electrical items in disregard of the Presidential Memorandum directing that procurement of supplies by government offices should be from reputable suppliers. Rocen was not a "reputable supplier" as it was dealing only in paper products and printed matter at the time of the transaction in question. Paragraph (e) was likewise violated by Jimenez and Sucalit because, with manifest partiality in the discharge of their official and administrative functions, they gave unwarranted benefits, advantage or preference to Rocen Enterprises. The circumstances of the case are sufficient to establish conspiracy between Jimenez and Sucalit in violating the pertinent provisions of R.A. 18 3019 adverted to above. Direct evidence is not necessary to prove such conspiracy, for as we held in People vs. Roa: A resort to circumstantial evidence is in the very nature of things, a necessity. Crimes are usually committed in secret and under conditions where concealment is highly probable; and to require direct testimony would in many cases result in freeing criminals and would deny proper protection to society. (20 Am. Jur, 261). We believe, however that Montayre and Villa are not criminally liable. Montayre was convicted as a conspirator for having signed the reports of inspection, certificates of delivery, and general vouchers before delivery of the items requisitioned. As already stated, these were innocent act in view of the emergency nature of the purchase and the need to beat the expiry date of the CDCs. No criminal intent can be imputed to his having made the requisition because the same was necessary. He had no responsibility in determining the reputability of the supplier and did not take part in making the canvass and awarding the purchase to Rocen. Villa was likewise convicted as involved in the conspiracy for having signed invoices, reports of inspection, certificates of delivery and general vouchers before delivery of the items requisitioned. He is absolved of this charge like Montayre, for the same reasons. Villa, moreover, did not take part in the canvassing of supplies. It is true that he was a member of the Bidding Committed and he signed the Abstract of Bids and the approval of the lowest bid to Rocen Enterprises. However, this act cannot be considered criminal as he relied in fact on the canvass made and sealed bids procured by Sucalit in Manila. Such reliance may have constituted negligence but certainly not the gross inexcusable negligence punishable by law. Regarding the offenses involved, the Court finds that only paragraphs (a) and (e) of Section 3, R.A. 3019, in relation to this Unnumbered Presidential Memorandum dated April 22, 1971, were violated. There was no violation of paragraph (h) of R.A. 3019 as proof of financial or pecuniary interest in the transaction on the petitioners' part did not follow from the Sandiganbayan finding that there was overpricing. Paragraph (i) was also not violated because the Bidding Committee did not exercise discretion in the award of the contract for purchase of the equipment, which had to be given to the lowest bidder. WHEREFORE, the appealed judgment of the Sandiganbayan is AFFIRMED insofar as petitioners Jimenez and Sucalit are concerned. Petitioners Villa and Montayre are hereby ACQUITTED.

G.R. No. 95393 May 5, 1992 RAUL H. SESBRENO, petitioner, vs. OSCAR E. ALA, REX V. TANTIONGCO, ALEJANDRO B. AFURONG, J. MARIO LAQUI, MARCELO N. FERNANDO, EMMA B. SUAREZ, NICOMEDES DEYNATA, MANUEL CUSTODIO, AND HON. CONRADO VASQUEZ, Ombudsman of the Philippines, respondents. G.R. No. 103471 May 5, 1992 RAUL H.SESBRENO, petitioner, vs. AVITO P. CAHIG, as authorized investigator of the Office of the Ombudsman, BIENVENIDO MABANTO and DARIO RAMA, JR., respondents. These two (2) petitioners for certiorari are consolidated since both have the same petitioner with his appealed cases originating from the same catena of events and in line with the Court's policy of helping decongest its docket. Petitioner, Raul H. Sesbreno appearing for himself in both cases in seeking, in G.R. No. 95393, the annulment of the Resolution dated April 18, 1990 and the Order dated August 17, 1990, both issued by the Office of the Ombudsman in case OMB-O-90-0056 entitled "Raul H. Sesbreno, complainant, versus Manuel Custodio, et al., respondents"; and in G.R. No. 103471, the Resolution dated November 8, 1991 and the Order dated January 2, 1992, both issued by the Visayas Area, Ombudsman Office, Cebu City in case OMB-VIS-90-00524, entitled "Raul Sesbreno, Complainant, versus Cebu City Assistant Prosecutors Bienvenido M. Mabanto, Jr., et al. Respondents." The two (2) petitions alleged the same ground for their appeal which is grave abuse of discretion resulting in excess or lack of jurisdiction. The facts of these cases are as follows: At around 4 o' clock in the afternoon of May 11, 1989, a Visayan Electric Company (VECO) inspection team composed of Engr. Felipe Constantino and Ronald Arcilla (both from VECO) and Sgt. Demetrio Balicha of the 341st PC/INP Company, conducted an inspection of petitioner's electric watthours meter with Serial No. 475240 at his residence in Almaciga Street, La Paloma Subdivision, Tisa, Cebu City, which resulted in the following finding: As found, terminal bottom screw detached. Meter was tilted 180 from its original position upon inspection. Change meter for laboratory test. The defective electric watthour meter was therefore replace with another one bearing Serial No. 645619. The findings of the VECO team bore the signatures of its three (3) members and one Chuchie Garcia, as petitioner's representative because petitioner was then allegedly out of the house. This Visayan Electric Company inspection team got the ire of petitioner for its reportedly high-handed manner of investigation, resulting in the incident reaching the desk of the 2nd Asst. Fiscal of Cebu City on July 31, 1989 (pp. 218-225, Rollo), which spawned G.R. No. 103471, to be discussed, for clarity, after narrating this ERB case or G.R. No. 95393. A few days after, on May 19, 1989, an Energy Regulatory Board (ERB) analyst, one Engr. Rey Ernesto Reyes, conducted a test on petitioner's defective electric watthour meter and made the corresponding report to wit: a. The VECO seal #50 (both sides) was intact; b. When tested upright (original position), the accuracy of the meter was 0.01%; and c. Upon dial test, the meter disc did not rotate when titled 180 (degrees) from original position. Petitioner, on August 21, 1989 filed an administrative charge against Energy Regulatory Board analyst Engr. Rey Ernesto Reyes, with the following complaints: 1) that Reyes did not verify that petitioner's meter was removed from the latter's residence in his absence and without his permission; 2) that Reyes did not exert efforts to have subject meter deposited with a neutral party to prevent tampering thereof by the VECO inspection team; and 3) that Reyes conducted the meter test without notice to and in the absence of the petitioner. On August 31, 1989, an investigating committee was created to look into this administrative complaint. It was composed of Atty. Nicomedes B. Deynata, as chairman, and Atty. Emma B. Suarez and Engr. Custodio as members. The committee recommended that petitioner's complaint against Engr. Rey Ernesto Reyes be dismissed for lack of merit. To this effect, the Energy Regulatory Board, composed of Marcelo N. Fernando as chairman, J. Mario Laqui, Alejandro B. Afurong, Rex B. Tantiongco and Oscar E. Ala, as members on November, 1989, issued a resolution, on the matter of dismissal. Not satisfied with the foregoing dismissal, herein petitioner then filed a complaint with the Office of the Ombudsman against all aforementioned eight (8) Energy Regulatory Board personnel for alleged violation of the following: I. Sec. 3(a), Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act), as amended "Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. II. Sec. 3(e) of R.A. 3019. "Causing any undue injury to any party, including the government, or giving any private party any unwarranted benefits, advantages or preferences in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence." III. Sec. 3(c) of Republic Act No. 6713 (An Act establishing a Code of Conduct and Ethical Standards for Officials and Employees). "Justness and sincerity Public officials and employees shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to positions considered strictly confidential or as members of their personal staff whose terms are coterminous with theirs." IV. Sec. 3(g) or R.A. 6713 "Commitment to democracy Public officials and employees shall commit themselves to the democratic way of life and values, maintain the principle of public accountability, and manifest by deeds the

supremacy of civilian authority over the military. They shall at all times uphold the Constitution and put loyalty to country above loyalty to persons or party." V. Sec. 2, R.A. 6713 in relation to Section 1, Article XI, 1987 Constitution. Section 2, R.A. 6713 Declaration of Policy It is the policy of the State to promote a high standard of ethics in public service. Public officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence, and loyalty, act with patriotism and justice, lead modest lives, and uphold public interest over personal interest. Section I Article XI, 1987 Constitution Public Office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. In their joint comment on the complaint, respondents stated that the ERB dismissed the administrative complaint filed by petitioner against Engr. Rey Ernesto Reyes on the ground that the acts and/or omissions complained of were not violative of any law, rules and regulations, hence, did not warrant the imposition of any administrative sanction. (p. 112, Rollo) As the resolution of the Ombudsman dated April 18, 1990 states: Anent, the first and second allegations, the Committee stated that they found no provision of the ERB rules and regulations requiring that a verification first be made as to the manner by which the electric watthour was moved before a test thereon could be conducted. In addition the Committee also stated that there is no rule requiring that electric watthour meter submitted to ERB personnel for testing first be deposited by said personnel with a neutral party while awaiting the test. As regards the third allegation, the Committee spelt out the BOE (now ERB), in its Order dated February 4, 1981 in BOE Case No. 79-698, authorized VECO to remove from the consumer's or customer's premises any electric meter which it believes is defective or has been tampered with. In addition, the Committee stated that the said BOE Order requires that before removing the meter, VECO "shall give a written notice to the consumer/customer concerned to the effect that it will remove/disconnect the meter for testing purposes." In view of the BOE Order, the Committee stated that the obligation to notify the customer of the impending removal or test of his meter rests upon VECO and not Engr. Reyes. The Committee also explained that in the inspection report of the VECO inspection team, it shows that a certain Chuclie Garcia, alleged representative of complainant, acknowledged/signed the VECO inspection team's report containing the notice to witness the meter test. For this reason, the Committee pointed out that the respondent was justified in conducting the meter test of the subject watthour meter in the absence of the complainant or his representative who was duly notified of said test but failed to attend. Moreover, the Committee pointed out that even Ms. Chuclie Garcia was not the authorized representative of the complainant, they find no cogent reason to hold respondent Engr. Reyes liable for such misrepresentation for the reason that respondent had no participation in the conduct of the inspection and in the preparation of the inspection report containing the signature of Ms. Chuclie Garcia as complainant alleged representative. (pp. 74-75, Rollo) The Ombudsman continues: After a careful perusal of the records of this case, this Office finds the allegations/arguments relied upon by complainant to be wanting in clear and direct evidence, under circumstances that would support a prima facie case for violation of R.A. 3019, as amended, and R.A. 6713, against respondents herein, for the following reasons: Firstly, the theory that a "white-wash" and "cover-up" existed, stemmed merely from complainant's apprehension that since the members of the Investigating Committee which recommended the dismissal of the administrative complaint and the members of the Board which issued the resolution approving the said recommendation are likewise ERB employees/officials, he would not get a fair and just resolution of his case is clearly an imputation of a wrongdoing that is predicated on complainant's personal feelings; and Secondly, there is not direct nor positive evidence on record to substantiate the indictment that respondents herein conspired in the commission of the offense charged. There is also no evidence adduced that would ascertain, much more to prove, that Engr. Reyes had persuaded, induced or influenced respondents herein to perform an acts complained of or that the respondents allowed themselves to be persuaded, induced or influenced to cover-up or white-wash the acts or omissions of Engr. Reyes. WHEREFORE, upon the foregoing considerations, the complaint against Manuel Custodio, Nicomedes B. Deynata, Emma Suarez, Marcelo N. Fernando, J. Mario Laqui, Alejandro B. Afurong, Rex V. Tantiongco and Oscar E. Ala is hereby DISMISSED for insufficiency of evidence and lack of merit. (p. 76, Rollo) Petitioner, then filed a motion for reconsideration of the aforesaid resolution, arguing inter alia and reiterating that the ratification by the ERB respondents of the acts or omissions of Rey Ernesto Reyes was an adroit "cover up" or "white wash" which constituted a culpable violation of the Constitution and other existing laws and that the violation of his rights constituted the direct and positive evidence to establish "conspiracy" among the respondents. Said motion for reconsideration was denied by the Ombudsman in an Order dated August 17, 1990. Hence the first petition was filed docketed as G.R. No. 95393. Anent G.R. No. 103471. The originated from several cases against the VECO inspection team members. Ronald Arcilla, Felipe Constantino and Sgt. Demetrio Balicha representing the PC/INP company together with those VECO personnel who reported petitioner's alleged tampered watthour electric meter and other officials who had something to do in the confiscation of subject electric meter that obviously

piqued the petitioner no end resulting in the filing of numerous cases against any VECO personnel who figured in this picayune and insignificant May 11, 1989 incident. Simultaneously filed with the cases against the ERB people were criminal cases filed at the Cebu City Prosecutor's Office against the aforestated VECO employees and officials. Criminal charges range from incriminatory machinations to estafa thru falsification, etc. bearing IS Numbers 89-2937; 89-3283; 89-3472; 89-3483; 89-3507; 89-3711; 89-4004; and 89-4148. All of these cases were dismissed by respondents Assistant Cebu City Prosecutors Bienvenido N. Mabanto, Jr., Dario D. Rama, Jr. and Pedro Montecillo but the complaint filed against herein petitioner by a VECO personnel, IS No. 89-3427A, for violation of Batas Pambansa Bilang 876 (An Act To Include All Authorized Water, Gas, Electric and Telephone Utilities within the coverage of Presidential Decree No. 401, As Amended) for alleged tampering/stealing electricity was recommended to be filed in court. The prosecutors were branded among other things as co-conspirators in railroading the hasty filing of IS 89-3427A; because of which they are unfit and "must resign at once from their office." Allegedly, they were unfit, biased, vindictive, and prejudiced in hearing and later dismissing all the rest of petitioner's complaints. This is the mood in which the majority of the pleadings of the petitioner was made. Petitioner first went up to the Secretary of Justice, then to the Ombudsman, then filed an action for damages against the three prosecutors in Civil Case, CEB-7984, before the Regional Trial Court, Branch 17 of Cebu City. As alleged by petitioner, he won in the RTC civil case. Emboldened by this 'victory', he thought of going further up to the Ombudsman (Visayas Area) and even cited the handwritten note of Ombudsman Vasquez (Manila Office) in the Resolution dated April 18, 1990, thus: The complainant's cause of action should be against the VECO Inspection Team that removed the meter in violation of BOE Order. (p. 77, Rollo) A resolution dated November 18, 1991 was issued by Ombudsman Graft Investigator Avito Cahig of the Visayas Area dismissing the complaint against the respondents-prosecutors. A motion for reconsideration immediately ensued which motion was however, denied through a January 2, 1992 Order. Feeling aggrieved, petitioner filed G.R. No. 103471 questioning Ombudsman Cahig's aforestated resolution and order, and included the two (2) prosecutors, Mabanto and Rama, as respondents. In his prayer, he also asked that Ombudsman Cahig's dismissal of cases against the respondents-prosecutors be annulled and that an order be issued for subject officer (Cahig) to continue hearing OMB-VIS-90-524. He assigned two (2) errors committed by Officer Cahig, to wit: D-1. THE PUBLIC RESPONDENT GRAVELY ABUSED HIS DISCRETION BY DISREGARDING PETITIONER'S EVIDENCES AND CITATIONS OF JURISPRUDENCE SHOWING A PRIMA FACIE EVIDENCE THAT THE PRIVATE RESPONDENTS MAY BE LIABLE FOR VIOLATION OF REPUBLIC ACT NO. 3019 AND/OR REPUBLIC ACT NO. 6713. D-2. THE PUBLIC RESPONDENT GRAVELY ERRED BY REFUSING TO APPLY APPLICABLE OR PERTINENT JURISPRUDENCE TO THE FACTS PROVED OR IN ARRIVING AT AN ERRONEOUS CONCLUSION FROM THE FACTS DRAWN, PROVED OR SHOWN. Quoted are the "findings and recommendations" of Ombudsman Officer Cahig, in questioned resolution: A close scrutiny of the complaint, answer and the other pleadings submitted clearly indicates that the issues raised in the complaint are plainly and purely connected with the exercise of discretion of respondents in the disposition of the cases of herein complainant filed before their office (Cebu City Prosecutor's Office). There is no solid evidence presented so far that the respondents in the performance of their functions as Investigating Prosecutors of the cases herein mentioned acted with malice, evident bad faith, manifest partiality or were grossly and inexcusably negligent. Further there is nothing to support the allegation of vindictiveness on the part of respondent 1st Assistant Prosecutor Pedro Montecillo for having merely approved the recommendation as contained in the joint resolution. It should be stressed that respondent Prosecutors, as any other official in government tasked in the investigation and prosecution of cases, are invested officially with specific duties and obligations to act accordingly knowing fully well that they may be held accountable under the principle of public accountability. In the instant case, it is our holding that the presumption of regularity in the course of official functions in favor of respondents has not been clearly shown to have been effectively rebutted. In fairness to respondents and to the office they represent, they should be spared from any and all insinuations of irregularity, absent a clear and unmistakable showing of impropriety equating malice in law that justify criminal indictment. Finally, the Office of the Ombudsman does not have the authority to review, much less rule on the actions taken by Prosecutors in the exercise of their functions as the law and the rules amply provide the kind of relief a party may take as in the cases herein mentioned. Complainant's remedy is to appeal the resolution to the Secretary of Justice. WHEREFORE, on the basis of all the foregoing considerations and there being no prima facie case against respondents for having violated the Constitution as well as Republic Acts 6770 and 6713, the instant complaint is respectfully recommended DISMISSED for insufficiency of evidence. (pp. 71-72, Rollo, G.R. No. 103471) Again, the same Officer states in his questioned order: We, therefore maintain that "there is no solid evidence presented so far that respondents in the performance of their functions as Investigating Prosecutors of the cases acted with malice, evident bad faith, manifest partiality or were grossly negligent." (p. 74, Rollo, G.R. No. 103471) Records bear out that there was a long, thorough and exhaustive investigation and study of the allegations and grievances of petitioner in his complaint filed with the Energy Regulatory Board and from his several cases filed with the Cebu (Visayas Area) Ombudsman Office. In verbose pleadings, petitioner-lawyer, appearing in his own behalf, kept on hammering on the due process clause, violation of government ethics, and the Anti-Graft law, etc. These had all been refuted patiently and correctly by the ERB investigating team and Ombudsman repeatedly in their questioned resolutions and orders. Likewise a very patient study of the records of both cases, confirmed the facts that respondents discharged their duties weighing correctly all the evidence of the case and acted in accordance with applicable jurisprudence. Further, the queries posed by the petitioner in his petition in GR No. 95393 involve the examination of the probative value of the evidence presented by the litigants which this Court can not do as Our review cannot generally cover the facts.

Petitioner cited the following assignment of errors allegedly committed by Ombudsman Vasquez D-1. Concluding that there is no provision in the ERB rules and regulations requiring that verification first be made as to the manner by which the electric watthour meter was removed before a test thereon could be conducted or that the electric watthour meter submitted to ERB personnel for testing be first deposited by said personnel with a NEUTRAL PARTY while awaiting the test; or that the obligation to notify the customer of the impending removal or test of petitioner's meter rests upon VECO and not Engr. Reyes (p. 3, questioned resolution). D-2. Concluding that one Margarita Garcia who signed the NOTICE issued by Visayan Electric Co. (VECO) as "CUSTOMER" was duly authorized to act as representative of herein petitioner to sign said NOTICE OF METER TEST (p. 4, questioned resolution). D-3. Concluding that Rey Ernesto Reyes could not be held liable for FALSIFICATION thru the USE OF FALSIFIED (sic) by using the NOTICE issued by VECO for a meter test on May 18, 1990 when: a) Mr. Reyes' meter test was actually conducted on May 19, 1990, NOT May 18, 1990 per notice; b) It was made to appear that herein petitioner participated in the signing of said notice thru one Margarita Garcia when, in truth, herein petitioner did not so participate as in fact he never authorized Margarita Garcia to act as his representative or agent to sign said NOTICE OF METER TEST issued by VECO, not by the ERB thru Mr. Reyes. (page 4, questioned resolution). D-4. Concluding that Mr. Reyes did not know that the removed meter was the product of an "ILLEGAL SEARCH" (pages 4-5, questioned resolution). D-5. Concluding that there was no "white-wash" or "cover-up" when said Hon. Vasquez relied on the theories of respondents officers of the ERB (page 5, questioned resolution). D-6. Concluding that respondents officers of the ERB could not be held liable under the pertinent provisions of Republic Act No. 6713 and/or Republic Act No. 3019, as amended (page 5, questioned resolution). (pages 7-8, Rollo) As pointed out by the Solicitor General in his Comment dated December 28, 1990: Obviously, the finding that "the allegations/arguments relied upon by complainant . . . (are) wanting in clear and direct evidence, under circumstances that would support a prima facie case for violation of R.A. 3019, as amended, and R.A. 6713, against respondents herein . . ." is factual in nature. Hence, in assailing said finding, on the ground that "respondent Hon. Vasquez commit(ted) grave abuse of discretion (a) in relying on the theories of the respondents (pages 3, 4 and 5 of the questioned resolution) as basis for his questioned resolution" and (b) "in concluding that respondents officials of the ERB are not liable for violation of the pertinent provisions of Republic Act No. 6713 and Republic Act No. 3019", petitioner is clearly raising questions of fact herein. The law does not allow petitioner to do that. Section 14 of Republic Act No. 6770 (Ombudsman Act of 1989) provides: Sec. 14. Restrictions. No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman. "No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure questions of law." (pp. 118-119, Rollo) The factual findings of respondents are conclusive on the parties absent any showing of grave abuse of discretion (Ching Sui Yong vs. IAC, 191 SCRA 187) as the principle is well settled that the findings of administrative agencies which have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but even finality (Llorente vs. Sandiganbayan, G.R. No. 85464, October 3, 1991). From a careful study of the records, it is evident that Ombudsman Vasquez as well as Ombudsman Officer Cahig (Visayas area) did not commit any abuse, much less a grave abuse of discretion in relying on the theories of the respondents as the bases of their questioned resolutions. Neither did they commit any grave abuse of discretion in concluding that the other respondent officials of the ERB and VECO are not liable for violation of the pertinent provisions of R.A. No. 6713 and R.A. No. 3019. WHEREFORE, premises considered, both petitions are DENIED for utter lack of merit.

G.R. No. 125059 March 17, 2000 FRANCISCO T. SYCIP, JR., petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. 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: 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. 1 CONTRARY TO LAW. 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 2 dates, and check numbers 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: 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.1wphi1.nt 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 pay or make good any of the 3 checks (Exhs. I thru K). . . 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 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 4 by the bank for every check subject of a stop-payment order. 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. 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 6 that he will stop paying his monthly amortizations. 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 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 7 AWARDING DAMAGES IN FAVOR OF PRIVATE COMPLAINANT. 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. 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 8 surrounding the issuance of a worthless check are immaterial. 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. 9 Under the provisions of the Bouncing Checks Law (B.P. No. 22), 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 10 had not the drawer, without any valid cause, ordered the bank to stop payment. 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 11 second element prima facie exists when the first and third elements of the offense are present. But such evidence may be rebutted. If

not rebutted or contradicted, it will suffice to sustain a judgment in favor of the issue, which it supports. 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 13 funds." 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 14 be properly funded, not that the checks should be deemed as issued only then. 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 15 had knowledge that his deposit or credit in the bank would be insufficient to cover them when presented for encashment. 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 16 to prevent encashment of postdated checks in private respondent's possession. 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 17 Checks Law, the punishable act must come clearly within both the spirit and letter of the statute. 18 While B.P. Blg. 22 was enacted to safeguard the interest of the banking system, 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 19 P.D. No. 957. A statute must be construed in relation to other laws so as to carry out the legitimate ends and purposes intended by the 20 legislature. Courts will not strictly follow the letter of one statute when it leads away from the true intent of legislature and when ends 21 are inconsistent with the general purpose of the act. 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 22 fulfilled its obligations to the buyer. 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. 1wphi1 Offenses punished by a special law, like the Bouncing Checks Law, are not subject to the Revised Penal Code, but the Code is 23 supplementary to such a law. We find nothing in the text of B.P. Blg. 22, which would prevent the Revised Penal Code from 24 supplementing it. Following Article 11 (5) 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. 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. 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 maana 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

12

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 leave his revolver in his automobile, which he himself was 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 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. Avancea, C.J., Street, Abad Santos, and Hull, JJ., concur. G.R. No. L-42293 February 13, 1935 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appelle, vs. MAMERTO AYRE, defendant-appellant. Mamerto Ayre was charged in the Court of First Instance of Capiz with violation of section 416 of the Election Law, committed as follows: Que en o hacia el 5 de junio de 1934, en el Municipio de Panitan, Provincia de Capiz, Islas Filipinas, con ocasion de las elecciones generales y durante el periodo de votacion y escrutinio, el referido acusado siendo policia municipal intencional, maliciosa y criminalmente porto o tuvo en su persona y posesion un revolver "Colt "s"' de calibre 32, No. 146855, estando dentro de los 50 metros a la redonda del Colegio Electoral No. 4, no habiendo ocurrido ria, tumulto o desorden dentro de dicha distancia del referido colegio electoral. Con infraccion de la ley. Santos Degracia was charged with a like offense, the only difference in the information being as to the description of the revolver. Both defendants pleaded not guilty, and by agreement the two cases were tried together. The lower court found the defendants guilty as charged, and sentenced each of them 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 defendants have appealed to this court, and allege that the trial court erred in holding them guilty of the offense punished by section 416 of the Election Law. It appears from the evidence that the appellants, who where municipal policemen of Panitan, were found by a representative of the Department of the Interior of election day, June 5, 1934, carrying their service revolvers within fifty meters from the polling place; that there was no affray, riot, or disorder of any kind within said area. The evidence shows, however, that the two policemen were in the polling place when their revolvers were confiscated, because they had been sent there by the chief of police of Panitan upon the request of the chairman of the board of inspectors of precinct No. 4 to detail thereto two policemen for the purpose of maintaining order therein. The pertinent provisions of section 416 of the Election Law, as amended by Act No. 3387, for a violation of which the appellants were prosecuted and convicted, read as follows: It shall be unlawful for any person to carry firearm or any kind of arms within a distance of fifty meters from any polling place during the days of registration, voting, and counting. In cases, however, of affray, riot, or disorder within the radius of fifty meters, any peace officer or public official authorized to supervise the conduct of election may carry firearms or any other kind of arm within the said radius for the purpose of maintaining order or enforcing the law. The Solicitor-General argues that if we are to apply the literal wording of the law to the facts of the case, there can be no room for doubt that the defendants are guilty; that the prohibition established by section 416 of the Election Law is sweeping and unequivocal; that it forbids any person without distinction from carrying firearms or any kinds of arms within a radius of fifty meters from a polling place during the days of registration, voting, and counting, except only in cases of riot, affray, or disorder, in which cases peace officers or public officials authorized to supervise the conduct of election are permitted to bear arms for the purpose of maintaining order or enforcing the law; that inasmuch as in the present case there was no riot, disorder, or affray in the polling place to which they were assigned, it would seem clear that the defendants have violated the law by having firearms in their possession; that the Legislature did not, however, intend the law to be unreasonably interpreted and applied; that not all possession of arms within the prescribed area is made unlawful by the statute; that it is the possession with malicious intent, the possession intended to influence, either directly or indirectly, the free and untrammeled choice of the electors which is prohibited by the law, citing the case of People vs. Urdeleon (G.R. No. 31536, promulgated November 20, 1929, not reported); that in view of the absence of any proof tending to show that the appellants in carrying firearms within the distance of fifty meters from the polling place during the voting intended to commit any illegal act, but on the contrary were there to fulfill their duties as peace officers, they should be acquitted. We have reached the same conclusion, but for different reasons. Section 448 of the Election Law, as amended by Act No. 3387, reads as follows: Persons allowed in and around polling place. While the polls are open no person shall be allowed within the guard rail in the polling place other than members of the board of inspectors, the poll clerk, voters receiving or depositing their ballots, person authorized to supervise the election, and the necessary police, Constabulary, or other peace officers who may be requested by the board to be present to maintain order, serve the process of a court, act as messenger, or execute all lawful orders of the board. However, the watchers appointed by the candidates entitled to have them, with appointments signed by said candidates, may remain within the guard rail assigned to them in the polling place while the same shall remain open. No persons other than the persons mentioned above and voters waiting to vote or voting shall remain, during the time the polls are open, within the distance of thirty meters of the polling place, nor shall any person solicit votes or do any electioneering within such distance. This section, which is subsequent to section 416, under which the appellants were convicted, should be read in connection therewith. In enumerating the persons allowed in and around the polling place, it mentions "the necessary police, Constabulary, or other peace officers who may be requested by the board to the present to maintain order, serve the process of a court, act as messenger, or execute all lawful orders of the board." When the law gives the board of election inspectors the right to request the necessary police or constabulary or other

peace officers to be present to maintain order, it impliedly grants these peace officers the right to bear their arms, because it intends that they should be duly equipped to maintain order, and a policeman who goes to the polling place upon the request of the board and carries his revolver for the purpose of maintaining order commits no offense so long as he carries or uses his revolver solely for the purpose. If he intervenes in the election in any manner, except for the maintenance of public order, he violates section 450 of the Election Law. A policeman that has not been requested by the board of election inspectors to be present for the purpose of maintaining order is not authorized to carry arms within the distance of fifty meters from the polling place, except in cases of an affray, riot, or disorder within that distance. As the appellants herein were sent to the polling place by the chief of police upon the written request of the chairman of the board of inspectors for two policemen to maintain order, and they made no improper use of the revolvers which they were carrying, they did not violate the law. The mere presence of a policeman in uniform, although unarmed, may or may not be sufficient in a given case to maintain order in and around a polling place. We cannot believe the Legislature intended to make it necessary for a policeman on duty in a polling place to go home and get his revolver in case of any serious disorder. He is there for the purpose of maintaining order, and for him to carry a revolver is the most effectual means of accomplishing the object of the law. The decision appealed from is therefore reversed and the appellants are acquitted, with the costs de oficio. We find that the appellants Mamerto Ayre and Santos Degracia are entitled to receive any salary which they may have failed to receive as municipal policeman by reason of their prosecution and conviction in these cases in the lower court. G.R. No. 121592 July 5, 1996 ROLANDO P. DELA TORRE, petitioner, vs. COMMISSION ON ELECTIONS and MARCIAL VILLANUEVA, respondents. RESOLUTION Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two resolutions issued by the Commission on Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack of jurisdiction in SPA No. 95-047, 1 a case for disqualification filed against petitioner before the COMELEC. The first assailed resolution dated May 6, 1995 declared the petitioner disqualified from running for the position of Mayor of Cavinti, Laguna in the last May 8, 1995 elections, citing as the ground therefor, Section 40(a) of Republic Act No. 7160 (the Local 2 Government Code of 1991) which provides as follows: Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment within two (2) years after serving sentence; (b) xxx xxx xxx. In disqualifying the petitioner, the COMELEC held that: Documentary evidence . . . established that herein respondent (petitioner in this case) was found guilty by the Municipal Trial Court, . . . in Criminal Case No. 14723 for violation of P.D. 1612, (otherwise known as the Anti-fencing Law) in a Decision dated June 1, 1990. Respondent appealed the said conviction with the Regional Trial Court . . . , which however, affirmed respondent's conviction in a Decision dated November 14, 1990. Respondent's conviction became final on January 18, 1991. xxx xxx xxx . . . , there exists legal grounds to disqualify respondent as candidate for Mayor of Cavinti, Laguna this coming elections. Although there is "dearth of jurisprudence involving violation of the Anti-Fencing Law of 1979 or P.D. 1612" . . . , the 3 nature of the offense under P.D. 1612 with which respondent was convicted certainly involves moral turpitude . . . . The second assailed resolution, dated August 28, 1995, denied petitioner's motion for reconsideration. In said motion, petitioner claimed that Section 40 (a) of the Local Government Code does not apply to his case inasmuch as the probation granted him by the MTC on December 21, 1994 which suspended the execution of the judgment of conviction and all other legal consequences flowing therefrom, 4 rendered inapplicable Section 40 (a) as well. The two (2) issues to be resolved are: 1. Whether or not the crime of fencing involves moral turpitude. 2. Whether or not a grant of probation affects Section 40 (a)'s applicability. Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a) when prior conviction of a crime becomes a ground for disqualification i.e., "when the conviction by final judgment is for an offense involving moral turpitude." And in this connection, the Court has consistently adopted the definition in Black's Law Dictionary of " moral turpitude" as: . . . an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary 5 to justice, honesty, modesty, or good morals. Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime involves moral turpitude, is for the 6 Supreme Court to determine". In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in se 7 8 involve moral turpitude, while crimes mala prohibita do not , the rationale of which was set forth in "Zari v. Flores," to wit: It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of 9 themselves immoral but whose illegality lies in their being positively prohibited.

This guidelines nonetheless proved short of providing a clear-cut solution, for in "International Rice Research Institute v. NLRC, the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves moral turpitude is ultimately a 11 question of fact and frequently depends on all the circumstances surrounding the violation of the statue. The Court in this case shall nonetheless dispense with a review of the facts and circumstances surrounding the commission of the crime, inasmuch as petitioner after all does not assail his conviction. Petitioner has in effect admitted all the elements of the crime of fencing. At any rate, the determination of whether or not fencing involves moral turpitude can likewise be achieved by analyzing the elements alone. Fencing is defined in Section 2 of P.D. 1612 (Anti-Fencing Law) as: a. . . . the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or 12 theft. From the foregoing definition may be gleaned the elements of the crime of fencing which are: 1. A crime of robbery or theft has been committed; 2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which have been derived from the proceeds of the said crime; 3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and [Emphasis supplied.] 13 4. There is, on the part of the accused, intent to gain for himself or for another. Moral turpitude is deducible from the third element. Actual knowledge by the "fence" of the fact that property received is stolen displays the same degree of malicious deprivation of one's rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude. And although the participation of each felon in the unlawful taking differs in point in time and in degree, both the "fence" and the actual perpetrator/s of the robbery or theft invaded one's peaceful dominion for gain thus deliberately reneging in the process "private duties" they owe their "fellowmen" or "society" in a manner "contrary to . . . accepted and customary rule of right and duty . . . , justice, honesty . . . or good morals." The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on "Human Relations" and "Solutio Indebiti", to wit: Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. Art. 22. Everyone person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. Art. 2154. If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises. The same underlying reason holds even if the "fence" did not have actual knowledge, but merely " should have known" the origin of the property received. In this regard, the Court held: When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is aware of the high probability of its existence unless he actually believes that it does not exist. On the other hand, the words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain 14 the fact in the performance of his duty to another or would govern his conduct upon assumption that such fact exists . [Emphasis supplied.] Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefor should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that "mere possession of any goods, . . . , object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing " a presumption that is, according to the Court, "reasonable for no other natural or logical inference can arise from the established 15 fact of . . . possession of the proceeds of the crime of robbery or theft." All told, the COMELEC did not err in disqualifying the petitioner on the ground that the offense of fencing of which he had been previously convicted by final judgment was one involving moral turpitude. Anent the second issue where petitioner contends that his probation had the effect of suspending the applicability of Section 40 (a) of the 16 Local Government Code, suffice it to say that the legal effect of probation is only to suspend the execution of the sentence. Petitioner's conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the 1 application for probation. 7 Clearly then, petitioner's theory has no merit.

10

ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the assailed resolutions of the COMELEC dated May 6, 1995 and August 28, 1995 are AFFIRMED in toto. [G.R. No. 129577-80. February 15, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BULU CHOWDURY, accused-appellant. DECISION 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 scale committed 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[1] They were likewise charged with three counts of estafa committed against private complainants.2[2] The State Prosecutor, however, later dismissed the estafa charges against Chowdury3[3] and filed an amended information indicting only Ong for the offense.4[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[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 receipts.6[6] Chowdury then processed his papers and convinced him to complete his payment.7[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[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[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[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[11] Craftrade, however, failed to deploy him. Hence, Miranda filed a complaint with the POEA against Chowdury for illegal recruitment.12[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[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, th e 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 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[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 Developers15[15] and a list of processed workers of Craftrade Overseas Developers from 1988 to 1994.16[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[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[18] The last paragraph of Section 6 of Republic Act (RA) 804219[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 recruitment20[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[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[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[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 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[24] if it is shown that he actively and consciously participated in illegal recruitment.25[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[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[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[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[29] The temporary license included the authority to recruit workers.30[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[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[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 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. G.R. No. L-68997 April 27, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ROBERTO LIBAG Y CABADING, accused-appellant. 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 ACCUSEDAPPELLANT 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) 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. 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) 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 wouldbe 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")? 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 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 male person. 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 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. 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. G.R. No. 140937 February 28, 2001EXUPERANCIO CANTA, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent. This is a petition for review on certiorari of the decision, dated August 31, 1999, and resolution, dated November 22, 1999, of the Court of 1 2 Appeals, which affirmed the decision of the Regional Trial Court, Branch 25, Maasin, Southern Leyte, finding petitioner Exuperancio Canta guilty of violation of P.D. No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974, and sentencing him to ten (10) years and one (1) day of prision mayor, as minimum, to twelve (12) years, five (5) months, and eleven (11) days of reclusion temporal medium, as maximum, and to pay the costs. The information against petitioner alleged: That on or about March 14, 1986, in the municipality of Malitbog, province of Southern Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to gain, did then and there, willfully, unlawfully and feloniously, take, steal and carry away one (1) black female cow belonging to Narciso Gabriel valued at Three Thousand Pesos (P3,000.00) without the knowledge and consent of the aforesaid owner, to his damage and prejudice in the amount aforestated.1wphi1.nt 3 CONTRARY TO LAW. The prosecution established the following facts: Narciso Gabriel acquired from his half-sister Erlinda Monter a cow, subject of the case, upon its birth on March 10, 1984. The cow remained under the care of Erlinda Monter for sometime. Subsequently, Narciso gave the care and custody of the animal, first, to Generoso Cabonce, from October 24, 1984 to March 17, 1985; then to Maria Tura, from May 17, 1985 to March 2, 1986; and lastly, to Gardenio Agapay, from 4 March 3, 1986 until March 14, 1986 when it was lost. It appears that at 5 o'clock in the afternoon of March 13, 1986, Agapay took the cow to graze in the mountain of Pilipogan in Barangay Candatag, about 40 meters from his hut. However, when he came back for it at past 9 o'clock in the morning of March 14, 1986, Agapay found the cow gone. He found hoof prints which led to the house of Filomeno Vallejos. 5 He was told that petitioner Exuperancio Canta had taken the animal. Upon instructions of the owner, Gardenio and Maria Tura went to recover the animal from petitioner's wife, but they were informed that petitioner had delivered the cow to his father, Florentino Canta, who was at that time barangay captain of Laca, Padre Burgos, Southern Leyte. Accordingly, the two went to Florentino's house. On their way, they met petitioner who told them that if Narciso was the owner, he should claim the cow himself. Nevertheless, petitioner accompanied the two to his father's house, where Maria recognized the cow. As petitioner's father was not in the house, petitioner told Gardenio and Maria he would call them the next day so that they could talk the matter over with his father.

However, petitioner never called them. Hence, Narciso Gabriel reported the matter to the police of Malitbog, Southern Leyte. As a result, Narciso and petitioner Exuperancio were called to an investigation. Petitioner admitted taking the cow but claimed that it was his and that it was lost on December 3, 1985. He presented two certificates of ownership, one dated March 17, 1986 and another dated February 27, 7 1985, to support his claim (Exh. B). Narciso presented a certificate of ownership issued on March 9, 1986, signed by the municipal treasurer, in which the cow was described as two years old and female. On the reverse side of the certificate is the drawing of a cow with cowlicks in the middle of the forehead, 8 between the ears, on the right and left back, and at the base of the forelegs and hindlegs (Exhs. C, C-1 to 4). All four caretakers of the cow identified the cow as the same one they had taken care of, based on the location of its cowlicks, its sex, and its color. Gardenio described the cow as black in color, with a small portion of its abdomen containing a brownish cowlick, a cowlick in the middle of the forehead, 9 another at the back portion between the two ears, and four cowlicks located near the base of its forelegs and the hindlegs. On the other hand, petitioner claimed he acquired the animal under an agreement which he had with Pat. Diosdado Villanueva, that petitioner take care of a female cow of Pat. Villanueva in consideration for which petitioner would get a calf if the cow produced two offsprings. Petitioner claimed that the cow in question was his share and that it was born on December 5, 1984. This cow, however, was lost on December 2, 1985. Petitioner said he reported the loss to the police of Macrohon, Padre Burgos, and Malitbog, on December 3, 10 1985 (Exh. A and Exh. 1). Petitioner said that on March 14, 1986, his uncle Meno told him that he had seen the cow at Pilipogan, under the care of Gardenio Agapay. He, therefore, went to Pilipogan with the mother cow on March 14, 1986 to see whether the cow would suckle the mother cow. As the cow 11 did, petitioner took it with him and brought it, together with the mother cow, to his father Florentino Canta. Maria Tura tried to get the 12 cow, but Florentino refused to give it to her and instead told her to call Narciso so that they could determine the ownership of the cow. As Narciso did not come the following day, although Maria did, Florentino said he told his son to take the cow to the Municipal Hall of Padre Burgos. Petitioner did as he was told. Three days later, Florentino and Exuperancio were called to the police station for 13 investigation. 14 Petitioner presented a Certificate of Ownership of Large Cattle dated February 27, 1985 and a statement executed by Franklin Telen, janitor at the treasurer's office of the municipality of Padre Burgos, to the effect that he issued a Certificate of Ownership of Large Cattle in 15 the name of petitioner Exuperancio Canta on February 27, 1985 (Exh. 5). The statement was executed at the preliminary investigation of 16 the complaint filed by petitioner against Narciso. Petitioner's Certificate of Ownership was, however, denied by the municipal treasurer, who stated that petitioner Exuperancio Canta had 17 no Certificate of Ownership of Large Cattle in the municipality of Padre Burgos (Exhs. E, E-1 and 2). On the other hand, Telen testified that he issued the Certificate of Ownership of Large Cattle to petitioner on March 24, 1986 but, at the instance of petitioner, he (Telen) 18 antedated it to February 27, 1985. On January 24, 1997, the trial court rendered its decision finding petitioner guilty of the offense charged. In giving credence to the evidence for the prosecution, the trial court stated: From the affidavits and testimonies of the complainant and his witnesses, it is indubitable that it was accused Exuperancio Canta who actually took the cow away without the knowledge and consent of either the owner/raiser/caretaker Gardenio Agapay. That the taking of the cow by the accused was done with strategy and stealth considering that it was made at the time when Gardenio Agapay was at his shelter-hut forty (40) meters away tethered to a coconut tree but separated by a hill. The accused in his defense tried to justify his taking away of the cow by claiming ownership. He, however, failed to prove such ownership. Accused alleged that on February 27, 1985 he was issued a Certificate of Ownership of Large Cattle (Exh. 2-A) for his cow by Franklin Telen, a janitor at the Office of the Municipal Treasurer of Padre Burgos, a neighboring town. On rebuttal Franklin Telen denied in Court the testimony of the accused and even categorically declared that it was only on March 24, 1986 that the accused brought the cow to the Municipal Hall of Padre Burgos, when he issued a Certificate of Ownership of Large Cattle for the cow, and not on February 27, 1985. Franklin Telen testified thus: "Q. According to the defense, this Certificate of Ownership of Large Cattle was issued by you on February 27, 1985. Is that correct? A. Based on the request of Exuperancio, I antedated this. (TSN, June 3, 1992, p. 7)" The testimony of Franklin Telen was confirmed in open court by no less than the Municipal Treasurer of Padre Burgos, Mr. Feliciano Salva. (TSN, September 29, 1992, pp. 5-8). If accused Exuperancio Canta were the owner of the cow in question, why would he lie on its registration? And why would he have to ask Mr. Franklin Telen to antedate its registry? It is clear that accused secured a Certificate of Ownership of Large Cattle (Exh. 2-A) by feigning and manipulation (Exhs. A & B) only after the act complained of in the instant case was committed on March 14, 1986. His claim of ownership upon which he justifies his taking away of the cow has no leg to stand on. Upon the other 19 hand, the complainant has shown all the regular and necessary proofs of ownership of the cow in question. The Court of Appeals affirmed the trial court's decision and denied petitioner's motion for reconsideration. Hence, this petition. It is contended that the prosecution failed to prove beyond reasonable doubt his criminal intent in taking the disputed cow. First. Petitioner claims good faith and honest belief in taking the cow. He cites the following circumstances to prove his claim: 1. He brought the mother cow to Pilipogan to see if the cow in question would suckle to the mother cow, thus proving his ownership of it; 2. He compared the cowlicks of the subject cow to that indicated in the Certificate of Ownership of Large Cattle issued on February 27, 1985 in his name, and found that they tally; 3. He immediately turned over the cow to the barangay captain, after taking it, and later to the police authorities, after a dispute arose as to its ownership; and 4. He filed a criminal complaint against Narciso Gabriel for violation of P. D. No. 533.

These contentions are without merit. P.D. No. 533, 2(c) defines cattle-rustling as . . . the taking away by any means, methods or scheme, without the consent of the owner/raiser, of any of the abovementioned animals whether or not for profit or gain, or whether committed with or without violence against or intimidation of any person or force upon things. The crime is committed if the following elements concur: (1) a large cattle is taken; (2) it belongs to another; (3) the taking is done without the consent of the owner; (4) the taking is done by any means, methods or scheme; (5) the taking is with or without intent to gain; and (6) 20 the taking is accomplished with or without violence or intimidation against person or force upon things. These requisites are present in this case. First, there is no question that the cow belongs to Narciso Gabriel. Petitioner's only defense is that in taking the animal he acted in good faith and in the honest belief that it was the cow which he had lost. Second, petitioner, without the consent of the owner, took the cow from the custody of the caretaker, Gardenio Agapay, despite the fact that he knew all along that the latter was holding the animal for the owner, Narciso. Third, petitioner falsified his Certificate of Ownership of Large Cattle by asking Telen to antedate it prior to the taking to make it appear that he owned the cow in question. Fourth, petitioner adopted "means, methods, or schemes" to deprive Narciso of his possession of his cow, thus manifesting his intent to gain. Fifth, no violence or intimidation against persons or force upon things attended the commission of the crime. Indeed, the evidence shows that the Certificate of Ownership of Large Cattle which petitioner presented to prove his ownership was falsified. Franklin Telen, the janitor in the municipal treasurer's office, admitted that he issued the certificate to petitioner 10 days after Narciso's cow had been stolen. Although Telen has previously executed a sworn statement claiming that he issued the certificate on February 27, 1985, he later admitted that he antedated it at the instance of petitioner Exuperancio Canta, his friend, who assured him that 21 the cow was his. Telen's testimony was corroborated by the certification of the municipal treasurer of Padre Burgos that no registration in the name of petitioner was recorded in the municipal records. Thus, petitioner's claim that the cowlicks found on the cow tally with that indicated on the Certificate of Ownership of Large Cattle has no value, as this same certificate was issued after the cow had been taken by petitioner from Gardenio Agapay. Obviously, he had every opportunity to make sure that the drawings on the certificate would tally with that existing on the cow in question. The fact that petitioner took the cow to the barangay captain and later to the police authorities does not prove his good faith. He had already committed the crime, and the barangay captain to whom he delivered the cow after taking it from its owner is his own father. While the records show that he filed on April 30, 1986 a criminal complaint against Narciso Gabriel, the complaint was dismissed after it was shown that it was filed as a countercharge to a complaint earlier filed on April 16, 1986 against him by Narciso Gabriel. Petitioner says that he brought a mother cow to see if the cow in question would suckle to the mother cow. But cows frequently attempt to 22 suckle to alien cows. Hence, the fact that the cow suckled to the mother cow brought by petitioner is not conclusive proof that it was the offspring of the mother cow. Second. Petitioner contends that even assuming that his Certificate of Ownership is "not in order," it does not necessarily follow that he did not believe in good faith that the cow was his. If it turned out later that he was mistaken, he argues that he committed only a mistake of fact but he is not criminally liable. Petitioner's Certificate of Ownership is not only "not in order." It is fraudulent, having been antedated to make it appear it had been issued to him before he allegedly took the cow in question. That he obtained such fraudulent certificate and made use of it negates his claim of good faith and honest mistake. That he took the cow despite the fact that he knew it was in the custody of its caretaker cannot save him 23 from the consequences of his act. As the Solicitor General states in his Comment: If petitioner had been responsible and careful he would have first verified the identity and/or ownership of the cow from either Narciso Gabriel or Gardenio Agapay, who is petitioner's cousin (TSN, 9/12/91, p. 26). Petitioner, however, did not do so despite the opportunity and instead rushed to take the cow. Thus, even if petitioner had committed a mistake of fact he is not exempted 24 from criminal liability due to his negligence. In any event, petitioner was not justified in taking the cow without the knowledge and permission of its owner. If he thought it was the cow he had allegedly lost, he should have resorted to the court for the settlement of his claim. Art. 433 of the Civil Code provides that "The true owner must resort to judicial process for the recovery of the property." What petitioner did in this case was to take the law in his own 25 hands. He surreptitiously took the cow from the custody of the caretaker, Gardenio Agapay, which act belies his claim of good faith. For the foregoing reasons, we hold that the evidence fully supports the finding of both the trial court and the Court of Appeals that accused-appellant is guilty as charged. There is therefore no reason to disturb their findings. However, the decision of the Court of Appeals should be modified in two respects. First, accused-appellant should be given the benefit of the mitigating circumstance analogous to voluntary surrender. The circumstance of voluntary surrender has the following elements: (1) the offender has not actually been arrested; (2) the offender surrenders to a person in 26 authority or to the latter's agent; and (3) the surrender is voluntary. In the present case, petitioner Exuperancio Canta had not actually been arrested. In fact, no complaint had yet been filed against him when he surrendered the cow to the authorities. It has been repeatedly held that for surrender to be voluntary, there must be an intent to submit oneself unconditionally to the authorities, showing an intention 27 to save the authorities the trouble and expense that his search and capture would require. In petitioner's case, he voluntarily took the cow to the municipal hall of Padre Burgos to place it unconditionally in the custody of the authorities and thus saved them the trouble of having to recover the cow from him. This circumstance can be considered analogous to voluntary surrender and should be considered in favor of petitioner. Second, the trial court correctly found petitioner guilty of violation of 2(c) of P. D. No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974. However, it erred in imposing the penalty of 10 years and 1 day of prision mayor, as minimum, to 12 years, 5 months and 11 days of reclusion temporal medium, as maximum. The trial court apparently considered P. D. No. 533 as a special law and applied 1 of the Indeterminate Sentence Law, which provides that "if the offense is punished by any other law, the court shall sentence the accused to an

indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less 28 than the minimum term prescribed by the same." However, as held in People v. Macatanda, P. D. No. 533 is not a special law. The penalty for its violation is in terms of the classification and duration of penalties prescribed in the Revised Penal Code, thus indicating that the intent of the lawmaker was to amend the Revised Penal Code with respect to the offense of theft of large cattle. In fact, 10 of the law provides: The provisions of Articles 309 and 310 of Act No. 3815, otherwise known as the Revised Penal Code, as amended, pertinent provisions of the Revised Administrative Code, as amended, all laws, decrees, orders, instructions, rules and regulations which are inconsistent with this Decree are hereby repealed or modified accordingly. There being one mitigating circumstance and no aggravating circumstance in the commission of the crime, the penalty to be imposed in this case should be fixed in its minimum period. Applying the Indeterminate Sentence Law, in relation to Art. 64 of the Revised Penal Code, petitioner should be sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty next lower in degree, i. e., prision correccional maximum to prision mayor medium, and the maximum of which is prision mayor in its maximum period. WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with the modification that petitioner Exuperancio Canta is hereby SENTENCED to suffer a prison term of four (4) years and two (2) months of prision correccional maximum, as minimum, to ten (10) years and one (1) day of prision mayor maximum, as maximum. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSELITO ESCARDA, JOSE VILLACASTIN JR., HERNANI ALEGRE, and RODOLFO CAEDO, accused. JOSE VILLACASTIN, JR., accused-appellant. On appeal is the decision dated September 21, 1994, of the Regional Trial Court of Cadiz City, Branch 60, in Criminal Case No. 586-S, finding accused Joselito Escarda and Jose Villacastin Jr., guilty beyond reasonable doubt of violation of the Anti-Cattle Rustling Law. In its decision, the trial court decreed: WHEREFORE, in view of the foregoing circumstances, this Court finds both accused JOSELITO ESCARDA and JOSE VILLACASTIN, JR., guilty beyond reasonable doubt of the crime of Viol. of P.D. 533 (Anti-Cattle Rustling Law), and there being the presence of three generic aggravating circumstances of [r]ecidivism, nighttime and unlawful entry, with no mitigating circumstances to offset the same, as such, the accused are each sentenced to suffer, considering the Indeterminate Sentence Law, the imprisonment of EIGHTEEN (18) YEARS, EIGHT (8) MONTHS and ONE (1) DAY as the minimum to RECLUSION PERPETUA as the maximum, together with all the accessory penalties imposed by law and to indemnify the offended party, Joel Barrieses, in the amount of P5,000.00 without subsidiary imprisonment in case of insolvency. The accused being detained, are hereby entitled to the full credit of their preventive imprisonment as provided for under R.A. 6127. Costs against both accused. SO ORDERED.i[1] In an information dated April 18, 1988, Provincial Fiscal Othello Villanueva charged accused with violation of Presidential Decree No. 533, otherwise known as Anti-Cattle Rustling Law of 1974, as follows: The undersigned Provincial Fiscal accuses JOSELITO ESCARDA, JOSE VILLACASTIN, JR., HERNANI ALEGRE (at-large) and RODOLFO CAEDO (at-large) of the crime of Violation of Presidential Decree No. 533, (Anti-Cattle Rustling Law of 1974), committed as follows: That on or about the 29th day of July, 1987, in the Municipality of Sagay, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the first two (2) above-named accused, in company of their two (2) other co-accused, namely: Hernani Alegre and Rodolfo Caedo, who are both still-at-large, conspiring, confederating and mutually help[ing] one another, with intent of gain, did then and there, wilfully, unlawfully and feloniously take, steal and carry away two (2) female carabaos, valued in the total amount of FIVE THOUSAND PESOS (P5,000.00), Philippine Currency, belonging to JOEL BARIESES, without the consent of the latter, to the damage and prejudice of the said owner in the aforestated amount. CONTRARY TO LAW.ii[2] Upon arraignment, accused Escarda and Villacastin, assisted by counsel, entered a plea of not guilty. Thereafter, trial on the merits ensued. The facts as presented by the prosecution and summarized by the trial court are as follows: [Dionesio Himaya] testified that on July 29, 1987 at about 2:00 oclock in the morning in [Hacienda] Ricky, Jose Villacastin, Jr. and his group passed by his house. [He] was still awake at that time because he was watching over his cornfield and while doing so, he saw the two accused remove the cyclone wire which was used as the corral for the two (2) carabaos of Rosalina Plaza. He was able to see Jose Villacastin, Jr. cut the cyclone wire because he was just four (4) arms length away from them and after Jose Villacastin cut the wire, they swept it aside and untied the two (2) carabaos. After untying the carabaos, they rode on it and proceeded to the canefields. [He] saw two (2) persons riding on the carabao whom he identified as Jose Villacastin, Jr. together with Joselito Escarda. He awakened Rosalina Plaza who thereafter went to Joel Barrieses, owner of the carabaos, to inform the latter that his carabaos were stolen. [Rosalina Plaza] testified that on July 29, 1987 at about 2:00 oclock in the morning, in the residence of Joel Barrieses, Di onesio Himaya called her and informed her that the carabaos were stolen and when asked who stole the carabaos, Dionesio Himaya only mentioned Jose Villacastin, Jr. Before the incident of July 29, 1987, she already knew the person of Jose Villacastin, Jr., because the latter always passed by their house. After she was informed of the stealing of the carabaos, she went to the corral to check whether the carabaos were there but discovered that the beasts were no longer there and the cyclone wire was destroyed. She informed Joel Barrieses, that Jose Villacastin, Jr., stole the carabaos and she went to the 334th PC Company and reported the incident.iii[3] In their defense, Escarda and Villacastin denied the charges. Escarda claimed that he was sleeping in the house of Gilda Labrador during the incident while Villacastin declared that he too was sleeping in his house at that time.iv[4] The defense version of the incident was summarized by the trial court as follows: Joselito Escarda testified that he did not know his co-accused in this case, specifically, Jose Villacastin, Hernani Alegre and Rodolfo Caedo. Neither did he know of somebody by the name of Dionesio Himaya although he knew somebody by the name of Gilda Labrador. In the early morning of July 29, 1987, he was working as cane cutter and hauler in the hacienda of Javelosa located in Barrio Malubon,

Sagay, Negros Occidental which is fifteen (15) kilometers away from the house of his mother where he was residing. On July 29, 1987, he started working at 8:00 oclock in the morning and ended at 11:00. After he finished working in the field, he went to the house of his mother where he ate lunch and rested until 3:00 oclock in the afternoon. In the evening of July 29, 1987, he slept at the h ouse of Gilda Labrador starting at 7:00 oclock in the evening and woke up at 6:00 oclock in the morning of July 30, 1987. Sometime on August 29, 1987, he left alone for the dance hall located at Hda. Ricky to attend a dance held there because there was a fiesta at that time. While he was at the dance hall, he was arrested by the PC elements and brought to the 334th PC Company where he was maltreated. He was asked whether or not he stole the carabaos at Hda. Ricky but he denied the commission of the crime and again, he was maltreated. He suffered injuries when they maltreated him so he made a confession before them but did not sign the same. His injuries were not treated by a physician because the PC would not let him go out of the jail, so, his injuries healed while he was in jail. He did not know the names of the PC who maltreated him and forced him to admit the loss of the carabaos at Hda. Ricky because the maltreatment happened in the evening. Furthermore, he did not know the complainant in this case, i.e. Joel Barrieses. xxx [Jose Villacastin, Jr. testified] that on or before July 29, 1987, he did not know the accused Joselito Escarda, Hernani Alegre and Rodolfo Caedo because in the early morning of July 29, 1987, at more or less 2:00 oclock to 3:00 oclock, he had not gone with Joselito Escarda, Hernani Alegre and Rodolfo Caedo because he was sleeping in his house which is located in Sitio Candiis. He started sleeping at 8:00 oclock in the evening of July 28, 1987 and woke up the next day, July 29, 1987 at 7:00 in the morning. On August 29, 1987 at 10:00 oclock in the evening, he was attending a dance at Hda. Ricky and while watching the dance, he was arrested and brought to the 334th PC Headquarters in Tan-ao, Sagay, Negros Occidental. When they arrived at the PC Headquarters, they were investigated about the stealing of the carabaos and the PC elements wanted them to admit it. He denied what they were accusing him of because he has not committed the crime. He does not know of anybody by the name of Joel Barrieses. When he denied the commission of the crime, he was maltreated and was forced to admit it and to make a confession. They were detained for about a month at the 334th PC Headquarters and they were transferred to the Municipal Jail of Sagay, Negros Occidental and there was no lawyer present during his refusal to admit the stealing of the carabaos.v[5] The trial court found the testimonies of the prosecution witnesses credible, while it disbelieved the defense of denial and alibi of accused Escarda and Villacastin. They were found guilty as charged. However, the charge against accused Rodolfo Caedo was dismissed for insufficiency of evidence. Earlier, the charge against co-accused Hernani Alegre was dismissed on motion by the prosecution, for lack of evidence. Insisting on their innocence, Escarda and Villacastin filed their notice of appeal. In their assignment of error, they alleged that the trial court erred in convicting them of the crime charged.vi[6] On November 27, 1995, we required the trial court to order the commitment of Escarda and Villacastin to the Bureau of Corrections or the nearest national penal institution. However, Executive Judge Renato Muez requested that their commitment to the Bureau of Corrections be deferred until the termination of the other criminal casevii[7] against them pending before the said trial court. Further, Captain Eduardo Legaspi, Acting Provincial Warden of Negros Occidental, also requested to hold in abeyance the commitment of Escarda and Villacastin in view of their pending criminal cases before the Regional Trial Court of Cadiz City.viii[8] Accordingly, we granted the aforesaid request for deferment.ix[9] On August 12, 1998, they were eventually committed to the New Bilibid Prison, Muntinlupa City.x[10] On October 12, 1998, Escarda sought the approval of this Court to withdraw his appeal.xi[11] We required the Director of the New Bilibid Prison to confirm the voluntariness of said withdrawal.xii[12] In his certification dated July 15, 1999, Atty. Roberto Sangalang, who personally examined Escarda, attested that Escarda executed his urgent motion to withdraw appeal on his own free will and fully understood the consequences of the same. On August 9, 1999, we granted Escardas motion to withdraw appeal. xiii[13] Accordingly, we are now concerned only with the appeal of the remaining appellant, Jose Villacastin, Jr. In his brief, he assigns only one error: THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE CRIME CHARGED BEYOND REASONABLE DOUBT. Appellant contends that the element of taking away of carabaos by any means, method or scheme without the consent of the owner was not proven by the prosecution. He also alleges that his identity was not established beyond reasonable doubt, thus, he should be acquitted. He adds that the prosecution failed to prove ownership of the stolen carabaos by presenting the certificate of ownership,xiv[14] as required by the Anti-Cattle Rustling Law. Cattle rustling is the taking away by any means, method or scheme, without the consent of the owner or raiser of cow, carabao, horse, mule, ass, or other domesticated member of the bovine family, whether or not for profit or gain, or whether committed with or without violence against or intimidation of any person or force upon things. Cattle rustling includes the killing of large cattle, or taking its meat or hide without the consent of the owner or raiser.xv[15] In this case, the overt act which gives rise to the crime of cattle rustling is the taking away of the carabaos by the accused without the consent of the caretaker. Dionisio Himaya testified that he saw appellant cut the cyclone wire used as corral for the carabaos. Afterwards, appellant untied the two carabaos. Then, appellant rode on one carabao while co-accused Escarda rode on the other and immediately proceeded to the canefield.xvi[16] The taking was confirmed by Rosalina Plaza, the caretaker of the carabaos, who declared that after she was informed by Himaya about the incident, she went right away to the corral and discovered that indeed the two carabaos were missing. Appellants assertion that his identity was not positively established deserves no serious consideration. Prosecution witnes s Dionisio Himaya identified appellant and Escarda as the rustlers. In his testimony, Himaya said he was awake at that time as he was watching over his cornfield nearby, and there was enough illumination from the moon.xvii[17] He was just four arms length away. He saw appellant and Escarda unleash the two carabaos. He stated that appellant rode on one carabao while Escarda rode on the other, and both immediately went away. He said he easily recognized appellant as he knew him long before the incident. According to the witness, appellant was the nephew of his wife and used to visit them before. During the trial, the witness positively identified appellant as the same person who stole the carabaos. Appellants contention concerning lack of proper identification is, in our view, baseless and unmeritorious.

Similarly, appellants assertion, that the prosecution should have first presented the certificate of ownership of the stolen carabaos to warrant his conviction, is untenable. It is to be noted that the gravamen in the crime of cattle-rustling is the taking or killing of large cattle or taking its meat or hide without the consent of the owner. The owner includes the herdsman, caretaker, employee or tenant of any firm or entity engaged in the raising of large cattle or other persons in lawful possession of such large cattle. In this case Rosalina Plaza, the caretaker of the carabaos, did not consent to the taking away of the carabaos. She immediately informed Joel Barrieses, the owner, that the carabaos were stolen and reported the incident to the police. Note that the carabaos ownersh ip was never put in issue during the trial in the lower court and is now raised belatedly. It is settled that, generally, questions not raised in the trial court will not be considered on appeal.xviii[18] Appellants alibi must likewise fail. He insists that he was sleeping in his house at the time the crime occurred. He slept at 8:00 P.M., July 28, 1987 and woke up the next day, July 29, 1987 at 7:00 A.M. As the trial court noted, it is difficult to believe appellants claim that he slept for eleven hours straight just like Escarda. Besides, the rule is settled that alibi cannot prosper unless it is proven that during the commission of the crime, the accused was in another place and that it was physically impossible for him to be at the place where the crime was committed.xix[19] In this case, appellant failed to demonstrate satisfactorily that it was physically impossible for him to be in the crime scene at the time of the incident. Admittedly, the scene of the crime was only a fifteen-minute walk from appellants house. We note that the trial court appreciated the aggravating circumstances of nighttime, unlawful entry and recidivism, without any mitigating circumstance. The prosecution, however, failed to specify these circumstances in the charge filed before the trial court, as now required expressly by the Code of Criminal Procedure effective December 1, 2000 but applicable retroactively for being procedural and pro reo.xx[20] Moreover, we find that the trial court also erred in appreciating the aggravating circumstance of recidivism. A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Code. In its decision, the trial court merely mentioned that appellant was convicted for cattle rustling under Criminal Case No. 627-S on February 8, 1993, at the time when the case at bar was being tried. It did not state that said conviction was already final. Even the records did not show that appellant admitted his previous conviction. As we had held before, there can be no recidivism without final judgment.xxi[21] The best evidence of a prior conviction is a certified copy of the original judgment of conviction, and such evidence is always admissible and conclusive unless the accused himself denies his identity with the person convicted at the former trial.xxii[22] P.D. 533 does not supersede the crime of qualified theft of large cattle under Articles 309xxiii[23] and 310xxiv[24] under the Revised Penal Code. It merely modified the penalties provided for qualified theft of large cattle under Article 310 by imposing stiffer penalties thereon under special circumstances.xxv[25] Under Section 8xxvi[26] of P.D. 533, any person convicted of cattle rustling shall, irrespective of the value of the large cattle involved, be punished by prision mayor in its maximum period to reclusion temporal in its medium period if the offense is committed without violence against or intimidation of persons or force upon things. If the offense is committed with violence against or intimidation of persons or force upon things, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed. In the instant case, the offense was committed with force upon things as the perpetrators had to cut through the cyclone wire fence to gain entrance into the corral and take away the two carabaos therefrom. Accordingly, the penalty to be imposed shall be reclusion temporal in its maximum period to reclusion perpetua. Applying the Indeterminate Sentence Law, the penalty imposable on appellant is only prision mayor in its maximum period as minimum, to reclusion temporal in its medium period as maximum. Thus, it is proper to impose on appellant only the indefinite prison term of ten (10) years and one (1) day of prision mayor as minimum; to fourteen (14) years, ten (10) months and twenty-one (21) days of reclusion temporal as maximum. WHEREFORE, the assailed decision dated September 21, 1994, of the Regional Trial Court of Cadiz City, Branch 60, in Criminal Case No. 586S, is AFFIRMED with MODIFICATION. Appellant Jose Villacastin, Jr., is declared guilty of violating the Anti-Cattle Rustling Law (P.D. 533) and sentenced to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor as minimum; to fourteen (14) years, ten (10) months and twenty-one (21) days of reclusion temporal as maximum; and to indemnify offended party Joel Barrieses the amount of P5,000, and to pay the costs. G.R. No. 91721 July 31, 1991 CONSTANCIO ORDONIO, petitioner, vs.THE HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. In an information dated July 12, 1982 before the Court of First Instance of Negros Oriental, Constancio Ordonio was indicted of the crime of cattle rustling committed as follows: That sometimes in the evening of Tuesday, January 5, 1982, at Bgy. Omanod, Sta. Catalina, Negros Oriental, and within the preliminary jurisdiction of this Honorable Court, the above-named accused, with the intent of gain, did then and there willfully, unlawfully and feloniously took, steal, and carry away one (1) male cow, color red and white (cabang) highbreed, more or less eleven months old, without the knowledge and consent of the owner Mr. Anastacio Pajunar. That as a result thereof, the victim Anastacio Pajunar was damaged and prejudiced in the amount of SEVEN HUNDRED PESOS (P700.00), Philippine Currency, as the estimated cost and value of the stolen cow. With damages. 1 Contrary to law. As found by the trial court and affirmed by the Court of Appeals, the attendant circumstances which precipitated this petition for review on certiorari are clear. A study of this case showed that on January 6, 1982, Anastacio Pajunar discovered the loss of his eleven month old cow (which he pastured 100 meters from as house on January 5, 1982). He searched for it and asked his not too distant neighbor, Constancio Ordonio, whether he had seen it. Ordonio allegedly denied having seen it, and when Pajunar

heard the mooing of a cow, Ordonio was quick to say that was the cow he was tending. However, Pajunar followed the direction of the sound and discovered that it was his own cow. Ordonio insisted that it was his brother's cow which was entrusted to him. So Pajunar tied it near Ordonio's house and left to report the matter to the authorities. Pajunar went to Barangay Captain Leopoldo Enumerabellon who gave him a note for the PC. Two PC soldiers accompanied him and went with him to the house of Barrio Councilman Leonardo Pajaron, and together they went to Ordonio's place. He also took with him his milking cow and upon arrival at Ordonio's place, the calf ran and approached its mother. The PC soldiers told the wife that since Ordonio was not around, the calf had to be entrusted to the barrio official and the wife consented. The following day, the 7th of January, 1982, they met with sub-barangay captain Enumerabellon. When asked why he, Ordonio was claiming the cow, his answer was that it was his brother's cow entrusted to him But Ordonio's wife told her husband thus, "Ne, let's just give the cow to the real owner and we will 2 pay the damages. In his defense, the accused, Constancio Ordonio, presented a different version. . . . Ordonio declared that on January 6, 1982, at about 6:00 o'clock A.M., Santiago Oyhoc reported to him that he saw a cow in his mongo and corn farm. Ordonio just wanted to drive the cow out of his farm but Oyhoc suggested it be caught so that it would not return So, with a rope he caught the cow and tied it near his house. He claimed that he recognized the cow to be Pajunar's and even left instructions to his wife to return it to Pajunar should he come for it. In the meantime, he went to Calanian about 9 kilometers from his house to sell corn. When he returned in the evening, he learned from his wife that they were accused of stealing the cow and that the two PC soldiers who came together with Pajunar and Pajaron took the cow to place it in the custody of Enumerabellon. That very evening too, he got a letter from Enumerabellon instructing him to go to his place. So that on the 7th, he and as wife went to see Enumerabellon. At Enumerabellon's house were also the complainant, Anastacio Pajunar, barrio councilman Pajaron and Pajunar's son. An investigation was conducted with Ordonio and his wife saying that Pajunar owned the cow, so it was given back to Pajunar who brought it 3 home. In a decision dated January 26, 1988, the trial court * rendered this judgment of conviction: IN VIEW OF THE FOREGOING, it is the opinion of this Court and so holds that the prosecution has proved beyond the shadow and doubt the guilt of accused and finds said accused guilty of the clime of Violation of Presidential Decree No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974. There being no mitigating nor aggravating circumstances and applying the Indeterminate Sentence Law, accused Constancio Ordonio should be punished with a penalty next lower by one (1) degree than that provided for the crime committed and therefore accused Constancio Ordonio should be sentenced to suffer the penalty of imprisonment ranging from four (4) years, two (2) months and one (1) day as minimum to six (6) years as maximum of prision correccional. 4 SO ORDERED. Upon motion of the accused on the ground of newly discovered evidence, and against the vigorous objection of the prosecution, the trial court conducted a new trial. This time, the defense presented Pastor Banquerigo, an 81-year-old barrio entertainer, who substantially corroborated the account of Constancio Ordonio. Pastor swore that on January 6, 1982, he saw Constancio take possession of a cow and tie it near his house where it could be easily seen by passers-by. 5 Unconvinced, the trial court in the Order dated August 11, 1985 maintained its judgment of conviction, reasoning that upon consideration of the testimony of Pastor Banquerigo, it found no urgent reason to disturb its decision dated January 26, 1988. The accused took exception 6 to the judgment of the trial court and interposed an appeal to the Court of Appeals, imputing the following errors: a) The lower court erred in presuming that the elements of the crime are obtaining in the case at bar; b) The Court a quo erred to bank merely on the weakness of the evidence of the accused, while it failed, of its own evidence, to prove the guilt of the accused beyond reasonable doubt; c) The lower court overlooked certain facts of substance and value that, if considered, would affect the outcome of the case, and the decision is based on misapprehension of facts. 7 Unimpressed, the Court of Appeals ** affirmed in toto the decision of the trial court, and subsequently denied the accused's motion for reconsideration through a Resolution dated November 13, 1989. The accused now comes before this Court, reiterating all the three errors he assigned to the trial court and the Court of Appeals. The accused faults the decision of the respondent court for its misapprehension of facts. The actual raking of the calf was not proven by the prosecution, he points out. That the complainant found the calf tied in the appellant's upland property does not make him a cattle rustler. Nor does his supposed failure and/or refusal to tell the complainant where the cow was even if he (the accused) knew where it was. Actually, the accused claims, he was at that time in Calanian nine kilometers from Sta. Catalina how could the complainant have asked him about his calf? And the mere stepping on the rope (granting this is true) to which the calf was tied when complainant towed it does not constitute theft of the calf either. Because if the accused had intended to steal it why would he tie it near his house? The accused asserts that the animal had gone astray and consequently destroyed his plants. To prevent further damage to the plants he caught it and tied it near his house. He thought it burdensome to report the matter to the Barangay Captain or bring the calf to him. The complainant should not kick up a storm over the matter as he was able to recover his calf anyway. Besides, the accused alleges that the complainant pressed charges against him out of spite as he and the complainant were litigants in a land dispute. The complainant tried to "blackmail" him into abandoning the civil case in exchange for his dropping of this case. But he (the accused) refused, so the complainant proceeded to file this case in the trial court. The petition must fail.

We note at the outset that in petitions under Rule 45 of the Rules of Court like this case, review is limited only to errors of law committed by the Court of Appeals. Factual findings of the trial court which are especially confirmed by the Court of Appeals are conclusive and can no 8 9 longer be reviewed. Of course, there are well-defined exceptions, for instance, misapprehension of facts which the accused now posits. The records however show that the respondent court, as well as the trial court, committed no such misapprehension of facts. Significantly, the lower courts did not anchor the conviction of the appellant on what he alleges to have resulted in a misapprehension of facts. The lower courts did not convict the appellant on the basis of the missing calf s having been found tied in the accused's premises nor on his failure and/or refusal to tell the owner the whereabouts of the calf, nor on the accused's stepping on the rope to which the "lost" calf was tied when the complainant was towing it. Rather, the lower courts convicted him on the basis of his actuations when the lost calf was found in his possession. The lower courts noted the following: 1. When complainant discovered the loss of his calf, he inquired from petitioner whether he has seen the calf but the 10 latter denied having seen it. 11 2. When complainant queried the whereabouts of the calf for the second time, accused anew denied having seen it. 3. When complainant eventually located the calf in accused estate the latter refused to give the calf claiming it 12 belonged to his brother, Agustin. 4. Complainant needed the assistance of a barangay official and two PC soldiers to dispossess accused of that calf and 13 eventually placed it in the custody of the Barangay Captain. 14 5. At the Barangay Captain's residence accused still insisted that the calf belonged to his brother, Agustin. The accused-petitioner had the temerity to act thus even if the calf did not belong to him, but to the complainant as he admitted before the trial court. But independent of the admission by the accused, complainant ownership of the calf is further forfeited with this one important circumstance. When complainant went to accused's house, accompanied by barangay councilman, Pajunar, and two PC soldiers, the milking cow was brought along. Upon arrival, the PC soldiers let loose the calf and the latter immediately ran to the milking cow to suck 15 on its milk. Such conduct of the calf manifests all the signs of the young whether human or not, on finding a lost mother. Section 2(c) of P.D. 533, defines cattle rustling as follows: Sec. 2(c). Cattle rustling is taking away by any means, methods or schemes, without the consent of the owner/raiser, of any of the above mentioned animals whether or not for profit or gain, or whether committed with or without violence against or intimidation of any person or force upon things. It includes the killing of large cattle, or taking its meat or hide without the consent of the owner/raiser. Note the phraseology of the provision "taking away by any means, methods or schemes." Thus, intent to gain may be inferred from the deliberate failure to deliver the lost property to the proper person, the finder knowing that the property does not 16 belong to him. In this case, the several circumstances enumerated earlier constitute an unbroken chain of events which leads 17 to one fair and reasonable conclusion which is that the accused indeed took the calf with the intent to appropriate it. To recapitulate, the stubborn insistence of the accused that the missing calf belonged to his brother, Agustin, knowing fully well that it belonged to the complainant (as he later admitted in his answers to questions of the trial court), in essence, is cattle rustling. In discrediting the evidence of the defense, we quote with approval the decision of the Court of Appeals. The evidence is clear that appellant twice denied knowledge of the calf when private complainant asked him if he has seen the missing calf. And when the calf was finally located by the private complainant, the appellant stopped the private complainant from bringing the calf home alleging that the calf belongs to his brother Agustin which was entrusted to his care. However, after realizing that his claim can no longer hold water because private complainant has proved his ownership of the calf in question, appellant now avers in as testimony that he caught the calf because it was eating and destroying his plants and it was his intention to return the calf to the owner. Appellant reasoned out further that he was not in his house when private complainant went there but that it was only his wife who was at home and with whom the private complainant talked. We are not the least convinced of appellant's stand. To US, such a posture 18 now being taken by the appellant is nothing but a last and desperate attempt to exculpate himself from liability. xxx xxx xxx [And] if it is true likewise that it was appellant's wife only with whom private complainant talked on that day of January 6, 1982 when the latter was looking for his missing calf because the appellant was allegedly not at home, how come that appellant's wife was not even presented by appellant as a witness to rebut at least the clear testimony of private 19 complainant that it was the appellant he talked with that day? Our thorough review of the case convinces us of the guilt of the appellant beyond reasonable doubt, hence the respondent court did not commit any reversible error in affirming the decision of the trial court. WHEREFORE, the decision of the respondent Court of Appeals, dated August 9, 1989, and its Resolution, dated November 13, 1989, are AFFIRMED. No costs. G.R. No. 85204 June 18, 1990 JORGE TAER, petitioner, vs. THE HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. This is a petition for review on certiorari of the decision rendered by the Court of Appeals in "People v. Jorge Taer," CA-G.R. CR No. 1 01213, dated May 26, 1988, which affirmed in toto the conviction of Jorge Taer for the crime of cattle rustling by the Regional Trial 2 Court of Bohol in Criminal Case No. 3104, and the resolution of the same court denying the petitioner's Motion for Reconsideration. After the required preliminary investigation in the 11th Municipal Circuit Court at Valencia-Dimiao, in the province of Bohol, the following information was filed in the then Court of First Instance of Bohol, 14th Judicial District, Branch IV, at Tagbilaran City:

The undersigned, Third Assistant Provincial Fiscal, hereby accuses Emilio Namocatcat alias Milio, Mario Cago, Jorge Taer and Cerilo Saludes for the crime of Theft of Large Cattle, committed as follows: That on or about the 5th day of December, 1981, in barangay Lantang, municipality of Valencia, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping with each other, with the intent of gain and without the consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and lead away two (2) male carabaos with the total value of FOUR THOUSAND PESOS (P4,000.00), Philippine Currency, belonging to and owned by Tirso Dalde and Eladio Palaca; to the damage and prejudice of the said offended parties in the aforestated amount. Acts committed contrary to the provisions of Articles 308, 309 and 310 of the Revised Penal Code, with the aggravating circumstance of nighttime being purposely sought for or taken advantage by the accused to facilitate the commission of the crime. 3 City of Tagbilaran, June 1, 1982. After proper proceedings and trial, Saludes and Cago were acquitted but Taer and Namocatcat were convicted. The dispositive portion of the decision of the trial court, dated July 6, 1984, reads as follows: WHEREFORE, the Court finds accused Emilio Namocatcat and Jorge Taer GUILTY beyond doubt of the theft of large cattle and appreciating against them the aggravating circumstance of nocturnity and pursuant to Presidential Decree No. 533 each is hereby sentenced to undergo the indeterminate penalty of imprisonment of from SIX (6) YEARS and ONE DAY TO FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY ONE (21) DAYS, together with the accessory penalties, and to pay the costs; they are entitled to credit for their preventive imprisonment. Accused Mario Cago 4 and Cirilo Saludes are ACQUITTED for insufficiency of evidence. Only Jorge Taer appealed to the Court of Appeals. The Court of Appeals, finding the evidence of the prosecution that conspiracy indeed existed between Emilio Namocatcat and Jorge Taer, affirmed in toto the decision appealed from. But the affirmance did not affect Emilio Namocatcat because, as adverted to earlier, he did not appeal his conviction by the Regional Trial Court. Hence, this petition for review was filed by Taer alone. In sum, Taer interposed these twin arguments: 1. That the extent of his participation did not go beyond the participation of the original defendants Cirilo Saludes and Mario Cago. 5 Therefore, he submits that the acquittal of these two by the trial court should also lead to his acquittal; 2. That the only evidence proving the alleged conspiracy between him and Emilio Namocatcat was the confession of his co-accused Emilio Namocatcat. However this should not be considered as admissible because the same is hearsay under the rule of res inter alios 6 acta. The undisputed facts as found by the trial court show that: In the evening of December 5, 1981, accused Cirilo Saludes slept in the house of his compadre accused Jorge Taer at Datag, GarciaHernandez, Bohol, whereat he was benighted. At about 2:00 o'clock dawn, December 6, 1981, accused Emilio Namocatcat and Mario Cago arrived at Taer's house with two (2) male carabaos owned by and which Namocatcat wanted Taer to tend. The said carabaos were left at Taer's place. Tirso Dalde and Eladio Palaca of Lantang, Valencia Bohol discovered in the morning of December 6, 1981 that their respective male carabaos, 3 to 4 years old, were missing at the different grazing grounds whereat they tied the same the afternoon preceding. After searching in vain for the carabaos at the vicinity, Dalde and Palaca reported the matter to the police. On December 15, 1981, one Felipe Reyes of Hinopolan, Valencia, Bohol, informed Dalde that he saw the latter's lost carabao at Datag, Garcia-Hernandez. Forthwith Dalde and Palaca went on that day to Datag and there they found their missing carabaos tied to a bamboo thicket near the house accused Taer who was then not in the house as he was in Napo, Garcia-Hernandez, attending the fiesta where he cooked for the accused Saludes. Upon query by Dalde and Palaca why their carabaos were found at his place, accused Taer, according to Dalde and Palaca replied that the carabaos reached his place tied together without any person in company. According to accused Taer, what he told Dalde and Palaca was that the carabaos were brought to his place by the accused Namocatcat who asked him to tell anybody looking for them that they just strayed thereat. 7 The 2 carabaos were taken by Dalde and Palaca from accused Taer's possession on that day, December 15. xxx xxx xxx The Court of Appeals would consider these as proof of the existence of conspiracy: Altho (sic) accused Taer admitted that before December 6, 1981, he had not met accused Namocatcat since 1975 and had not previously tended any carabao belonging to Namocatcat, it is unbelievable that Taer was not suspicious of the origin of the 2 male carabaos which to say the least were delivered to him to be tended under strange circumstances, to wit, at the unholy hour of 2:00 o'clock dawn after a travel of 14 kilometers' in the dead of the night. He unreservedly accepted the charge of tending them with the agreement as to the sharing of the produce out of said carabaos (sic) use. If, as he asserted, Namocatcat left the carabaos with him with the word that if anybody would look for them he was to tell that the carabaos just strayed into his other carabaos (sic), the more Taer ought to be more suspicious as to the origin of said carabaos, yet, since that dawn delivery on December 6, 1981, until they were retrieved from his possession, he never apprised the barangay captain, living just 2 kilometers away from his house, about the matter. He continued to hold on to the stolen carabaos until they were recovered 10 days later. Ordinarily, one would not hold on to a thing he suspects to be stolen to obviate any criminal responsibility or implication. But accused Taer did the opposite-a clear indication that he and accused Namocatcat did have some kind of an unlawful agreement regarding the stolen carabaos. He did not even reveal immediately to the authorities that the carabaos delivered to him by Namocatcat were stolen and he tried his best to keep under cover Namocatcat's Identity.

The Court, therefore, finds that conspiracy between accused Namocatcat and Taer in the theft of the carabaos has 8 been established beyond doubt. xxx xxx xxx We disagree with the findings of the respondent court; they are mere suspicions and speculations. The circumstances adverted to above do not establish conspiracy beyond reasonable doubt. There is conspiracy when two or more persons come to an agreement regarding the commission of an offense and decide to commit it. Although the facts may show a unity of purpose and unity in the execution of the unlawful objective, essential however is an agreement 9 to commit the crime and a decision to commit it. Only recently we emphasized the rule that: Conspiracy must be established not by conjectures, but by positive and conclusive evidence. The same degree of proof necessary to establish the crime is required to support a finding of the presence of criminal conspiracy, which 10 is, proof beyond reasonable doubt. Thus mere knowledge, acquiescence to, or approval of the act, without cooperation or agreement to cooperate, is not enough to constitute one a party to a conspiracy absent the intentional participation in the transaction with a view to the furtherance of the common design and purpose. At most the facts establish Taer's knowledge of the crime. And yet without having participated either as principal or as an accomplice, for he did not participate in the taking of the carabaos, he took part subsequent to the commission of the act of taking by profiting himself by its effects. Taer is thus only an accessory after the fact. Article 19 of the Revised Penal Code states: 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 manners: 11 1. By profiting themselves or assisting the offender to profit by the effects of the crime; xxx xxx xxx person who received any property from another, and used it, knowing that the same property had been stolen is guilty as an accessory because he is profiting by the effects of the crime." By employing the two carabaos in his farm, Taer was profiting by the objects of the 12 theft. On the conspiracy charge, the most cogent proof that the prosecution could ever raise was the implication made by the accused 13 Namocatcat (he did not appeal his conviction to the Court of Appeals) in his affidavit of confession. 14 However, the settled rule is that the rights of a party can not be prejudiced by an act, declaration, or omission of another. The testimony, being res inter alios acta, can not affect another except as provided in the Rules of Court. This rule on res inter alios acta specifically applies when the evidence consists of an admission in an extrajudicial confession or declaration of another because the 15 defendant has no opportunity to cross-examine the co-conspirator testifying against him. Since this is the only evidence of the prosecution to prove the conspiracy with Namocatcat, this uncorroborated testimony can not be sufficient to convict Taer. The offense for which Taer is accused is covered by Articles 308, 309, and 310, as amended by "Me Anti-Cattle Rustling Law of 1974. 1116 The penalty imposed on the principal for the crime of cattle rustling is: Sec. 8. Penal provisions. Any person convicted of cattle rustling as herein defined shall, irrespective of the value of the large cattle involved, be punished by prision mayor in its maximum period to reclusion temporal in its medium period if the offense is committed without violence against or intimidation of persons or force upon things. If the offense is committed with violence against or intimidation of persons or force upon things, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed. If a person is seriously injured or killed as a result or on the occasion of the commission of cattle rustling, the penalty of reclusion perpetua to death shall be 17 imposed. xxx xxx xxx Inasmuch as Taer's culpability is only that of an accessory after the fact, under Art. 53 of the Revised Penal Code, the penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed. The penalty two degrees lower than that imposed under the first sentence of Section 8 of PD No. 533 is arresto mayor maximum or 4 months and one day to 6 months to prision correccional medium or 2 years 4 months and 1 day to 4 years and 2 months. In addition, the Revised Penal Code provides that when the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, the courts shag observe the rule that when there are neither aggravating nor mitigating 18 circumstances, they shall impose the penalty prescribed by law in its medium period. Hence the imposable penalty would be prision correccional minimum or 6 months and 1 day to 2 years and 4 months imprisonment. 19 Since the maximum term of imprisonment exceeds one year, we apply the Indeterminate Sentence Law. This law provides that the maximum term of imprisonment shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said code which is prision correccional minimum or 6 months and 1 day to 2 years and 4 months. And the minimum shall be within the range of the penalty next lower to that prescribed by the Code for the offense. The penalty next lower would be in the range of destierro maximum or 4 years 2 months and 1 day to 6 years to arresto mayor medium or 2 months and 1 day to 4 months. WHEREFORE, the decision rendered by the Regional Trial Court of Tagbilaran and affirmed by the respondent Court of Appeals is hereby MODIFIED in that the herein JORGE TAER is convicted as an accessory of the crime of cattle-rustling as defined and penalized by PD No. 533 amending Arts. 308, 309, and 310 of the Revised Penal Code and he will serve the minimum penalty within the range of arresto mayor medium, which we shall fix at 4 months imprisonment and the maximum penalty of prision correccional minimum which we shall fix at 2 years.

G.R. Nos. L-66401-03 February 13, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO MARTINADA, BONIFACIO MESIAS, BONDOY MORATO, and TWO JOHN DOES, defendants. FRANCISCO MARTINADA and BONIFACIO MESIAS, This is a mandatory review of the decision of the Regional Trial Court, Branch XV at Palo, Leyte in Criminal Cases Nos. BN-1886, BN 1886-A and BN-1886-B. In three separate informations, appellants Francisco Martinada and Bonifacio Mesias, together with one Bondoy Maroto and two John Does were all charged with (a) qualified theft of large cattle or cattle rustling; (b) illegal possession of firearms and (c) frustrated murder. The trial court, after joint trial, found the appellants guilty as charged and sentenced them accordingly, as follows: WHEREFORE, judgment is hereby rendered, finding the two accused, Francisco Martinada and Bonifacio Mesias, GUILTY beyond doubt of Qualified Theft of Large Cattle as charged in the information (Criminal Case No. BN-1886) with the aggravating circumstances of Recidivism and by a band, and as provided for in P.D. No. 533, otherwise known as the ANTI-CATTLE RUSTLING LAW of 1974, hereby sentences both accused to the Maximum Penalty of DEATH, to indemnify the Spouses Alejandro Naboya and Segundina Elias the sum of P 2,500.00 without subsidiary imprisonment in case of insolvency and for each to pay one-half (1/2) of the costs. WHEREFORE, judgment is hereby rendered, finding the two accused Francisco Martinada and Bonifacio Mesias, GUILTY beyond reasonable doubt of Illegal Possession of Firearms as charged in the Information (in Criminal Case No. BN-1886A) and hereby sentences both accused to an indeterminate penalty of not less the FIVE (5) years of Prision Correccional as Minimum to not more than TEN (10) YEARS of Prision Mayor as Maximum, and for each to pay one-half (1/2) of the costs. WHEREFORE, judgment is hereby rendered, finding the two accused, Francisco Martinada and Bonifacio Mesias, GUILTY beyond reasonable doubt of the crime of Frustrated Murder as charged in the Information (in Criminal Case No. BN1886-B) with the qualifying circumstance of treachery and hereby sentences both accused to an indeterminate penalty of not less than SIX (6) YEARS and ONE (1) DAY of Prision Mayor as Maximum to not more than TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal as Maximum and each to pay one-half (1/2) of the costs. (pp. 18-19, Rollo) Accused Bondoy Maroto was not arrested and is still at large. Even as the death penalty was meted out only in Criminal Case No. 1886 for cattle rustling, appellants still filed their brief with this Court in all three criminal cases since the crimes were committed on the same occasion, the factual allegations in the three cases are intertwined and they were heard jointly. It appears that at about midnight of February 13, 1982, Segundina Naboya was awakened by the barking of their dog; that her husband Alejandro, herein victim, descended from their house after having been awakened by a gun report; that at about the same time, Pascual Naboya, brother of Alejandro Naboya who was residing about 50 meters away from the latter's house, also heard the barking of the dog; that Pascual stepped down from his house to verify why the dog was barking, whereupon, he heard a gun burst which made him walk towards Alejandro's house armed with a bolo; that he heard a second shot and then saw Alejandro already lying on. the ground; that the victim was hit at the neck; that Segundina recognized Mesias and Martinada as the assailants; that Pascual Naboya also recognized Martinada, Mesias and Maroto as the culprits; that after Alejandro was shot, appellant Martinada untied the carabao and the latter and his companions took the carabao away; and that the victim's wound required seven to nine days to heal. Appellants impute these errors to the trial court: 1. The trial court erred in ruling that the guilt of appellants Martinada and Mesias was proven beyond reasonable doubt. 2. The trial court erred in incorporating into the record and making as part of its decision the unsolicited fact of the alleged previous convictions for qualified theft of large cattle and illegal possession of firearms of appellants Martinada and Mesias, and thus violated their constitutional right to be informed of the cause and nature of the accusation against them and to a fair and just trial before a neutral and objective judge. 3. The trial court erred in holding that the shooting of Alejandro Naboya was attended by treachery and in not ruling that the crime committed was at most attempted homicide. In their attempt to impeach prosecution witnesses Segundina Naboya, Alejandro Naboya and Pascual Naboya, appellants have actually assailed the credibility of these witnesses for the purpose of destroying the latter's positive Identification of said appellants. Appellants seem to forget the moth-eaten fundamental principle that the findings of the lower court which had the best opportunity to hear and observe the witnesses testify and to weigh their testimonies are given the highest respect and recognition by the appellate court. This Court has thus held in the case of People v. Trigo, No. 76515, June 14, 1989 (174 SCRA 93) that on the matter of witnesses' credibility, appellate courts give weight and the highest degree of respect to trial courts' findings in criminal prosecution, because the latter are in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial. Thus, too, in the case of Matabuena v. Court of Appeals, No. 76542, May 5, 1989 (173 SCRA 170), this Court ruled that absent any substantial proof that the trial court's decision was grounded entirely on speculations, surmises or conjectures, the same must be accorded full consideration and respect. This should be so because the trial court is, after all, in a much better position to observe and correctly appreciate the respective parties' evidence as they were presented. On the alleged inconsistencies in the declarations of the prosecution witnesses, this Court sustains the submission of the Solicitor General that they are very minor and insignificant and do not in any way alter the fact that Alejandro was shot by the appellants and that the carabao was stolen.

Significantly, this Court has repeatedly declared that inconsistencies of witnesses on minor details do not detract from the positiveness of the identification of appellants (People vs. Alvarez, No. 70446, Jan. 31, 1989); that minor inconsistencies do not affect the witness' credibility; that they strengthen rather than weaken the witness' credibility (Medios vs. Court of Appeals, No. 79570, Jan. 31, 1989); and, that contradiction in the testimonies of witnesses instead of suggesting prevarication, indicates veracity, thereby bolstering the probative value of the testimonies as a whole (Ebajon vs. Court of Appeals, Nos. 77930-31, Feb. 9, 1989). With respect to the alleged delay or failure of witnesses Segundina Naboya and Pascual Naboya to immediately report the identity of the assailants, this Court finds such delayed reporting to have been sufficiently explained. It should be noted that appellants never refuted, and even conceded the veracity of the sworn statement of Segundina executed on February 25, 1982 wherein she explained that it took her twelve days to report the identity of the perpetrators of the crime because she was so busy attending to her husband Alejandro who was then confined in the hospital. Even on cross-examination, she confirmed her declarations in the aforesaid sworn statement. This Court takes note of the fact that appellant Mesias adopted the said sworn statement as part of his evidence. Emphatically also, as per Dr. Bugho's testimony, Alejandro's wound was fatal since it could have caused the latter's death had it not been for the timely medical intervention or treatment administered to the victim. Needless to say, for a wife whose husband was in imminent danger of dying, the natural and instinctive reaction was for the wife to be by her husband's side and to give her utmost care and attention in the effort to save his life. All other things like the reporting of the assailants' identity can be set aside; what mattered most was her husband's survival. Hence, the moment Alejandro was pronounced out of danger, Segundina immediately went to the police to execute her sworn statement. Notably, this Court has reiterated the well-entrenched pronouncement that delay of witnesses in informing others of what they know about a criminal offense will not affect their credibility, where delay is satisfactorily explained. (People vs. Andres, No. 75355; 155 SCRA 290) Likewise, in the case of People vs. Pacabes, 137 SCRA 158, the Court held that it is not uncommon for a witness to a crime to show some reluctance about getting involved in a criminal case. Indeed, the natural reticence of most people to get involved in a criminal case is of judicial notice. Very much in point is the case of People vs. Molato, No. 66634, Feb. 27, 1989; 170 SCRA 640, where this Court declared that there is no reason to doubt the widow's testimony as she was able to positively identify the assailant as the accused through the flashlight that her husband beamed at appellant even as the latter flashed his light at the victim. The place was illuminated by the flashlights of the two so that it is not impossible for the widow to recognize the appellant and his companion from a mere distance of four meters nor the other witness to identify the two assailants. The belated reporting of witness Pascual Naboya does not contradict the aforestated explanation of Segundina because the former acted independently of the latter's course of action and he did not so for a different reason-because of fear. This simply shows that both witnesses made their separate reports without prior consultation or arrangement with each other. Clearly, each was motivated by a distinct and independent reason for the delayed reporting. Whether the barking of the dog or the gun report awakened Segundina and Pascual is another matter where the alleged inconsistencies or variations in the declarations of the witnesses should be considered petty so as to affect substantially the weight of their testimony. whether it was the barking of the dog or the gunshot which jolted Segundina, Alejandro and Pascual from their sleep would not really matter; what is important is that they were all awakened by something unusual in the middle of the night and the cause was the presence of armed men within the premises. Note also that the declarations of Segundina and Pascual that the barking of the dog woke them up are corroborative. Possibly, Alejandro was sleeping so deeply that he did not hear the dog's bark but when a gunshot rang, the loud impact awakened him. Another alleged trivial discrepancy is the place or location where Alejandro was shot. While Segundina stated that Alejandro was shot on the ground about eight meters from her, the latter declared that he was hit inside his house at a distance of about two meters from Segundina. Whether or not the victim was shot while in the house or on the ground is again insignificant and such minor inconsistency would not and did not alter the fact that Alejandro was fired upon by the assailants from which he suffered a fatal wound. This discrepancy all the more proves that Alejandro and Segundina were not coached nor rehearsed in order to give a consistent testimony. The fact that their statements varied proves that they were telling the truth and the same were not a concoction as would have been normally expected of husband and wife. Thus, in a long line of cases this Court has ruled that alleged contradictions and inconsistencies pointed out by the accused in the testimony of prosecution witnesses relating to minor details do not destroy the credibility of witnesses. On the contrary, they indicate that said witnesses were telling the truth and not previously rehearsed. Appellant's claim that Alejandro should have been in an equal position and opportunity (as Segundina) to recognize appellant Martinada is inaccurate considering that when the victim was going down the house, a flashlight was beamed at his face which had the effect of blinding him temporarily. However,, in a moonlit night and within a distance of a few meters, both Segundina and Pascual positively identified the appellants. Notably, appellants' defense of alibi has not been substantiated because their alibis were never supported by any witness nor even by their own family members whom they were allegedly with that evening when the offenses were committed. This Court has consistently held that alibi cannot prevail over positive identification of prosecution witnesses and that alibi to be given full faith and credit must be clearly established and must not leave any doubt as to its plausibility and verity. (People vs. Serante, L-46724, 52 SCRA 525). The contention of appellants that the trial court should not have considered the aggravating circumstance of recidivism since said circumstance was not alleged in the information nor copies of previous sentences rendered against the accused were presented at the trial is not altogether correct. While it is true that to prove recividism, it is necessary to allege the same in the information and to attach thereto certified copies of the sentences rendered against the accused, such aggravating circumstance may still be given credence by the trial court if the accused does not object to the presentation of evidence on the fact of recidivism.

The records reveal that during the trial, the lower court made sufficient reference to the previous cases when it declared that appellant Martinada had been convicted and sentenced to fifty eight years of imprisonment for four cases of qualified theft of large cattle for illegal possession of firearm; and, that such sentence has become final and executory. Evidently, appellants never objected to the reference to the previous cases, nor did they deny that they were the same persons convicted in said cases. The referral made by the trial court should be relied upon because, after all, the records of prior cases are part of the court records which could be verified and produced readily. In the case of People vs. Monteverde (142 SCRA 668), this Court declared that the trial court properly appreciated recidivism as an aggravating circumstance although not alleged in the information because the same was proved by evidence. With regard to the shooting of Alejandro Naboya, this incident should have been considered by the trial court as a qualifying aggravating circumstance to the crime of cattle rustling. Since the information did not allege the fact of Alejandro's injury, the same can no longer be appreciated in the case of cattle rustling. The appellants therefore can be held guilty under Criminal Case No. 1886 only of simple cattle rustling, with the aggravating circumstance of recidivism. It goes without saying that the trial court should not have convicted accused Martinada and Mesias of the came of Frustrated Murder since this crime should have been absorbed in the crime of cattle rustling, thereby qualifying the latter. Section 8 of P.D. No. 533, otherwise known as Anti-Cattle Rustling Law of 1974, provides, to wit: Sec. 8. Penal provisions. Any person convicted of cattle rustling as herein defined shall, irrespective of the value of the large cattle involved, be punished by prision mayor in its maximum period to reclusion temporal in its medium period of the offense is committed without violence against or intimidation of persons or force upon things. If the offense is committed with violence against or intimidation of person or force upon things, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed. If a person is seriously injured or killed as a result or on the occasion of the commission of cattle rustling, the penalty of reclusion perpetua to death shall be imposed. . . . (pp. 12-13, decision) The circumstances of "committed with violence against or intimidation of persons or force upon things and a person was seriously injured or killed as a result or on the occasion of the commission of cattling rustling" are no doubt qualifying aggravating circumstances as they "not only give the clime committed its proper and exclusive name but also place the author thereof in such a situation as to deserve no other penalty than that especially prescribed for said crime. (People v. Bayot, 64 Phil. 269,273 [1973]) (p. 13, decision) Thus, the trial court could no longer convict separately accused Martinada and Mesias of the crime of Frustrated Murder, otherwise there would be double jeopardy. This Court finds merit in the submission of the Solicitor General that graduation of penalties as determined by the presence of aggravating and mitigating circumstances still applies. The Solicitor General thus justifies his contention: P.D. No 533, in the context of Article 10 of the Revised Penal Code, which reads, to wit: Art. 10. Offenses not subject to the provisions of this Code. Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary. which provision is the basis of the principle relied upon by the appellants, as enunciated in the cited case of People v. Respecio, 107 Phil. 995, 996, [1960], is not a special law. As will be noted, P.D. No. 553 merely modified the penalties provided for qualified theft of large cattle under Article 310 of the Revised Penal Code, imposing stiffer penalties thereon under special circumstances. In other words, P.D. No. 553, served only the purpose of amending Articles 309 and 310 of the Revised Penal Code. This is explicit under Section 10 of the said Decree, to wit: Sec. 10. Repealing clause. The provisions of Article 309 and 310 of Act No. 3815, otherwise known as the Revised Penal Code, as amended, . . . which are inconsistent with this Decree are thereby repealed or modified accordingly. (p. 121, Rollo) WHEREFORE, for the offense of simple cattle rustling with the aggravating circumstance of recividism, and applying the Indeterminate Sentence Law the appellants are hereby sentenced to 4 years, 2 months and 1 day of Prision Correccional as minimum to 14 years, 8 months and 1 day of Reclusion Temporal as maximum and for the crime of illegal possession of firearms, they are hereby sentenced to Five (5) Years of Prision Correccional as minimum to Ten (10) years of Prision Mayor as maximum.