C.A. No.

384 February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.

DE JOYA, J.:

Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas, for the crime of murder, of which Nicolas
Jaurigue was acquitted, but defendant Avelina Jaurigue was found guilty of homicide and sentenced to an indeterminate penalty ranging
from seven years, four months and one day of prision mayor to thirteen years, nine months and eleven days of reclusion temporal, with
the accessory penalties provided by law, to indemnify the heirs of the deceased, Amando Capina, in the sum of P2,000, and to pay one-
half of the costs. She was also credited with one-half of the period of preventive imprisonment suffered by her.

From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals for Southern Luzon, and in her brief filed
therein on June 10, 1944, claimed
(1) That the lower court erred in not holding that said appellant had acted in the legitimate defense of her honor and that she should
be completely absolved of all criminal responsibility;
(2) That the lower court erred in not finding in her favor the additional mitigating circumstances that (a) she did not have the intention
to commit so grave a wrong as that actually committed, and that (b) she voluntarily surrendered to the agents of the authorities;
and
(3) That the trial court erred in holding that the commission of the alleged offense was attended by the aggravating circumstance of
having been committed in a sacred place.

The evidence adduced by the parties, at the trial in the court below, has sufficiently established the following facts:

That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived in the barrio of Sta. Isabel, City of San
Pablo, Province of Laguna; that for sometime prior to the stabbing of the deceased by defendant and appellant, in the evening of
September 20, 1942, the former had been courting the latter in vain, and that on one occasion, about one month before that fatal night,
Amado Capina snatched a handkerchief belonging to her, bearing her nickname "Aveling," while it was being washed by her cousin,
Josefa Tapay.

On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached her and spoke to her of his love, which
she flatly refused, and he thereupon suddenly embraced and kissed her and touched her breasts, on account of which Avelina, resolute
and quick-tempered girl, slapped Amado, gave him fist blows and kicked him. She kept the matter to herself, until the following morning
when she informed her mother about it. Since then, she armed herself with a long fan knife, whenever she went out, evidently for self-
protection.

On September 15, 1942, about midnight, Amado climbed up the house of defendant and appellant, and surreptitiously entered the room
where she was sleeping. He felt her forehead, evidently with the intention of abusing her. She immediately screamed for help, which
awakened her parents and brought them to her side. Amado came out from where he had hidden under a bed in Avelina's room and
kissed the hand of Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's mother made an attempt to beat Amado, her
husband prevented her from doing so, stating that Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the barrio
lieutenant, Casimiro Lozada, and for Amado's parents, the following morning. Amado's parents came to the house of Nicolas Jaurigue
and apologized for the misconduct of their son; and as Nicolas Jaurigue was then angry, he told them to end the conversation, as he
might not be able to control himself.

In the morning of September 20, 1942, Avelina received information that Amado had been falsely boasting in the neighborhood of having
taken liberties with her person and that she had even asked him to elope with her and that if he should not marry her, she would take
poison; and that Avelina again received information of Amado's bragging at about 5 o'clock in the afternoon of that same day.

At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to the chapel of the Seventh Day Adventists
of which he was the treasurer, in their barrio, just across the provincial road from his house, to attend religious services, and sat on the
front bench facing the altar with the other officials of the organization and the barrio lieutenant, Casimiro Lozada. Inside the chapel it was
quite bright as there were electric lights.

Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her father, also for the purpose of attending
religious services, and sat on the bench next to the last one nearest the door. Amado Capina was seated on the other side of the chapel.
Upon observing the presence of Avelina Jaurigue, Amado Capina went to the bench on which Avelina was sitting and sat by her right
side, and, without saying a word, Amado, with the greatest of impudence, placed his hand on the upper part of her right thigh. On observing
this highly improper and offensive conduct of Amado Capina, Avelina Jaurigue, conscious of her personal dignity and honor, pulled out
with her right hand the fan knife marked Exhibit B, which she had in a pocket of her dress, with the intention of punishing Amado's offending
hand. Amado seized Avelina's right hand, but she quickly grabbed the knife with her left hand and stabbed Amado once at the base of
the left side of the neck, inflicting upon him a wound about 4 1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who was
seated on one of the front benches, saw Amado bleeding and staggering towards the altar, and upon seeing his daughter still holding the
bloody knife, he approached her and asked: "Why did you do that," and answering him Avelina said: "Father, I could not endure anymore."
Amado Capina died from the wound a few minutes later. Barrio lieutenant Casimiro Lozada, who was also in the same chapel, approached
Avelina and asked her why she did that, and Avelina surrendered herself, saying: "Kayo na po ang bahala sa aquin," meaning: "I hope
you will take care of me," or more correctly, "I place myself at your disposal." Fearing that Amado's relatives might retaliate, barrio
lieutenant Lozada advised Nicolas Jaurigue and herein defendant and appellant to go home immediately, to close their doors and windows
and not to admit anybody into the house, unless accompanied by him. That father and daughter went home and locked themselves up,
following instructions of the barrio lieutenant, and waited for the arrival of the municipal authorities; and when three policemen arrived in
their house, at about 10 o'clock that night, and questioned them about the incident, defendant and appellant immediately surrendered the
knife marked as Exhibit B, and informed said policemen briefly of what had actually happened in the chapel and of the previous acts and
conduct of the deceased, as already stated above, and went with said policemen to the police headquarters, where her written statements
were taken, and which were presented as a part of the evidence for the prosecution.

The high conception of womanhood that our people possess, however humble they may be, is universal. It has been entertained and has
existed in all civilized communities.

A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman represents the only true nobility. And they
are the future wives and mothers of the land. Such are the reasons why, in the defense of their honor, when brutally attacked, women are
permitted to make use of all reasonable means available within their reach, under the circumstances. Criminologists and courts of justice
have entertained and upheld this view.

On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in the days of chivalry. There is a country
where women freely go out unescorted and, like the beautiful roses in their public gardens, they always receive the protection of all. That
country is Switzerland.

In the language of Viada, aside from the right to life on which rests the legitimate defense of our own person, we have the right to property
acquired by us, and the right to honor which is not the least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173).

The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of legitimate defense, inasmuch as a
woman's honor cannot but be esteemed as a right as precious, if not more, than her very existence; and it is evident that a woman who,
thus imperiled, wounds, nay kills the offender, should be afforded exemption from criminal liability, since such killing cannot be considered
a crime from the moment it became the only means left for her to protect her honor from so great an outrage (1 Viada, Codigo Penal, 5th
ed., p. 301; People vs. Luague and Alcansare, 62 Phil., 504). .

As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in the defense of her honor. Thus, where
the deceased grabbed the defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding her firmly from behind, without
warning and without revealing his identity, and, in the struggle that followed, touched her private parts, and that she was unable to free
herself by means of her strength alone, she was considered justified in making use of a pocket knife in repelling what she believed to be
an attack upon her honor, and which ended in his death, since she had no other means of defending herself, and consequently exempt
from all criminal liability (People vs. De la Cruz, 16 Phil., 344).

And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant with a bolo which she happened to be
carrying at the time, even though her cry for assistance might have been heard by people nearby, when the deceased tried to assault her
in a dark and isolated place, while she was going from her house to a certain tienda, for the purpose of making purchases (United States
vs. Santa Ana and Ramos, 22 Phil., 249).

In the case, however, in which a sleeping woman was awakened at night by someone touching her arm, and, believing that some person
was attempting to abuse her, she asked who the intruder was and receiving no reply, attacked and killed the said person with a pocket
knife, it was held that, notwithstanding the woman's belief in the supposed attempt, it was not sufficient provocation or aggression to justify
her completely in using deadly weapon. Although she actually believed it to be the beginning of an attempt against her, she was not
completely warranted in making such a deadly assault, as the injured person, who turned out to be her own brother-in-law returning home
with his wife, did not do any other act which could be considered as an attempt against her honor (United States vs. Apego, 23 Phil., 391)..

In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed up her house late at night on September
15, 1942, and surreptitiously entered her bedroom, undoubtedly for the purpose of raping her, as indicated by his previous acts and
conduct, instead of merely shouting for help, she could have been perfectly justified in killing him, as shown by the authorities cited above..

According to the facts established by the evidence and found by the learned trial court in this case, when the deceased sat by the side of
defendant and appellant on the same bench, near the door of the barrio chapel and placed his hand on the upper portion of her right thigh,
without her consent, the said chapel was lighted with electric lights, and there were already several people, about ten of them, inside the
chapel, including her own father and the barrio lieutenant and other dignitaries of the organization; and under the circumstances, there
was and there could be no possibility of her being raped. And when she gave Amado Capina a thrust at the base of the left side of his
neck, inflicting upon him a mortal wound 4 1/2 inches deep, causing his death a few moments later, the means employed by her in the
defense of her honor was evidently excessive; and under the facts and circumstances of the case, she cannot be legally declared
completely exempt from criminal liability..

But the fact that defendant and appellant immediately and voluntarily and unconditionally surrendered to the barrio lieutenant in said
chapel, admitting having stabbed the deceased, immediately after the incident, and agreed to go to her house shortly thereafter and to
remain there subject to the order of the said barrio lieutenant, an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472); and
the further fact that she had acted in the immediate vindication of a grave offense committed against her a few moments before, and upon
such provocation as to produce passion and obfuscation, or temporary loss of reason and self-control, should be considered as mitigating
circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).

Defendant and appellant further claims that she had not intended to kill the deceased but merely wanted to punish his offending hand with
her knife, as shown by the fact that she inflicted upon him only one single wound. And this is another mitigating circumstance which should
be considered in her favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123).

The claim of the prosecution, sustained by the learned trial court, that the offense was committed by the defendant and appellant, with
the aggravating circumstance that the killing was done in a place dedicated to religious worship, cannot be legally sustained; as there is
no evidence to show that the defendant and appellant had murder in her heart when she entered the chapel that fatal night. Avelina is not
a criminal by nature. She happened to kill under the greatest provocation. She is a God-fearing young woman, typical of our country girls,
who still possess the consolation of religious hope in a world where so many others have hopelessly lost the faith of their elders and now
drifting away they know not where.

The questions raised in the second and third assignments of error appear, therefore, to be well taken; and so is the first assignment of
error to a certain degree.

In the mind of the court, there is not the least doubt that, in stabbing to death the deceased Amado Capina, in the manner and form and
under the circumstances above indicated, the defendant and appellant committed the crime of homicide, with no aggravating circumstance
whatsoever, but with at least three mitigating circumstances of a qualified character to be considered in her favor; and, in accordance with
the provisions of article 69 of the Revised Penal Code, she is entitled to a reduction by one or two degrees in the penalty to be imposed
upon her. And considering the circumstances of the instant case, the defendant and appellant should be accorded the most liberal
consideration possible under the law (United States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado,
43 Phil., 950)..

The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be reduced by two degrees, the penalty to
be imposed in the instant case is that of prision correccional; and pursuant to the provisions of section 1 of Act No. 4103 of the Philippine
Legislature, known as the Indeterminate Sentence Law, herein defendant and appellant should be sentenced to an indeterminate penalty
ranging from arresto mayor in its medium degree, to prision correccional in its medium degree. Consequently, with the modification of
judgment appealed from, defendant and appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty ranging from two
months and one day of arresto mayor, as minimum, to two years, four months, and one day of prision correccional, as maximum, with the
accessory penalties prescribed by law, to indemnify the heirs of the deceased Amado Capina, in the sum of P2,000, and to suffer the
corresponding subsidiary imprisonment, not to exceed 1/3 of the principal penalty, in case of insolvency, and to pay the costs. Defendant
and appellant should also be given the benefit of 1/2 of her preventive imprisonment, and the knife marked Exhibit B ordered confiscated.
So ordered..

Ozaeta, Perfecto, and Bengzon, JJ., concur.

G.R. Nos. L-33466-67 April 20, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.

MAKASIAR, J.:

This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816 for
murder which, after a joint trial, resulted in the conviction of the accused in a decision rendered on September 8, 1970, with the following
pronouncement:

Thus, we have a crime of MURDER qualified by treachery with the aggravating circumstance of evident premeditation offset by the
mitigating circumstance of voluntary surrender. The proper penalty imposable, therefore, is RECLUSION PERPETUA (Arts. 248 and
64, Revised Penal Code).

Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of the deceased Davis
Q. Fleischer in the sum of P 12,000.00 as compensatory damages, P 10,000.00 as moral damages, P 2,000.00 as attorney's
fees, the offended party having been represented by a private prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of the deceased
Flaviano Rubia in the sum of P12,000.00 as compensatory damages, P10,000.00 as moral damages, P2,000.00 as attorney's
fees, the offended party having been represent by a private prosecutor, and to pay the costs (p. 48, rec.).

The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and Cesar Ibanez together with the two deceased
Davis Fleischer and Flaviano Rubia, were fencing the land of George Fleischer, father of deceased Davis Fleischer. The place was
in the boundary of the highway and the hacienda owned by George Fleischer. This is located in the municipality of Maitum, South
Cotabato. At the place of the fencing is the house and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II). At that
time, appellant was taking his rest, but when he heard that the walls of his house were being chiselled, he arose and there he saw the
fencing going on. If the fencing would go on, appellant would be prevented from getting into his house and the bodega of his ricemill.
So he addressed the group, saying 'Pare, if possible you stop destroying my house and if possible we will talk it over what is good,'
addressing the deceased Rubia, who is appellant's compadre. The deceased Fleischer, however, answered: 'No, gademit, proceed,
go ahead.' Appellant apparently lost his equilibrium and he got his gun and shot Fleischer, hitting him. As Fleischer fell down, Rubia
ran towards the jeep, and knowing there is a gun on the jeep, appellant fired at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense
transcript). Both Fleischer and Rubia died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).

It appears, however, that this incident is intertwined with the long drawn out legal battle between the Fleischer and Co., Inc. of which
deceased Fleischer was the secretary-treasurer and deceased Rubia the assistant manager, on the one hand, and the land settlers of
Cotabato, among whom was appellant.

From the available records of the related cases which had been brought to the Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R)
and to this Court on certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice of the following antecedent facts:

Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937 and settled in Maitum, a former sitio
of Kiamba and now a separate municipality of South Cotabato. He established his residence therein, built his house, cultivated the area,
and was among those who petitioned then President Manuel L. Quezon to order the subdivision of the defunct Celebes Plantation and
nearby Kalaong Plantation totalling about 2,000 hectares, for distribution among the settlers.

Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner in Negros Oriental, filed sales
application No. 21983 on June 3, 1937 over the same area formerly leased and later abandoned by Celebes Plantation Company, covering
1,017.2234 hectares.

Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but the survey report was not submitted
until 1946 because of the outbreak of the second world war. According to the survey, only 300 hectares Identified as Lots Nos. 22, 26 and
38, Ps. 176 Kiamba, were set aside for Sales Application No. 21983, while the rest were subdivided into sublots of 5 to 6 hectares each
to be distributed among the settlers (pp. 32-33, G.R. No. L-45504).

The 300 hectares set aside for the sales application of Fleischer and Company was declared open for disposition, appraised and
advertised for public auction. At the public auction held in Manila on August 14, 1948, Fleischer and Company was the only bidder for
P6,000.00. But because of protests from the settlers the corresponding award in its favor was held in abeyance, while an investigator was
sent by the Director of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty. Gozon came back after ten days with an amicable
settlement signed by the representative of the settlers. This amicable settlement was later repudiated by the settlers, but the Director of
Lands, acting upon the report of Atty. Gozon, approved the same and ordered the formal award of the land in question to Fleischer and
Company. The settlers appealed to the Secretary of Agriculture and Natural Resources, who, however, affirmed the decision in favor of
the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato which then consisted only of one sala, for
the purpose of annulling the order of the Secretary of Agriculture and Natural Resources which affirmed the order of the Director of Lands
awarding the contested land to the company. The settlers as plaintiffs, lost that case in view of the amicable settlement which they had
repudiated as resulting from threats and intimidation, deceit, misrepresentation and fraudulent machination on the part of the company.
They appealed to the Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16, 1965 the decision of the Court of
First Instance in favor of the company.

This resulted in the ouster of the settlers by an order of the Court of First Instance dated September 24, 1966, from the land which they
had been occupying for about 30 years. Among those ejected was the appellant who, to avoid trouble, voluntarily dismantled his house,
built in 1947 at a cost of around P20,000.00, and transferred to his other house which he built in 1962 or 1963 near the highway. The
second house is not far from the site of the dismantled house. Its ground floor has a store operated by Mrs. June Talens who was renting
a portion thereof. He also transferred his store from his former residence to the house near the highway. Aside from the store, he also
had a rice mill located about 15 meters east of the house and a concrete pavement between the rice mill and the house, which is used for
drying grains and copra.

On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and other leaders filed Civil Case No. 755
in the Court of First Instance of Cotabato, Branch I. to obtain an injunction or annulment of the order of award with prayer for preliminary
injunction. During the pendency of this case, appellant on February 21, 1967 entered into a contract of lease with the company whereby
he agreed to lease an area of approximately 100 to 140 square meters of Lot No. 38 from the company (Exh. 9, p. 1, Folder of Exhibits
for Defense) for a consideration of P16.00 monthly. According to him, he signed the contract although the ownership of the land was still
uncertain, in order to avoid trouble, until the question of ownership could be decided. He never paid the agreed rental, although he alleges
that the milling job they did for Rubia was considered payment. On June 25, 1968, deceased Fleischer wrote him a letter with the following
tenor:

You have not paid six months rental to Fleischers & Co., Inc. for that portion of land in which your house and ricemill are located as
per agreement executed on February 21, 1967. You have not paid as as even after repeated attempts of collection made by Mr.
Flaviano Rubia and myself.

In view of the obvious fact that you do not comply with the agreement, I have no alternative but to terminate our agreement on this
date.

I am giving you six months to remove your house, ricemill, bodega, and water pitcher pumps from the land of Fleischers & Co., Inc.
This six- month period shall expire on December 31, 1966.

In the event the above constructions have not been removed within the six- month period, the company shall cause their immediate
demolition (Exhibit 10, p. 2, supra).

On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by putting bamboo posts along the property
line parallel to the highway. Some posts were planted right on the concrete drier of appellant, thereby cutting diagonally across its center
(pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to appellant's house (p. 231, t.s.n., supra). The fence, when finished, would
have the effect of shutting off the accessibility to appellant's house and rice mill from the highway, since the door of the same opens to
the Fleischers' side. The fencing continued on that fateful day of August 22, 1968, with the installation of four strands of barbed wire to
the posts.

At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all morning, was awakened by some noise
as if the wall of his house was being chiselled. Getting up and looking out of the window, he found that one of the laborers of Fleischer
was indeed chiselling the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and
deceased Fleischer was commanding his laborers. The jeep used by the deceased was parked on the highway. The rest of the incident
is narrated in the People's Brief as above-quoted. Appellant surrendered to the police thereafter, bringing with him shotgun No. 1119576
and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).

Appellant now questions the propriety of his conviction, assigning the following errors:

First Assignment of Error: That the lower court erred in convicting defendant-appellant despite the fact that he acted in defense of his
person; and
Second Assignment of Error: That the court a quo also erred in convicting defendant-appellant although he acted in defense of his
rights (p. 20 of Appellant's Brief, p. 145, rec.).

The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot them from the window of his house with
the shotgun which he surrendered to the police authorities. He claims, however, that he did so in defense of his person and of his rights,
and therefore he should be exempt from criminal liability.

Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the Revised Penal Code, but in order for
it to be appreciated, the following requisites must occur:
 First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself (Art. 11, par. 1, Revised Penal Code, as amended).

The aggression referred to by appellant is the angry utterance by deceased Fleischer of the following words: "Hindi, sigue, gademit,
avante", in answer to his request addressed to his compadre, the deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan
natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been awakened to see the wall of his house
being chiselled. The verbal exchange took place while the two deceased were on the ground doing the fencing and the appellant was up
in his house looking out of his window (pp. 225-227, supra). According to appellant, Fleischer's remarks caused this reaction in him: "As
if, I lost my senses and unknowingly I took the gun on the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr.
Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant testified:

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot, Mr. Rubia looked at Mr. Fleischer and when Mr.
Fleischer fell down, Mr. Rubia ran towards the jeep and knowing that there was a firearm in the jeep and thinking that if he will take
that firearm he will kill me, I shot at him (p. 132, supra, Emphasis supplied).

The foregoing statements of appellant were never controverted by the prosecution. They claim, however, that the deceased were in lawful
exercise of their rights of ownership over the land in question, when they did the fencing that sealed off appellant's access to the highway.

A review of the circumstances prior to the shooting as borne by the evidence reveals that five persons, consisting of the deceased and
their three laborers, were doing the fencing and chiselling of the walls of appellant's house. The fence they were putting up was made of
bamboo posts to which were being nailed strands of barbed wire in several layers. Obviously, they were using tools which could be lethal
weapons, such as nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it was not disputed
that the jeep which they used in going to the place was parked just a few steps away, and in it there was a gun leaning near the steering
wheel. When the appellant woke up to the sound of the chiselling on his walls, his first reaction was to look out of the window. Then he
saw the damage being done to his house, compounded by the fact that his house and rice mill will be shut off from the highway by the
fence once it is finished. He therefore appealed to his compadre, the deceased Rubia, to stop what they were doing and to talk things
over with him. But deceased Fleischer answered angrily with 'gademit' and directed his men to proceed with what they were doing.

The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have resulted in the further chiselling of the
walls of appellant's house as well as the closure of the access to and from his house and rice mill-which were not only imminent but were
actually in progress. There is no question, therefore, that there was aggression on the part of the victims: Fleischer was ordering, and
Rubia was actually participating in the fencing. This was indeed aggression, not on the person of appellant, but on his property rights.

The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the contested property, to destroy
appellant's house and to shut off his ingress and egress to his residence and the highway?

Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or tenements.

However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the order of award to Fleischer and Company
was still pending in the Court of First Instance of Cotabato. The parties could not have known that the case would be dismissed over a
year after the incident on August 22, 1968, as it was dismissed on January 23, 1970 on ground of res judicata, in view of the dismissal in
1965 (by the Court of Appeals) of Civil Case No. 240 filed in 1950 for the annulment of the award to the company, between the same
parties, which the company won by virtue of the compromise agreement in spite of the subsequent repudiation by the settlers of said
compromise agreement; and that such 1970 dismissal also carried the dismissal of the supplemental petition filed by the Republic of the
Philippines on November 28, 1968 to annul the sales patent and to cancel the corresponding certificate of title issued to the company, on
the ground that the Director of Lands had no authority to conduct the sale due to his failure to comply with the mandatory requirements
for publication. The dismissal of the government's supplemental petition was premised on the ground that after its filing on November 28,
1968, nothing more was done by the petitioner Republic of the Philippines except to adopt all the evidence and arguments of plaintiffs
with whom it joined as parties-plaintiffs.

Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil Case No. 755 filed on November 14,
1966 and his execution of the contract of lease on February 21, 1967 was just to avoid trouble. This was explained by him during cross-
examination on January 21, 1970, thus:

It happened this way: we talked it over with my Mrs. that we better rent the place because even though we do not know who really
owns this portion to avoid trouble. To avoid trouble we better pay while waiting for the case because at that time, it was not known
who is the right owner of the place. So we decided until things will clear up and determine who is really the owner, we decided to pay
rentals (p. 169, t.s.n., Vol.6).

In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense Exhibits) within which to vacate the land. He should
have allowed appellant the peaceful enjoyment of his properties up to that time, instead of chiselling the walls of his house and closing
appellant's entrance and exit to the highway.

The following provisions of the Civil Code of the Philippines are in point:
 Art. 536. In no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto.
He who believes that he has an action or a right to deprive another of the holding of a thing must invoke the aid of the competent
court, if the holder should refuse to deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected
in or restored to said possession by the means established by the laws and the Rules of Court (Articles 536 and 539, Civil Code
of the Philippines).

Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to appellant's house, nor to close his
accessibility to the highway while he was pleading with them to stop and talk things over with him. The assault on appellant's property,
therefore, amounts to unlawful aggression as contemplated by law.

Illegal aggression is equivalent to assault or at least threatened assault of immediate and imminent kind (People vs. Encomiendas,
46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant's property which he had the right to resist, pursuant to Art. 429 of
the Civil Code of the Philippines which provides:

Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For
this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical
invasion or usurpation of his property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense or defense of one's rights under
paragraph 1 of Article 11, Revised Penal Code. When the appellant fired his shotgun from his window, killing his two victims, his resistance
was disproportionate to the attack.

WE find, however, that the third element of defense of property is present, i.e., lack of sufficient provocation on the part of appellant who
was defending his property. As a matter of fact, there was no provocation at all on his part, since he was asleep at first and was only
awakened by the noise produced by the victims and their laborers. His plea for the deceased and their men to stop and talk things over
with him was no provocation at all.

Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements for justification are present. He
should therefore be held responsible for the death of his victims, but he could be credited with the special mitigating circumstance of
incomplete defense, pursuant to paragraph 6, Article 13 of the Revised Penal Code.

The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be appreciated in this case because of
the presence of provocation on the part of the deceased. As WE held earlier in People vs. Manlapaz (55 SCRA 598), the element of a
sudden unprovoked attack is therefore lacking.

Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault adopted by the aggressor was deliberately
chosen with a special view to the accomplishment of the act without risk to the assailant from any defense that the party assailed might
have made. This cannot be said of a situation where the slayer acted instantaneously ..." (People vs. Caete, 44 Phil. 481).

WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficiently established. The only evidence
presented to prove this circumstance was the testimony of Crisanto Ibaez, 37 years old, married, resident of Maitum, South Cotabato,
and a laborer of Fleischer and Company, which may be summarized as follows:

On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying corn near the house of Mr. and Mrs. Mamerto
Narvaez at the crossing, Maitum, South Cotabato, when the accused and his wife talked to him. Mrs. Narvaez asked him to help them,
as he was working in the hacienda. She further told him that if they fenced their house, there is a head that will be broken. Mamerto
Narvaez added 'Noy, it is better that you will tell Mr. Fleischer because there will be nobody who will break his head but I will be the
one.' He relayed this to Mr. Flaviano Rubia, but the latter told him not to believe as they were only Idle threats designed to get him out
of the hacienda (pp. 297-303, t.s.n., Vol. 2).

This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of evident premeditation. As WE have
consistently held, there must be "direct evidence of the planning or preparation to kill the victim, .... it is not enough that premeditation be
suspected or surmised, but the criminal intent must be evidenced by notorious outward acts evincing the determination to commit the
crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the accused premeditated the killing; that the culprit
clung to their (his) premeditated act; and that there was sufficient interval between the premeditation and the execution of the crime to
allow them (him) to reflect upon the consequences of the act" (People vs. Gida, 102 SCRA 70).

Moreover, the obvious bias of witness Crisanto Ibaez, as a laborer of the deceased Davis Fleischer, neutralizes his credibility.

Since in the case at bar, there was no direct evidence of the planning or preparation to kill the victims nor that the accused premeditated
the killing, and clung to his premeditated act, the trial court's conclusion as to the presence of such circumstance may not be endorsed.
Evident premeditation is further negated by appellant pleading with the victims to stop the fencing and destroying his house and to talk
things over just before the shooting.

But the trial court has properly appreciated the presence of the mitigating circumstance of voluntary surrender, it appearing that appellant
surrendered to the authorities soon after the shooting.

Likewise, We find that passion and obfuscation attended the commission of the crime. The appellant awoke to find his house being
damaged and its accessibility to the highway as well as of his rice mill bodega being closed. Not only was his house being unlawfully
violated; his business was also in danger of closing down for lack of access to the highway. These circumstances, coming so near to the
time when his first house was dismantled, thus forcing him to transfer to his only remaining house, must have so aggravated his obfuscation
that he lost momentarily all reason causing him to reach for his shotgun and fire at the victims in defense of his rights. Considering the
antecedent facts of this case, where appellant had thirty years earlier migrated to this so-called "land of promise" with dreams and hopes
of relative prosperity and tranquility, only to find his castle crumbling at the hands of the deceased, his dispassionate plea going unheeded-
all these could be too much for any man-he should be credited with this mitigating circumstance.

Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any qualifying nor aggravating
circumstance, but extenuated by the privileged mitigating circumstance of incomplete defense-in view of the presence of unlawful
aggression on the part of the victims and lack of sufficient provocation on the part of the appellant-and by two generic mitigating
circumstance of voluntary surrender and passion and obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion temporal. Pursuant to Article 69, supra, the penalty
lower by one or two degrees shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required
to justify the same. Considering that the majority of the requirements for defense of property are present, the penalty may be lowered by
two degrees, i.e., to prision correccional And under paragraph 5 of Article 64, the same may further be reduced by one degree, i.e., arresto
mayor, because of the presence of two mitigating circumstances and no aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American World Airways (43 SCRA 397), the award
for moral damages was reduced because the plaintiff contributed to the gravity of defendant's reaction. In the case at bar, the victims not
only contributed but they actually provoked the attack by damaging appellant's properties and business. Considering appellant's standing
in the community, being married to a municipal councilor, the victims' actuations were apparently designed to humiliate him and destroy
his reputation. The records disclose that his wife, councilor Feliza Narvaez, was also charged in these two cases and detained without
bail despite the absence of evidence linking her to the killings. She was dropped as a defendant only upon motion of the prosecution
dated October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal Case
No. 1815).

Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company, despite its extensive landholdings in a
Central Visayan province, to extend its accumulation of public lands to the resettlement areas of Cotabato. Since it had the capability-
financial and otherwise-to carry out its land accumulation scheme, the lowly settlers, who uprooted their families from their native soil in
Luzon to take advantage of the government's resettlement program, but had no sufficient means to fight the big landowners, were the
ones prejudiced. Thus, the moral and material suffering of appellant and his family deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision correccional or arrests mayor and fine who has
no property with which to meet his civil liabilities to serve a subsidiary imprisonment at the rate of one (1) day for each P 2.50. However,
the amendment introduced by Republic Act No. 5465 on April 21, 1969 made the provisions of Art. 39 applicable to fines only and not to
reparation of the damage caused, indemnification of consequential damages and costs of proceedings. Considering that Republic Act
5465 is favorable to the accused who is not a habitual delinquent, it may be given retroactive effect pursuant to Article 22 of the Revised
Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO (2) HOMICIDES, MITIGATED BY
THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC
MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING
CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO
MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR
THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES
AND ATTORNEY'S FEES.

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN (14) YEARS NOW SINCE HIS
VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.
SO ORDERED.
G.R. No. L-7037 March 15, 1912
THE UNITED STATES, plaintiff-appellee,
vs.
JOSE LAUREL, ET AL., defendants-appellants.

TORRES, J.:

This appeal was raised by the four above-named defendants, from the judgment of conviction, found on page 117 of the record, rendered
by the Honorable Mariano Cui.

The facts in this case are as follows: On the night of December 26, 1909, while the girl Concepcion Lat was walking along the street, on
her way from the house of Exequiel Castillo, situated in the pueblo of Tanauan, Province of Batangas, accompanied by several young
people, she was approached by Jose Laurel who suddenly kissed her and immediately thereafter ran off in the direction of his house,
pursued by the girl's companions, among whom was the master of the house above mentioned, Exequiel Castillo; but they did not overtake
him.

On the second night after the occurrence just related, that is, on the 28th, while Exequiel Castillo and Jose Laurel, together with Domingo
Panganiban and several others of the defendants, were at an entertainment held on an upper floor of the parochial building of the said
pueblo and attended by many residents of the town, it is alleged that the said Castillo and Laurel were invited by Panganiban, the former
through his brother, Roque Castillo, and the latter, directly, to come out into the yard, which they did, accompanied by Panganiban and
the other defendants referred to. After the exchange of a few words and explanations concerning the kiss given the girl Lat on the night
of the 26th of that month, a quarrel arose between the said Jose Laurel and Exequiel Castillo, in which Domingo Panganiban, Vicente
Garcia, and Conrado Laurel took part, and as a result of the quarrel Exequiel Castillo was seriously wounded. He succeeded in reaching
a drug store near by where he received first aid treatment; Jose Laurel also received two slight wounds on the head.

Dr. Sixto Rojas, who began to render medical assistance to Exequiel Castillo early in the morning of the following day, stated that his
examination of the latter's injuries disclosed a wound in the left side of the chest, on a level with the fourth rib, from 3 to 4 centimeters in
depth, reaching into the lung; another wound in the back of the left arm and in the conduit through which the ulnar nerve passes, from 10
to 11 centimeters in length, penetrating to the bone and injuring the nerves and arteries of the said region, especially the ulnar nerve,
which was served; a contusion on the right temple, accompanied by ecchymosis and hemorrhage of the tissues of the eye; and, finally,
another contusion in the back of the abdomen near the left cavity, which by reaction injured the stomach and the right cavity. According
to the opinion of the physician above named, the wound in the left side of the breast was serious on account of its having fully penetrated
the lungs and caused the patient to spit blood, as noticed the day after he was wounded, and there must have been a hemmorhage of
the lung, an important vital vascular organ; by reason of this hemorrhage or general infection the patient would have died, had it not been
for the timely medical aid rendered him. The wound on the back of the left arm was also of a serious nature, as the ulnar nerve was cut,
with the result that the title and ring fingers of the patient's left hand have been rendered permanently useless. With respect to the contusion
on the right temple, it could have been serious, according to the kind of blows received, and the contusion on the back of the abdomen
was diagnosed as serious also, on account of its having caused an injury as a result of which the wounded man complained of severe
pains in the stomach and left spleen. The said physician stated that he had attended the patient fourteen consecutive days; that the
contusion on the abdomen was cured in four or five days, and that on the right temple in ten or twelve days, although this latter injury was
accompanied by a considerable ecchymosis which might not disappear for about three months, the time required for the absorption of the
coagulated blood; that the stitches in the wound of the left arm were taken out after twelve days, and when witness ceased to attend the
patient, this wound was healing up and for its complete cure would require eight or more days' time; and that the wound in the breast, for
the reason that it had already healed internally and the danger of infection had disappeared, was healing, although still more time would
be required for its complete cure, the patient being able to continue the treatment himself, which in fact he did.

In view of the strikingly contradictory evidence adduced by the prosecution and by the defense, and in order to decide what were the true
facts of the case we shall proceed to recite the testimony of the party who was seriously wounded and of his witnesses, and afterwards,
that of his alleged assailants and of their witnesses, in order to determine the nature of the crime, the circumstances that concurred therein
and, in turn, the responsibility of the criminal or criminals.

Exequiel Castillo testified that while he, together with Primitivo Gonzalez, was in the hall of the parochial building of Tanauan, attending
an entertainment on the night of December 28, 1909, he was approached by his brother, Roque Castillo, who told him, on the part of
Domingo Panganiban, that Jose Laurel desired to speak with him and was awaiting him on the ground floor of the said building, to give
him an explanation with regard to his (Laurel's) having kissed Concepcion Lat on the night of the 26th in the street and in the presence of
the witness and other young people; that the witness, Exequiel Castillo, therefore, left the parochial building, accompanied by his brother
Roque and Primitivo Gonzalez, and met Sofronio Velasco, Gaudencio Garcia, and Alfonso Torres, at the street door; that after he had
waited there for half an hour, Jose laurel, Conrado Laurel, Vicente Garcia, Jose Garcia, and Domingo Panganiban, likewise came down
out of the building and Jose Laurel approached him and immediately took him aside, away from the door of the building and the others;
that Laurel then said to him that, before making any explanations relative to the said offense against the girl Concepcion Lat, he would
ask him whether it was true that he (the witness, Castillo) had in his possession some letters addressed by Laurel to the said girl, to which
the witness replied that as a gentleman he was not obliged to answer the question; that thereupon Jose Laurel suddenly struck him a blow
in the left side of the breast with a knife, whereupon the witness, feeling that he was wounded, struck in turn with the cane he was carrying
at his assailant, who dodged and immediately started to run; thereupon witness received another knife thrust in the left arm followed by a
blow in the left side from a fist and witness, upon turning, saw Vicente Garcia and Domingo Panganiban in the act of again assaulting him;
just then he was struck a blow with a cane on his right temple and, on turning, saw behind him Conrado Laurel carrying a stick, and just
at the moment Primitivo Gonzalez and several policemen approached him calling of peace; his assailants then left him and witness went
to the neighboring drug store where he received first aid treatment. Witness further testified that he had been courting the girl Concepcion
Lat for a month; that, because his sweetheart had been kissed by Jose Laurel, he felt a little resentment against the latter, and that since
then he had no opportunity to speak with his assailant until the said night of the attack.
Roque Castillo, a witness for the prosecution, testified that, at the request of Domingo Panganiban, he had suggested to his brother,
Exequiel Castillo, that the latter should go down to the door of the ground floor of the parochial building, where Jose Laurel was waiting
for him, so that the latter might make explanations to him with regard to what had taken place on the night prior to the 26th of December;
that Exequiel, who was in the hall beside Primitivo Gonzalez, immediately upon receiving the notice sent him in Laurel's name, got up and
went down with Gonzalez and the witness, though the latter remained at the foot of the stairs in conversation with Virginio de Villa, whom
he found there; that, after a little while, witness saw Jose Laurel, Jose Garcia, Domingo Panganiban, Vicente Garcia, and Conrado Laurel
come down from the said building, and, on observing something bulging from the back of the latter's waist he asked him what made that
bulge, to which Laurel replied that it meant "peace;" witness thereupon said to him that if he really desired "peace," as witness also did,
he might deliver to the latter the revolver he was carrying, and to prove that he would not make bad use of the weapon, Laurel might take
the cartridges out and deliver the revolver to witness. This he did, the witness received the revolver without the cartridges, and his fears
thus allayed, the witness returned to the upper floor to the entertainment; but that, at the end of about half an hour, he heard a hubbub
among the people who said that there was a quarrel, and witness, suspecting that his brother Exequiel had met with some treachery, ran
down out of the house; on reaching the ground floor he met Primitivo Gonzalez, who had blood stains on his arms; that Gonzalez then
informed him that Exequiel was badly wounded; that he found his said brother in Arsenio Gonzalez' drug store; and that his brother was
no longer able to speak but made known that he wanted to be shriven. Witness added that on that same night he delivered the revolver
to his father, Sixto Castillo, who corroborated this statement.

The other witness, Primitivo Gonzalez, corroborated the testimony given by the preceding witness, Roque Castillo, and testified that, while
he was that night attending the entertainment at the parochial building of Tanauan, in company with Exequiel Castillo, the latter received
notice from his (Castillo's) brother, through Domingo Panganiban, to the effect that Jose Laurel desired to speak with him concerning what
occurred on the night of December 26; that thereupon Exequiel, the latter's brother, Roque and the witness all went down out of the house,
though Roque stopped on the main stairway while witness and Exequiel went on until they came to the main door of the ground floor
where they met Alfonso Torres and Gaudencio Garcia; that, after a while, Jose Laurel, Conrado Laurel, Vicente Garcia, Jose Garcia
Aquino, and Domingo Panganiban came up; that when Jose Laurel met Exequiel Castillo he caught the latter by the hand and the two
separated themselves from the rest and retired to a certain distance, although Vicente and Jose Garcia, Conrado Laurel, and Alfonso
Torres placed themselves the nearest to the first two, Jose Laurel and Exequiel Castillo; that at this juncture witness, who was about 6 or
7 meters away from the two men last named, observed that Jose Laurel, who had his hand in his pocket while he was talking with Exequiel,
immediately drew out a handkerchief and therewith struck Exequiel a blow on the breast; that the latter forthwith hit his assailant, Laurel,
with a cane which he was carrying; that Laurel, upon receiving a blow, stepped back, while Exequiel pursued him and continued to strike
him; that thereupon Vicente Garcia stabbed Exequiel, who had his back turned toward him and Conrado Laurel struck the said Exequiel
a blow on the head with a cane; that when witness approached the spot where the fight was going on, several policemen appeared there
and called out for peace; and that he did not notice what Jose Garcia Aquino and Alfonso Torres did.

Lucio Villa, a policeman, testified that on the hearing the commotion, he went to the scene of it and met Jose Laurel who was coming
away, walking at an ordinary gait and carrying a bloody pocketknife in his hand; that witness therefore arrested him, took the weapon from
him and conducted him to the municipal building; and that the sergeant and another policemen, the latter being the witness's companion,
took charge of the other disturbers.

The defendant, Jose Laurel, testified that early in the evening of the 28th of December he went to the parochial building, in company with
Diosdado Siansance and several young people, among them his cousin Baltazara Rocamora, for the purpose of attending an
entertainment which was to be held there; that, while sitting in the front row of chairs, for there were as yet but few people, and while the
director of the college was delivering a discourse, he was approached by Domingo Panganiban who told him that Exequiel Castillo wished
to speak with him, to which witness replied that he should wait a while and Panganiban thereupon went away; that, a short time afterwards,
he was also approached by Alfredo Yatco who gave him a similar message, and soon afterwards Felipe Almeda came up and told him
that Exequiel Castillo was waiting for him on the ground floor of the house; this being the third summons addressed to him, he arose and
went down to ascertain what the said Exequiel wanted; that, when he stepped outside of the street door, he saw several persons there,
among them, Exequiel Castillo; the latter, upon seeing witness, suggested that they separate from the rest and talk in a place a short
distance away; that thereupon Exequiel asked witness why he kissed his, Exequiel's sweetheart, and on Laurel's replying that he had
done so because she was very fickle and prodigal of her use of the word "yes" on all occasions, Exequiel said to him that he ought not to
act that way and immediately struck him a blow on the head with a cane or club, which assault made witness dizzy and caused him to fall
to the ground in a sitting posture; that, as witness feared that his aggressor would continue to assault him, he took hold of the pocketknife
which he was carrying in his pocket and therewith defended himself; that he did not know whether he wounded Exequiel with the said
weapon, for, when witness arose, he noticed that he, the latter, had a wound in the right parietal region and a contusion in the left; that
witness was thereupon arrested by the policemen, Lucio Villa, and was unable to state whether he dropped the pocketknife he carried or
whether it was picked up by the said officer; that it took more than a week to cure his injuries; that he had been courting the girl Concepcion
Lat for a year, but that in October, 1909, his courtship ended and Exequiel Castillo then began to court her; and that, as witness believed
that the said girl would not marry him, nor Exequiel, he kissed her in the street, on the night of December 26, 1909, and immediately
thereafter ran toward his house.

Baltazara Rocamora stated that, while she was with Jose Laurel on the night of December 28, 1909, attending an entertainment in the
parochial building of Tanauan, the latter was successively called by Domingo Panganiban, Alfredo Yatco, and Felipe Almeda, the last
named saying: "Go along, old fellow; you are friends now." Casimiro Tapia testified that, on the morning following the alleged crime, he
visited Jose Laurel in the jail, and found him suffering from the bruises or contusions; that to cure them, he gave him one application of
tincture of arnica to apply to his injuries, which were not serious.

Benito Valencia also testified that, while the entertainment, he saw Domingo Panganiban approach Jose Laurel and tell him that Exequiel
Castillo was waiting for him downstairs to talk to him; that Laurel refused to go, as he wished to be present at the entertainment, and that
Panganiban then went away; that, soon afterwards, witness also went down, intending to return home, and, when he had been on the
ground floor of the parochial building for fifteen minutes, he saw, among the many people who were there, Exequiel Castillo and Jose
Laurel who were talking apart from a group of persons among whom he recognized Roque Castillo, Primitivo Gonzalez and Conrado
Laurel; that soon after this, witness saw Exequiel Castillo strike Jose Laurel a blow with a cane and the latter stagger and start to run,
pursued by the former, the aggressor; that at this juncture, Conrado Laurel approached Exequiel and, in turn, struck him from behind; and
that the police presently intervened in the fight, and witness left the place where it occurred.

The defendant Domingo Panganiban testified that, while he was at the entertainment that night, he noticed that it threatened to rain, and
therefore left the house to get his horse, which he had left tied to a post near the door; that, on reaching the ground floor, the brothers
Roque and Exequiel Castillo, asked him to do them the favor to call Jose Laurel, because they wished to talk to the latter, witness noticing
that the said brothers were then provided with canes; that he called Jose Laurel, but the latter said that he did not wish to go down,
because he was listening to the discourse which was then being delivered, and witness therefore went down to report the answer to the
said brothers; that while he was at the door of the parochial building waiting for the drizzle to cease, Jose Laurel and Felipe Almeda came
up to where he was, and just then Exequiel Castillo approached the former, Laurel, and they both drew aside, about 2 brazas away, to
talk; that soon afterwards, witness saw Exequiel Castillo deal Jose Laurel two blows in succession and the latter stagger and start to run,
pursued by his assailant; the latter was met by several persons who crowded about in an aimless manner, among whom witness
recognized Roque Castillo and Conrado Laurel; and that he did not see Primitivo Gonzalez nor Gaudencio Garcia at the place where the
fight occurred, although he remained where he was until a policeman was called.

Conrado Laurel, a cousin of Jose Laurel, testified that, on the night of December 28, 1909, he was in the parochial building for the purpose
of attending the entertainment; that he was then carrying a revolver, which had neither cartridges nor firing pin, for the purpose of returning
it to its owner, who was a Constabulary telegraph operator on duty in the pueblo of Tanauan; that the latter, having been informed by a
gunsmith that the said revolver could not be fixed, requested witness, when they met each other in the cockpit the previous afternoon, to
return the weapon to him during the entertainment; that, on leaving the said building to retire to his house and change his clothes, he met
Roque Castillo, his cousin and confidential friend, on the ground floor of the parochial building or convent and the latter, seeing that
witness was carrying a revolver, insisted on borrowing it, notwithstanding that witness told him that it was unserviceable; that, after he had
changed his clothes, he left his house to return to the parochial building, and near the main door of said building he found Exequiel Castillo
and Jose Laurel talking by themselves; that a few moment afterwards, he saw Exequiel strike Jose two blows with a cane that nearly
caused him to fall at full length on the ground, and that Jose immediately got up and started to run, pursued by his assailant, Exequiel;
that witness, on seeing this, gave the latter in turn a blow on the head with a cane, to stop him from pursuing Jose, witness fearing that
the pursuer, should he overtake the pursued, would kill him; that, after witness struck Exequiel Castillo with the cane, the police intervened
and arrested them; and that, among those arrested, he saw Panganiban and Vicente Garcia, and, at the place of the disturbance, Roque
Castillo and Primitivo Gonzalez.

Vicente Garcia denied having taken part in the fight. He testified that he also was attending the entertainment and, feeling warm, went
down out of the parochial building; that, upon so doing, he saw Domingo Panganiban and Jose Laurel, but was not present at the fight,
and only observed, on leaving the building, that there was a commotion; then he heard a policeman had arrested Jose Laurel.

Well-written briefs were filed in first instance, both by the prosecution and by the defense; but, notwithstanding the large number of persons
who must have been eyewitnesses to what occurred, it is certain that the prosecution was only able to present the witness, Primitivo
Gonzalez, a relative of Exequiel Castillo, to testify as to how and by whom the assault was begun.

Each one of the combatants, Exequiel Castillo and Jose Laurel accused the other of having commenced the assault. Castillo testified that
Laurel, after the exchange of few words between them, suddenly and without warning stabbed him with a knife, while Laurel swore that,
after a short conversation Castillo struck him two blows with a cane, on which account, in order to defend himself, he seized a pocketknife
he carried in his pocket. In view, therefore, of these manifest contradictions, and in order to determine the liability of the defendant, Jose
Laurel, who, it is proved, inflicted the serious wound on Exequiel Castillo, it is necessary to decide which of the two was the assailant.

Taking for granted that Jose Laurel did actually kiss Concepcion Lat in the street and in the presence of Exequiel Castillo, the girl's suitor,
and of others who were accompanying her, the first query that naturally arises in the examination of the evidence and the circumstances
connected with the occurrence, is: Who provoked the encounter between Laurel and Castillo, and the interview between the same, and
who invited the other, on the night of December 28, 1909, to come down from the parochial building of Tanauan, to the lower floor and
outside the entrance of the same? Even on this concrete point the evidence is contradictory, for, while the witnesses of Exequiel Castillo
swore that the latter was invited by Jose Laurel, those of the latter testified, in turn, that Laurel was invited three consecutive times by
three different messengers in the name and on the part of the said Castillo.

In the presence of this marked contradiction, and being compelled to inquire into the truth of the matter, we are forced to think that the
person who would consider himself aggrieved at the kiss given the girl Concepcion Lat, in the street and in the presence of several
witnesses, would undoubtedly be Exequiel Castillo, the suitor of the girl, and it would appear to be a reasonable conclusion that he himself,
highly offended at the boldness of Jose Laurel, was the person who wished to demand explanation of the offense.
Upon this premise, and having weighed and considered as a whole the testimony, circumstantial evidence, and other merits of the present
case, the conviction is acquired, by the force of probability, that the invitation, given through the medium of several individuals, came from
the man who was offended by the incident of the kiss, and that it was the perpetrator of the offense who was invited to come down from
the parochial building to the ground floor thereof to make explanations regarding the insult to the girl Lat, the real suitor of whom was at
the time the said Exequiel Castillo. All this is not mere conjecture; it is logically derived from the above related facts.

Both Jose and Exequiel were attending the entertainment that night in the upper story of the parochial building. Exequiel was the first who
went below, with his cousin, Primitivo Gonzalez, knowing the Laurel remained in the hall above, and he it was who waited for nearly half
an hour on the ground floor of the said building for the said Jose Laurel to come down. The latter was notified three times, and successively,
in the name and on the part of Exequiel Castillo, first by Domingo Panganiban, then by Alfredo Yatco and finally by Felipe Almeda--three
summonses which were necessary before Jose Laurel could be induced, after the lapse of nearly half an hour, to come down. Meanwhile,
for that space of time, Exequiel Castillo was awaiting him, undoubtedly for the purpose of demanding explanations concerning the offensive
act committed against his sweetheart. The natural course and the rigorous logic of the facts can not be arbitrarily be rejected, unless it be
shown that other entirely anomalous facts occurred.

If, in the natural order of things, the person who was deeply offended by the insult was the one who believed he had a right to demand
explanations of the perpetrator of that insult, it is quite probable that the aggrieved party was the one who, through the instrumentality of
several persons, invited the insulter to come down from the upper story of the parochial building, where he was, and make the explanations
which he believed he had a right to exact; and if this be so, Exequiel Castillo, seriously affected and offended by the insult to his sweetheart,
Concepcion Lat, must be held to be the one who brought about the encounter gave the invitation and provoked the occurrence, as shown
by his conduct in immediately going down to the entrance door of the said building and in resignedly waiting, for half an hour, for Jose
Laurel to come down.

Moreover, if the latter had provoked the encounter or interview had on the ground floor of the building, it is not understood why he delayed
in going down, nor why it became necessary to call him three times, in such manner that Exequiel Castillo had to wait for him below for
half an hour, when it is natural and logical to suppose that the provoking party or the one interested in receiving explanations would be
precisely the one who would have hastened to be in waiting at the place of the appointment; he would not have been slow or indisposed
to go down, as was the case with Jose Laurel.

If, as is true, the latter was the one who insulted the girl Concepcion Lat an insult which must deeply have affected the mind of Exequiel
Castillo, the girl's suitor at the time it is not possible to conceive, as claimed by the prosecution, how and why it should be Jose Laurel
who should seek explanations from Exequiel Castillo. It was natural and much more likely that it should have been the latter who had an
interest in demanding explanations from the man who insulted his sweetheart. In view of the behavior of the men a few moments before
the occurrence, we are of the opinion that Castillo was the first to go down to the entrance door of the parochial building, knowing that
Jose Laurel was in the hall, and, notwithstanding the state of his mind, he had the patience to wait for the said Laurel who, it appears, was
very reluctant to go down and it was necessary to call him three times before he finally did so, at the end of half an hour.

After considering these occurrences which took place before the crime, the query of course arises as to which of the two was the first to
assault the other, for each lays the blame upon his opponent for the commencement of the assault. Exequiel Castillo testified that after
he had replied to Jose Laurel that he, the witness, was not obliged to say whether he had in his possession several letters addressed by
laurel to the girl Concepcion Lat, Laurel immediately stabbed him in the breast with a knife; while Jose Laurel swore that, upon his
answering the question put to him by Castillo as to why the witness had kissed his sweetheart, saying that it was because she was very
fickle and prodigal of the word "yes" on all occasions, Exequiel said to him in reply that he ought not to act in that manner, and immediately
struck him a couple of blows on the head with a club, wherefore, in order to defend himself, he drew the knife he was carrying in his
pocket.

Were the statements made by Exequiel Castillo satisfactorily proven at the trial, it is unquestionable that Jose Laurel would be liable as
the author of the punishable act under prosecution; but, in view of the antecedents aforerelated, the conclusions reached from the
evidence, and the other merits of the case, the conclusion is certain that the assault was commenced by Exequiel Castillo, who struck
Jose Laurel two blows with a cane, slightly injuring him in two places on the head, and the assaulted man, in self-defense, wounded his
assailant with a pocketknife; therefore, Jose Laurel committed no crime and is exempt from all responsibility, as the infliction of the wounds
attended by the three requisites specified in paragraph 4, article 8 of the Penal Code.

From the evidence, then, produced at the trial, it is concluded that it was Exequiel Castillo who, through the mediation of several others,
invited Laurel to come down from the upper story of the parochial building, and that it was he, therefore, who provoked the affray
aforementioned, and, also, it was he who unlawfully assaulted Jose Laurel, by striking the latter two blows with a cane inasmuch as it is
not likely that after having received a dangerous wound in the left breast, he would have been able to strike his alleged assailant two
successive blows and much less pursue him. It is very probable that he received the said wounds after he had assaulted Jose Laurel with
the cane, and Laurel, on his part, in defending himself from the assault, employed rational means by using the knife that he carried in his
pocket.

For all the foregoing reasons, Jose Laurel must be acquitted and held to be exempt from responsibility on the ground of self-defense. The
case falls within paragraph 4 of article 8 of the Penal Code, inasmuch as the defensive act executed by him was attended by the three
requisites of illegal aggression on the part of Exequiel Castillo, there being a lack of sufficient provocation on the part of Laurel, who, as
we have said, did not provoke the occurrence complained of, nor did he direct that Exequiel Castillo be invited to come down from the
parochial building and arrange the interview in which Castillo alone was interested, and, finally, because Laurel, in defending himself with
a pocketknife against the assault made upon him with a cane, which may also be a deadly weapon, employed reasonable means to
prevent or repel the same.

Under the foregoing reasoning, the other accused, Conrado Laurel and Vicente Garcia, who likewise, were convicted as principals of the
crime under prosecution, are comprised within the provisions of paragraph 5 of the said article 8 of the Penal Code, which are as follows:

He who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural, or adopted brothers or
sisters, or of his relatives by affinity in the same degrees and those by consanguinity within the fourth civil degree, provided the first
and second circumstances mentioned in the foregoing number are attendant, and provided that in case the party attacked first gave
provocation, the defender took no part therein.

Conrado Laurel and Vicente Garcia, first cousins of Jose Laurel, as shown in the trial record to have been proven without contradiction
whatsoever, did not provoke the trouble, nor did they take any part in the invitation extended to Jose Laurel in the name of and for Exequiel
Castillo; in assisting in the fight between Castillo and Laurel, they acted in defense of their cousin, Jose Laurel, when they saw that the
latter was assaulted, twice struck and even pursued by the assailant, Castillo; consequently Conrado Laurel and Vicente Garcia have not
transgressed the law and they are exempt from all responsibility, for all the requisites of paragraph 4 of the aforecited article attended the
acts performed by them, as there was illegal aggression on the part of the wounded man, Exequiel Castillo, reasonable necessity of the
means employed to prevent or repel the said aggression on the part of the aforementioned Conrado Laurel and Vicente Garcia, who acted
in defense of their cousin, Jose Laurel, illegally assaulted by Exequiel Castillo, neither of the said codefendants having provoked the
alleged crime.

With regard to Domingo Panganiban, the only act of which he was accused by the wounded man, Exequiel Castillo, was that he struck
the latter a blow on the left side with his fist, while Castillo was pursuing Laurel.

Domingo Panganiban denied that he took part in the quarrel and stated that he kept at a distance from the combatants, until he was
arrested by a policeman. His testimony appears to be corroborated by that of Primitivo Gonzalez, a witness for the prosecution and relative
of Exequiel Castillo, for Gonzalez positively declared that Panganiban was beside him during the occurrence of the fight and when the
others surrounded the said Exequiel Castillo; it is, therefore, neither probable nor possible that Panganiban engaged in the affray, and so
he contracted no responsibility whatever.

Exequiel Castillo's wounds were very serious, but, in view of the fact that conclusive proof was adduced at the trial, of the attendance of
the requisites prescribed in Nos. 4 and 5 of article 8 of the Penal Code, in favor of those who inflicted the said wounds, it is proper to apply
to this case the provision contained in the next to the last paragraph of rule 51 of the provisional law for the application of the said code.

With respect to the classification of the crime we believe that there is no need for us to concern ourselves therewith in this decision, in
view of the findings of fact and of law made by the court below upon the question of the liability of the defendants.

By reason, therefore, of all the foregoing, we are of opinion that, with a reversal of the judgment appealed from, we should acquit, as we
do hereby, the defendants Jose Laurel, Vicente Garcia, Conrado Laurel, and Domingo Panganiban. They have committed no crime, and
we exempt them from all responsibility. The costs of both instances shall be de oficio, and the bond given in behalf of the defendants shall
immediately be canceled.
G.R. No. L-16443 March 21, 1921
THE UNITED STATES, plaintiff-appellee,
vs.
MARTINA RIVERA, defendant-appellant.

MALCOLM, J.:
When Leona Laciste endeavored to set fire to the house of Martina Rivera in which the two small children of the latter were sleeping, the
two women grappled and Leona Laciste was boloed to death by Martina Rivera. As a result, a criminal prosecution for murder was
instituted in the Court of First Instance of La Union against Martina Rivera and after due trial she was found guilty of the lesser crime of
homicide and was sentenced to eight years and one day of prison mayor, with the accessory penalties provided by article 61 of the Penal
Code, to indemnify the heirs of the deceased in the sum of P500, and to pay the costs.

Two questions are raised by the appeal. The one more fundamental in nature revolves about the point of whether or not the defendant
should be exempted from all responsibility because of having acted in defense of her person, her rights, and her descendants. The second
question is incidental in nature and relates to the finding of the court that the qualifying circumstance of cruelty, because of having
deliberately and inhumanly increase the sufferings of the offended party, was present.

Article 8 of the Penal Code exempts any one from criminal liability who acts in defense of his person or rights, provided that the following
circumstances concur:
(1) Unlawful aggression;
(2) reasonable necessity for the means employed to prevent or repel it;
(3) lack of sufficient provocation on the part of the person defending himself.
Anyone who acts in defense of the person of his descendant is similarly exempted. In our view of the case, the first and last requisites
above-mentioned concur, but the second is lacking.

A man's house is his castle. When a person is attacked in his own house, he as a right to protect it, and those within it, from the intrusion
or attack. He may repel force by force in defense of person, habitation, or property, against one who manifestly intends or endeavors by
violence or surprise to commit a felony, such as arson, upon either. In such case one is not obliged to retreat, but may pursue his adversary
until he has secured himself from danger. (People vs. Lewis [1897], 117 Cal., 186, citing East's Please of the Crown, p. 271, and Foster's
Crown Cases, chapter 3, p. 273, where the rule is well stated.)

In this instance, the accused acted in defense of her person, her home, and her children. The crime of arson was about to be committed,
and there was present the element of danger to the occupants of the habitation. But there was not present any reasonable necessity for
killing the assailant. The accused proceeded beyond the limits of immunity when, after the assailant was out of the house, and prostrate
on the ground, she persisted in wounding her no less than fourteen times. The case is, consequently, covered by article 86 of the Penal
Code.

The lower court committed an error in taking into consideration the qualifying circumstance of cruelty. The number of wounds on the body
of a deceased are not conclusive evidence of the presence of this circumstance. (U.S. vs. Palermo [1915], 31 Phil., 425; decision of the
Supreme court of Spain of December 9, 1989.) On the contrary, the evidence discloses more nearly the mitigating circumstance of passion
and obfuscation.

It is our unmistakable duty to find the defendant guilty of homicide. It is, however, just as certainly our duty to view with leniency the action
of the defendant in view of the provocative nature of the aggression. The provisions of article 86 of the Penal Code permit of the exercise
of considerable discretion by the courts.

Judgment is affirmed, with the modification that in place of eight years and one day of prison mayor, the defendant and appellant shall be
sentenced to three years of prison correccional, and shall, in addition, pay the costs of this instance. So ordered.
G.R. No. 149652 March 24, 2006
EDUARDO L. BAXINELA, Petitioner-Appellant,
vs.
THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee.
DECISION
AZCUNA, J.:

Petitioner SPO2 Eduardo L. Baxinela assails his conviction for the crime of homicide by the Regional Trial Court of Kalibo, Aklan1 (RTC)
in Criminal Case No. 4877, as affirmed with modification by the Court of Appeals (CA) in CA-G.R. CR No. 23348.

On February 19, 1997, an Information charging Baxinela with the crime of homicide was filed as follows:2

That on or about the 19th day of October , 1996, early in the morning, at Poblacion, Municipality of Kalibo, Province of Aklan, Republic
of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, while armed with a handgun, without
justifiable cause and with intent to kill, did then and there wi[l]lfully, unlawfully and feloniously attack, assault and shoot one RUPERTO
F. LAJO, thereby inflicting upon the latter mortal wounds, to wit:

"A. EXTERNAL FINDINGS:

= .56 cm entrance gunshot wound proximal third lateral aspect left arm with fracture of the left humerus.
= 1 cm exit wound proximal third medial aspect left arm.
= 1 cm entrance gunshot wound anterior axillary line 5th intercostals space left chest.
B. INTERNAL FINDINGS
= One liter of flood left thoracic cavity
= Perforated left diaphragm.
= One two liters of blood in the abdominal cavity.
= 2 point perforation stomach
= Multiple perforation small, and large intestines and mesenteries.
= (+) Retroperitonial hematoma

DIAGNOSIS: Gunshot wound left of arm with fracture of the humerus, penetrating the (L) thoracic cavity perforating the diaphragm,
abdomen, stomach and, intestines and retroperitoneum with slugs lodging the vertebral colum[n].

CAUSE OF DEATH: Cardiopulmonary arrest

Secondary to severe bleeding

Secondary to gunshot wound.

as per Autopsy Report issued by Dr. Roel A. Escanillas, Medical Officer III, Dr. Rafael S. Tumbokon Memorial Hospital, Kalibo, Aklan,
which wounds directly caused the death of RUPERTO F. LAJO, as per Certificate of Death, hereto attached as Annexes "A" and "B"
and forming part of this Information.

That as a result of the criminal acts of the accused the heirs of the deceased suffered actual and compensatory damages in the
amount of FIFTY THOUSAND PESOS (P50,000.00).

CONTRARY TO LAW.

On April 30, 1997, Baxinela was arraigned and pleaded NOT GUILTY.3 During pre-trial, Baxinela informed the RTC that he would be
claiming the justifying circumstance of self-defense.4 In accordance with the Rules of Criminal Procedure, the defense was the first to
present evidence.5

The first witness for the defense was Insp. Joel Regimen.6 He testified that on October 19, 1996, at about 12:35 a.m., he and Baxinela
were walking along Toting Reyes Street in Kalibo, Aklan when they were approached by a civilian named Romy Manuba who informed
them of a drunken person drawing a gun and creating trouble inside the Playboy Disco Pub located on the second floor of the Kingsmen
building.7 They immediately proceeded to the reported place and, upon arrival, recognized a former colleague, SPO4 Legarda, who was
with a companion. Legarda invited them to his table and the two obliged. Later, while seated at the table, they saw someone with a
handgun visibly tucked at the back of his waist about 4 meters away. Regimen then instructed Baxinela to take a closer look at this person
while he makes a call to the Kalibo police station but before Regimen could stand up, the man with a gun started to walk towards the door.
As he passed by their table, Baxinela stood up, introduced himself as a policeman and asked the man why he had a gun with him. The
man did not respond and, instead, suddenly drew out his gun. Baxinela then drew his sidearm and was able to fire first, hitting the man
on his upper left arm. When the man fell down, Baxinela took his gun and wallet and handed them over to Regimen. Regimen then stated
that he enlisted the services of the pubs security guard to bring the wounded man to the hospital while he and Baxinela proceeded to the
Kalibo Police Station and reported the matter to SPO4 Salvador Advincula. They also went to Camp Pastor Martelino to report the matter
to the Officer-in-Charge, Col. Bianson.
The second witness for the defense was Romy Manuba,8 who testified that on October 19, 1996, at around 12:30 a.m., he was on the
second floor of the Kingsmen building drinking liquor. While inside, he saw a drunken man wearing a white polo shirt accosting several
persons with a gun. Fearing the man with the gun, he left the place to go home. On his way home he saw Regimen and Baxinela and he
reported to them what he had seen earlier.

The third witness for the defense was SPO4 Nepomuceno Legarda (Ret.).9 He testified that on October 18, 1996, at about 11:00 p.m.,
he was inside the Superstar Disco Pub drinking beer with a companion named Toto Dalida. At about 12:40 a.m., Legarda saw Regimen
and Baxinela enter the pub and he invited them over to his table. Later, as they were seating on the table, he noticed Regimen whisper
something to Baxinela and, at the same time, pointing to a man with a handgun visibly tucked at the back of his waist. He then observed
the armed person heading for the door. But as he passed by their table Baxinela stood up, approached the man from behind and said
"Why do you have a gun. I am a policeman." The man did not reply and, instead, turned around and drew his gun. As the man was turning,
Baxinela also drew his gun and was able to fire first, hitting the man on his left arm. After the man fell on the floor, Baxinela grabbed the
other mans firearm and handed it over to Regimen. Regimen then requested one of the security guards to transport the wounded man to
the hospital. Regimen and Baxinela then proceeded to the Kalibo Police Station while Legarda and Dalida went home.

Baxinela took the witness stand as the last witness for the defense.10 He testified that he and Regimen were walking along Toting Reyes
Street, looking for a tricycle to take them home, when they were met by Manuba. Manuba reported to them that there was an armed
person, drunk inside the Superstar Disco Pub and creating trouble. They then proceeded to the pub to verify the report. Once there, they
saw Legarda occupying a table near the entrance with a companion named Toto Dalida. Legarda invited them to sit at his table. As they
were sitting down, Regimen whispered to him that there was a man with a gun tucked at the back of his waist and told him to watch that
person while he tries to look for a telephone to call the Kalibo Police Station. As Regimen was about to stand, the armed man started to
walk towards the entrance. When he passed their table, Baxinela stood up, introduced himself as a policeman and asked why he had a
gun. The man did not respond but turned to face Baxinela, drawing his gun. Baxinela immediately drew his firearm and beat him to the
draw, hitting the man on his left arm. When the man fell to the floor, Baxinela picked up the mans gun and handed it over to Regimen.
Baxinela also took his wallet for identification. Regimen then told one of the security guards to bring the wounded man to the hospital.
Thereafter, Baxinela and Regimen went to the Kalibo Police Station to report the incident and turned over the wallet. Next, they proceeded
to Camp Pastor Martelino and also reported the incident to Col. Bianson.

To rebut the claim of self-defense, the prosecution presented as its first witness, Abelardo Alvarez.11 Alvarez was a security guard
assigned to the Kingsmen building during the incident in question. He testified that he was already acquainted with Baxinela and that he
saw him, together with Legarda and Regimen, already in the Superstar Disco Pub as early as 11:00 p.m. of October 18, 1996 drinking. At
around 12:00 a.m. to 12:30 a.m. there was a minor altercation between the deceased Sgt. Lajo and another customer at the pub but
eventually the two were able to patch things up. Lajo was then on his way out when Baxinela followed Lajo with a gun already drawn out.
Then, from behind, Baxinela held Lajos left arm and said "Ano ka hay? Mam-an may baril ka?"12 He then heard Lajo respond "I am a
MIG, Pare" after that Alvarez heard an explosion coming from Baxinelas gun. Baxinela then got a gun from Lajos waist and handed it
over to Regimen. Afterwards Baxinela held both of Lajos arms, who was still standing, and pushed him against the wall and repeated his
question. Lajo answered "Why did you shoot me? I am also a military." At this point Lajo got out his wallet and gave it to Baxinela. Baxinela
opened the wallet and looked at an ID. Afterwards Baxinela and Regimen just left and did nothing to aid Lajo. Alvarez and his fellow
security guard, Rolando Gabriel, then picked up Lajo and boarded him on a tricycle. Gabriel brought him to the hospital, while Alvarez
remained at his post.

The second witness of the prosecution was Rolando Gabriel.13 Gabriel substantially corroborated the testimony of Alvarez on what
occurred on the night in question. He testified that he noticed the presence of Lajo inside the pub at around 10:30 p.m. of October 18,
1996 while he first saw Baxinela, Regimen and Legarda there as early as 11:00 p.m. At around 12:45 a.m., he witnessed Lajo going
towards the entrance of the pub where Baxinela was already standing and holding a .45 caliber pistol. Baxinela approached Lajo from
behind and held his left shoulder asking "Who are you?" Lajo responded "I am MIG." Afterwards he was shot by Baxinela. Baxinela then
got Lajos gun from his waist and gave it to Regimen. Thereafter, Baxinela, with both hands, pushed Lajo against the wall and again asked
"What are you?" Lajo got his wallet from his back pocket and handed it over to Baxinela. After opening the wallet Baxinela and Regimen
left the disco pub. Lajo, still standing, took two steps and then fell down. Gabriel and Alvarez then picked Lajo up and carried him to a
tricycle which took him to the hospital. Gabriel also stated that ten minutes before the shooting incident there was another incident where
Lajo accosted some customer but afterwards he saw that the two shook hands and embraced each other.

The third witness for the prosecution was Salvador Advincula, the PNP Desk Officer who entered in the police blotter the incident that
occurred in Superstar Disco Pub. He also testified on the events that occurred inside the precinct wherein the gun of Lajo accidentally fell
on the table and fired.

The last witness for the prosecution was the wife of Lajo, Janet O. Lajo, who testified as to damages.14

As a sur-rebuttal witness, the defense presented Ronald Nahil who testified that he was on the ground floor of Kingsmen building with
Alvarez and Gabriel when they heard a shot ring out from the second floor.15

After receiving all of the evidence, the RTC found the version of the prosecution, that Baxinela shot Lajo as the latter was turning around
and without having drawn his gun, more convincing, and rendered a decision convicting Baxinela. The RTC, however, considered in favor
of Baxinela the mitigating circumstances of voluntary surrender and provocation. The dispositive portion of the decision is as follows:16
 WHEREFORE, the court finds the accused SPO2 EDUARDO BAXINELA guilty beyond reasonable doubt of the crime of Homicide,
and considering the mitigating circumstances of voluntary surrender and provocation, and applying the Indeterminate Sentence Law,
he is hereby sentenced to suffer the penalty of imprisonment of 4 years of prision correccional medium as minimum, to 8 years and 1
day of prision mayor medium as maximum.

The accused is further ordered to pay a) the sum of P50,000.00 as civil indemnity for the death of Sgt. Ruperto F. Lajo; b) then sum
of P81,000.00 as actual and compensatory damages; and c) the sum of P30,000.00 as moral damages; plus costs of suit.SO
ORDERED.

On appeal, the CA modified Baxinelas conviction by disallowing the mitigating circumstance of sufficient provocation. Accordingly, the
dispositive portion of the appellate courts decision reads as follows:17

IN LIGHT OF ALL THE FOREGOING, the Decision appealed from finding the Appellant guilty beyond reasonable doubt of the crime
charged is AFFIRMED, with the MODIFICATION, that the Appellant is hereby meted an indeterminate penalty of from EIGHT (8)
YEARS and ONE (1) DAY OF Prision Mayor, as Minimum, to TWELVE (12) YEARS, TEN (10) MONTHS and TWENTY ONE (21)
DAYS of Reclusion Temporal, as Maximum.

SO ORDERED.

Baxinela filed the present petition for review on certiorari citing the following grounds:

A. THAT THE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ERRED IN GIVING CREDENCE TO THE VERSION OF
THE PROSECUTION.
B. THAT THE COURT OF APPEALS ERRED IN DENYING THE JUSTIFYING CIRCUMSTANCES OF SELF DEFENSE OR IN THE
ALTERNATIVE THE LAWFUL PERFORMANCE OF OFFICIAL DUTY UNDER ARTICLE 11 PARAGRAPHS 1 AND 5,
RESPECTIVELY, OF THE REVISED PENAL CODE.
C. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN CONVICTING THE ACCUSED.
D. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN NOT CONSIDERING THE QUALIFIED
MITIGATING CIRCUMSTANCES IN FAVOR OF THE ACCUSED.

Resolution of the petition will entail an initial determination of which version of the incident will be accepted. The defense alleges that
Baxinela proceeded to the Superstar Disco Pub in response to the information given by Manuba that there was an armed drunken man
accosting several people inside the pub. Once they arrived, they saw Lajo with a handgun visibly tucked behind his waist. When Baxinela
introduced himself as a policeman and asked why he had a handgun, Lajo suddenly drew on him prompting Baxinela to pull out his gun
and fire upon Lajo, critically wounding him. Thereafter, the defense claims that Regimen ordered the security guards to bring Lajo to the
hospital while they proceed to the police station to report the incident.

The prosecution, on the other hand, contends that Baxinela was already in the pub drinking with Regimen and Legarda for more than a
couple of hours prior to the shooting incident. After witnessing an altercation between Lajo and another customer, Baxinela decided to
confront Lajo on why he had a gun with him. Baxinela approached Lajo from behind and held the latter on the left shoulder with one hand
while holding on to his .45 caliber service firearm with the other. As Lajo was turning around, to see who was confronting him, Baxinela
shot him. Baxinela then got Lajos wallet and fled the scene with Regimen.

As mentioned, the RTC and CA accepted the prosecutions version. The Court finds no reason to disturb such findings. Factual findings
of the trial court, when adopted and confirmed by the CA, are final and conclusive unless circumstances are present that would show that
the lower courts have overlooked, misunderstood or misconstrued cogent facts that may alter the outcome of the case.18 It does not
appear that the conclusions that led to the conviction of Baxinela were arbitrarily reached by the lower courts and Baxinela has failed to
point out any relevant circumstance that would convince the Court that a re-examination of the facts is warranted. On the contrary,
Baxinelas version is challenged by his own contradicting testimony and other documentary evidence. Early in his testimony, Baxinela
maintained that Lajo had already pulled his handgun and was aiming at him when he fired:

Q. What else did you do after identifying yourself as a policeman and ask[ing] why he has a gun?
A. He did not respond.
Q. What else happened if anything happened?
A. He immediately drew his gun turning towards me and aimed it at me.19

Subsequently, when the trial court propounded clarificatory questions, Baxinelas new assertion was that the firearm was still at the back
of Lajo:
Q. At the moment that you fired, was he already able to dr[a]w his firearm or not yet?
A. Yes sir, already pulled out but still at the back.20

Furthermore, the follow-up investigation conducted by the police yielded a different picture of what happened. This was entered into the
police records as Entry No. 3359 and it reads in part: 21
 x x x SPO2 Eduardo Baxinela accosted the victim why he ha[d] in his possession a firearm and when the victim SGT Ruperto Lajo
PA was about to get his wallet on his back pocket for his ID, SPO2 Eduardo Baxinela anticipated that the victim was drawing his
firearm on his waist prompting said policeman to shoot the victim. x x x

The Court now proceeds to determine if, following the prosecutions version of what happened, Baxinela can claim the justifying
circumstances of self-defense and fulfillment of a duty or lawful exercise of a right or office.

The requisites for self-defense are:

1) unlawful aggression on the part of the victim;
2) lack of sufficient provocation on the part of the accused; and
3) employment of reasonable means to prevent and repel and aggression.22

By invoking self-defense, Baxinela, in effect, admits killing Lajo, thus shifting upon him the burden of the evidence on these elements.

The first requisite is an indispensable requirement of self-defense. It is a condition sine qua non, without which there can be no self-
defense, whether complete or incomplete.23 On this requisite alone, Baxinelas defense fails. Unlawful aggression contemplates an actual,
sudden and unexpected attack on the life and limb of a person or an imminent danger thereof, and not merely a threatening or intimidating
attitude.24 The attack must be real, or at least imminent. Mere belief by a person of an impending attack would not be sufficient. As the
evidence shows, there was no imminent threat that necessitated shooting Lajo at that moment. Just before Baxinela shot Lajo, the former
was safely behind the victim and holding his arm. It was Lajo who was at a disadvantage. In fact, it was Baxinela who was the aggressor
when he grabbed Lajos shoulder and started questioning him. And when Lajo was shot, it appears that he was just turning around to face
Baxinela and, quite possibly, reaching for his wallet. None of these acts could conceivably be deemed as unlawful aggression on the part
of Lajo.

Next, we consider the alternative defense of fulfillment of a duty. In order to avail of this justifying circumstance it must be shown that:
1) the accused acted in the performance of a duty or in the lawful exercise of a right or office; and
2) the injury caused or the offense committed is the necessary consequence of the due performance of duty or the lawful exercise of a
right or office.25

While the first condition is present, the second is clearly lacking. Baxinelas duty was to investigate the reason why Lajo had a gun tucked
behind his waist in a public place. This was what Baxinela was doing when he confronted Lajo at the entrance, but perhaps through
anxiety, edginess or the desire to take no chances, Baxinela exceeded his duty by firing upon Lajo who was not at all resisting. The
shooting of Lajo cannot be considered due performance of a duty if at that time Lajo posed no serious threat or harm to Baxinela or to the
civilians in the pub.

Essentially, Baxinela is trying to convince the Court that he should be absolved of criminal liability by reason of a mistake of fact, a doctrine
first enunciated in United States v. Ah Chong.26 It was held in that case that a mistake of fact will exempt a person from criminal liability
so long as the alleged ignorance or mistake of fact was not due to negligence or bad faith. In examining the circumstances attendant in
the present case, the Court finds that there was negligence on the part of Baxinela. Lajo, when he was shot, was simply turning around
to see who was accosting him. Moreover, he identified himself saying "I am MIG." These circumstances alone would not lead a reasonable
and prudent person to believe that Baxinelas life was in peril. Thus, his act of shooting Lajo, to the mind of this Court, constitutes clear
negligence. But even if the Court assumes that Lajos actions were aggressive enough to appear that he was going for his gun, there
were a number of procedures that could have been followed in order to avoid a confrontation and take control of the situation. Baxinela,
whom the Court assumes not to be a rookie policeman, could have taken precautionary measures by simply maintaining his hold on to
Lajos shoulders, keeping Lajo facing away from him, forcing Lajo to raise his hands and then take Lajos weapon. There was also Regimen
who should have assisted Baxinela in disabling and disarming Lajo. The events inside the disco pub that unnecessarily cost the life of
Lajo did not have to happen had Baxinela not been negligent in performing his duty as a police officer.

The Court will, however, attribute to Baxinela the incomplete defense of fulfillment of a duty as a privileged mitigating circumstance. In
Lacanilao v. Court of Appeals,27 it was held that if the first condition is fulfilled but the second is wanting, Article 69 of the Revised Penal
Code is applicable so that the penalty lower than one or two degrees than that prescribed by law shall be imposed.28 Accordingly, the
Court grants in favor of Baxinela a privileged mitigating circumstance and lower his penalty by one degree. His entitlement to the ordinary
mitigating circumstance of voluntary surrender is also recognized, thereby further reducing his penalty to its minimum.

The Court commiserates with our policemen who regularly thrust their lives in zones of danger in order to maintain peace and order and
acknowledges the apprehensions faced by their families whenever they go on duty. But the use of unnecessary force or wanton violence
is not justified when the fulfillment of their duty as law enforcers can be effected otherwise. A "shoot first, think later" attitude can never be
countenanced in a civilized society.

WHEREFORE, the decision of the Court of Appeals is MODIFIED. The conviction of appellant Eduardo Baxinela for the crime of homicide
is AFFIRMED but his sentence is reduced to an indeterminate penalty of four (4) years and two (2) months of prision correccional medium,
as minimum, to eight (8) years of prision mayor minimum, as maximum. The awards of damages are affirmed. No costs.

SO ORDERED.
G.R. No. 148431 July 28, 2005
SPO2 RUPERTO CABANLIG, Petitioners,
vs.
SANDIGANBAYAN and OFFICE OF THE SPECIAL PROSECUTOR, Respondents.
DECISION
CARPIO, J.:

The Case

This petition for review1 seeks to reverse the Decision2 of the Fifth Division of the Sandiganbayan dated 11 May 1999 and Resolution3
dated 2 May 2001 affirming the conviction of SPO2 Ruperto Cabanlig ("Cabanlig") in Criminal Case No. 19436 for homicide. The
Sandiganbayan sentenced Cabanlig to suffer the indeterminate penalty of four months of arresto mayor as minimum to two years and
four months of prision correctional as maximum and to pay 50,000 to the heirs of Jimmy Valino ("Valino"). Cabanlig shot Valino after
Valino grabbed the M16 Armalite of another policeman and tried to escape from the custody of the police. The Sandiganbayan acquitted
Cabanligs co-accused, SPO1 Carlos Padilla ("Padilla"), PO2 Meinhart Abesamis ("Abesamis"), SPO2 Lucio Mercado ("Mercado") and
SPO1 Rady Esteban (Esteban").

The Charge

Cabanlig, Padilla, Abesamis, Mercado and Esteban were charged with murder in an amended information that reads as follows:

That on or about September 28, 1992, in the Municipality of Penaranda, Province of Nueva Ecija, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, SPO[2] Ruperto C. Cabanlig, SPO1 Carlos E. Padilla, PO2 Meinhart C. Abesamis,
SPO2 Lucio L. Mercado and SPO1 Rady S. Esteban, all public officers being members of the Philippine National Police, conspiring and
confederating and mutually helping one another, with intent to kill, with treachery and evident premeditation, taking advantage of nighttime
and uninhabited place to facilitate the execution of the crime, with use of firearms and without justifiable cause, did then and there, wilfully,
unlawfully and feloniously attack, assault and shoot one Jimmy Valino, hitting him several times at the vital parts of his body, thereby
inflicting upon the latter, serious and mortal wounds which were the direct and immediate cause of his death, which crime was committed
by the accused in relation to their office as members of the Philippine National Police of Penaranda, Nueva Ecija, the deceased, who was
then detained for robbery and under the custody of the accused, having been killed while being taken to the place where he allegedly
concealed the effects of the crime, to the damage and prejudice of the heirs of said victim, in such amount as may be awarded under the
provisions of the New Civil Code.
CONTRARY TO LAW.4

Arraignment and Plea

On 15 December 1993, the accused police officers Cabanlig, Padilla, Abesamis, Mercado and Esteban pleaded not guilty.

Version of the Prosecution

On 24 September 1992 a robbery occurred in the Municipality of Penaranda, Nueva Ecija. Four days later or on 28 September 1992, the
investigating authorities apprehended three suspects: Jordan Magat ("Magat"), Randy Reyes ("Reyes") and Valino. The police recovered
most of the stolen items. However, a flower vase and a small radio were still missing. Cabanlig asked the three suspects where these two
items were. Reyes replied that the items were at his house.

Cabanlig asked his colleagues, Padilla, Mercado, Abesamis and Esteban, to accompany him in retrieving the flower vase and radio.
Cabanlig then brought out Reyes and Magat from their cell, intending to bring the two during the retrieval operation. It was at this point
that Valino informed Cabanlig that he had moved the vase and radio to another location without the knowledge of his two cohorts. Cabanlig
decided instead to bring along Valino, leaving behind Magat and Reyes.

Around 6:30 p.m., five fully armed policemen in uniform Cabanlig, Padilla, Mercado, Abesamis and Esteban escorted Valino to
Barangay Sinasahan, Nueva Ecija to recover the missing flower vase and radio. The policemen and Valino were aboard a police vehicle,
an Isuzu pick-up jeep. The jeep was built like an ordinary jeepney. The rear end of the jeep had no enclosure. A metal covering separated
the drivers compartment and main body of the jeep. There was no opening or door between the two compartments of the jeep. Inside the
main body of the jeep, were two long benches, each of which was located at the left and right side of the jeep.

Cabanlig, Mercado and Esteban were seated with Valino inside the main body of the jeep. Esteban was right behind Abesamis at the left
bench. Valino, who was not handcuffed, was between Cabanlig and Mercado at the right bench. Valino was seated at Cabanligs left and
at Mercados right. Mercado was seated nearest to the opening of the rear of the jeep.

Just after the jeep had crossed the Philippine National Railway bridge and while the jeep was slowly negotiating a bumpy and potholed
road, Valino suddenly grabbed Mercados M16 Armalite and jumped out of the jeep. Valino was able to grab Mercados M16 Armalite
when Mercado scratched his head and tried to reach his back because some flying insects were pestering Mercado. Mercado shouted
"hoy!" when Valino suddenly took the M16 Armalite. Cabanlig, who was then facing the rear of the vehicle, saw Valinos act of taking away
the M16 Armalite. Cabanlig acted immediately. Without issuing any warning of any sort, and with still one foot on the running board,
Cabanlig fired one shot at Valino, and after two to three seconds, Cabanlig fired four more successive shots. Valino did not fire any shot.

The shooting happened around 7:00 p.m., at dusk or "nag-aagaw ang dilim at liwanag." Cabanlig approached Valinos body to check its
pulse. Finding none, Cabanlig declared Valino dead. Valino sustained three mortal wounds one at the back of the head, one at the left
side of the chest, and one at the left lower back. Padilla and Esteban remained with the body. The other three policemen, including
Cabanlig, went to a funeral parlor.

The following morning, 29 September 1992, a certain SPO4 Segismundo Lacanilao ("Lacanilao") of the Cabanatuan Police went to
Barangay Sinasahan, Nueva Ecija to investigate a case. Lacanilao met Mercado who gave him instructions on how to settle the case that
he was handling. During their conversation, Mercado related that he and his fellow policemen "salvaged" (summarily executed) a person
the night before. Lacanilao asked who was "salvaged." Mercado answered that it was "Jimmy Valino." Mercado then asked Lacanilao why
he was interested in the identity of the person who was "salvaged." Lacanilao then answered that "Jimmy Valino" was his cousin. Mercado
immediately turned around and left.

Version of the Defense

Cabanlig admitted shooting Valino. However, Cabanlig justified the shooting as an act of self-defense and performance of duty. Mercado
denied that he told Lacanilao that he and his co-accused "salvaged" Valino. Cabanlig, Mercado, Abesamis, Padilla, and Esteban denied
that they conspired to kill Valino.

The Sandiganbayans Ruling

The Sandiganbayan acquitted Padilla, Abesamis, Mercado and Esteban as the court found no evidence that the policemen conspired to
kill or summarily execute Valino. Since Cabanlig admitted shooting Valino, the burden is on Cabanlig to establish the presence of any
circumstance that would relieve him of responsibility or mitigate the offense committed.

The Sandiganbayan held that Cabanlig could not invoke self-defense or defense of a stranger. The only defense that Cabanlig could
properly invoke in this case is fulfillment of duty. Cabanlig, however, failed to show that the shooting of Valino was the necessary
consequence of the due performance of duty. The Sandiganbayan pointed out that while it was the duty of the policemen to stop the
escaping detainee, Cabanlig exceeded the proper bounds of performing this duty when he shot Valino without warning.

The Sandiganbayan found no circumstance that would qualify the crime to murder. Thus, the Sandiganbayan convicted Cabanlig only of
homicide. The dispositive portion of the decision reads:

WHEREFORE, premises considered, accused CARLOS ESTOQUE PADILLA, MEINHART CRUZ ABESAMIS, LUCIO LADIGNON
MERCADO and RADY SALAZAR ESTEBAN are hereby ACQUITTED of the crime charged. Accused RUPERTO CONCEPCION
CABANLIG is found GUILTY beyond reasonable doubt of the crime of Homicide and is hereby sentenced to suffer the indeterminate
sentence of FOUR (4) MONTHS of arresto mayor, as minimum, to TWO (2) YEARS and FOUR (4) MONTHS of prision correccional,
as maximum. He is further ordered to pay the heirs of Jimmy Valino the amount of FIFTY THOUSAND (50,000.00) PESOS, and the
costs.

SO ORDERED.5

On motion for reconsideration, Associate Justice Anacleto D. Badoy Jr. ("Associate Justice Badoy") dissented from the decision. Associate
Justice Badoy pointed out that there was imminent danger on the lives of the policemen when Valino grabbed the "infallible Armalite"6
from Mercado and jumped out from the rear of the jeep. At a distance of only three feet from Cabanlig, Valino could have sprayed the
policemen with bullets. The firing of a warning shot from Cabanlig was no longer necessary. Associate Justice Badoy thus argued for
Cabanligs acquittal.

In a vote of four to one, the Sandiganbayan affirmed the decision.7 The dispositive portion of the Resolution reads:

WHEREFORE, for lack of merit, the motion for reconsideration is hereby DENIED.8

The Issues

Cabanlig raises the following issues in his Memorandum:

WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT THE DEFENSE OF FULFILLMENT OF DUTY PUT UP BY CABANLIG
WAS INCOMPLETE
WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT CABANLIG COULD NOT INVOKE SELF-DEFENSE/DEFENSE OF
STRANGER TO JUSTIFY HIS ACTIONS
 WHETHER THE SANDIGANBAYAN ERRED IN SENTENCING CABANLIG TO SUFFER IMPRISONMENT AND IN ORDERING HIM
TO PAY THE AMOUNT OF 50,000 TO THE HEIRS OF VALINO9

The Courts Ruling

The petition has merit. We rule for Cabanligs acquittal.

Applicable Defense is Fulfillment of Duty

We first pass upon the issue of whether Cabanlig can invoke two or more justifying circumstances. While there is nothing in the law that
prevents an accused from invoking the justifying circumstances or defenses in his favor, it is still up to the court to determine which
justifying circumstance is applicable to the circumstances of a particular case.

Self-defense and fulfillment of duty operate on different principles.10 Self-defense is based on the principle of self-preservation from mortal
harm, while fulfillment of duty is premised on the due performance of duty. The difference between the two justifying circumstances is
clear, as the requisites of self-defense and fulfillment of duty are different.

The elements of self-defense are as follows:

a) Unlawful Aggression;
b) Reasonable necessity of the means employed to prevent or repel it;
c) Lack of sufficient provocation on the part of the person defending himself.11

On the other hand, the requisites of fulfillment of duty are:

1. The accused acted in the performance of a duty or in the lawful exercise of a right or office;
2. The injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise
of such right or office.12

A policeman in the performance of duty is justified in using such force as is reasonably necessary to secure and detain the offender,
overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm.13 In case injury or death
results from the policemans exercise of such force, the policeman could be justified in inflicting the injury or causing the death of the
offender if the policeman had used necessary force. Since a policemans duty requires him to overcome the offender, the force exerted
by the policeman may therefore differ from that which ordinarily may be offered in self-defense.14 However, a policeman is never justified
in using unnecessary force or in treating the offender with wanton violence, or in resorting to dangerous means when the arrest could be
affected otherwise.15

Unlike in self-defense where unlawful aggression is an element, in performance of duty, unlawful aggression from the victim is not a
requisite. In People v. Delima,16 a policeman was looking for a fugitive who had several days earlier escaped from prison. When the
policeman found the fugitive, the fugitive was armed with a pointed piece of bamboo in the shape of a lance. The policeman demanded
the surrender of the fugitive. The fugitive lunged at the policeman with his bamboo lance. The policeman dodged the lance and fired his
revolver at the fugitive. The policeman missed. The fugitive ran away still holding the bamboo lance. The policeman pursued the fugitive
and again fired his revolver, hitting and killing the fugitive. The Court acquitted the policeman on the ground that the killing was done in
the fulfillment of duty.

The fugitives unlawful aggression in People v. Delima had already ceased when the policeman killed him. The fugitive was running away
from the policeman when he was shot. If the policeman were a private person, not in the performance of duty, there would be no self-
defense because there would be no unlawful aggression on the part of the deceased.17 It may even appear that the public officer acting
in the fulfillment of duty is the aggressor, but his aggression is not unlawful, it being necessary to fulfill his duty.18

While self-defense and performance of duty are two distinct justifying circumstances, self-defense or defense of a stranger may still be
relevant even if the proper justifying circumstance in a given case is fulfillment of duty. For example, a policemans use of what appears
to be excessive force could be justified if there was imminent danger to the policemans life or to that of a stranger. If the policeman used
force to protect his life or that of a stranger, then the defense of fulfillment of duty would be complete, the second requisite being present.

In People v. Lagata,19 a jail guard shot to death a prisoner whom he thought was attempting to escape. The Court convicted the jail guard
of homicide because the facts showed that the prisoner was not at all trying to escape. The Court declared that the jail guard could only
fire at the prisoner in self-defense or if absolutely necessary to avoid the prisoners escape.

In this case, Cabanlig, Padilla, Abesamis, Mercado and Esteban were in the performance of duty as policemen when they escorted Valino,
an arrested robber, to retrieve some stolen items. We uphold the finding of the Sandiganbayan that there is no evidence that the policemen
conspired to kill or summarily execute Valino. In fact, it was not Valino who was supposed to go with the policemen in the retrieval
operations but his two other cohorts, Magat and Reyes. Had the policemen staged the escape to justify the killing of Valino, the M16
Armalite taken by Valino would not have been loaded with bullets.20 Moreover, the alleged summary execution of Valino must be based
on evidence and not on hearsay.
Undoubtedly, the policemen were in the legitimate performance of their duty when Cabanlig shot Valino. Thus, fulfillment of duty is the
justifying circumstance that is applicable to this case. To determine if this defense is complete, we have to examine if Cabanlig used
necessary force to prevent Valino from escaping and in protecting himself and his co-accused policemen from imminent danger.

Fulfillment of Duty was Complete, Killing was Justified

The Sandiganbayan convicted Cabanlig because his defense of fulfillment of duty was found to be incomplete. The Sandiganbayan
believed that Cabanlig "exceeded the fulfillment of his duty when he immediately shot Valino without issuing a warning so that the latter
would stop.21

We disagree with the Sandiganbayan.

Certainly, an M16 Armalite is a far more powerful and deadly weapon than the bamboo lance that the fugitive had run away with in People
v. Delima. The policeman in People v. Delima was held to have been justified in shooting to death the escaping fugitive because the
policeman was merely performing his duty.

In this case, Valino was committing an offense in the presence of the policemen when Valino grabbed the M16 Armalite from Mercado
and jumped from the jeep to escape. The policemen would have been justified in shooting Valino if the use of force was absolutely
necessary to prevent his escape.22 But Valino was not only an escaping detainee. Valino had also stolen the M16 Armalite of a policeman.
The policemen had the duty not only to recapture Valino but also to recover the loose firearm. By grabbing Mercados M16 Armalite, which
is a formidable firearm, Valino had placed the lives of the policemen in grave danger.

Had Cabanlig failed to shoot Valino immediately, the policemen would have been sitting ducks. All of the policemen were still inside the
jeep when Valino suddenly grabbed the M16 Armalite. Cabanlig, Mercado and Esteban were hemmed in inside the main body of the jeep,
in the direct line of fire had Valino used the M16 Armalite. There would have been no way for Cabanlig, Mercado and Esteban to secure
their safety, as there were no doors on the sides of the jeep. The only way out of the jeep was from its rear from which Valino had jumped.
Abesamis and Padilla who were in the drivers compartment were not aware that Valino had grabbed Mercados M16 Armalite. Abesamis
and Padilla would have been unprepared for Valinos attack.

By suddenly grabbing the M16 Armalite from his unsuspecting police guard, Valino certainly did not intend merely to escape and run away
as far and fast as possible from the policemen. Valino did not have to grab the M16 Armalite if his sole intention was only to flee from the
policemen. If he had no intention to engage the policemen in a firefight, Valino could simply have jumped from the jeep without grabbing
the M16 Armalite. Valinos chances of escaping unhurt would have been far better had he not grabbed the M16 Armalite which only
provoked the policemen to recapture him and recover the M16 Armalite with greater vigor. Valinos act of grabbing the M16 Armalite
clearly showed a hostile intention and even constituted unlawful aggression.

Facing imminent danger, the policemen had to act swiftly. Time was of the essence. It would have been foolhardy for the policemen to
assume that Valino grabbed the M16 Armalite merely as a souvenir of a successful escape. As we have pointed out in Pomoy v. People23:

Again, it was in the lawful performance of his duty as a law enforcer that petitioner tried to defend his possession of the weapon when
the victim suddenly tried to remove it from his holster. As an enforcer of the law, petitioner was duty-bound to prevent the snatching
of his service weapon by anyone, especially by a detained person in his custody. Such weapon was likely to be used to facilitate
escape and to kill or maim persons in the vicinity, including petitioner himself.

The Sandiganbayan, however, ruled that despite Valinos possession of a deadly firearm, Cabanlig had no right to shoot Valino without
giving Valino the opportunity to surrender. The Sandiganbayan pointed out that under the General Rules of Engagement, the use of force
should be applied only as a last resort when all other peaceful and non-violent means have been exhausted. The Sandiganbayan held
that only such necessary and reasonable force should be applied as would be sufficient to conduct self-defense of a stranger, to subdue
the clear and imminent danger posed, or to overcome resistance put up by an offender.

The Sandiganbayan had very good reasons in steadfastly adhering to the policy that a law enforcer must first issue a warning before he
could use force against an offender. A law enforcers overzealous performance of his duty could violate the rights of a citizen and worse
cost the citizens life. We have always maintained that the judgment and discretion of public officers, in the performance of their duties,
must be exercised neither capriciously nor oppressively, but within the limits of the law.24 The issuance of a warning before a law enforcer
could use force would prevent unnecessary bloodshed. Thus, whenever possible, a law enforcer should employ force only as a last resort
and only after issuing a warning.

However, the duty to issue a warning is not absolutely mandated at all times and at all cost, to the detriment of the life of law enforcers.
The directive to issue a warning contemplates a situation where several options are still available to the law enforcers. In exceptional
circumstances such as this case, where the threat to the life of a law enforcer is already imminent, and there is no other option but to use
force to subdue the offender, the law enforcers failure to issue a warning is excusable.
In this case, the embattled policemen did not have the luxury of time. Neither did they have much choice. Cabanligs shooting of Valino
was an immediate and spontaneous reaction to imminent danger. The weapon grabbed by Valino was not just any firearm. It was an M16
Armalite.

The M16 Armalite is an assault rifle adopted by the United Sates ("US") Army as a standard weapon in 1967 during the Vietnam War.25
The M16 Armalite is still a general-issue rifle with the US Armed Forces and US law enforcement agencies.26 The M16 Armalite has both
semiautomatic and automatic capabilities.27 It is 39 inches long, has a 30-round magazine and fires high-velocity .223-inch (5.56-mm)
bullets.28 The M16 Armalite is most effective at a range of 200 meters29 but its maximum effective range could extend as far as 400
meters.30 As a high velocity firearm, the M16 Armalite could be fired at close range rapidly or with much volume of fire.31 These features
make the M16 Armalite and its variants well suited for urban and jungle warfare.32

The M16 Armalite whether on automatic or semiautomatic setting is a lethal weapon. This high-powered firearm was in the hands of an
escaping detainee, who had sprung a surprise on his police escorts bottled inside the jeep. A warning from the policemen would have
been pointless and would have cost them their lives.

For what is the purpose of a warning? A warning is issued when policemen have to identify themselves as such and to give opportunity
to an offender to surrender. A warning in this case was dispensable. Valino knew that he was in the custody of policemen. Valino was
also very well aware that even the mere act of escaping could injure or kill him. The policemen were fully armed and they could use force
to recapture him. By grabbing the M16 Armalite of his police escort, Valino assumed the consequences of his brazen and determined act.
Surrendering was clearly far from Valinos mind.

At any rate, Valino was amply warned. Mercado shouted "hoy" when Valino grabbed the M16 Armalite. Although Cabanlig admitted that
he did not hear Mercado shout "hoy", Mercados shout should have served as a warning to Valino. The verbal warning need not come
from Cabanlig himself.

The records also show that Cabanlig first fired one shot. After a few seconds, Cabanlig fired four more shots. Cabanlig had to shoot Valino
because Valino at one point was facing the police officers. The exigency of the situation warranted a quick response from the policemen.

According to the Sandiganbayan, Valino was not turning around to shoot because two of the three gunshot wounds were on Valinos back.
Indeed, two of the three gunshot wounds were on Valinos back: one at the back of the head and the other at the left lower back. The
Sandiganbayan, however, overlooked the location of the third gunshot wound. It was three inches below the left clavicle or on the left top
most part of the chest area based on the Medico Legal Sketch showing the entrances and exits of the three gunshot wounds.33
The Autopsy Report34 confirms the location of the gunshot wounds, as follows:

GUNSHOT WOUNDS modified by embalming.

1. ENTRANCE ovaloid, 1.6 x 1.5 cms; with area of tattooing around the entrance, 4.0 x 3.0 cms.; located at the right postauricular
region, 5.5 cms. behind and 1.5 cms. above the right external auditory meatus, directed forward downward fracturing the
occipital bone, lacerating the right occipital portion of the brain and fracturing the right cheek bone and making an EXIT wound,
1.5 x 2.0 cms. located on right cheek, 4.0 cms. below and 3.0 cms.. in front of right external auditory meatus.
2. ENTRANCE ovaloid, 0.7 x 0.5 cms., located at the left chest; 6.5 cms. from the anterior median line, 136.5 cms. from the left
heel directed backward, downward and to the right, involving soft tissues, fracturing the 3rd rib, left, lacerating the left upper
lobe and the right lower lobe and finally making an EXIT wound at the back, right side, 1.4 x 0.8 cms., 19.0 cms. from the
posterior median line and 132.0 cms. from the right heel and grazing the medial aspect of the right arm.
3. ENTRANCE ovaloid, 0.6 x 0.5 located at the back, left side, 9.0 cms. from the posterior median line; 119.5 cms. from the left heel;
directed forward, downward involving the soft tissues, lacerating the liver; and bullet was recovered on the right anterior chest
wall, 9.0 cms. form the anterior median line, 112.0 cms. from the right heel.

The Necropsy Report35 also reveals the following:

1. Gunshot Wound, entrance, 0.5 cm X 1.5 cms in size, located at the left side of the back of the head. The left parietal bone is
fractured. The left temporal bone is also fractured. A wound of exit measuring 2 cms X 3 cms in size is located at the left temporal
aspect of the head.
2. Gunshot [W]ound, entrance, 0.5 cm in diameter, located at the left side of the chest about three inches below the left clavicle.
The wound is directed medially and made an exit wound at the right axilla measuring 2 X 2 cms in size.
3. Gunshot Wound, entrance, 0.5 cm in diameter located at the left lower back above the left lumbar. The left lung is collapsed and
the liver is lacerated. Particles of lead [were] recovered in the liver tissues. No wound of exit.

Cause of Death:
Cerebral Hemorrhage Secondary To Gunshot Wound In The Head

The doctors who testified on the Autopsy36 and Necropsy37 Reports admitted that they could not determine which of the three gunshot
wounds was first inflicted. However, we cannot disregard the significance of the gunshot wound on Valinos chest. Valino could not have
been hit on the chest if he were not at one point facing the policemen.
If the first shot were on the back of Valinos head, Valino would have immediately fallen to the ground as the bullet from Cabanligs M16
Armalite almost shattered Valinos skull. It would have been impossible for Valino to still turn and face the policemen in such a way that
Cabanlig could still shoot Valino on the chest if the first shot was on the back of Valinos head.

The most probable and logical scenario: Valino was somewhat facing the policemen when he was shot, hence, the entry wound on Valinos
chest. On being hit, Valino could have turned to his left almost falling, when two more bullets felled Valino. The two bullets then hit Valino
on his lower left back and on the left side of the back of his head, in what sequence, we could not speculate on. At the very least, the
gunshot wound on Valinos chest should have raised doubt in Cabanligs favor.

Cabanlig is thus not guilty of homicide. At most, Cabanlig, Padilla, Abesamis, Mercado and Esteban are guilty only of gross negligence.
The policemen transported Valino, an arrested robber, to a retrieval operation without handcuffing Valino. That no handcuffs were available
in the police precinct is a very flimsy excuse. The policemen should have tightly bound Valinos hands with rope or some other sturdy
material. Valinos cooperative demeanor should not have lulled the policemen to complacency. As it turned out, Valino was merely keeping
up the appearance of good behavior as a prelude to a planned escape. We therefore recommend the filing of an administrative case
against Cabanlig, Padilla, Abesamis, Mercado and Esteban for gross negligence.

WHEREFORE, we REVERSE the decision of the Sandiganbayan in Criminal Case No. 19436 convicting accused RUPERTO
CONCEPCION CABANLIG of the crime of homicide. We ACQUIT RUPERTO CONCEPCION CABANLIG of the crime of homicide and
ORDER his immediate release from prison, unless there are other lawful grounds to hold him. We DIRECT the Director of Prisons to
report to this Court compliance within five (5) days from receipt of this Decision. No costs.

SO ORDERED.
G.R. No. 125059 March 17, 2000
FRANCISCO T. SYCIP, JR., petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
QUISUMBING, J.:

For review on certiorari is the decision of the Court of Appeals, dated February 29, 1996, in CA-G.R. CR No. 15993, which affirmed the
judgment of the Regional Trial Court of Quezon City, Branch 95, in Criminal Cases Nos. Q-91-25910 to 15, finding petitioner guilty beyond
reasonable doubt of violating B.P. Blg. 22, the Bouncing Checks Law.

The facts in this case, as culled from the records, are as follows:

On August 24, 1989, Francisco T. Sycip agreed to buy, on installment, from Francel Realty Corporation (FRC), a townhouse unit in the
latter's project at Bacoor, Cavite.

Upon execution of the contract to sell, Sycip, as required, issued to FRC, forty-eight (48) postdated checks, each in the amount of
P9,304.00, covering 48 monthly installments.

After moving in his unit, Sycip complained to FRC regarding defects in the unit and incomplete features of the townhouse project. FRC
ignored the complaint. Dissatisfied, Sycip served on FRC two (2) notarial notices to the effect that he was suspending his installment
payments on the unit pending compliance with the project plans and specifications, as approved by the Housing and Land Use Regulatory
Board (HLURB). Sycip and 12 out of 14 unit buyers then filed a complaint with the HLURB. The complaint was dismissed as to the defects,
but FRC was ordered by the HLURB to finish all incomplete features of its townhouse project. Sycip appealed the dismissal of the complaint
as to the alleged defects.

Notwithstanding the notarial notices, FRC continued to present for encashment Sycip's postdated checks in its possession. Sycip sent
"stop payment orders" to the bank. When FRC continued to present the other postdated checks to the bank as the due date fell, the bank
advised Sycip to close his checking account to avoid paying bank charges every time he made a "stop payment" order on the forthcoming
checks. Due to the closure of petitioner's checking account, the drawee bank dishonored six postdated checks. FRC filed a complaint
against petitioner for violations of B.P. Blg. 22 involving said dishonored checks.

On November 8, 1991, the Quezon City Prosecutor's Office filed with the RTC of Quezon City six Informations docketed as Criminal
Cases No. Q-91-25910 to Q-91-25915, charging petitioner for violation of B.P. Blg. 22.

The accusative portion of the Information in Criminal Case No. Q-91-25910 reads:

That on or about the 30th day of October 1990 in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the said
accused, did then and there, willfully, unlawfully and feloniously make, draw and issue in favor of Francel Realty Corporation a check
813514 drawn against Citibank, a duly established domestic banking institution in the amount of P9,304.00 Philippine Currency
dated/postdated October 30, 1990 in payment of an obligation, knowing fully well at the time of issue that she/he did not have any
funds in the drawee bank of (sic) the payment of such check; that upon presentation of said check to said bank for payment, the same
was dishonored for the reason that the drawer thereof, accused Francisco T. Sycip, Jr. did not have any funds therein, and despite
notice of dishonor thereof, accused failed and refused and still fails and refused (sic) to redeem or make good said check, to the
damage and prejudice of the said Francel Realty Corporation in the amount aforementioned and in such other amount as may be
awarded under the provisions of the Civil Code.

CONTRARY TO LAW.1

Criminal Cases No. Q-91-25911 to Q-91-25915, with Informations similarly worded as in Criminal Case No. Q-91-25910, except for the
dates, and check numbers2 were consolidated and jointly tried.

When arraigned, petitioner pleaded "Not Guilty" to each of the charges. Trial then proceeded.

The prosecution's case, as summarized by the trial court and adopted by the appellate court, is as follows:

The prosecution evidence established that on or about August 24, 1989, at the office of the private complainant Francel Realty
Corporation (a private domestic corporation engaged in the real estate business) at 822 Quezon Avenue, QC, accused Francisco
Sycip, Jr. drew, issued, and delivered to private complainant Francel Realty Corporation (FRC hereinafter) six checks (among a
number of other checks), each for P9,304.00 and drawn pay to the order of FRC and against Francisco's account no. 845515 with
Citibank, to wit: Check No. 813514 dated October 30, 1990 (Exh. C), Check No. 813515 dated November 30, 1990 (Exh. D), Check
No. 813518 dated February 28, 1991 (Exh. E), Check No. 813516 dated December 30, 1990 (Exh. F), Check No. 813517 dated
January 30, 1991 (Exh. G) and Check No. 813519 dated March 30, 1991 (Exh. H), as and in partial payment of the unpaid balance
of the purchase price of the house and lot subject of the written contract executed and entered into by and between FRC as seller
and Francisco as buyer on said date of August 24, 1989 (Exh. B, also Exh. 1). The total stipulated purchase price for the house and
lot was P451,700.00, of which Francisco paid FRC in the sum of P135,000.00 as down payment, with Francisco agreeing and
committing himself to pay the balance of P316,000.00 in 48 equal monthly installments of P9,304.00 (which sum already includes
 interest on successive monthly balance) effective September 30, 1989 and on the 30th day of each month thereafter until the stipulated
purchase price is paid in full. The said six Citibank checks, Exhs. C thru H, as earlier indicated were drawn, issued, and delivered by
Francisco in favor of FRC as and in partial payment of the said 48 equal monthly installments under their said contract (Exh. B, also
Exh. 1). Sometime in September 1989, the Building Official's certificate of occupancy for the subject house a residential townhouse
was issued (Exh. N) and Francisco took possession and started in the use and occupancy of the subject house and lot..

When the subject six checks, Exhs. C thru H, were presented to the Citibank for payment on their respective due dates, they were all
returned to FRC dishonored and unpaid for the reason: account closed as indicated in the drawee bank's stamped notations on the
face and back of each check; in fact, as indicated in the corresponding record of Francisco's account no. 815515 with Citibank, said
account already had a zero balance as early as September 14, 1990 (Exh. 1-5). Notwithstanding the fact that FRC, first thru its
executive vice president and project manager and thereafter thru its counsel, had notified Francisco, orally and in writing, of the
checks' dishonor and demanded from him the payment of the amount thereof, still Francisco did not pay or make good any of the
checks (Exhs. I thru K). . .3

The case for the defense, as summarized also by the trial court and adopted by the Court of Appeals, is as follows:

The defense evidence in sum is to the effect that after taking possession and starting in the use and occupancy of the subject
townhouse unit, Francisco became aware of its various construction defects; that he called the attention of FRC, thru its project
manager, requesting that appropriate measures be forthwith instituted, but despite his several requests, FRC did not acknowledge,
much less attend to them; that Francisco thus mailed to FRC a verified letter dated June 6, 1990 (Exh. 2) in sum giving notice that
effective June 1990, he will cease and desist "from paying my monthly amortization of NINE THOUSAND THREE HUNDRED FOUR
(P9,304.00) PESOS towards the settlement of my obligation concerning my purchase of Unit No. 14 of FRC Townhomes referred to
above, unless and until your Office satisfactorily complete(s) the construction, renovation and/or repair of my townhouses (sic) unit
referred to above" and that should FRC "persist in ignoring my aforesaid requests, I shall, after five (5) days from your receipt of this
Verified Notice, forthwith petition the [HLURB] for Declaratory Relief and Consignation to grant me provisional relief from my obligation
to pay my monthly amortization to your good Office and allow me to deposit said amortizations with [HLURB] pending your completion
of FRC Townhomes Unit in question"; that Francisco thru counsel wrote FRC, its president, and its counsel notices/letters in sum to
the effect that Francisco and all other complainants in the [HLURB] case against FRC shall cease and desist from paying their monthly
amortizations unless and until FRC satisfactorily completes the construction of their units in accordance with the plans and
specifications thereof as approved by the [HLURB] and as warranted by the FRC in their contracts and that the dishonor of the subject
checks was a natural consequence of such suspension of payments, and also advising FRC not to encash or deposit all other
postdated checks issued by Francisco and the other complainants and still in FRC's possession (Exhs. 3 thru 5); that Francisco and
the other complainants filed the [HLURB] case against FRC and later on a decision was handed down therein and the same is pending
appeal with the Board (Exhs. 6, 7, & 12 thru 17, also Exh. 8); that as of the time of presentation of the subject checks for payment by
the drawee bank, Francisco had at least P150,000.00 cash or credit with Citibank (Exhs. 10 & 11) and, that Francisco closed his
account no. 845515 with Citibank conformably with the bank's customer service officer's advice to close his said account instead of
making a stop-payment order for each of his more than 30 post-dated checks still in FRC's possession at the time, so as to avoid the
P600.00-penalty imposed by the bank for every check subject of a stop-payment order.4

On March 11, 1994, the trial court found petitioner guilty of violating Section 1 of B.P. Blg. 22 in each of the six cases, disposing as follows:

WHEREFORE, in each of Crim. Cases Nos. Q-91-25910, Q-91-25911, Q-91-25912, Q-91-25913, Q-91-25914 and Q-91-25915, the
Court finds accused Francisco T. Sycip, Jr. guilty beyond reasonable doubt of a violation of Sec. 1 of Batas Pambansa Blg. 22 and,
accordingly, he is hereby sentenced in and for each case to suffer imprisonment of thirty (30) days and pay the costs. Further, the
accused is hereby ordered to pay the offended party, Francel Realty Corporation, as and for actual damages, the total sum of fifty-
five thousand eight hundred twenty four pesos (P55,824.00) with interest thereon at the legal rate from date of commencement of
these actions, that is, November 8, 1991, until full payment thereof.

SO ORDERED.

Dissatisfied, Sycip appealed the decision to the Court of Appeals. His appeal was docketed as CA-G.R. CR No. 15993. But on February
29, 1996, the appellate court ruled:

On the basis of the submission of the People, We find and so hold that appellant has no basis to rely on the provision of PD 957 to
justify the non-payment of his obligation, the closure of his checking account and the notices sent by him to private complainant that
he will stop paying his monthly amortizations.6

Petitioner filed a motion for reconsideration on March 18, 1996, but it was denied per Resolution dated April 22, 1996.
Hence, the instant petition anchored on the following assignment of errors:

I
THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT FINDING THAT THE ACCUSED-
APPELLANT DID NOT HAVE ANY JUSTIFIABLE CAUSE TO STOP OR OTHERWISE PREVENT THE PAYMENT OF THE SUBJECT
CHECKS BY THE DRAWEE BANK.
II
 THE LOWER COURT ERRED IN FINDING THAT THE ACCUSED-APPELLANT MUST BE DEEMED TO HAVE WAIVED HIS RIGHT
TO COMPLAIN AGAINST THE DEVELOPMENT OF THE TOWNHOUSE UNIT AND THE TOWNHOUSE PROJECT.
III
THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT THAT THE ACCUSED-APPELLANT DID
NOT HAVE SUFFICIENT FUNDS WITH THE DRAWEE BANK TO COVER THE SUBJECT CHECKS UPON PRESENTMENT FOR
PAYMENT THEREOF.
IV
THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT CONVICTING THE ACCUSED-
APPELLANT AND AWARDING DAMAGES IN FAVOR OF PRIVATE COMPLAINANT.7

The principal issue before us is whether or not the Court of Appeals erred in affirming the conviction of petitioner for violation of the
Bouncing Checks Law.

Petitioner argues that the court a quo erred when it affirmed his conviction for violation of B.P. Blg. 22, considering that he had cause to
stop payment of the checks issued to respondent. Petitioner insists that under P.D. No. 957, the buyer of a townhouse unit has the right
to suspend his amortization payments, should the subdivision or condominium developer fail to develop or complete the project in
accordance with duly-approved plans and specifications. Given the findings of the HLURB that certain aspects of private complainant's
townhouse project were incomplete and undeveloped, the exercise of his right to suspend payments should not render him liable under
B.P. Blg. 22.

The Solicitor General argues that since what petitioner was charged with were violations of B.P. Blg. 22, the intent and circumstances
surrounding the issuance of a worthless check are immaterial.8 The gravamen of the offense charged is the act itself of making and issuing
a worthless check or one that is dishonored upon its presentment for payment. Mere issuing of a bad check is malum prohibitum, pernicious
and inimical to public welfare. In his view, P.D. No. 957 does not provide petitioner a sufficient defense against the charges against him.

Under the provisions of the Bouncing Checks Law (B.P. No. 22),9 an offense is committed when the following elements are present:
(1) the making, drawing and issuance of any check to apply for account or for value;
(2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee
bank for the payment of such check in full upon its presentment; and
(3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had
not the drawer, without any valid cause, ordered the bank to stop payment. 10

In this case, we find that although the first element of the offense exists, the other elements have not been established beyond reasonable
doubt.

To begin with, the second element involves knowledge on the part of the issuer at the time of the check's issuance that he did not have
enough funds or credit in the bank for payment thereof upon its presentment. B.P. No. 22 creates a presumption juris tantum that the
second element prima facie exists when the first and third elements of the offense are present. 11 But such evidence may be rebutted. If
not rebutted or contradicted, it will suffice to sustain a judgment in favor of the issue, which it supports. 12 As pointed out by the Solicitor
General, such knowledge of the insufficiency of petitioner's funds "is legally presumed from the dishonor of his checks for insufficiency of
funds." 13 But such presumption cannot hold if there is evidence to the contrary. In this case, we find that the other party has presented
evidence to contradict said presumption. Hence, the prosecution is duty bound to prove every element of the offense charged, and not
merely rely on a rebuttable presumption.

Admittedly, what are involved here are postdated checks. Postdating simply means that on the date indicated on its face, the check would
be properly funded, not that the checks should be deemed as issued only then. 14 The checks in this case were issued at the time of the
signing of the Contract to Sell in August 1989. But we find from the records no showing that the time said checks were issued, petitioner
had knowledge that his deposit or credit in the bank would be insufficient to cover them when presented for encashment. 15 On the contrary,
there is testimony by petitioner that at the time of presentation of the checks, he had P150,000,00 cash or credit with Citibank.

As the evidence for the defense showed, the closure of petitioner's Account No. 845515 with Citibank was not for insufficiency of funds.
It was made upon the advice of the drawee bank, to avoid payment of hefty bank charges each time petitioner issued a "stop payment"
order to prevent encashment of postdated checks in private respondent's possession. 16 Said evidence contradicts the prima facie
presumption of knowledge of insufficiency of funds. But it establishes petitioner's state of mind at the time said checks were issued on
August 24, 1989. Petitioner definitely had no knowledge that his funds or credit would be insufficient when the checks would be presented
for encashment. He could not have foreseen that he would be advised by his own bank in the future, to close his account to avoid paying
the hefty banks charges that came with each "stop payment" order issued to prevent private respondent from encashing the 30 or so
checks in its possession. What the prosecution has established is the closure of petitioner's checking account. But this does not suffice to
prove the second element of the offense under B.P. Blg. 22, which explicitly requires "evidence of knowledge of insufficient funds" by the
accused at the time the check or checks are presented for encashment.

To rely on the presumption created by B.P. No. 22 as the prosecution did in this case, would be to misconstrue the import of requirements
for conviction under the law. It must be stressed that every element of the offense must be proved beyond reasonable doubt, never
presumed. Furthermore, penal statutes are strictly construed against the State and liberally in favor of the accused. Under the Bouncing
Checks Law, the punishable act must come clearly within both the spirit and letter of the statute. 17
While B.P. Blg. 22 was enacted to safeguard the interest of the banking system, 18 it is difficult to see how conviction of the accused in this
case will protect the sanctity of the financial system. Moreover, protection must also be afforded the interest of townhouse buyers under
P.D. No. 957. 19 A statute must be construed in relation to other laws so as to carry out the legitimate ends and purposes intended by the
legislature. 20 Courts will not strictly follow the letter of one statute when it leads away from the true intent of legislature and when ends
are inconsistent with the general purpose of the act. 21 More so, when it will mean the contravention of another valid statute. Both laws
have to be reconciled and given due effect.

Note that we have upheld a buyer's reliance on Section 23 of P.D. 957 to suspend payments until such time as the owner or developer
had fulfilled its obligations to the buyer. 22 This exercise of a statutory right to suspend installment payments, is to our mind, a valid defense
against the purported violations of B.P. Blg. 22 that petitioner is charged with.

Given the findings of the HLURB as to incomplete features in the construction of petitioner's and other units of the subject condominium
bought on installment from FRC, we are of the view that petitioner had a valid cause to order his bank to stop payment. To say the least,
the third element of "subsequent dishonor of the check. . . without valid cause" appears to us not established by the prosecution. As
already stated, the prosecution tried to establish the crime on a prima facie presumption in B.P. Blg. 22. Here that presumption is
unavailing, in the presence of a valid cause to stop payment, thereby negating the third element of the crime.

Offenses punished by a special law, like the Bouncing Checks Law, are not subject to the Revised Penal Code, but the Code is
supplementary to such a law. 23 We find nothing in the text of B.P. Blg. 22, which would prevent the Revised Penal Code from
supplementing it. Following Article 11 (5) 24 of the Revised Penal Code, petitioner's exercise of a right of the buyer under Article 23 of P.D.
No. 957 is a valid defense to the charges against him.

WHEREFORE, the instant petition is GRANTED. Petitioner Francisco T. Sycip, Jr., is ACQUITTED of the charges against him under
Batas Pambansa Blg. 22, for lack of sufficient evidence to prove the offenses charged beyond reasonable doubt. No pronouncement as
to costs.

SO ORDERED.
G.R. Nos. 103501-03 February 17, 1997
LUIS A. TABUENA, petitioner,
vs.
HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. 103507 February 17, 1997
ADOLFO M. PERALTA, petitioner,
vs.
HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE
SPECIAL PROSECUTOR, respondents.

FRANCISCO, J.:

Through their separate petitions for review,1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for short) appeal the
Sandiganbayan decision dated October 12, 1990,2 as well as the Resolution dated December 20. 19913 denying reconsideration,
convicting them of malversation under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond reasonable
doubt Of having malversed the total amount of P55 Million of the Manila International Airport Authority (MIAA) funds during their
incumbency as General Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following
sentence:

(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and
one (1) day of reclusion temporal as minimum to twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-
FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority
the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office,

(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and
one (1) day of reclusion temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-
FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority
the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office.

(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to suffer the penalty of imprisonment
of seventeen (17) years and one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion temporal as maximum
and for each of them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall also
reimburse jointly and severally the Manila International Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00).

In addition, they shall both suffer the penalty of perpetual special disqualification from public office.

A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has remained at large.

There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million was taken on three (3)
separate dates of January, 1986. Tabuena appears as the principal accused he being charged in all three (3) cases. The amended
informations in criminal case nos. 11758, 11759 and 11760 respectively read:

That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within
the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General
Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public
funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant
to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously,
and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00)
from MIAA funds by applying for the issuance of a manager's check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in
Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said
accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in
favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and
thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and
prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.
xxx xxx xxx
That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay. Philippines and within the
jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General
Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public
funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant
 to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously,
and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00)
from MIAA funds by applying for the issuance of a manager.s check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in
Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said
accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in
favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and
thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and
prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.
xxx xxx xxx
That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within
the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the General
Manager and Acting Manager, Financial Services Department, respectively, of the Manila International Airport Authority (MIAA), and
accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there
wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of FIVE MILLION
PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the name of accused
Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500- 354-3 in the PNB Extension Office at the Manila
International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the
mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding
obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena
encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and
benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

Gathered from the documentary and testimonial evidence are the following essential antecedents:

Then President Marcos instructed Tabuena over the phone to pay directly to the president's office and in cash what the MIAA owes the
Philippine National Construction Corporation (PNCC), to which Tabuena replied, "Yes, sir, I will do it." About a week later, Tabuena
received from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter
referred to as MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit:

Office of the President

of the Philippines
Malacanang

January 8, 1986

MEMO TO: The General Manager

Manila International Airport Authority

You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the sum of FIFTY FIVE
MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAA's account with said Company mentioned in a Memorandum of
Minister Roberto Ongpin to this Office dated January 7, 1985 and duly approved by this Office on February 4, 1985.

Your immediate compliance is appreciated.

(Sgd.) FERDINAND MARCOS.4

The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in the MARCOS Memorandum,
reads in full:

MEMORANDUM

For: The President

From: Minister Roberto V. Ongpin

Date: 7 January 1985

Subject: Approval of Supplemental Contracts and Request for Partial Deferment of Repayment of PNCC's Advances for MIA
Development Project
 May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8) supplemental contracts
pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National Construction
Corporation (PNCC), formerly CDCP, as follows:

1. Supplemental Contract No. 12

Package Contract No. 2 P11,106,600.95
2. Supplemental Contract No. 13
5,758,961.52
3. Supplemental Contract No. 14
Package Contract No. 2 4,586,610.80
4. Supplemental Contract No. 15
1,699,862.69
5. Supplemental Contract No. 16
Package Contract No. 2 233,561.22
6. Supplemental Contract No. 17
Package Contract No. 2 8,821,731.08
7. Supplemental Contract No. 18
Package Contract No. 2 6,110,115.75
8. Supplemental Contract No. 3
Package Contract No. II 16,617,655.49

(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984)

In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP, has accomplishment
billings on the MIA Development Project aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In
accordance with contract provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will leave
a net amount due to PNCC of only P4.5 million.

At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of approval/evaluation:
Approved by Price Escalation Committee
(PEC) but pended for lack of funds P1.9 million
Endorsed by project consultants and
currently being evaluated by PEC 30.7 million
Submitted by PNCC directly to PEC
and currently under evaluation 66.5 million

Total P99.1 million

There has been no funding allocation for any of the above escalation claims due to budgetary constraints.

The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC have not been
paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for this contract.

To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellency's
approval for a deferment of the repayment of PNCC's advances to the extent of P30 million corresponding to about 30% of P99.1
million in escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but could not be
paid due to lack of funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the
excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.

(Sgd.) ROBERTO V. ONGPIN

Minister5

In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help of Dabao and Peralta, caused the release
of P55 Million of MIAA funds by means of three (3) withdrawals.

The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by Tabuena and Dabao
requesting the PNB extension office at the MIAA the depository branch of MIAA funds, to issue a manager's check for said amount
payable to Tabuena. The check was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch
counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle
bags, loaded on a PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at Aguado Street fronting
Malacanang. Mrs. Gimenez did not issue any receipt for the money received

Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's co-signatory to the letter- request for
a manager's check for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the
counting of the P5 Million. After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuena's
car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez' office at Aguado Street. It was only upon delivery of the P5
Million that Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads:

Malacanang
Manila
January 30, 1986

RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the following
dates:
Jan. 10 P 25,000,000.00
Jan. 16 25,000,000.00
Jan. 30 5,000,000.00

(Sgd.) Fe Roa-Gimenez

The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out of the ordinary" and "not based on the
normal procedure". Not only were there no vouchers prepared to support the disbursement, the P55 Million was paid in cold cash. Also,
no PNCC receipt for the P55 Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and Corporate
Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by MIAA for the months of January to June of
1986.

The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the disbursement of the
P55 Million. On the other hand, the defense of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena claimed that he
was merely complying with the MARCOS Memorandum which ordered him to forward immediately to the Office of the President P55
Million in cash as partial payment of MIAA's obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed had liabilities
to PNCC. Peralta for his part shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in
the release of P5 Million.

With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction, Tabuena and Peralta now set
forth a total of ten (10) errors6 committed by the Sandiganbayan for this Court's consideration. It appears, however, that at the core of
their plea that we acquit them are the following:

1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and
2) they acted in good faith.

Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional malversation, as the amended
informations commonly allege that:

. . . accused . . . conspiring, confederating and other, then and there wilfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriated the amount of . . . .
But it would appear that they were convicted of malversation by negligence. In this connection, the Court's attention is directed to p.
17 of the December 20, 1991 Resolution (denying Tabuena's and Peralta's motion for reconsideration) wherein the Sandiganbayan
said:
xxx xxx xxx
On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people who were not entitled thereto,
either as representatives of MIAA or of the PNCC.

It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other person to take such
public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated that he is guilty of the misappropriation
or malversation of P55 Million of public funds. (Emphasis supplied.)

To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that:

1) While malversation may be committed intentionally or by negligence, both modes cannot be committed at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the amended informations charged
them with intentional malversation.7
3) Their conviction of a crime different from that charged violated their constitutional right to be informed of the accusation.8

We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v. Sandiganbayan" 9 where the Court
passed upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation was
affirmed, in this wise:
 . . . even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the
information was for intentional malversation, under the circumstances of this case his conviction under the first mode of
misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present
in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same
offense of malversation is involved and conviction thereof is proper. . . .

In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional falsification can validly be convicted of
falsification through negligence, thus:

While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor. G.R.
No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it may however
be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon
the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged
with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification
which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper
and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the
information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by
the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal.
xxx xxx xxx
Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense charged in the
information be proved, it being sufficient that some of said essential elements or ingredients thereof be established to constitute the
crime proved. . . .

The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this
deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly,
having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with
imprudence for a charge of criminal intent is incompatible with the concept of negligence.

Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments also apply to the felony of
malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to those
involved in the present case, can be validly convicted of the same offense of malversation through negligence where the evidence
sustains the latter mode of perpetrating the offense.

Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for malversation for it would negate criminal
intent on the part of the accused. Thus, in the two (2) vintage, but significant malversation cases of "US v. Catolico" 10 and "US v. Elvina,"
11
the Court stressed that:

To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such
negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit reum,
nisi mens sit rea a crime is not committed if the mind of the person performing the act complained of is innocent.

The rule was reiterated in "People v. Pacana," 12 although this case involved falsification of public documents and estafa:

Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no
crime when the criminal mind is wanting.

American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on
technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the
person doing the act is innocent or if there is no wrongful purpose.13 The accused may thus always introduce evidence to show he
acted in good faith and that he had no intention to convert.14 And this, to our mind, Tabuena and Peralta had meritoriously shown.

In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum we are swayed to give credit to
his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum. From this premise flows the
following reasons and/or considerations that would buttress his innocence of the crime of malversation.

First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He
could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said
than done. Marcos was undeniably Tabuena's superior the former being then the President of the Republic who unquestionably
exercised control over government agencies such as the MIAA and PNCC.15 In other words, Marcos had a say in matters involving inter-
government agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in
which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith
should be read on Tabuena's compliance, without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is
entitled to the justifying circumstance of "Any person who acts in obedience to an order issued by a superior for some lawful purpose."16
The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the
MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC).
However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that the Ongpin Memo
referred to in the presidential directive reveals a liability of only about P34.5 Million. The Sandiganbayan in this connection said:

Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January 7, 1985) were mainly:

a.) for the approval of eight Supplemental Contracts; and

b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development Project, while at the same time
recognizing some of the PNCC's escalation billings which would result in making payable to PNCC the amount of P34.5 million out of
existing MIAA Project funds.

Thus:
"xxx xxx xxx
To allow PNCC to collect partially its billings, and in consideration of ifs pending escalation billings, may we request for His
Excellency's approval for a deferment of repayment of PNCC's advances to the extent of P30 million corresponding to about 30%
of P99.1 million in escalation claims of PNCC, of which P32.6 million has been officially recognized by MIADP consultants but
could not be paid due to lack of funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents
the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9
million.

While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the extent of P99.1 million (Exhibit
2a), a substantial portion thereof was still in the stages of evaluation and approval, with only P32.6 million having been officially
recognized by the MIADP consultants.

If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos' Memo was based) they would
only be for a sum of up to P34.5 million. 17
xxx xxx xxx
V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless.

Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay P55 million irrelevant, but it was actually baseless.

This is easy to see.

Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit "2", "2-a"); Exhibit "1", however, speaks of P55 million to be
paid to the PNCC while Exhibit "2" authorized only P34.5 million. The order to withdraw the amount of P55 million exceeded the
approved payment of P34.5 million by P20.5 million. Min. Ongpin's Memo of January 7, 1985 could not therefore serve as a basis
for the President's order to withdraw P55 million. 18

Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to make him criminally liable. What is more significant to
consider is that the MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena
acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to
PNCC. This belief is supported by defense witness Francis Monera who, on direct examination, testified that:

ATTY ANDRES
Q Can you please show us in this Exhibit "7" and "7-a" where it is indicated the receivables from MIA as of December 31, 1985?
A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit "7-a", sir, P102,475.392.35
xxx xxx xxx 19
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these obligations represent?
WITNESS
A These obligations represent receivables on the basis of our billings to MIA as contract-owner of the project that the Philippine
National Construction Corporation constructed. These are billings for escalation mostly, sir.
Q What do you mean by escalation?
A Escalation is the component of our revenue billings to the contract-owner that are supposed to take care of price increases, sir.
xxx xxx xxx 20
ATTY ANDRES
Q When you said these are accounts receivable, do I understand from you that these are due and demandable?
A Yes, sir. 21

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then
there would only be a mistake of fact committed in good faith.22 Such is the ruling in "Nassif v. People"23 the facts of which, in brief, are as
follows:

Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he inserted in the commercial
document alleged to have been falsified the word "sold" by order of his principal. Had he known or suspected that his principal was
 committing an improper act of falsification, he would be liable either as a co-principal or as an accomplice. However, there being no
malice on his part, he was exempted from criminal liability as he was a mere employee following the orders of his principal. 24

Second. There is no denying that the disbursement, which Tabuena admitted as "out of the ordinary", did not comply with certain auditing
rules and regulations such as those pointed out by the Sandiganbayan, to wit:

a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be made by check (Basic
Guidelines for Internal Control dated January 31, 1977 issued by COA)

b) payment of all claims against the government had to be supported with complete documentation (Sec. 4, P.D. 1445, "State Auditing
Code of the Philippines). In this connection, the Sandiganbayan observed that:

There were no vouchers to authorize the disbursements in question. There were no bills to support the disbursement. There were
no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million. 25

c) failure to protest (Sec. 106, P.D. 1445)

But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditing
procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his "immediate compliance" with the
directive that he forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape
responsibility for such omission. But since he was acting in good faith, his liability should only be administrative or civil in nature, and
not criminal. This follows the decision in "Villacorta v. People"26 where the Court, in acquitting therein accused municipal treasurer of
Pandan, Catanduanes of malversation after finding that he incurred a shortage in his cash accountability by reason of his payment in
good faith to certain government personnel of their legitimate wages leave allowances, etc., held that:

Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong payments, they were in Good faith
mainly to government personnel, some of them working at the provincial auditor's and the provincial treasurer's offices And if
those payments ran counter to auditing rules and regulations, they did not amount to a criminal offense and he should only be
held administratively or civilly liable.

Likewise controlling is "US v. Elvina" 27 where it was held that payments in good faith do not amount to criminal appropriation, although
they were made with insufficient vouchers or improper evidence. In fact, the Dissenting Opinion's reference to certain provisions in
the revised Manual on Certificate of Settlement and Balances apparently made to underscore Tabuena's personal accountability,
as agency head, for MIAA funds would all the more support the view that Tabuena is vulnerable to civil sanctions only Sections
29.2 and 295 expressly and solely speak of "civilly liable," describe the kind of sanction imposable on a superior officer who performs
his duties with "bad faith, malice or gross negligence"' and on a subordinate officer or employee who commits "willful or negligent acts
. . . which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors.

Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered
the same to Mrs. Gimenez and not to the PNCC, proceeding from the following definitions/concepts of conversion":

"Conversion", as necessary element of offense of embezzlement, being the fraudulent "appropriation to one's own use' of another's
property which does not necessarily mean to one's personal advantage but every attempt by one person to dispose of the goods of
another without right as if they were his own is conversion to his own use." (Terry v. Water Improvement Dist. No. 5 of Tulsa County,
64 p, 2d 904, 906, 179 Okl. 106)

At p. 207, Words and Phrases,

Permanent Edition 9A.

Conversion is any interference subversive of the right of the owner of personal property to enjoy and control it. The gist of conversion
is the usurpation of the owner 's right of property, and not the actual damages inflicted. Honesty of purpose is not a defense. (Ferrera
v. Parks, 23 p. 883, 885 19 Or. 141)
At page 168, id.
xxx xxx xxx
The words "convert" and "misappropriate" connote an act of using or disposing of another's property as if it were one's own. They
presuppose that the thing has been devoted to a purpose or use different from that agreed upon. To appropriate to one's own use
includes not only conversion to one's personal advantage but every attempt to dispose of the property of another without right.

People vs. Webber, 57 O.G.

p. 2933, 2937

By placing them at the disposal of private persons without due authorization or legal justification, he became as guilty of malversation
as if he had personally taken them and converted them to his own use.
People vs. Luntao, 50 O.G.
p. 1182, 1183 28
We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to pay immediately the Philippine National
Construction Corporation, thru this office the sum of FIFTY FIVE MILLION. . .", and that was what Tabuena precisely did when he delivered
the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was
Marcos' secretary then. Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million
since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good
faith of Tabuena in having delivered the money to the President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS
Memorandum, was not at all affected even if it later turned out that PNCC never received the money. Thus, it has been said that:

Good faith in the payment of public funds relieves a public officer from the crime of malversation.
xxx xxx xxx
Not every unauthorized payment of public funds is malversation. There is malversation only if the public officer who has custody of
public funds should appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence
shall permit any other person to take such public funds. Where the payment of public funds has been made in good faith, and there
is reasonable ground to believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to have
acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized, renders him only civilly but not
criminally liable.29

Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal
benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do
whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no
conspiracy was established between Tabuena and the real embezzler/s of the P5 Million. In the cases of "US v. Acebedo"30 and "Ang v.
Sandiganbayan",31 both also involving the crime of malversation, the accused therein were acquitted after the Court arrived at a similar
finding of non-proof of conspiracy. In "Acebedo", therein accused, as municipal president of Palo, Leyte, was prosecuted for and found
guilty by the lower court of malversation after being unable to turn over certain amounts to the then justice of the peace. It appeared,
however, that said amounts were actually collected by his secretary Crisanto Urbina. The Court reversed Acebedo's conviction after
finding that the sums were converted by his secretary Urbina without the knowledge and participation of Acebedo. The Court said, which
we herein adopt:

No conspiracy between the appellant and his secretary has been shown in this case, nor did such conspiracy appear in the case
against Urbina. No guilty knowledge of the theft committed by the secretary was shown on the part of the appellant in this case,
nor does it appear that he in any way participated in the fruits of the crime. If the secretary stole the money in question without the
knowledge or consent of the appellant and without negligence on his part, then certainly the latter can not be convicted of
embezzling the same money or any part thereof.32

In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into checks drawn in the name of
one Marshall Lu, a non-customer of MWSS, but the checks were subsequently dishonored. Ang was acquitted by this Court after
giving credence to his assertion that the conversion of his collections into checks were thru the machinations of one Lazaro Guinto,
another MWSS collector more senior to him. And we also adopt the Court's observation therein, that:

The petitioner's alleged negligence in allowing the senior collector to convert cash collections into checks may be proof of poor
judgment or too trusting a nature insofar as a superior officer is concerned but there must be stronger evidence to show fraud,
malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The prosecution failed to show that the
petitioner was privy to the conspirational scheme. Much less is there any proof that he profited from the questioned acts. Any
suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into evidence before
conviction beyond reasonable doubt may be imposed. 33

The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million
for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena, helped facilitate the
withdrawal of P5 Million of the P55 Million of the MIAA funds.

This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order. Indeed, compliance to a
patently lawful order is rectitude far better than contumacious disobedience. In the case at bench, the order emanated from the Office of
the President and bears the signature of the President himself, the highest official of the land. It carries with it the presumption that it was
regularly issued. And on its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact,
coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. Besides, the
case could not be detached from the realities then prevailing As aptly observed by Mr Justice Cruz in his dissenting opinion:

We reject history in arbitrarily assuming that the people were free during the era and that the Judiciary was independent and fearless.
We know it was not: even the Supreme Court at that time was not free. This is an undeniable fact that we can not just blink away.
Insisting on the contrary would only make our sincerity suspect and even provoke scorn for what can only be described as our
incredible credulity. 34

But what appears to be a more compelling reason for their acquittal is the violation of the accused's basic constitutional right to due
process. "Respect for the Constitution", to borrow once again Mr. Justice Cruz's words, "is more important than securing a conviction
based on a violation of the rights of the accused."35 While going over the records, we were struck by the way the Sandiganbayan actively
took part in the questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised this as an
error, there is nevertheless no impediment for us to consider such matter as additional basis for a reversal since the settled doctrine is
that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be
found in the judgment appealed from whether they are made the subject of assignments of error or not. 36

Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of Francis Monera. then Senior
Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor
Viernes only asked six (6) questions on cross-examination in the course of which the court interjected a total of twenty-seven (27)
questions (more than four times Prosecutor Viernes' questions and even more than the combined total of direct and cross-examination
questions asked by the counsels) After the defense opted not to conduct any re-direct examination, the court further asked a total of ten
(10) questions.37 The trend intensified during Tabuena's turn on the witness stand. Questions from the court after Tabuena's cross-
examination totalled sixty-seven (67). 38 This is more than five times Prosecutor Viernes' questions on cross-examination (14), and more
than double the total of direct examination and cross-examination questions which is thirty-one (31) [17 direct examination questions by
Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peralta's case, the Justices, after his cross-examination,
propounded a total of forty-one (41) questions. 39

But more importantly, we note that the questions of the court were in the nature of cross examinations characteristic of confrontation,
probing and insinuation. 40 (The insinuating type was best exemplified in one question addressed to Peralta, which will be underscored.)
Thus we beg to quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are
marked with asterisks and italicized for emphasis.)

(MONERA)
(As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA totalling
P102,475,392.35, and although such receivables were largely billings for escalation, they were nonetheless all due and
demandable. What follows are the cross-examination of Prosecutor Viernes and the court questions).
CROSS-EXAMINATION BY PROS. VIERNES
Q You admit that as shown by these Exhibits "7" and "7- a", the items here represent mostly escalation billings. Were those escalation
billings properly transmitted to MIA authorities?
A I don't have the documents right now to show that they were transmitted, but I have a letter by our President, Mr. Olaguer, dated
July 6, 1988, following up for payment of the balance of our receivables from MIA, sir.
*AJ AMORES
*Q This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the determination as to the
correct amount?
A I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables And, in fact, we have been
following up for payment.
*Q This determination of the escalation costs was it accepted as the correct figure by MIA ?
A I don't have any document as to the acceptance by MIA your Honor, but our company was able to get a document or a letter by
Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note or approval by former President Marcos.
*PJ GARCHITORENA
*Q Basically, the letter of Mr. Ongpin is to what effect?
A The subject matter is approval of the supplementary contract and request for partial deferment of payment for MIA Development
Project, your Honor.
*Q It has nothing to do with the implementation of the escalation costs?
A The details show that most of the accounts refer to our escalations, your Honor.
*Q Does that indicate the computation for escalations were already billed or you do not have any proof of that
A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have confirmed our billings to MIA,
your Honor.
*AJ AMORES
*Q Were there partial payments made by MIA an these escalation billings?
A Based on records available as of today, the P102 million was reduced to about P56.7 million, if my recollection is correct, your
Honor.
*PJ GARCHITORENA
*Q Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your company?
WITNESS
A The payments were made after December 31, 1985 but I think the payments were made before the entry of our President, your
Honor. Actually, the payment was in the form of: assignments to State Investment of about P23 million; and then there was P17.8
million application against advances made or formerly given; and there were payments to PNCC of about P2.6 million and there
was a payment for application on withholding and contractual stock of about P1 million; that summed up to P44.4 million all in all.
And you deduct that from the P102 million, the remaining balance would be about P57 million.
*PJ GARCHITORENA
*Q What you are saying is that, for all the payments made on this P102 million, only P2 million had been payments in cash ?
A Yes, your Honor.
*Q The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts?
A Yes, your Honor.
*Q This is as of December 31, 1985?
A The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987.
*Q We are talking now about the P44 million, more or less, by which the basic account has been reduced. These reductions, whether
by adjustment or assignment or actual delivery of cash, were made after December 31, 1985?
WITNESS
A Yes, your Honor.
*Q And your records indicate when these adjustments and payments were made?
A Yes, your Honor.
*AJ AMORES
*Q You said there were partial payments before of these escalation billings. Do we get it from you that there was an admission of
these escalation costs as computed by you by MIA, since there was already partial payments?
A Yes, your Honor.
*Q How were these payments made before February 1986, in case or check, if there were payments made?
A The P44 million payments was in the form of assignments, your Honor.
*PJ GARCHITORENA
*Q The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against these escalation billings?
A I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were collections on page 2 of the
Exhibit earlier presented. It will indicate that there were collections shown by credits indicated on the credit side of the ledger.
*AJ AMORES
*Q Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation billings. Was the payment in
cash or just credit of some sort before December 31, 1985?
A Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were payments in cash, your Honor.
*Q Do you know how the manner of this payment in cash was made by MIA?
A I do not know, your Honor.
*PJ GARCHITORENA
*Q But your records will indicate that?
A The records will indicate that, your Honor.
*Q Except that you were not asked to bring them?
A Yes, your Honor.
*Q At all events, we are talking of settlement or partial liquidation prior to December 31, 1985?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Subsequent thereto, we are talking merely of about P44 million?
A Yes, your Honor, as subsequent settlements.
*Q After December 31, 1985?
A Yes, your Honor.
*Q And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets and by P2 million of cash
payment?
A Yes, your Honor.
*AJ AMORES
*Q Your standard operating procedure before December 31, 1985 in connection with or in case of cash payment, was the payment in
cash or check?
A I would venture to say it was by check, your Honor.
*Q Which is the safest way to do it?
A Yes, your Honor.
"PJ GARCHITORENA
*Q And the business way?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did you say that letter concurs
with the escalation billings reflected in Exhibits "7" and "7-a"?
WITNESS
A The Company or the management is of the opinion that this letter, a copy of which we were able to get, is a confirmation of the
acceptance of our billings, sir.
Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as appearing in Exhibit "7" are
dated June 30, 1985, would you still insist that the letter of January 1985 confirms the escalation billings as of June 1985?
A The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million after payments were made
as shown on the credit side of the ledger. I suppose hat the earlier amount, before the payment was made, was bigger and
therefore I would venture to say that the letter of January 7, 1985 contains an amount that is part of the original contract account.
What are indicated in the ledger are escalation billings.
*PJ GARCHITORENA
*Q We are talking about the letter of Minister Ongpin?
A The letter of Minister Ongpin refers to escalation billings, sir.
*Q As of what date?
A The letter is dated January 7, 1985, your Honor.
PJ GARCHITORENA
 Continue.
PROS. VIERNES
Q In accordance with this letter marked Exhibit "7" and "7-a", there were credits made in favor of MIA in July and November until
December 1985. These were properly credited to the account of MIA?
WITNESS
A Yes, sir.
Q In 1986. from your records as appearing in Exhibit "7-a", there were no payments made to PNCC by MIA for the months of January
to June 1986?
A Yes, sir.
Q And neither was the amount of P22 million remitted to PNCC by MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ AMORES
*Q From your records, for the month of January 1986, there was no payment of this escalation account by MIA?
WITNESS
A Yes, your Honor. But on page 2 of Exhibit "7" there appears an assignment of P23 million, that was on September 25, 1986.
*Q But that is already under the present administration?
A After February 1986, your Honor.
*Q But before February, in January 1986, there was no payment whatsoever by MIA to PNCC?
A Per record there is none appearing, your Honor.
*PJ GARCHITORENA
*Q The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by assignment, or by offsets, when
did these payments begin?
A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor.
*Q After December 31, 1985?
A There appears also P23 million as credit, that is a form of settlement, your Honor.
*Q This is as of September 25?
A Yes, your Honor. There were subsequent settlements P23 million is just part of the P44 million.
*Q And what you are saying is that, PNCC passed the account to State Investment. In other words, State Investment bought the credit
of MIA?
A Yes, your Honor.
*Q And the amount of credit or receivables sold by PNCC to State Investment is P23 million?
A Yes, your Honor.
*Q Is there a payback agreement?
A I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor.
*AJ AMORES
*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?
A There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated July 6, 1988, your Honor.
The amount indicated in the letter is P55 million.
PJ GARCHITORENA
Any clarifications you would like to make Mr. Estebal?
ATTY ESTEBAL
None, your Honor.
PJ GARCHITORENA
Mr. Viernes?
PROS VIERNES
No more, your Honor.
PJ GARCHITORENA
The witness is excused. Thank you very much Mr. Monera. . . .41

(TABUENA)

(In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million pursuant to the MARCOS
Memorandum and that he thereafter delivered said amount in cash on the three (3) dates as alleged in the information to Marcos' private
secretary Mrs. Jimenez at her office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the money for
his own personal use.)
CROSS-EXAMINATION BY PROS. VIERNES
Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many occasions?
A Three times, sir.
Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?
A Yes, sir.
Q It was only on January 30, 1986 that this receipt Exhibit "3" was issued by Mrs. Gimenez?
A Yes, sir.
*PJ GARCHITORENA
*Q So January 30 is the date of the last delivery?
A I remember it was on the 31st of January, your Honor What happened is that, I did not notice the date placed by Mrs. Gimenez.
Q Are you telling us that this Exhibit "3" was incorrectly dated
A Yes, your Honor.
*Q Because the third delivery was on January 31st and yet the receipt was dated January 30?
A Yes, your Honor.
*Q When was Exhibit "3" delivered actually by Mrs. Gimenez?
A January 31st, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You did not go to Malacaang on January 30, 1986?
A Yes, sir, I did not.
Q Do you know at whose instance this Exhibit "3" was prepared?
A I asked for it, sir.
Q You asked for it on January 31, 1986 when you made the last delivery?
A Yes, sir.
Q Did you see this Exhibit "3" prepared in the Office of Mrs. Gimenez?
A Yes, sir.
Q This receipt was typewritten in Malacaang stationery. Did you see who typed this receipt?
A No, sir. What happened is that, she went to her room and when she came out she gave me that receipt.
*PJ GARCHITORENA
Q What you are saying is, you do not know who typed that receipt?
WITNESS
A Yes, your Honor.
*Q Are you making an assumption that she typed that receipt?
A Yes, your Honor, because she knows how to type.
*Q Your assumption is that she typed it herself?
A Yes, your Honor.
PJ GARCHITORENA
Proceed.
PROS. VIERNES
Q This receipt was prepared on January 31, although it is dated January 30?
A Yes, sir, because I was there on January 31st.
Q In what particular place did Mrs. Gimenez sign this Exhibit "3"?
A In her office at Aguado, sir.
Q Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"?
A No, sir, I did not. She was inside her room.
Q So, she was in her room and when she came out of the room, she handed this receipt to you already typed and signed?
A Yes, sir.
*AJ HERMOSISIMA
*Q So, how did you know this was the signature of Mrs. Gimenez?
WITNESS
A Because I know her signature, your Honor. I have been receiving letters from her also and when she requests for something from
me. Her writing is familiar to me.
So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez and you answered that
you saw Mrs. Gimenez signed it, you were not exactly truthful?
A What I mean is, I did not see her sign because she went to her room and when she came out, she gave me that receipt, your Honor.
PJ GARCHITORENA
That is why you have to wait for the question to be finished and listen to it carefully. Because when I asked you, you said you saw her
signed it. Be careful Mr. Tabuena.
WITNESS
Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit "3"?
A Nobody, sir.
Q I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do we understand from you that
this date January 30 is erroneous?
A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ HERMOSISIMA
*Q Why did you not ask for a receipt on the first and second deliveries?
A Because I know that the delivery was not complete yet, your Honor.
*PJ GARCHITORENA
*Q So you know that the total amount to be delivered was P55 million')
A Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the testimony of Mr. Tabuena.
ATTY. ESTEBAL
We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor.
*AJ DEL ROSARIO
"Q From whom did you receive the President's memorandum marked Exhibit "1"? Or more precisely, who handed you this
memorandum?
A Mrs. Fe Roa Gimenez, your Honor.
Q Did you ask Mrs, Fe Gimenez for what purpose the money was being asked?
A The money was in payment for the debt of the MIA Authority to PNCC, your Honor.
*Q If it was for the payment of such obligation why was there no voucher prepared to cover such payment? In other words, why was
the delivery of the money not covered by any voucher?
A The instruction to me was to give it to the Office of the President, your Honor.
*PJ GARCHITORENA
*Q Be that as it may, why was there no voucher to cover this particular disbursement?
A I was just told to bring it to the Office of the President, your Honor.
*AJ DEL ROSARIO
*Q Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA in payment of its
obligation to another entity?
WITNESS
A No, your Honor, I was just following the Order to me of the President.
*PJ GARCHITORENA
*Q So the Order was out of the ordinary?
A Yes, your Honor.
*AJ DEL ROSARIO
Did you file any written protest with the manner with which such payment was being ordered?
A No, your Honor.
*Q Why not?
A Because with that instruction of the President to me, I followed, your Honor.
*Q Before receiving this memorandum Exhibit "1", did the former President Marcos discuss this maitter with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his office in cash, your Honor.
*PJ GARCHITORENA
*Q By "I OWE ", you mean the MIAA?
WITNESS
A Yes, your Honor.
*AJ DEL ROSARIO
*Q And what did you say in this discussion you had with him?
A I just said, "Yes, sir, I will do it/"
*Q Were you the one who asked for a memorandum to be signed by him?
A No, your Honor.
*Q After receiving that verbal instruction for you to pay MIAA's obligation with PNCC, did you not on your own accord already prepare
the necessary papers and documents for the payment of that obligation?
A He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming, your Honor. I will receive it.
*Q Is this the first time you received such a memorandum from the President?
A Yes, your Honor.
*Q And was that the last time also that you received such a memorandum?
A Yes, your Honor.
*Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be followed instead of the
regular procedure?
A No, sir.
*AJ DEL ROSARIO
*Q Why did you not ask?
A I was just ordered to do this thing, your Honor.
*AJ HERMOSISIMA
*Q You said there was an "I OWE YOU"?
A Yes, your Honor.
*Q Where is that "I OWE YOU" now?
A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that amount.
*Q Was this payment covered by receipt from the PNCC?
A It was not covered, your Honor.
*Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment?
A Based on the order to me by the former President Marcos ordering me to pay that amount to his office and then the mechanics will
come after, your Honor.
*Q Is the PNCC a private corporation or government entity?
A I think it is partly government, your Honor.
*PJ GARCHITORENA
*Q That is the former CDCP?
A Yes, your Honor.
*AJ HERMOSISIMA
*Q Why were you not made to pay directly, to the PNCC considering that you are the Manager of MIA at that time and the PNCC is a
separate corporation, not an adjunct of Malacaang?
WITNESS
A I was just basing it from the Order of Malacanang to pay PNCC through the Office of the President, your Honor.
*Q Do you know the President or Chairman of the Board of PNCC?
A Yes, your Honor.
"Q How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the Board?
A PNCC was the one that constructed the MIA, your Honor.
*Q Was the obligation incurred through the President or Chairman of the Board or President of the PNCC? In other words, who signed
the contract between PNCC and MIAA?
A Actually, we inherited this obligation, your Honor. The one who signed for this was the former Director of BAT which is General
Singzon. Then when the MIA Authority was formed, all the obligations of BAT were transferred to MIAA. So the accountabilities
of BAT were transferred to MIAA and we are the ones that are going to pay, your Honor.
*Q Why did you agree to pay to Malacaang when your obligation was with the PNCC?
A I was ordered by the President to do that, your Honor.
*Q You agreed to the order of the President notwithstanding the fact that this was not the regular course or Malacaang was not the
creditor?
A I saw nothing wrong with that because that is coming, from the President, your Honor.
*Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount through a mere receipt from
the private secretary?
A I was ordered by the President, your Honor.
*PJ GARCHITORENA
*Q There is no question and it can be a matter of judicial knowledge that you have been with the MIA for sometime?
A Yes, your Honor.
*Q Prior to 1986?
A Yes, your Honor.
*Q Can you tell us when you became the Manager of MIA?
A I became Manager of MIA way back, late 1968, your Honor.
*Q Long before the MIA was constituted as an independent authority?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And by 1986, you have been running the MIA for 18 years?
WITNESS
A Yes, your Honor.
*Q And prior to your Joining the MIA, did you ever work for the government?
A No, your Honor.
*Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first employment ,with the government?
A Yes, your Honor.
*Q While you were Manager of MIA, did you have other subsequent concurrent positions in the government also?
A I was also the Chairman of the Games and Amusement Board, your Honor.
*Q But you were not the executive or operating officer of the Games and Amusement Board?
A I was, your Honor.
*Q As Chairman you were running the Games and Amusement Board?
A Yes, your Honor.
*Q What else, what other government positions did you occupy that time?
A I was also Commissioner of the Game Fowl Commission, your Honor.
*PJ GARCHITORENA
*Q That is the cockfighting?
WITNESS
A Yes, your Honor.
*Q Here, you were just a member of the Board?
A Yes, your Honor.
*Q So you were not running the commission?
A Yes, your Honor.
*Q Any other entity?
A No more, your Honor.
*Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18 years, you also ran the
Games and Amusement Board as its executive officer?
A Yes, your Honor.
*Q And you were a commissioner only of the Came Fowl Commission?
A Yes, your Honor.
*Q Who was running the commission at that time?
A I forgot his name, but he retired already, your Honor.
*Q All of us who joined the government, sooner or later, meet with our Resident COA representative?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And one of our unfortunate experience (sic) is when the COA Representative comes to us and says: "Chairman or Manager, this
cannot be". And we learn later on that COA has reasons for its procedure and we learn to adopt to them?
WITNESS
A Yes, your Honor.
*Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know there is reason in this
apparent madness of the COA and so we comply?
A Yes, your Honor.
*Q And more than anything else the COA is ever anxious for proper documentation and proper supporting papers?
A Yes, your Honor.
*Q Sometimes, regardless of the amount?
A Yes, your Honor.
*Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular credit, and to be delivered
in armored cars to be acknowledged only by a receipt of a personal secretary. After almost 18 years in the government service
and having had that much time in dealing with COA people, did it not occur to you to call a COA representative and say, "What
will I do here?"
A I did not, your Honor.
*PJ GARCHITORENA
*Q Did you not think that at least out of prudence, you should have asked the COA for some guidance on this matter so that you will
do it properly?
WITNESS
A What I was going to do is, after those things I was going to tell that delivery ordered by the President to the COA, your Honor.
*Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests for issuance of Manager's
checks and you were accommodated by the PNB Office at Nichols without any internal documentation to justify your request for
Manager's checks?
A Yes, your Honor.
*Q Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the Daily Express, which was
considered to be a newspaper friendly to the Marcoses at that time, would occasionally come with so-called expose, is that not
so?
A Yes, your Honor.
*Q And worst, you had the so-called mosquito press that would always come out with the real or imagined scandal in the government
and place it in the headline, do you recall that?
A Yes, your Honor.
*PJ GARCHITORENA
Under these circumstances, did you not entertain some apprehension that some disloyal employees might leak you out and banner
headline it in some mosquito publications like the Malaya at that time?
WITNESS
A No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to find out different areas of fear. We are in the government and we in the government fear the
COA and we also fear the press. We might get dragged into press releases on the most innocent thing. You believe that?
A Yes, your Honor.
*Q And usually our best defense is that these activities are properly documented?
A Yes, your Honor.
*Q In this particular instance, your witnesses have told us about three (3) different trips from Nichols to Aguado usually late in the day
almost in movie style fashion. I mean, the money being loaded in the trunk of your official car and then you had a back-up truck
following your car?
A Yes, your Honor.
 *Q Is that not quite a fearful experience to you ?
A I did not think of that at that time, your Honor.
*PJ GARCHITORENA
"Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of your car?
WITNESS
A We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of your car, was that not a nervous
experience?
A As I have said, your Honor, I never thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused. . . . 42

(PERALTA)

(He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of the Manager's Check for
P5 Million upon order of Tabuena and that he [Peralta] was aware that MIAA had an existing obligation with PNCC in the amount of around
P27 Million. He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having
misappropriated for his own benefit said amount or any portion thereof.)

CROSS-EXAMINATION BY PROS VIERNES

Q Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr. Tabuena the request for issuance of
Manager's check in the amount of P5 million?
A At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should have my signature
because I was one of the signatories at that time.
Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests for the issuance of
Manager's checks by the PNB?
A That is the only occasion I signed, sir.
Q Did you say you were ordered by Mr. Tabuena to sign the request?
A Yes, sir, and I think the order is part of the exhibits and based on that order, I co-signed in the request for the issuance of Manager's
check in favor of Mr. Luis Tabuena.
PROS VIERNES
Q Was there a separate written order for you to co-sign with Mr. Tabuena?
WITNESS
A Yes, sir, an order was given to me by Mr. Tabuena.
*PJ GARCHITORENA
Was that marked in evidence?
WITNESS
Yes, your Honor.
*PJ GARCHITORENA
What exhibit?
WITNESS
I have here a copy, your Honor. This was the order and it was marked as exhibit "N".
PROS VIERNES
It was marked as Exhibit "M", your Honor.
Q How did you know there was an existing liability of MIAA in favor of PNCC at that time?
A Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of December 31, 1985 and it
came to my attention that there was an existing liability of around P27,999,000.00, your Honor.
Q When was that Financial Statement prepared?
A I prepared it around January 22 or 24, something like that, of 1986, sir.
Q Is it your usual practice to prepare the Financial Statement after the end of the year within three (3) weeks after the end of the year?
A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th Friday of the month because
there will be a Board of Directors Meeting and the Financial Statement of the prior month will be presented and discussed during
the meeting.
*PJ GARCHITORENA
*Q This matter of preparing Financial Statement was not an annual activity but a monthly activity?
A Yes, your Honor.
*Q This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the end of the year?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally see that request?
A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file because I just read it.
Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?
A Yes, sir.
*PJ GARCHITORENA
And that will be Exhibit?
ATTY. ANDRES
Exhibit "2" and "2-A", your Honor.
PROS VIERNES
Q You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the PNB Extension Office at
Villamor?
A Yes, sir.
Q Why was it necessary for you to go with him on that occasion?
A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5 million and it was placed in
two (2) peerless boxes.
Q Did you actually participate in the counting of the money by bundles?
A Yes, sir.
Q Bundles of how much per bundle?
A If I remember right, the bundles consisted of P100s and P50s, sir.
Q No P20s and P10s?
A Yes, sir, I think it was only P100s and P50s.
*PJ GARCHITORENA
*Q If there were other denominations, you can not recall?
A Yes, your Honor.
PROS VIERNES
Q In how many boxes were those bills placed?
A The P5 million were placed in two (2) peerless boxes,
Q And you also went with Mr. Tabuena to Aguado?
A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was left behind and I went back to
my office at MIA.
Q But the fact is that, this P5 million was withdrawn at passed 5:00 o'clock in the afternoon?
A I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around 4:00 o'clock and we started
counting at around 4:30 p.m. because they have to place it in a room, which is the office of the Manager at that time.
Q And Mr. Tabuena left for Malacaang after 5:00 o'clock in the afternoon of that date?
A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for Malacanang.
PROS VIERNES
Q And you yourself, returned to your office at MIA?
WITNESS
A Yes, sir.
Q Until what time do you hold office at the MIA?
A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir.
Q So, even if it was already after 5:00 o'clock in the afternoon, you still went back to your office at MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ESTEBAL
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ DEL ROSARIO
*Q Did you not consider it as odd that your obligation with the PNCC had to be paid in cash?
WITNESS
A Based on the order of President Marcos that we should pay in cash, it was not based on the normal procedure, your Honor.
*Q And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by vouchers?
A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did was to prepare a request to the
PNB, then this can be covered by Journal Voucher also.
*Q Was such payment of P5 million covered by a Journal Voucher?
A Yes, your Honor.
*Q Did you present that Journal Voucher here in Court?
A We have a copy, your Honor.
*Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment?
A We have a copy of the Journal Voucher, your Honor.
*Q Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA ?
A The payment of P5 million was recorded in a Journal Voucher, your Honor.
*PJ GARCHITORENA
*Q In other words, the recording was made directly to the Journal?
WITNESS
A Yes, your Honor.
*Q There are no other separate documents as part of the application for Manager's Check?
A Yes, your Honor, there was none.
*AJ DEL ROSARIO
*Q After the payment was made, did your office receive any receipt from PNCC?
A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch as the payment should
be made through the Office of the president, I accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena.
*Q After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use that receipt as a supporting
document to the voucher?
A Your Honor, a Journal Voucher was prepared for that.
*Q How about a disbursement voucher?
A Inasmuch as this was a request for Manager's check, no disbursement voucher was prepared, your Honor.
*AJ DEL ROSARIO
*Q Since the payment was made on January 31, I986, and that was very close to the election held in that year, did you not entertain
any doubt that the amounts were being used for some other purpose?
ATTY. ESTEBAL
With due respect to the Honorable Justice, we are objecting to the question on the ground that it is improper.
*AJ DEL ROSARIO
I will withdraw the question.
*PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I don't think there was any basis, your Honor.
*PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper that a check be issued only
after it is covered by a disbursement voucher duly approved by the proper authorities ?
A Your Honor, what we did was to send a request for a Manager's check to the PNB based on the request of Mr. Tabuena and the
order of Mr. Tabuena was based on the Order of President Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this transaction covered by a
disbursement voucher?
WITNESS
A Based on my experience, payments out of cash can be made through cash vouchers, or even though Journal Vouchers, or even
through credit memo, your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of check in favor of Mr. Luis
Tabuena, your own manager?
A We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to pay PNCC through the
Office of the President and it should be paid in cash, your Honor.
*Q You are supposed to pay only on legal orders. Did you consider that legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question calls for a conclusion of the witness.
*PJ GARCHITORENA
Considering that tire witness is an expert, witness may answer.
WITNESS
A The order of president Marcos was legal at that time because the order was to pay PNCC the amount of P5 million through the
Office of the President and it should be paid in cash, your Honor. And at that time, I know for a fact also that there was an existing
P.D. wherein the President of the Republic of the Philippines can transfer funds from one office to another and the PNCC is a
quasi government entity at that time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction was made on the basis of that P.D. which you referred to?
A I am not aware of the motive of the President, but then since he is the President of the Philippines, his order was to pay the PNCC
through the Office of the President, your Honor.
*Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of MIAA is supposed to be
paid in check?
A I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and also he received an order
coming from the President of the Philippines at that time, your Honor.
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the
same journal?
In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded.
WITNESS
A Yes, your Honor.
*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature
of the transactions?
A Yes, your Honor.
*Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is. . .
*PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching
him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that. . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was
supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented since we have the order of the General Manager at that time and the order of President
Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate basis for the movement of money?
A Yes, your Honor, because at that time we have also a recorded liability of P27 million.
*Q we are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself
adequate with no other supporting papers, to justify the movement of funds?
A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00, inasmuch as we have that
liability and I was shown the order of President Marcos to pay P5 million through the Office of the President, I considered the order
of Mr. Luis Tabuena, the order of President Marcos and also the existing liability of P27 million sufficient to pay the amount of P5
million. Inasmuch as there is also an escalation clause of P99.1 million, the payment of P5 million is fully covered by those existing
documents.
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not
asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate
basis to justify the movement of funds?
WITNESS
When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact that there was this existing
liability.
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to
say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?
WITNESS
A As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of President Marcos to pay PNCC
through his office, I feel that the order of the General Manager, the order of President Marcos, and also the memorandum of
Minister Ongpin are sufficient to cause the payment of P5 million.
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that
refers to the realignment of funds insofar as the Appropriation Act is concerned?
WITNESS
A Because at that time, your Honor, I have knowledge that the President is authorized through a Presidential Decree to transfer
government funds from one office to another.
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?
A I think the liability was duly recorded and appropriations to pay the amount is. . . . (interrupted)
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget
what the question is?
A No, your Honor.
*Q Are you telling us that the debts incurred by MIAA ate covered by the Appropriations Act so that the payment of this debt would be
in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree?
A I was aware of that Decree, your Honor.
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
 *PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?
A No, your Honor.
*Q In fact, for purposes of internal control, you have different officers and different officials in any company either government or
private, which are supposed to check and balance each other, is it not?
A Yes, your Honor.
*Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will
restrain him?
A Yes, your Honor.
*Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?
A Yes, your Honor.
*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose?
A Yes, your Honor.
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
WITNESS
A Yes, your Honor.
*Q In your case, you would be the counter check for Mr. Tabuena?
A Yes, your Honor.
*Q In the other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a
position to tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it".,
if in your opinion the disbursement is not proper?
A Yes, your Honor.
*Q Therefore, as a co-signatory, you expected to exercise your judgment as to the propriety of a particular transactions?
A Yes, your Honor.
*Q And this is something you know by the nature of your position and because you are a Certified Public Accountant?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q You admit that the payment of P5 million and P50 million were unusual in the manner with which they were disposed?
A Yes, your Honor.
*Q Did you submit a written protest to the manner in which such amount was being disposed of?
A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this payment was upon the order
of President Marcos, then I think as President he can do things which are not ordinary.
*Q If you did not prepare a written protest, did you at least prepare a memorandum for the record that this was an extra-ordinary
transaction?
A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your Honor.
PJ GARCHITORENA
Thank you very much Mr. Peralta, you are excused. . . . 43

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point
which presents itself during the trial of a case over which he presides. 44 But not only should his examination be limited to asking
"clarificatory" questions, 45 the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as
possible, neither interfering nor intervening in the conduct of the trial.46 Here, these limitations were not observed. Hardly in fact can one
avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in
proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross- examinations supplementing
those made by Prosecutor Viernes and far exceeding the latter's questions in length. The "cold neutrality of an impartial judge" requirement
of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate
and advocate. In this connection, the observation made in the Dissenting Opinion to the effect that the majority of this Court was "unduly
disturbed" with the number of court questions alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the majority
opinion not to focus on "numbers" alone, but more importantly to show that the court questions were in the interest of the prosecution and
which thus depart from that common standard of fairness and impartiality. In fact, it is very difficult to be, upon review of the records,
confronted with "numbers" without necessarily realizing the partiality of the Court. In "US v. De Sisto" (2 Cir., 1961, 289 F 2d 833), for
example, a new trial was required because the trial judge, as in this case, indulged in extensive questioning of defendant and his witnesses,
and the reviewing court also had to amplify on "numbers" to bolster this. It was pointed out in the "De Sisto" case that the judge asked
3,115 questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's questions to the defendant De Sisto
totalled 306, the prosecutor's 347, and the defense counsel's, 201. After referring to these figures, the court stated:

. . . It is indeed an impressive proportion, but no such mathematical computation is of itself determinative. However, taking all this
in conjunction with the long and vigorous examination of the defendant himself by the judge, and the repeated belittling by the
judge of defendant's efforts to establish the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here
conveyed to the jury too strong an impression of the court's belief in the defendant's probable guilt to permit the jury freely to
perform its own function of independent determination of the facts. . . .

The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it cannot be justified under the norm
applied to a jury trial, or even under the standard employed in a non-jury trial where the judge is admittedly given more leeway in
propounding questions to clarify points and to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this via
some specific examples. Based on the evidence on record, and on the admission of Tabuena himself, the P55 million was delivered to
the President's Office thru Mrs. Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice, however, hurled the
following questions to Peralta:

AJ DEL ROSARIO
Q: Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain
any doubt that the amounts were being used for some other purposes?
ATTY. ESTEBAL
With due respect to the Honorable Justice, We are objecting to the question on the ground that it is improper.
AJ DEL ROSARIO
I will withdraw the question.
PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I don't think there was any basis, Your Honor.
PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.

Nothing from the preceding questions of counsels or of the court would serve as basis for this question. How then, can this be considered
even relevant? What is the connection between the payment made to the President's office and the then forthcoming presidential "snap
election"? In another instance, consider the following questions of Presiding Justice Garchitorena:

*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the
same journal?
xxx xxx xxx
*Q In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded.
xxx xxx xxx
*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature
of the transactions?
xxx xxx xxx
*Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is . . .
*PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching
him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that . . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was
supported, your Honor.
*PJ GARCHITORENA
Overruled may answer.
WITNESS
A The transaction was fully documented since we have the order of the General Manager at that time and the order of President
Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate basis for the movement of money?
*Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself
adequate with no other supporting papers, to justify the movement of funds?
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not
asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate
basis to justify the movement of funds?
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to
say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that
refers to the realignment of funds insofar as the Appropriation Act is concerned?
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?
*PJ GARCHITORENA
 *Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget
what the question is?
xxx xxx xxx
*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be
in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?
*Q In fact, for purposes of internal control, you have different in officers and different officials in any company either government or
private, which are supposed to check and balance each other, is it not?
*Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will
restrain him?
*Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?
*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
*Q In your case, you would be the counter check for Mr. Tabuena?
*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position
to tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it.", if in your
opinion the disbursement is not proper?
*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction ?
*Q And this is something you know by the nature of your position and because you are a Certified Public Accountant? 47

How can these questions be considered clarificatory when they clearly border more on cross-examination questions? Thus, the Dissenting
Opinion's focus on the distinction between the two kinds of trial to justify the Sandiganbayan's active participation in the examination of
petitioners Tabuena and Peralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be emphasized
anew that:

A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the prosecution.48

We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never proper for a judge
to discharge the duties of a prosecuting attorney. However anxious a judge may be for the enforcement of the law, he should always
remember that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in jeopardy, as he is judge in
behalf of the state, for the purpose of safeguarding the interests of society. 49

Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances may be such in a
given case as to justify the court in so doing. . . . This court, however, has more than once said that the examination of witnesses is
the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding
judge in conducting an extensive examination. It is always embarrassing for counsel to object to what he may deem improper questions
by the court. Then, in conducting a lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude.
While he is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary
to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to be determined by the
circumstances of each particular case, but in so doing he must not forget the function of the judge and assume that of an advocate. .
. 50

While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it must be understood
that we have not adopted in this country the practice of making the presiding judge the chief inquisitor. It is better to observe our time-
honored custom of orderly judicial procedure, even at the expense of occasional delays. . . . The judge is an important figure in the
trial of a cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail, we can
conceive of no other reason, for him to take the trial of the cause out of the hands of counsel. 51

The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare and the conditions
exceptional in a high degree which will justify the presiding judge in entering upon and conducting an extended examination of a
witness, and that the exercise of a sound discretion will seldom deem such action necessary or advisable. 52

He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear
up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in, the examination of witnesses,
or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial,
may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto. 53

The impartiality of the judge his avoidance of the appearance of becoming the advocate of either one side or the other of the
pending controversy is a fundamental and essential rule of special importance in criminal cases. . . 54
 Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and to dispose of these cases
speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain from showing any semblance of
one-sided or more or less partial attitude in order not to create any false impression in the minds of the litigants. For obvious reasons,
it is the bounden duty of all to strive for the preservation of the people's faith in our courts.55

Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. Bolstering this
requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance
to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process. 56

We are well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching
themselves at the expense of the public would be able to escape criminal liability by the mere expedient of invoking "good faith". It must
never be forgotten, however, that we render justice on a case to case basis, always in consideration of the evidence that is presented.
Thus, where the evidence warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise of conscience
to grant the same. On the other hand, it does not follow that all those similarly accused will necessarily be acquitted upon reliance on this
case as a precedent. For the decision in this case to be a precedent, the peculiar circumstances and the evidence that led to the petitioner's
acquittal must also be present in subsequent cases.

Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation of constitutionally enshrined rights, it
is definitely the latter that merits our immediate attention. For the most dangerous precedent arises when we allow ourselves to be carried
away by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice
the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the
wrongdoers upon an innocent.

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the crime
of malversation as defined and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990
and the Resolution dated December 20, 1991 are REVERSED and SET ASIDE.
SO ORDERED.
G.R. No. L-162 April 30, 1947
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DIOSCORO ALCONGA and ADOLFO BRACAMONTE, defendants. DIOSCORO ALCONGA, appellant.

HILADO, J.:

On the night of May 27, 1943, in the house of one Mauricio Jepes in the Municipality of San Dionisio, Province of Iloilo several persons
were playing prohibited games (t.s.n., pp. 95, 125). The deceased Silverio Barion was the banker in the game of black jack, and Maria de
Raposo, a witness for the prosecution, was one of those playing the game (t.s.n., p. 95). Upon invitation of the said Maria de Raposo, the
accused Dioscoro Alconga joined her as a partner, each of them contributing the sum of P5 to a common fund (t.s.n., pp. 95, 125). Maria
de Raposo played the game while the said accused posted himself behind the deceased, acting as a spotter of the cards of the latter and
communicating by signs to his partner (t.s.n., pp. 95-96, 126). The deceased appears to have suffered losses in the game because of the
team work between Maria de Raposo and the accused Alconga (t.s.n., pp. 96, 126). Upon discovering what the said accused had been
doing, the deceased became indignant and expressed his anger at the former (t.s.n., pp. 96, 126). An exchange of words followed, and
the two would have come to blows but for the intervention of the maintainer of the games (t.s.n., p. 96). In a fit of anger, the deceased left
the house but not before telling the accused Alconga, "tomorrow morning I will give you a breakfast" (t.s.n., p. 96), which expression would
seem to signify an intent to inflict bodily harm when uttered under such circumstances.

The deceased and the accused Alconga did not meet thereafter until the morning of May 29, 1943, when the latter was in the guardhouse
located in the barrio of Santol, performing his duties as "home guard" (t.s.n., pp. 98-100). While the said accused was seated on a bench
in the guardhouse, the deceased came along and, addressing the former, said, "Coroy, this is your breakfast," followed forthwith by a
swing of his "pingahan" (t.s.n., p. 100). The accused avoided the blow by falling to the ground under the bench with the intention to crawl
out of the guardhouse (t.s.n., pp. 100-101). A second blow was given but failed to hit the accused, hitting the bench instead (t.s.n., p. 101).
The accused manage to go out of the guardhouse by crawling on his abdomen (t.s.n., p. 101). While the deceased was in the act of
delivering the third blow, the accused, while still in a crawling position (t.s.n., p. 119), fired at him with his revolver, causing him to stagger
and to fall to the ground (t.s.n., p. 101). Rising to his feet, the deceased drew forth his dagger and directed a blow at the accused who,
however, was able to parry the same with his bolo (t.s.n., pp. 101-102). A hand-to-hand fight ensued (t.s.n., p. 102). Having sustained
several wounds, the deceased ran away but was followed by the accused (t.s.n., p. 6). After running a distance of about 200 meters (t.s.n.,
pp. 21, 108), the deceased was overtaken, and another fight took place, during which the mortal bolo blow the one which slashed the
cranium was delivered, causing the deceased to fall to the ground, face downward, besides many other blows deliver right and left
(t.s.n., pp. 6, 28). At this instant, the other accused, Adolfo Bracamonte, arrived and, being the leader of the "home guards" of San Dionisio,
placed under his custody the accused Alconga with a view to turning him over to the proper authorities (t.s.n., pp. 102-105).

On their way to San Dionisio, the two accused were stopped by Juan Collado, a guerrilla soldier (t.s.n., pp. 80, 104). Adolfo Bracamonte
turned over Alconga to Collado who in turn took him to the headquarters (t.s.n., pp. 81, 104). In the afternoon of the same day, Collado
delivered Alconga to Gregorio Barredo, a municipal policeman of San Dionisio, together with the weapons used in the fight: a revolver, a
bolo, and a dagger (t.s.n., pp. 81, 104).

The injuries sustained by the deceased were described by police sergeant Gil G. Estaniel as follows:

P. Y que hicieron ustedes cuando ustedes vieron a Silverio Barion? R. Examine sus heridas.
P. Donde ha encontrado usted las heridas, en que parte del cuerpo? R. En la cabeza, en sus brazos, en sus manos, en la mandibula inferior, en la
parte frente de su cuello, en su pecho derecho, y tambien en el pecho izquierdo, y su dedo meique habia volado, se habia cortado, y otras perqueas
heridas mas.
P. En la cabeza, vio usted heridas? R. Si, seor.
P. Cuantas heridas? R. Una herida en la region parietal derecha y una contusion en la corona de la cabeza.
P. Vio usted el craneo? R. En la craneo llevaba una herida, en quel el craneo se ha roto.
P. En el pecho, herida ha encontrado usted? R. Debajo de la tetilla derecha, una herida causada por una bala.
P. Y otras heridas en el pecho, puede usted decir que clase de heridas? R. Heridas causadas por bolo.
P. Como de grande acquellas heridas en el pecho? R. No recuerdo la dimension de las heridas en el pecho.
P. Pero en la cabeza? R. La cabeza se rajo por aquella herida causada por el bolo. (T.s.n., p. 25.)

It will be observed that there were two stages in the fight between appellant and the deceased. The initial stage commenced when the
deceased assaulted appellant without sufficient provocation on the part of the latter. Resisting the aggression, appellant managed to have
the upper hand in the fight, inflicting several wounds upon the deceased, on account of which the latter fled in retreat. From that moment
there was no longer any danger to the life of appellant who, being virtually unscathed, could have chosen to remain where he was.
Resolving all doubts in his flavor, and considering that in the first stage the deceased was the unlawful aggressor and defendant had not
given sufficient provocation, and considering further that when the deceased was about to deliver the third blow, appellant was still in a
crawling position and, on that account, could not have effectively wielded his bolo and therefore had to use his "paltik" revolver his only
remaining weapon ; we hold that said appellant was then acting in self-defense.

But when he pursued the deceased, he was no longer acting in self-defense, there being then no more aggression to defend against, the
same having ceased from the moment the deceased took to his heels. During the second stage of the fight appellant inflicted many
additional wounds upon the deceased. That the deceased was not fatally wounded in the first encounter is amply shown by the fact that
he was still able to run a distance of some 200 meters before being overtaken by appellant. Under such circumstances, appellant's plea
of self-defense in the second stage of the fight cannot be sustained. There can be no defense where there is no aggression.
 Although the defendant was not the aggressor, he is not exempt from criminal liability for the reason that it is shown that he struck
several blows, among them the fatal one, after the necessity for defending himself had ceased, his assailant being then in retreat.
Therefore one of the essential ingredients of self-defense specified in No. 4, article 8 of the Penal Code is wanting (now article 11,
case No. 1, Revised Penal Code). (United States vs. Dimitillo, 7 Phil., 475, 476; words in parenthesis supplied.)

. . . Even if it be conceded for the moment that the defendants were assaulted by the four (offended parties), the right to kill in self-
defense ceased when the aggression ceased; and when Toledo and his brothers turned and ran, without having inflicted so much as
a scratch upon a single one of the defendants, the right of the defendants to inflict injury upon them ceased absolutely. They had no
right to pursue, no right to kill or injure. A fleeing man is not dangerous to the one from whom he flees. When danger ceases, the right
to injure ceases. When the aggressor turns and flees, the one assaulted must stay his hand. (United States vs. Vitug, 17 Phil., 1, 19;
emphasis supplied.)

Upon the foregoing facts, we hold that appellant's guilt of the crime of homicide has been established beyond reasonable doubt. The
learned trial court appreciated in his favor of two mitigating circumstances: voluntary surrender and provocation on the part of the
deceased. The first was properly appreciated; the second was not, since it is very clear that from the moment he fled after the first stage
of the fight to the moment he died, the deceased did not give any provocation for appellant to pursue much less further to attack him.

The only provocation given by him was imbibed in, and inseparable from, the aggression with which he started the first stage of the fight.
The evidence, as weighed and appreciated by the learned trial judge, who had heard, seen and observed the witnesses testify, clearly
shows that said stage ended with the flight of the deceased after receiving a bullet wound in his right breast, which caused him to stagger
and fall to the ground, and several bolo wounds inflicted by appellant during their hand-to-hand fight after both had gotten up. The learned
trial judge said:

The evidence adduced by the prosecution and the defense in support of their respective theories of the case vary materially on certain
points. Some of these facts have to be admitted and some have to be rejected with the end in view of arriving at the truth. To the mind
of the Court, what really happened in the case at bar, as can de disclosed by the records, which lead to the killing of the deceased on
that fatal morning of May 29, 1945 (should be 1943), is as follows:
xxx xxx xxx
In the morning of May 29, 1943, while Dioscoro Alconga was alone in the guardhouse performing his duties as guard or "ronda" in
Barrio Santol, the deceased Silverio Barion passed by with a "pingahan". That was the first time the deceased and the accused
Alconga had met since that eventful night of May 27th in the gambling house of Gepes. Upon seeing the accused Alconga, who was
then seated in the guardhouse, the deceased cried: "Coroy, this is now the breakfast!" These words of warning were immediately
followed by two formidable swings of the "pingahan" directed at the accused Alconga which failed to hit him. Alconga was able to
avoid the blows by falling to the ground and crawling on his abdomen until he was outside the guardhouse. The deceased followed
him and while in the act of delivering the third blow, Dioscoro Alconga fired at him with his revolver thereby stopping the blow in mid-
air. The deceased fell to the ground momentarily and upon rising to his feet, he drew forth a dagger. The accused Alconga resorted
to his bolo and both persons being armed, a hand-to-hand fight followed. The deceased having sustained several wounds from the
hands of Alconga, ran away with the latter close to his heels.

The foregoing statement of the pertinent facts by the learned trial judge is in substantial agreement with those found by us and narrated
in the first paragraphs of this decision. Upon those facts the question arises whether when the deceased started to run and flee, or
thereafter until he died, there was any provocation given by him from appellant to pursue and further to attack him. It will be recalled, to
be given with, that the first stage of the fight was provoked when the deceased said to appellant "Cory, this is now the breakfast," or "This
is your breakfast," followed forthwith by a swing or two of his "pingahan." These words without the immediately following attack with the
"pingahan" would not have been uttered, we can safely assume, since such an utterance alone would have been entirely meaningless. It
was the attack, therefore, that effectively constituted the provocation, the utterance being, at best, merely a preclude to the attack. At any
rate, the quoted words by themselves, without the deceased's act immediately following them, would certainly not have been considered
a sufficient provocation to mitigate appellant's liability in killing or injuring the deceased. For provocation in order to be a mitigating
circumstance must be sufficient and immediately preceding the act. (Revised Penal Code, article 13, No. 4.)

Under the doctrine in United States vs. Vitug, supra, when the deceased ran and fled without having inflicted so much as a scratch upon
appellant, but after, upon the other hand, having been wounded with one revolver shot and several bolo slashes, as aforesaid, the right
of appellant to inflict injury upon him, ceased absolutely appellant "had no right to pursue, no right to kill or injure" said deceased for
the reason that "a fleeing man is not dangerous to the one from whom he flees." If the law, as interpreted and applied by this Court in the
Vitug case, enjoins the victorious contender from pursuing his opponent on the score of self-defense, it is because this Court considered
that the requisites of self-defense had ceased to exist, principal and indispensable among these being the unlawful aggression of the
opponent (Rev. Penal Code, article 11, No. 1; 1 Viada, 5th ed., 173).

Can we find under the evidence of record that after the cessation of said aggression the provocation thus involved therein still persisted,
and to a degree sufficient to extenuate appellant's criminal responsibility for his acts during the second stage of the fight? Appellant did
not testify nor offer other evidence to show that when he pursued the deceased he was still acting under the impulse of the effects of what
provocation, be it anger, obfuscation or the like. The Revised Penal Code provides:

ART. 13. Mitigating circumstances:

xxx xxx xxx
 4. That sufficient provocation or threat on the part of the offended party immediately preceded the act.

It is therefore apparent that the Code requires for provocation to be such a mitigating circumstance that it not only immediately precede
the act but that it also be sufficient. In the Spanish Penal Code, the adjective modifying said noun is "adecuada" and the Supreme Court
of Spain in its judgment of June 27, 2883, interpreted the equivalent provision of the Penal Code of that country, which was the source of
our own existing Revised Penal Code, that "adecuada" means proportionate to the damage caused by the act. Viada (Vol. 11, 5th ed., p.
51) gives the ruling of that Supreme Court as follows:

El Tribunal Supremo ha declarado que la provocacion o amenaza que de parte del ofendido ha de preceder para la disminucion de la responsabilidad
criminal debe ser proporcionada al dao que se cause, lo cual no concurre a favor del reo si resulta que la unica cuestion que hubo fue si en un monton
de yeso habia mas omenos cantidad, y como perdiera la apuesta y bromeando dijera el que la gano que beberia vino de balde, esa pequea cuestion
de amor propio no justificaba en modo alguno la ira que le impelio a herir y matar a su contrario. (S. de 27 de junio de 1883, Gaceta de 27 de septiembre.)

Justice Albert, in his commentaries on the Revised Penal Code, 1946 edition, page 94, says: "The provocation or threat must be sufficient,
which means that it should be proportionate to the act committed and adequate to stir one to its commission" (emphasis supplied).

Sufficient provocation, being a matter of defense, should, like any other, be affirmatively proven by the accused. This the instant appellant
has utterly failed to do. Any way, it would seem self-evident that appellant could never have succeeded in showing that whatever remained
of the effects of the deceased's aggression, by way of provocation after the latter was already in fight, was proportionate to his killing his
already defeated adversary.

That provocation gave rise to a fight between the two men, and may be said, not without reason, to have spent itself after appellant had
shot the deceased in his right breast and caused the latter to fall to the ground; or making a concession in appellant's favor after the
latter had inflicted several bolo wounds upon the deceased, without the deceased so much as having scratched his body, in their hand-
to-hand fight when both were on their feet again. But if we are to grant appellant a further concession, under the view most favorable to
him, that aggression must be deemed to have ceased upon the flight of the deceased upon the end of the first stage of the fight. In so
affirming, we had to strain the concept in no small degree. But to further strain it so as to find that said aggression or provocation persisted
even when the deceased was already in flight, clearly accepting defeat and no less clearly running for his life rather than evincing an
intention of returning to the fight, is more than we can sanction. It should always be remembered that "illegal aggression is equivalent to
assault or at least threatened assault of an immediate and imminent kind.

Agresion ilegitima. Agresion vale tanto como acometimiento. Para que exista el derecho de defensa es preciso que se nos
acometa, que se nos ataque, o cuando menos, que se nos amenace de atacarnos de un modo inmediato e inminente; v. gr.,
desenvainando el pual para herirnos con el o apuntando la pistola para dispararla contra nosotros. (Viada, 5. a edicion, 173.)

After the flight of the deceased there was clearly neither an assault nor a threatened assault of the remotest kind. It has been suggested
that when pursuing his fleeing opponent, appellant might have thought or believed that said opponent was going to his house to fetch
some other weapon. But whether we consider this as a part or continuation of the self-defense alleged by appellant, or as a separate
circumstance, the burden of proof to establish such a defense was, of course, upon appellant, and he has not so much as attempted to
introduce evidence for this purpose. If he really thought so, or believed so, he should have positively proven it, as any other defense. We
can not now gratuitously assume it in his behalf.

It is true that in the case of United States vs. Rivera (41 Phil., 472, 474), this Court held that one defending himself or his property from a
felony violently or by surprise threatened by another is not obliged to retreat but may pursue his adversary until he has secured himself
from danger. But that is not this case. Here from the very start appellant was the holder of the stronger and more deadly weapons a
revolver and a bolo, as against a piece of bamboo called "pingahan" and a dagger in the possession of the deceased. In actual
performance appellant, from the very beginning, demonstrated his superior fighting ability; and he confirmed it when after the deceased
was first felled down by the revolver shot in right breast, and after both combatants had gotten up and engaged in a hand-to-hand fight,
the deceased using his dagger and appellant his bolo, the former received several bolo wounds while the latter got through completely
unscathed. And when the deceased thereupon turned and fled, the circumstances were such that it would be unduly stretching the
imagination to consider that appellant was still in danger from his defeated and fleeing opponent. Appellant preserved his revolver and his
bolo, and if he could theretofore so easily overpower the deceased, when the latter had not yet received any injury, it would need, indeed,
an unusually strong positive showing which is completely absent from the record to persuade us that he had not yet "secured himself
from danger" after shooting his weakly armed adversary in the right breast and giving him several bolo slashes in different other parts of
his body. To so hold would, we believe, be unjustifiably extending the doctrine of the Rivera case to an extreme not therein contemplated.

Under article 249, in relation with article 64, No. 2, of the Revised Penal Code, the crime committed by appellant is punishable by reclusion
temporal in its minimum period, which would be from 12 years and 1 day to 14 years and 8 months. However, in imposing the penalty, we
take into consideration the provisions of section 1 of the Indeterminate Sentence Law (Act No. 4103), as amended by Act No. 4225.
Accordingly, we find appellant guilty of the aforesaid crime of homicide and sentence him to an indeterminate penalty of from 6 years and
1 day of prision mayor to 14 years and 8 months of reclusion temporal, to indemnify the heirs of the deceased in the sum of P2,000, and
to pay the costs.

As thus modified, the judgment appealed from is hereby affirmed. So ordered.