Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 193707

December 10, 2014

NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO
NORJO VAN WILSEM, Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court seeking to reverse and set aside the Orders1 dated February 19, 2010 and
September 1, 2010, respectively, of the Regional Trial Court of Cebu City (RTCCebu), which dismissed the criminal case entitled People of the Philippines v. Ernst
Johan Brinkman Van Wilsem, docketed as Criminal Case No. CBU-85503, for
violation of Republic Act (R.A.) No. 9262, otherwise known as the Anti-Violence
Against Women and Their Children Act of 2004.

The following facts are culled from the records:

Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem
contracted marriage in Holland on September 25, 1990.2 On January 19, 1994, they
were blessed with a son named Roderigo Norjo Van Wilsem, who at the time of the
filing of the instant petition was sixteen (16) years of age.3

Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce
Decree issued by the appropriate Court of Holland.4 At that time, their son was only

eighteen (18) months old.5 Thereafter, petitioner and her son came home to the
Philippines.6

According to petitioner, respondentmade a promise to provide monthly support to

their son in the amount of Two Hundred Fifty (250) Guildene (which is equivalent to
Php17,500.00 more or less).7 However, since the arrival of petitioner and her son in
the Philippines, respondent never gave support to the son, Roderigo.8

Not long thereafter, respondent cameto the Philippines and remarried in

Pinamungahan, Cebu, and since then, have been residing thereat.9 Respondent and
his new wife established a business known as Paree Catering, located at Barangay
Tajao, Municipality of Pinamungahan, Cebu City.10 To date, all the parties, including
their son, Roderigo, are presently living in Cebu City.11

On August 28, 2009, petitioner, through her counsel, sent a letter demanding for
support from respondent. However, respondent refused to receive the letter.12

Because of the foregoing circumstances, petitioner filed a complaint affidavit with

the Provincial Prosecutor of Cebu City against respondent for violation of Section 5,
paragraph E(2) of R.A. No. 9262 for the latters unjust refusal to support his minor
child with petitioner.13 Respondent submitted his counter-affidavit thereto, to which
petitioner also submitted her reply-affidavit.14 Thereafter, the Provincial Prosecutor
of Cebu City issued a Resolution recommending the filing of an information for the
crime charged against herein respondent.

The information, which was filed with the RTC-Cebu and raffled to Branch 20
thereof, states that:

That sometime in the year 1995 and up to the present, more or less, in the
Municipality of Minglanilla, Province of Cebu, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, did then and there wilfully,
unlawfully and deliberately deprive, refuse and still continue to deprive his son
RODERIGO NORJO VAN WILSEM, a fourteen (14) year old minor, of financial support
legally due him, resulting in economic abuse to the victim. CONTRARY TO LAW.15

Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure
Order against respondent.16 Consequently, respondent was arrested and,
subsequently, posted bail.17 Petitioner also filed a Motion/Application of Permanent

Protection Order to which respondent filed his Opposition.18 Pending the resolution
thereof, respondent was arraigned.19 Subsequently, without the RTC-Cebu having
resolved the application of the protection order, respondent filed a Motion to
Dismiss on the ground of: (1) lack of jurisdiction over the offense charged; and (2)
prescription of the crime charged.20

On February 19, 2010, the RTC-Cebu issued the herein assailed Order,21 dismissing
the instant criminal case against respondent on the ground that the facts charged in
the information do not constitute an offense with respect to the respondent who is
analien, the dispositive part of which states:

WHEREFORE, the Court finds that the facts charged in the information do not
constitute an offense with respect to the accused, he being an alien, and
accordingly, orders this case DISMISSED.

The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his
provisional liberty ishereby cancelled (sic) and ordered released.

SO ORDERED.

Cebu City, Philippines, February 19, 2010.22

Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating

respondents obligation to support their child under Article 19523 of the Family
Code, thus, failure todo so makes him liable under R.A. No. 9262 which "equally
applies to all persons in the Philippines who are obliged to support their minor
children regardless of the obligors nationality."24

On September 1, 2010, the lower court issued an Order25 denying petitioners

Motion for Reconsideration and reiterating its previous ruling. Thus:

x x x The arguments therein presented are basically a rehash of those advanced

earlier in the memorandum of the prosecution. Thus, the court hereby reiterates its
ruling that since the accused is a foreign national he is not subject to our national
law (The Family Code) in regard to a parents duty and obligation to givesupport to
his child. Consequently, he cannot be charged of violating R.A. 9262 for his alleged
failure to support his child. Unless it is conclusively established that R.A. 9262

applies to a foreigner who fails to give support tohis child, notwithstanding that he
is not bound by our domestic law which mandates a parent to give such support, it
is the considered opinion of the court that no prima faciecase exists against the
accused herein, hence, the case should be dismissed.

WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.

Cebu City, Philippines, September 1, 2010.26

Hence, the present Petition for Review on Certiorari raising the following issues:

1. Whether or not a foreign national has an obligation to support his minor child
under Philippine law; and

2. Whether or not a foreign national can be held criminally liable under R.A. No.
9262 for his unjustified failure to support his minor child.27

At the outset, let it be emphasized that We are taking cognizance of the instant
petition despite the fact that the same was directly lodged with the Supreme Court,
consistent with the ruling in Republic v. Sunvar Realty Development Corporation,28
which lays down the instances when a ruling of the trial court may be brought on
appeal directly to the Supreme Court without violating the doctrine of hierarchy of
courts, to wit:

x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45
Petition with this Court, in case only questions of law are raised or involved. This
latter situation was one that petitioners found themselves in when they filed the
instant Petition to raise only questions of law. In Republic v. Malabanan, the Court
clarified the three modes of appeal from decisions of the RTC, to wit: (1) by ordinary
appeal or appeal by writ of error under Rule 41, whereby judgment was rendered in
a civil or criminal action by the RTC in the exercise of its original jurisdiction; (2) by a
petition for review under Rule 42, whereby judgment was rendered by the RTC in the
exercise of its appellate jurisdiction; and (3) by a petition for review on certiorari
before the Supreme Court under Rule 45. "The first mode of appeal is taken to the
[Court of Appeals] on questions of fact or mixed questions of fact and law. The

second mode of appeal is brought to the CA on questions of fact, of law, or mixed

questions of fact and law. The third mode of appealis elevated to the Supreme Court
only on questions of law." (Emphasis supplied)

There is a question of law when the issue does not call for an examination of the
probative value of the evidence presented or of the truth or falsehood of the facts
being admitted, and the doubt concerns the correct application of law and
jurisprudence on the matter. The resolution of the issue must rest solely on what the
law provides on the given set of circumstances.29

Indeed, the issues submitted to us for resolution involve questions of law the
response thereto concerns the correct application of law and jurisprudence on a
given set of facts, i.e.,whether or not a foreign national has an obligation to support
his minor child under Philippine law; and whether or not he can be held criminally
liable under R.A. No. 9262 for his unjustified failure to do so.

It cannot be negated, moreover, that the instant petition highlights a novel question
of law concerning the liability of a foreign national who allegedly commits acts and
omissions punishable under special criminal laws, specifically in relation to family
rights and duties. The inimitability of the factual milieu of the present case,
therefore, deserves a definitive ruling by this Court, which will eventually serve as a
guidepost for future cases. Furthermore, dismissing the instant petition and
remanding the same to the CA would only waste the time, effort and resources of
the courts. Thus, in the present case, considerations of efficiency and economy in
the administration of justice should prevail over the observance of the hierarchy of
courts.

Now, on the matter of the substantive issues, We find the petition meritorious.
Nonetheless, we do not fully agree with petitioners contentions.

To determine whether or not a person is criminally liable under R.A. No. 9262, it is
imperative that the legal obligation to support exists.

Petitioner invokes Article 19530 of the Family Code, which provides the parents
obligation to support his child. Petitioner contends that notwithstanding the
existence of a divorce decree issued in relation to Article 26 of the Family Code,31
respondent is not excused from complying with his obligation to support his minor
child with petitioner.

On the other hand, respondent contends that there is no sufficient and clear basis
presented by petitioner that she, as well as her minor son, are entitled to financial
support.32 Respondent also added that by reason of the Divorce Decree, he is not
obligated topetitioner for any financial support.33

On this point, we agree with respondent that petitioner cannot rely on Article 19534
of the New Civil Code in demanding support from respondent, who is a foreign
citizen, since Article 1535 of the New Civil Code stresses the principle of nationality.
In other words, insofar as Philippine laws are concerned, specifically the provisions
of the Family Code on support, the same only applies to Filipino citizens. By analogy,
the same principle applies to foreigners such that they are governed by their
national law with respect to family rights and duties.36

The obligation to give support to a child is a matter that falls under family rights and
duties. Since the respondent is a citizen of Holland or the Netherlands, we agree
with the RTC-Cebu that he is subject to the laws of his country, not to Philippinelaw,
as to whether he is obliged to give support to his child, as well as the consequences
of his failure to do so.37

In the case of Vivo v. Cloribel,38 the Court held that

Furthermore, being still aliens, they are not in position to invoke the provisions of
the Civil Code of the Philippines, for that Code cleaves to the principle that family
rights and duties are governed by their personal law, i.e.,the laws of the nation to
which they belong even when staying in a foreign country (cf. Civil Code, Article
15).39

It cannot be gainsaid, therefore, that the respondent is not obliged to support

petitioners son under Article195 of the Family Code as a consequence of the
Divorce Covenant obtained in Holland. This does not, however, mean that
respondent is not obliged to support petitioners son altogether.

In international law, the party who wants to have a foreign law applied to a dispute
or case has the burden of proving the foreign law.40 In the present case, respondent
hastily concludes that being a national of the Netherlands, he is governed by such
laws on the matter of provision of and capacity to support.41 While respondent
pleaded the laws of the Netherlands in advancing his position that he is not obliged
to support his son, he never proved the same.

It is incumbent upon respondent to plead and prove that the national law of the
Netherlands does not impose upon the parents the obligation to support their child
(either before, during or after the issuance of a divorce decree), because Llorente v.
Court of Appeals,42 has already enunciated that:

True, foreign laws do not prove themselves in our jurisdiction and our courts are not
authorized to takejudicial notice of them. Like any other fact, they must be alleged
and proved.43

In view of respondents failure to prove the national law of the Netherlands in his
favor, the doctrine of processual presumption shall govern. Under this doctrine, if
the foreign law involved is not properly pleaded and proved, our courts will presume
that the foreign law is the same as our local or domestic or internal law.44 Thus,
since the law of the Netherlands as regards the obligation to support has not been
properly pleaded and proved in the instant case, it is presumed to be the same with
Philippine law, which enforces the obligation of parents to support their children and
penalizing the non-compliance therewith.

Moreover, while in Pilapil v. Ibay-Somera,45 the Court held that a divorce obtained
in a foreign land as well as its legal effects may be recognized in the Philippines in
view of the nationality principle on the matter of status of persons, the Divorce
Covenant presented by respondent does not completely show that he is notliable to
give support to his son after the divorce decree was issued. Emphasis is placed on
petitioners allegation that under the second page of the aforesaid covenant,
respondents obligation to support his child is specifically stated,46 which was not
disputed by respondent.

We likewise agree with petitioner that notwithstanding that the national law of
respondent states that parents have no obligation to support their children or that
such obligation is not punishable by law, said law would still not find applicability,in
light of the ruling in Bank of America, NT and SA v. American Realty Corporation,47
to wit:

In the instant case, assuming arguendo that the English Law on the matter were
properly pleaded and proved in accordance with Section 24, Rule 132 of the Rules of
Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-Gonzales, said
foreign law would still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound and
established public policy of the forum, the said foreign law, judgment or order shall
not be applied.

Additionally, prohibitive laws concerning persons, their acts or property, and those
which have for their object public order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.

The public policy sought to be protected in the instant case is the principle
imbedded in our jurisdiction proscribing the splitting up of a single cause of action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent

If two or more suits are instituted on the basis of the same cause of action, the filing
of one or a judgment upon the merits in any one is available as a ground for the
dismissal of the others. Moreover, foreign law should not be applied when its
application would work undeniable injustice to the citizens or residents of the forum.
To give justice is the most important function of law; hence, a law, or judgment or
contract that is obviously unjust negates the fundamental principles of Conflict of
Laws.48

Applying the foregoing, even if the laws of the Netherlands neither enforce a
parents obligation to support his child nor penalize the noncompliance therewith,
such obligation is still duly enforceable in the Philippines because it would be of
great injustice to the child to be denied of financial support when the latter is
entitled thereto.

We emphasize, however, that as to petitioner herself, respondent is no longer liable

to support his former wife, in consonance with the ruling in San Luis v. San Luis,49
to wit:

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no
longerbe considered marriedto the alien spouse. Further, she should not be required
to perform her marital duties and obligations. It held:

To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still married to private respondent and still subject to a wife's obligations
under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be
obliged to live together with, observe respect and fidelity, and render support to
private respondent. The latter should not continue to be one of her heirs with
possible rights to conjugal property. She should not be discriminated against in her
own country if the ends of justice are to be served. (Emphasis added)50

Based on the foregoing legal precepts, we find that respondent may be made liable
under Section 5(e) and (i) of R.A. No. 9262 for unjustly refusing or failing to give
support topetitioners son, to wit:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of
violence against women and their children is committed through any of the
following acts:

xxxx

(e) Attempting to compel or compelling the woman or her child to engage in

conduct which the woman or her child has the right to desist from or desist from
conduct which the woman or her child has the right to engage in, or attempting to
restrict or restricting the woman's or her child's freedom of movement or conduct
by force or threat of force, physical or other harm or threat of physical or other
harm, or intimidation directed against the woman or child. This shall include, butnot
limited to, the following acts committed with the purpose or effect of controlling or
restricting the woman's or her child's movement or conduct:

xxxx

(2) Depriving or threatening to deprive the woman or her children of financial

support legally due her or her family, or deliberately providing the woman's children
insufficient financial support; x x x x

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman
or her child, including, but not limited to, repeated verbal and emotional abuse, and
denial of financial support or custody of minor childrenof access to the woman's
child/children.51

Under the aforesaid special law, the deprivation or denial of financial support to the
child is considered anact of violence against women and children.

In addition, considering that respondent is currently living in the Philippines, we find

strength in petitioners claim that the Territoriality Principle in criminal law, in
relation to Article 14 of the New Civil Code, applies to the instant case, which
provides that: "[p]enal laws and those of public security and safety shall be
obligatory upon all who live and sojourn in Philippine territory, subject to the
principle of public international law and to treaty stipulations." On this score, it is
indisputable that the alleged continuing acts of respondent in refusing to support
his child with petitioner is committed here in the Philippines as all of the parties
herein are residents of the Province of Cebu City. As such, our courts have territorial
jurisdiction over the offense charged against respondent. It is likewise irrefutable
that jurisdiction over the respondent was acquired upon his arrest.

Finally, we do not agree with respondents argument that granting, but not
admitting, that there is a legal basis for charging violation of R.A. No. 9262 in the
instant case, the criminal liability has been extinguished on the ground of
prescription of crime52 under Section 24 of R.A. No. 9262, which provides that:

SECTION 24. Prescriptive Period. Acts falling under Sections 5(a) to 5(f) shall
prescribe in twenty (20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe
in ten (10) years.

The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262
is a continuing offense,53 which started in 1995 but is still ongoing at present.
Accordingly, the crime charged in the instant case has clearly not prescribed.

Given, however, that the issue on whether respondent has provided support to
petitioners child calls for an examination of the probative value of the evidence
presented, and the truth and falsehood of facts being admitted, we hereby remand
the determination of this issue to the RTC-Cebu which has jurisdiction over the case.

WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and
September 1, 2010, respectively, of the Regional Trial Court of the City of Cebu are
hereby REVERSED and SET ASIDE. The case is REMANDED to the same court to
conduct further proceedings based on the merits of the case.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE CATRAL MENDOZA*

Associate Justice
BIENVENIDO L. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's
Attestation, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court's
Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

* Designated Acting Member in lieu of Associate Justice Francis H. Jardeleza, per

Special Order No. 1896 dated November 28, 2014

1 Penned by Judge Bienvenido R. Saniel, Jr.; Annexes "A" and "B" to Petition,
respectively, rollo, pp. 22-26.

2 Rollo, p. 6.

3 Id.

4 Id. at 7.

5 Annex "F" to Petition, rollo, p. 31.

6 Id. at 32.

7 Annex "A" to Petition, rollo, pp. 23-24.

8 Id. at 24.

9 Id.at 32.

10 Id.

11 Supra note 7, at 23-24.

12 Supra note 5, at 32.

13 Rollo, p. 7.

14 Id.

15 Id. at 22.

16 Id.

17 Id. at 24.

18 Id. at 8.

19 Id.

20 Id.

21 Supra note 7.

22 Id.at 24.

23 Art. 195. Subject to the provisions of the succeeding articles, the following are
obliged to support each other to the whole extent set forth in the preceding article:

(1) The spouses;

(2) Legitimate ascendants and descendants;

(3) Parents and their legitimate children and the legitimate and illegitimate children
of the latter;

(4) Parents and their illegitimate children and the legitimate and illegitimate
children of the latter; and

(5) Legitimate brothers and sisters, whether of full or half-blood.

24 Annex "R" to Petition, rollo, p. 102.

25 Annex "B" to Petition, id. at 25.

26 Id.

27 Rollo, p. 10.

28 G.R. No. 194880, June 20, 2012, 674 SCRA 320.

29 Id.at 332-333.

30 Supra note 23.

31 Art. 26. All marriages solemnized outside the Philippines, in accordance with the
laws in force in the country where they were solemnized, and valid there assuch,
shall also be valid in this country, except those prohibited under Articles 35 (1), (4),
(5) and (6), 3637 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated

and a divorce is thereafter validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouse shall have capacity to remarry under
Philippine law. (As amended by Executive Order 227)

32 Comment on the Petition for Review on Certiorari, rollo, p. 123.

33 Id. at 122.

34 Supra note 23.

35 Art. 15. Laws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines, even though
living abroad.

36 Supra note 7, at 24.

37 Id.

38 G.R. No. L-25441, October 26, 1968, 25 SCRA 616.

39 Id. at 625-626. (Emphasis supplied)

40 EDI-Staff builders International, Inc. v. NLRC, 563 Phil. 1, 22 (2007).

41 Annex "N" to Petition, rollo, p. 84.

42 399 Phil. 342 (2000).

43 Id. at 354. (Emphasis supplied)

44 Bank of America, NT and SA v. American Realty Corporation, 378 Phil. 1279,

1296 (1999).

45 G.R. No. 80116, June 30, 1989, 174 SCRA 653.

46 Rollo, p. 18.

47 Supra note 44.

48 Id.at 1296-1297. (Emphasis supplied)
49 543 Phil. 275 (2007).
50 Id.at 290.
51 Section 5(e) and (i) of R.A. No. 9262. (Emphasis supplied)
52 Rollo, p. 15.
53 In People v. De Leon, 608 Phil. 701, 722 (2009), it was held that:

A continued (continuous or continuing) crime is defined as a single crime, consisting

of a series of acts but all arising from one criminal resolution. Although there is a
series of acts, there is only one crime committed; hence, only one penalty shall be
imposed.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 99026August 4, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAFAEL BAGARES y MENDOZA and IMELDA SANTOS y LOPEZ, defendants.

RAFAEL BAGARES y MENDOZA, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

QUIASON, J.:

This is an appeal from the judgment of the Regional Trial Court, Branch 164, Pasig, in Criminal Case No.
1106-D, finding appellant RAFAEL BAGARES y MENDOZA guilty beyond reasonable doubt of
violation of Section 15 of the Dangerous Drugs Act (R.A. No. 6425, as amended).

In said criminal case, RAFAEL BAGARES y MENDOZA and IMELDA SANTOS y LOPEZ were
accused of violating the Dangerous Drugs Act, committed as follows:

That on or about the 15th day of January, 1990, in the Municipality of Marikina, Metro Manila,
Philippines above-named accused, conspiring and confederating together and they mutually helping and
aiding one another, without being authorized by law, did then and there willfully, unlawfully and
feloniously sell to poseur buyer 0.06 grams of white crystalline substance wrapped in a piece of
aluminum foil; 0.10 grams of white crystalline substance placed in four (4) transparent plastic bags and in
consideration of P400.00, positive to the test for methamphetamine hydrochloride (shabu), which are
regulated drugs, in violation of the above-cited law (Records, p. 10).

Both accused pleaded not guilty to the information (Records, p. 24).

On February 7, 1991, the trial court rendered its judgment, acquitting Imelda Santos but convicting Rafael
Bagares of the crime charged. The decretal portion of the judgment reads as follows:

In view of all the foregoing circumstances, the Court finds the accused Rafael Bagares y Mendoza
GUILTY beyond reasonable doubt of illegally selling and/or dispensing shabu or methamphetamine

hydrochloride, as regulated drugs, in violation of Section 15 of the Dangerous Drugs Act as amended as
charged and therefore, hereby imposes upon him to suffer the penalty of life imprisonment and to pay a
fine of P20,000.00, as well as to pay the costs.

On the other hand, the Court finds the accused Imelda Santos y Lopez NOT GUILTY of the present
charge in conspiracy of (sic) the other accused Rafael Bagares and therefore, hereby acquits her of the
same.

The Branch Clerk of this Court is hereby directed to forward the subject shabu as soon as practicable (sic)
to the Dangerous Drugs Board for whatever proper disposition that Board may take under the premises.
(Rollo, p. 19).

On January 12, 1990, a telephone call from an unidentified party was received by P/Sgt. Jimmy Navarro,
Officer-in-charge of the Marikina Police Station (TSN, March 28, 1990, p. 14), regarding a shabu pusher
operating at Sixto De la Paz St., Sta. Elena, Marikina, Metro Manila (TSN, ibid., p. 3).

At about 9:30 A.M. of said date (TSN, ibid., p. 26), a team, composed of Pvt. Harrison Amanon as team
leader, Pvt. Melanio Valeroso, and Pats. Victor Azurin, Ruel Cenesa, and Herminio Caligagan as
members, was formed to conduct a surveillance at said place (TSN, ibid., pp. 3, 14-15).

The surveillance on January 12 lasted from 4:00 P.M. until about 10:00 P.M. In this span of time, they
discovered the identity of the person selling shabu in that vicinity. The surveillance continued for three
days. They observed that appellant regularly came out to do business in the street at about 8:00 P.M.
(TSN, ibid., p. 17).

On January 15, at around 9:30 P.M., the police team conducted a buy-bust operation with Pvt. Valeroso
acting as poseur-buyer (TSN, ibid., p. 4). He approached appellant and pretended to be a buyer of shabu.
At the same time, he handed to appellant the marked four one-hundred-peso bills (TSN, ibid., p. 3).
Appellant entered an alley and after a few minutes returned and handed to Pvt. Valeroso two packets of
shabu - one wrapped in an aluminum foil and the other one in a plastic bag. After appellant handed over
the shabu, Pvt. Valeroso arrested and frisked him. Pvt. Valeroso was able to confiscate the four onehundred-peso bills from appellant (TSN, ibid., p. 4).

After apprehending appellant, the members of the team brought him to the police headquarters for
investigation and in the course thereof, he named accused Imelda Santos y Lopez as his source of the
shabu (TSN, ibid., p. 10).

The police team, together with appellant, proceeded to the residence of accused Santos, who surrendered
to them four plastic bags of shabu (Exhs. "F", "F-1", "F-2" and "F-3"). They then arrested her (TSN, ibid.,
pp. 10-11).

The Certification of Laboratory Result (Exh. "D") and the Chemical Report (Exhs. "C", "C-1" to "C-3")
prepared by P/Cap. Julita T. De Villa of the PC/INP Crime Laboratory, Camp Crame, Quezon City
showed that the specimens submitted for analysis were found positive for methamphetamine
hydrochloride or shabu (TSN, February 28, 1990, pp. 3-4).

Appellant denied the charges against him. He claimed that at around 9:00 P.M. of January 15, 1990, he
was with friends drinking beer in front of his house (TSN, December 5, 1990, p. 2). Suddenly, two
policemen arrived and arrested him. He was brought to the town hall where he was interrogated regarding
his source of shabu. He saw the shabu and four one-hundred-peso bills on top of the table. He was asked
to shell out P30,000.00 so that the case could be settled but he had no money to comply with the demand.
So he was placed behind bars (TSN, December 5, 1990, p. 5). No investigation was conducted by the
Marikina Police in connection with his arrest (TSN, December 5, 1990, p. 4).

Appellant denied having sold shabu, claiming that what he delivered for his employer, accused Santos,
were ordinary beans (TSN, December 5, 1990, p. 6).

II

In his appeal, appellant claims that the trial court erred: (1) in giving full credence to the testimony of Pvt.
Valeroso; (2) in not acquitting him after the court acquitted his co-accused on the same evidence
presented against him; and (3) in admitting illegally obtained evidence.

Appellant's defense consisted merely of denials and his claim that the shabu presented by the prosecution
as evidence against him was planted by the police.

The issue raised in appellant's first assignment of error is reduced to the credibility of the witnesses. We
have no grounds to reverse the findings of fact of the trial court (People v. Bautista, 142 SCRA 649
[1986]).

Denials by the accused are as weak as the defense of alibi. They are self-serving evidence and unless
substantiated by clear and convincing evidence, cannot be given weight over the positive assertions of
credible witnesses (People v. Guibao, 217 SCRA 64 [1993]).

As to the claim that appellant was the victim of a "frame-up," we agree with the observation of the trial
court that if the police merely concocted trumped-up charges against him, they would not have planted a

"comparatively sizeable amount of shabu." Moreover, such defense can easily be fabricated and is
commonly used by persons accused of drug pushing (People v. Agapito, 154 SCRA 694 [1987]).

There is the presumption that police officers in the performance of their official duties do so in a regular
manner and the evidence to overturn such a presumption must be sufficient and convincing (People v.
Marcos, 185 SCRA 154 [1990]). Appellant has not shown any ill-motive on the part of the lone
prosecution witness that may cast doubt on his testimony (People v. Villa, 221 SCRA 661 [1993]).

Appellant's claim that he was entertaining several visitors when the police arrived to arrest him was
intended to blunt the prosecution's evidence that the "buy-bust" operation took place about ten meters
from his house. The thrust of the contention was that appellant never left the place where he was drinking
with his friends in order to transact business with the poseur-buyer.

This contention would not prosper. In the first place, appellant never presented any of his numerous
guests, who could have testified that appellant never left the party to go out in the street to transact a
business deal with the poseur-buyer. In the second place, it was so easy for appellant to slip away from his
guests to sell shabu about ten meters from his house without his absence being noticed.

In the second assignment of error, appellant claims that the trial court erred in not acquitting him of the
crime charged despite its acquittal of his co-accused Imelda Santos because "the evidence of the
prosecution is common against both and is based on the same factual setting, arising from the same single
incident." Suffice it to say that appellant and accused Santos were not prosecuted on the basis of the same
evidence and that they were arrested under different circumstances. Appellant was prosecuted for selling
prohibited drugs while accused Santos was prosecuted for illegal possession of prohibited drugs.

Appellant was arrested when caught selling shabu in flagrante while accused Santos was arrested after a
warrantless search on information furnished by appellant himself after his arrest.

The acquittal of accused Santos was based mainly on the grounds of constitutional infirmity and the
unreasonableness of the warrantless search and seizure of the evidence against her.

Finally, appellant urges that the court a quo erred in admitting the prosecution evidence against him,
particularly Exhibits "D", "D-1", "E-1" and "F" to "F-3", which were seized without any search warrant in
violation of his constitutional rights.

Exhibits "D" to "D-1" refer to the shabu contained in the aluminum foil while Exhibits "E" to "E-1", "F"
to "F-3" refer to the plastic tea bags. These incriminating evidence were seized as an incident and in
connection with the arrest in flagrante of appellant.

Under Section 5(a), Rule 113 of the Code of Criminal Procedure, a police officer may arrest a person
even without a warrant, when the person arrested has committed or its actually committing, or is
attempting to commit an offense in his presence. Under Section 12, Rule 126 of the same Code, a person
lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the
commission of the offense, without a search warrant.

The provisions on penalties under the Dangerous Drugs Act of 1972, R.A. No. 6425, were amended by
R.A. No. 7659 as follows:

Sec. 20.Application of Penalties, Confiscation and Forfeiture of the Proceeds of Instrument of the Crime.
The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of
Article III of this Act shall be applied if the dangerous drugs involved is in any of the following
quantities:

1.

40 grams or more of opium;

2.

40 grams or more of morphine;

3.

200 grams or more of shabu or methamphetamine hydrochloride;

4.

40 grams or more of heroin;

5.

750 grams or more of indian hemp or marijuana;

6.

50 grams or more of marijuana resin or marijuana resin oil;

7.

40 grams or more of cocaine or cocaine hydrochloride; or

8.
In the case of other dangerous drugs, the quantity of which is far beyond therapeutic
requirements, as determined and promulgated by the Dangerous Drugs Board, after public
consultation/hearings conducted for the purpose.

Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from
prision correccional to reclusion perpetua depending upon the quantity.

Every penalty imposed for the unlawful importation, sale, administration, delivery, transportation or
manufacture of dangerous drugs, the cultivation of plants which are sources of dangerous drugs and the
possession of any opium pipe and other paraphernalia for dangerous drugs shall carry with it the
confiscation and forfeiture, in favor of the Government, of all the proceeds of the crime including but not
limited to money and others obtained thereby and the instruments or tools with which it was committed,
unless they are property of a third person not liable for the offense, but those which are not of lawful
commerce shall be ordered destroyed without delay. Dangerous drugs and plant sources of such drugs as
well as the proceeds or instruments of the crime so confiscated and forfeited in favor of the Government
shall be turned over to the Board for proper disposal without delay.
Any apprehending or arresting officer who misappropriates or misapplies or fails to account for seized or
confiscated dangerous drugs or plant-sources of dangerous drugs or proceeds or instruments of the crime
as herein defined shall after conviction be punished by the penalty of reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos.
The above provision of R.A. No. 7659 can be applied in the instant case, pursuant to the principle in
criminal law, favorabilia sunt amplianda, adiosa restrigenda (Penal laws which are favorable to the
accused are given retroactive effect). This principle is embodied in Article 22 of the Revised Penal Code
which provides as follows:
Retroactive effect of penal laws. -- Penal laws shall have a retroactive effect insofar as they favor the
persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of
this Code, although at the time of the publication of such laws a final sentence has been pronounced and
the convict is serving the same.
The provisions of Article 22 of the Revised Penal Code are applicable even to special laws (U.S. v.
Soliman, 36 Phil. 5 [1917]).
According to the trial court, appellant was caught selling 0.16 grams of shabu. We impose the penalty of
prision correccional considering the small quantity of shabu (0.16 grams) confiscated from the accused.
Applying the Indeterminate Sentence Law, the minimum penalty shall not be less than the minimum
prescribed by Section 1 of R.A. No. 7659.
WHEREFORE, the decision of the Regional Trial Court is AFFIRMED in all respects except as to the
penalty, which is MODIFIED to SIX (6) months and ONE (1) day of prision correccional to TWO (2)
years and ONE (1) day of prision correccional. No pronouncement as to costs.
SO ORDERED.

Cruz, Davide, Jr., Bellosillo and Kapunan, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-30026

January 30, 1971

MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO AGAPITO, EPIFANIO PADUA and

PATERNO PALMARES, petitioners,
vs.
THE DIRECTOR OF THE BUREAU OF PRISONS, respondent.

Jose W. Diokno for petitioners.

Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio A. Torres and
Solicitor Eduardo C. Abaya for respondent.

FERNANDO, J.:

Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in number, for their release
from imprisonment. Meted out life terms for the complex crime of rebellion with murder and other
crimes, they would invoke the People v. Hernandez1 doctrine, negating the existence of such an offense, a
ruling that unfortunately for them was not handed down until after their convictions had become final.
Nor is this the first instance, a proceeding of this character was instituted, as in Pomeroy v. Director of
Prisons,2 likewise a petition for habeas corpus, a similar question was presented. The answer given was in
the negative. Petitioners plead for a new look on the matter. They would premise their stand on the denial
of equal protection if their plea would not be granted. Moreover they did invoke the codal provision that
judicial decisions shall form part of the legal system of the Philippines,3 necessarily resulting in the
conclusion that the Hernandez decision once promulgated calls for a retroactive effect under the explicit
mandate of the Revised Penal Code as to penal laws having such character even if at the time of their
application a final sentence has been rendered "and the convict is serving the same."4 These arguments
carry considerable persuasion. Accordingly we find for petitioners, without going so far as to overrule
Pomeroy.

Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5, 1953 to suffer reclusion
perpetua for the complex crime of rebellion with multiple murder, robbery, arson and kidnapping.
Petitioners Gaudencio Agapito, Paterno Palmares and Epifanio Padua, likewise pleaded guilty to the
complex crime of rebellion with multiple murder and other offenses, and were similarly made to suffer
the same penalty in decisions rendered, as to the first two, on March 8, 1954 and, as to the third, on
December 15, 1955. The last petitioner, Blas Bagolbagol, stood trial also for the complex crime of
rebellion with multiple murder and other offenses and on January 12, 1954 penalized with reclusion
perpetua. Each of the petitioners has been since then imprisoned by virtue of the above convictions. Each
of them has served more than 13 years.5

Subsequently, in People v. Hernandez, 6 as above noted, this Court ruled that the information against the
accused in that case for rebellion complexed with murder, arson and robbery was not warranted under
Article 134 of the Revised Penal Code, there being no such complex offense.7 In the recently-decided
case of People vs. Lava,8 we expressly reaffirmed the ruling in the Hernandez case rejecting the plea of
the Solicitor General for the abandonment of such doctrine. It is the contention of each of the petitioners

that he has served, in the light of the above, more than the maximum penalty that could have been
imposed upon him. He is thus entitled to freedom, his continued detention being illegal.9

The fear that the Pomeroy ruling stands as an obstacle to their release on a habeas corpus proceeding
prompted petitioners, as had been mentioned, to ask that it be appraised anew and, if necessary, discarded.
We can resolve the present petition without doing so. The plea there made was unconvincing, there being
a failure to invoke the contentions now pressed vigorously by their counsel, Attorney Jose W. Diokno, as
to the existence of a denial of a constitutional right that would suffice to raise a serious jurisdictional
question and the retroactive effect to be given a judicial decision favorable to one already sentenced to a
final judgment under Art. 22 of the Revised Penal Code. To repeat, these two grounds carry weight. We
have to grant this petition.

1.
The fundamental issue, to repeat, is the availability of the writ of habeas corpus under the
circumstances disclosed. Its latitudinarian scope to assure that illegality of restraint and detention be
avoided is one of the truisms of the law. It is not known as the writ of liberty for nothing. The writ
imposes on judges the grave responsibility of ascertaining whether there is any legal justification for a
deprivation of physical freedom. Unless there be such a showing, the confinement must thereby cease. If
there be a valid sentence it cannot, even for a moment, be extended beyond the period provided for by
law. Any deviation from the legal norms call for the termination of the imprisonment.

Rightly then could Chafee refer to the writ as "the most important human rights provision" in the
fundamental law. 10 Nor is such praise unique. Cooley spoke of it as "one of the principal safeguards to
personal liberty." 11 For Willoughby, it is "the greatest of the safeguards erected by the civil law against
arbitrary and illegal imprisonment by whomsoever detention may be exercised or ordered." 12 Burdick
echoed a similar sentiment, referring to it as "one of the most important bulwarks of liberty." 13 Fraenkel
made it unanimous, for to him, "without it much else would be of no avail." 14 Thereby the rule of law is
assured.

A full awareness of the potentialities of the writ of habeas corpus in the defense of liberty coupled with its
limitations may be detected in the opinions of former Chief Justices Arellano, 15 Avancea, 16 Abad
Santos, 17 Paras, 18 Bengzon, 19 and the present Chief Justice. 20 It fell to Justice Malcolm's lot,
however to emphasize quite a few times the breadth of its amplitude and of its reach. In Villavicencio v.
Lukban, 21 the remedy came in handy to challenge the validity of the order of the then respondent Mayor
of Manila who, for the best of reasons but without legal justification, ordered the transportation of more
than 150 inmates of houses of ill-repute to Davao. After referring to the writ of habeas corpus as having
been devised and existing "as a speedy and effectual remedy to relieve persons from unlawful restraint"
the opinion of Justice Malcolm continued: "The essential object and purpose of the writ of habeas corpus
is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a
person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is
sufficient." 22

The liberality with which the judiciary is to construe habeas corpus petitions even if presented in
pleadings on their face devoid of merit was demonstrated in Ganaway v. Quilen, 23 where this Court,
again through Justice Malcolm, stated: "As standing alone the petition for habeas corpus was fatally

defective in its allegations, this court, on its motion, ordered before it the record of the lower court in the
case entitled Thomas Casey, et al. v. George Ganaway." 24 It is to Justice Malcolm likewise in Conde v.
Rivera, 25 to whom is traceable the doctrine, one that broadens the field of the operation of the writ, that a
disregard of the constitutional right to speedy trial ousts the court of jurisdiction and entitles the accused
if "restrained of his liberty, by habeas corpus to obtain his
freedom." 26

So it is in the United States. An 1830 decision 27 of Chief Justice Marshall put the matter thus: "The writ
of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the
liberation of those who may be imprisoned without sufficient cause." Then there is this affirmation from
an 1869 decision 28 of the then Chief Justice Chase: "The great writ of habeas corpus has been for
centuries esteemed the best and only sufficient defense of personal freedom." The passing of the years has
only served to confirm its primacy as a weapon on in the cause of liberty. Only the other year, Justice
Fortas spoke for the United States Supreme Court thus: "The writ of habeas corpus is the fundamental
instrument for safeguarding individual freedom against arbitrary and lawless state action. ... The scope
and flexibility of the writ its capacity to reach all manner of illegal detention its ability to cut
through barriers of form and procedural mazes have always been emphasized and jealously guarded by
courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and
flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." 29
Justice Fortas explicitly made reference to Blackstone, who spoke of it as "the great and efficacious writ,
in all manner of illegal confinement." Implicit in his just estimate of its pre-eminent role is his adoption of
Holmes' famous dissent in Frank v. Mangum: 30 "But habeas corpus cuts through all forms and goes to
the very tissue of the structure."

2.
Where, however, the detention complained of finds its origin in what has been judicially
ordained, the range of inquiry in a habeas corpus proceeding is considerably narrowed. For if "the person
alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or
judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction
to issue the process, render the judgment, or make the order," the writ does not lie. 31 That principle dates
back to 1902, 32 when this Court announced that habeas corpus was unavailing where the person detained
was in the custody of an officer under process issued by a court or magistrate. This is understandable, as
during the time the Philippines was under American rule, there was necessarily an adherence to
authoritative doctrines of constitutional law there followed.

One such principle is the requirement that there be a finding of jurisdictional defect. As summarized by
Justice Bradley in Ex parte Siebold, an 1880 decision: "The only ground on which this court, or any court,
without some special statute authorizing it, will give relief on habeas corpus to a prisoner under
conviction and sentence of another court is the want of jurisdiction in such court over the person or the
cause, or some other matter rendering its proceedings void." 33

There is the fundamental exception though, that must ever be kept in mind. Once a deprivation of a
constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of
jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention. 34

3.
Petitioners precisely assert a deprivation of a constitutional right, namely, the denial of equal
protection. According to their petition: "In the case at bar, the petitioners were convicted by Courts of
First Instance for the very same rebellion for which Hernandez, Geronimo, and others were convicted.
The law under which they were convicted is the very same law under which the latter were convicted. It
had not and has not been changed. For the same crime, committed under the same law, how can we, in
conscience, allow petitioners to suffer life imprisonment, while others can suffer only prision mayor?" 35

They would thus stress that, contrary to the mandate of equal protection, people similarly situated were
not similarly dealt with. What is required under this required constitutional guarantee is the uniform
operation of legal norms so that all persons under similar circumstances would be accorded the same
treatment both in the privileges conferred and the liabilities imposed. As was noted in a recent decision:
"Favoritism and undue preference cannot be allowed. For the principle is that equal protection and
security shall be given to every person under circumstances, which if not identical are analogous. If law
be looked upon in terms of burden or charges, those that fall within a class should be treated in the same
fashion, whatever restrictions cast on some in the group equally binding on the rest." 36

The argument of petitioners thus possesses a persuasive ring. The continued incarceration after the
twelve-year period when such is the maximum length of imprisonment in accordance with our controlling
doctrine, when others similarly convicted have been freed, is fraught with implications at war with equal
protection. That is not to give it life. On the contrary, it would render it nugatory. Otherwise, what would
happen is that for an identical offense, the only distinction lying in the finality of the conviction of one
being before the Hernandez ruling and the other after, a person duly sentenced for the same crime would
be made to suffer different penalties. Moreover, as noted in the petition before us, after our ruling in
People v. Lava, petitioners who were mere followers would be made to languish in jail for perhaps the
rest of their natural lives when the leaders had been duly considered as having paid their penalty to
society, and freed. Such a deplorable result is to be avoided.

4.
Petitioners likewise, as was made mention at the outset, would rely on Article 22 of the Revised
Penal Code which requires that penal judgment be given a retroactive effect. In support of their
contention, petitioners cite U.S. v. Macasaet, 37 U.S. vs.Parrone, 38 U.S. v. Almencion, 39 People v.
Moran, 40 and People v. Parel. 41 While reference in the above provision is made not to judicial decisions
but to legislative acts, petitioners entertain the view that it would be merely an exaltation of the literal to
deny its application to a case like the present. Such a belief has a firmer foundation. As was previously
noted, the Civil Code provides that judicial decisions applying or interpreting the Constitution, as well as
legislation, form part of our legal system. Petitioners would even find support in the well-known dictum
of Bishop Hoadley:

"Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver to all intents and purposes, and not the person who first thought or spoke them." It is to be admitted
that constitutional law scholars, notably
Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as well as the jurist John Chipman
Gray, were much impressed with the truth and the soundness of the above observations. We do not have
to go that far though. Enough for present purposes that both the Civil Code and the Revised Penal Code
allow, if they do not call for, a retroactive application.

It being undeniable that if the Hernandez ruling were to be given a retroactive effect petitioners had
served the full term for which they could have been legally committed, is habeas corpus the appropriate
remedy? The answer cannot be in doubt. As far back as 1910 the prevailing doctrine was announced in
Cruz v. Director of Prisons. 45 Thus: "The courts uniformly hold that where a sentence imposes
punishment in excess of the power of the court to impose, such sentence is void as to the excess, and
some of the courts hold that the sentence is void in toto; but the weight of authority sustains the
proposition that such a sentence is void only as to the excess imposed in case the parts are separable, the
rule being that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he has
served out so much of the sentence as was valid." 46 There is a reiteration of such a principle in Director
v. Director of Prisons 47 where it was explicitly announced by this Court "that the only means of giving
retroactive effect to a penal provision favorable to the accused ... is the writ of habeas corpus." 48 While
the above decision speaks of a trial judge losing jurisdiction over the case, insofar as the remedy of
habeas corpus is concerned, the emphatic affirmation that it is the only means of benefiting the accused
by the retroactive character of a favorable decision holds true. Petitioners clearly have thus successfully
sustained the burden of justifying their release.

WHEREFORE, the petition for habeas corpus is granted, and it is ordered that petitioners be forthwith set
at liberty.

Dizon and Zaldivar, JJ., concur.

Concepcion, C.J., concurs in the result.

Castro and Makasiar, JJ., took no part.

Separate Opinions

TEEHANKEE, J., concurring and dissenting:

The petitioners at bar, three of whom pleaded guilty1 and two of whom stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called complex crime of rebellion with
multiple murder and other crimes, and have served or are now entering into their 17th year of
imprisonment, save for petitioner Epifanio Padua who was sentenced on December 15, 1955 and is
completing his 15th year of imprisonment, (excluding the periods they were under pre-conviction
detention). The leaders of the rebellion who were meted out death and life sentences for the same charge
by the Court of First Instance of Manila had their sentences reduced last near to ten years of prision
mayor by the Court in People v. Lava,3 wherein the Court expressly re-affirmed the doctrine first laid
down in 1956 in People vs. Hernandez,4 that the crime of rebellion cannot be complexed with other
common crimes since such common crimes "assume the political complexion of the main crime of which
they are mere ingredients and consequently cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty." The Court rejected therein the
State's plea for the reexamination and setting aside of such doctrine, declaring that "(T)his Court has
given this plea of the Solicitor General a very serious consideration, but after a mature deliberation the
members of this Court have decided to maintain that ruling in the Hernandez case and to adhere to what
this Court said in that case." The said leaders have since been duly freed as having served out their
penalty, but their followers, herein petitioners, are still serving their life sentences.

I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that "(W)ith reference to persons
in custody pursuant to a final judgment, the rule is that the writ of habeas corpus can issue only for want
of jurisdiction of the sentencing court, and cannot function as a writ of error." "I grant, too, that at the time
of the Pomeroy decision in 1960, as noted therein, "the existence of the 'complexed' rebellion (was) still
upheld by a sizable number of lawyers, prosecutors, judges and even justices of this Court." But with the
doctrine first enunciated in 1956 in Hernandez by a bare six-to-four majority vote having withstood the
test of time 6 and having been just last year unreservedly reaffirmed without a single dissent in Lava, it
cannot now be gainsaid that it is now part of our legal system that the crime of "complexed" rebellion
does not exist in our Revised Penal Code. No prosecutor would now file an information for "complexed"
rebellion but simply for the offense of simple rebellion as defined in Article 134 of the Revised Penal
Code, and even if such an information for "complexed" rebellion to be so filed, the trial courts would be
bound to quash such information as not charging an offense on the strength of Lava and Hernandez.

Petitioners have therefore properly invoked in their favor the provisions of Article 22 of the Revised
Penal Code that:

ART. 22.
Retroactive effect of penal laws.Penal laws shall have a retroactive effect insofar as
they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in rule 5 of
article 62 of this Code, although at the time of the publication of such laws a final sentence has been
pronounced and the convict is serving the same.

in relation to the provisions of Article 8 of the Civil Code that "(J)udicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal system of the Philippines."

The situation of petitioners is no different than it would be if, say, the penalty of reclusion perpetua were
imposed by statute for the crime of simple rebellion at the time of their conviction and they were
accordingly sentenced, and the statutory penalty were now reduced to prision mayor or 12 years
imprisonment; having served out the maximum penalty of 12 years now imposed by the amended statute,
they would be entitled to invoke the retroactive effect of the statute favoring them.lwph1.t The only
difference between the situation given and the present case is that here it is this Supreme Court,
interpreting the laws in discharge of its constitutional prerogative, that has laid down the doctrine since
Hernandez in 1956 that no offense of "complexed" rebellion exists and petitioners should therefore be
now equally entitled to the retroactive favorable effect of such doctrine.

The actual case of petitioners is that at the time of their conviction, it was
believed erroneously that the crime committed by them was punishable by life imprisonment, but
the Court has subsequently judicially determined it not be so and that the maximum imposable penalty is
prision mayor or 12 years. Petitioners-convicts are entitled to the benefit of this later judicial declaration,
just as if a statutory amendment had been enactednot because the sentencing court had no jurisdiction
or is now ousted of jurisdiction. The writ prayed for should issue, since as held in Directo vs. Director of
Prisons,7 "the only means of giving retroactive effect to a penal provision favorable to the accused where
the trial judge has lost jurisdiction over the case, is the writ of habeas corpus."

The question of jurisdiction of the sentencing court therefore is moot, for it is universally recognized that
relief by habeas corpus may be properly sought in cases of imposition of excessive penalty, such that the
part of the sentence beyond or in excess of the power of the court to impose is held void, the applicant
having already served out the entire part of the sentence within the court's power. 8 As pointed out by the
Court in Rodriguez vs. Director of Prisons,9 furthermore, "Article 22 of the Revised Penal Code ...
extends its benefits even to convicts serving sentence, and the only legal remedy open to them to make
use of such benefits is the writ of habeas corpus inasmuch as, if the penalty imposed upon them under the
former penal law was decreased by the revised code, the excess has become illegal."

Regardless, therefore, of whether the trial courts that sentenced petitioners to life sentences had
jurisdiction or not to impose such penalty, or were right or wrong in imposing such penalty, the only
relevant question now is whether petitioners have served the maximum and lesser sentence of
prision mayor that this Court has by firm judicial doctrine since 1956 determined to be the penalty that
the Revised Penal Code fixes for the crime of rebellion. Since they have actually served much more than
the maximum imposable penalty, the excess of the sentence imposed upon them over the imposable
maximum of twelve years of prision mayor cannot but be declared illegal and they should now be set free.

In People vs. Parel, 10 the Court held that the provisions of a new law (Act 3030) for the prescription of
certain election offenses (fixing the same at one year after commission) were more favorable to the
accused than those of the pre-existing law and were therefore retroactive as to the same offenses
committed before the enactment of the new law. In meeting the objection that the reduced prescription
period was by its terms applicable only to offenses resulting from the new law (which amended the preexisting Election Law) and could not be given retroactive effect, the Court found "that practically all of
the offenses defined in the former law are also defined in the same language in Act 3030 (the new law),
the only difference being that the penalties have been increased." Holding that the retroactivity clause of
Article 22 of the Penal Code must apply in all in which the new law is more favorable to the accused, in

the absence of any express statutory exception, the Court drew this analogy: "Let us suppose that a statute
is enacted defining the crime of murder in the same language in which it is defined in the Penal Code, but
providing that the maximum penalty for the crime defined in the new statute shall be life imprisonment,
the statute containing no provision that it shall not be retroactive in its effect. Would anyone then maintain
that the death penalty might still be imposed for murder committed before the new statute was enacted?"

The case at bar for petitioners is much stronger. Here, there is no question even as to the enactment of a
law statute describing the crime in the same language and imposing a lesser penalty, but the settled
doctrine of this Court that there does not exist in our legal system the complex crime of rebellion of which
the petitioners stand convicted, "since rebellion cannot form a complex with common crimes, because the
latter are either absorbed by the rebellion itself or are punishable as independent offenses." 11 Petitioners
here have been convicted for the very same rebellion and under the very same law for which their leaders,
Jose Lava et al., have been convicted. Yet, while their leaders have since been freed after serving their
sentences of ten years of prision mayor, petitioners as mere followers are serving out the life sentences
imposed on them, notwithstanding their already having served out much more than the maximum penalty
of twelve years of prision mayor imposable upon them. The fact that the legal doubts about the nonexistence of the crime of "complexed" rebellion were cleared up only in 1956 after they had already been
convicted and were serving their sentences does not make the excess in the penalty imposed upon them
beyond the maximum of twelve years any less illegal.

The rule of prospective and non-retroactive operation of judicial doctrines, and its corollary rule of the
law of the case, have no application here. These salutary rules decree that rights of parties having been
decisively settled and determined by final judgment of the court of competent jurisdiction with the party
adversely affected having had the opportunity to raise in the case all relevant questions, the decision
becomes the law of the case, and vested rights would be impaired, judicial chaos and disorder ensue and
litigation would be never-ending and would become more intolerable than the wrongs it is intended to
redress, should an adjudicated case be reopened simply because in another and subsequent case, this
Court adopted a new or different construction of the law under which a different result of the adjudicated
case might have been obtained. Here, the whole question
turns simply on the nature of the crime of rebellion as defined in section 134 of the Revised Penal
Code and the maximum penalty imposable therefor under section 135 of the same Code. As this Court
had ruled since 1956--which is now settled doctrinethat only the crime of simple rebellion exists in our
legal system for which the maximum penalty of prision mayor may be imposed, the excess of the life
sentences imposed upon petitioners over the imposable maximum of prision mayor cannot stand and must
necessarily be declared void.

Prescinding then from the question of jurisdiction of the sentencing courts, the case at bar presents a clear
case of an excess in penalty imposed beyond twelve years of prision mayor which has become illegal by
virtue of this Court's settled doctrine that the crime of rebellion cannot be complexed with other common
crimes. On this ground, as well as on the further and more fundamental ground that to hold them liable to
continue serving life sentences for a crime that the lawat the time of their conviction as well as now
punishes only with prision mayor which they have more than fully served, would be to deny them their
constitutional rights of due process and equal protection of the law.

Any further detention of petitioners, in my view as above discussed, is illegal and unconstitutional and the
petition for habeas corpus should be granted and petitioners forthwith set at liberty.

Reyes, J.B.L., Makalintal and Villamor, JJ., concur.

Separate Opinions

TEEHANKEE, J., concurring and dissenting:

The petitioners at bar, three of whom pleaded guilty1 and two of whom stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called complex crime of rebellion with
multiple murder and other crimes, and have served or are now entering into their 17th year of
imprisonment, save for petitioner Epifanio Padua who was sentenced on December 15, 1955 and is
completing his 15th year of imprisonment, (excluding the periods they were under pre-conviction
detention). The leaders of the rebellion who were meted out death and life sentences for the same charge
by the Court of First Instance of Manila had their sentences reduced last near to ten years of prision
mayor by the Court in People v. Lava,3 wherein the Court expressly re-affirmed the doctrine first laid
down in 1956 in People vs. Hernandez,4 that the crime of rebellion cannot be complexed with other
common crimes since such common crimes "assume the political complexion of the main crime of which
they are mere ingredients and consequently cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty." The Court rejected therein the
State's plea for the reexamination and setting aside of such doctrine, declaring that "(T)his Court has
given this plea of the Solicitor General a very serious consideration, but after a mature deliberation the
members of this Court have decided to maintain that ruling in the Hernandez case and to adhere to what
this Court said in that case." The said leaders have since been duly freed as having served out their
penalty, but their followers, herein petitioners, are still serving their life sentences.

I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that "(W)ith reference to persons
in custody pursuant to a final judgment, the rule is that the writ of habeas corpus can issue only for want
of jurisdiction of the sentencing court, and cannot function as a writ of error." "I grant, too, that at the time
of the Pomeroy decision in 1960, as noted therein, "the existence of the 'complexed' rebellion (was) still
upheld by a sizable number of lawyers, prosecutors, judges and even justices of this Court." But with the
doctrine first enunciated in 1956 in Hernandez by a bare six-to-four majority vote having withstood the
test of time 6 and having been just last year unreservedly reaffirmed without a single dissent in Lava, it
cannot now be gainsaid that it is now part of our legal system that the crime of "complexed" rebellion
does not exist in our Revised Penal Code. No prosecutor would now file an information for "complexed"
rebellion but simply for the offense of simple rebellion as defined in Article 134 of the Revised Penal
Code, and even if such an information for "complexed" rebellion to be so filed, the trial courts would be
bound to quash such information as not charging an offense on the strength of Lava and Hernandez.

Petitioners have therefore properly invoked in their favor the provisions of Article 22 of the Revised
Penal Code that:

ART. 22.
Retroactive effect of penal laws.Penal laws shall have a retroactive effect insofar as
they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in rule 5 of
article 62 of this Code, although at the time of the publication of such laws a final sentence has been
pronounced and the convict is serving the same.

in relation to the provisions of Article 8 of the Civil Code that "(J)udicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal system of the Philippines."

The situation of petitioners is no different than it would be if, say, the penalty of reclusion perpetua were
imposed by statute for the crime of simple rebellion at the time of their conviction and they were
accordingly sentenced, and the statutory penalty were now reduced to prision mayor or 12 years
imprisonment; having served out the maximum penalty of 12 years now imposed by the amended statute,
they would be entitled to invoke the retroactive effect of the statute favoring them. The only difference
between the situation given and the present case is that here it is this Supreme Court, interpreting the laws
in discharge of its constitutional prerogative, that has laid down the doctrine since Hernandez in 1956 that
no offense of "complexed" rebellion exists and petitioners should therefore be now equally entitled to the
retroactive favorable effect of such doctrine.

The actual case of petitioners is that at the time of their conviction, it was
believed erroneously that the crime committed by them was punishable by life imprisonment, but
the Court has subsequently judicially determined it not be so and that the maximum imposable penalty is
prision mayor or 12 years. Petitioners-convicts are entitled to the benefit of this later judicial declaration,
just as if a statutory amendment had been enactednot because the sentencing court had no jurisdiction
or is now ousted of jurisdiction. The writ prayed for should issue, since as held in Directo vs. Director of
Prisons,7 "the only means of giving retroactive effect to a penal provision favorable to the accused where
the trial judge has lost jurisdiction over the case, is the writ of habeas corpus."

The question of jurisdiction of the sentencing court therefore is moot, for it is universally recognized that
relief by habeas corpus may be properly sought in cases of imposition of excessive penalty, such that the
part of the sentence beyond or in excess of the power of the court to impose is held void, the applicant
having already served out the entire part of the sentence within the court's power. 8 As pointed out by the
Court in Rodriguez vs. Director of Prisons,9 furthermore, "Article 22 of the Revised Penal Code ...
extends its benefits even to convicts serving sentence, and the only legal remedy open to them to make
use of such benefits is the writ of habeas corpus inasmuch as, if the penalty imposed upon them under the
former penal law was decreased by the revised code, the excess has become illegal."

Regardless, therefore, of whether the trial courts that sentenced petitioners to life sentences had
jurisdiction or not to impose such penalty, or were right or wrong in imposing such penalty, the only
relevant question now is whether petitioners have served the maximum and lesser sentence of
prision mayor that this Court has by firm judicial doctrine since 1956 determined to be the penalty that

the Revised Penal Code fixes for the crime of rebellion. Since they have actually served much more than
the maximum imposable penalty, the excess of the sentence imposed upon them over the imposable
maximum of twelve years of prision mayor cannot but be declared illegal and they should now be set free.

In People vs. Parel, 10 the Court held that the provisions of a new law (Act 3030) for the prescription of
certain election offenses (fixing the same at one year after commission) were more favorable to the
accused than those of the pre-existing law and were therefore retroactive as to the same offenses
committed before the enactment of the new law. In meeting the objection that the reduced prescription
period was by its terms applicable only to offenses resulting from the new law (which amended the preexisting Election Law) and could not be given retroactive effect, the Court found "that practically all of
the offenses defined in the former law are also defined in the same language in Act 3030 (the new law),
the only difference being that the penalties have been increased." Holding that the retroactivity clause of
Article 22 of the Penal Code must apply in all in which the new law is more favorable to the accused, in
the absence of any express statutory exception, the Court drew this analogy: "Let us suppose that a statute
is enacted defining the crime of murder in the same language in which it is defined in the Penal Code, but
providing that the maximum penalty for the crime defined in the new statute shall be life imprisonment,
the statute containing no provision that it shall not be retroactive in its effect. Would anyone then maintain
that the death penalty might still be imposed for murder committed before the new statute was enacted?"

The case at bar for petitioners is much stronger. Here, there is no question even as to the enactment of a
law statute describing the crime in the same language and imposing a lesser penalty, but the settled
doctrine of this Court that there does not exist in our legal system the complex crime of rebellion of which
the petitioners stand convicted, "since rebellion cannot form a complex with common crimes, because the
latter are either absorbed by the rebellion itself or are punishable as independent offenses." 11 Petitioners
here have been convicted for the very same rebellion and under the very same law for which their leaders,
Jose Lava et al., have been convicted. Yet, while their leaders have since been freed after serving their
sentences of ten years of prision mayor, petitioners as mere followers are serving out the life sentences
imposed on them, notwithstanding their already having served out much more than the maximum penalty
of twelve years of prision mayor imposable upon them. The fact that the legal doubts about the nonexistence of the crime of "complexed" rebellion were cleared up only in 1956 after they had already been
convicted and were serving their sentences does not make the excess in the penalty imposed upon them
beyond the maximum of twelve years any less illegal.

The rule of prospective and non-retroactive operation of judicial doctrines, and its corollary rule of the
law of the case, have no application here. These salutary rules decree that rights of parties having been
decisively settled and determined by final judgment of the court of competent jurisdiction with the party
adversely affected having had the opportunity to raise in the case all relevant questions, the decision
becomes the law of the case, and vested rights would be impaired, judicial chaos and disorder ensue and
litigation would be never-ending and would become more intolerable than the wrongs it is intended to
redress, should an adjudicated case be reopened simply because in another and subsequent case, this
Court adopted a new or different construction of the law under which a different result of the adjudicated
case might have been obtained. Here, the whole question
turns simply on the nature of the crime of rebellion as defined in section 134 of the Revised Penal
Code and the maximum penalty imposable therefor under section 135 of the same Code. As this Court
had ruled since 1956--which is now settled doctrinethat only the crime of simple rebellion exists in our
legal system for which the maximum penalty of prision mayor may be imposed, the excess of the life

sentences imposed upon petitioners over the imposable maximum of prision mayor cannot stand and must
necessarily be declared void.

Prescinding then from the question of jurisdiction of the sentencing courts, the case at bar presents a clear
case of an excess in penalty imposed beyond twelve years of prision mayor which has become illegal by
virtue of this Court's settled doctrine that the crime of rebellion cannot be complexed with other common
crimes. On this ground, as well as on the further and more fundamental ground that to hold them liable to
continue serving life sentences for a crime that the lawat the time of their conviction as well as now
punishes only with prision mayor which they have more than fully served, would be to deny them their
constitutional rights of due process and equal protection of the law.

Any further detention of petitioners, in my view as above discussed, is illegal and unconstitutional and the
petition for habeas corpus should be granted and petitioners forthwith set at liberty.

Reyes, J.B.L., Makalintal and Villamor, JJ., concur.

Footnotes

99 Phil. 515 (1956).

107 Phil. 50 (1960).

3
Art. 8 of the Civil Code provides: "Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines."

4
According to Art. 22 of the Revised Penal Code: "Retroactive effect of penal laws.Penal laws
shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual
criminal, as this term is defined in rule 5 of article 62 of this Code, although at the time of the publication
of such laws a final sentence has been pronounced and the convict is serving the same."

5
Petition, par. 1.1 dated January 11, 1969.lwph1.t The above allegations are expressly
admitted in the answer for the respondent Director of Prisons filed by the Solicitor General on April 10,
1969.

99 Phil. 515 (1956).

7
The petition likewise cited in addition to People v. Hernandez, People v. Geronimo, 100 Phil. 90
(1956); People v. Togonon, 101 Phil. 804 (1957); People v. Romagoza, 103 Phil. 20 (1958) and People v.
Santos, 104 Phil. 551 (1958). Petition, par. 1.2.

L-4974, May 16, 1969.

Petition, par. 1.3.

10
Chafee, The Most Important Human Right in the Constitution, 32 Boston Univ. Law Rev. 143
(1947).

11

2 Cooley, Constitutional Limitations 709 (1927).

12

3 Willoughby on the Constitution 1612 (1929).

13

Burdick, the Law of the American Constitution 27 (1922).

14

Fraenkel, Our Civil Liberties 6 (1944).

15

Cf. In re Patterson, 1 Phil. 93 (1902).

16

Cf. Ortiz v. del Villar, 57 Phil. 19 (1932).

17

Cf. Slade Perkins v. Director of Prisons, 58 Phil. 271 (1933).

18

Cf. Pomeroy v. Director of Prisons, 107 Phil. 50, 59-62, diss. (1960).

19

Cf. Avelino v. Vera, 77 Phil. 192 (1946).

20

Cf. Saulo v. Cruz, 105 Phil. 315 (1959).

21

39 Phil. 778 (1919).

22

Ibid., p. 790.

23

42 Phil. 805 (1922).

24

Ibid., p. 805.

25

45 Phil. 650 (1924).

26

Ibid., p. 652.

27

Ex parte Watkins, 3 Pet. 193, 202.

28

Ex parte Yerger, 8 Wall. 85, 95.

29

Harris v. Nelson, 22 L Ed 2d 281, 286 (1969).

30

237 US 309, 346 (1915).

31
Section 4, Rule 102 provides: "If it appears that the person alleged to be restrained of his liberty is
in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of
a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or
make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the
person shall not be discharged by reason of any informality or defect in the process, judgment, or order.
Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of
an offense in the Philippines, or of a person suffering imprisonment under lawful judgment." 3 Moran,
Comments on the Rules of Court, p. 604, 1970 ed.

32

In re Prautch, 1 Phil. 132.

33
100 US 371, 375. According to Ex parte Lange: "On consideration of the petition, the court was
of opinion that the facts therein recited very fairly raised the question whether the circuit court, in the
sentence which it had pronounced, and under which the prisoner was held, had not exceed its powers. It
therefore directed the writ to issue, accompanied also by a writ of certiorari, to bring before this court the
proceedings in the circuit court under which the petitioner was restrained of his liberty. The authority of
this court in such case, under the Constitution of the United States, and the 14th section of the judiciary

act of 1789 (1 Stat. at L. 73), to issue this writ, and to examine the proceedings in the inferior court, so far
as may be necessary to ascertain whether that court has exceeded its authority, is no longer open to
question." (85 US 163, 165-166 [1874]). Justice Miller, who penned the opinion, cited the following
cases: U. S. v. Hamilton, 3 Dall. 17 (1795); Ex parte Burford, 3 Cranch 448 (1806); Ex parte Bollman, 4
Cranch 75 (1807); Ex parte Watkins, 3 Pet. 193, 7 Pet. 508 (1830); Ex Parte Metzger, 5 How. 176 (1847);
Ex parte Kaine, 14 How. 103 (1852); Ex parte Wells, 18 How. 307 (1856); Ex Parte Milligan, 4 Wall. 2
(1866); Ex parte Mccardle, 6 Wall. 318 (1868); Ex parte Yerger, 8 Wall. 85 (1869).

34
Cf. Conde v. Rivera, 45 Phil. 650 (1924); Harden v. Director of Prisons, 81 Phil. 741 (1948);
Abriol v. Homeres, 84 Phil. 525 (1949); Chavez v. Court of Appeals,
L-29169, Aug. 1968, 24 SCRA 663; Celeste v. People, L-21435, Jan. 30, 1970, 31 SCRA 391.

35

Petition, par. 5.1, p. 11.

36

J. M. Tuason & Co., Inc. v. Land Tenure Administration, L-21064, Feb. 18, 1970, 31 SCRA 413.

37

11 Phil. 447 (1908).

38

24 Phil. 29 (1913).

39

25 Phil. 648 (1913).

40

44 Phil. 387 (1923).

41

44 Phil. 437 (1923).

42

Frankfurter, The Reading of Statutes, reproduced in Of Law and Men, 47, at p. 53 (1956).

43
Powell, The Logic and Rhetoric of Constitutional Law, 1 Selected Essays on Constitutional Law
474, at p. 481 (1938).

44
Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, Ibid., 503, at p.
524 (1938).

45

17 Phil. 269.

46

Ibid., pp. 272-273.

47

56 Phil. 692 (1932).

48

Ibid. p. 695.

TEEHANKEE, J.:

Petitioners Gumabon, Agapito and Palmares.

Petitioners Bagolbagol and Padua.

28 SCRA 72, 100 (May 16, 1969).

99 Phil. 515 (1956).

107 Phil., 50 (1960).

6
Reiterated in People vs. Geronimo, 100 Phil., 90 (1956); Togonon, 101 Phil., 804 (1957);
Romagoza, 103 Phil., 20 (1958); and Aquino, 108 Phil., 814 (1960).
7

56 Phil. 692 (1932).

Cruz vs. Director of Prisons, 17 Phil. 269 (1910); See also Caluag vs. Pecson, 82 Phil. 8 (1948).

57 Phil. 133 (1932).

10

44 Phil. 437 (1932), emphasis copied; see also People vs. Moran, 44 Phil. 387 (1923).

11

Pomeroy vs. Director of Prisons, supra fn. 5, see pp. 54, 61.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 155076

February 27, 2006

LUIS MARCOS P. LAUREL, Petitioner,

vs.
HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial Court, Makati City, Branch 150,
PEOPLE OF THE PHILIPPINES& PHILIPPINE LONG DISTANCE TELEPHONE COMPANY,
Respondents.

DECISION

CALLEJO, SR., J.:

Before us is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA) in CAG.R. SP No. 68841 affirming the Order issued by Judge Zeus C. Abrogar, Regional Trial Court (RTC),
Makati City, Branch 150, which denied the "Motion to Quash (With Motion to Defer Arraignment)" in
Criminal Case No. 99-2425 for theft.

Philippine Long Distance Telephone Company (PLDT) is the holder of a legislative franchise to render
local and international telecommunication services under Republic Act No. 7082.2 Under said law, PLDT
is authorized to establish, operate, manage, lease, maintain and purchase telecommunication systems,
including transmitting, receiving and switching stations, for both domestic and international calls. For this
purpose, it has installed an estimated 1.7 million telephone lines nationwide. PLDT also offers other
services as authorized by Certificates of Public Convenience and Necessity (CPCN) duly issued by the
National Telecommunications Commission (NTC), and operates and maintains an International Gateway
Facility (IGF). The PLDT network is thus principally composed of the Public Switch Telephone Network
(PSTN), telephone handsets and/or telecommunications equipment used by its subscribers, the wires and
cables linking said telephone handsets and/or telecommunications equipment, antenna, the IGF, and other
telecommunications equipment which provide interconnections.3 1avvphil.net

PLDT alleges that one of the alternative calling patterns that constitute network fraud and violate its
network integrity is that which is known as International Simple Resale (ISR). ISR is a method of routing
and completing international long distance calls using International Private Leased Lines (IPL), cables,
antenna or air wave or frequency, which connect directly to the local or domestic exchange facilities of
the terminating country (the country where the call is destined). The IPL is linked to switching equipment
which is connected to a PLDT telephone line/number. In the process, the calls bypass the IGF found at the
terminating country, or in some instances, even those from the originating country.4

One such alternative calling service is that offered by Baynet Co., Ltd. (Baynet) which sells "Bay Super
Orient Card" phone cards to people who call their friends and relatives in the Philippines. With said card,
one is entitled to a 27-minute call to the Philippines for about 37.03 per minute. After dialing the ISR
access number indicated in the phone card, the ISR operator requests the subscriber to give the PIN
number also indicated in the phone card. Once the callers identity (as purchaser of the phone card) is
confirmed, the ISR operator will then provide a Philippine local line to the requesting caller via the IPL.
According to PLDT, calls made through the IPL never pass the toll center of IGF operators in the
Philippines. Using the local line, the Baynet card user is able to place a call to any point in the
Philippines, provided the local line is National Direct Dial (NDD) capable.5

PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to course its incoming
international long distance calls from Japan. The IPL is linked to switching equipment, which is then
connected to PLDT telephone lines/numbers and equipment, with Baynet as subscriber. Through the use
of the telephone lines and other auxiliary equipment, Baynet is able to connect an international long
distance call from Japan to any part of the Philippines, and make it appear as a call originating from
Metro Manila. Consequently, the operator of an ISR is able to evade payment of access, termination or
bypass charges and accounting rates, as well as compliance with the regulatory requirements of the NTC.
Thus, the ISR operator offers international telecommunication services at a lower rate, to the damage and
prejudice of legitimate operators like PLDT.6

PLDT pointed out that Baynet utilized the following equipment for its ISR activities: lines, cables, and
antennas or equipment or device capable of transmitting air waves or frequency, such as an IPL and
telephone lines and equipment; computers or any equipment or device capable of accepting information
applying the prescribed process of the information and supplying the result of this process; modems or
any equipment or device that enables a data terminal equipment such as computers to communicate with
other data terminal equipment via a telephone line; multiplexers or any equipment or device that enables
two or more signals from different sources to pass through a common cable or transmission line;
switching equipment, or equipment or device capable of connecting telephone lines; and software,
diskettes, tapes or equipment or device used for recording and storing information.7

PLDT also discovered that Baynet subscribed to a total of 123 PLDT telephone lines/numbers.8 Based on
the Traffic Study conducted on the volume of calls passing through Baynets ISR network which bypass
the IGF toll center, PLDT incurred an estimated monthly loss of P10,185,325.96.9 Records at the
Securities and Exchange Commission (SEC) also revealed that Baynet was not authorized to provide
international or domestic long distance telephone service in the country. The following are its officers:
Yuji Hijioka, a Japanese national (chairman of the board of directors); Gina C. Mukaida, a Filipina (board
member and president); Luis Marcos P. Laurel, a Filipino (board member and corporate secretary); Ricky
Chan Pe, a Filipino (board member and treasurer); and Yasushi Ueshima, also a Japanese national (board
member).

Upon complaint of PLDT against Baynet for network fraud, and on the strength of two search warrants10
issued by the RTC of Makati, Branch 147, National Bureau of Investigation (NBI) agents searched its
office at the 7th Floor, SJG Building, Kalayaan Avenue, Makati City on November 8, 1999. Atsushi
Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and Rolando J. Villegas were arrested by NBI agents
while in the act of manning the operations of Baynet. Seized in the premises during the search were
numerous equipment and devices used in its ISR activities, such as multiplexers, modems, computer

monitors, CPUs, antenna, assorted computer peripheral cords and microprocessors, cables/wires, assorted
PLDT statement of accounts, parabolic antennae and voltage regulators.

State Prosecutor Ofelia L. Calo conducted an inquest investigation and issued a Resolution11 on January
28, 2000, finding probable cause for theft under Article 308 of the Revised Penal Code and Presidential
Decree No. 40112 against the respondents therein, including Laurel.

On February 8, 2000, State Prosecutor Calo filed an Information with the RTC of Makati City charging
Matsuura, Miyake, Lacson and Villegas with theft under Article 308 of the Revised Penal Code. After
conducting the requisite preliminary investigation, the State Prosecutor filed an Amended Information
impleading Laurel (a partner in the law firm of Ingles, Laurel, Salinas, and, until November 19, 1999, a
member of the board of directors and corporate secretary of Baynet), and the other members of the board
of directors of said corporation, namely, Yuji Hijioka, Yasushi Ueshima, Mukaida, Lacson and Villegas, as
accused for theft under Article 308 of the Revised Penal Code. The inculpatory portion of the Amended
Information reads:

On or about September 10-19, 1999, or prior thereto, in Makati City, and within the jurisdiction of this
Honorable Court, the accused, conspiring and confederating together and all of them mutually helping
and aiding one another, with intent to gain and without the knowledge and consent of the Philippine Long
Distance Telephone (PLDT), did then and there willfully, unlawfully and feloniously take, steal and use
the international long distance calls belonging to PLDT by conducting International Simple Resale (ISR),
which is a method of routing and completing international long distance calls using lines, cables,
antennae, and/or air wave frequency which connect directly to the local or domestic exchange facilities of
the country where the call is destined, effectively stealing this business from PLDT while using its
facilities in the estimated amount of P20,370,651.92 to the damage and prejudice of PLDT, in the said
amount.

CONTRARY TO LAW.13

Accused Laurel filed a "Motion to Quash (with Motion to Defer Arraignment)" on the ground that the
factual allegations in the Amended Information do not constitute the felony of theft under Article 308 of
the Revised Penal Code. He averred that the Revised Penal Code, or any other special penal law for that
matter, does not prohibit ISR operations. He claimed that telephone calls with the use of PLDT telephone
lines, whether domestic or international, belong to the persons making the call, not to PLDT. He argued
that the caller merely uses the facilities of PLDT, and what the latter owns are the telecommunication
infrastructures or facilities through which the call is made. He also asserted that PLDT is compensated for
the callers use of its facilities by way of rental; for an outgoing overseas call, PLDT charges the caller
per minute, based on the duration of the call. Thus, no personal property was stolen from PLDT.
According to Laurel, the P20,370,651.92 stated in the Information, if anything, represents the rental for
the use of PLDT facilities, and not the value of anything owned by it. Finally, he averred that the
allegations in the Amended Information are already subsumed under the Information for violation of
Presidential Decree (P.D.) No. 401 filed and pending in the Metropolitan Trial Court of Makati City,
docketed as Criminal Case No. 276766.

The prosecution, through private complainant PLDT, opposed the motion,14 contending that the movant
unlawfully took personal property belonging to it, as follows: 1) intangible telephone services that are
being offered by PLDT and other telecommunication companies, i.e., the connection and interconnection
to their telephone lines/facilities; 2) the use of those facilities over a period of time; and 3) the revenues
derived in connection with the rendition of such services and the use of such facilities.15

The prosecution asserted that the use of PLDTs intangible telephone services/facilities allows electronic
voice signals to pass through the same, and ultimately to the called partys number. It averred that such
service/facility is akin to electricity which, although an intangible property, may, nevertheless, be
appropriated and be the subject of theft. Such service over a period of time for a consideration is the
business that PLDT provides to its customers, which enables the latter to send various messages to
installed recipients. The service rendered by PLDT is akin to merchandise which has specific value, and
therefore, capable of appropriation by another, as in this case, through the ISR operations conducted by
the movant and his co-accused.

The prosecution further alleged that "international business calls and revenues constitute personal
property envisaged in Article 308 of the Revised Penal Code." Moreover, the intangible telephone
services/facilities belong to PLDT and not to the movant and the other accused, because they have no
telephone services and facilities of their own duly authorized by the NTC; thus, the taking by the movant
and his co-accused of PLDT services was with intent to gain and without the latters consent.

The prosecution pointed out that the accused, as well as the movant, were paid in exchange for their
illegal appropriation and use of PLDTs telephone services and facilities; on the other hand, the accused
did not pay a single centavo for their illegal ISR operations. Thus, the acts of the accused were akin to the
use of a "jumper" by a consumer to deflect the current from the house electric meter, thereby enabling one
to steal electricity. The prosecution emphasized that its position is fortified by the Resolutions of the
Department of Justice in PLDT v. Tiongson, et al. (I.S. No. 97-0925) and in PAOCTF-PLDT v. Elton John
Tuason, et al. (I.S. No. 2000-370) which were issued on August 14, 2000 finding probable cause for theft
against the respondents therein.

On September 14, 2001, the RTC issued an Order16 denying the Motion to Quash the Amended
Information. The court declared that, although there is no law that expressly prohibits the use of ISR, the
facts alleged in the Amended Information "will show how the alleged crime was committed by
conducting ISR," to the damage and prejudice of PLDT.

Laurel filed a Motion for Reconsideration17 of the Order, alleging that international long distance calls
are not personal property, and are not capable of appropriation. He maintained that business or revenue is
not considered personal property, and that the prosecution failed to adduce proof of its existence and the
subsequent loss of personal property belonging to another. Citing the ruling of the Court in United States
v. De Guzman,18 Laurel averred that the case is not one with telephone calls which originate with a
particular caller and terminates with the called party. He insisted that telephone calls are considered
privileged communications under the Constitution and cannot be considered as "the property of PLDT."
He further argued that there is no kinship between telephone calls and electricity or gas, as the latter are
forms of energy which are generated and consumable, and may be considered as personal property

because of such characteristic. On the other hand, the movant argued, the telephone business is not a form
of energy but is an activity.

In its Order19 dated December 11, 2001, the RTC denied the movants Motion for Reconsideration. This
time, it ruled that what was stolen from PLDT was its "business" because, as alleged in the Amended
Information, the international long distance calls made through the facilities of PLDT formed part of its
business. The RTC noted that the movant was charged with stealing the business of PLDT. To support its
ruling, it cited Strochecker v. Ramirez,20 where the Court ruled that interest in business is personal
property capable of appropriation. It further declared that, through their ISR operations, the movant and
his co-accused deprived PLDT of fees for international long distance calls, and that the ISR used by the
movant and his co-accused was no different from the "jumper" used for stealing electricity.

Laurel then filed a Petition for Certiorari with the CA, assailing the Order of the RTC. He alleged that the
respondent judge gravely abused his discretion in denying his Motion to Quash the Amended
Information.21 As gleaned from the material averments of the amended information, he was charged with
stealing the international long distance calls belonging to PLDT, not its business. Moreover, the RTC
failed to distinguish between the business of PLDT (providing services for international long distance
calls) and the revenues derived therefrom. He opined that a "business" or its revenues cannot be
considered as personal property under Article 308 of the Revised Penal Code, since a "business" is "(1) a
commercial or mercantile activity customarily engaged in as a means of livelihood and typically
involving some independence of judgment and power of decision; (2) a commercial or industrial
enterprise; and (3) refers to transactions, dealings or intercourse of any nature." On the other hand, the
term "revenue" is defined as "the income that comes back from an investment (as in real or personal
property); the annual or periodical rents, profits, interests, or issues of any species of real or personal
property."22

Laurel further posited that an electric companys business is the production and distribution of electricity;
a gas companys business is the production and/or distribution of gas (as fuel); while a water companys
business is the production and distribution of potable water. He argued that the "business" in all these
cases is the commercial activity, while the goods and merchandise are the products of such activity. Thus,
in prosecutions for theft of certain forms of energy, it is the electricity or gas which is alleged to be stolen
and not the "business" of providing electricity or gas. However, since a telephone company does not
produce any energy, goods or merchandise and merely renders a service or, in the words of PLDT, "the
connection and interconnection to their telephone lines/facilities," such service cannot be the subject of
theft as defined in Article 308 of the Revised Penal Code.23

He further declared that to categorize "business" as personal property under Article 308 of the Revised
Penal Code would lead to absurd consequences; in prosecutions for theft of gas, electricity or water, it
would then be permissible to allege in the Information that it is the gas business, the electric business or
the water business which has been stolen, and no longer the merchandise produced by such enterprise.24

Laurel further cited the Resolution of the Secretary of Justice in Piltel v. Mendoza,25 where it was ruled
that the Revised Penal Code, legislated as it was before present technological advances were even
conceived, is not adequate to address the novel means of "stealing" airwaves or airtime. In said resolution,

it was noted that the inadequacy prompted the filing of Senate Bill 2379 (sic) entitled "The AntiTelecommunications Fraud of 1997" to deter cloning of cellular phones and other forms of
communications fraud. The said bill "aims to protect in number (ESN) (sic) or Capcode, mobile
identification number (MIN), electronic-international mobile equipment identity (EMEI/IMEI), or
subscriber identity module" and "any attempt to duplicate the data on another cellular phone without the
consent of a public telecommunications entity would be punishable by law."26 Thus, Laurel concluded,
"there is no crime if there is no law punishing the crime."

On August 30, 2002, the CA rendered judgment dismissing the petition.27 The appellate court ruled that a
petition for certiorari under Rule 65 of the Rules of Court was not the proper remedy of the petitioner. On
the merits of the petition, it held that while business is generally an activity

which is abstract and intangible in form, it is nevertheless considered "property" under Article 308 of the
Revised Penal Code. The CA opined that PLDTs business of providing international calls is personal
property which may be the object of theft, and cited United States v. Carlos28 to support such conclusion.
The tribunal also cited Strochecker v. Ramirez,29 where this Court ruled that one-half interest in a days
business is personal property under Section 2 of Act No. 3952, otherwise known as the Bulk Sales Law.
The appellate court held that the operations of the ISR are not subsumed in the charge for violation of
P.D. No. 401.

Laurel, now the petitioner, assails the decision of the CA, contending that -

THE COURT OF APPEALS ERRED IN RULING THAT THE PERSONAL PROPERTY ALLEGEDLY
STOLEN PER THE INFORMATION IS NOT THE "INTERNATIONAL LONG DISTANCE CALLS"
BUT THE "BUSINESS OF PLDT."

THE COURT OF APPEALS ERRED IN RULING THAT THE TERM "BUSINESS" IS PERSONAL
PROPERTY WITHIN THE MEANING OF ART. 308 OF THE REVISED PENAL CODE.30

Petitioner avers that the petition for a writ of certiorari may be filed to nullify an interlocutory order of the
trial court which was issued with grave abuse of discretion amounting to excess or lack of jurisdiction. In
support of his petition before the Court, he reiterates the arguments in his pleadings filed before the CA.
He further claims that while the right to carry on a business or an interest or participation in business is
considered property under the New Civil Code, the term "business," however, is not. He asserts that the
Philippine Legislature, which approved the Revised Penal Code way back in January 1, 1932, could not
have contemplated to include international long distance calls and "business" as personal property under
Article 308 thereof.

In its comment on the petition, the Office of the Solicitor General (OSG) maintains that the amended
information clearly states all the essential elements of the crime of theft. Petitioners interpretation as to
whether an "international long distance call" is personal property under the law is inconsequential, as a
reading of the amended information readily reveals that specific acts and circumstances were alleged

charging Baynet, through its officers, including petitioner, of feloniously taking, stealing and illegally
using international long distance calls belonging to respondent PLDT by conducting ISR operations, thus,
"routing and completing international long distance calls using lines, cables, antenna and/or airwave
frequency which connect directly to the local or domestic exchange facilities of the country where the call
is destined." The OSG maintains that the international long distance calls alleged in the amended
information should be construed to mean "business" of PLDT, which, while abstract and intangible in
form, is personal property susceptible of appropriation.31 The OSG avers that what was stolen by
petitioner and his co-accused is the business of PLDT providing international long distance calls which,
though intangible, is personal property of the PLDT.32

For its part, respondent PLDT asserts that personal property under Article 308 of the Revised Penal Code
comprehends intangible property such as electricity and gas which are valuable articles for merchandise,
brought and sold like other personal property, and are capable of appropriation. It insists that the business
of international calls and revenues constitute personal property because the same are valuable articles of
merchandise. The respondent reiterates that international calls involve (a) the intangible telephone
services that are being offered by it, that is, the connection and interconnection to the telephone network,
lines or facilities; (b) the use of its telephone network, lines or facilities over a period of time; and (c) the
income derived in connection therewith.33

PLDT further posits that business revenues or the income derived in connection with the rendition of such
services and the use of its telephone network, lines or facilities are personal properties under Article 308
of the Revised Penal Code; so is the use of said telephone services/telephone network, lines or facilities
which allow electronic voice signals to pass through the same and ultimately to the called partys number.
It is akin to electricity which, though intangible property, may nevertheless be appropriated and can be the
object of theft. The use of respondent PLDTs telephone network, lines, or facilities over a period of time
for consideration is the business that it provides to its customers, which enables the latter to send various
messages to intended recipients. Such use over a period of time is akin to merchandise which has value
and, therefore, can be appropriated by another. According to respondent PLDT, this is what actually
happened when petitioner Laurel and the other accused below conducted illegal ISR operations.34

The petition is meritorious.

The issues for resolution are as follows: (a) whether or not the petition for certiorari is the proper remedy
of the petitioner in the Court of Appeals; (b) whether or not international telephone calls using Bay Super
Orient Cards through the telecommunication services provided by PLDT for such calls, or, in short,
PLDTs business of providing said telecommunication services, are proper subjects of theft under Article
308 of the Revised Penal Code; and (c) whether or not the trial court committed grave abuse of discretion
amounting to excess or lack of jurisdiction in denying the motion of the petitioner to quash the amended
information.

On the issue of whether or not the petition for certiorari instituted by the petitioner in the CA is proper, the
general rule is that a petition for certiorari under Rule 65 of the Rules of Court, as amended, to nullify an
order denying a motion to quash the Information is inappropriate because the aggrieved party has a
remedy of appeal in the ordinary course of law. Appeal and certiorari are mutually exclusive of each

other. The remedy of the aggrieved party is to continue with the case in due course and, when an
unfavorable judgment is rendered, assail the order and the decision on appeal. However, if the trial court
issues the order denying the motion to quash the Amended Information with grave abuse of discretion
amounting to excess or lack of jurisdiction, or if such order is patently erroneous, or null and void for
being contrary to the Constitution, and the remedy of appeal would not afford adequate and expeditious
relief, the accused may resort to the extraordinary remedy of certiorari.35 A special civil action for
certiorari is also available where there are special circumstances clearly demonstrating the inadequacy of
an appeal. As this Court held in Bristol Myers Squibb (Phils.), Inc. v. Viloria:36

Nonetheless, the settled rule is that a writ of certiorari may be granted in cases where, despite availability
of appeal after trial, there is at least a prima facie showing on the face of the petition and its annexes that:
(a) the trial court issued the order with grave abuse of discretion amounting to lack of or in excess of
jurisdiction; (b) appeal would not prove to be a speedy and adequate remedy; (c) where the order is a
patent nullity; (d) the decision in the present case will arrest future litigations; and (e) for certain
considerations such as public welfare and public policy.37

In his petition for certiorari in the CA, petitioner averred that the trial court committed grave abuse of its
discretion amounting to excess or lack of jurisdiction when it denied his motion to quash the Amended
Information despite his claim that the material allegations in the Amended Information do not charge theft
under Article 308 of the Revised Penal Code, or any offense for that matter. By so doing, the trial court
deprived him of his constitutional right to be informed of the nature of the charge against him. He further
averred that the order of the trial court is contrary to the constitution and is, thus, null and void. He insists
that he should not be compelled to undergo the rigors and tribulations of a protracted trial and incur
expenses to defend himself against a non-existent charge.

Petitioner is correct.

An information or complaint must state explicitly and directly every act or omission constituting an
offense38 and must allege facts establishing conduct that a penal statute makes criminal;39 and describes
the property which is the subject of theft to advise the accused with reasonable certainty of the accusation
he is called upon to meet at the trial and to enable him to rely on the judgment thereunder of a subsequent
prosecution for the same offense.40 It must show, on its face, that if the alleged facts are true, an offense
has been committed. The rule is rooted on the constitutional right of the accused to be informed of the
nature of the crime or cause of the accusation against him. He cannot be convicted of an offense even if
proven unless it is alleged or necessarily included in the Information filed against him.

As a general prerequisite, a motion to quash on the ground that the Information does not constitute the
offense charged, or any offense for that matter, should be resolved on the basis of said allegations whose
truth and veracity are hypothetically committed;41 and on additional facts admitted or not denied by the
prosecution.42 If the facts alleged in the Information do not constitute an offense, the complaint or
information should be quashed by the court.43

We have reviewed the Amended Information and find that, as mentioned by the petitioner, it does not
contain material allegations charging the petitioner of theft of personal property under Article 308 of the
Revised Penal Code. It, thus, behooved the trial court to quash the Amended Information. The Order of
the trial court denying the motion of the petitioner to quash the Amended Information is a patent nullity.

On the second issue, we find and so hold that the international telephone calls placed by Bay Super Orient
Card holders, the telecommunication services provided by PLDT and its business of providing said
services are not personal properties under Article 308 of the Revised Penal Code. The construction by the
respondents of Article 308 of the said Code to include, within its coverage, the aforesaid international
telephone calls, telecommunication services and business is contrary to the letter and intent of the law.

The rule is that, penal laws are to be construed strictly. Such rule is founded on the tenderness of the law
for the rights of individuals and on the plain principle that the power of punishment is vested in Congress,
not in the judicial department. It is Congress, not the Court, which is to define a crime, and ordain its
punishment.44 Due respect for the prerogative of Congress in defining crimes/felonies constrains the
Court to refrain from a broad interpretation of penal laws where a "narrow interpretation" is appropriate.
The Court must take heed to language, legislative history and purpose, in order to strictly determine the
wrath and breath of the conduct the law forbids.45 However, when the congressional purpose is unclear,
the court must apply the rule of lenity, that is, ambiguity concerning the ambit of criminal statutes should
be resolved in favor of lenity.46

Penal statutes may not be enlarged by implication or intent beyond the fair meaning of the language used;
and may not be held to include offenses other than those which are clearly described, notwithstanding that
the Court may think that Congress should have made them more comprehensive.47 Words and phrases in
a statute are to be construed according to their common meaning and accepted usage.

As Chief Justice John Marshall declared, "it would be dangerous, indeed, to carry the principle that a case
which is within the reason or

mischief of a statute is within its provision, so far as to punish a crime not enumerated in the statute
because it is of equal atrocity, or of kindred character with those which are enumerated.48 When
interpreting a criminal statute that does not explicitly reach the conduct in question, the Court should not
base an expansive reading on inferences from subjective and variable understanding.49

Article 308 of the Revised Penal Code defines theft as follows:

Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without
violence, against or intimidation of persons nor force upon things, shall take personal property of another
without the latters consent.

The provision was taken from Article 530 of the Spanish Penal Code which reads:

1. Los que con nimo de lucrarse, y sin violencia o intimidacin en las personas ni fuerza en las cosas,
toman las cosas muebles ajenas sin la voluntad de su dueo.50

For one to be guilty of theft, the accused must have an intent to steal (animus furandi) personal property,
meaning the intent to deprive another of his ownership/lawful possession of personal property which
intent is apart from and concurrently with the general criminal intent which is an essential element of a
felony of dolo (dolus malus).

An information or complaint for simple theft must allege the following elements: (a) the taking of
personal property; (b) the said property belongs to another; (c) the taking be done with intent to gain; and
(d) the taking be accomplished without the use of violence or intimidation of person/s or force upon
things.51

One is apt to conclude that "personal property" standing alone, covers both tangible and intangible
properties and are subject of theft under the Revised Penal Code. But the words "Personal property" under
the Revised Penal Code must be considered in tandem with the word "take" in the law. The statutory
definition of "taking" and movable property indicates that, clearly, not all personal properties may be the
proper subjects of theft. The general rule is that, only movable properties which have physical or material
existence and susceptible of occupation by another are proper objects of theft.52 As explained by Cuelo
Callon: "Cosa juridicamente es toda sustancia corporal, material, susceptible de ser aprehendida que tenga
un valor cualquiera."53

According to Cuello Callon, in the context of the Penal Code, only those movable properties which can be
taken and carried from the place they are found are proper subjects of theft. Intangible properties such as
rights and ideas are not subject of theft because the same cannot be "taken" from the place it is found and
is occupied or appropriated.

Solamente las cosas muebles y corporales pueden ser objeto de hurto. La sustraccin de cosas inmuebles
y la cosas incorporales (v. gr., los derechos, las ideas) no puede integrar este delito, pues no es posible
asirlas, tomarlas, para conseguir su apropiacin. El Codigo emplea la expresin "cosas mueble" en el
sentido de cosa que es susceptible de ser llevada del lugar donde se encuentra, como dinero, joyas, ropas,
etctera, asi que su concepto no coincide por completo con el formulado por el Codigo civil (arts. 335 y
336).54

Thus, movable properties under Article 308 of the Revised Penal Code should be distinguished from the
rights or interests to which they relate. A naked right existing merely in contemplation of law, although it
may be very valuable to the person who is entitled to exercise it, is not the subject of theft or larceny.55
Such rights or interests are intangible and cannot be "taken" by another. Thus, right to produce oil, good
will or an interest in business, or the right to engage in business, credit or franchise are properties. So is
the credit line represented by a credit card. However, they are not proper subjects of theft or larceny
because they are without form or substance, the mere "breath" of the Congress. On the other hand, goods,

wares and merchandise of businessmen and credit cards issued to them are movable properties with
physical and material existence and may be taken by another; hence, proper subjects of theft.

There is "taking" of personal property, and theft is consummated when the offender unlawfully acquires
possession of personal property even if for a short time; or if such property is under the dominion and
control of the thief. The taker, at some particular amount, must have obtained complete and absolute
possession and control of the property adverse to the rights of the owner or the lawful possessor
thereof.56 It is not necessary that the property be actually carried away out of the physical possession of
the lawful possessor or that he should have made his escape with it.57 Neither asportation nor actual
manual possession of property is required. Constructive possession of the thief of the property is
enough.58

The essence of the element is the taking of a thing out of the possession of the owner without his privity
and consent and without animus revertendi.59

Taking may be by the offenders own hands, by his use of innocent persons without any felonious intent,
as well as any mechanical device, such as an access device or card, or any agency, animate or inanimate,
with intent to gain. Intent to gain includes the unlawful taking of personal property for the purpose of
deriving utility, satisfaction, enjoyment and pleasure.60

We agree with the contention of the respondents that intangible properties such as electrical energy and
gas are proper subjects of theft. The reason for this is that, as explained by this Court in United States v.
Carlos61 and United States v. Tambunting,62 based on decisions of the Supreme Court of Spain and of
the courts in England and the United States of America, gas or electricity are capable of appropriation by
another other than the owner. Gas and electrical energy may be taken, carried away and appropriated. In
People v. Menagas,63 the Illinois State Supreme Court declared that electricity, like gas, may be seen and
felt. Electricity, the same as gas, is a valuable article of merchandise, bought and sold like other personal
property and is capable of appropriation by another. It is a valuable article of merchandise, bought and
sold like other personal property, susceptible of being severed from a mass or larger quantity and of being
transported from place to place. Electrical energy may, likewise, be taken and carried away. It is a
valuable commodity, bought and sold like other personal property. It may be transported from place to
place. There is nothing in the nature of gas used for illuminating purposes which renders it incapable of
being feloniously taken and carried away.

In People ex rel Brush Electric Illuminating Co. v. Wemple,64 the Court of Appeals of New York held
that electric energy is manufactured and sold in determinate quantities at a fixed price, precisely as are
coal, kerosene oil, and gas. It may be conveyed to the premises of the consumer, stored in cells of
different capacity known as an accumulator; or it may be sent through a wire, just as gas or oil may be
transported either in a close tank or forced through a pipe. Having reached the premises of the consumer,
it may be used in any way he may desire, being, like illuminating gas, capable of being transformed either
into heat, light, or power, at the option of the purchaser. In Woods v. People,65 the Supreme Court of
Illinois declared that there is nothing in the nature of gas used for illuminating purposes which renders it
incapable of being feloniously taken and carried away. It is a valuable article of merchandise, bought and

sold like other personal property, susceptible of being severed from a mass or larger quantity and of being
transported from place to place.

Gas and electrical energy should not be equated with business or services provided by business
entrepreneurs to the public. Business does not have an exact definition. Business is referred as that which
occupies the time, attention and labor of men for the purpose of livelihood or profit. It embraces
everything that which a person can be employed.66 Business may also mean employment, occupation or
profession. Business is also defined as a commercial activity for gain benefit or advantage.67 Business,
like services in business, although are properties, are not proper subjects of theft under the Revised Penal
Code because the same cannot be "taken" or "occupied." If it were otherwise, as claimed by the
respondents, there would be no juridical difference between the taking of the business of a person or the
services provided by him for gain, vis--vis, the taking of goods, wares or merchandise, or equipment
comprising his business.68 If it was its intention to include "business" as personal property under Article
308 of the Revised Penal Code, the Philippine Legislature should have spoken in language that is clear
and definite: that business is personal property under Article 308 of the Revised Penal Code.69

We agree with the contention of the petitioner that, as gleaned from the material averments of the
Amended Information, he is charged of "stealing the international long distance calls belonging to PLDT"
and the use thereof, through the ISR. Contrary to the claims of the OSG and respondent PLDT, the
petitioner is not charged of stealing P20,370,651.95 from said respondent. Said amount of P20,370,651.95
alleged in the Amended Information is the aggregate amount of access, transmission or termination
charges which the PLDT expected from the international long distance calls of the callers with the use of
Baynet Super Orient Cards sold by Baynet Co. Ltd.

In defining theft, under Article 308 of the Revised Penal Code, as the taking of personal property without
the consent of the owner thereof, the Philippine legislature could not have contemplated the human voice
which is converted into electronic impulses or electrical current which are transmitted to the party called
through the PSTN of respondent PLDT and the ISR of Baynet Card Ltd. within its coverage. When the
Revised Penal Code was approved, on December 8, 1930, international telephone calls and the
transmission and routing of electronic voice signals or impulses emanating from said calls, through the
PSTN, IPL and ISR, were still non-existent. Case law is that, where a legislative history fails to evidence
congressional awareness of the scope of the statute claimed by the respondents, a narrow interpretation of
the law is more consistent with the usual approach to the construction of the statute. Penal responsibility
cannot be extended beyond the fair scope of the statutory mandate.70

Respondent PLDT does not acquire possession, much less, ownership of the voices of the telephone
callers or of the electronic voice signals or current emanating from said calls. The human voice and the
electronic voice signals or current caused thereby are intangible and not susceptible of possession,
occupation or appropriation by the respondent PLDT or even the petitioner, for that matter. PLDT merely
transmits the electronic voice signals through its facilities and equipment. Baynet Card Ltd., through its
operator, merely intercepts, reroutes the calls and passes them to its toll center. Indeed, the parties called
receive the telephone calls from Japan.

In this modern age of technology, telecommunications systems have become so tightly merged with
computer systems that it is difficult to know where one starts and the other finishes. The telephone set is
highly computerized and allows computers to communicate across long distances.71 The instrumentality
at issue in this case is not merely a telephone but a telephone inexplicably linked to a computerized
communications system with the use of Baynet Cards sold by the Baynet Card Ltd. The corporation uses
computers, modems and software, among others, for its ISR.72

The conduct complained of by respondent PLDT is reminiscent of "phreaking" (a slang term for the
action of making a telephone system to do something that it normally should not allow by "making the
phone company bend over and grab its ankles"). A "phreaker" is one who engages in the act of
manipulating phones and illegally markets telephone services.73 Unless the phone company replaces all
its hardware, phreaking would be impossible to stop. The phone companies in North America were
impelled to replace all their hardware and adopted full digital switching system known as the Common
Channel Inter Office Signaling. Phreaking occurred only during the 1960s and 1970s, decades after the
Revised Penal Code took effect.

The petitioner is not charged, under the Amended Information, for theft of telecommunication or
telephone services offered by PLDT. Even if he is, the term "personal property" under Article 308 of the
Revised Penal Code cannot be interpreted beyond its seams so as to include "telecommunication or
telephone services" or computer services for that matter. The word "service" has a variety of meanings
dependent upon the context, or the sense in which it is used; and, in some instances, it may include a sale.
For instance, the sale of food by restaurants is usually referred to as "service," although an actual sale is
involved.74 It may also mean the duty or labor to be rendered by one person to another; performance of
labor for the benefit of another.75 In the case of PLDT, it is to render local and international
telecommunications services and such other services as authorized by the CPCA issued by the NTC. Even
at common law, neither time nor services may be taken and occupied or appropriated.76 A service is
generally not considered property and a theft of service would not, therefore, constitute theft since there
can be no caption or asportation.77 Neither is the unauthorized use of the equipment and facilities of
PLDT by the petitioner theft under the aforequoted provision of the Revised Penal Code.78

If it was the intent of the Philippine Legislature, in 1930, to include services to be the subject of theft, it
should have incorporated the same in Article 308 of the Revised Penal Code. The Legislature did not. In
fact, the Revised Penal Code does not even contain a definition of services.

If taking of telecommunication services or the business of a person, is to be proscribed, it must be by

special statute79 or an amendment of the Revised Penal Code. Several states in the United States, such as
New York, New Jersey, California and Virginia, realized that their criminal statutes did not contain any
provisions penalizing the theft of services and passed laws defining and penalizing theft of telephone and
computer services. The Pennsylvania Criminal Statute now penalizes theft of services, thus:

(a) Acquisition of services. --

(1) A person is guilty of theft if he intentionally obtains services for himself or for another which he
knows are available only for compensation, by deception or threat, by altering or tampering with the
public utility meter or measuring device by which such services are delivered or by causing or permitting
such altering or tampering, by making or maintaining any unauthorized connection, whether physically,
electrically or inductively, to a distribution or transmission line, by attaching or maintaining the
attachment of any unauthorized device to any cable, wire or other component of an electric, telephone or
cable television system or to a television receiving set connected to a cable television system, by making
or maintaining any unauthorized modification or alteration to any device installed by a cable television
system, or by false token or other trick or artifice to avoid payment for the service.

In the State of Illinois in the United States of America, theft of labor or services or use of property is
penalized:

(a) A person commits theft when he obtains the temporary use of property, labor or services of another
which are available only for hire, by means of threat or deception or knowing that such use is without the
consent of the person providing the property, labor or services.

In 1980, the drafters of the Model Penal Code in the United States of America arrived at the conclusion
that labor and services, including professional services, have not been included within the traditional
scope of the term "property" in ordinary theft statutes. Hence, they decided to incorporate in the Code
Section 223.7, which defines and penalizes theft of services, thus:

(1) A person is guilty of theft if he purposely obtains services which he knows are available only for
compensation, by deception or threat, or by false token or other means to avoid payment for the service.
"Services" include labor, professional service, transportation, telephone or other public service,
accommodation in hotels, restaurants or elsewhere, admission to exhibitions, use of vehicles or other
movable property. Where compensation for service is ordinarily paid immediately upon the rendering of
such service, as in the case of hotels and restaurants, refusal to pay or absconding without payment or
offer to pay gives rise to a presumption that the service was obtained by deception as to intention to pay;
(2) A person commits theft if, having control over the disposition of services of others, to which he is not
entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled
thereto.

Interestingly, after the State Supreme Court of Virginia promulgated its decision in Lund v.
Commonwealth,80 declaring that neither time nor services may be taken and carried away and are not
proper subjects of larceny, the General Assembly of Virginia enacted Code No. 18-2-98 which reads:

Computer time or services or data processing services or information or data stored in connection
therewith is hereby defined to be property which may be the subject of larceny under 18.2-95 or 18.296, or embezzlement under 18.2-111, or false pretenses under 18.2-178.

In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code of Alabama of 1975 penalizes theft of
services:

"A person commits the crime of theft of services if: (a) He intentionally obtains services known by him to
be available only for compensation by deception, threat, false token or other means to avoid payment for
the services "

In the Philippines, Congress has not amended the Revised Penal Code to include theft of services or theft
of business as felonies. Instead, it approved a law, Republic Act No. 8484, otherwise known as the Access
Devices Regulation Act of 1998, on February 11, 1998. Under the law, an access device means any card,
plate, code, account number, electronic serial number, personal identification number and other
telecommunication services, equipment or instrumentalities-identifier or other means of account access
that can be used to obtain money, goods, services or any other thing of value or to initiate a transfer of
funds other than a transfer originated solely by paper instrument. Among the prohibited acts enumerated
in Section 9 of the law are the acts of obtaining money or anything of value through the use of an access
device, with intent to defraud or intent to gain and fleeing thereafter; and of effecting transactions with
one or more access devices issued to another person or persons to receive payment or any other thing of
value. Under Section 11 of the law, conspiracy to commit access devices fraud is a crime. However, the
petitioner is not charged of violation of R.A. 8484.

Significantly, a prosecution under the law shall be without prejudice to any liability for violation of any
provisions of the Revised Penal Code inclusive of theft under Rule 308 of the Revised Penal Code and
estafa under Article 315 of the Revised Penal Code. Thus, if an individual steals a credit card and uses the
same to obtain services, he is liable of the following: theft of the credit card under Article 308 of the
Revised Penal Code; violation of Republic Act No. 8484; and estafa under Article 315(2)(a) of the
Revised Penal Code with the service provider as the private complainant. The petitioner is not charged of
estafa before the RTC in the Amended Information.

Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000 provides:

Sec. 33. Penalties. The following Acts shall be penalized by fine and/or imprisonment, as follows:

a) Hacking or cracking which refers to unauthorized access into or interference in a computer

system/server or information and communication system; or any access in order to corrupt, alter, steal, or
destroy using a computer or other similar information and communication devices, without the
knowledge and consent of the owner of the computer or information and communications system,
including the introduction of computer viruses and the like, resulting on the corruption, destruction,
alteration, theft or loss of electronic data messages or electronic documents shall be punished by a
minimum fine of One hundred thousand pesos (P100,000.00) and a maximum commensurate to the
damage incurred and a mandatory imprisonment of six (6) months to three (3) years.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Orders of the Regional
Trial Court and the Decision of the Court of Appeals are REVERSED and SET ASIDE. The Regional
Trial Court is directed to issue an order granting the motion of the petitioner to quash the Amended
Information.

SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice
WE CONCUR:

(No part)
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson

CONSUELO YNARES-SANTIAGO,
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice
(On leave)
MINITA V. CHICO-NAZARIO*
Associate Justice

C E R T I F I C AT I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above decision were reached in consultation before the case was assigned to the writer of the opinion of
the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes
* On leave.
1 Penned by Associate Justice Bienvenido L. Reyes, with Associate Justices Roberto A. Barrios and
Edgardo F. Sundiam, concurring.

2 an act further amending act no. 3436, as amended, "xxx consolidating the terms and conditions of the
franchise granted to [pldt], and extending the said franchise by twenty-five (25) years from the expiration
thereof xxx."
3 Rollo, pp. 129-130.
4 Id. at 131.
5 Id. at 131, 137.
6 Id.
7 Id. at 138.
8 Id. at 134.
9 Id. at 140.
10 Id. at 142-146.
11 Rollo, pp. 243-246.
12 NOW, THEREFORE, I FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested in me by the Constitution a Commander-in-Chief of all the Armed Forces of the
Philippines, and pursuant to Proclamation No. 1081 dated September 21, 1972, and General Order No. 1
dated September 22, 1972, as amended, do hereby order and decree that any person who installs any
water, electrical or telephone connection without previous authority from the Metropolitan Waterworks
and Sewerage System, the Manila Electric Company or the Philippine Long Distance Telephone
Company, as the case may be; tampers and/or uses tampered water or electrical meters or jumpers or other
devices whereby water or electricity is stolen; steals or pilfers water and/or electric meters or water,
electric and/or telephone wires; knowingly possesses stolen or pilfered water and/or electrical meters as
well as stolen or pilfered water, electrical and/or telephone wires, shall, upon conviction, be punished by
prision correccional in its minimum period or a fine ranging from two thousand to six thousand pesos, or
both. If the violation is committed with the connivance or permission of an employee or officer of the
Metropolitan Waterworks and Sewerage System, or the Manila Electric Company, or the Philippine Long
Distance Telephone Company, such employee or officer shall, upon conviction, be punished by a penalty
one degree lower than prision correccional in its minimum period and forthwith be dismissed and
perpetually disqualified from employment in any public or private utility or service company.
13 Rollo, pp. 57-58. (Underscoring supplied)
14 Id. at 67-76.
15 Id. at 69. (Emphasis supplied)
16 Id. at 77-80.
17 Id. at 81-86.
18 31 Phil. 494 (1915).
19 Rollo, pp. 87-94.
20 44 Phil. 933, 935 (1922).
21 CA rollo, p. 6.
22 Id. at 9-11.

23 Id.
24 Id.
25 Resolution No. 149, Series of 1999 dated April 16, 1999 (I.S. No. 96-3884), rollo, pp. 95-97.
26 Id.
27 Id. at 32-47.
28 21 Phil. 553 (1911).
29 Supra note 20, at 935.
30 Rollo, pp. 18-19.
31 Id. at 689.
32 Id. at 691.
33 Id. at 669-670.
34 Rollo, p. 670.
35 Madarang v. Court of Appeals, G.R. No. 143044, July 14, 2005, 463 SCRA 318, 327 (2005).
36 G.R. No. 148156, September 27, 2004, 439 SCRA 202 (2000).
37 Id. at 211.
38 Section 9, Rule 110 of the Revised Rules of Criminal Procedure.
39 People v. Weg, 450 N.Y.S.2d 957 (1982).
40 Clines v. Commonwealth, 298 S.W. 1107 (1927).
41 Santiago v. Garchitorena, G.R. No. 109266, December 2, 1993, 228 SCRA 214.
42 Garcia v. Court of Appeals, 334 Phil. 621, 634 (1997); People v. Navarro, 75 Phil. 516, 518 (1945).
43 Section 3(a), Rule 117 of the 2000 Rules of Criminal Procedure.
44 United States v. Wiltberger, 18 U.S. 76 (1820).
45 Dowling v. United States, 473 U.S. 207 (1985).
46 Liparota v. United States, 105 S. Ct. 2084 (1985).
47 Kelley v. State, 119 N.E.2d 322 (1954); State v. McGraw, 480 N.E.2d 552 (1985).
48 United States v. Wiltberger, supra note 44.
49 Dowling v. United States, supra note 45.
0 Viada, codigo penal reformado de 1870, concordado y comentado, 219.
The felony has the following elements:
(1) Apoderamiento de una cosa mueble; (2) Que la cosa mueble sea ajena; (3) Que el apoderamiento se
verifique con intencin de lucro; (4) Que se tome la cosa sin la voluntad de su dueo; (5) Que se realice el

apoderamiento de la cosa sin violencia intimidacin en las personas ni fuerza en las cosas (Viada, 220221).
51 People v. Sison, 379 Phil. 363, 384 (2000); People v. Bustinera, G.R. No. 148233, June 8, 2004, 431
SCRA 284, 291.
52 Cuello Callon, Derecho Penal, Tomo II, p. 724.
53 Id.
54 See note 52, p. 725. (Underscoring supplied)
55 36 C.J.S. 737.
56 People v. Ashworth, 222 N.Y.S. 24 (1927).
57 People v. Salvilla, G.R. No. 86163, April 26, 1990, 184 SCRA 671, 677 (1990).
58 Harris v. State, 14 S.W. 390 (1890).
59 Woods v. People, 78 N.E. 607 (1906).
0 Villacorta v. Insurance Commission, G.R. No. 54171, October 28, 1980, 100 SCRA 467.
61 Supra note 28.
62 41 Phil. 364 (1921).
63 11 N.E.2d 403 (1937).
64 29 N.E. 808 (1892). (Emphasis supplied)
65 Supra note 59 (Emphasis supplied)
66 Doggett v. Burnet, 65 F.2d 191 (1933).
67 Blacks Law Dictionary, 5th ed., p. 179; Union League Club v. Johnson, 108 P.2d 487, 490 (1940).
68 United States v. McCraken, 19 C.M.R. 876 (1955).
69 People v. Tansey, 593 N.Y.S. 2d 426 (1992).
70 People v. Case, 42 N.Y.S. 2d 101.
71 Commonwealth v. Gerulis, 616 A.2d 686 (1992).
72 Rollo, p. 138.
73 Commonwealth v. Gerulis, supra note 71.
74 Central Power and Light Co. v. State, 165 S.W. 2d 920 (1942).
75 Blacks Law Dictionary, p. 1227.
76 Lund v. Commonwealth, 232 S.E.2d 745 (1977); 50 Am. Jur. 2d Larceny, p. 83.
77 Imbau, Thomson, Moenssens, Criminal Law, Second Edition, p. 6247, 2 Wharton Criminal Law,
Prodded , 604:369.
78 Id. at 746; Commonwealth v. Rivera, 583 N.E.2d 867 (1991).

79 People v. Tansey, supra note 69.

80 See note 76.

The Lawphil Project - Arellano Law Foundation

THIRD DIVISION
[G.R. No. 97913. October 12, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NORBERTO CARROZO* @ Borbing,

CLAVER CARROZO @ Claver, DOMINADOR** ANTOJADO @ Badic, DOMINGO
POLINGA*** @ Doming, WILFREDO MANTO @ Doydoy, PRECILO MANTO @ ONTOY,
CARLOS CARROZO @ DONGDONG and RODULFO REDUBLA****@ Rudy, accused.
CARLOS CARROZO @ DONGDONG, PRECILO MANTO @ ;ONTOY, WILFREDO MANTO
@ Doydoy, and DOMINADOR ANTOJADO @ Badic, accused-appellants.
DECISION
PURISIMA, J.:

Appeal interposed from the Decision of Branch 10 of the Regional Trial Court, Abuyog, Leyte, finding
appellants guilty of Robbery in Band with Multiple Murder in Criminal Case No. 446.

Filed on May 13, 1985 by the then Acting 4th Assistant Provincial Fiscal Nepomuceno P. Aparis, the
Information indicting appellants alleged:

That on or about the 14th day of March, 1985, in the Municipality of Javier, Province of Leyte,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating together and mutually helping one another, and armed with deadly weapons, did, then and
there willfully, unlawfully and feloniously with intent of gain and by means of violence against person
take, steal and carry away personal property in the form of cash money amounting to Five Thousand
Pesos, (P5,000.00), Philippine Currency, belonging to Ramon Robin, Sr., to the damage and prejudiced
(sic) of the latter in the aforementioned amount; and that by reason and on the same occasion, said
accused, with intent to kill and with treachery, did then and there willfully, unlawfully and feloniously
attack, assault and hack Ramon Robin, Sr. hitting the latter on the nape and almost severing the neck from
the body which caused his death shortly thereafter; hold (sic) and choke (sic) to death Herminia Robin,
wife of Ramon Robin, Sr., and likewise choke to death Ramon Robin, Jr., eight years old, Celso Robin,
nine years old and Flocerfina Robin, five years old and thereafter, the aforementioned three children of
Ramon Robin, Sr., were placed inside a sack and brought and buried along Bito River, Barangay
Naliwatan, Javier, Leyte.

ACTS CONTRARY TO LAW.[1]

With Dominador Antojado (Antojado, for short), Domingo Polinga, Alfredo Manto, Precilo Manto and
Carlos Carrozo entering negative pleas on June 5, 1985, upon arraignment with the assistance of counsel,
trial ensued.

The prosecution presented Dr. Ernesto C. Lajara, municipal health officer of Javier, Leyte, PFC. Diosdado
Cerna, member of the Integrated National Police of Javier Police Station, and P/Sgt. Ignacio Rellin,
member of INP of Javier Police Station. Rodulfo Redubla was discharged to become a state witness.

For the defense, Deodito Tibes,[2] Carlos Carrozo, Dominador D. Antojado, Hilario Llorada, Pablo Robin
and Reynaldo Robin took the witness stand.

Records disclose that Norberto Carrozo @ Borbing was shot dead in the course of arrest; Claver Carrozo
@ Claver is at large, and Domingo Polinga @ Doming died of heart attack.

Testified on by the witnesses for the prosecution and summarized by the Solicitor General in the
Appellees Brief, the version of the People runs as follows:

Rodulfo Redubla (Redubla) is a resident of Sitio Moyongboyong, Bgy. Malitbogay, Javier, Leyte (pp. 2-5,
14-15, TSN, July 8, 1987). He had long known appellants Salvador or Dominador Antojado alias Badik,
Wilfredo Manto alias Alfredo and/or Doydoy, Precilo Manto alias Ontoy and Carlos Carrozo as they had
previously worked like him (Redubla) as laborers in Javier, Leyte (pp. 2-5, 14-15, 30-32, TSN, July 8,
1987). However, he did not like them anymore, as they were stealing (p. 4, TSN, ibid.). Redubla also
knew them because he and appellants were members of the Walang Patawad Group which engaged in
robbery (Sworn Statement of Rodulfo Redubla dated March 18, 1985 during the preliminary examination
conducted by the Municipal Circuit Trial Judge; pp. 12-13, rec.).

In the afternoon of March 14, 1985, Redubla was invited by appellant Salvador Antojado for a drinking
spree at the house of Ramon Robin (pp. 4-5, 18-21, TSN, July 8, 1987; p. 3, TSN, November 17, 1987).
At first, he declined but at about 9 oclock in the evening, said appellant passed by Redublas house and
fetched him (pp. 3-4, TSN, Nov. 17, 1987; p. 13, rec.).

Ramon Robin, Sr.s house which is located at Sitio Moyongboyong, Bgy. Malitbogay, Javier, Leyte is
more than a kilometer from the house of the appellant Antojado while the house of Redubla is located half
way to the house of Ramon Robin, Sr. (pp. 14-16, TSN, July 8, 1987). While Redubla and appellant
Dominador Antojado were already proceeding on a side trail towards the house of Ramon Robin Sr., they
saw the latter and his wife still on their way home. (pp. 6-7, 19-21, TSN, July 8, 1987).

When Redubla and appellant Antojado arrived at the yard of Ramon Robin Sr., appellant Antojado told
Redubla to stay there as he will be ahead in going up the house of Ramon Robin Sr. (pp. 4-5, TSN, July 8,

1987). Redubla noticed that the main door and windows of Ramon Robin Sr.s house were open (pp. 4-5,
16-17, TSN, July 8, 1987). He also noticed from where he stood that there were children lying down on
the sala of the house (pp. 17-18, TSN, ibid.). Redubla also noticed that there was a light inside the house
(pp. 16-17, TSN, July 8, 1987).

At past 10:00 oclock in the evening, appellants Wilfredo alias Alfredo Manto; Prescilo alias Ontoy Manto
and Carlos Carrozo alias Dongdong, who arrived at the house before Redubla and appellant Antojado,
called Redubla one at a time to make their presence known (pp. 5-7, 18-19, 21-23, TSN, July 8, 1987). At
that time, appellants Wilfredo Manto, Precilo Manto and Carlos Carrozo were hiding in the porch of the
house near the bedroom (pp. 6-7, 18-19, TSN, July 8, 1987). Accused Norberto Carrozo came out of his
hiding near the kitchen and approached Redubla and greeted him saying Oh, you are here to which
Redubla replied that he came because he was invited by appellant Antojado (p. 23, TSN, July 8, 1987).
Afterwards, accused Norberto Carrozo returned to the back of the house (p. 23, TSN, ibid.).

Thereafter, appellants Alfredo Manto, Carlos Carrozo, and Precilo Manto inquired from Redubla where
was Ramon Robin Sr. Redubla, having seen the couple earlier, told them that Ramon Robin, Sr. was a
little bit behind (pp. 5-6, TSN, July 8, 1987).

A few minutes later, Ramon Robin Sr. arrived carrying a lighted torch followed by his wife Herminia (pp.
7-8, 24-25, TSN, July 8, 1987; pp. 8-9, TSN, Nov. 17, 1987). As they were about to enter through the
kitchen door, accused Norberto Carrozo, who was then staying behind the door, attacked Ramon Robin
Sr. with his bolo. However, the bolo get embedded on the door jamb and Ramon Robin Sr. ran away from
him towards the front door where appellant Antojado was posted (pp. 25-26, TSN, Nov. 17, 1987).
Thereupon, appellant Antojado hacked Ramon Robin Sr. with a bolo hitting him on the nape and causing
Ramon Robin Sr. to fall down still shouting for help (pp. 7, 25-26, TSN, July 8,1987; pp. 13-14, TSN,
Nov. 17, 1987). When Herminia saw what happened to her husband, she began shouting for help but
accused Norberto Carrozo covered her mouth to stifle her shouts for help and started choking her (pp. 7-8,
TSN, July 8, 1987). Consequently, Herminia Robin pleaded to appellant Antojado not to kill her telling
him when (sic) you are going to kill me, I have still money amounting to P3,000.00 (pp. 7-8, TSN, July
1987; pp. 14-15, TSN, Nov. 17, 1987). Notwithstanding her pleas and giving of the money, appellant
Antojado persisted in choking her with a rope used in tying a carabao and as she was gasping for breath,
he placed a piece of cloth inside her mouth (pp. 7-8, TSN, July 8, 1987; pp. 14-17, TSN, November 17,
1987). At that moment, Herminias young daughter, later identified to be Flocerfina Robin, awakened and
began asking her mother for food. She eventually noticed the presence of appellant Antojado and
remarked you are here Mano Badik (p. 8, TSN, July 8, 1987; pp. 24-25, TSN, November 17, 1987).
Thereupon, appellant Antojado struck her with a bolo causing her to fall down (p. 8, TSN, July 8, 1987).
Accused Norberto Carrozo likewise stated: If we do not place this little child inside the sack, she will
betray us (pp. 8-9, TSN, July 8, 1987). He then asked for his companions help to place the children inside
the sack (pp. 17-18, TSN, Nov. 17, 1987). Thereafter, appellants Wilfredo and Precilo Manto and Carlos
Carrozo went up the house and put the little girl inside the sack (pp. 7-8, TSN, July 8, 1987). Domingo
Polinga, Alfredo Manto and Precilo Manto struck the little girls siblings (later identified to be Ramon
Robin Jr. and Celso Robin) and brought them inside the house and similarly placed them inside the sack
(pp. 8-9, TSN, July 8, 1987; pp. 21-22, TSN, Nov. 17, 1987).

Reynaldo Robin, a neighbor and relative of Ramon Robin Sr., who had seen the incident from a distance
of about five (5) meters likewise heard Norberto Carrozo order his companions to search the house for
money (pp. 2-5, TSN, March 7, 1991).

After the three (3) children of Ramon Robin Sr. and his wife Herminia were placed inside a sack, accused
Norberto Carrozo ordered his companions to load the bodies of Ramon Robin Sr. and Herminia Robin on
a sled (pp. 7-9, TSN, July 8, 1987). Afterwards, accused Domingo Polinga and Claver Carrozo also went
up the house to gather the dead bodies of Ramon Robin, Sr. and Herminia Robin as well as the sack
where their three (3) children were placed for loading in a sled which was hitched to a carabao (pp. 8-9,
TSN, July 8, 1987). Redubla stood watching the proceeding feeling helpless to do anything for fear that
he could become another victim (pp. 27-28, TSN, July 8, 1987). xxx

xxx xxx xxx

Subsequently, Pat. Cayunda accompanied Redubla to the house of his colleague PFC Diosdado Cerna, a
relative of Herminia Robin, at the poblacion of Javier, Leyte (pp. 25-26, TSN, Nov. 17, 1987). PFC
Diosdado Cerna then received the report of Redubla about the robbing and killing of Ramon Robin Sr.
and his wife and three (3) children at about 10:30 in the evening of March 14, 1985 by accused Norberto
Carrozo, Domingo Polinga and appellants Dominador Antojado, Precilo Manto, Wilfredo Manto and
Carlos Carrozo (p. 26, TSN, Nov. 17, 1987; pp. 3-5, TSN, April 22,1988). Afterwards, Pat. Jovencio
Cayunda and Pfc. Diosdado Cerna, together with Redubla, proceeded to the police station in the
municipal building of Javier, Leyte for further investigation and to inform the chief of the Javier INP
about the reported crime (p. 26, TSN, Nov. 17, 1987).

In the morning of March 15, 1985, P/Sgt. Ignacio Rellin, Chief of the Javier INP, received information on
the killing and robbing of Ramon Robin Sr. and his family (pp. 4-5, TSN, April 22, 1988). Thereupon, he
ordered PFC Cerna and his companions to follow up the case (pp. 5-6, TSN, April 22, 1988).

At about 8:30 in the morning, the Javier police station received further information from one Mrs.
Marticio, Bgy. Capt. of Bgy. Naliwatan, Javier, Leyte that dead persons were found buried in the banks of
the Bito River at the outskirts of Bgy. Naliwatan and a carabao was tied near the place where the bodies
were buried (pp. 2-3, TSN, Oct. 7, 1988).

Accordingly, the group of PFC Diosdado Cerna, PFC Juan Papalid, Pat. Albino Dagohoy and Pat. Arturo
Lazarte, accompanied by Mario Marticio, proceeded to the outskirts of Bgy. Naliwatan, Javier, Leyte to
verify the report on the discovered bodies (pp. 6-7, 21-22, TSN, April 22, 1988). There, Marticio led them
to the riverbank where the bodies of Ramon Robin Sr. and his wife Herminia and three (3) children were
buried (pp. 13-14, 16, TSN, April 22, 1988). They dug up the bodies and found Ramon Robin Sr. and his
family members buried in only one place (pp. 9-14, TSN, April 14, 1988).

Afterwards, the bodies of Ramon Robin Sr., his wife Herminia, his children Flocerfina, Ramon Robin Jr.
and Celso Robin were loaded on a sled and bought to the municipal building by Pablo Robin and Nilo

Robin, Ramon Robin Sr.s surviving sons, Pablo Novio and Deodito Teves for post-mortem examination
(pp. 9-12, TSN, April 22, 1988; pp. 14-15, TSN, May 25, 1989).

Immediately thereafter, the group of PFC Cerna, PFC Juan Papalid, Pat. Albino Dagohoy and Pat. Arturo
Lazarte proceeded towards the house of Ramon Robin Sr. at Sitio Moyongboyong, Bgy. Malitbogay,
Javier, Leyte to conduct further investigation. When they arrived there, they noticed blood stains and sled
tracks from the riverbanks which led to the house and yard (pp. 14-16, TSN, April 22, 1988). They also
found bloodstains in the porch and in the yard (pp. 6-7, 13-18, TSN, April 22, 1988).

Based on the report of Redubla that the victims were killed by accused Norberto Carrozo alias Norbing,
Salvador Antojado alias Badic, Domingo Polinga @ Doming, Wilfredo Manto @ Doydoy, Carlos Carrozo
@ Dongdong, Precilo Manto @ Ontoy and Claver Carrozo @ Claver, P/Sgt. Rellin directed his
subordinates to apprehend the suspects but they were unable to get them (pp. 4-6, TSN, Oct. 7, 1988; pp.
11, 23, TSN, April 22, 1988).

On the same date, Dr. Ernesto Lajara, Municipal Health Officer of Javier, Leyte conducted a post morten
(sic) examination on the bodies of Ramon Robin Sr. and his wife. xxx

Dr. Ernesto Lajara, who conducted post-mortem examination on the bodies of the victims, submitted the
following findings:

Post Mortem Examination Report

RAMON ROBIN, SR.

Findings

1. Hack wound at the nape almost severing his neck.

CAUSE OF DEATH: Hemorrhage [3]

HERMINIA CERNA ROBIN

Post Mortem Examination Report

FINDINGS

1. Ligature mark around the neck.

2. Face swollen and ashen gray.

3. Lacerated wound at the right mastoid area.

Measurement:

Length -3 cm.

Width - 1 cm.

Depth - bone deep.

4. Incise wound at the left hand, between the left index finger and the left thumb.

5. Incise wound at the right deltoid area.

Measurement:

Length 2 cm.

Width 1 cm.

Depth- subcutaneous

CAUSE OF DEATH: ASPHYXIA [4]

Dr. Ernesto Lajara also examined the cadavers of Celso Robin,[5] Ramon Robin, Jr.,[6] and Flocerfina
Robin,[7] but did not find and report the definite cause of their death. He suggested to the Chief of Police

that the matter be referred to the NBI or PC and just noted that there were wounds on the body of
Flocerfina Robin.

Appellants placed reliance on the defense of denial and alibi. Appellant Antojado, who was represented
by his own counsel, apart from the other appellants, theorized that:

On March 14, 1985, Accused-Appellant Dominador Antojado threw a small party for some of his friends
at his house situated at Poblacion, Javier, Leyte. It was the 6th birthday of his daughter, Sheila Antojado.
In attendance during that occasion were Pablo Robin, Nilo Robin, Diodito Teves, Pablo Novio and
Glicerio[8] Castro. After the visitors partook of the food prepared by herein accused- appellant, the latter
brought out a gallon of tuba for all of them to drink. The drinking spree started at around 4:00 in the
afternoon.

The first gallon of tuba was consumed at around 6:00 in the afternoon. Thereafter, accused-appellant
asked Glicerio Castro to buy another gallon of tuba. When the second gallon of tuba came, the drinking
buddies went to consume the same until around midnight. By this time, brothers Nilo and Pablo Robin
were already tipsy and sleepy, for which reason they asked permission from accused-appellant
Dominador Antojado for them to sleep in the latters house. Accused-appellant acceded and thereafter
immediately prepared a mat for the Robin brothers to sleep on. Meanwhile, the rest of the group including
accused-appellant Antojado continued to drink another gallon of tuba. When the third gallon was finally
consumed, all of them slept in the accused- appellants house.

In the same night of March 14, 1985 at around 10:00 in the evening, while accused-appellant Antojado
and his friends were having a drink, several armed men allegedly robbed the spouses Ramon Robin, Sr.
and Herminia Robin of their money amounting to P5,000.00 and on the occasion thereof, the spouses
including their three children, Ramon Jr., Celso and Flocerfina were killed inside their house situated at
Sitio Mayong-boyong, Bgy. Malitbogay, Javier, Leyte, more or less one kilometer away from the house of
accused-appellant Antojado. The dead bodies of the victims were found buried in the bank of the Bito
River in the morning of March 15, 1985.

For appellants Alfredo Manto, Precilo Manto, and Carlos Carrozo:

Deodito Teves, 29 years old, testified that he knew accused Dominador Antojado since the father of the
latter is the owner of the land where they reside.

On March 14, 1985, he was at the house of Dominador (Salvador) Antojado at Zone 2, Javier, Leyte,
together with Nilo Robin, Pablo Robin and Pablo Nobio. Nilo and Pablo, are brothers and children of
Ramon Robin, the victim. The two were at his house when Dominador invited him and they went along
with him. On the way to the house of accused Dominador, Pablo Nobio was on the road he too went along
with him. It was 4:00 p.m. when they arrived at Dominadors house. Iglecario Castro and family were also
there. After eating, accused Dominador offered a gallon of tuba. All six of them drank the tuba at the
kitchen. Consuming the given tuba, another gallon of tuba was bought and they drank it all again.

Thereafter Pablo and Nilo Robin felt sleepy. With the permission of Dominador, the two slept at the sala
of the house of Dominador. They continued to drink the third gallon of tuba until 4:00 in the early
morning of March 15, 1985. Castro went home, accused Dominador, Pablo Nobio and he went to sleep.
At 9:00 in the morning, Dominador woke him up, asked him to go with Nilo Robin because the mother of
the latter was killed. Dominador (Salvador) Antojado, Nilo Robin, Pablo Robin, Pablo Nobio and he went
to the house of the Robin. They saw blood stains inside the house but the bodies of the victims were not
there. Searching, they found the bodies at Bito River, one (1) kilometer from the house of the Robin.

On cross-examination, he admitted that Domingo Polinga, Precilo Manto, Carlos Carrozo, Norberto
Carrozo are intimate friends of Dominador Antojado Pablo and Nilo Robin are his friends. On March 14,
1985, Dominador Antojado did not leave them in their drinking spree. It was also the said accused who
told the group that the family of Ramon Robin with his wife and their children were killed. (TSN, Jan. 26,
1989, pp. 2-29)

Carlos Carrozo, 20 years old, testified that Norberto Carrozo is his uncle. He had been staying with his
uncle for six months.

On March 14, 1985, about 6:00 his uncle Norberto together with Rodolfo Redubla, Rodrigo Antojado,
Jerry Arcon and Junior Arcon left the house. They brought with them two empty sacks and moved
towards Brgy. Malitbogay. At about 2:00 a.m. the following day, all returned home. He heard them
conversing about dead bodies, covered with sand and well-hidden. He heard the name Ramon Robin and
Herminia Robin.

On cross-examination, he testified that the persons he previously named were at the house of his uncle
before 6:00 p.m. of November 14. He heard them planned (sic) to rob the victim spouses, but he did not
inform the police authorities of said plan. The following morning, his uncle and he left the house and fled
to the forest of Manlilisid and Malitbogay. (TSN, March 9, 1989, pp. 2-23)

Dominador Antojado, 38 years old, testified that he knew his co-accused Norberto Carrozo, Claver
Carrozo, Domingo Polinga, Wilfredo Manto, Ontoy or Precilo Manto and Carlos Carrozo. He came to
know them in jail. He did not know Rodolfo Redubla.

On March 14, 1985, it was the 6th birthday of his daughter Sheila. Boy Teves, Nilo Robin, Pablo Robin,
Pablo Nobio and Iglecerio Castro were at his house. After they ate, he offered them one gallon of tuba. At
6:00 P.M. (sic) he got another gallon of tuba which they drank until 12:0 (sic) midnight. Quite drank (sic),
Pablo and Nilo, both Robin, asked him if they could sleep. He placed a mat in the sala and the two slept.
They continued drinking the third gallon of tuba until 4:00 a.m. of the following morning. Thereafter,
Iglecerio Castro went home, Diodito Teves, Pablo Novio and he slept at his house. Around 9:00 in the
morning, his wife Editha woke him up, told him she overheard that the family of Ramon Robin had been
killed and the bodies of the victims were brought along the river. With the children of Ramon Robin,
Pablo and Nilo Robin, he together with Teves, and Nobio, they left his house and proceeded to the house
of the Robin at Brgy. Malibogay. Nilo did not find his parents home. They followed the sled tracks
towards Sitio Naluwatan, crossed the river and there they saw the bodies of the five victims. They

borrowed sleds and loaded victims bodies thereon and brought them to the municipal building. He helped
in making of the coffins and attended the burial of the victims the following day. (TSN, March 10, 1989,
pp. 2-15).

Hilario Llorada, 74 years old, testified that on March 10, 1985, he went to the place of Wilfredo and
Precilo Manto, invited them to see his lumber. Accepting his invitation, the two arrived at his workplace
on March 14, 1985. The two sawed the lumber until 4:00 P.M. (sic) With more lumber to saw, the two
stayed at his house. He offered them supper and they drank until 12:00 midnight. The two woke up 5:00
the following day, sharpened their tools, to be ready for the days work.

On cross-examination, he admitted he offered his room to the two workers to sleep in. He slept outside his
room at the sala near the door. (TSN, April 20, 1989, pp. 2-9)

Precilo Manto, 27 years old, testified that Hilario Llozada contracted him and Wilfredo Manto to saw
lumber. On March 14, 1985, he and Wilfredo reported for work at Llozadas place. Immediately, they
sawed round lumbers. The work was not finished, hence, they stayed at the house of the Llorada. After
eating supper, they drank, then slept around midnight.[9]

On August 24, 1989, the lower court of origin found the evidence for the prosecution enough to convict
and on the basis thereof, handed down the judgment appealed from, disposing thus:

WHEREFORE, the prosecution having proven the guilt of all the accused who faced trial beyond a (sic)
reasonable doubt, the said accused - Diminador (sic) alias Salvador Antojado alias Badic, Carlos Carrozo
alias Dongdong, Precilo Manto alias Ontoy and Wilfredo Manto are all found by this Court GUILty (sic)
beyond reasonable doubt of the criminal charge of Robbery in Band with Multiple Homicide, and each of
them is sentenced to suffer the penalty of FIVE (5) RECLUSION PERPETUA, to pay the heirs of the
victims Ramon Robin, Sr., Herminia Robin, Ramon Robin, Jr., Celso Robin and Flocerfina Robin the
amount of THIRTY THOUSAND (P30,000.00) PESOS for each victim, jointly and severally, without
subsidiary imprisonment in case of insolvency and to pay the costs. Accused Claver Carrozo who is at
large will face a separate trial when apprehended.[10]

On July 31, 1994, Atty. Custodio Caete manifested that Norberto Carrozo was shot dead when he resisted
arrest.

To buttress his plea for acquittal, appellant Antojado placed reliance on the assignment of errors, that:

THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT DOMINADOR

ANTOJADO ON THE GROUND THAT THE PROSECUTION HAS FAILED TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.

ASSUMING HEREIN ACCUSED-APPELLANT TO BE LIABLE, THE LOWER COURT ERRED IN

CONVICTING HIM OF THE CRIME OF ROBBERY IN BAND WITH MULTIPLE HOMICIDE.[11]

On the part of appellants Alfredo (Wilfredo) Manto, Precilo Manto and Carlos Carrozo, they contend that:

THE TRIAL COURT ERRED IN CONVICTING THE FOUR ACCUSED OF THE CRIME CHARGED
BEYOND REASONABLE DOUBT.

Appellant Antojado theorized that the prosecution failed to prove the presence and identity of the accused
as it simply relied on the testimonies of its witnesses which according to him, are inconsistent, rehearsed
and fabricated. This appellant faults the trial court for giving credence to the aforesaid testimonial
evidence for the People and for disregarding his defense of alibi.

He [Antojado] also pointed out that state witnesses Rodolfo Redubla and Reynaldo Robin testified that
the incident occurred at past 10:00 oclock in the evening of March 14, 1985. On the other hand, defense
witness Deodito Teves and rebuttal witness Pablo Robin declared that at such time, he (Antojado) was
drinking tuba with them. So also, the distance between his (Antojados) house and the victims was about
one (1) kilometer which could be negotiated by hiking in thirty (30) minutes. Since he (Antojado) was
still in his house when the incident happened, he could not be found guilty thereof; reasoned out this
appellant who contended further that with his alibi having been corroborated by two disinterested
witnesses, the same should not have been disregarded by the lower court a quo. The trial courts finding
that he lured the elder Robin brothers (Nilo and Pablo) to ensure the commission of the crime is mere
speculation; appellant Antojado argued.

Assuming arguendo that he was guilty of the crime charged, Antojado claims that he should be sentenced
to only one reclusion perpetua because the trial court erred in convicting him of the crime of Robbery in
Band with Multiple Homicide. He avers that there is no such crime in the penal laws. Article 294, par. 1
of the Revised Penal Code provides that any person guilty of robbery with the use of violence against or
intimidation of person shall suffer the penalty of reclusion perpertua to death when by reason or on
occasion of the robbery, the crime of homicide shall have been committed. Homicide is used in its generic
sense and includes robbery with murder. Robbery with homicide is the same crime regardless of the
number of persons killed. So also, the trial court also erred in finding him guilty of robbery in band with
multiple homicide. Band is a generic aggravating circumstance in robbery and does not qualify the
offense.

The Public Attorneys Office, in representing the other appellants, asseverates that prosecution witness
Redubla could not have seen the herein appellants. The scene of the crime was lighted only upon the
arrival of the spouses Ramon Robin, Sr. and Herminia Robin. It was Norberto Carrozo who actually
delivered the first blow on Ramon Robin, Sr. Thereafter, Domingo Polinga wrestled the torch from
Herminia Robin. Then, there was total darkness in the place. The four remaining appellants were not
positively identified by the two (2) state witnesses. Rather, their identification was shrouded with serious
doubt and falls short of positiveness and reliability essential for conviction. In fact, during crossexamination, prosecution witness Redubla, who was hiding at the back of the house, referred to the

appellants collectively. He failed to describe the specific acts committed by the three (3) appellants. To
repeat, this was because the surrounding was dark.

Appellants Carlos Carrozo, Wilfredo Manto and Precilo Manto further placed reliance on alibi and denial,
alleging that they were nowhere at the place when the crime occurred.

Are appellants guilty of the crime charged?

After careful consideration of the evidence, the Court finds the appeal devoid of merit.

Appellants assail the credibility of the prosecution witnesses branding their testimonies as inconsistent,
rehearsed and fabricated.

The argument does not persuade. This argument involves an assessment of the credibility of the
witnesses. xxx One of the highly revered dicta Philippine jurisprudence has established is that this Court
will not interfere with the judgment of the trial court in passing upon the credibility of opposing
witnesses, unless there appears in the record some facts or circumstances of weight and influence which
have been overlooked and, if considered, would affect the result. This is founded on practical and
empirical considerations, i. e., the trial judge is in a better position to decide the question of credibility,
since he personally heard the witnesses and observed their deportment and manner of testifying. He had
before him the essential aids to determine whether a witness was telling the truth or lying. Truth does not
always stalk boldly forth naked; she often hides in nooks and crannies visible only to the minds eye of the
judge who tried the case. To him appears the furtive glance, the blush of conscious shame, the hesitation,
the sincere or flippant or sneering tone, the heat, the calmness, the yawn, the sign, the candor or lack of it,
the scant or full realization of the solemnity of an oath, the carriage and mien. On the other hand, an
appellate court has only the cold record, which generally does not reveal the thin line between fact and
prevarication that is crucial in determining innocence or guilt.[12]

The trial court found Redublas testimony credible, having testified in a clear, concise and straight forward
manner. He stated that appellant Antojado passed by his (Redubla) house and invited him to a drinking
spree in the house of the victim Ramon Robin. When they reached the Robin house, Antojado went
upstairs and the other appellants asked him (Rebudla) where the spouses Robin were. These appellants
were in the yard. Redubla then narrated how first Norberto Carrozo and then appellant Antojado hacked
Ramon Robin. Antojado choked Herminia Robin. The Robins daughter was likewise hacked to death by
Antojado. Norberto Carrozo then instructed the other appellants to place the children in the sacks. The
corpses were put on the sleigh and dumped by the river.

The actions of appellants show that they conspired to rob and kill the spouses Robin. There can be no
other conclusion that can be deduced from the foregoing circumstances. Conspiracy need not be proved
by direct evidence, and proof of previous agreement to commit the crime is not essential to establish
conspiracy. It may be inferred from the acts of the perpetrators, whose conduct before, during and after
the commission of the crime, can show its existence.[13] For conspiracy to exist, it is not required that

there be an agreement for an appreciable period prior to the occurrence, it is sufficient that at the time of
the commission of the offense, the malefactors had the same purpose and were united in its execution.[14]

For alibi to prosper, they who raise it must establish their presence at another place during the
commission of the offense and prove the physical impossibility of being at the scene of the crime.[15]
Appellants have failed to show physical impossibility of their presence at the crime scene. On the
contrary, the state witnesses identified the appellants, seeing them at the scene of the crime at the time of
its commission. Such positive identification prevails over denials and alibis.[16] In the rebuttal, Pablo
Robin, one of the sons of the deceased Ramon Robin Sr., testified:

Q. Now, what is the purpose of Dominador Antojado in coming to your house?

A. He invited us to a drinking spree.

xxx xxx xxx

Q. Was that the first time you were invited by Dominador Antojado that day and time?

A. Yes, sir.

xxx xxx xxx

Q. What time was that when your group started to sleep?

A. Ten thirty.

xxx xxx xxx

Q. By the way, were you able to see the dead body of your parents and members of your family?

A. I was able to see because it was pointed out to me by Dominador Antojado.

Q. By the way, who led your group in going to the place where you have seen the dead body of your
parents and members of your family?

A. Dominador Antojado.

Q. Now, during the presentation of defense evidence, Dominador Antojado testified before this Honorable
Court that it was Pablo Novio who invited you to their house on that drinking spree, now, what can you
say about his statement?

A. He personally (sic) together with his brother went personally to us to invite us to a drinking spree.

Q. Dominador Antojado further testified in Court that you together with him went to the family house of
the Robins and thereafter looked to the place, where you suspected a sled..... the mark of a led (sic) near
your house and followed the same and it was only then (sic) you and your group were able to trace up
(sic) the graveyard of those ... of the members of your family and your parents, what can you say about
that statement of Dominador Antojado?

A. He was the one who pointed to us where the body of our parents were buried.

Q. Did your group try to follow the markings of the sled near your house?

A. We followed the traces of the sled and when we reached near the Bito River, he was the one who
pointed to us where they were buried. [17]

When homicide is committed as a consequence of or on the occasion of robbery, all those who took part
as principals in the robbery will also be held guilty as principals of the special complex crime of robbery
with homicide although they did not actually take part in the homicide, unless it clearly appears that they
endeavored to prevent the homicide.[18]

Both counsel de oficio and the Office of the Solicitor General rightly theorized that the crime committed
by the appellants is a special complex crime of ROBBERY WITH HOMICIDE under Article 294 of the
Revised Penal Code.[19] The trial court erred in convicting them of the crime of Robbery in Band with
Multiple Homicide. There is no such crime in the Revised Penal Code and in the statutes.

Robo con Homicido is killing of a human being for the purpose of robbery. Homicide is used in Article
294 in a generic sense.[20] Under the aforecited statutory provision, the term homicide comprehends
murder, double homicide and multiple homicide while band is considered as a mere generic aggravating
circumstance. The offense is nonetheless complex by reason of the fact that multiple homicide or murder
is committed. The crime of robbery with homicide remains fundamentally the same regardless of the
persons killed in connection with robbery. It is primarily a crime against property and the killing is a mere
incident of robbery.

Well-founded and meritorious is the argument of the counsel de oficio and the OSG that People v.
Amania,[21] if not identical, is similar to the case at bar. The Court ruled:

xxx Time and again, this Court has held that there is no crime of robbery with double homicide. The term
homicide in paragraph 1, Article 294 of the Revised Penal Code is to be understood in its generic sense.
The juridical concept of the special complex crime of robbery with homicide does not limit the taking of
human life to one single victim. In this special complex crime, the homicides or murders and the physical
injuries, irrespective of their number committed on the occasion or by reason of the robbery are merged in
the single composite crime of robbery with homicide. Therefore the crime in this case should have been
properly denominated as robbery with homicide. (Emphasis, ours)

The penalty prescribed for the crime of robbery with homicide is reclusion perpetua to death. Absent any
mitigating or aggravating circumstance, the lesser penalty is imposable.

WHEREFORE, the appealed decision is AFFIRMED with the MODIFICATION that the offense
committed is Robbery with Homicide and pursuant to Article 294 of the Revised Penal Code, appellants
are sentenced to a single indivisible penalty of RECLUSION PERPETUA.

The lower court of origin is hereby ordered to conduct with dispatch separate trial of Claver Carrozo,[22]
who was at large during the trial and later apprehended. Proportionate costs against the appellants.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Gonzaga-Reyes, JJ., concur.

* * Was shot to death while in the process of being arrested.*

** ** Also referred to as Salvador in records.**
*** *** Died of heart attack during the pendency of the trial.***
**** **** Was discharged from the Information of this case to be utilized as a state witness.****

[1] Rollo, pp. 13-14.

[2] Sometimes referred to as Deodito Teves in the Appellants Brief.
[3] Exhibit A, p. 11.
[4] Exhibit C, p. 56.
[5] Exhibit F, TSN, February 16, 1993, pp. 4-5.

[6] Exhibit G, TSN, December 16, 1993, pp. 4-5.

[7] Exhibit H, TSN, February 16, 1993, p.5.
[8] Sometimes referred to as Iglecerio in the transcript of stenographic notes.
[9] Appellants Brief of Alfredo Manto, Precilo Manto and Carlos Carrozo, pp. 228-232.
[10] Penned by Judge Josephine K. Bayona on August 24, 1989 in Criminal Case No. 446, Branch 10,
Eighth Judicial Region, Abuyog, Leyte.

[11] Appellants Brief, pp. 7 - 9, Rollo, pp. 134 - 135.

[12] People of the Philippines vs. Eduardo Agbayani y Mendoza, 284 SCRA 315, 338-339.

[13] People v. Leangsiri, 252 SCRA 213.

[14] People v. Hubilla, Jr., 252 SCRA 471.

[15] People vs. Ballabare, 264 SCRA 350 [1996]).

[16] People of the Philippines vs. Felipe Ballesteros, et al., 285 SCRA 438, 446.

[17] TSN, May 25, 1989, pp. 5-6, 8, 10-11, Direct Examination of Pablo Robin.

[18] People v. Silan, 254 SCRA 491).

[19] Article 294. Robbery with violence against or intimidation of persons- penalties - Any person guilty
of robbery with the use of violence against or intimidation of any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of
homicide shall have been committed.
[20] People vs. Feliciano, 256 SCRA 706.

[21] 220 SCRA 347, 353.

[22] Currently detained at Abuyog, Sub-Provincial Jail, Abuyog, Leyte.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 113092

September 1, 1994

MARTIN CENTENO, petitioner,

vs.
HON. VICTORIA VILLALON-PORNILLOS, Presiding Judge of the Regional Trial Court of Malolos,
Bulacan, Branch 10, and THE PEOPLE OF THE PHILIPPINES, respondents.

Santiago V. Marcos, Jr. for petitioner.

REGALADO, J.:

It is indeed unfortunate that a group of elderly men, who were moved by their desire to devote their
remaining years to the service of their Creator by forming their own civic organization for that purpose,
should find themselves enmeshed in a criminal case for making a solicitation from a community member
allegedly without the required permit from the Department of Social Welfare and Development.

The records of this case reveal that sometime in the last quarter of 1985, the officers of a civic
organization known as the Samahang Katandaan ng Nayon ng Tikay launched a fund drive for the
purpose of renovating the chapel of Barrio Tikay, Malolos, Bulacan. Petitioner Martin Centeno, the
chairman of the group, together with Vicente Yco, approached Judge Adoracion G. Angeles, a resident of
Tikay, and solicited from her a contribution of P1,500.00. It is admitted that the solicitation was made
without a permit from the Department of Social Welfare and Development.

As a consequence, based on the complaint of Judge Angeles, an information 1 was filed against petitioner
Martin Centeno, together with Religio Evaristo and Vicente Yco, for violation of Presidential Decree No.
1564, or the Solicitation Permit Law, before the Municipal Trial Court of Malolos, Bulacan, Branch 2,
and docketed as Criminal Case No. 2602. Petitioner filed a motion to quash the information 2 on the
ground that the facts alleged therein do not constitute an offense, claiming that Presidential Decree No.
1564 only covers solicitations made for charitable or public welfare purposes, but not those made for a
religious purpose such as the construction of a chapel. This was denied 3 by the trial court, and
petitioner's motion for reconsideration having met the same fate, trial on the merits ensued.

On December 29, 1992, the said trial court rendered judgment 4 finding accused Vicente Yco and
petitioner Centeno guilty beyond reasonable doubt and sentencing them to each pay a fine of P200.00.
Nevertheless, the trial court recommended that the accused be pardoned on the basis of its finding that
they acted in good faith, plus the fact that it believed that the latter should not have been criminally liable
were it not for the existence of Presidential Decree
No. 1564 which the court opined it had the duty to apply in the instant case.

Both accused Centeno and Yco appealed to the Regional Trial Court of Malolos, Bulacan, Branch 10.
However, accused Yco subsequently withdrew his appeal, hence the case proceeded only with respect to
petitioner Centeno. On May 21, 1993, respondent Judge Villalon-Pornillos affirmed the decision of the
lower court but modified the penalty, allegedly because of the perversity of the act committed which
caused damage and prejudice to the complainant, by sentencing petitioner Centeno to suffer an increased
penalty of imprisonment of 6 months and a fine of P1,000.00, without subsidiary imprisonment in case of
insolvency. 5 The motion for reconsideration of the decision was denied by the court. 6

Thus it is that a fine of P200.00 imposed as a penalty by the lowest court in the judicial hierarchy
eventually reached this highest tribunal, challenged on the sole issue of whether solicitations for religious
purposes are within the ambit of Presidential Decree No. 1564. Quantitatively, the financial sanction is a
nominal imposition but, on a question of principle, it is not a trifling matter. This Court is gratified that it
can now grant this case the benefit of a final adjudication.

Petitioner questions the applicability of Presidential Decree No. 1564 to solicitations for contributions
intended for religious purposes with the submissions that (1) the term "religious purpose" is not expressly
included in the provisions of the statute, hence what the law does not include, it excludes;

(2) penal laws are to be construed strictly against the State and liberally in favor of the accused; and (3) to
subject to State regulation solicitations made for a religious purpose would constitute an abridgment of
the right to freedom of religion guaranteed under the Constitution.

Presidential Decree No. 1564 (which amended Act No. 4075, otherwise known as the Solicitation Permit
Law), provides as follows:

Sec. 2. Any person, corporation, organization, or association desiring to solicit or receive contributions
for charitable or public welfare purposes shall first secure a permit from the Regional Offices of the
Department of Social Services and Development as provided in the Integrated Reorganization Plan. Upon
the filing of a written application for a permit in the form prescribed by the Regional Offices of the
Department of Social Services and Development, the Regional Director or his duly authorized
representative may, in his discretion, issue a permanent or temporary permit or disapprove the application.
In the interest of the public, he may in his discretion renew or revoke any permit issued under Act 4075.

The main issue to be resolved here is whether the phrase "charitable purposes" should be construed in its
broadest sense so as to include a religious purpose. We hold in the negative.

I.
Indeed, it is an elementary rule of statutory construction that the express mention of one person,
thing, act, or consequence excludes all others. This rule is expressed in the familiar maxim "expressio
unius est exclusio alterius." Where a statute, by its terms, is expressly limited to certain matters, it may
not, by interpretation or construction, be extended to others. The rule proceeds from the premise that the
legislature would not have made specified enumerations in a statute had the intention been not to restrict
its meaning and to confine its terms to those expressly mentioned. 7

It will be observed that the 1987 Constitution, as well as several other statutes, treat the words
"charitable" and "religious" separately and independently of each other. Thus, the word "charitable" is
only one of three descriptive words used in Section 28 (3), Article VI of the Constitution which provides
that "charitable institutions, churches and personages . . ., and all lands, buildings, and improvements,
actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt
from taxation." There are certain provisions in statutes wherein these two terms are likewise dissociated
and individually mentioned, as for instance, Sections 26 (e) (corporations exempt from income tax) and
28 (8) (E) (exclusions from gross income) of the National Internal Revenue Code; Section 88 (purposes
for the organization of non-stock corporations) of the Corporation Code; and
Section 234 (b) (exemptions from real property tax) of the Local Government Code.

That these legislative enactments specifically spelled out "charitable" and "religious" in an enumeration,
whereas Presidential Decree No. 1564 merely stated "charitable or public welfare purposes," only goes to
show that the framers of the law in question never intended to include solicitations for religious purposes
within its coverage. Otherwise, there is no reason why it would not have so stated expressly.

All contributions designed to promote the work of the church are "charitable" in nature, since religious
activities depend for their support on voluntary contributions. 8 However, "religious purpose" is not
interchangeable with the expression "charitable purpose." While it is true that there is no religious
purpose which is not also a charitable purpose, yet the converse is not equally true, for there may be a
"charitable" purpose which is not "religious" in the legal sense of the term. 9 Although the term
"charitable" may include matters which are "religious," it is a broader term and includes matters which are
not "religious," and, accordingly, there is a distinction between "charitable purpose" and "religious
purpose," except where the two terms are obviously used synonymously, or where the distinction has been
done away with by statute. 10 The word "charitable," therefore, like most other words, is capable of
different significations. For example, in the law, exempting charitable uses from taxation, it has a very
wide meaning, but under Presidential Decree No. 1564 which is a penal law, it cannot be given such a
broad application since it would be prejudicial to petitioners.

To illustrate, the rule is that tax exemptions are generally construed strictly against the taxpayer. However,
there are cases wherein claims for exemption from tax for "religious purposes" have been liberally
construed as covered in the law granting tax exemptions for "charitable purposes." Thus, the term
"charitable purposes," within the meaning of a statute providing that the succession of any property
passing to or for the use of any institution for purposes only of public charity shall not be subject to
succession tax, is deemed to include religious purposes. 11 A gift for "religious purposes" was considered
as a bequest for "charitable use" as regards exemption from inheritance tax. 12

On the other hand, to subsume the "religious" purpose of the solicitation within the concept of
"charitable" purpose which under Presidential Decree
No. 1564 requires a prior permit from the Department of Social Services and Development, under paid of
penal liability in the absence thereof, would be prejudicial to petitioner. Accordingly, the term "charitable"
should be strictly construed so as to exclude solicitations for "religious" purposes. Thereby, we adhere to
the fundamental doctrine underlying virtually all penal legislations that such interpretation should be
adopted as would favor the accused.

For, it is a well-entrenched rule that penal laws are to be construed strictly against the State and liberally
in favor of the accused. They are not to be extended or enlarged by implications, intendments, analogies
or equitable considerations. They are not to be strained by construction to spell out a new offense, enlarge
the field of crime or multiply felonies. Hence, in the interpretation of a penal statute, the tendency is to
subject it to careful scrutiny and to construe it with such strictness as to safeguard the rights of the
accused. If the statute is ambiguous and admits of two reasonable but contradictory constructions, that
which operates in favor of a party accused under its provisions is to be preferred. The principle is that acts
in and of themselves innocent and lawful cannot be held to be criminal unless there is a clear and
unequivocal expression of the legislative intent to make them such. Whatever is not plainly within the
provisions of a penal statute should be regarded as without its intendment. 13

The purpose of strict construction is not to enable a guilty person to escape punishment through a
technicality but to provide a precise definition of forbidden acts. 14 The word "charitable" is a matter of
description rather than of precise definition, and each case involving a determination of that which is
charitable must be decided on its own particular facts and circumstances. 15 The law does not operate in
vacuo nor should its applicability be determined by circumstances in the abstract.

Furthermore, in the provisions of the Constitution and the statutes mentioned above, the enumerations
therein given which include the words "charitable" and "religious" make use of the disjunctive "or." In its
elementary sense, "or" as used in a statute is a disjunctive article indicating an alternative. It often
connects a series of words or propositions indicating a choice of either. When "or" is used, the various
members of the enumeration are to be taken separately. 16 Accordingly, "charitable" and "religious,"
which are integral parts of an enumeration using the disjunctive "or" should be given different, distinct,
and disparate meanings. There is no compelling consideration why the same treatment or usage of these
words cannot be made applicable to the questioned provisions of Presidential Decree No. 1564.

II.
Petitioner next avers that solicitations for religious purposes cannot be penalized under the law
for, otherwise, it will constitute an abridgment or restriction on the free exercise clause guaranteed under
the Constitution.

It may be conceded that the construction of a church is a social concern of the people and, consequently,
solicitations appurtenant thereto would necessarily involve public welfare. Prefatorily, it is not
implausible that the regulatory powers of the State may, to a certain degree, extend to solicitations of this
nature. Considering, however, that such an activity is within the cloak of the free exercise clause under
the right to freedom of religion guaranteed by the Constitution, it becomes imperative to delve into the
efficaciousness of a statutory grant of the power to regulate the exercise of this constitutional right and the
allowable restrictions which may possibly be imposed thereon.

The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand,
it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship.
Freedom of conscience and freedom to adhere to such religious organization or form of worship as the
individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of
the chosen form of religion. Thus, the constitution embraces two concepts, that is, freedom to believe and
freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains
subject to regulation for the protection of society. The freedom to act must have appropriate definitions to
preserve the enforcement of that protection. In every case, the power to regulate must be so exercised, in
attaining a permissible end, as not to unduly infringe on the protected
freedom. 17

Whence, even the exercise of religion may be regulated, at some slight inconvenience, in order that the
State may protect its citizens from injury. Without doubt, a State may protect its citizens from fraudulent
solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for
any purpose, to establish his identity and his authority to act for the cause which he purports to represent.
The State is likewise free to regulate the time and manner of solicitation generally, in the interest of public
safety, peace, comfort, or convenience. 18

It does not follow, therefore, from the constitutional guaranties of the free exercise of religion that
everything which may be so called can be tolerated. 19 It has been said that a law advancing a legitimate
governmental interest is not necessarily invalid as one interfering with the "free exercise" of religion

merely because it also incidentally has a detrimental effect on the adherents of one or more religion. 20
Thus, the general regulation, in the public interest, of solicitation, which does not involve any religious
test and does not unreasonably obstruct or delay the collection of funds, is not open to any constitutional
objection, even though the collection be for a religious purpose. Such regulation would not constitute a
prohibited previous restraint on the free exercise of religion or interpose an inadmissible obstacle to its
exercise. 21

Even with numerous regulative laws in existence, it is surprising how many operations are carried on by
persons and associations who, secreting their activities under the guise of benevolent purposes, succeed in
cheating and defrauding a generous public. It is in fact amazing how profitable the fraudulent schemes
and practices are to people who manipulate them. The State has authority under the exercise of its police
power to determine whether or not there shall be restrictions on soliciting by unscrupulous persons or for
unworthy causes or for fraudulent purposes. That solicitation of contributions under the guise of
charitable and benevolent purposes is grossly abused is a matter of common knowledge. Certainly the
solicitation of contributions in good faith for worthy purposes should not be denied, but somewhere
should be lodged the power to determine within reasonable limits the worthy from the unworthy. 22 The
objectionable practices of unscrupulous persons are prejudicial to worthy and proper charities which
naturally suffer when the confidence of the public in campaigns for the raising of money for charity is
lessened or destroyed. 23 Some regulation of public solicitation is, therefore, in the public interest. 24

To conclude, solicitation for religious purposes may be subject to proper regulation by the State in the
exercise of police power. However, in the case at bar, considering that solicitations intended for a
religious purpose are not within the coverage of Presidential Decree No. 1564, as earlier demonstrated,
petitioner cannot be held criminally liable therefor.

As a final note, we reject the reason advanced by respondent judge for increasing the penalty imposed by
the trial court, premised on the supposed perversity of petitioner's act which thereby caused damage to the
complainant. It must be here emphasized that the trial court, in the dispositive portion of its decision, even
recommended executive clemency in favor of petitioner and the other accused after finding that the latter
acted in good faith in making the solicitation from the complainant, an observation with which we fully
agree. After all, mistake upon a doubtful and difficult question of law can be the basis of good faith,
especially for a layman.

There is likewise nothing in the findings of respondent judge which would indicate, impliedly or
otherwise, that petitioner and his co-accused acted abusively or malevolently. This could be reflective
upon her objectivity, considering that the complainant in this case is herself a judge of the Regional Trial
Court at Kalookan City. It bears stressing at this point that a judge is required to so behave at all times as
to promote public confidence in the integrity and impartiality of the judiciary, 25 should be vigilant
against any attempt to subvert its independence, and must resist any pressure from whatever source. 26

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and petitioner
Martin Centeno is ACQUITTED of the offense charged, with costs de oficio.

SO ORDERED.

Narvasa, C.J. and Puno, JJ., concur.

Separate Opinions

MENDOZA, J.:

I concur in the result reached in this case that the solicitation of donations for the repair of a chapel is not
covered by P.D. No. 1564 which requires a permit for the solicitation of contributions for "charitable or
public welfare purposes." My reasons are three-fold.

First. Solicitation of contributions for the construction of a church is not solicitation for "charitable or
public welfare purpose" but for a religious purpose, and a religious purpose is not necessarily a charitable
or public welfare purpose. A fund campaign for the construction or repair of a church is not like fund
drives for needy families or victims of calamity or for the construction of a civic center and the like. Like
solicitation of subscription to religious magazines, it is part of the propagation of religious faith or
evangelization. Such solicitation calls upon the virtue of faith, not of charity, save as those solicited for
money or aid may not belong to the same religion as the solicitor. Such solicitation does not engage the
philantrophic as much as the religious fervor of the person who is solicited for contribution.

Second.The purpose of the Decree is to protect the public against fraud in view of the proliferation of
fund campaigns for charity and other civic projects. On the other hand, since religious fund drives are
usually conducted among those belonging to the same religion, the need for public protection against
fraudulent solicitations does not exist in as great a degree as does the need for protection with respect to
solicitations for charity or civic projects so as to justify state regulation.

Third. To require a government permit before solicitation for religious purpose may be allowed is to lay
a prior restraint on the free exercise of religion. Such restraint, if followed, may well justify requiring a
permit before a church can make Sunday collections or enforce tithing. But in American Bible Society v.
City of Manila, 1 we precisely held that an ordinance requiring payment of a license fee before one may
engage in business could not be applied to the appellant's sale of bibles because that would impose a

condition on the exercise of a constitutional right. It is for the same reason that religious rallies are
exempted from the requirement of prior permit for public assemblies and other uses of public parks and
streets. 2 To read the Decree, therefore, as including within its reach solicitations for religious purposes
would be to construe it in a manner that it violates the Free Exercise of Religion Clause of the
Constitution, when what we are called upon to do is to ascertain whether a construction of the statute is
not fairly possible by which a constitutional violation may be avoided.

For these reasons, I vote to reverse the decision appealed from and to acquit petitioner.

Padilla, J., concurs.

# Separate Opinions

MENDOZA, J.:

I concur in the result reached in this case that the solicitation of donations for the repair of a chapel is not
covered by P.D. No. 1564 which requires a permit for the solicitation of contributions for "charitable or
public welfare purposes." My reasons are three-fold.

First. Solicitation of contributions for the construction of a church is not solicitation for "charitable or
public welfare purpose" but for a religious purpose, and a religious purpose is not necessarily a charitable
or public welfare purpose. A fund campaign for the construction or repair of a church is not like fund
drives for needy families or victims of calamity or for the construction of a civic center and the like. Like
solicitation of subscription to religious magazines, it is part of the propagation of religious faith or
evangelization. Such solicitation calls upon the virtue of faith, not of charity, save as those solicited for
money or aid may not belong to the same religion as the solicitor. Such solicitation does not engage the
philantrophic as much as the religious fervor of the person who is solicited for contribution.

Second.The purpose of the Decree is to protect the public against fraud in view of the proliferation of
fund campaigns for charity and other civic projects. On the other hand, since religious fund drives are
usually conducted among those belonging to the same religion, the need for public protection against
fraudulent solicitations does not exist in as great a degree as does the need for protection with respect to
solicitations for charity or civic projects so as to justify state regulation.

Third. To require a government permit before solicitation for religious purpose may be allowed is to lay
a prior restraint on the free exercise of religion. Such restraint, if followed, may well justify requiring a
permit before a church can make Sunday collections or enforce tithing. But in American Bible Society v.

City of Manila, 1 we precisely held that an ordinance requiring payment of a license fee before one may
engage in business could not be applied to the appellant's sale of bibles because that would impose a
condition on the exercise of a constitutional right. It is for the same reason that religious rallies are
exempted from the requirement of prior permit for public assemblies and other uses of public parks and
streets. 2 To read the Decree, therefore, as including within its reach solicitations for religious purposes
would be to construe it in a manner that it violates the Free Exercise of Religion Clause of the
Constitution, when what we are called upon to do is to ascertain whether a construction of the statute is
not fairly possible by which a constitutional violation may be avoided.

For these reasons, I vote to reverse the decision appealed from and to acquit petitioner.

Padilla, J., concurs.

#Footnotes

Annex A, Petition; Rollo, 25.

Annex B, id.; ibid., 20.

Annex D, id.; ibid., 34.

Annex G, id.; ibid., 40.

Annex H, id.; ibid., 44.

Annex J, id.; ibid., 64.

7
Commissioner of Customs vs. Court of Tax Appeals, et al., G.R. Nos. 48886-88, July 21, 1993,
224 SCRA 665.

Scobey vs. Beckman, 41 N.E. 2d 84.

See Adye vs. Smith, 26 Am. Rep. 424.

10

See Read vs. McLean, 200 So. 109.

11

In re Seaman's Estate, 139 N.E. 2d 17.

12

In re Clark's Estate, 159 A. 500.

13

Martin, Statutory Construction, 1979 ed., 183.

14
112.

Gaanan vs. Intermediate Appellate Court, et al., G.R. No. 69809, October 16, 1986, 145 SCRA

15

Topeka Presbyterian Manor, Inc. vs. Board, 402 P. ed. 802.

16

Martin, op. cit., 81.

17

Cantwell vs. Connecticut, 301 U.S. 296 (1940).

18

Id., loc. cit.

19

16 Am. Jur. 2d, Constitutional Law, 283.

20

Ibid., id., 282.

21

Cantwell vs. Connecticut, supra.

22

Id., loc. cit.

23

City of Seattle vs. Rogers, 106 P. 2d 598.

24

Commonwealth vs. Creighton, et al., 170 A. 720.

25

Rule 2.01, Code of Judicial Conduct.

26

Rule 1.03. id.

MENDOZA, J., concurring:

1

101 Phil. 386 (1957).

B.P. Blg. 880, 3(a).

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-39274

July 26, 1991

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. NARCISO A. AQUINO, in his capacity as Presiding Judge of Branch XIV, Court of First
Instance of Pangasinan, and BARTOLOME PADILLA, respondents.

The Solicitor General for petitioner.

Geronimo F. Abellera for private respondent.

FELICIANO, J.:p

A complaint for violation of R.A. No. 3701 entitled "An Act to Discourage Destruction of Forests, Further
Amending for this Purpose Section 2751 of the Revised Administrative Code" docketed as Criminal Case
No. 1183, was filed on 10 October 1970 before the Municipal Court of Balungao, Pangasinan against
private respondent Bartolome Padilla y Domingo.

On 29 November 1972, Judge Amando G. Lazaro of the Municipal Trial Court rendered a decision
finding respondent Padilla guilty as charged and sentencing him to suffer imprisonment of seven (7)
months and to pay a fine of P1,200.00 as the value of the forest products destroyed by appellee, with
subsidiary imprisonment in case of insolvency. 1

Respondent Padilla filed his notice of appeal, and in an order dated 13 February 1973, the Municipal Trial
Court ordered the case elevated to the higher court. 2

The appealed case, docketed as Criminal Case No. 148-R in the Court of First Instance of Pangasinan,
Branch XIV, was tried de novo. The Provincial Fiscal filed a new information, dated 20 March 1973,
which read:

That on or about the month of September 17 to 19, 1970 at Sitio Catilaongan Barrio Kita-kita,
Municipality of Balungao, Province of Pangasinan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, did then and there willfully, unlawfully and feloniously enter, and
make kaingin in an area of approximately 20.0 hectares, which is within the Balungao forest reserve,
Balungao, Pangasinan, and as a result thereof 500 cubic meters of firewood growing therein were
destroyed to the damage and prejudice of the government in the amount of ONE THOUSAND THREE
HUNDRED FIFTY PESOS (P1,350.00 ), Philippine Currency.

Contrary to Section 2751 of the Revised Administrative Code (Act No. 2711), as amended by Republic
Act No. 3701. 3

Private respondent Padilla was arraigned anew, and again pleaded not guilty.

Respondent Padilla then filed a motion to dismiss, dated 14 July 1974, claiming that upon inspection of
the land involved by the Municipal Treasurer of Balungao, Pangasinan for the 1964 tax declaration, it was
found that the land was not public land. 4 Respondent also argued that assuming the land to be public, the
12 June 1974 proclamation of the then President Ferdinand Marcos promised to recognize private rights
acquired in respect of alienable and disposable public lands. 5

Assistant Provincial Fiscal Juanito R. Morante filed an opposition to the motion to dismiss, dated 8
August 1974, arguing that since R.A. No. 3701 had not been repealed, that statute must be enforced. 6

On 22 August 1974, public respondent Judge Narciso A. Aquino issued an order dismissing the case on
the ground that the proclamation cited by private respondent Padilla had given him the opportunity to
apply for a homestead patent, thus, rendering the case against him moot and academic. 7 The respondent
judge further ruled that:

That Court is inclined to sustain the theory of the accused that the Court has lost jurisdiction over the
subject matter of this case inasmuch as in consonance with the spirit of the New Society to implement the
land reform program and/or giving land to the landless, and to resolve in favor of the accused the benefit
of the doubt, this case can no longer prosper under the aforesaid circumstances. 8

The People, through the Solicitor-General, then filed with this Court a Petition for Review. In a
Resolution, dated 30 October 1974, the Petition was given due course. 9 Private respondent, however,
failed to file his answer. On 13 January 1975, the Court issued a Resolution requiring petitioner to file its
brief A copy of the petitioner's brief was sent to private respondent 10 who nonetheless failed to file his
own brief The case was considered submitted for decision without private respondent's brief. 11

Petitioner raises the following issues for resolution of the Court:

1.
Whether or not the respondent court, which was possessed of uncontroverted jurisdiction over the
subject matter of this case, had thereafter lost such jurisdiction by reason of the "spirit and meaning of
various Presidential Decrees, Orders and Proclamations issued by his Excellency, the President of the
Philippines, in implementing the Land Reform Program and/or giving land to the landless" that allegedly
rendered this case "moot and academic".

2.
Whether or not the dismissal of this case by reason of the "spirit and meaning of various
Presidential Decrees, Orders and Proclamations issued by his Excellency, the President of the Philippines,
in implementing the Land Reform Program and/or giving land to the landless" is an act without or in
excess of the respondent court's jurisdiction, or with grave abuse of discretion, amounting to lack of
jurisdiction. 12

The Solicitor-General argues that since Section 2751 of the Revised Administrative Code as amended by
R.A. No. 3701, which made it a criminal act to enter into forest reserves without permission from the
Director of Forestry, to wit:

Section 2751. Unlawful occupation or destruction of public forest. Without written permission of the
Director of Forestry or his duly authorized representative, it shall be unlawful for any person wilfully to
enter upon any public forest, proclaimed timberland, communal forest, communal pasture, and forest
reserve and occupy the same, or make "kaingin" therein or in any manner destroy such forest or part
thereto, or to cause any damage to the timber stand and other forest products and forest growth found
therein, or to assist, aid or abet any other person to do so. It shall also be unlawful for any person
negligently to permit a fire which has set upon his own premises to be communicated, with destructive
results, to any of the public forest herein-above described. Any person violating this section shall suffer

xxx

xxx

xxx

(b)
If the offense is committed within a forest reserve, a fine of four times the regular government
charges on the timber or other forest products so unlawfully destroyed, and in addition thereto,
imprisonment for not less that four months nor more than six months;

xxx

xxx

xxx

In all cases falling under this section, the court shall, upon conviction, order the eviction of the offender
from the land, and the forfeiture to the Government of any construction of improvement thereon. If the
area is reforested or under reforestation, the Government, may, in addition to the penalties herein
provided, recover in a separate civil action, double the actual damages sustained as determined by the
value of plantings and improvement destroyed and the detriment to the land and vegetables thereon
(Emphasis supplied)

had not been repealed, it should have been enforced against respondent Padilla. 13 The Solicitor-General
further argues that the so-called "proclamation" was but a part of the independence day speech of then
President Marcos and cannot be considered in the same light as the martial law decrees recognized to
have legislative effect, 14 hence, the same cannot be used as a basis for depriving the Court of First
Instance of its jurisdiction over the case.

Deliberating on the instant Petition for Review on Certiorari, the Court considers that petitioner has
shown clear reversible error on the part of Judge Narciso A. Aquino warranting reversal of the questioned
decision.

As earlier mentioned, respondent Padilla did not file his brief. To forestall any contention from
respondent Padilla that the People's appeal violated his right against double jeopardy, it should be recalled
that protection is not available in cases where the dismissal was effected at the instance of the accused. 15

Neither can respondent Padilla raise any claim of denial of due process. The Court has constantly held
that what is repugnant to due process is an absolute lack of an opportunity to be heard. 16 In the present
case, respondent was given all the opportunity to be heard but he chose not to file any pleadings.

Under Article 7 of the Civil Code, a law may be repealed only by a subsequent law. Accordingly, in the
absence of a law repealing Section 2751 of the Revised Administrative Code, quoted above, a judge has
no choice save to apply and enforce Section 2751. 17 In the case at bar, Judge Aquino stated in his
decision:

The Court considers that although the accused, in supporting the ground of his motion to dismiss, may
have no legal basis inasmuch as Republic Act 3701 has not yet been repealed or abrogated and still
enforceable, yet the Court shall take into consideration the spirit and meaning of various presidential
decrees, orders and proclamation (sic) issued by His Excellency, the President of the Philippines, in
implementing the reform program and/or giving land to the landless. 18

Thus, while Judge Aquino was obviously aware of the applicable legal principle, he chose to disregard
that principle by invoking "the spirit and meaning" of various presidential decrees. This constitutes a
rejection of the principle of legality so fundamental in criminal law that it is very difficult to understand
how a judge could reach such a conclusion. No "spirit and meaning" that are not given statutory form and
content can be invoked as over-turning a prior statute or as giving rise to new legal rights and duties. The
"proclamation" relied upon by Judge Aquino was not a law and did not purport to be a law. In fact, that
"proclamation" was merely an extraction from a speech of the then President of the Philippines, a speech
in which some proposed policies concerning the disposition of public lands were announced. No decree
or legislative enactment exempting "kaingineros" from liability for destruction of forest resources was
promulgated after the presidential speech. As a matter of fact, Presidential Decrees Nos. 389 19 and 705,
20 enacted subsequently to that Independence Day Speech of former President Marcos, penalized the
practice of kaingin in forest reserves.

In his motion to dismiss in the court below, private respondent Padilla asserted that he had an oral
assurance of the Municipal Treasurer of Balungao, Pangasinan, that the area here involved did not form
part of public land, possibly hoping to establish mistake of fact. We need only to note that Padilla
admitted in his motion that he had started occupying the land here involved in 1962 but commenced
paying real estate taxes only two (2) years later. In any case, any such claim is properly presented as a
defense during the trial of the case; such claim certainly cannot affect the jurisdiction of the trial court.

WHEREFORE, the Court Resolved to GRANT DUE COURSE to the Petition for Review and to
REVERSE and SET ASIDE the Order of public respondent Judge Narciso A. Aquino dated 22 August
1974. The trial court is hereby ORDERED to resume proceedings in Criminal Case No. 148-R of the then
Court of First Instance of Pangasinan, Branch 14, against private respondent Bartolome D. Padilla. Costs
against private respondent.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.

Footnotes

Decision, Records, pp. 104-105.

Records, p. 135.

Id., p. 149.

Id., p. 334.

Id., pp. 334-335.

Id., p. 342.

Decision, Records, p. 351.

Id., p. 351.

Rollo, p. 52.

10

Id., p. 69.

11

Id., p. 71.

12

Petitioner's Brief, pp. 7-8.

13

Id., p. 12.

14

Id., p. 26.

15

Milo v. Salanga, 152 SCRA 113 (1987).

16

See, generally, Siquian v. People, 171 SCRA 223 (1989).

17

People v. Mapa, 20 SCRA 1164 (1967).

18

Decision, Records, p. 350.

19
Entitled Codifying Revising, and Updating All Forestry Laws and for Other Purposes, issued on 5
February 1974.

20
Entitled Revising Presidential Decree No. 389, Otherwise Known as Forestry Reform Code of the
Philippines, issued on 19 May 1975.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila

G.R. No. L-62114 July 5, 1983

ISIDRO BERNARDO and CAYETANO BERNARDO, petitioners,

vs.
THE PEOPLE OF THE PHILIPPINES, respondent.

Alberto Mala, Jr. for petitioners.

The Solicitor General for respondent.

RELOVA, J.:

FIRST DIVISION

Petitioner Isidro Bernardo was a tenant of Ledda Sta. Rosa in her riceland in Plaridel, Bulacan from
October 1972 to August 1974. At the time, petitioner constructed a house therein for his family's dwelling.
His son, co-petitioner Cayetano Bernardo, was staying with him in said house as his helper in tilling the
land. Subsequently, Isidro left the landholding and transferred to San Nicolas, Bulacan without the
knowledge of the landowner Ledda Sta. Rosa. Before leaving the landholding, however, Isidro transferred
his tenancy rights to his son, co-petitioner Cayetano Bernardo, who continued to reside in subject house.
Eventually, Ledda Sta. Rosa took possession of the whole riceland, through her overseer Dr. Patricio E.
Cruz.

A case of forcible entry was filed by Ledda Sta. Rosa against herein petitioners, Isidro Bernardo and
Cayetano Bernardo, before the Municipal Court of Plaridel, Bulacan. Petitioners lost before the inferior
court as well as in the Court of First Instance of Bulacan. Likewise, petitioners lost in their petition for
certiorari and mandamus before the Court of Appeals.

Thereafter, Ledda Sta. Rosa sent a letter of demand to petitioners telling them to vacate the house and the
land. When the latter failed to leave, a criminal complaint was filed against them for violation of
Presidential Decree No. 772 with the fiscal's office. After a preliminary investigation of the case, the
provincial fiscal filed the corresponding information with the Court of First Instance of Bulacan, Branch
VI, docketed as Criminal Case No. 3022-M, as follows:

That on or about the 22nd day of April 1974, in the municipality of Plaridel, province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the said accused Isidro Bernardo and
Cayetano Bernardo, did then and there willfully, unlawfully and feloniously, without the knowledge and
taking advantage of the tolerance of the owner Ledda Sta. Rosa y Cruz, succeed and/or continue in
possessing and squatting on a parcel of land of the said owner, by erecting thereon their residential house
and failing to remove the said residential house despite demand to do so made by the said owner.

Upon arraignment, herein petitioners, father and son, entered a plea of not guilty. Trial on the merits of
the case proceeded and, after both parties have submitted their cases, herein petitioners, through counsel,
filed a motion to dismiss on the ground of lack of jurisdiction of the court to entertain a case for violation
of Presidential Decree No. 772, inasmuch as the same applies to squatters in urban communities only and
not to agricultural lands; that in the case of People vs. Echaves, 95 SCRA 663, it was held that
"Presidential Decree No. 772 does not apply to pasture lands because its preamble shows that it was
intended to apply to squatting in urban communities or more particularly to illegal construction in squatter
areas made by well-to-do individuals."

The motion to dismiss was denied and the trial court rendered judgment convicting herein petitioners of
the crime charged and sentencing them to pay a fine of P2,500.00 each, with subsidiary imprisonment in
case of insolvency. Hence, this petition for certiorari to set aside the decision of the lower court on the
ground that it has no jurisdiction to entertain the criminal case for alleged violation of Presidential Decree
No. 772 since the facts obtaining in the case do not constitute an offense or violation of said law.

Indeed, in the case of People vs. Echaves, supra, this Court, speaking through Mr. Justice Ramon C.
Aquino, held that Presidential Decree No. 772 does not apply to pasture lands. The preamble of the decree
is quoted below:

WHEREAS, it came to my knowledge that despite the issuance of Letter of Instruction No. 19 dated
October 2, 1972, directing the Secretaries of National Defense, Public Works and Communications,
Social Welfare and the Director of Public Works, the PHHC General Manager, the Presidential Assistant
on Housing and Rehabilitation Agency, Governors, City and Municipal Mayors, and City and District
Engineers, 'to remove all illegal constructions including buildings on and along esteros and river banks,
those along railroad tracks and those built without permits on public and private property,' squatting is
still a major problem in urban communities all over the country;

WHEREAS, many persons or entities found to have been unlawfully occupying public and private lands
belong to the affluent class;

WHEREAS, there is a need to further intensify the government's drive against this illegal and nefarious
practice.

The intent of the decree is unmistakable. It is intended to apply only to urban communities, particularly to
illegal constructions.

The Solicitor General in his comment to the petition manifests that "the intent and purpose of PD 772 is
to prohibit and penalize squatting or similar acts on public and private lands located in urban
communities. ... ['that no person should be brought within the terms of a penal statute who is not clearly
within them, nor should any act be pronounced criminal which is not clearly made so by the statute (US
vs. Abad Santos, 36 Phil. 243). ... Consequently, the decision of the lower court in Criminal Case No.
3022- M, convicting herein petitioners of the offense of violation of PD No. 772, is null and void and
should, therefore, be set aside."

ACCORDINGLY, this petition for certiorari is GRANTED, the judgment of conviction is SET ASIDE,
and said Criminal Case No. 3022-M is hereby DISMISSED.

SO ORDERED.

Teehankee (Chairman), Plana, Escolin and Gutierrez, Jr., JJ., concur.

Melencio-Herrera and Vasquez, JJ., are on leave.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-9726

December 8, 1914

THE UNITED STATES, plaintiff-appellee,

vs.
CARSON TAYLOR, defendant-appellant.

C. W. O'Brien for appellant.

Office of the Solicitor General Corpus for appellee.

JOHNSON, J.:

This was an action for criminal libel.

The complaint alleged:

That on the 25th day of September, 1913, the said Carson Taylor, being then and there the acting editor
and proprietor, manager, printer, and publisher in the city of Manila, Philippine Islands, of a certain daily
bilingual newspaper, edited in the English and Spanish languages, and known as the 'Manila Daily
Bulletin,' a paper of large circulation throughout the Philippine Islands, as well as in the United States and
other countries in all of which both languages are spoken and written, and having as such the supervision
and control of said newspaper, did then and there willfully, unlawfully, feloniously, maliciously, and with
intent to impeach the honesty, virtue, and reputation of one Ramon Sotelo as a member of the bar of the
Philippine Islands and as private individual, and to expose him to public hatred, contempt and ridicule,
compose, print, edit, publish, and circulate and procure to be composed, printed, edited, published, and
circulated in said newspaper's issue of the above mentioned date, September 25, 1913, a certain false and
malicious defamation and libel in the English language of and concerning the said Ramon Sotelo, which
reads as follows:

OWNERS FIRED BUILDING TO COLLECT INSURANCE. CRIMINAL CHARGES FOLLOWS

CIVIL SUIT.

'Conspiracy divulged in three sworn statements made by members of the party after a family
disagreement. Sensational statement sworn to. Mystery of Calle O'Donnell fire solved and papers served.

'Conspiracy to defraud the insurance company.'

'The building was fired to collect the amount of insurance.'

'The movable furniture of value was removed before the fire.'

'The full amount of the insurance was collected, and the conspiracy was a success.'

'The above is the gist of the sworn statements of Vicente Sotelo and Eugenio Martin in connection with
the fire that destroyed house No. 2157 Calle O'Donnell on April 4.'

'The case in question is a sensational one to say the least, and the court is being petitioned to set aside the
ruling and cite the parties to show cause why they should not be cited to answer charges of conspiracy to
defraud.'

'On April 4, 1913, the house located at 2157 Calle O'donnell was destroyed by fire.1awphil.net The house
was insured for P5,000, the contents for an additional P5,000, with the West of Scotland Insurance
Association, of which Lutz & Co. are the local agents, with an additional P1,500 with Smith, Bell & Co.'

'The full amount of the insurance on the property was paid by the paid by the agents of the insurance
companies and the matter apparently dropped from the records.'

'Then there was internal trouble and information began to leak out which resulted in sensational
statements to the effect that the destruction of the property had been an act of incendiarism in order to
collect the insurance. The there was an investigation started and it resulted in sworn statements of the
three persons above mentioned.'

'Notarial returns were made yesterday by the sheriff, based on the sworn statements and the parties are
cited to appear in court and show cause.'

'The investigation also showed that the furniture, which was supposed to be in line the house at the time
of the conflagration and which was paid for by the insurance agents, sworn statements having been made
that it was destroyed in the fire, was in certain house in Montalban, where it was identified upon the
sworn statements of the above mentioned. Implicated in the charges of conspiracy and fraud is the name
of the attorney for the plaintiff who made affidavit as to the burning of the house and against whom
criminal proceedings will be brought as well as against the original owners.'

'Attorney Burke, who represents Lutz & Co. in the proceedings, was seen last night and asked for a
statement as to the case. Mr. Burke refused to talk on the case and stated that when it came to trial it
would be time enough to obtain the facts.'

'The present action came before the court on motion of Attorney Burke to set aside the judgment, which,
in the original case, given the owners of the property judgment for the amount of the insurance.'

'Attorney Burke filed the sworn statements with the court and the notarial returns to the same were made
yesterday afternoon, the sworn statements as to the burning of the house being in the hands of the sheriff.'

'It was stated yesterday that a criminal action would follow the civil proceedings instituted to recover the
funds in the case entitled on the court records, Maria Mortera de Eceiza and Manuel Eceiza versus the
West o Sctoland Association, Limited, No. 10191 on the court records.'1awphil.net

'It might be stated also that Eugenio Martin was one of the plaintiffs in the recent suit brought against ExGovernor W. Cameron Forbes for lumber supplied for his Boston home.'

That in this article is contained the following paragraph. To wit:

". . . Implicated in the charges of conspiracy and fraud is the name of the attorney for the plaintiff who
made affidavit as to the burning of the house and against whom criminal proceedings will be brought as
well as against the original owners," by which the said accused meant to refer and did refer to the said
Ramon Sotelo, who then and there was the attorney for the plaintiff in the case aforesaid, No. 10191 of
the Court of First Instance of the city of Manila, and so was understood by the public who read the same;
that the statements and allegations made in said paragraph are wholly false and untrue, thus impeaching
the honesty, virtue, and reputation of the said offended party as a member of the bar of the Philippine
Islands and as private individual, and exposing him to public hatred, contempt and ridicule. Contrary to
law.

Upon said complaint the defendant was arrested, arraigned, plead not guilty, was tried, found guilty of the
crime charged, and sentenced by the Honorable George N. Hurd, judge, to pay a fine of P200. From the
sentence the defendant appealed to this court and made the following assignment of error:

First. The court erred in finding that the defendant was responsible for and guilty of the alleged libel.

Second. The court erred in finding that the defendant was the proprietor and publisher of the "Manila
Daily Bulletin."

Third. The court erred in finding that the alleged libelous articles was libelous per se.

Fourth. The court erred in holding that the article was libelous, while finding that there was no malice.

Fifth. The court erred in finding that the alleged libelous article referred to attorney Ramon Sotelo.

Sixth. The court erred in finding that Ramon Sotelo was attorney for the plaintiffs in case No. 10191,
when the alleged libel was published.

After a careful examination of the record and the arguments presented by the appellant, we deem it
necessary to discuss only the first and second assignments of error.

In the Philippine Islands there exist no crimes such as are known in the United States and England as
common law crimes. No act constitutes a crime here unless it is made so by law. Libel is made a crime
here by Act No. 277 of the United States Philippine Commission. Said Act (No. 277) not only defines the

crime of libel and prescribes the particular conditions necessary to constitute it, but it also names the
persons who may be guilty of such crime. In the present case the complaint alleges that the defendant
was, at the time of the publication of said alleged article "the acting editor, proprietor, manager, printer,
publisher, etc. etc. of a certain bilingual newspaper, etc., known as the 'Manila Daily Bulletin,' a paper of
large circulation throughout the Philippine Islands, as well as in the United States and other countries."

It will be noted that the complaint charges the defendant as "the acting editor, proprietor, manager, printer,
and publisher." From an examination of said Act No. 277, we find that section 6 provides that: "Every
author, editor, or proprietor of any book, newspaper, or serial publication is chargeable with the
publication of any words contained in any part of said book or number of each newspaper or serial as
fully as if he were the author of the same."

By an examination of said article, with reference to the persons who may be liable for the publication of a
libel in a newspaper, we find that it only provides for a punishment of "the author, editor, or proprietor." It
would follow, therefore, that unless the proof shows that the defendant in the present case is the "author,
editor, or proprietor" of the newspaper in which the libel was published, he can not be held liable.

In the present case the Solicitor-General in his brief said that "No person is represented to be either the
'author, editor, or proprietor.'" That statement of the Solicitor-General is fully sustained by the record.
There is not a word of proof in the record showing that the defendant was either the "author, the editor, or
the proprietor." The proof shows that the defendant was the "manager." He must, therefore, be acquitted
of the crime charged against him, unless it is shown by the proof that he, as "manager" of the newspaper,
was in some way directly responsible for the writing, editing, or publishing of the matter contained in said
alleged libelous article. The prosecution presented the newspaper, the "Manila Daily Bulletin," for the
purpose of showing the relation which the defendant had to it. That was the only proof presented by the
prosecution to show the relation which the defendant had to the publication of the libel in question. From
an examination of the editorial page of said exhibit, we find that it shows that the "Manila Daily Bulletin"
is owned by the "Bulletin Publishing Company," and that the defendant was its manager. There is not a
word of proof in the record which shows what relation the manager had to the publication of said
newspaper. We might, by series of presumptions and assumptions, conclude that the manager of a
newspaper has some direct responsibility with its publication. We believe, however, that such
presumptions and assumptions, in the absence of a single letter of proof relating thereto, would be
unwarranted and unjustified. The prosecuting attorney had an opportunity to present proof or because no
such proof was obtainable, he presented none. It certainly is not difficult matter to ascertain who is the
real person responsible for the publication of a newspaper which is published daily and has a wide
circulation in a particular community. No question was asked the defendant concerning his particular
relation to the publication of the newspaper in question. We do not desire to be understood in our
conclusions here as holding that the "manager" or the "printer" may not, under certain conditions and
proper proof, he held to be the "author, editor, or proprietor" of a newspaper. He may nominate himself as
"manager" or "printer" simply, and be at the same time the "author, editor, or proprietor" of the
newspaper. He can not avoid responsibility by using some other term or word, indicating his relation to
the newspaper or the publication, when, as a matter of fact, he is the "author, the editor, or the proprietor"
of the same. His real relation to the said publication is a matter of proof. The Solicitor-General, in his with
the hope of evading legal responsibility, as the Libel Law places the responsibility for publishing a libel,
on "every author, editor, or proprietor of any book, etc." Had the prosecuting attorney in the trial of the
cause believed that the defendant, even though he called himself the "manager" was, in fact, the "author,
editor, or proprietor" of said publication, he should have presented some proof supporting that contention.

Neither do we desire to be understood as holding that simply because a person connected with the
publication of a newspaper who calls himself the "manager" or "printer" may not, in fact and at the same
time, be the "author, editor, or proprietor." The "author, editor, or proprietor" can not avoid responsibility
for the writing and publication of a libelous article, by simply calling himself the "manager" or the
"printer" of a newspaper. That, however, is a question of proof. The burden is upon the prosecution to
show that the defendant is, by whatever name he may call himself, in truth and in fact, the "author, editor,
or proprietor" of a newspaper. The courts cannot assume, in the absence of proof, that one who called
himself "manager" was in fact the "author, editor, or proprietor." We might assume, perhaps, that the
"manager" of a newspaper plays an important part in the publication of the same by virtue of the general
signification of the word "manager." Men can not, however, be sentenced upon the basis of a mere
assumption. There must be some proof. The word "manage" has been defined by Webster to mean "to
have under control and direction; to conduct; to guide; to administer; to treat; to handle." Webster defines
"manager" to be "one who manages; a conductor or director; as, the manager of a theater." A manager, as
that word is generally understood, we do not believe includes the idea of ownership. Generally speaking it
means one who is representing another as an agent. That being true, his power and duties and obligations
are generally defined by contract. He may have expressed as well as implied powers, but whatever his
powers and duties are they must be defendant upon the nature of the business and the terms of his
contract. There is no fixed rule which indicates particularly and definitely his duties, powers and
obligations. An examination into the character of the business and the contract of his employment must be
made for the purpose of ascertaining definitely what his duties and obligations are. His exact relation is
always a matter of proof. It is incumbent upon the prosecution is a case like the present, to show that
whatever title, name or designation the defendant may bear, he was, in fact, the "author, the editor, or the
proprietor" of the newspaper. If he was in fact the "author, editor, or proprietor," he can not escape
responsibility by calling the "manager" or "printer." It is the relation which he bears to the publication and
not the name or title he has assumed, which is important in an investigation. He can not wear the toga of
author of editor and hide his responsibility by giving himself some other name. While the terms "author,
editor, and proprietor" of a newspaper are terms well defined, the particular words "author, editor, or
proprietor" are not material or important, further than that they are words which are intended to show the
relation of the responsible party to the publication. That relation may as well exist under some other name
or denomination.

For the foregoing reasons, therefore, there being no proof whatever in the record showing that the
defendant was the "author, the editor, or the proprietor" of the newspaper in question, the sentence of the
lower court must be reversed, the complaint dismissed and the defendant discharged from the custody of
the law, with costs de officio. So ordered.

Arellano, C.J., Moreland, Trent and Araullo., JJ., concur.

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