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.

Facts:
Then President Marcos instructed Luis Tabuena over the phone to pay
directly to the presidents office and in cash what the Manila International
Airport Authority (MIAA) owes the Philippine National Construction
Corporation (PNCC), pursuant to the 7 January 1985 memorandum of then
Minister Trade and Industry Roberto Ongpin. Tabuena agreed. About a week
later, Tabuena received from Mrs. Fe Roa-Gimenez, then private secretary of
Marcos, a Presidential Memorandum dated 8 January 1986 reiterating in
black and white such verbal instruction. In obedience to President Marcos
verbal instruction and memorandum, Tabuena, with the help of Gerardo G.
Dabao and Adolfo Peralta, caused the release of P55 Million of MIAA funds by
means of three (3) withdrawals. On 10 January 1986, the first withdrawal was
made 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 managers 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 was delivered
on the same day to the office of Mrs. Gimenez. 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
16 January 1986. The third and last withdrawal was made on 31 January
1986 for P5 Million. Peralta was Tabuenas co-signatory to the letter- request
for a managers 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 loaded in the trunk of Tabuenas
car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez
office. 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 was dated
January 30,1986. Tabuena and Peralta were charged for malversation of
funds, while Dabao remained at large. One of the justices of the
Sandiganbayan actively took part in the questioning of a defense witness and
of the accused themselves; the volume of the questions asked were more the
combined questions of the counsels. On 12 October 1990, they were found
guilty beyond reasonable doubt. Tabuena and Peralta filed separate petitions
for review, appealing the Sandiganbayan decision dated 12 October 19990
and the Resolution of 20 December 1991.

Issue:
Whether or not petitioners are guilty of the crime of malversation.

Held:
Luis Tabuena and Adolfo Peralta are acquitted of the crime of malversation.
Tabuena acted in strict compliance with the MARCOS Memorandum. 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. Records show that the Sandiganbayan actively took part in
the questioning of a defense witness and of the accused themselves. The
questions of the court were in the nature of cross examinations characteristic
of confrontation, probing and insinuation. Tabuena and Peralta may not have
raised the issue as an error, there is nevertheless no impediment for the court
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.