G.R. Nos. 163957-58 April 7, 2009
26193
MUNIB S. ESTINO and ERNESTO G. PESCADERA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. Nos. 164009-11 April 7, 2009
ERNESTO G. PESCADERA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VELASCO, JR., J.:
1
For review before the Court under Rule 45 are the April 16, 2004 Decision and June 14, 2004
2
Resolution of the Sandiganbayan in the consolidated Criminal Case Nos. 26192 and 26193 entitled
People of the Philippines v. Munib S. Estino and Ernesto G. Pescadera. In G.R. Nos. 163957-58,
petitioners Munib S. Estino and Ernesto G. Pescadera appeal their conviction of violation of Section
3(e), Republic Act No. (RA) 3019 or the Anti-Graft and Corrupt Practices Act for failure to pay the
Representation and Transportation Allowance (RATA) of the provincial government employees of Sulu.
In G.R. Nos. 164009-11, petitioner Pescadera alone appeals his conviction of malversation of public
funds under Article 217 of the Revised Penal Code for failure to remit the Government Service
Insurance System (GSIS) contributions of the provincial government employees amounting to PhP
4,820,365.30. In these consolidated appeals, petitioners pray for their acquittal.
The Facts
Estino was elected Vice-Governor of Sulu in the May 1998 elections along with Gov. Abdusakur Tan.
On June 23, 1998, this Court issued a status quo order in G.R. No. 133676, suspending the effects of
the proclamation of Gov. Tan and ordering Vice-Gov. Estino to assume the position of Governor until
further orders. Thus, Estino acted as Governor of Sulu from July 27, 1998 up to May 23, 1999 when
this Court lifted the suspension order against Gov. Tan. Ernesto G. Pescadera, on the other hand, was
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Provincial Treasurer of Sulu during Estino’s stint as Acting Governor.
Pursuant to Commission on Audit (COA)-ARMM Office Order No. 99-165 dated August 26, 1999, a
special audit team was created upon the request of the Provincial Government of Sulu. An audit of the
disbursement vouchers and payrolls for the period starting July 27, 1998 up to May 23, 1999 was then
conducted by COA State Auditor II Mona U. Balabaran and her team. The COA Special Audit Report
stated that there were anomalies in the payment of salary differentials, allowances, and benefits,
among others. The Ombudsman then filed three informations against petitioners, as follows:
CRIMINAL CASE NO. 26192
That sometime in or about January to May 1999, or shortly prior or subsequent thereto, in Jolo, Sulu
and within the jurisdiction of this Honorable Court, accused Munib S. Estino and Ernesto G.
Pescadera, both high ranking public officers, being the Vice-Governor and Provincial Treasurer of
Sulu, respectively, taking advantage of their official positions and acting in relation to their official
functions, conspiring and confederating with each other, did there and then willfully, unlawfully and
feloniously, cause undue injury to the employees of the Provincial Government of Sulu through evident
bad faith by failing to pay them their salary differentials, Additional Compensation Allowance (ACA),
Personal Emergency and Representation Allowance (PERA), Representation and Travel Allowance
(RATA), Mid-year Bonus, Cash Gift and Clothing Allowance in the total amount of P8,435,625.34.
CONTRARY TO LAW.
CRIMINAL CASE NO.
That sometime in or about July 1998 to May 1999, or shortly prior or subsequent thereto, in Jolo, Sulu
and within the jurisdiction of this Honorable Court, accused Munib S. Estino and Ernesto G.
Pescadera, both high ranking public officers, being the Vice Governor and Provincial Treasurer of Sulu,
respectively, taking advantage of their official positions and acting in relation to their official functions,
conspiring and confederating with each other, did there and then, willfully, unlawfully and feloniously,
take, convert and misappropriate the GSIS monthly contributions and loan amortizations collected from
the provincial employees in the amount of P4,820,365.30 for their own personal benefit or advantage
to the damage and prejudice of the said employees and the government as well.
CONTRARY TO LAW.
CRIMINAL CASE NO. 26194
That sometime in or about May 1999, or shortly prior or subsequent thereto, in Jolo, Sulu and within
the jurisdiction of this Honorable Court, accused Munib S. Estino and Ernesto G. Pescadera, both high
ranking public officers, being the Vice Governor and Provincial Treasurer of Sulu, respectively, taking
advantage of their official positions and acting in relation to their official functions, conspiring and
confederating with each other, did there and then, willfully, unlawfully and feloniously, cause undue
injury to the government through evident bad faith by withdrawing from Philippine National Bank-Jolo
Branch the amount of P21.5 million on 07 May 1999 out of the Internal Revenue Allotment of
P28,268,578.00 which was deposited to the account of Sulu Provincial Government on the same day
and using the said amount to pay "various expenses" without, however, specifying what the expenses
are in violation of existing government accounting rules.
4
CONTRARY TO LAW.
Petitioners pleaded not guilty to the offenses charged in the informations.
Criminal Case No. 26192
During trial in the Sandiganbayan, Balabaran testified that based on the disbursement vouchers and
payrolls she and her team examined for the period January to May 1999, the Provincial Government of
Sulu failed to pay the provincial government employees their salary differentials, Additional
Compensation Allowance (ACA), Personal Emergency and Representation Allowance (PERA), and
other benefits; that the Department of Budget and Management confirmed to the special audit team
that funds were released to the Provincial Government of Sulu for January to May 1999 so there was
no reason why the money was not released to the employees; and that the funds released came from
the internal revenue allotment (IRA) of the provincial government for the 1999 budget. The prosecution
submitted that this failure violated Sec. 3(e) of RA 3019 which provides:
Section 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful:
xxxx
(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government corporations charged with the grant of
licenses or permits or other concessions.
In his defense, Estino testified that when he assumed office as Acting Governor of Sulu, he called for a
general meeting of all the heads of departments, as well as officials and employees to inform them that
the remaining money of the provincial government was PhP 47 only. He further informed them of the
pending amortization for the loan from the Philippine National Bank (PNB) payable from April to June
1998, and suggested that the salary differentials of all the government employees be paid first while
the GSIS remittance be deferred since the pending IRA for the provincial government was not yet
released. As to the ACA, PERA, and clothing allowance, he said that these were not paid because the
budget for 1999 was not yet approved and there was no provision for those items in the 1998 budget.
The budget for 1999 was approved only on June 17, 1999 when Estino was no longer the Acting
Governor. The RATA, on the other hand, was provided for in the 1998 budget; hence, the 1998 budget
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was used in paying the RATA.
Pescadera testified that the employees’ benefits were not paid because the 1999 budget was not yet
approved then. Also, he said that there was no appropriation for ACA and PERA in the 1998 budget;
that the RATA for 1999 was paid; that the cash gift, mid-year bonus, and clothing allowance for the
period January to May 1999 were not paid as these were supposed to be paid in December 1999; and
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that he was the Provincial Treasurer of Sulu up to May 1999 only.
The Sandiganbayan found petitioners not guilty with regard to the charge of nonpayment of PERA,
ACA, cash gift, mid-year bonus, and clothing allowance. The court found that the Provincial
Government of Sulu did operate under the 1998 reenacted budget which had no appropriation for
PERA and ACA. Petitioners were not held liable for nonpayment of the Year-End Bonus and Cash Gift
because these may be given from May 1 to May 31 of each year, while Estino held office as Acting
Governor until May 23, 1999 and Pescadera was the Provincial Treasurer until May 1999. As to the
clothing allowance, no evidence was presented as to when it should be given to the employees.
Payment for the salary differentials for January to May 1999 could not also be done since the 1999
7
budget was not yet approved.
As regards the RATA, the Sandiganbayan held that petitioners’ defense of payment was an affirmative
allegation that required proof. The court stated:
x x x [N]o convincing evidence was presented by the defense to support their claim that they paid the
same. Although accused Pescadera testified that Exhibits "3-O" to "3-T", "3-W", "3-X", "3-HH" and "3-
II" were vouchers showing payment of RATA for the month of May 1999 for various officers of the
Provincial Government of Sulu, the same were not signed by the claimants thereof.
There is budget for the payment of RATA. The IRA pertaining to the province was regularly released.
The non-payment thereof constitutes a conscious and deliberate intent to perpetrate an injustice to the
officials of the Provincial Government of Sulu. Evident bad faith therefore exists.
xxxx
In the instant case, failure to pay the RATA constitutes an inaction which caused actual damage to the
officials entitled thereto, the amount of which was equivalent to the actual amount of the RATA that
was due them for the period January to May 1999.
The information alleged that the two accused committed this offense by conspiring and confederating
with each other. In conspiracy, it is essential that there must be unity of purpose and unity in the
execution of the unlawful objective. These were present in the instant case. Both accused knew that
8
they failed to pay the RATA to the officers entitled thereto.
The aforesaid judgment is the subject of the appeal docketed as G.R. Nos. 163957-58.
Criminal Case No. 26193
Auditor Balabaran testified that the GSIS premiums for the government and personal share of officials
and employees of the Provincial Government of Sulu were deducted from their salaries, but upon
confirmation with the Branch Manager of the GSIS in Jolo, the audit team learned that the GSIS
premiums were not remitted. According to Estino, however, the audit reports showed that he and
Pescadera did not malverse the funds of the Provincial Government. In addition, Pescadera testified
that when Estino assumed office as Acting Governor, the Provincial Government of Sulu was already
indebted to the GSIS for its failure to remit the said GSIS monthly remittances which amounted to PhP
4 million. Pescadera stated that Estino called a general assembly of all the officers and employees of
the provincial government to discuss the cash operation of Sulu. In that meeting, the officers and
employees decided to prioritize the payment of the salary differentials first, followed by the loan
amortization to the PNB, and lastly, the GSIS remittances. Pescadera added that the provincial
government intended to pay or remit the accrued GSIS monthly remittances as soon as the cash
9
position of the province improves and the 10% of the IRA is released.
Before the Sandiganbayan, the prosecution charged petitioners with malversation of public funds under
Art. 217 of the Revised Penal Code. The Sandiganbayan consequently exonerated Estino but
convicted Pescadera. The court held:
In the case at bar, there was evidence that GSIS contributions for the period July 1998 to May 1999
consisting of employee share and loan amortizations were deducted from the salaries of the
employees of the province. The 1998 reenacted budget provided for GSIS Premiums (Government
Share) and the IRA for the province was regularly released by the DBM. These GSIS contributions
were not remitted. In fact contrary to accused Estino’s claim, Provincial Auditor Nora A. Imlan stated in
her 1998 and 1999 Annual Audit Report that the Province of Sulu had unremitted GSIS contributions
for CY 1998 and 1999.
Accused Pescadera, being then the Provincial Treasurer, was the public officer charged with the
disbursement of GSIS funds for remittance to the GSIS. He failed to disburse and to remit it to the
GSIS at the time it became due. He failed to account for it upon demand by Provincial Auditor Nora A.
Imlan and by the Special Audit Team. It is now incumbent upon the accused to rebut the presumption
of conversion.
xxxx
However, no evidence was presented to support the claim that the employees agreed to prioritize the
payment of PNB loan amortization. Even if there were such an agreement, it would still be contrary to
Section 6(b) of the Government Service Insurance System Act of 1997 (R.A. 8291) which provides:
Each employer shall remit directly to the GSIS the employees’ and employers’ contributions within the
first ten (10) days of the calendar month to which the contributions apply. The remittance by the
employer of the contributions to the GSIS shall take priority over and above the payment of any and all
obligations, except salaries and wages of its employees.
Insufficiency of funds of the province is not a valid defense. The fact remained that the GSIS
contributions consisting of employee share and loan amortizations were deducted from the salaries of
the employees.
While it was true that the budget for 1999 was approved only on June 2, 1999, it was also true that on
January to May 1999, the province of Sulu operated under the 1998 reenacted budget. Further, the
reenacted budget provided for GSIS Premiums (Government Share). The DBM letter dated October
28, 1999 (Exhibit "A-39") and Summary of Releases of IRA for July 1998 to May 1999 (Exhibit "A-40")
clearly showed that the IRA pertaining to the province was regularly released.
Moreover, prosecution witness Mona Balabaran correctly testified that the Trial Balance, Journal of
Checks Issued and Report of Checks Issued showed only the sum total of all the money transactions
of the Province of Sulu. These reports did not contain the cash status vis-à-vis the mandatory
obligations and the details on where the fund of the province was spent. Clearly, accused Pescadera
10
was not able to rebut the presumption of conversion.
With respect to Estino, however, the Sandiganbayan did not find any conspiracy with Pescadera. The
court held that it was Pescadera’s duty as the Provincial Treasurer to advise Estino, then Acting
Governor, and other local government officials regarding the disposition of local government funds and
other matters related to public finance. It was found that Pescadera failed to inform Estino that the
GSIS contributions must be remitted directly to the GSIS within the first 10 days of the calendar month
11
following the month to which the contributions apply. Also, the Sandiganbayan explained that even if
Estino was Pescadera’s co-signatory in the checks, mere signature or approval is not enough to
12
sustain a finding of conspiracy, based on Sabiniano v. Court of Appeals.
Pescadera’s appeal of his conviction is the subject of G.R. Nos. 164009-11.
Criminal Case No. 26194
Anent the last charge, Balabaran testified that internal control was violated when petitioners signed the
vouchers without the signature of Provincial Accountant Nestor Lozano. As a result, the transactions
were not recorded in the book of accounts. She further stated that the amount of cash in the trial
balance was overstated. The audit team did not examine the monthly trial balance, the journal and
analysis of obligations, the journal of checks issued, the report of checks issued, and the journal of
cash disbursement because all these documents merely contained the sum total, whereas the
disbursement vouchers and payrolls stated the particular transactions that transpired which could help
13
them discover any anomaly.
Petitioners were charged with violation of RA 3019, Sec. 3(e). In his defense, Estino testified that the
disbursement vouchers for the PhP 21.5 million cash advances he approved were supported with
documents; that the 5% of the 10% retention of the IRA of the national government was paid only in
May 2002; and that he was authorized by the Provincial Board to withdraw PhP 21.5 million on May 7,
1999. Pescadera, on the other hand, testified that the cash advances amounting to PhP 21.5 million
from the PNB was accompanied by vouchers and supporting documents; that the said amount was
used in paying specific obligations of the Provincial Government of Sulu; that the signature of the
provincial accountant did not appear on the cash advances and vouchers because during the
withdrawal of the amounts, the provincial accountant was out of town; and that the provincial auditor of
14
Sulu allowed said cash advances.
RA 3019, Sec. 3(e) has three elements: (1) the accused is a public officer discharging administrative,
judicial, or official functions; (2) the accused must have acted with manifest partiality, evident bad faith,
or inexcusable negligence; and (3) the accused’s action caused any undue injury to any party,
including the government, or giving any private party unwarranted benefits, advantage, or preference in
the discharge of his or her functions.
The Sandiganbayan found only the first two elements in this case. First, petitioners were public officers
at the time in question. Second, bad faith was evident in petitioners’ act of withdrawing amounts
without the signature of the provincial accountant. This violated Sec. 344 of the Local Government
Code and Secs. 157 and 168 of the Government Accounting and Auditing Manual. Nevertheless, the
government did not suffer actual damages from the withdrawal of PhP 21.5 million. While said cash
advances did not specify the particulars of payment, the documentary exhibits attached to the cash
advances, i.e., disbursement vouchers, Request for Obligation of Allotment, Summary of Payrolls,
Time Book, and Payrolls, sufficiently itemized the obligations to be paid by the cash advances. Since
the prosecution failed to prove any damage or injury to the Provincial Government of Sulu, petitioners
15
were acquitted of the crime charged.
The Ruling of the Sandiganbayan
The dispositive portion of the Sandiganbayan’s April 16, 2004 judgment reads:
WHEREFORE:
I. In Criminal Case No. 26192, the Court finds accused MUNIB S. ESTINO and ERNESTO G.
PESCADERA, both GUILTY, beyond reasonable doubt, for violation of Sec. 3(e) of R.A. 3019, and
pursuant to Section 9 thereof, and are hereby sentenced to suffer the penalty of:
(A) Imprisonment of, after applying the Indeterminate Sentence Law, six (6) years and one (1) month
as minimum, up to fifteen (15) years, as maximum; and,
(B) Perpetual Disqualification from Public Office.
II. In Criminal Case No. 26193, this Court finds accused ERNESTO G. PESCADERA, GUILTY,
beyond reasonable doubt, of the crime of malversation of public funds, and is hereby sentenced to
suffer the penalty of:
(A) Imprisonment of, after applying the Indeterminate Sentence Law, twelve (12) years, five (5) months
and eleven (11) days of reclusion temporal, as minimum, up to twenty years (20) years of reclusion
perpetua, as maximum;
(B) Perpetual Special Disqualification;
(C) Fine of FOUR MILLION EIGHT HUNDRED TWENTY THOUSAND THREE HUNDRED SIXTY-
FIVE PESOS AND THIRTY CENTAVOS (Php4,820,365.30), with subsidiary imprisonment in case of
insolvency;
(D) All the accessory penalties provided for under the law; and,
(E) To pay the cost of the suit.
Accused PESCADERA is likewise ordered to restitute the amount of FOUR MILLION EIGHT
HUNDRED TWENTY THOUSAND THREE HUNDRED SIXTY-FIVE PESOS AND THIRTY
CENTAVOS (Php4,820,365.30) to the Provincial Government of Sulu.
With respect to MUNIB S. ESTINO, for failure of the Prosecution to prove his [guilt] beyond reasonable
doubt, he is hereby ordered ACQUITTED of the crime of malversation of public funds.
III. In Criminal Case No. 26194, for failure of the Prosecution to prove the guilt of accused MUNIB S.
ESTINO and ERNESTO G. PESCADERA beyond reasonable doubt, both accused are hereby ordered
16
ACQUITTED.
Petitioners filed a Motion for Reconsideration and a Supplemental Motion for Reconsideration and New
Trial which were denied in the June 14, 2004 Sandiganbayan Resolution. Thus, they filed these
petitions.
The Issues
WHETHER OR NOT PETITIONERS FAILED TO PAY THE RATA AND ARE THUS GUILTY OF
VIOLATING SEC. 3(e) OF RA 3019
WHETHER OR NOT PETITIONER PESCADERA IS GUILTY OF MALVERSATION OF PUBLIC
FUNDS FOR FAILURE TO REMIT THE GSIS CONTRIBUTIONS
The Court’s Ruling
G.R. Nos. 163957-58
Petitioners Estino and Pescadera point out that the basis of the information for Criminal Case No.
26192 was the COA Report, which reads:
2. On the allegation that no payments were intended for the salary differentials, ACA, PERA and
other benefits of employees of the Provincial Government of Sulu for the period covered from
January, 1999 to May, 1999
It was noted that no benefits were paid to the employees of Sulu Provincial Office for the period
covered from January, 1999 to May, 1999 based on the submitted paid disbursement vouchers (Annex
E).
For the month of May 1999, the Provincial Government of Sulu received a total allotment of
P28,268,587.00, which includes January, 1999 to April, 1999 releases for IRA differentials (See Annex
B). The amount intended for the said benefits were disbursed other than specific purpose for which
17
these are appropriated (Annex C).
Petitioners note that the COA Report does not state that they did not pay the RATA under the
reenacted budget of 1998. The prosecution witness, Auditor Balabaran, testified that the COA Report
pertains to the nonpayment of ACA, PERA, and other benefits provided for in the 1999 budget. The
1999 budget, however, was not approved during the incumbency of Estino as Acting Governor. In the
cross-examination of Balabaran, she testified as follows:
CROSS-EXAMINATION:
(Atty. Quadra)
Q. I show to you, Madam Witness, your Audit Report dated January 12, 2000, and I call your attention
on the finding in page 5 thereof which reads: "On the allegation that no payments were made intended
for the salary [differentials], ACA, PERA, and other benefits of the employees of the Provincial
Government of Sulu for the period covered from January 1999 to May 1999." Now, it is stated here that
no payments of the said benefits of the employees were made from January 1999 to May 1999. My
question is, when you said benefits of the employees you are referring to the benefits of the employees
provided for in the 1999 Budget? Please go over this Report.
(Witness looking at the document)
A. You want me to explain?
AJ Palattao: What benefit are you referring?
A. We are referring to the benefits that was to be paid, your Honor, the ACA, the PERA, and the other
benefits.
Q Yes, and those benefits that you are referring to are the benefits provided for in the Annual Budget
for the Year 1999?
AJ Palattao: Are you referring to a benefit granted to the employees under the 1999 Annual Budget?
Yes or no?
A. The benefits that are intended to the employees for the year 1999.
Q. 1999. You are not referring to the benefits of the employees provided for in the 1998 budget?
A. Yes, it is very clear, January 1999 to May 1999.
Q. It is only in 1999?
18
A. Yes, Sir. [TSN, p. 5 December 6, 2000]
Petitioners insist that there is enough evidence to show that the RATA provided for in the 1998
reenacted budget was paid for the period January to May 1999. In their Supplemental Motion for
Reconsideration and Motion for New Trial, petitioners presented to the Sandiganbayan a Certification
dated May 11, 2002 issued by the Provincial Auditor Abdurasad J. Undain, stating that the RATA for
the period January to May 1999 was paid to the officials entitled to it and that the GSIS premiums
pertaining to prior years were also settled by the Provincial Government of Sulu. In support of this
certification, petitioners submitted sworn statements of the provincial officials entitled to RATA, stating
that they were paid such allowance from January to May 1999 and that they did not have any
19
complaint to its alleged nonpayment. They also submitted 99 certified true copies of the
Disbursement Vouchers showing the payment of the RATA from January to May 1999 provided for in
the 1998 reenacted budget. Petitioners presented these vouchers only in their Supplemental Motion for
Reconsideration and/or Motion for New Trial allegedly because they thought that the COA Report
pertained only to the benefits provided in and to be paid with the 1999 budget. They may have been
misled when Auditor Balabaran did not testify on the alleged nonpayment of the RATA for January to
May 1999 with the reenacted budget of 1998.
Anent the Sandiganbayan’s finding that the vouchers showing payment of RATA for May 1999 were
not signed by the claimants, petitioners explain that the actual release of RATA is the responsibility of
the cashier of the province. Petitioners claim that they could not be faulted for the failure of the cashier
to require the claimants to sign the receipt of payment. Furthermore, the claimants in Exhibits "3-O" to
"3-T," "3-W," "3-X," "3-HH," and "3-II" all executed sworn statements that they received their RATA.
Petitioners further point out that the Sandiganbayan justices who heard and tried their case were not
the ones who rendered the questioned decision. The trial was conducted by Justices Narciso S. Nario,
Rodolfo G. Palattao, and Nicodemo T. Ferrer, while the decision was rendered by Justices Gregory T.
Ong, Norberto Y. Geraldez, and Efren N. dela Cruz.
On the other hand, the Office of the Special Prosecutor asserts that the petition should be dismissed
because it raises questions of fact not proper in an appeal by certiorari. It also asserts the following:
Even if the petition is given due course, there are factual and legal bases for the conviction. Although
the term "RATA" was not mentioned in the COA Report, said allowance was contemplated by the
auditors in their use of the term "benefits." Also, the sworn statements of the officials on their receipt of
the RATA and the certification of the Provincial Auditor to the effect that the RATA has been paid are
belated and unsubstantiated. These were submitted only in petitioners’ Supplemental Motion for
Reconsideration, thus implying that payments of the RATA were made after the conviction of
petitioners. Likewise, the unsigned disbursement vouchers deserve no merit because of the
irregularities in these documents. Some do not bear the dorsal portion of the vouchers or the signature
of the Provincial Auditor, while others were signed by persons other than the claimants without any
proof of their authority from the principals. The vouchers also show that the RATA was paid in cash
instead of through checks in violation of Presidential Decree No. 1445.
The Case Should be Remanded to the Sandiganbayan
Petitioners’ defense is anchored on their payment of RATA, and for this purpose, they submitted
documents which allegedly show that they paid the RATA under the 1998 reenacted budget. They also
claim that the COA Report did not sufficiently prove that they did not pay the RATA because the
alleged disbursement vouchers, which were supposed to be annexed to the COA Report as proof of
nonpayment of RATA, were not submitted with said report.
We resolve to grant petitioners a chance to prove their innocence by remanding the case to the
Sandiganbayan for a new trial of Criminal Case No. 26192. Rule 121 of the Rules of Court allows the
conduct of a new trial before a judgment of conviction becomes final when new and material evidence
has been discovered which the accused could not with reasonable diligence have discovered and
20
produced at the trial and which if introduced and admitted would probably change the judgment.
Although the documents offered by petitioners are strictly not newly discovered, it appears to us that
petitioners were mistaken in their belief that its production during trial was unnecessary. In their
Supplemental Motion and/or Motion for New Trial, they stressed that they no longer presented the
evidence of payment of RATA because Balabaran testified that the subject of the charge was the
nonpayment of benefits under the 1999 budget, without mention of the RATA nor the 1998 reenacted
budget. It seems that they were misled during trial. They were precluded from presenting pieces of
evidence that may prove actual payment of the RATA under the 1998 reenacted budget because the
prosecution’s evidence was confined to alleged nonpayment of RATA under the 1999 budget.
In this instance, we are inclined to give a more lenient interpretation of Rule 121, Sec. 2 on new trial in
view of the special circumstances sufficient to cast doubt as to the truth of the charges against
petitioners. The situation of the petitioners is peculiar, since they were precluded from presenting
exculpatory evidence during trial upon the honest belief that they were being tried for nonpayment of
RATA under the 1999 budget. This belief was based on no less than the testimony of the prosecution’s
lone witness, COA Auditor Mona Balabaran. Even Associate Justice Palattao of the Sandiganbayan
had to clarify from Balabaran which budget she was referring to. Balaraban, however, made it very
clear that the unpaid benefits were those provided under the 1999 budget, to wit:
AJ Palattao: Are you referring to a benefit granted to the employees under the 1999 Annual Budget?
Yes or no?
A. The benefits that are intended to the employees for the year 1999.
Q. 1999. You are not referring to the benefits of the employees provided for in the 1998 budget?
A. Yes, it is very clear, January 1999 to May 1999.
Q. It is only in 1999?
21
A. Yes, Sir. [TSN, p. 5 December 6, 2000] (Emphasis supplied.)
From the foregoing discourse, it is understandable how petitioners could have thought that they need
not present any more evidence to prove payment of the RATA under the 1998 budget. Apparently, the
COA Auditor who prepared the report and testified on it established that the trial was about
nonpayment of benefits under the 1999 budget. That budget was not approved during petitioners’ stint
in Sulu. Faced with conviction, nevertheless, they deserve a chance to prove their innocence. This
opportunity must be made available to the accused in every possible way in the interest of justice.
Hence, petitioners should be allowed to prove the authenticity of the vouchers they submitted and
other documents that may absolve them. A remand of the case for a new trial is in order. This
procedure will likewise grant the prosecution equal opportunity to rebut petitioners’ evidence.
In granting petitioners’ motion for new trial, we reiterate our pronouncement in Cano v. People:
It is x x x equally settled that rules of procedure are not to be applied in a very rigid, technical sense
and are used only to help secure substantial justice. If a technical and rigid enforcement of the rules is
made, their aim would be defeated. They should be liberally construed so that litigants can have ample
22
opportunity to prove their claims and thus prevent a denial of justice due to technicalities.
More importantly, we have settled that procedural rules can be suspended if matters of life, liberty,
honor, and property are at stake, thus:
In Ginete vs. Court of Appeals, we specifically laid down the range of reasons which may provide
justifications for a court to resist a strict adherence to procedure and suspend the enforcement of
procedural rules. Among such reasons x x x are: (1) matters of life, liberty, honor or property; (2)
counsel’s negligence without any participatory negligence on the part of the client; (3) the existence of
special or compelling circumstances; (4) the merits of the case; (5) a cause not entirely attributable to
the fault or negligence of the party favored by the suspension of the rules; and (6) a lack of any
23
showing that the review sought is merely frivolous and dilatory.
We have also held that:
Unquestionably, the Court has the power to suspend procedural rules in the exercise of its inherent
power, as expressly recognized in the Constitution, to promulgate rules concerning ‘pleading, practice
and procedure in all courts.’ In proper cases, procedural rules may be relaxed or suspended in the
interest of substantial justice, which otherwise may be miscarried because of a rigid and formalistic
adherence to such rules. x x x
xxxx
We have made similar rulings in other cases, thus:
Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of
justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather
than promote substantial justice, must always be avoided. x x x Time and again, this Court has
suspended its own rules and excepted a particular case from their operation whenever the higher
24
interests of justice so require.
While the information states that the accused failed to pay the RATA sometime in or about January to
May 1999, there was no mention which budget the RATA was supposed to be sourced. Petitioners
relied on the COA Auditor’s testimony that they were being tried for nonpayment of benefits under the
1999 budget. The Special Audit Report does not also distinguish the budget source but upon the
testimony of Balabaran, it was established that the source was the 1999 budget. Balabaran verified this
when cross-examined by Sandiganbayan Justice Palattao. This distinction is material because
conviction or acquittal depends on which budget source the information referred to. Thus, even if the
1998 budget was automatically reenacted in 1999, if the trial was clearly about the nonpayment of
benefits under the 1999 budget as established by the prosecution, then petitioners could not be faulted
for proceeding accordingly. The prosecution could have been clearer about the budget source through
re-direct examination of Balabaran but it did not choose to do so. As always in criminal cases, the
burden is on the prosecution to establish guilt beyond reasonable doubt based on sufficient
information. It is not the responsibility of the accused to produce exculpatory evidence in a trial that
does not demand it, as in this peculiar case where the prosecution failed to be clear about how they
have allegedly been negligent in paying employee benefits.
The evidence sought to be introduced by the petitioners were presented in their Supplemental Motion
for Reconsideration. Obviously, it was after their conviction that petitioners realized their mistake and
belatedly presented their evidence which consist of (1) a certification dated May 11, 2004 by
Abdurasad J. Undain, Provincial Auditor of Sulu, attesting to the payment of the RATA for the period
January to May 1999 to officials of Sulu who were entitled to such benefit; (2) disbursement vouchers
showing payment of RATA to provincial employees of Sulu for the period January to May 1999; and (3)
sworn statements from the claimants of the RATA attesting to their receipt of RATA from January to
May 1999. The Sandiganbayan noted how some of the disbursement vouchers were not signed by the
claimants. Petitioners, however, were not given the chance to explain this alleged irregularity. The
Sandiganbayan also completely disregarded the sworn statements from the claimants of the RATA
which state that they did not have any complaint to its alleged nonpayment. It should be remembered
that petitioners are being charged with violation of Sec. 3(e) of RA 3019, an element of which is undue
injury to any party. If the claimants of the RATA, the supposed injured parties, state that they received
the RATA and have no complaints to its nonpayment, then these sworn statements could absolve
petitioners. These documents should be weighed properly, its authenticity duly established by the
accused, and the prosecution should be given the chance to rebut these pieces of evidence. Since we
are not a trier of facts, we should remand this case to the Sandiganbayan.
As the court of last resort, we cannot and should not be hasty in convicting the accused when there are
factual circumstances that could save them from imprisonment. In this case, the accused should be
afforded the chance to prove the authenticity of documents which have a tendency to prove their
innocence. Procedural rules should be interpreted liberally or even set aside to serve the ends of
justice. Hence, we order the remand of Criminal Case No. 26192 to the Sandiganbayan for a new trial.
G.R. Nos. 164009-11
Petitioner Pescadera’s defense consists of two arguments: (1) that the elements of the crime of
malversation under Art. 217 of the Revised Penal Code were not present; and (2) that his failure to
remit the GSIS contributions was due to the prioritization of other obligations of the Provincial
Government of Sulu.
Pescadera claims that the elements of the crime of malversation were not met because there was no
demand on him by the Provincial Auditor or by the Special Audit Team to account for the GSIS
contributions. He submits that the prima facie presumption of malversation is not applicable when no
written demand for accounting was given to him. Assuming that there was a demand, there is allegedly
no direct evidence showing misappropriation of PhP 4,820,365.30. He asserts that he did not withdraw
such amount from the provincial government funds. He submitted documents that show how the funds
of the Provincial Government of Sulu were spent from July 1998 to May 23, 1999. These documents
consisted of the monthly trial balance from August 31, 1998 to May 31, 1999; certified true copies of
the journal of checks issued from July 1998 to May 7 to 30, 1999; certified true copies of the
Treasurer’s Journal Cash Disbursements from August 1998 to February 1999; and annual Audit Report
for 1998 and 1999. Pescadera claims that the COA Special Audit Team merely examined the
disbursement vouchers and the payrolls and found that the only irregularity was the non-remittance of
the GSIS contributions and loan amortization.
Art. 217 of the Revised Penal Code provides:
Art. 217. Malversation of Public Funds or Property—Presumption of Malversation. Any public officer
who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate
the same, or shall take or misappropriate or consent, or through abandonment or negligence, shall
permit any other person to take such funds or property, wholly or partially, or shall otherwise be guilty
of the misappropriation of such funds or property, shall suffer:
xxxx
The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal uses.
There is no dispute that Pescadera is a public officer who has control or custody of public funds and,
thus, accountable for them. As to whether Pescadera misappropriated the GSIS premiums, he argues
that the presumption of malversation does not apply because there was no demand on him.
The Sandiganbayan held that Pescadera failed to account for the GSIS premiums when demand was
made by Provincial Auditor Nora Imlan and the Special Audit Team, citing Exhibit "12-c." Pescadera
points out, however, that Exhibit "12-c" referred to the "State Auditor’s Opinion on the Financial
Statements" herein reproduced:
The auditor rendered a qualified opinion on the fairness of the presentation of the financial statements
due to management’s failure to conduct physical inventory on its fixed assets and inventories as
discussed in finding no. 1 and inability to conduct inspection on the infra projects under the 20%
Development Fund.
SUMMARY OF SIGNIFICANT FINDINGS AND RECOMMENDATIONS
During the year under audit, the following are the findings and recommendations, to wit:
xxxx
2. Non-remittances [in] 1998 of various trust liabilities in violation of laws, rules, and regulations.
Require the Provincial Treasurer to remit all trust liabilities such as GSIS premiums/loans
25
repayments/state insurance, MEDICARE AND PAGIBIG.
We agree with Pescadera that this is not the demand contemplated by law. The demand to account for
public funds must be addressed to the accountable officer. The above-cited letter was made by the
Provincial Auditor recommending to the Chairperson of the COA to "require the Provincial Treasurer of
Sulu to remit all trust liabilities such as GSIS premium/loans, repayments/state insurance, Medicare
and Pag-ibig." Nowhere in the pleadings did the Special Prosecutor refute the lack of a formal demand
upon Pescadera to account for the GSIS premiums. Pescadera even denies being informed of the
conduct of the audit, an assertion which was not refuted by the prosecution. It can be concluded then
that Pescadera was not given an opportunity to explain why the GSIS premiums were not remitted.
Without a formal demand, the prima facie presumption of conversion under Art. 217 cannot be applied.
26
While demand is not an element of the crime of malversation, it is a requisite for the application of the
presumption. Without this presumption, the accused may still be proved guilty under Art. 217 based on
direct evidence of malversation. In this case, the prosecution failed to do so. There is no proof that
Pescadera misappropriated the amount for his personal use.
The elements of Art. 217 are: (1) the offender is a public officer, (2) he or she has custody or control of
the funds or property by reason of the duties of his office, (3) the funds or property are public funds or
property for which the offender is accountable, and, most importantly, (4) the offender has
appropriated, taken, misappropriated or consented, or, through abandonment or negligence, permitted
another person to take them. The last and most important element of malversation was not proved in
this case. There is no proof that Pescadera used the GSIS contributions for his personal benefit. The
prosecution merely relied on the presumption of malversation which we have already disproved due to
lack of notice. Hence, the prosecution should have proven actual misappropriation by the accused.
Pescadera, however, emphasized that the GSIS premiums were applied in the meantime to the salary
differentials and loan obligations of Sulu, that is, the GSIS premiums were appropriated to another
public use. Thus, there was no misappropriation of the public funds for his own benefit. And since the
charge lacks one element, we set aside the conviction of Pescadera.
WHEREFORE, the Decision dated April 16, 2004 of the Sandiganbayan in Criminal Case No. 26192 is
SET ASIDE and the case is REMANDED to the Sandiganbayan for new trial on the alleged
nonpayment of RATA. The Decision dated April 16, 2004 of the Sandiganbayan in Criminal Case No.
26193 is REVERSED and SET ASIDE, and Ernesto G. Pescadera is ACQUITTED of the charge
against him. Costs against petitioners.
SO ORDERED.
G.R. No. 156009 June 5, 2009
ROMMEL C. BRIONES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
1
This is a Rule 45 petition for review on certiorari of the decision dated July 17, 2002 and the resolution
2 3
dated November 13, 2002 of the Court of Appeals (CA) in CA-G.R. CR No. 24127 finding petitioner
Rommel C. Briones (Briones) guilty of the crime of robbery. The decretal portion of the assailed
decision reads:
WHEREFORE, in view of the foregoing, the decision dated August 31, 1999 in Criminal Case No. 98-
23 rendered by the Regional Trial Court, Parañaque City, Branch 257, is hereby AFFIRMED with
MODIFICATION. Appellant is found guilty beyond reasonable doubt of the crime of robbery, under
Article 293 of the Revised Penal Code, in relation to number five (5) of Article 294 of the same Code
and is sentenced to suffer the indeterminate penalty of 6 months and 1 day of prision correccional, as
minimum, to 6 years and 1 day of prision mayor, as maximum.
4
SO ORDERED.
The Criminal Information and Plea
On January 8, 1998, a criminal information was filed against Briones before the Regional Trial Court
(RTC), Branch 257, Parañaque City, for robbery. The case was docketed as Criminal Case No. 98-23.
The accusatory portion of this criminal information states:
That on or about the 6th day of January 1998, in the Municipality of Parañaque, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to
gain and against the will of the complainant S/G Dabbin Molina, and by means of force, violence and
intimidation, did then and there willfully, unlawfully and feloniously divest from him a .38 cal. gun worth
₱8,000.00, more or less.
5
CONTRARY TO LAW.
6
With the assistance of counsel de parte, Briones pleaded "not guilty" to the charge.
The Facts
S/G Dabbin Molina (S/G Molina) is a security guard of Fuentes Security and Allied Services owned by
Johnny Fuentes (Fuentes); in the course of his employment with the security agency, S/G Molina was
issued a .38 caliber revolver (firearm).
On January 6, 1998, at around 11:00 p.m., S/G Molina and S/G George Gual (S/G Gual) were
manning the northwest gate of BF Homes Northwest, Parañaque. Somewhere on Jakarta Street, they
noticed Romulo Bersamina, a homeowner, being mauled by four (4) individuals, two (2) of whom were
later identified as Briones and his brother, Vicente Briones (Vicente), who were both residents of BF
Homes.
S/G Molina and S/G Gual approached the group to stop the mauling; it was at this point that S/G
Molina lost his firearm to Briones. How he lost it – whether there was accompanying violence or
intimidation – is the submitted issue in this case.
S/G Molina subsequently reported the incident to his supervisor, Arthur Alonzo, and to SPO1 Manuel
Plete. The police arrested Briones after conducting an investigation.
Briones denied any participation in the mauling and the firearm grabbing, and claimed that he was in
his house when the incident happened.
The RTC's Ruling
7 8
In the decision dated August 31, 1999, the RTC found Briones guilty of simple theft under paragraph
3, Article 309 of the Revised Penal Code, as amended (Code). The RTC gave greater weight to the
prosecution's evidence consisting of the positive testimony of S/G Gual, and rejected Briones’
defenses of denial and alibi.
The RTC ruled that Briones can only be held liable for simple theft, as the elements of violence and
intimidation – the attendant circumstances that must be present in the crime of robbery – were not duly
proven. The RTC found that the principal prosecution witness, S/G Gual, merely testified that he
9
(Briones) grabbed the firearm of S/G Molina.
The CA's Ruling
On appeal to the CA, Briones argued that: (1) his conviction was based solely on the testimony of S/G
Gual who was not present at the scene and did not really see what happened; and (2) he cannot be
convicted of simple theft under a criminal charge of robbery.
The CA turned down these arguments and ruled that S/G Gual’s testimony is a credible eyewitness’
account of the incident. S/G Gual was also categorical in his testimony; the defense did not even try to
impugn his credibility as a witness since it opted not to cross-examine him.
The CA found Briones guilty of robbery under Article 293, in relation to paragraph 5 of Article 294, of
the Code, and not of theft; the CA ruled that force and intimidation attended the taking of S/G Molina’s
10
firearm, as Briones approached S/G Molina with the intent of taking his firearm away.
Briones thereafter filed an Omnibus Motion for Reconsideration, Motion for New Trial and Motion to
Dismiss, and Supplemental Omnibus Motion for Reconsideration, Motion for New Trial and Motion to
11
Dismiss (collectively, Omnibus Motion) with the CA where he confessed his physical presence and
participation on the alleged robbery of the firearm, but claimed that he was merely protecting his
12
brother, Vicente, when he took the firearm. The CA denied the Omnibus Motion; hence, this petition.
The Issues
The issues may be summarized as follows:
(1) Whether there are factual and legal bases to support his conviction of the crime of robbery; and
(2) Whether a new trial is justified under the circumstances.
The Court's Ruling
We partly grant the petition and sustain Briones’ conviction for the crime of theft, not robbery.
We initially observe that the petition raises factual issues that call for a re-weighing of the evidence on
record. As a rule, this is not allowed under Rule 45, as only questions of law are covered in a petition
for review on certiorari. In this case, the Court is not a trier of facts, and thus, it is not tasked to make
its own assessment and give its independent evaluation of the probative value of the evidence
13
adduced by the parties in the proceedings below. However, the above rule admits of exceptions; one
14
of them is when there is a conflict in the factual findings of the lower courts. When this happens, no
reason exists for the lower courts’ factual findings to be conclusive and the Court carries the burden of
15
reviewing the evidence on hand.
We note in this regard that the conflict in the factual findings of the RTC and CA does not relate to
Briones’ criminal culpability – both courts found his conviction under the criminal information to be
supported by sufficient evidence. The conflict rather centers on the factual question of how the taking
took place which must necessarily affect the characterization of the crime committed.
With these considerations in mind, we find no compelling reason to disturb the findings of the RTC and
CA in their appreciation of the evidence supporting Briones’ culpability. The records show that
prosecution eyewitness S/G Gual positively identified Briones as the person who grabbed S/G Molina's
16
firearm and, thereafter, ran away; S/G Gual also testified that this firearm was never recovered. The
RTC and CA found eyewitness S/G Gual’s account credible; we find no reason to overturn these
findings.
In this regard, we give special significance to the RTC’s unique position in assessing the credibility of
witnesses, as the RTC has the unrestricted opportunity to observe firsthand the conduct and demeanor
17
of witnesses at the trial. Unless the trial judge plainly overlooked certain facts whose substance and
value may affect the result of the case, we respect his assessment of the credibility of the witnesses.
From our own reading of the records, we find that S/G Gual gave clear and precise answers; no
inconsistencies existed materially affecting their veracity. Neither was it shown that S/G Gual was
driven by any improper motive to falsely testify against Briones.
As S/G Gual is a credible eyewitness to the incident, we find no reason to doubt that he was with S/G
Molina when the incident happened, and saw all the incidents of the crime.
As against this credible and positive testimony of S/G Gual, Briones could only set up denial and alibi
as his defenses. We have previously ruled that for these defenses to deserve merit, they must be
18
substantiated by clear and convincing proof. Under the present facts, these defenses were without
corroboration. On the contrary, Briones and his new counsel desperately now move to try the case
19
again at the expense of Briones’ former counsel; based on allegedly newly discovered evidence.
They blame the former counsel’s allegedly erroneous legal strategy when he raised denial and alibi as
Briones’ defenses, instead of invoking self-defense or defense of a relative. They also now foist on this
20
Court an Affidavit of Desistance dated July 29, 2002 executed by Fuentes, as well as an Affidavit
21
dated July 22, 2002 executed by one Oskar Salud. These documents allegedly prove that Briones
had no intent to gain and, in fact, threw away the firearm after grabbing it from S/G Molina.
A change of Briones' defense from denial and alibi to self-defense or defense of a relative is effectively
a change of theory of the case brought only during appeal. We cannot allow this move. Law and
fairness to the adverse party demand that when a party adopts a particular theory and the case is tried
and decided on the basis of that theory in the court below, neither party can change his or her theory
22
on appeal. While this rule is not absolute, no exceptional reasons in this case exist to justify a
23
deviation. 1avvphil
Additionally, an error or mistake committed by a counsel in the course of judicial proceedings is not a
24
ground for new trial. In People v. Mercado, we declared:
It has been repeatedly enunciated that "a client is bound by the action of his counsel in the conduct of
a case and cannot be heard to complain that the result might have been different if he proceeded
differently. A client is bound by the mistakes of his lawyer. If such grounds were to be admitted as
reasons for reopening cases, there would never be an end to a suit so long as new counsel could be
employed who would allege and show that prior counsel had not been sufficiently diligent or
experienced or learned. x x x Mistakes of attorneys as to the competency of a witness, the sufficiency,
relevancy or irrelevancy of certain evidence, the proper defense, or the burden of proof, x x x failure
to introduce certain evidence, to summon witnesses, and to argue the case are not proper grounds for
a new trial, unless the incompetency of counsel is so great that his client is prejudiced and prevented
25
from properly presenting his case. [Emphasis supplied]
From the facts, it does not appear that Briones was denied competent legal representation in the
proceedings before the RTC.
Lastly, for new trial to be granted on the ground of newly discovered evidence, the concurrence of the
following conditions must obtain: (a) the evidence must have been discovered after trial; (b) the
evidence could not have been discovered at the trial even with the exercise of reasonable diligence; (c)
the evidence is material, not merely cumulative, corroborative, or impeaching; and (d) the evidence
26
must affect the merits of the case and produce a different result if admitted. In this case, although the
firearm surfaced after the trial, the other conditions were not established.
Evidence, to be considered newly discovered, must be one that could not, by the exercise of due
27
diligence, have been discovered before the trial in the court below. The determinative test is the
presence of due or reasonable diligence to locate the thing to be used as evidence in the trial.
Under the circumstances, Briones failed to show that he had exerted reasonable diligence to locate the
firearm; his allegation in his Omnibus Motion that he told his brothers and sisters to search for the
firearm, which yielded negative results, is purely self-serving. He also now admits having taken the
firearm and having immediately disposed of it at a nearby house, adjacent to the place of the
28
incident. Hence, even before the case went to court, he already knew the location of the subject
firearm, but did not do anything; he did not even declare this knowledge at the trial below.
In any case, we fail to see how the recovery of the firearm can be considered material evidence that
will affect the outcome of the case; the recovery of the subject firearm does not negate the commission
of the crime charged.
Neither are we convinced that the admission and consideration of the affidavits executed by Fuentes
and Oskar Salud will result in a different outcome for the case. Fuentes' affidavit shows that he is no
longer interested in pursuing the case because he has already recovered his firearm, while Oskar
Salud only stated that he found the subject firearm in his property. At face value, these statements do
not remove nor erase the prosecution’s evidence establishing that a crime has been committed, with
Briones as the perpetrator. We additionally note that these affidavits were executed on the entreaties
29
by Briones’ widowed mother to Fuentes and Salud, rendering the intrinsic worth of these documents
highly suspect; they appear to have been executed solely out of human compassion and for no other
reason.
From another perspective, we also consider that in petitions for new trial in a criminal proceeding
where a certain evidence was not presented, the defendant, in order to secure a new trial, must satisfy
the court that he has a good defense, and that the acquittal would in all probability follow the
30
introduction of the omitted evidence. We find that Briones’ change of defense from denial and alibi to
self-defense or in defense of a relative will not change the outcome for Briones considering that he
failed to show unlawful aggression on the part of S/G Molina and/or S/G Gual – the essential element
of these justifying circumstances under Article 11 of the Code. The records show that prior to the taking
of the firearm, S/G Molina and S/G Gual approached Briones and his companions to stop the fight
between Briones’ group and another person. To be sure, there was nothing unlawful in preventing a
fight from further escalating and in using reasonable and necessary means to stop it. This conclusion is
strengthened by evidence showing that at the time of the incident, Briones was drunk and was with
31
three companions; they all participated in the mauling.
What significantly remains on record is the unopposed testimony of S/G Gual that Briones grabbed the
firearm from S/G Molina; no evidence on record exists to show that this firearm was pointed at Briones
or at his companions.
For these reasons, we find that the CA did not commit any reversible error when it denied Briones'
motion for new trial. Likewise, we find no error in the RTC and CA conclusion that he is criminally liable
under the criminal information.
The crime committed was theft, not robbery
To show that robbery was committed, the government needs to prove the following elements: (1) the
taking of personal property be committed with violence or intimidation against persons; (2) the property
32
taken belongs to another; and (3) the taking be done with animo lucrandi. On the other hand, the
elements constituting the crime of theft are: (1) that there be taking of personal property; (2) that said
property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done
without the consent of the owner; and (5) that the taking be accomplished without the use of violence
33
against or intimidation of persons or force upon things. Thus, the distinguishing element between the
crimes of robbery and theft is the use of violence or intimidation as a means of taking the property
belonging to another; the element is present in the crime of robbery and absent in the crime of theft.
We have no doubt that the elements of taking of personal property which belongs to another person
without his consent have been established in the case, while the intent to gain is presumed from
unlawful taking and can only be negated by special circumstances showing a different intent on the
34
part of the perpetrator. We previously held that intent to gain is a mental state whose existence is
35
demonstrated by a person’s overt acts. Briones' overt acts in this case were in grabbing S/G Molina’s
firearm and running away with it. We stress that these pieces of evidence, showing his unlawful taking
of the firearm and running away with it immediately after, were not refuted by the defense's evidence
before the RTC. There is also evidence, as testified to by S/G Gual, that the firearm was not found nor
retrieved after this unlawful taking. Further, these pieces of evidence defeat Briones’ belated
contention that he threw away the firearm immediately after he got hold of it.
Under the circumstance, we are left to consider the nature of the crime committed, as proven by the
evidence on record. We agree with the RTC that only the crime of theft was committed in the case as
S/G Gual's testimony does not show that violence or intimidation attended the taking of the firearm;
S/G Gual only testified that Briones merely grabbed the firearm and ran away with it. Thus, we can only
convict Briones for the crime of theft for taking S/G Molina’s firearm without his consent. Theft is
36
produced the moment there is deprivation of personal property due to its taking with intent to gain.
In arriving at this conclusion, we are keenly aware that the accused was indicted under a charge for
robbery, not theft. The failure to specify the correct crime committed, however, will not bar Briones’
37
conviction for the crime of theft. The character of the crime is not determined by the caption or
preamble of the information, or by the specification of the provision of law alleged to have been
violated. The crime committed is determined by the recital of the ultimate facts and circumstances in
38
the complaint or information. In this case, the allegations in the Information are sufficient to make out
a charge of theft.
The Penalty
The imposable penalty for the crime of theft under Article 309 of the Code depends upon the value of
39
the thing stolen. In this case, no evidence was introduced to prove the value of the firearm; the
records show that the RTC found that the stolen firearm was worth ₱6,000.00 solely on the basis of the
40
allegation in the criminal information that the firearm was ₱8,000.00, more or less. In the absence of
clear evidence showing the amount of the stolen property, we have to resolve any doubt in favor of
Briones; he can only be sentenced to the lightest penalty prescribed by law applicable to the facts of
41
the case. The lightest penalty that applies to theft, where the value of the thing stolen does not
exceed five pesos, is found in paragraph 6 of Article 309 which imposes the penalty of arresto mayor,
in its minimum and medium periods, or imprisonment of one (1) month and one (1) day to four (4)
months. Accordingly, for the crime of theft, Briones’ imprisonment sentence will be within one (1)
month and one (1) day of arresto mayor to four (4) months of arresto mayor.
WHEREFORE, premises considered, the petition is PARTLY GRANTED. The Decision dated July 17,
2002 and Resolution dated November 13, 2002 of the Court of Appeals in CA-G.R. CR No. 24127 are
hereby MODIFIED. Petitioner Rommel Briones is found GUILTY beyond reasonable doubt of the crime
of THEFT under Article 308 of the Revised Penal Code, as amended. He is sentenced to suffer a
straight penalty of imprisonment of four (4) months of arresto mayor.
SO ORDERED.
G.R. NO. 184537 April 23, 2010
QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, Petitioners,
vs.
The HONORABLE SANDIGANBAYAN, 4th DIVISION and the PEOPLE OF THE PHILIPPINES,
Respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari, prohibition and mandamus under Rule 65 of the 1997 Rules on Civil
Procedure with a prayer for the issuance of a writ of preliminary injunction and temporary restraining
1
order assailing the July 14, 2008 Resolution of the Sandiganbayan in Criminal Case No. SB-08 CRM
0263, denying the Motion for Preliminary Investigation filed by the petitioners who were charged with a
violation of Section 3(e) of Republic Act No. 3019, and the denial of their Motion for Reconsideration
done in open court on August 13, 2008.
2
An Information dated September 13, 2000 charging both petitioners with having violated Section 3(e)
of Republic Act No. 3019, by causing undue injury to the government, reads:
The undersigned Graft Investigation Officer of the Office of the Ombudsman-Visayas, accuses
QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for VIOLATION OF SECTION 3(e) OF
REPUBLIC ACT NO. 3019, AS AMENDED (THE ANTI-GRAFT AND CORRUPT PRACTICES ACT),
committed as follows:
That in or about the months of November and December, 1997, at the Municipality of Lavezares,
Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, above-
named accused, public officials, being the Municipal Mayor and PNP Member of Lavezares, Northern
Samar in such capacity and committing the offense in relation to office, conniving, confederating and
mutually helping with one another, and with the late Limpio Legua, a private individual, with deliberate
intent, with evident bad faith and manifest partiality, did then and there willfully, unlawfully and
feloniously enter into a Pakyaw Contract for the Construction of Barangay Day Care Centers for
Barangays Mac-arthur and Urdaneta, Lavezares, Northern Samar, each in the amount of FORTY-
EIGHT THOUSAND FIVE HUNDRED PESOS (₱48,500.00), Philippine Currency, or a total amount of
NINETY-SEVEN THOUSAND PESOS (₱97,000.00), Philippine Currency, without conducting a
competitive public bidding, thus depriving the government the chance to obtain the best, if not, the
most reasonable price, and thereby awarding said contracts to Olimpio Legua, a non-license contractor
and non-accredited NGO, in violation of Sec. 356 of Republic Act No. 7160 (The Local Government
Code) and COA Circular No. 91-368, to the damage and prejudice of the government.
CONTRARY TO LAW.
This case was initially raffled to the Third Division of Sandiganbayan and was docketed as Criminal
Case No. 26319.
3
In a Resolution promulgated on June 14, 2002, the Third Division granted petitioners’ Motion to Quash
and dismissed the information "for failure of the prosecution to allege and prove the amount of actual
damages caused the government, an essential element of the crime charged."
4
In a Memorandum dated July 1, 2003, the Ombudsman directed the Office of the Special Prosecutor
(OSP) to study the possibility of having the information amended and re-filed with the Sandiganbayan.
5
Thus, the OSP re-filed the Information dated August 17, 2007, this time, docketed as Criminal Case
No. SB-08 CRM 0263, with the Fourth Division of the Sandiganbayan, charging the petitioners for
violation of Section 3(e) of R.A. No. 3019, by giving unwarranted benefit to a private person, to the
prejudice of the government.
The information, subject of the petition, now reads:
The undersigned Prosecutor of the Office of the Special Prosecutor/Office of the Ombudsman, hereby
accuses, MAYOR QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for the violation of Section 3(e)
of Republic Act 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act,
committed as follows:
That in or about the months of November and December, 1997 at the Municipality of Lavezares,
Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, accused
QUINTIN B. SALUDAGA, a high ranking public official being then the Mayor of Lavezares, Northern
Samar, and committing the crime herein charged while in the discharge of his official administrative
function, conspiring and conniving with accused SPO2 FIEL B. GENIO, a member of Lavezares Police
Force (PNP) and with the late OLIMPIO LEGUA, a private individual, with deliberate intent, did then
and there willfully, unlawfully and criminally give unwarranted benefit or advantage to the late Olimpio
Legua, a non-license contractor and non-
accredited NGO, through evident bad faith and manifest partiality by then and there entering into a
Pakyaw Contract with the latter for the Construction of Barangay Day Care Centers for barangays
Mac-Arthur and Urdaneta, Lavezares, Northern Samar, in the amount of FORTY EIGHT THOUSAND
FIVE HUNDRED PESOS (P48,500.00) each or a total of NINETY SEVEN THOUSAND PESOS
(P97,000.00) Philippine Currency, without the benefit of a competitive public bidding to the prejudice of
the Government and public interest.
CONTRARY TO LAW.
6
Petitioners filed a Motion for Preliminary Investigation dated June 4, 2008 which was strongly opposed
7
by the prosecution in its Opposition dated June 18, 2008.
Petitioners contend that the failure of the prosecution to conduct a new preliminary investigation before
the filing of the second Information constituted a violation of the law because the latter charged a
different offense–that is, violation of Section 3(e) by giving unwarranted benefit to private parties.
Hence, there was a substitution of the first Information. They argue that assuming that no substitution
took place, at the very least, there was a substantial amendment in the new information and that its
submission should have been preceded by a new preliminary investigation. Further, they claim that
newly discovered evidence mandates re-examination of the finding of a prima facie cause to file the
case.
On July 14, 2008, the Sandiganbayan Fourth Division issued the assailed Resolution denying the
petitioners’ motion for preliminary investigation. The graft court found that there is no substituted
information or substantial amendment that would warrant the conduct of a new preliminary
investigation. It gave the following ratiocination:
The re-filed information did not change the nature of the offense charged, but merely modified the
mode by which accused committed the offense. The substance of such modification is not such as to
necessitate the conduct of another preliminary investigation.
Moreover, no new allegations were made, nor was the criminal liability of the accused upgraded in the
re-filed information. Thus, new preliminary investigation is not in order.
The dispositive portion of the Resolution states:
Finding the arguments of accused-movants indefensible, the sufficiency of the information must be
sustained.
WHEREFORE, having established the sufficiency of the Information, the motion under consideration is
hereby DENIED for lack of merit. Accordingly, the arraignment of both accused shall proceed as
8
scheduled.
9
Petitioners filed a Motion for Reconsideration dated August 6, 2008, submitting that the two
Informations substantially charged different offenses, such that the present information constituted a
substitution that should have been preceded by a new preliminary investigation.
On August 13, 2008, in a hearing for the arraignment of petitioners, the Sandiganbayan denied the
10
Motion in open court.
Hence, petitioners interpose the present petition for certiorari, prohibition and mandamus with prayer
for the issuance of a writ of preliminary injunction and temporary restraining order under Rule 65 of the
Rules of Court anchored on the following grounds:
I
The Honorable Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it refused to order the preliminary investigation of the case a quo, when the second
Information in the instant case constituted substituted Information whose submission required the
conduct of preliminary investigation.
II
The Honorable Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it refused to order the conduct of a preliminary investigation of the case a quo, since
the second Information therein contained substantial amendments whose submission required the
conduct of preliminary investigation.
III
The Honorable Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it refused to order the preliminary investigation of the case a quo, although the newly
discovered evidence mandates due re-examination of the finding that prima facie cause existed to file
11
the case a quo.
From the arguments raised by petitioners, the core issue is whether or not the two (2) ways of violating
section 3(e) of Republic Act 3019, namely: (a) by causing undue injury to any party, including the
Government; or (b) by giving any private party any unwarranted benefit, advantage or preference
constitute two distinct and separate offenses that would warrant a new or another preliminary
investigation.
12
In its Comment dated January 12, 2009, respondent People of the Philippines, represented by the
Office of the Special Prosecutor, counters that there is no substituted information in contemplation of
law and jurisprudence that would require the conduct of another preliminary investigation. There is no
newly-discovered evidence that would lead to a different determination should there be another
preliminary investigation conducted.
13
In their Reply, dated April 24, 2009, petitioners insist that the offenses charged in the first and second
Information are not the same, and what transpired was a substitution of Information that required prior
conduct of preliminary investigation. Even assuming there was no substitution, substantial
amendments were made in the second Information, and that its submission should have been
preceded by a new preliminary investigation.
We find no merit in this petition.
Petitioners were charged with a violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt
Practices Act which reads:
Section 3. Corrupt practices of public officers.- In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are
hereby declared to be 0unlawful:
xxx
(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees charged with the grant of licenses or permits or other
concessions.
The essential elements of the offense are as follows:
1. The accused must be a public officer discharging administrative, judicial or official functions;
2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and
3. That his action caused any undue injury to any party, including the government, or giving any private
14
party unwarranted benefits, advantage or preference in the discharge of his functions.
In a string of decisions, the Court has consistently ruled:
R.A. 3019, Section 3, paragraph (e), as amended, provides as one of its elements that the public
officer should have acted by causing any undue injury to any party, including the Government, or by
giving any private party unwarranted benefits, advantage or preference in the discharge of his
functions. The use of the disjunctive term "or" connotes that either act qualifies as a violation of Section
3 paragraph (e), or as aptly held in Santiago, as two (2) different modes of committing the offense. This
does not however indicate that each mode constitutes a distinct offense, but rather, that an accused
15
may be charged under either mode or under both.
The afore-stated ruling is consistent with the well-entrenched principle of statutory construction that
"The word or is a disjunctive term signifying disassociation and independence of one thing from the
other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies, as
16
a disjunctive word."
Contrary to the argument of petitioners, there is no substituted information. The Information dated
August 17, 2007 filed in Criminal Case No. SB-08 CRM 0263 charged the same offense, that is,
violation of Section 3(e) of Republic Act No. 3019. Only the mode of commission was modified. While
17
jurisprudence, the most recent being Talaga, Jr. v. Sandiganbayan, provides that there are two (2)
acts or modes of committing the offense, thus: a) by causing any undue injury to any party, including
the government; or b) by giving any private party any unwarranted benefit, advantage or preference, it
does not mean that each act or mode constitutes a distinct offense. An accused may be charged under
18 19
either mode or under both should both modes concur.
20
Petitioners’ reliance on the Teehankee v. Madayag, ruling that, "in substitution of information another
preliminary investigation is entailed and that the accused has to plead anew to the new information" is
not applicable to the present case because, as already stated, there is no substitution of information
there being no change in the nature of the offense charged.
21
Consequently, petitioners cannot invoke the principle enunciated in Villaflor v. Vivar, that failure to
conduct a new preliminary investigation is tantamount to a violation of their rights. While it is true that
preliminary investigation is a statutory and substantive right accorded to the accused before trial, the
denial of petitioners’ claim for a new investigation, however, did not deprive them of their right to due
process. An examination of the records of the case discloses that there was a full-blown preliminary
investigation wherein both petitioners actively participated.
Anent the contention of petitioners that the information contained substantial amendments warranting a
new preliminary investigation, the same must likewise fail.1avvphi1
Petitioners erroneously concluded that giving undue injury, as alleged in the first Information, and
conferring unwarranted benefits, alleged in the second Information, are two distinct violations of, or two
distinct ways of violating Section 3(e) of Republic Act No. 3019, and that such shift from giving undue
injury to conferring unwarranted benefit constituted, at the very least, a substantial amendment. It
should be noted that the Information is founded on the same transaction as the first Information, that of
entering into a Pakyaw Contract for the construction of barangay day care centers for barangays Mac-
Arthur and Urdaneta, Lavezares, Northern Samar. Thus, the evidentiary requirements for the
prosecution and defense remain the same.
To bolster their claim for a reinvestigation of the offense, petitioners cited the case of Matalam v.
22
Sandiganbayan. The same is inapplicable to petitioners’ case. In Matalam, there was indeed a
substantial amendment which entitled the accused to another preliminary investigation. The recital of
facts constituting the offense charged therein was definitely altered. In the original information, the
prohibited act allegedly committed by the petitioner was the illegal and unjustifiable refusal to pay the
monetary claims of the private complainants, whereas in the amended information, it is the illegal
dismissal from the service of the private complainants. In the case at bar, there is no substantial
amendment to speak of. As discussed previously, the Information in Criminal Case No. 26319 was
already dismissed by the Third Division of the Sandiganbayan in view of the petitioners’ Motion to
Quash. As such, there is nothing more to be amended.
23
The Court is not unaware of the case of People v. Lacson, where it was written:
The case may be revived by the State within the time-bar either by the refiling of the Information or by
the filing of a new Information for the same offense or an offense necessarily included therein. There
would be no need of a new preliminary investigation. However, in a case wherein after the provisional
dismissal of a criminal case, the original witnesses of the prosecution or some of them may have
recanted their testimonies or may have died or may no longer be available and new witnesses for the
State have emerged, a new preliminary investigation must be conducted before an Information is
refiled or a new Information is filed. A new preliminary investigation is also required if aside from the
original accused, other persons are charged under a new criminal complaint for the same offense or
necessarily included therein; or if under a new criminal complaint, the original charge has been
upgraded; or if under a new criminal complaint, the criminal liability of the accused is upgraded from
that as an accessory to that as a principal. The accused must be accorded the right to submit counter-
affidavits and evidence.
No such circumstance is obtaining in this case, because there was no modification in the nature of the
charged offense.1avvphi1 Consequently, a new preliminary investigation is unnecessary and cannot
be demanded by the petitioners.
Finally, the third assigned error, that newly discovered evidence mandates due re-examination of the
finding of prima facie cause to file the case, deserves scant consideration. For petitioners, it is
necessary that a new investigation be conducted to consider newly discovered evidence, in particular,
the Affidavit of COA Auditor Carlos G. Pornelos, author of the audit report. We are not convinced.
Under Section 2, Rule 121 of the Rules of Court, the requisites for newly discovered evidence are: (a)
the evidence was discovered after trial (in this case, after investigation); (b) such evidence could not
have been discovered and produced at the trial with reasonable diligence; and (c) that it is material, not
merely cumulative, corroborative or impeaching, and is of such weight that, if admitted, will probably
24
change the judgment.
The Pornelos affidavit, which petitioners claim as newly-discovered, was executed by affiant way back
in November 29, 2000, as correctly found by the Sandiganbayan. Clearly, it cannot be considered as
newly found evidence because it was already in existence prior to the re-filing of the case. In fact, such
sworn affidavit was among the documents considered during the preliminary investigation. It was the
25
sole annexed document to petitioners’ Supplement to Motion for Reinvestigation, offered to dispute
the charge that no public bidding was conducted prior to the execution of the subject project.
More important is the prosecution’s statement in its Memorandum that, "after a careful re-evaluation of
the documentary evidence available to the prosecution at the time of the filing of the initial Information,
and at the time of the re-filing of the Information, the prosecution insists on the finding of probable
26
cause, an exercise within the exclusive province of the Office of the Ombudsman."
 27
Worthy of note is the case of Soriano v. Marcelo, viz:
Case law has it that the determination of probable cause against those in public office during a
preliminary investigation is a function that belongs to the Office of the Ombudsman. The Ombudsman
has the discretion to determine whether a criminal case, given its attendant facts and circumstances,
should be filed or not. It is basically his call.
Without good and compelling reasons, the Court cannot interfere in the exercise by the Office of the
28
Ombudsman of its investigatory and prosecutory powers. The only ground upon which it may
29
entertain a review of the Office of the Ombudsman’s action is grave abuse of discretion.
Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to perform a duty enjoined
by law or to act in contemplation of law as when the judgment rendered is not based on law and
30
evidence but on caprice, whim and despotism.
The special civil action for certiorari under Rule 65 of the Rules of Court is intended to correct errors of
jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. The writ of certiorari
is directed against a tribunal, board or officer exercising judicial or quasi-judicial function that acted
without or in excess of its or his jurisdiction or with grave abuse of discretion. Grave abuse of discretion
means such capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. To
justify the issuance of the writ of certiorari, the abuse of discretion must be grave, as when the power is
exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be
so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the
duty enjoined, or to act at all, in contemplation of law, as to be equivalent to having acted without
31
jurisdiction.
The case at bench discloses no evident indication that respondent Sandiganbayan acted with
arbitrariness, whim or caprice. It committed no error in refusing to order the conduct of another
preliminary investigation. As sufficiently explained by the prosecution, a new preliminary investigation
is not necessary as there was neither a modification of the nature of the offense charged nor a new
allegation. Such conduct of preliminary investigation anew will only delay the resolution of the case and
would be an exercise in futility in as much as there was a complete preliminary investigation actively
participated by both petitioners.
In view of the foregoing, we hold that the public respondent committed no grave abuse of discretion in
issuing its Resolution of July 14, 2008, denying petitioners’ motion for preliminary investigation in
Criminal Case No. SB-08 CRM 0263.
WHEREFORE, the petition is DENIED.
SO ORDERED.
G.R. No. 182555 February 8, 2011
LENIDO LUMANOG and AUGUSTO SANTOS, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 185123
CESAR FORTUNA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 187745
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
SPO2 CESAR FORTUNA y ABUDO, RAMESES DE JESUS y CALMA, LENIDO LUMANOG y
LUISTRO, JOEL DE JESUS y VALDEZ and AUGUSTO SANTOS y GALANG, Accused,
RAMESES DE JESUS y CALMA and JOEL DE JESUS y VALDEZ, Accused-Appellants.
RESOLUTION
VILLARAMA, JR., J.:
This resolves the motions for reconsideration separately filed by Lenido Lumanog and Augusto Santos,
Cesar Fortuna and Rameses de Jesus assailing our Decision dated September 7, 2010 convicting
them of the crime of murder, the dispositive portion of which reads:
WHEREFORE, the consolidated petitions and appeal are hereby DISMISSED. The Decision dated
April 1, 2008 of the Court of Appeals in CA-G.R. CR-HC No. 00667 is hereby AFFIRMED with
MODIFICATIONS in that the civil indemnity for the death of Col. Rolando N. Abadilla is hereby
increased to ₱75,000.00, and the amounts of moral and exemplary damages awarded to his heirs are
reduced to ₱75,000.00 and ₱30,000.00, respectively.
With costs against the accused-appellants.
1
SO ORDERED.
Lumanog and Augusto Santos seek the reversal of their conviction on the following grounds:
The Honorable Supreme Court erred in:
I. Setting out in the facts of the case and the contents of inadmissible extrajudicial confessions;
II. Not including the extrajudicial confession of Lorenzo delos Santos as excluded evidence;
III. Applying the ruling in People v. Rivera "that the testimony of a sole eyewitness is sufficient to
support a conviction so long as it is clear, straightforward and worthy of credence by the trial court";
IV. According finality to the evaluation made by the lower court of the testimony of Freddie Alejo;
V. Ruling that there was positive identification;
VI. Finding "none of the danger signals enumerated by Patrick M. Wall" when 3, 7, 10, 11, 12 in said
enumeration are present;
VII. Dismissing the mismatch between the prior description given by the witness and the actual
appearances of the accused;
VIII. Relying on the ocular inspection conducted at a time when a material condition is significantly
altered;
IX. Ruling that the inconsistencies in Alejo’s earlier statement and his in-court testimony have been
explained;
X. Not discrediting Alejo’s testimony despite acceptance of benefits from the Abadilla family;
XI. Holding that the acquittal of Lorenzo delos Santos does not necessarily benefit the appellants;
XII. Ruling that the ballistic and fingerprint examination results are inconclusive and not indispensable;
XIII. Not considering the totality of evidence presented by the defense as against the alleged "positive
identification" of the accused.
XIV. Allowing Justice Jose Catral Mendoza to take part in the deliberation and the voting;
XV. Dismissing the evidence presented by Augusto Santos;
XVI. Ruling that the silence of accused Lumanog amounts to a quasi-confession;
XVII. Holding that the delay of (4) four years during which the case remained pending with the CA and
2
this Court was not unreasonable, arbitrary or oppressive.
Rameses de Jesus raised the following grounds in his motion:
I.
THE HONORABLE SUPREME COURT GRAVELY ERRED IN HEAVILY RELYING ON THE LONE
ALLEGED EYEWITNESS SECURITY GUARD (SG) FREDDIE ALEJO’S TESTIMONY, WHICH WAS
CHARACTERIZED BY MATERIAL OMISSIONS, PATENT INCREDIBILITY, CONTRADICTIONS AND
DISCREPANCIES.
II.
THE HONORABLE SUPREME COURT GROSSLY MISAPPRECIATED THE FIRST SWORN
STATEMENT GIVEN BY SG FREDDIE ALEJO, WHEREIN HE STATED THAT THERE WERE FOUR
(4) SUSPECTS WHO PERPETRATED THE CRIME CONTRARY TO HIS SUBSEQUENT
TESTIMONY IN OPEN COURT.
III.
THE HONORABLE SUPREME COURT FAILED TO APPRECIATE THE PERSONAL
CIRCUMSTANCES OF THE ACCUSED-APPELLANTS, WHICH WOULD SHOW AS HIGHLY
UNLIKELY THEIR ALLEGED COLLECTIVE GUILT AND CONSPIRACY.
IV.
THE HONORABLE SUPREME COURT FAILED TO GIVE WEIGHT TO PHYSICAL EVIDENCE,
PARTICULARLY THE EXCULPATORY BALLISTICS AND DACTYLOSCOPY EVIDENCE, AND
3
EXPERT TESTIMONY PRESENTED BY THE DEFENSE.
On his part, Cesar Fortuna argues that:
THE LONE, CONTRADICTED AND INCREDIBLE TESTIMONY OF S/G ALEJO IS NOT SUFFICIENT
4 6
TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT
At the inception, let it be emphasized that the filing of a motion for reconsideration does not impose on
us the obligation to discuss and rule again on the grounds relied upon by the movant which are mere
reiteration of the issues previously raised and thoroughly determined and evaluated in our Decision
5
being questioned. In particular, the Court need not dwell again on the extrajudicial confessions of Joel
de Jesus and Lorenzo delos Santos which we have held inadmissible, the delay in the resolution of the
appeals before the CA and this Court which under the circumstances cannot be deemed unreasonable
or arbitrary, the inconclusive ballistic and fingerprint examination results, and the effect of Lorenzo
delos Santos’ acquittal to the rest of appellants. These matters have been passed upon and
adequately discussed in our Decision.
In fine, the accused-movants strongly assail the weight and credence accorded to the identification of
the accused by the lone eyewitness presented by the prosecution, security guard Freddie Alejo. It was
pointed out, among others, that: (1) in his statement given to the police investigators immediately after
the incident, Alejo mentioned only four suspects, contrary to his subsequent testimony in court; it was
impossible for him not to mention the two men he had seen walking back and forth before the shooting;
(2) Alejo accepted financial support and benefits from the Abadilla family which could have colored his
testimony against the accused; (3) his in-court identification of the six accused is questionable and
unreliable considering that it referred to them only by numbers and he had given prior description of
only two suspects; and (4) the ocular inspection conducted by the trial court to confirm Alejo’s
observations was likewise unreliable because it was made at a time when a material condition is
significantly altered, i.e., it was held from 10:00 a.m. onwards whereas the incident occurred between
8:30 and 9:00 a.m. when the glare of the morning sun directly hits the guard post where Alejo was
stationed.
Fortuna submitted an Affidavit dated November 12, 2009 executed by a certain Orencio G. Jurado, Jr.
who claims to be one of the police officers initially assigned to investigate the case. Fortuna contends
that said belated statement would certainly cast doubt on the procedures undertaken by the police
authorities in the apprehension of the likely perpetrators.
We find the motions bereft of merit.
While it is true that Alejo mentioned only four and not six suspects in his June 13, 1996 sworn
statement, this did not impair his testimony as an eyewitness. Alejo was simply responding to specific
questions as to what he had witnessed during the shooting incident. Herein quoted is an excerpt from
the questioning by SPO1 Edilberto S. Nicanor of the Criminal Investigation Division (CID) at Camp
Karingal (PNP-NCR) and Alejo’s answers thereto:
08. T - Habang ikaw ay naka-duty bilang guwardiya sa 211 Katipunan Road, Quezon City, itong araw
na ito, may napansin ka bang hindi pangkaraniwang pangyayari?
S - Mayroon, Sir.
09. T – Ano iyon?
S - May binaril na sakay ng kotse sa harap ng puwesto ko sir.
10. T - Anong oras ito nangyari?
S - 8:40 ng umaga kanina sir, more or less (13 June 1996)
11. Tanong : Sino ba itong binaril na tinutukoy mo, kung kilala mo?
Sagot : Isang hindi ko kilala na lalaki sir.
12. T - Sino naman ang bumaril sa biktima na ito, kung kilala mo?
S - Apat na hindi kilalang lalaki sir na armado ng baril.
x x x x (Emphasis supplied.)
The foregoing shows that Alejo merely gave the responsive answer to the question as to those persons
whom he saw actually shoot the victim who was in his car. As the question was phrased, Alejo was not
being asked about the persons who had participation or involvement in the crime, but only those who
actually fired at the victim. Hence, he replied that there were four (4) armed men who suddenly fired
shots at the victim. What followed was Alejo’s narration of what the gunmen further did to the already
wounded victim, to those people within the vicinity -- including himself who was ordered at gunpoint to
lie down and not interfere -- and until the firing stopped as the suspects ran away. Clearly, it was not a
fatal omission on the part of Alejo not to include in his first affidavit the two other suspects who were
acting as lookouts. During his testimony in court, Alejo was able to fully recount the details and state
that there were two men walking back and forth before the shooting. It is settled that contradictions
between the contents of an affiant’s affidavit and his testimony in the witness stand do not always
militate against the witness’ credibility. This is so because affidavits, which are usually taken ex parte,
7
are often incomplete and inaccurate.
There is likewise nothing irregular in Alejo’s manner of testifying in court, initially referring to the
accused by numbers, to indicate their relative positions as he remembered them, and the individual
participation of each in the violent ambush of Abadilla. As already explained in our decision, Alejo’s
elevated position from the guardhouse gave him such a clear and unobstructed view of the incident
that he was able to recognize the faces and physical features of the accused at the time. When two of
the accused actually poked a gun at him, it gave him more opportunity to see the faces of the accused
who had briefly turned their eyes on him. Furthermore, experience dictates, precisely because of the
unusual acts of violence committed right before witnesses’ eyes, that they remember with a high
 8 10
degree of reliability the identity of criminals. Indeed, Alejos’ recollection is not of "superhuman" level discovered" pursuant to Section 2, Rule 121 of the Revised Rules of Criminal Procedure, as
as accused now make it appear, considering that he was a trained security guard, whose job demands amended.1avvphi1
extra perceptiveness and vigilance at all times especially during emergency or critical situations. Keen Evidence, to be considered newly discovered, must be one that could not, by the exercise of due
11
scrutiny of the physical appearance and behavior of persons is a routine part of a security guard’s work diligence, have been discovered before the trial in the court below. Movant failed to show that the
duties. defense exerted efforts during the trial to secure testimonies from police officers like Jurado, or other
Movants likewise fault this Court for giving considerable weight to the observations made by the trial persons involved in the investigation, who questioned or objected to the apprehension of the accused
judge during the ocular inspection, arguing that the timing of said ocular inspection did not coincide in this case. Hence, the belatedly executed affidavit of Jurado does not qualify as newly discovered
with the precise hour in the morning when the shooting incident happened. Because the shooting took evidence that will justify re-opening of the trial and/or vacating the judgment. In any case, we have
place between 8:30 to 9:00 when the glare of the morning sun directly hits the guard post of Alejo, the ruled that whatever flaw that may have initially attended the out-of-court identification of the accused,
latter supposedly cannot be said to have had such clear vantage point as found by the trial judge when the same was cured when all the accused-appellants were positively identified by the prosecution
he positioned himself at the said guard post at a later time, which is already past 10:00 in the morning. eyewitness during the trial.
We are not persuaded. Finally, we must make it clear that Justice Jose Catral Mendoza, who, as then presiding judge at the
Movants are raising the issue for the first time before this Court and long after trial and rendition of trial court, heard the prosecution and defense witnesses, never took part in the deliberations and voting
judgment. We have perused the transcript of stenographic notes taken during the ocular inspection by the Court in this case. The absence of notation in the ponencia that Justice Mendoza had "no part"
conducted by the trial court on September 26, 1996, and found no objection or comment made by the in the deliberations and voting in this case was purely an oversight and inadvertent omission. The
defense counsel regarding the timing of the inspection and its relevance to the evaluation of Alejo’s Clerk of Court, Atty. Enriqueta Esguerra-Vidal, had already rectified such error in the Revised Page 75
testimony. Neither did the accused complain of any irregularity in the conduct of the said ocular of our Decision dated September 7, 2010.
inspection before the appellate court. If indeed, the accused found the timing of the ocular inspection IN VIEW OF THE FOREGOING, the motions for reconsideration filed by Lenido Lumanog and Augusto
crucial to their defense that Alejo was not really an eyewitness as he could not have clearly seen the Santos, Rameses de Jesus and Cesar Fortuna are hereby DENIED WITH FINALITY.
faces of all the accused from his guard post, they could have made a proper manifestation or objection Let entry of judgment be made in due course.
before the trial judge. They could have even staged a reenactment to demonstrate to the trial court the SO ORDERED.
alleged glare of the morning sun at the time of the commission of the crime, which could have affected
Alejo’s perception of the incident. But they did not. It is now too late in the day for the accused to assail
as irregular the ocular inspection which was done with the conformity and in the presence of their
counsel.
It is an admitted fact that Alejo and his family were sheltered and given financial support by the victim’s
family, presumably out of gratitude and sympathy considering that Alejo lost his job after the incident.
Such benevolence of the Abadilla family, however, is not sufficient basis for the conclusion that Alejo
would falsely accuse movants as the perpetrators of the crime. As we have stressed, Alejo did not
waver in his identification of the accused despite a grueling cross-examination by the defense lawyers.
Both the trial and appellate courts found Alejo’s testimony as credible, categorical and straightforward.
After a painstaking review of the records, we find no cogent reason to deviate from their findings on the
issue of credibility of the prosecution’s lone eyewitness.
As to the affidavit of Orencio G. Jurado, Jr. submitted by Fortuna, the said affiant claimed that he had a
heated argument with Inspector Roger Castillo during one of the hearings before the trial court
because Inspector Castillo was urging him (Jurado) "to confirm that those arrested by the joint team of
CID and PARAK-DILG were exactly the same people/suspects described by the guards to which [he]
firmly declined". Jurado alleged that he was surprised to see the faces of the suspects flashed on TV
several days after Herbas and Alejo gave their statements at Camp Karingal because they did not fit
the description given by witnesses Herbas and Alejo. Jurado was also allegedly prevented earlier by
an unidentified policeman -- as per instruction of then DILG Secretary Robert Barbers -- from
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interviewing the suspects arrested by the operatives of the CID and PARAK-DILG.
Evidently, Fortuna seeks the introduction of additional evidence to support the defense argument that
there was no positive identification of Abadilla’s killers. To justify a new trial or setting aside of the
judgment of conviction on the basis of such evidence, it must be shown that the evidence was "newly