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Transcript of crim 89-99
G.R. No. 167571 November 25, 2008
LUIS PANAGUITON, JR., petitioner
vs.
DEPARTMENT OF JUSTICE, RAMON C. TONGSON and
RODRIGO G. CAWILI, respondents.
D E C I S I O N
TINGA, J.:
This is a Petition for Review1 of the resolutions of the
Court of Appeals dated 29 October 2004 and 21
March 2005 in CA G.R. SP No. 87119, which dismissed
Luis Panaguiton, Jr.'s (petitioner's) petition for
certiorari and his subsequent motion for
reconsideration.2
The facts, as culled from the records, follow.
In 1992, Rodrigo Cawili (Cawili) borrowed various
sums of money amounting to P1,979,459.00 from
petitioner. On 8 January 1993, Cawili and his business
associate, Ramon C. Tongson (Tongson), jointly issued
in favor of petitioner three (3) checks in payment of
the said loans. Significantly, all three (3) checks bore
the signatures of both Cawili and Tongson. Upon
presentment for payment on 18 March 1993, the
checks were dishonored, either for insufficiency of
funds or by the closure of the account. Petitioner
made formal demands to pay the amounts of the
checks upon Cawili on 23 May 1995 and upon
Tongson on 26 June 1995, but to no avail.3
On 24 August 1995, petitioner filed a complaint
against Cawili and Tongson4 for violating Batas
Pambansa Bilang 22 (B.P. Blg. 22)5 before the Quezon
City Prosecutor's Office. During the preliminary
investigation, only Tongson appeared and filed his
counter-affidavit.6 Tongson claimed that he had been
unjustly included as party-respondent in the case
since petitioner had lent money to Cawili in the
latter's personal capacity. Moreover, like petitioner,
he had lent various sums to Cawili and in
appreciation of his services, he was
offered to be an officer of Roma Oil Corporation. He
averred that he was not Cawili's business associate;
in fact, he himself had filed several criminal cases
against Cawili for violation of B.P. Blg. 22. Tongson
denied that he had issued the bounced checks and
pointed out that his signatures on the said checks had
been falsified.
To counter these allegations, petitioner presented
several documents showing Tongson's signatures,
which were purportedly the same as the those
appearing on the checks.7 He also showed a copy of
an affidavit of adverse claim wherein Tongson himself
had claimed to be Cawili's business associate.8
In a resolution dated 6 December 1995,9 City
Prosecutor III Eliodoro V. Lara found probable cause
only against Cawili and dismissed the charges against
Tongson. Petitioner filed a partial appeal before the
Department of Justice (DOJ) even while the case
against Cawili was filed before the proper court. In a
letter-resolution dated 11 July 1997,10 after finding
that it was possible for Tongson to co-sign the
bounced checks and that he had deliberately altered
his signature in the pleadings submitted during the
preliminary investigation, Chief State Prosecutor
Jovencito R. Zuño directed the City Prosecutor of
Quezon City to conduct a reinvestigation of the case
against Tongson and to refer the questioned
signatures to the National Bureau of Investigation
(NBI).
Tongson moved for the reconsideration of the
resolution, but his motion was denied for lack of
merit.
On 15 March 1999, Assistant City Prosecutor Ma.
Lelibet S. Sampaga (ACP Sampaga) dismissed the
complaint against Tongson without referring the
matter to the NBI per the Chief State Prosecutor's
resolution. In her resolution,11 ACP Sampaga held that
the case had already prescribed pursuant to Act No.
3326, as amended,12 which provides that violations
penalized by B.P. Blg. 22 shall prescribe after four (4)
years. In this case, the four (4)-year period started on
the date the checks were dishonored, or on 20
January 1993 and 18 March 1993. The filing of the
complaint before the Quezon City Prosecutor on 24
August 1995 did not interrupt the running of the
prescriptive period, as the law contemplates judicial,
and not administrative proceedings. Thus,
considering that from 1993 to 1998, more than four
(4) years had already elapsed and no information had
as yet been filed against Tongson, the alleged
violation of B.P. Blg. 22 imputed to him had already
prescribed.13 Moreover, ACP Sampaga stated that the
order of the Chief State Prosecutor to refer the
matter to the NBI could no longer be sanctioned
under Section 3, Rule 112 of the Rules of Criminal
Procedure because the initiative should come from
petitioner himself and not the investigating
prosecutor.14 Finally, ACP Sampaga found that
Tongson had no dealings with petitioner.15
Petitioner appealed to the DOJ. But the DOJ, through
Undersecretary Manuel A.J. Teehankee, dismissed
the same, stating that the offense had already
prescribed pursuant to Act No. 3326.16Petitioner filed
a motion for reconsideration of the DOJ resolution.
On 3 April 2003,17 the DOJ, this time through then
Undersecretary Ma. Merceditas N. Gutierrez, ruled in
his favor and declared that the offense had not
prescribed and that the filing of the complaint with
the prosecutor's office interrupted the running of the
prescriptive period citing Ingco v.
Sandiganbayan.18 Thus, the Office of the City
Prosecutor of Quezon City was directed to file three
(3) separate informations against Tongson for
violation of B.P. Blg. 22.19 On 8 July 2003, the City
Prosecutor's Office filed an information20 charging
petitioner with three (3) counts of violation of B.P.
Blg. 22.21
However, in a resolution dated 9 August 2004,22 the
DOJ, presumably acting on a motion for
reconsideration filed by Tongson, ruled that the
subject offense had already prescribed and ordered
"the withdrawal of the three (3) informations for
violation of B.P. Blg. 22" against Tongson. In justifying
its sudden turnabout, the DOJ explained that Act No.
3326 applies to violations of special acts that do not
provide for a prescriptive period for the offenses
thereunder. Since B.P. Blg. 22, as a special act, does
not provide for the prescription of the offense it
defines and punishes, Act No. 3326 applies to it, and
not Art. 90 of the Revised Penal Code which governs
the prescription of offenses penalized
thereunder.23 The DOJ also cited the case of Zaldivia
v. Reyes, Jr.,24 wherein the Supreme Court ruled that
the proceedings referred to in Act No. 3326, as
amended, are judicial proceedings, and not the one
before the prosecutor's office.
Petitioner thus filed a petition for certiorari25 before
the Court of Appeals assailing the 9 August 2004
resolution of the DOJ. The petition was dismissed by
the Court of Appeals in view of petitioner's failure to
attach a proper verification and certification of non-
forum
shopping. The Court of Appeals also noted that the 3
April 2003 resolution of the DOJ attached to the
petition is a mere photocopy.26 Petitioner moved for
the reconsideration of the appellate court's
resolution, attaching to said motion an amended
Verification/Certification of Non-Forum
Shopping.27Still, the Court of Appeals denied
petitioner's motion, stating that subsequent
compliance with the formal requirements would
not per se warrant a reconsideration of its resolution.
Besides, the Court of Appeals added, the petition is
patently without merit and the questions raised
therein are too unsubstantial to require
consideration.28
In the instant petition, petitioner claims that the
Court of Appeals committed grave error in dismissing
his petition on technical grounds and in ruling that
the petition before it was patently without merit and
the questions are too unsubstantial to require
consideration.
The DOJ, in its comment,29 states that the Court of
Appeals did not err in dismissing the petition for non-
compliance with the Rules of Court. It also reiterates
that the filing of a complaint with the Office of the
City Prosecutor of Quezon City does not interrupt the
running of the prescriptive period for violation of B.P.
Blg. 22. It argues that under B.P. Blg. 22, a special law
which does not provide for its own prescriptive
period, offenses prescribe in four (4) years in
accordance with Act No. 3326.
Cawili and Tongson submitted their comment,
arguing that the Court of Appeals did not err in
dismissing the petition for certiorari. They claim that
the offense of violation of B.P. Blg. 22 has already
prescribed per Act No. 3326. In addition, they claim
that the long delay, attributable to petitioner and the
State, violated their constitutional right to speedy
disposition of cases.30
The petition is meritorious.
First on the technical issues.
Petitioner submits that the verification attached to
his petition before the Court of Appeals substantially
complies with the rules, the verification being
intended simply to secure an assurance that the
allegations in the pleading are true and correct and
not a product of the imagination or a matter of
speculation. He points out that this Court has held in
a number of cases that a deficiency in the verification
can be excused or dispensed with, the defect being
neither jurisdictional nor always fatal. 31
Indeed, the verification is merely a formal
requirement intended to secure an assurance that
matters which are alleged are true and correct–the
court may simply order the correction of unverified
pleadings or act on them and waive strict compliance
with the rules in order that the ends of justice may be
served,32 as in the instant case. In the case at bar, we
find that by attaching the pertinent verification to his
motion for reconsideration, petitioner sufficiently
complied with the verification requirement.
Petitioner also submits that the Court of Appeals
erred in dismissing the petition on the ground that
there was failure to attach a certified true copy or
duplicate original of the 3 April 2003 resolution of the
DOJ. We agree. A plain reading of the petition before
the
Court of Appeals shows that it seeks the annulment
of the DOJ resolution dated 9 August 2004,33 a
certified true copy of which was attached as Annex
"A."34 Obviously, the Court of Appeals committed a
grievous mistake.
Now, on the substantive aspects.
Petitioner assails the DOJ's reliance on Zaldivia v.
Reyes,35 a case involving the violation of a municipal
ordinance, in declaring that the prescriptive period is
tolled only upon filing of the information in court.
According to petitioner, what is applicable in this case
is Ingco v. Sandiganbayan,36 wherein this Court ruled
that the filing of the complaint with the fiscal's office
for preliminary investigation suspends the running of
the prescriptive period. Petitioner also notes that the
Ingco case similarly involved the violation of a special
law, Republic Act (R.A.) No. 3019, otherwise known
as the Anti-Graft and Corrupt Practices Act, petitioner
notes.37 He argues that sustaining the DOJ's and the
Court of Appeals' pronouncements would result in
grave injustice to him since the delays in the present
case were clearly beyond his control.38
There is no question that Act No. 3326, appropriately
entitled An Act to Establish Prescription for Violations
of Special Acts and Municipal Ordinances and to
Provide When Prescription Shall Begin, is the law
applicable to offenses under special laws which do
not provide their own prescriptive periods. The
pertinent provisions read:
Section 1. Violations penalized by special acts shall,
unless otherwise provided in such acts, prescribe in
accordance with the following rules: (a) x x x; (b) after
four years for those punished by imprisonment for
more than one month, but less than two years; (c) x x
x
Sec. 2. Prescription shall begin to run from the day of
the commission of the violation of the law, and if the
same be not known at the time, from the discovery
thereof and the institution of judicial proceedings for
its investigation and punishment.
The prescription shall be interrupted when
proceedings are instituted against the guilty person,
and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy.
We agree that Act. No. 3326 applies to offenses
under B.P. Blg. 22. An offense under B.P. Blg. 22
merits the penalty of imprisonment of not less than
thirty (30) days but not more than one year or by a
fine, hence, under Act No. 3326, a violation of B.P.
Blg. 22 prescribes in four (4) years from the
commission of the offense or, if the same be not
known at the time, from the discovery thereof.
Nevertheless, we cannot uphold the position that
only the filing of a case in court can toll the running of
the prescriptive period.
It must be pointed out that when Act No. 3326 was
passed on 4 December 1926, preliminary
investigation of criminal offenses was conducted by
justices of the peace, thus, the phraseology in the
law, "institution of judicial proceedings for its
investigation and punishment,"39 and the prevailing
rule at the time was that once a complaint is filed
with the justice of the peace for preliminary
investigation, the prescription of the offense is
halted.40
The historical perspective on the application of Act
No. 3326 is illuminating.41 Act No. 3226 was approved
on 4 December 1926 at a time when the function of
conducting the preliminary investigation of criminal
offenses was vested in the justices of the peace.
Thus, the prevailing rule at the time, as shown in the
cases of U.S. v. Lazada42 and People v. Joson,43 is that
the prescription of the offense is tolled once a
complaint is filed with the justice of the peace for
preliminary investigation inasmuch as the filing of the
complaint signifies the
institution of the criminal proceedings against the
accused.44 These cases were followed by our
declaration in People v. Parao and Parao45 that the
first step taken in the investigation or examination of
offenses partakes the nature of a judicial proceeding
which suspends the prescription of the
offense.46 Subsequently, in People v. Olarte,47 we held
that the filing of the complaint in the Municipal
Court, even if it be merely for purposes of preliminary
examination or investigation, should, and does,
interrupt the period of prescription of the criminal
responsibility, even if the court where the complaint
or information is filed cannot try the case on the
merits. In addition, even if the court where the
complaint or information is filed may only proceed to
investigate the case, its actuations already represent
the initial step of the proceedings against the
offender,48 and hence, the prescriptive period should
be interrupted.
In Ingco v. Sandiganbayan49 and Sanrio Company
Limited v. Lim,50 which involved violations of the Anti-
Graft and Corrupt Practices Act (R.A. No. 3019) and
the Intellectual Property Code (R.A. No. 8293), which
are both special laws, the Court ruled that the
prescriptive period is interrupted by the institution of
proceedings for preliminary investigation against the
accused. In the more recent case of Securities and
Exchange Commission v. Interport Resources
Corporation, et al.,51 the Court ruled that the nature
and purpose of the investigation conducted by the
Securities and Exchange Commission on violations of
the Revised Securities Act,52 another special law, is
equivalent to the preliminary investigation conducted
by the DOJ in criminal cases, and thus effectively
interrupts the prescriptive period.
The following disquisition in the Interport
Resources case53 is instructive, thus:
While it may be observed that the term "judicial
proceedings" in Sec. 2 of Act No. 3326 appears before
"investigation and punishment" in the old law, with
the subsequent change in set-up whereby the
investigation of the charge for purposes of
prosecution has become the exclusive function of the
executive branch, the term "proceedings" should
now be understood either executive or judicial in
character: executive when it involves the
investigation phase and judicial when it refers to the
trial and judgment stage. With this clarification, any
kind of investigative proceeding instituted against the
guilty person which may ultimately lead to his
prosecution should be sufficient to toll prescription.54
Indeed, to rule otherwise would deprive the injured
party the right to obtain vindication on account of
delays that are not under his control.55 A clear
example would be this case, wherein petitioner filed
his complaint-affidavit on 24 August 1995, well within
the four (4)-year prescriptive period. He likewise
timely filed his appeals and his motions for
reconsideration on the dismissal of the charges
against
Tongson. He went through the proper channels,
within the prescribed periods. However, from the
time petitioner filed his complaint-affidavit with the
Office of the City Prosecutor (24 August 1995) up to
the time the DOJ issued the assailed resolution, an
aggregate period of nine (9) years had elapsed.
Clearly, the delay was beyond petitioner's control.
After all, he had already initiated the active
prosecution of the case as early as 24 August 1995,
only to suffer setbacks because of the DOJ's flip-
flopping resolutions and its misapplication of Act No.
3326. Aggrieved parties, especially those who do not
sleep on their rights and actively pursue their causes,
should not be allowed to suffer unnecessarily further
simply because of circumstances beyond their
control, like the accused's delaying tactics or the
delay and inefficiency of the investigating agencies.
We rule and so hold that the offense has not yet
prescribed. Petitioner 's filing of his complaint-
affidavit before the Office of the City Prosecutor on
24 August 1995 signified the commencement of the
proceedings for the prosecution of the accused and
thus effectively interrupted the prescriptive period
for the offenses they had been charged under B.P.
Blg. 22. Moreover, since there is a definite finding of
probable cause, with the debunking of the claim of
prescription there is no longer any impediment to the
filing of the information against petitioner.
WHEREFORE, the petition is GRANTED. The
resolutions of the Court of Appeals dated 29 October
2004 and 21 March 2005 are REVERSED and SET
ASIDE. The resolution of the Department of Justice
dated 9 August 2004 is also ANNULLED and SET
ASIDE. The Department of Justice is ORDERED to
REFILE the information against the petitioner.
PRESIDENTIAL COMMISSION G.R. NO.
140231
ON GOOD GOVERNMENT
(PCGG), represented by ORLANDO
L. SALVADOR,
Petitioner,
Present:
YNARES-
SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-
MARTINEZ,
CHICO-
NAZARIO, and
NACHURA, JJ.
HON. ANIANO A. DESIERTO,
Office of the Ombudsman-Manila,
CONCERNED MEMBERS OF THE PNB
BOARD OF DIRECTORS,
REYNALDO TUASON, CARLOS
CAJELO, JOSE BARQUILLO, JR.,
LORETO SOLSONA, PRIMICIAS
BANAGA, JOHN DOES, and
NORTHERN COTABATO SUGAR
INDUSTRIES, INC. (NOCOSII), Promulgated:
Respondents. July 9, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - x
D E C I S I O N
AUSTRIA-MARTINEZ, J.:
The Presidential Commission on Good
Government[1] (petitioner) filed the herein Petition
for Certiorari under Rule 65 of the Rules of Court
assailing the Resolution[2] dated May 21, 1999 of
Ombudsman Aniano A. Desierto in OMB No. 0-95-
0890 which dismissed petitioner's criminal complaint
for violation of Section 3(e) and (g) of Republic Act
(R.A.) No. 3019[3] against concerned members of
Philippine National Bank (PNB) Board of Directors and
Northern Cotabato Sugar Industries, Inc. (NOCOSII)
officers, namely: Reynaldo Tuason, Carlos Cajelo,
Jose Barquillo, Jr.,
Loreto Solsona, Primicias Banaga and John Does
(respondents); and the Order[4] dated July 23, 1999
which denied petitioner's Motion for
Reconsideration.
The facts:
On October 8, 1992, then President Fidel V.
Ramos issued Administrative Order No. 13 creating
the Presidential Ad Hoc Fact-Finding Committee on
Behest Loans (Committee) which was tasked to
inventory all behest loans, determine the parties
involved and recommend whatever appropriate
actions to be pursued thereby.
On November 9, 1992, President Ramos issued
Memorandum Order No. 61 expanding the functions
of the Committee to include the inventory and review
of all non-performing loans, whether behest or non-
behest.
The Memorandum set the following criteria to show
the earmarks of a “behest loan,” to wit: “a) it
is undercollaterized; b) the borrower corporation is
undercapitalized; c) a direct or indirect endorsement
by high government officials like presence of marginal
notes; d) the stockholders, officers or agents of the
borrower corporation are identified as cronies; e) a
deviation of use of loan proceeds from the purpose
intended; f) the use of corporate layering; g) the non-
feasibility of the project for which financing is being
sought; and, h) the extraordinary speed in which the
loan release was made.”
Among the accounts referred to the Committee's
Technical Working Group (TWG) were the loan
transactions between NOCOSII and PNB.
After it had examined and studied all the
documents relative to the said loan transactions, the
Committee classified the loans obtained by NOCOSII
from PNB as behest because of NOCOSII’s insufficient
capital and inadequate collaterals. Specifically, the
Committee's investigation revealed that in 1975,
NOCOSII obtained loans by way of Stand-By Letters of
Credit from the PNB; that NOCOSII was able to get
155% loan value from the offered collateral or an
excess of 85% from the required percentage limit;
that the plant site offered as one of the collaterals
was a public land contrary to the General Banking
Act; that by virtue of the marginal note of then
President Marcos in the letter of Cajelo, NOCOSII was
allowed to use the public land as plant site and to
dispense with the mortgage requirement of PNB;
that NOCOSII's paid-up capital at the time of the
approval of the guaranty was onlyP2,500,000.00 or
only about 6% of its obligation.
Based on the Sworn Statement of PCGG
consultant Orlando Salvador, petitioner filed with the
Office of the Ombudsman the criminal complaint
against respondents. Petitioner alleges that
respondents violated the following provisions of
Section 3 (e) and (g) of R.A. No. 3019:
Sec. 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:
x x x
e. Causing 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.
x x x
g. Entering, on behalf of the Government, into
any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the
public officer profited or will profit thereby.
The respondents failed to submit any
responsive pleading before the the Ombudsman,
prompting Graft Investigator Officer (GIO) I Melinda
S. Diaz-Salcedo to resolve the case based on the
available evidence.
In a Resolution dated January 12, 1998 in OMB-
0-95-0890, GIO Diaz-Salcedo recommended the
dismissal of the case on the ground of insufficiency of
evidence or lack of probable cause against the
respondents and for prescription of the
offense. Ombudsman Desierto approved the
recommendation on May 21, 1999.[5]
Petitioner filed a Motion for
Reconsideration[6] but it was denied by GIO Diaz-
Salcedo in the Order dated July 9, 1999,which was
approved by Ombudsman Desierto on July 23, 1999.[7]
Forthwith, petitioner elevated the case to this
Court and in support of its petition alleges that:
A) The Respondent Ombudsman gravely abused
his discretion or acted without or in excess of
jurisdiction in dismissing the complaint filed by the
Petitioner on the ground of Prescription considering
that:
1. THE RIGHT OF THE STATE TO RECOVER BEHEST
LOANS AS ILL-GOTTEN WEALTH IS IMPRESCRIPTIBLE
UNDER ARTICLE XI, SECTION 15, OF THE 1987
CONSTITUTION;
2. PRESCRIPTION DOES NOT RUN IN FAVOR OF A
TRUSTEE TO THE PREJUDICE OF THE BENEFICIARY;
3. THE OFFENSES CHARGED ARE IN THE NATURE
OF CONTINUING CRIMES AS THE STATE CONTINUES
TO SUFFER INJURY ON EACH DAY OF DEFAULT IN
PAYMENT. HENCE, PRESCRIPTION DOES NOT APPLY;
4. PRESCRIPTION AS A MATTER OF DEFENSE
MUST BE PLEADED, OTHERWISE, IT IS DEEMED
WAIVED;
5. PRESCRIPTION HAS NOT BEEN INVOKED IN
THIS CASE. SINCE IT MAY BE WAIVED OR MAY NOT
BE SET IN DEFENSE, THE OMBUDSMAN
CANNOT MOTU PROPRIO DISMISS THE COMPLAINT
ON GROUND OF PRESCRIPTION;
6. ARTICLE 91 OF THE REVISED PENAL CODE
WHICH ADOPTS THE “DISCOVERY RULE” SHALL APPLY
IN THIS CASE;
7. THE LOAN CONTRACT AS OTHER LOAN
TRANSACTIONS IN THE NATURE OF BEHEST LOANS
ARE KEPT SECRET.[8]
B) The respondent Ombudsman gravely abused his
discretion or acted without or in excess of jurisdiction
in not finding that a probable cause exists for
violation by the private respondents of section 3 (e)
and (g) of RA 3019 despite the presence of clear,
overwhelming andunrebutted evidence.[9]
In its Comment, the Ombudsman, without
delving on the issue of prescription, in view
of Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Desierto (1999),[10] contends that its
finding of insufficiency of evidence or lack of
probable cause against respondents deserves great
weight and respect, and must be accorded full weight
and credit.
No comment was filed by the rest of the
respondents.
The issue before the Court is whether the
Ombudsman committed grave abuse of discretion in
ruling that: (a) the offense leveled against
respondents has prescribed; and (b) no probable
cause exists against respondents.
The petition is partly meritorious.
Respondent Ombudsman committed grave
abuse of discretion in dismissing the subject
complaint on the ground of prescription.
Respondents members of the PNB Board of
Directors and Officers of NOCOSII are charged with
violation of R.A. No. 3019, a special law. Amending
said law, Section 4, Batas Pambansa Blg. 195,
[11] increased the prescriptive period from ten to
fifteen years.
The applicable law in the computation of the
prescriptive period is Section 2 of Act No. 3326,[12] as
amended, which provides:
Sec. 2. Prescription shall begin to run from the
day of the commission of the violation of the law, and
if the same not be known at the time, from the
discovery thereof and the institution of judicial
proceedings for its investigation and punishment.
The prescription shall be interrupted when
proceedings are instituted against the guilty person,
and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy.
The issue of prescription has long been laid to
rest in the aforementioned Presidential Ad Hoc Fact-
Finding Committee on Behest Loans v. Desierto,[13] where the Court held:
x x x it was well-nigh impossible for the State, the
aggrieved party, to have known the violations of R.A.
No. 3019 at the time the questioned transactions
were made because, as alleged, the public officials
concerned connived or conspired with the
“beneficiaries of the loans.’ Thus, we agree with the
COMMITTEE that the prescriptive period for the
offenses with which respondents in OMB-0-96-0968
were charged should be computed from the
discovery of the commission thereof and not from
the day of such commission.
The assertion by the Ombudsman that the phrase ‘if
the same not be known’ in Section 2 of Act No. 3326
does not mean ‘lack of knowledge’ but that the crime
‘is not reasonably knowable’ is unacceptable, as it
provides an interpretation that defeats or negates
the intent of the law, which is written in a clear and
unambiguous language and thus provides no room
for interpretation but only application.[14]
The Court reiterated the above ruling in Presidential
Ad Hoc Fact-Finding Committee on Behest Loans
v. Desierto (2001),[15] thus:
In cases involving violations of R.A. No. 3019
committed prior to the February
1986 Edsa Revolution that ousted President
Ferdinand E. Marcos, we ruled that the government
as the aggrieved party could not have known of the
violations at the time the questioned transactions
were made (PCGG vs. Desierto, G.R. No. 140232,
January 19, 2001, 349 SCRA 767; Domingo
v. Sandiganbayan, supra, Note 14; Presidential Ad
Hoc Fact Finding Committee on Behest Loans
v. Desierto, supra, Note 16). Moreover, no person
would have dared to question the legality of those
transactions. Thus, the counting of the prescriptive
period commenced from the date of discovery of the
offense in 1992 after an exhaustive investigation by
the Presidential Ad Hoc Committee on Behest Loans.
As to when the period of prescription was
interrupted, the second paragraph of Section 2, Act
No. 3326, as amended, provides that prescription is
interrupted ‘when proceedings are instituted against
the guilty person.[16]
Records show that the act complained of was
discovered in 1992. The complaint was filed with the
Office of the Ombudsman on April 5, 1995,[17] or
within three (3) years from the time of discovery.
Thus, the filing of the complaint was well within the
prescriptive period of 15 years.
On the issue of whether the Ombudsman
committed grave abuse of discretion in finding that
no probable cause exists against respondents, it must
be stressed that the Ombudsman is empowered to
determine whether there exists reasonable ground to
believe that a crime has been committed and that the
accused is probably guilty thereof and, thereafter, to
file the corresponding information with the
appropriate courts.[18] Settled is the rule that the
Supreme Court will not ordinarily interfere with the
Ombudsman’s exercise of his investigatory
and prosecutory powers without good and
compelling reasons to indicate otherwise.[19] Said
exercise of powers is based upon his constitutional
mandate[20] and the courts will not interfere in its
exercise. The rule is based not only upon respect for
the investigatory and prosecutory powers granted by
the Constitution to the Office of the Ombudsman, but
upon practicality as well. Otherwise, innumerable
petitions seeking dismissal of investigatory
proceedings conducted by the Ombudsman will
grievously hamper the functions of the office and the
courts, in much the same way that courts will be
swamped if they had to review the exercise of
discretion on the part of public prosecutors each time
they decided to file an information or dismiss a
complaint by a private complainant.[21]
While there are certain instances when this
Court may intervene in the prosecution of cases,
such as, (1) when necessary to afford adequate
protection to the constitutional rights of the accused;
(2) when necessary for the orderly administration of
justice or to avoid oppression or multiplicity of
actions; (3) when there is a prejudicial question which
is sub-judice; (4) when the acts of the officer are
without or in excess of authority; (5) where the
prosecution is under an invalid law, ordinance or
regulation; (6) when double jeopardy is clearly
apparent; (7) where the court has no jurisdiction over
the offense; (8) where it is a case of persecution
rather than prosecution; (9) where the charges are
manifestly false and motivated by the lust for
vengeance; and (10) when there is clearly no prima
facie case against the accused and a motion to quash
on that ground has been denied,[22] none apply here.
After examination of the records and the
evidence presented by petitioner, the Court finds no
cogent reason to disturb the findings of the
Ombudsman.
No grave abuse of discretion can be attributed
to the Ombudsman. Grave abuse of discretion
implies a capricious and whimsical exercise of
judgment tantamount to lack of jurisdiction.[23] The
exercise of power must have been done in an
arbitrary or despotic manner by reason of passion or
personal hostility. It must be so patent and gross as
to amount to an evasion of positive duty or a virtual
refusal to perform the duty enjoined or to act at all in
contemplation of law.[24]
The disquisition of GIO Diaz-Salcedo, in
dismissing the criminal complaint, as approved by
Ombudsman Desierto, is worth-quoting, thus:
Taking into consideration the provisions of
Administrative Order No. 13 and Memorandum
Order No. 61, the subject transactions can not be
classified as behest.
Evaluation of the records of this case reveals
that the loans acquired by NOCOSII are actually
foreign loans from Midland Bank Ltd.
of London. There were no direct loans released by
PNB but merely credit accommodations to guaranty
the loans from Midland Bank.
Anent complainant's claim that the collaterals
offered by NOCOSII are insufficient, it should be
noted that under PNB Board Resolution No. 689
dated July 30, 1975, one of the conditions imposed to
NOCOSII was the execution of contract assigning
all NOCOSII'sshare of sugar and molasses to
PNB. NOCOSII was also required to increase its paid
up capital at P5,000,000.00 a year starting April 30,
1976 up to April 30, 1980 or a total
of P25,000,000.00. In addition thereto, the
stockholders of NOCOSII were required to pledge or
assign all their present and future shares to PNB
while the accommodation remains standing. The
proposed plant site which was offered as collateral
was estimated to cost P307,903,000.00. The
foregoing collaterals offered by NOCOSII are more
than sufficient to cover the loans of P333,465,260.00.
Furthermore, since the loan was approved by
PNB, it presupposes that all the required clearances
were submitted by NOCOSII including the clearance
from the Office of the President; and having complied
with all the documentary requirements, NOCOSII
became entitled to the release of the loan.
Complainant further alleged that NOCOSII was
undercapitalized because its paid up capital was
only P50,000,000.00. Complainant, however, failed to
consider the other assets of NOCOSII which also form
part of its capital. x x x[25]
The finding of insufficiency of evidence or lack
of probable cause by the Ombudsman is borne out by
the evidence presented by petitioner: firstly, there
were no direct loans released by PNB but merely
credit accommodations to
guaranty NOCOSII's foreign loans from Midland Bank
Ltd. of London; secondly, NOCOSII effectively came
under government control since 1975 when PNB
acquired a majority of the voting rights in NOCOSII
and was given the power to appoint a comptroller
therein; thirdly, PNB's credit accommodations to
NOCOSII between 1975 and 1981 in the aggregate
sum of P333,465,260.00 were sufficiently secured by:
(1) the Assignment of Subscription Rights and/or
Pledge of Shares dated September 5, 1975 whereby
NOCOSII officers pledged their shares of stock,
representing 90% of NOCOSII's subscribed capital
stock, and assigned their subscription rights to future
stocks in favor of PNB;[26] (2) the Deed of Assignment
dated September 5, 1975 whereby NOCOSII assigned
its share of sugar and molasses from the operation of
its sugar central located at Barrio Mateo, Matalam,
North Cotabato in favor of PNB;[27] (3) the Joint
and Solidary Agreement dated September 5, 1975
whereby the NOCOSII officers bound themselves
jointly and severally liable with the corporation for
the payment of NOCOSII's obligations to PNB;[28] (4)
the Real Estate Mortgage dated October 2, 1981
whereby NOCOSII mortgaged various buildings,
machineries and equipments, otherwise known as
the NOCOSII Sugar Mill Plant, with an estimated value
of P307,593,000.00 in favor of PNB;[29] and (5) the
Chattel Mortgage with Power of Attorney dated
October 2, 1981 whereby NOCOSII mortgaged various
transportation, agricultural and heavy equipment in
favor of the PNB;[30] fourthly, PNB imposed other
conditions, such as, (1) the submission by NOCOSII of
the Central Bank's approval of its foreign loans; (2)
the submission by NOCOSII of the required
clearances from the National Economic Development
Authority (NEDA) and/or Presidential Committee on
Sugar Industry (PHILSUGIN); (3) submission by
NOCOSII of its milling contracts covering a total area
of not less than 14,000 hectares; (4) submission by
NOCOSII of the government permit that the planters
can cultivate the required hectarage; (5) further
increase in NOCOSII's total paid-in capital
to P25,000,000.00 at P5,000,000.00 a year starting
April 30, 1976 up to April 30, 1980; (6) deposit
in NOCOSII's account with the PNB of all cash
proceeds of NOCOSII's foreign loans the disposition
of which shall be subject to the bank's control; and,
(7) designation by the PNB of its own representatives
in NOCOSII'sBoard of Directors and its own
comptroller who shall have the authority to control
all disbursements and receipts of funds of NOCOSII.[31]
The herein assailed Orders being supported by
substantial evidence, there is no basis for the Court
to exercise its supervisory powers over the ruling of
the Ombudsman. As long as substantial evidence
supports the Ombudsman’s ruling, that decision will
not be overturned.[32]
WHEREFORE, the petition is DISMISSED. Except
as to prescription, the assailed Resolution dated May
21, 1999 and Order dated July 23, 1999 of the
Ombudsman in OMB No. 0-95-0890
are AFFIRMED. No costs.
SO ORDERED.
G.R. No. 158131 August 8, 2007
SOCIAL SECURITY SYSTEM, petitioner,
vs.
DEPARTMENT OF JUSTICE, JOSE V. MARTEL, OLGA S.
MARTEL, and SYSTEMS AND ENCODING
CORPORATION, respondents.
D E C I S I O N
CARPIO, J.:
The Case
This is a petition for review1 filed by the Social
Security System (petitioner) of the Decision2 dated 17
October 2002 and Resolution dated 5 May 2003 of
the Court of Appeals. The Decision of 17 October
2002 affirmed the ruling of the Department of Justice
(DOJ) dismissing petitioner’s complaint against
respondents Jose V. Martel, Olga S. Martel and five
other individuals3 for violation of Section 22(a) and
(b) in relation to Section 28(e) of Republic Act No.
1161 (RA 1161),4 as amended by Republic Act No.
8282 (RA 8282),5 for non-remittance of contributions
to petitioner. The 5 May 2003 Resolution denied
petitioner’s motion for reconsideration.
The Facts
Respondents Jose V. Martel and Olga S. Martel
(respondent Martels) are directors of respondent
Systems and Encoding Corporation (SENCOR), an
information technology firm, with respondent Jose V.
Martel serving as Chairman of the Board of Directors.
Petitioner is a government-owned and controlled
corporation mandated by its charter, RA 1161, to
provide financial benefits to private sector
employees. SENCOR is covered by RA 1161, as
amended by RA 8282, Section 22 of which requires
employers like SENCOR to remit monthly
contributions to petitioner representing the share of
the employer and its employees.
In 1998, petitioner filed with the Pasay City
Prosecutor’s Office a complaint against respondent
Martels and their five co-accused (docketed as I.S.
No. 98-L-1534) for SENCOR’s non-payment of
contributions amounting toP6,936,435.80 covering
the period January 1991 to May 1997. To pay this
amount, respondent Martels offered to assign to
petitioner a parcel of land in Tagaytay City covered by
Transfer Certificate of Title No. 26340 issued under
respondent Martels’ name. Petitioner accepted the
offer "subject to the condition that x x x [respondent
Martels] will x x x settle their obligation either by way
of dacion en pago or through cash settlement within
a reasonable time x x x."6 Thus, petitioner withdrew
its complaint from the Pasay City Prosecutor’s Office
but reserved its right to revive the same "in the event
that no settlement is arrived at." Accordingly, the
Pasay City Prosecutor’s Office dismissed I.S. No. 98-L-
1534.
In December 2001, respondent Jose V. Martel wrote
petitioner offering, in lieu of the Tagaytay City
property, computer-related services. The record does
not disclose petitioner’s response to this new offer
but on 7 December 2001, petitioner filed with the
Pasay City Prosecutor’s Office another complaint
against respondent Martels and their five co-accused
(docketed as I.S. No. 00-L-7142) for SENCOR’s non-
remittance of contributions, this time from February
1991 to October 2000 amounting to P21,148,258.30.
In their counter-affidavit, respondent Martels and
their co-accused alleged that petitioner is estopped
from holding them criminally liable since petitioner
had accepted their offer to assign the Tagaytay City
property as payment of SENCOR’s liability. Thus,
according to the accused, the relationship between
SENCOR and petitioner was "converted" into an
ordinary debtor-creditor relationship through
novation.
The Ruling of the Pasay City Prosecutor’s Office
In the Resolution of 28 February 2001, Pasay City
Assistant Prosecutor Artemio Puti (Prosecutor Puti)
found probable cause to indict respondent Martels
for violation of Section 22(a) and (b) in relation to
Section 28(e) of RA 1161, as amended by RA
8282.7 Prosecutor Puti rejected respondent Martels’
claim of "negation" of criminal liability by novation,
holding that (1) SENCOR’s criminal liability was
already "consummated" before respondent Martels
offered to pay SENCOR’s liability and (2) the dacion
en pago involving the Tagaytay City property did not
materialize. Prosecutor Puti noted that respondent
Martels did not dispute petitioner’s claim on
SENCOR’s non-remittance of
contributions.8 Accordingly, the Pasay City
Prosecutor’s Office filed with the Regional Trial Court
of Pasay City the corresponding Information against
respondent Martels, docketed as Criminal Case No.
01-0517.
Respondent Martels appealed to the DOJ.
The Ruling of the Department of Justice
In the Resolution dated 18 May 2001 signed by DOJ
Undersecretary Manuel A.J. Teehankee, the DOJ
granted respondent Martels’ appeal, set aside
Prosecutor Puti’s Resolution of 28 February 2001, and
ordered the withdrawal of the Information filed in
Criminal Case No. 01-0517. The DOJ found that
respondent Martels and petitioner entered into a
compromise agreement before the filing of the
Information in Criminal Case No. 01-0517 and that
such "negated" any criminal liability on respondent
Martels’ part. The DOJ Resolution pertinently reads:
From the facts obtaining, it cannot be denied that the
dismissal of the first complaint docketed as I.S. No.
98-L-1534 constituted the compromise agreement
between the parties whereby complainant SSS
agreed to respondents’ mode of settling their liability
through a "dacion en pago". Consequently, the
original relation between the parties was converted
to that of an ordinary creditor-debtor relationship
thereby extinguishing the original obligation by a new
one. Complainant, therefore, cannot insist on the
original trust it had with respondents existing prior to
the dismissal of the former complaint (I.S. No. 98-L-
1534) by filling [sic] the present complaint (I.S. No.
00-L-7142 now subject of this appeal). Incidentally,
this Office considers the latter complaint as a mere
refilling [sic] of the former already compromised and
dismissed [complaint], because of the similarity of
the parties and causes of action.
After the dismissal of the complaint in I.S. No. 98-L-
1534 and prior to the filing of the complaint at bar
docketed as 00-L-7142, respondents have exerted
great effort towards complying with the terms and
conditions of the compromise by way of "dacion en
pago". For example, respondents cite their
arrangement for ocular inspection of the Tagaytay
land by the Presidential Commission on Tagaytay-Taal
and with the Municipal Engineer of Laurel, Batangas.
The approval of the said commission to build a 12-
storey building had been complied with. This is not
disputed by complainant. Access roads were acquired
by respondents from adjacent owners, ready to be
titled in complainant’s name. Papers and permits like
ecological impact certification, site resurvey, soil test
and site appraisal were secured from various offices
like the Municipality of Laurel, the Municipal
Engineer, the Presidential Commission on Tagaytay-
Taal, the Philippine Volcanology Commission, the
Bureau of Lands and the Department of Agriculture,
among others.
On the part of complainant, it equally shows [sic]
adherence to the agreement to compromise. Records
show that on October 1999, one of its officers, Atty.
Mariano Pablo S. Tolentino, assistant vice-president,
had expressed in writing his finding to the effect that
"(they) are satisfied to see the lot that (respondents)
have negotiated with Congressman Dumpit that
(respondents) offered as access road to
(respondents[’]) property" (Annex "8" of Petition for
Review). And, as borne by the records, a Dacion En
Pago Committee had been created by complainant
SSS precisely to set the mechanism of the settlement
in motion. Further, respondents proposed an
alternative mode of settlement through computer-
related services, which proposal was submitted to
complainant as late as December 1, 2000.
Verily, the foregoing facts indelibly show that the
parties had acted with an obvious intention to
compromise. Hence, respondents’ reliance on the
doctrine of incipient criminal liability had [sic] factual
and legal bases. While the rule provides that novation
does not extinguish criminal liability, this rule,
however holds true only if a criminal information is
already filed in court. Before that bench mark point,
the criminal liability is only at its incipient stage and
the new relation between the parties forged at such
stage had the effect of negating the criminal liability
of the offender (People vs. Galsim, People vs.
Trinidad, 53 OG 731). x x x x
In fine, the compromise agreement between the
parties whereby respondents’ obligation will be
settled through a "dacion en pago" and the dismissal
of the complaint in I.S. No. 98-L-1534 has [sic] all the
earmarks of novation negating respondents’ criminal
liability. Ergo, complainant is precluded from filing
the present criminal complaint against respondents.9
Petitioner sought reconsideration but the DOJ denied
its motion in the Resolution of 20 September 2001.
Petitioner appealed to the Court of Appeals in a
petition for certiorari.
The Ruling of the Court of Appeals
In its Decision of 17 October 2002, the Court of
Appeals affirmed the DOJ’s rulings and dismissed
petitioner’s petition. The appellate court deferred to
the DOJ’s power to review rulings of prosecutors and
held that in reversing Prosecutor Puti’s findings, the
DOJ did not act with grave abuse of discretion.10
Petitioner sought reconsideration but the appellate
court denied its motion in the Resolution of 5 May
2003.
Hence, this petition. Petitioner contends that the
Court of Appeals erred in affirming the DOJ’s rulings
because (1) respondent Martels were charged not
with Estafa but with violation of Section 22(a) and (b)
in relation to Section 28(e) of RA 1161, as amended, a
special law impressed with public interest; (2)
petitioner did not agree to settle respondent Martels’
criminal liability; and (3) novation serves only to
negate civil, but not criminal, liability.
In their Comment, respondent Martels countered
that the DOJ correctly applied the concept of
novation as they had settled SENCOR’s liability.
Respondent Martels added that as of the filing of
their Comment, they had already paidP17,887,442.54
of SENCOR’s liability.
In its Reply, petitioner contended that although
respondent Martels attempted to pay SENCOR’s
overdue contributions through dacion en pago, no
payment took place, as evidenced by respondent
Martels’ alternative offer to provide computer
related services to petitioner instead of assigning the
Tagaytay City realty. On respondent Martels’ partial
payment of SENCOR’s liability, petitioner contended
that such does not preclude the resolution of this
petition.
The Issue
The issue is whether the concept of novation serves
to abate the prosecution of respondent Martels for
violation of Section 22(a) and (b) in relation to
Section 28(e) of RA 1161, as amended.
The Ruling of the Court
We rule in the negative and accordingly grant the
petition.
The Concept of Novation Finds No Application Here
Novation, a civil law concept relating to the
modification of obligations,11 takes place when the
parties to an existing contract execute a new contract
which either changes the object or principal condition
of the original contract, substitutes the person of the
debtor, or subrogates a third person in the rights of
the creditor.12 The effect is either to modify or
extinguish the original contract. In its extinctive form,
the new obligation replaces the original,
extinguishing the obligor’s obligations under the old
contract.13
This Court first recognized the possibility of applying
the concept of novation to criminal cases in People v.
Nery,14involving a case for Estafa. In that case, the
Court observed that although novation is not one of
the means recognized by the Revised Penal Code to
extinguish criminal liability,15 it may "prevent the rise
of criminal liability or to cast doubt on the true
nature of the original basic transaction," provided the
novation takes place before the filing of the
Information with the trial court. We held:
The novation theory may perhaps apply prior to the
filing of the criminal information in court by the state
prosecutors because up to that time the original trust
relation may be converted by the parties into an
ordinary creditor-debtor situation, thereby placing
the complainant in estoppel to insist on the original
trust. But after the justice authorities have taken
cognizance of the crime and instituted action in
court, the offended party may no longer divest the
prosecution of its power to exact the criminal liability,
as distinguished from the civil. The crime being an
offense against the state, only the latter can
renounce it x x x.
It may be observed in this regard that novation is
not one of the means recognized by the Penal Code
whereby criminal liability can be extinguished;
hence, the role of novation may only be to either
prevent the rise of criminal liability or to cast doubt
on the true nature of the original basic transaction,
whether or not it was such that its breach would not
give rise to penal responsibility, as when money
loaned is made to appear as a deposit, or other
similar disguise is resorted to x x x.16(Emphasis
supplied)
Thus, novation has been invoked to reverse
convictions in cases where an underlying contract
initially defined the relation of the parties such as the
contract in sale on commission in Estafa cases17 or
the contract in sale of goods in cases of violation of
the Trust Receipts Law.18 Further, the party invoking
novation must prove that the new contract did
indeed take effect.19
The facts of this case negate the application of
novation. In the first place, there is, between SENCOR
and petitioner, no original contract that can be
replaced by a new contract changing the object or
principal condition of the original contract,
substituting the person of the debtor, or subrogating
a third person in the rights of the creditor. The
original relationship between SENCOR and petitioner
is defined by law – RA 1161, as amended – which
requires employers like SENCOR to make periodic
contributions to petitioner under pain of criminal
prosecution. Unless Congress enacts a law further
amending RA 1161 to give employers a chance to
settle their overdue contributions to prevent
prosecution, no amount of agreements between
petitioner and SENCOR (represented by respondent
Martels) can change the nature of their relationship
and the consequence of SENCOR’s non-payment of
contributions.
The indispensability of a prior contractual relation
between the complainant and the accused as
requisite for the application of novation in criminal
cases was underscored in People v. Tanjutco.20 In that
case, the accused, who was charged with Qualified
Theft, invoked People v. Nery to support his claim
that the complainant’s acceptance of partial payment
of the stolen funds before the filing of the
Information with the trial court converted his liability
into a civil obligation thus rendering baseless his
prosecution. The Court rejected this claim and held
that unlike in Nery, there was, in that case, no prior
"contractual relationship or bilateral agreement,
which can be modified or altered by the parties,"
thus:
Reliance on the aforecited Nery case, in support of
the contention that the acceptance by complainant
of payment converted the liability of the accused-
appellant into a civil obligation or else that it
estopped said complainant from proceeding with the
prosecution of the case, is misplaced and
unwarranted.
[I]n the Nery case, which is an action for estafa, there
was contractual relationship between the parties
that can be validly novated by the settlement of the
obligation of the offender. Whatever was said in
that case, therefore, cannot be invoked in the
present case where no contractual relationship or
bilateral agreement, which can be modified or
altered by the parties, is involved. There is here
merely a taking of the complainant’s property by
one who never acquired juridical possession
thereof, qualified by grave abuse of
confidence.21 (Italicization in the original; boldfacing
and underscoring supplied)
Similarly, there is here merely an employer’s failure
to pay its contributions to a government corporation
as mandated by that corporation’s charter.
Secondly, as Prosecutor Puti correctly noted, the
agreement between petitioner and respondent
Martels for the latter to pay SENCOR’s overdue
contributions through the assignment to petitioner of
a piece of realty never materialized. Petitioner’s
acceptance of respondent Martels’ offer was subject
to a suspensive condition that "x x x [private]
respondents will x x x settle their obligation either by
way of dacion en pago or through cash settlement
within a reasonable time x x x." This condition was
not met because three years after respondent
Martels’ offer, petitioner did not receive any
payment. In fact, respondent Jose Martel, at that
point, changed the terms of the supposed settlement
by offering computer-related services instead of
assigning the Tagaytay City realty. In their Comment
to the petition, respondent Martels explained that
they made such alternative offer because "the
processing of the papers for the Tagaytay property
met with some delay."22 In short, respondent Martels
failed to make good on their promise in 1998 to settle
SENCOR’s liability through dacion en pago. The
circumstances the DOJ cited as proof of the
compromise agreement’s alleged implementation
were nothing but steps preparatory to the actual
payment of SENCOR’s overdue contributions.
In sum, we hold that any payment respondent
Martels would have made to petitioner (and it
appears that pending this petition, respondent
Martels partially paid SENCOR’s liability) only affects
their civil, if any, but not their criminal liability for
violation of Section 22(a) and (b) in relation to
Section 28(e) of RA 1161, as amended. As noted in
the Resolution dated 28 February 2001 of the Pasay
City Prosecutor’s Office, respondent Martels do not
dispute SENCOR’s non-remittance of contributions
from February 1991 to October 2000. Thus, the
existence of probable cause against respondent
Martels, SENCOR’s directors,23 is beyond doubt.
Prosecutors’ Findings Not Conclusive
In dismissing petitioner’s petition, the Court of
Appeals held:
[T]his Court has no power to determine whether
probable cause to warrant prosecution exist or not. x
x x [T]he determination of whether or not probable
cause exists to warrant the prosecution in court of
[respondent Martels] should be consigned and
entrusted to the Department of Justice as reviewer of
the findings of the public prosecutor x x x.
In this Petition, We are being asked to assume the
function of Public Prosecutor by determining whether
probable cause exists or not. Such is a function that
this Court should not be called upon to perform x x
x.24
This is a misstatement of the law. This Court and the
Court of Appeals possess the power to review
findings of prosecutors in preliminary
investigations.25 Although policy considerations call
for the widest latitude of deference to the
prosecutor’s findings,26 courts should never shirk
from exercising their power, when the circumstances
warrant, to determine whether the prosecutor’s
findings are supported by the facts, or as in this case,
by the law. In so doing, courts do not act as
prosecutors but as organs of the judiciary, exercising
their mandate under the Constitution, relevant
statutes, and remedial rules to settle cases and
controversies. Indeed, the exercise of this Court’s
review power ensures that, on the one hand,
probable criminals are prosecuted27 and, on the other
hand, the innocent are spared from baseless
prosecution.28
WHEREFORE, we GRANT the petition. We SET
ASIDE the Decision dated 17 October 2002 and
Resolution dated 5 May 2003 of the Court of Appeals.
We REINSTATE the Resolution dated 28 February
2001 of the Pasay City Prosecutor’s Office.
SO ORDERED.
G.R. Nos. 165510-33 July 28, 2006
BENJAMIN ("KOKOY") T. ROMUALDEZ, petitioner,
vs.
HON. SIMEON V. MARCELO, in his official capacity as
the Ombudsman, and PRESIDENTIAL COMMISSION
ON GOOD GOVERNMENT, respondents.
R E S O L U T I O N
YNARES-SANTIAGO, J.:
For resolution is petitioner’s Motion for
Reconsideration1 assailing the Decision dated
September 23, 2005, the dispositive portion of which
states:
WHEREFORE, the petition is DISMISSED. The
resolutions dated July 12, 2004 and September 6,
2004 of the Office of the Special Prosecutor, are
AFFIRMED.
SO ORDERED.2
Petitioner claims that the Office of the Ombudsman
gravely abused its discretion in recommending the
filing of 24 informations against him for violation of
Section 7 of Republic Act (RA) No. 3019 or the Anti-
Graft and Corrupt Practices Act; that the Ombudsman
cannot revive the aforementioned cases which were
previously dismissed by the Sandiganbayan in its
Resolution of February 10, 2004; that the defense of
prescription may be raised even for the first time on
appeal and thus there is no necessity for the
presentation of evidence thereon before the court a
quo. Thus, this Court may accordingly dismiss
Criminal Case Nos. 28031-28049 pending before the
Sandiganbayan and Criminal Case Nos. 04-231857–
04-231860 pending before the Regional Trial Court of
Manila, all on the ground of prescription.
In its Comment,3 the Ombudsman argues that the
dismissal of the informations in Criminal Case Nos.
13406-13429 does not mean that petitioner was
thereafter exempt from criminal prosecution; that
new informations may be filed by the Ombudsman
should it find probable cause in the conduct of its
preliminary investigation; that the filing of the
complaint with the Presidential Commission on Good
Government (PCGG) in 1987 and the filing of the
information with the Sandiganbayan in 1989
interrupted the prescriptive period; that the absence
of the petitioner from the Philippines from 1986 until
2000 also interrupted the aforesaid period based on
Article 91 of the Revised Penal Code.
For its part, the PCGG avers in its Comment4 that, in
accordance with the 1987 Constitution and RA No.
6770 or theOmbudsman Act of 1989, the
Omdudsman need not wait for a new complaint with
a new docket number for it to conduct a preliminary
investigation on the alleged offenses of the
petitioner; that considering that both RA No. 3019
and Act No. 3326 or the Act To Establish Periods of
Prescription For Violations Penalized By Special Acts
and Municipal Ordinances and to Provide When
Prescription Shall Begin To Run, are silent as to
whether prescription should begin to run when the
offender is absent from the Philippines, the Revised
Penal Code, which answers the same in the negative,
should be applied.
The issues for resolution are: (1) whether the
preliminary investigation conducted by the
Ombudsman in Criminal Case Nos. 13406-13429 was
a nullity; and (2) whether the offenses for which
petitioner are being charged have already prescribed.
Anent the first issue, we reiterate our ruling in the
assailed Decision that the preliminary investigation
conducted by the Ombudsman in Criminal Case Nos.
13406-13429 is a valid proceeding despite the
previous dismissal thereof by the Sandiganbayan in
its Minute Resolution5 dated February 10, 2004 which
reads:
Crim. Cases Nos. 13406-13429–PEO. vs. BENJAMIN T.
ROMUALDEZ
Considering that the Decision of the Honorable
Supreme Court in G.R. Nos. 143618-41, entitled
"Benjamin ‘Kokoy’ Romualdez vs. The Honorable
Sandiganbayan (First Division, et al.)" promulgated on
July 30, 2002 annulled and set aside the orders issued
by this Court on June 8, 2000 which, among others,
denied the accused’s motion to quash the
informations in these cases; that in particular the
above-mentioned Decision ruled that the herein
informations may be quashed because the officer
who filed the same had no authority to do so; and
that the said Decision has become final and
executory on November 29, 2002, these cases are
considered DISMISSED. Let these cases be sent to the
archives.
The aforesaid dismissal was effected pursuant to our
ruling in Romualdez v. Sandiganbayan6 where
petitioner assailed the Sandiganbayan’s Order dated
June 8, 2000 in Criminal Case Nos. 13406-13429
which denied his Motion to Quash, terminated the
preliminary investigation conducted by Prosecutor
Evelyn T. Lucero and set his arraignment for
violations of Section 7 of RA No. 3019 on June 26,
2000.7 In annulling and setting aside the aforesaid
Order of the Sandiganbayan, we held that:
In the case at bar, the flaw in the information is not a
mere remediable defect of form, as in Pecho v.
Sandiganbayan where the wording of the
certification in the information was found
inadequate, or in People v. Marquez, where the
required certification was absent. Here, the
informations were filed by an unauthorized party.
The defect cannot be cured even by conducting
another preliminary investigation. An invalid
information is no information at all and cannot be the
basis for criminal proceedings.8
In effect, we upheld in Romualdez v.
Sandiganbayan9 petitioner’s Motion to Quash and
directed the dismissal of Criminal Case Nos. 13406-
13429 because the informations were filed by an
unauthorized party, hence void.
In such a case, Section 6, Rule 117 of the Rules of
Court is pertinent and applicable. Thus:
SEC. 6. Order sustaining the motion to quash not a
bar to another prosecution; exception. – An order
sustaining the motion to quash is not a bar to
another prosecution for the same offense unless the
motion was based on the grounds specified in section
3(g) and (i)10 of this Rule.
An order sustaining a motion to quash on grounds
other than extinction of criminal liability or double
jeopardy does not preclude the filing of another
information for a crime constituting the same facts.
Indeed, we held in Cudia v. Court of Appeals11 that:
In fine, there must have been a valid and sufficient
complaint or information in the former prosecution.
If, therefore, the complaint or information was
insufficient because it was so defective in form or
substance that the conviction upon it could not have
been sustained, its dismissal without the consent of
the accused cannot be pleaded. As the fiscal had no
authority to file the information, the dismissal of the
first information would not be a bar in petitioner’s
subsequent prosecution. x x x.12
Be that as it may, the preliminary investigation
conducted by the Ombudsman in the instant cases
was not a violation of petitioner’s right to be
informed of the charges against him. It is of no
moment that the cases investigated by the
Ombudsman bore the same docket numbers as those
cases which have already been dismissed by the
Sandiganbayan, to wit: Criminal Case Nos. 13406-
13429. As we have previously stated:
The assignment of a docket number is an internal
matter designed for efficient record keeping. It is
usually written in the Docket Record in sequential
order corresponding to the date and time of filing a
case.
This Court agrees that the use of the docket numbers
of the dismissed cases was merely for reference. In
fact, after the new informations were filed, new
docket numbers were assigned, i.e., Criminal Cases
Nos. 28031-28049 x x x.13
Besides, regardless of the docket numbers, the
Ombudsman conducted the above-referred
preliminary investigation pursuant to our Decision
in Romualdez v. Sandiganbayan14 when we
categorically declared therein that:
The Sandiganbayan also committed grave abuse of
discretion when it abruptly terminated the
reinvestigation being conducted by Prosecutor
Lucero. It should be recalled that our directive in G.R.
No. 105248 for the holding of a preliminary
investigation was based on our ruling that the right to
a preliminary investigation is a substantive, rather
than a procedural right. Petitioner’s right was
violated when the preliminary investigation of the
charges against him were conducted by an officer
without jurisdiction over the said cases. It bears
stressing that our directive should be strictly
complied with in order to achieve its objective of
affording petitioner his right to due process.15
Anent the issue on the prescription of the offenses
charged, we should first resolve the question of
whether this Court may validly take cognizance of
and resolve the aforementioned issue considering
that as we have said in the assailed Decision, "this
case has never progressed beyond the filing of the
informations against the petitioner"16and that "it is
only prudent that evidence be gathered through trial
on the merits to determine whether the offense
charged has already prescribed."17 We reconsider our
stance and shall rule in the affirmative.
Rule 117 of the Rules of Court provides that the
accused may, at any time before he enters his plea,
move to quash the complaint and information18 on
the ground that the criminal action or liability has
been extinguished,19 which ground includes the
defense of prescription considering that Article 89 of
the Revised Penal Code enumerates prescription as
one of those grounds which totally extinguishes
criminal liability. Indeed, even if there is yet to be a
trial on the merits of a criminal case, the accused can
very well invoke the defense of prescription.
Thus, the question is whether or not the offenses
charged in the subject criminal cases have
prescribed? We held in the case of Domingo v.
Sandiganbayan20 that:
In resolving the issue of prescription of the offense
charged, the following should be considered: (1) the
period of prescription for the offense charged; (2) the
time the period of prescription starts to run; and (3)
the time the prescriptive period was interrupted.21
Petitioner is being charged with violations of Section
7 of RA No. 3019 for failure to file his Statements of
Assets and Liabilities for the period 1967-1985 during
his tenure as Ambassador Extraordinary and
Plenipotentiary and for the period 1963-1966 during
his tenure as Technical Assistant in the Department
of Foreign Affairs.
Section 11 of RA No. 3019 provides that all offenses
punishable therein shall prescribe in 15 years.
Significantly, this Court already declared in the case
of People v. Pacificador22 that:
It appears however, that prior to the amendment of
Section 11 of R.A. No. 3019 by B.P. Blg. 195 which
was approved on March 16, 1982, the prescriptive
period for offenses punishable under the said statute
was only ten (10) years. The longer prescriptive
period of fifteen (15) years, as provided in Section 11
of R.A. No. 3019 as amended by B.P. Blg. 195, does
not apply in this case for the reason that the
amendment, not being favorable to the accused
(herein private respondent), cannot be given
retroactive effect. Hence, the crime prescribed on
January 6, 1986 or ten (10) years from January 6,
1976.23
Thus, for offenses allegedly committed by the
petitioner from 1962 up to March 15, 1982, the same
shall prescribe in 10 years. On the other hand, for
offenses allegedly committed by the petitioner during
the period from March 16, 1982 until 1985, the same
shall prescribe in 15 years.
As to when these two periods begin to run, reference
is made to Act No. 3326 which governs the
computation of prescription of offenses defined by
and penalized under special laws. Section 2 of Act No.
3326 provides:
SEC. 2. Prescription shall begin to run from the day of
the commission of the violation of the law, and if the
same be not known at the time, from the discovery
thereof and the institution of judicial proceedings for
its investigation and punishment.
The prescription shall be interrupted when
proceedings are instituted against the guilty person,
and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy.
In the case of People v. Duque,24 we construed the
aforequoted provision, specifically the rule on the
running of the prescriptive period as follows:
In our view, the phrase "institution of judicial
proceedings for its investigation and punishment"
may be either disregarded as surplusage or should be
deemed preceded by the word "until." Thus, Section
2 may be read as:
"Prescription shall begin to run from the day of the
commission of the violation of the law; and if the
same be not known at the time, from the discovery
thereof;"
or as:
"Prescription shall begin to run from the day of the
commission of the violation of the law, and if the
same be not known at the time, from the discovery
thereof and until institution of judicial proceedings
for its investigation and punishment." (Emphasis
supplied)25
Thus, this Court rules that the prescriptive period of
the offenses herein began to run from the discovery
thereof or on May 8, 1987, which is the date of the
complaint filed by the former Solicitor General
Francisco I. Chavez against the petitioner with the
PCGG.
In the case of Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto26 this Court
already took note that:
In cases involving violations of R.A. No. 3019
committed prior to the February 1986 EDSA
Revolution that ousted President Ferdinand E.
Marcos, we ruled that the government as the
aggrieved party could not have known of the
violations at the time the questioned transactions
were made. Moreover, no person would have dared
to question the legality of those transactions. Thus,
the counting of the prescriptive period commenced
from the date of discovery of the offense in 1992
after an exhaustive investigation by the Presidential
Ad Hoc Committee on Behest Loans.27
However, both respondents in the instant case aver
that, applying Article 91 of the Revised Penal Code
suppletorily, the absence of the petitioner from the
Philippines from 1986 until April 27, 2000 prevented
the prescriptive period for the alleged offenses from
running.
We disagree.
Section 2 of Act. No. 3326 is conspicuously silent as to
whether the absence of the offender from the
Philippines bars the running of the prescriptive
period. The silence of the law can only be interpreted
to mean that Section 2 of Act No. 3326 did not intend
such an interruption of the prescription unlike the
explicit mandate of Article 91. Thus, as previously
held:
Even on the assumption that there is in fact a
legislative gap caused by such an omission, neither
could the Court presume otherwise and supply the
details thereof, because a legislative lacuna cannot
be filled by judicial fiat. Indeed, courts may not, in the
guise of the interpretation, enlarge the scope of a
statute and include therein situations not provided
nor intended by the lawmakers. An omission at the
time of the enactment, whether careless or
calculated, cannot be judicially supplied however
after later wisdom may recommend the inclusion.
Courts are not authorized to insert into the law what
they think should be in it or to supply what they think
the legislature would have supplied if its attention
has been called to the omission.28
The only matter left to be resolved is whether the
filing of the complaint with the PCGG in 1987 as well
as the filing of the informations with the
Sandiganbayan to initiate Criminal Case Nos. 13406-
13429 in 1989 interrupted the running of the
prescriptive period such that when the Ombudsman
directed petitioner to file his counter-affidavit on
March 3, 2004, the offenses have already prescribed.
Under Section 2 of Act No. 3326, the prescriptive
period shall be interrupted "when proceedings are
instituted against the guilty person." However, there
is no such proceeding instituted against the
petitioner to warrant the tolling of the prescriptive
periods of the offenses charged against him.
In Romualdez v. Sandiganbayan,29 petitioner averred
that PCGG acted without jurisdiction and/or grave
abuse of discretion in conducting a preliminary
investigation of cases not falling within its
competence.30 This Court, in its resolve to "deal with
the merits of the case to remove the possibility of any
misunderstanding as to the course which it wishes
petitioner’s cases in the Sandiganbayan to
take"31declared invalid –
the preliminary investigation conducted by the PCGG
over the 24 offenses ascribed to Romualdez (of
failure to file annual statements of assets and
liabilities), for lack of jurisdiction of said offenses.32
In Romualdez v. Sandiganbayan,33 petitioner assailed
the validity of the informations filed with the
Sandiganbayan in Criminal Case Nos. 13406-13429
considering that the same were subscribed and filed
by the PCGG. In granting petitioner’s plea, this Court
held, thus:
Here, the informations were filed by an unauthorized
party. The defect cannot be cured by conducting
another preliminary investigation. An invalid
information is no information at all and cannot be the
basis for criminal proceedings.34
Indeed, the nullity of the proceedings initiated by
then Solicitor General Chavez in 1987 with the PCGG
and by the PCGG with the Sandiganbayan in 1989 is
judicially settled. In contemplation of the law, no
proceedings exist that could have merited the
suspension of the prescriptive periods.
Besides, the only proceeding that could interrupt the
running of prescription is that which is filed or
initiated by the offended party before the
appropriate body or office. Thus, in the case
of People v. Maravilla,35 this Court ruled that the
filing of the complaint with the municipal mayor for
purposes of preliminary investigation had the effect
of suspending the period of prescription. Similarly, in
the case of Llenes v. Dicdican,36 this Court held that
the filing of a complaint against a public officer with
the Ombudsman tolled the running of the period of
prescription.
In the case at bar, however, the complaint was filed
with the wrong body, the PCGG. Thus, the same
could not have interrupted the running of the
prescriptive periods.
However, in his Dissenting Opinion, Mr. Justice Carpio
contends that the offenses charged against the
petitioner could not have prescribed because the
latter was absent from the Philippines from 1986 to
April 27, 2000 and thus the prescriptive period did
not run from the time of discovery on May 8, 1987,
citing Article 91 of the Revised Penal Code which
provides that "[t]he term of prescription should not
run when the offender is absent from the Philippine
Archipelago."
Mr. Justice Carpio argues that –
Article 10 of the same Code makes Article 91 "x x x
supplementary to [special laws], unless the latter
should x x x provide the contrary." Nothing in RA
3019 prohibits the supplementary application of
Article 91 to that law. Hence, applying Article 91, the
prescriptive period in Section 11 of RA 3019, before
and after its amendment, should run only after
petitioner returned to this jurisdiction on 27 April
2000.
There is no gap in the law. Where the special law is
silent, Article 10 of the RPC applies suppletorily, as
the Court has held in a long line of decisions since
1934, starting with People v. Moreno. Thus, the Court
has applied suppletorily various provisions of the RPC
to resolve cases where the special laws are silent on
the matters in issue. The law on the applicability of
Article 10 of the RPC is thus well-settled, with the
latest reiteration made by this Court in 2004 in Jao Yu
v. People.
He also expresses his apprehension on the possible
effects of the ruling of the Majority Opinion and
argues that –
The accused should not have the sole discretion of
preventing his own prosecution by the simple
expedient of escaping from the State’s jurisdiction. x
x x An accused cannot acquire legal immunity by
being a fugitive from the State’s jurisdiction. x x x.
To allow an accused to prevent his prosecution by
simply leaving this jurisdiction unjustifiably tilts the
balance of criminal justice in favor of the accused to
the detriment of the State’s ability to investigate and
prosecute crimes. In this age of cheap and accessible
global travel, this Court should not encourage
individuals facing investigation or prosecution for
violation of special laws to leave Philippine
jurisdiction to sit-out abroad the prescriptive period.
The majority opinion unfortunately chooses to lay the
basis for such anomalous practice.
With all due respect, we beg to disagree.
Article 10 of the Revised Penal Code provides:
ART. 10. Offenses not subject to the provisions of this
Code. – Offenses which are or in the future may be
punishable under special laws are not subject to the
provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should
specially provide the contrary.
Pursuant thereto, one may be tempted to hastily
conclude that a special law such as RA No. 3019 is
supplemented by the Revised Penal Code in any and
all cases. As it is, Mr. Justice Carpio stated in his
Dissenting Opinion that –
There is no gap in the law. Where the special law is
silent, Article 10 of the RPC applies suppletorily, as
the Court has held in a long line of decisions since
1934, starting with People v. Moreno. Thus, the Court
has applied suppletorily various provisions of the RPC
to resolve cases where the special laws are silent on
the matters in issue. The law on the applicability of
Article 10 of the RPC is thus well-settled, with the
latest reiteration made by this Court in 2004 in Jao Yu
v. People.
However, it must be pointed out that the suppletory
application of the Revised Penal Code to special laws,
by virtue of Article 10 thereof, finds relevance only
when the provisions of the special law are silent on a
particular matteras evident from the cases cited and
relied upon in the Dissenting Opinion:
In the case of People v. Moreno,37 this Court, before
ruling that the subsidiary penalty under Article 39 of
the Revised Penal Code may be applied in cases of
violations of Act No. 3992 or the Revised Motor
Vehicle Law, noted that the special law did not
contain any provision that the defendant can be
sentenced with subsidiary imprisonment in case of
insolvency.
In the case of People v. Li Wai Cheung,38 this Court
applied the rules on the service of sentences
provided in Article 70 of the Revised Penal Code in
favor of the accused who was found guilty of multiple
violations of RA No. 6425 orThe Dangerous Drugs Act
of 1972 considering the lack of similar rules under the
special law.
In the case of People v. Chowdury,39 the Court
applied Articles 17, 18 and 19 of the Revised Penal
Code to define the words "principal," "accomplices"
and "accessories" under RA No. 8042 or the Migrant
Workers and Overseas Filipinos Act of 1995 because it
was not defined therein although it referred to the
same terms in enumerating the persons liable for the
crime of illegal recruitment.
In the case at bar, the silence of RA No. 3019 on the
question of whether or not the absence of the
accused from the Philippines prevents or tolls the
running of the prescriptive period is more apparent
than real.
Even before the enactment of RA No. 3019 in 1960,
Act No. 3326 was already in effect as early as
December 4, 1926. Section 3 thereof categorically
defines "special acts" as "acts defining and
penalizing violations of the law not included in the
Penal Code".
Thus, in the case of Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto,40 this Court
was categorical in ruling that –
The law on prescription of offenses is found in
Articles 90 and 91 of the Revised Penal Code for
offenses punishable thereunder. For those penalized
under special laws, Act No. 3326 applies.
Section 2 of Act No. 3326 provides that the
prescription shall begin to run from the day of the
commission of the violation of the law, and if the
same be not known at the time, from the discovery
thereof and the institution of judicial proceedings for
its investigation and punishment. The running of the
prescriptive period shall be interrupted when
proceedings are instituted against the guilty person,
and shall begin to run again if the proceedings are
dismissed for reasons not constituting
jeopardy. Clearly, Section 2 of Act No. 3326 did not
provide that the absence of the accused from the
Philippines prevents the running of the prescriptive
period. Thus, the only inference that can be gathered
from the foregoing is that the legislature, in enacting
Act No. 3326, did not consider the absence of the
accused from the Philippines as a hindrance to the
running of the prescriptive period.Expressio unius est
exclusio alterius. To elaborate, -
Indeed, it is an elementary rule of statutory
construction that the express mention of one person,
thing, act, or consequence excludes all others. This
rule is expressed in the familiar maxim "expressio
unius est exclusio alterius." Where a statute, by its
terms, is expressly limited to certain matters, it may
not, by interpretation or construction, be extended to
others. The rule proceeds from the premise that the
legislature would not have made specified
enumerations in a statute had the intention been not
to restrict its meaning and to confine its terms to
those expressly mentioned.41
Had the legislature intended to include the accused’s
absence from the Philippines as a ground for the
interruption of the prescriptive period in special laws,
the same could have been expressly provided in Act
No. 3326. A case in point is RA No. 8424 or the Tax
Reform Act of 1997 where the legislature made its
intention clear and was thus categorical that –
SEC. 281. Prescription for Violations of any Provision
of this Code – All violations of any provision of this
Code shall prescribe after five (5) years.
Prescription shall begin to run from the day of the
commission of the violation of the law, and if the
same be not known at the time, from the discovery
thereof and the institution of judicial proceedings for
its investigation and punishment.
The prescription shall be interrupted when
proceedings are instituted against the guilty persons
and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy.
The term of prescription shall not run when the
offender is absent from the Philippines. (Emphasis
supplied)
According to Mr. Justice Carpio, Article 91 of the
Revised Penal Code fills the so-called "gap" in Act No.
3326. Thus, while Act No. 3326 governs the operation
of the prescriptive period for violations of R.A. No.
3019, Article 91 of the Revised Penal Code can and
shall still be applied in cases where the accused is
absent from the Philippines. In effect, Article 91
would supplement Act No. 3326.
This could not have been the intention of the framers
of the law.
While it is true that Article 10 of the Revised Penal
Code makes the Code suppletory to special laws,
however, Act No. 3326 cannot fall within the ambit of
"special law" as contemplated and used in Article 10
of the RPC.
In the case of United States v. Serapio,42 the Court
had the occasion to interpret the term "special laws"
mentioned in Article 7 of then Penal Code of the
Philippines, which is now Article 10 of the Revised
Penal Code, as referring to penal laws that punish
acts not defined and penalized by the Penal Code of
the Philippines. Thus –
This contention makes it necessary to define "special
laws," as that phrase is used in article 7 of the Penal
Code. Does this phrase "leyes especiales," as used in
the Penal Code (article 7) have the meaning applied
to the phrase "special laws," as the same is generally
used? x x x It is confidently contended that the
phrase "leyes especiales," as used in the Penal Code
(article 7) is not used with this general signification: In
fact, said phrase may refer not to a special law as
above defined, but to a general law. A careful reading
of said article 7 clearly indicates that the phrase
"leyes especiales" was not used to signify "special
laws" in the general signification of that phrase. The
article, it will be noted, simply says, in effect, that
when a crime is made punishable under some other
law than the Penal Code, it (the crime) is not subject
to the provisions of said code.43
Even if we consider both Act No. 3326 and Article 91
as supplements to RA No. 3019, the same result
would obtain. A conflict will arise from the
contemporaneous application of the two laws. The
Revised Penal Code explicitly states that the absence
of the accused from the Philippines shall be a ground
for the tolling of the prescriptive period while Act No.
3326 does not. In such a situation, Act No. 3326 must
prevail over Article 91 because it specifically and
directly applies to special laws while the Revised
Penal Code shall apply to special laws only
suppletorily and only when the latter do not provide
the contrary. Indeed, elementary rules of statutory
construction dictate that special legal provisions must
prevail over general ones.
The majority notes Mr. Justice Carpio’s reservations
about the effects of ruling that the absence of the
accused from the Philippines shall not suspend the
running of the prescriptive period. Our duty,
however, is only to interpret the law. To go beyond
that and to question the wisdom or effects of the law
is certainly beyond our constitutionally mandated
duty. As we have already explained –
Even on the assumption that there is in fact a
legislative gap caused by such an omission, neither
could the Court presume otherwise and supply the
details thereof, because a legislative lacuna cannot
be filled by judicial fiat. Indeed, courts may not, in the
guise of interpretation, enlarge the scope of a statute
and include therein situations not provided nor
intended by the lawmakers. An omission at the time
of the enactment, whether careless or calculated,
cannot be judicially supplied however after later
wisdom may recommend the inclusion. Courts are
not authorized to insert into the law what they think
should be in it or to supply what they think the
legislature would have supplied if its attention has
been called to the omission.44
Mr. Justice Carpio also remarks that the liberal
interpretation of the statute of limitations in favor of
the accused only relates to the following issues: (1)
retroactive or prospective application of laws
providing or extending the prescriptive period; (2) the
determination of the nature of the felony committed
vis-à-vis the applicable prescriptive period; and (3) the
reckoning of when the prescriptive period
runs. Therefore, the aforementioned principle cannot
be utilized to support the Majority Opinion’s
conclusion that the prescriptive period in a special
law continues to run while the accused is abroad.
We take exception to the foregoing proposition.
We believe that a liberal interpretation of the law on
prescription in criminal cases equally provides the
authority for the rule that the prescriptive period
runs while the accused is outside of Philippine
jurisdiction. The nature of the law on prescription of
penal statutes supports this conclusion. In the old but
still relevant case of People v. Moran,45 this Court
extensively discussed the rationale behind and the
nature of prescription of penal offenses –
"We should at first observe that a mistake is
sometimes made in applying to statutes of limitation
in criminal suits the construction that has been given
to statutes of limitation in civil suits. The two classes
of statutes, however, are essentially different. In civil
suits the statute is interposed by the legislature as an
impartial arbiter between two contending parties. In
the construction of the statute, therefore, there is no
intendment to be made in favor of either party.
Neither grants the right to the other; there is
therefore no grantor against whom the ordinary
presumptions, of construction are to be made. But it
is, otherwise when a statute of limitation is granted
by the State. Here the State is the grantor,
surrendering by act of grace its rights to prosecute,
and declaring the offense to be no longer the subject
of prosecution.' The statute is not a statute of
process, to be scantily and grudgingly applied, but
an amnesty, declaring that after a certain time
oblivion shall be cast over the offence; that the
offender shall be at liberty to return to his country,
and resume his immunities as a citizen and that
from henceforth he may cease to preserve the
proofs of his innocence, for the proofs of his guilt
are blotted out. Hence it is that statutes of limitation
are to be liberally construed in favor of the
defendant, not only because such liberality of
construction belongs to all acts of amnesty and grace,
but because the very existence of the statute, is a
recognition and notification by the legislature of the
fact that time, while it gradually wears out proofs of
innocence, has assigned to it fixed and positive
periods in which it destroys proofs of guilt.
Independently of these views, it must be
remembered that delay in instituting prosecutions is
not only productive of expense to the State, but of
peril to public justice in the attenuation and
distortion, even by mere natural lapse of memory, of
testimony. It is the policy of the law that prosecutions
should be prompt, and that statutes, enforcing such
promptitude should be vigorously maintained. They
are not merely acts of grace, but checks imposed by
the State upon itself, to exact vigilant activity from its
subalterns, and to secure for criminal trials the best
evidence that can be obtained." (Emphasis supplied)
Indeed, there is no reason why we should deny
petitioner the benefits accruing from the liberal
construction of prescriptive laws on criminal statutes.
Prescription emanates from the liberality of the
State. Any bar to or cause of interruption in the
operation of prescriptive periods cannot simply be
implied nor derived by mere implication. Any
diminution of this endowment must be directly and
expressly sanctioned by the source itself, the State.
Any doubt on this matter must be resolved in favor of
the grantee thereof, the accused.
The foregoing conclusion is logical considering the
nature of the laws on prescription. The exceptions to
the running of or the causes for the interruption of
the prescriptive periods may and should not be easily
implied. The prescriptive period may only be
prevented from operating or may only be tolled for
reasons explicitly provided by the law.
In the case of People v. Pacificador,46 we ruled that:
It bears emphasis, as held in a number of cases, that
in the interpretation of the law on prescription of
crimes, that which is more favorable to the accused is
to be adopted. The said legal principle takes into
account the nature of the law on prescription of
crimes which is an act of amnesty and liberality on
the part of the state in favor of the offender. In the
case of People v. Moran, this Court amply discussed
the nature of the statute of limitations in criminal
cases, as follows:
The statute is not statute of process, to be scantily
and grudgingly applied, but an amnesty, declaring
that after a certain time oblivion shall be cast over
the offense; that the offender shall be at liberty to
return to his country, and resume his immunities as a
citizen; and that from henceforth he may cease to
preserve the proofs of his innocence, for the proofs
of his guilt are blotted out. Hence, it is that statues of
limitation are to be liberally construed in favor of the
defendant, not only because such liberality of
construction belongs to all acts of amnesty and grace,
but because the very existence of the statute is a
recognition and notification by the legislature of the
fact that time, while it gradually wears out proofs of
innocence, has assigned to it fixed and positive
periods in which it destroys proofs of guilt.47
In view of the foregoing, the applicable 10-and-15-
year prescriptive periods in the instant case, were not
interrupted by any event from the time they began to
run on May 8, 1987. As a consequence, the alleged
offenses committed by the petitioner for the years
1963-1982 prescribed 10 years from May 8, 1987 or
on May 8, 1997. On the other hand, the alleged
offenses committed by the petitioner for the years
1983-1985 prescribed 15 years from May 8, 1987 or
on May 8, 2002.
Therefore, when the Office of the Special Prosecutor
initiated the preliminary investigation of Criminal
Case Nos. 13406-13429 on March 3, 2004 by
requiring the petitioner to submit his counter-
affidavit, the alleged offenses subject therein have
already prescribed. Indeed, the State has lost its right
to prosecute petitioner for the offenses subject of
Criminal Case Nos. 28031-28049 pending before the
Sandiganbayan and Criminal Case Nos. 04-231857–
04-231860 pending before the Regional Trial Court of
Manila.
WHEREFORE, premises considered, petitioner’s
Motion for Reconsideration is GRANTED. Criminal
Case Nos. 28031-28049 pending before the
Sandiganbayan and Criminal Case Nos. 04-231857–
04-231860 pending before the Regional Trial Court of
Manila are all hereby ordered DISMISSED.
August 13, 1992
G.R. No. 100285
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NAPOLEON DUQUE, accused-appellant.
The Solicitor General for plaintiff-appellee. Trinidad,
Reverente, Makalintal, Cabrera and Monsod Law
Office for accused-appellant.
FELICIANO, J.:
Appellant Napoleon Duque was charged with and
convicted of violating Section 38 in relation to Section
39 of P.D. No. 442, as amended, known as The Labor
Code of the Philippines. The charge of illegal
recruitment was set out in the information in the
following terms:
That on or about and/or sometime in January 1986,
at Calamba, Laguna and within the jurisdiction of this
Honorable Court, the above named accused well
knowing that he is not licensed nor authorized by the
proper government agency (POEA) to engage in
recruitment of workers for placement abroad, did
then and there wilfully, unlawfully and feloniously
recruit Glicerio Teodoro, Agustin Ulat, Ernesto
Maunahan, Norma Francisco, Elmo Alcaraz and
Marcelino Desepida as workers abroad exacted and
actually received money from the above-named
victims, to their damage and prejudice.
Contrary to law.[[1]]
The evidence in chief of the prosecution consisted
principally of the testimony of the following
witnesses: Agustin Ulat, Elmo Alcaraz, Marcelino
Desepida and Norma Francisco. Their testimonies
were summarized in the trial court's decision as
follows:
. . . sometime in January 1986, he (Agustin Ulat) was
invited by the accused to his house in Calamba,
Laguna. Thereat accused informed him that he was
recruiting workers for Saudi Arabia and that he was
interested in getting (sic) him. Accused likewise
presented to him that he (accused) was a licensed
recruiter (TSN, 22 Oct. 1990, pp. 6-7). The accused
told him to secure his birth certificate, an NBI
clearance and medical certificate. He was able to
secure an NBI clearance which he showed to the
accused. The latter thereafter told him that he would
secure the rest of his papers like passport, visa and
medical certificate for him and for this, accused asked
him to prepare the amount of P20,000.00. He did not
have that money, so he mortgaged his lot for
P20,000.00 to the cousin of the accused, Socorro
Arlata. He immediately gave this amount to the
accused who assured him that he would be able to
leave within two months. The accused did not issue a
receipt for that amount despite his request. He did
not persist in asking the accused because he trusted
him, accused coming from an affluent family and a
member of a well-known Catholic organization, the
"Cursillo" (TSN, 22 Oct. 1990, pp. 4-9). However,
accused failed to employ him at Saudi Arabia within
two months despite repeated promise (sic) to do so.
Thus, he demanded the return of his money but
accused failed. Finally, he decided, together with the
other complainants, to file a complaint against
accused before the Philippine Overseas Employment
Agency (POEA). . . .
Elmo Alcaraz, Marcelino Desepida and Norma
Francisco individually testified to the following:
sometime also in January 1986, they went to the
house of accused for work abroad as the latter had
earlier told them that he was recruiting workers for
the Saudi Arabia. The accused asked money to
process their papers. Alcaraz was able to give the
accused on 22 February 1986 the amount of
P5,000.00, but the accused failed to issue him a
receipt and he did not persist in asking for it because
he trusted the accused on (TSN, 5 Nov. 1990, pp. 5-
7). Desepida was able to give the accused on 18 Feb.
1986, the amount of P7,000.00 as placement fee for
which the accused did not issue a receipt although he
promised to issue one the next day. However, the
following day, when he reminded the accused of the
receipt, he refused saying that he (Desepida) should
trust [the accused]. Francisco was able to give the
accused P9,000.00 on 21 February 1986 in the
presence of the other applicants (TSN, 26 Nov. 1990,
p. 5). But, the accused again failed to issue a receipt
despite demand. She was told by the accused to trust
him (Ibid., p. 6). However, the accused failed to
return their money notwithstanding. Thus, all of
them decided to file a complaint with the POEA
against the accused. There, they executed a joint
affidavit (Exh. "A").[[2]]
During the trial, Duque denied the charges. He
controverted the allegation that he had recruited
complainants for overseas employment. He also
denied that he had received any monies in
consideration of promised employment. However, he
acknowledged that his house had served as a
meeting place for a certain Delfin and one Engr.
Acopado who allegedly were the persons who had
promised complainants, work abroad.
On the basis of the positive identification by private
complainants of appellant Duque as the person they
had talked to for placement abroad, the person who
had collected fees from them and who had received
information from them needed for arranging their
departure for abroad, the trial court concluded that
accused Duque was primarily responsible for
promising placement and inducing private
complainants to part with their money. The
prosecution also submitted a certification from the
licensing branch of the Philippine Overseas
Employment Administration ("POEA") stating that no
records existed whatsoever of a grant to the accused
of a license or authority to recruit for overseas
employment. The dispositive part of the decision
reads:
Wherefore, this Court finds the accused guilty
beyond reasonable doubt, [of] violation of [Art.] 38 in
relation to [Art.] 39 of P.D. 442 otherwise known as
the Labor Code of the Philippines, and hereby
sentences the accused to suffer the penalty of
reclusion perpetua and a fine of P100,000.00 without
subsidiary imprisonment in case of insolvency and to
indemnify the offended parties: Agustin Ulat the
amount of P20,000.00; Marcelino Desepida the
amount of P7,000.00; Norma Francisco the amount
of P9,000.00; and Elmo Alcaraz the amount of
P3,000.00 and the cost of suit.[[3]]
Before this Court, appellant Duque raises only one (1)
issue: that of prescription of the criminal offense for
which he was convicted.
The recruitment of persons for overseas employment
without the necessary recruiting permit or authority
form the POEA constitutes a crime penalized, not by
the Revised Penal Code, but rather by a special law,
i.e., Article 38 in relation to Article 290 of the Labor
Code. Article 290 of the Labor Code provides, in
relevant part, that:
Art. 290. Offenses penalized under this Code and the
rules and regulations issued pursuant thereto shall
prescribe in three (3) years.
xxx xxx xxx
The Labor Code, however, does not contain any
provisions on the mode of computation of the three-
year prescriptive period it established.
The Solicitor General states, and we agree with him,
that Act No. 3326 , as amended, entitled "An Act to
Establish Periods of Prescription for Violations
Penalized by Special Acts and Municipal Ordinances
and to Provide When Prescription Shall Begin to Run"
(emphasis supplied), supplied the applicable norm. 4
Section 2 of Act No. 3326, as amended, reads as
follows:
Section 2: . . .
xxx xxx xxx
Prescription shall begin to run from the day of the
commission of the violation of the law, and if the
same be not known at the time, from the discovery
thereof and institution of judicial proceedings for its
investigation and punishment.
Examination of the abovequoted Section 2 shows
that there are two (2) rules for determining the
beginning of the prescriptive period: (a) on the day of
the commission of the violation, if such commission
be known; and (b) if the commission of the violation
was not known at the time, then from discovery
thereof and institution of judicial proceedings for
investigation and punishment. Appellant Duque
contends that the prescriptive period in the case at
bar commenced from the time money in
consideration of promises for overseas employment
was parted with by complainants. Duque thus
contends that the prescriptive period began to run
sometime in January 1986. The information was,
however, filed by the Assistant Provincial Prosecutor
of Laguna on 22 May 1990, i.e., more than four (4)
years later. Duque concludes that the offense of
illegal recruitment had accordingly prescribed by May
1990.
We are not persuaded. Article 38 of the Labor Code
as amended reads as follows:
Art. 38. Illegal Recruitment. - (a) Any recruitment
activities, including the prohibited practices
enumerated under Article 34 of this Code, to be
undertaken by non-licensees or non-holders of
authority shall be deemed illegal and punishable
under Article 39 of this Code. The Ministry of Labor
and Employment or any law enforcement officer may
initiate complaints under this Article.
(b) Illegal recruitment when committed by a
syndicate or in large scale shall be considered an
offense involving economic sabotage and shall be
penalized in accordance with Article 39 hereof.
Illegal recruitment is deemed committed by a
syndicate if carried out by a group of three (3) or
more persons conspiring and/or confederating with
one another in carrying out any unlawful or illegal
transaction, enterprise or scheme defined under the
first paragraph hereof. Illegal recruitment is deemed
committed in large scale if committed against three
(3) or more persons individually or as a group.
(c) The Minister of Labor and Employment or his duly
authorized representatives shall have the power to
cause the arrest and detention of such non-license or
non-holder of authority if after investigation it is
determined that his activities constitute a danger to
national security and public order or will lead to
further exploitation of job-seekers. The Minister shall
order the search of the office or premises and seizure
of documents, paraphernalia, properties and other
implements used in illegal recruitment activities and
the closure of companies, establishments and entities
found to be engaged in the recruitment of workers
for overseas employment, without having been
licensed or authorized to do so. (Emphasis supplied)
It will be seen that illegal recruitment has two (2)
basic elements, to wit: (a) recruitment activities as
listed in Articles 38 and 34 of the Labor Code; and (b)
the lack of the necessary license or authority from
the POEA to engage in such activities. Recruitment
for overseas employment is not in itself necessarily
immoral or unlawful. It is the lack of necessary license
or permit that renders such recruitment activities
unlawful and criminal. Such lack of necessary permit
or authority, while certainly known to appellant
Duque back in January 1986, was not known to
private complainants at that time. Indeed, private
complainants discovered that appellant did not
possess such authority or permit only when they
went to the offices of the POEA for the purpose of
filing a claim for return of the money they had
delivered to appellant Duque. Since good faith is
always presumed, the complainants were entitled to
assume the appellant Duque was acting in good faith
when he presented himself as a recruiter for overseas
placement. Even if it be assumed arguendo that
ordinary prudence required that a person seeking
overseas employment ought to check the authority
or status of persons pretending to be authorized or to
speak for a recruitment or placement agency, the
offended parties' failure to do so did not start the
running of the prescriptive period. In the nature of
things, acts made criminal by special laws are
frequently not immoral or obviously criminal in
themselves; for this reason, the applicable statute
requires that if the violation of the special law is not
known at the time, then prescription begins to run
only from the discovery thereof, i.e., discovery of the
unlawful nature of the constitutive act or acts.
Appellant Duque assails Section 2 of Act No. 3326 as
illogical or absurd. A literal reading of Section 2
appears to suggest that two (2) elements must
coincide for the beginning of the running of the
prescriptive period: first, the element of discovery of
the commission of the violation of the special law;
and second, the "institution of judicial proceedings
for its investigation and punishment." It is then
argued by appellant that because the co-existence of
these two (2) requirements is necessary under
Section 2 of Act No. 3326, the relevant prescriptive
period would never begin to run.
Here appellant has a point. However, it should be
noted, firstly, that the literal reading that appellant
suggests, does not benefit appellant, for the
prescriptive period in the case at bar had not in any
case been exhausted since prosecution of appellant
commenced only a few months after the POEA and
the complainants had discovered that appellant had
no governmental authority to recruit for overseas
work and was merely pretending to recruit workers
for overseas employment and to receive money
therefor, i.e., that appellant did not even attempt to
locate employment abroad for complainants.
Secondly, we do not think there is any real need for
such a literal reading of Section 2. As is well-known,
initiation of proceedings for preliminary investigation
of the offense normally marks the interruption of the
period of prescription. Under appellant Duque's
literal reading, the prescription period would both
begin and be interrupted by the same occurrence;
the net effect would be that the prescription period
would not have effectively begun, having been
rendered academic by the simultaneous interruption
of that same period. A statute providing for
prescription of defined criminal offenses is more than
a statute of repose and constitutes an act of grace by
which the State, after the lapse of a certain period of
time, surrenders its sovereign power to prosecute the
criminal act. A statute on prescription of crimes is an
act of liberality on the part of the State in favor of the
offender.[[5]] The applicable well-known principles of
statutory interpretation are that statutes must be
construed in such a way as to give effect to the
intention of the legislative authority,[[6]] and so as to
give a sensible meaning to the language of the
statute and thus avoid nonsensical or absurd results,
[[7]] departing to the extent unavoidable from the
literal language of the statute. Appellant's literal
reading would make nonsense of Section 2 of Act No.
3326.
In our view, the phrase "institution of judicial
proceedings for its investigation and punishment"
may be either disregarded as surplusage or should be
deemed preceded by the word "until." Thus, Section
2 may be read as:
Prescription shall begin to run from the day of the
commission of the violation of the law; and if the
same be not known at the time, from the discovery
thereof;
or as:
Prescription shall begin to run from the day of the
commission of the violation of the law, and if the
same be not known at the time, from the discovery
thereof and until institution of judicial proceedings
for its investigation and punishment. (Emphasis
supplied)
We believe and so hold that the applicable
prescriptive period in the case at bar began to run
from the time the recruitment activities of appellant
Duque were ascertained by the complainants and by
the POEA to have been carried out without any
license or authority from the government. The
discovery by the complainants and by the POEA was,
as a practical matter, simultaneous in character and
occurred sometime in December 1989 when the
complainants went to the POEA with the complaint
for recovery of the placement fees and expenses they
had paid to appellant Duque, and the POEA, acting
upon that complaint, discovered and informed the
private complainants that Duque had operated as a
recruiter without the essential government license or
authority. Accordingly, the offense of illegal
recruitment had not prescribed when the complaint
was filed with the Provincial Prosecutor's Office in
April 1990 and when the information was filed in
court in May 1990.
It is relevant to note that the same result would be
reached by giving supplemental effect to provisions
of the Revised Penal Code in the application of Article
290 of the Labor Code. 8 Article 91 of the Revised
Penal Code reads as follows:
Art. 91. Computation of the prescription of offenses. -
The period of prescription shall commence to run
from the day on which the crime is discovered by the
offended party, the authorities, or their agents, and
shall be interrupted by the filing of the complaint or
information, and shall commence to run again when
such proceedings terminate without the accused
being convicted or acquitted, or are unjustifiably
stopped for any reason not imputable to him.
The term of prescription shall not run when the
offender is absent from the Philippine Archipelago.
(Emphasis supplied)
Under the above-quoted Article 91, the prescriptive
period in respect of the offense of illegal recruitment
began to run on the date of discovery thereof by the
private complainants and the authorities concerned
(POEA) sometime in December 1989 and was
interrupted on 16 April 1990 when the affidavit-
sworn complaint was filed before the Office of the
Provincial Prosecutor, 9 and certainly by May 1990
when the criminal information was filed in court by
the Assistant Provincial Prosecutor of Laguna. Once
more, the appellant's defense of prescription must
fail.
Under Section 39 of the Labor Code as amended, the
penalty of life imprisonment is properly imposable
where the illegal recruitment is committed "in large
scale," i.e., where it is "committed against three (3) or
more persons individually or as a group." 10 In the
case at bar, private complainants are more than
three (3) in number. Moreover, appellant Duque had
represented to the public at large, including private
complainants, that he was a licensed
recruiter. 11 Duque's house served as his business
office and he asked the private complainants to see
him in his house. 12 There, complainants were
"briefed" as to the requirements for overseas
employment before their supposed departure and
were each required to secure a clearance from the
National Bureau of Investigation. 13 Considerable
sums were collected from each of the complainants
supposedly to "facilitate" the processing of passports,
medical certificates and other working papers. 14
Complainants were, in addition, shown documents
which purported to be job placement orders. This
organized modus operandi was repeated in respect
of each of the complainants and presumably in
respect of other persons who were similarly
victimized by appellant. There is no question that the
recruitment activities of Duque were organized and
"large scale" in nature. 15
WHEREFORE, the judgment of conviction rendered by
the trial court is hereby AFFIRMED, with the sole
modification that the penalty properly imposable and
hereby imposed is life imprisonment and not
reclusion perpetua. Costs against appellant.
SO ORDERED.
PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee,
- versus –
FRANCISCA TALARO,* GREGORIO TALARO,**
NORBERTO (JUN) ADVIENTO, RENATO RAMOS,
RODOLFO DUZON,*** RAYMUNDO ZAMORA** and
LOLITO AQUINO,
Accused.
NORBERTO (JUN) ADVIENTO, RENATO RAMOS and
LOLITO AQUINO,
Accused-Appellants.
G.R. No. 175781
Present:
CORONA, C.J.,
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,****
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.
Promulgated:
March 20, 2012
x----------------------------------------------------------------------
-------------------x
DECISION
PERALTA, J.:
This is an automatic review of the Decision[1] of
the Court of Appeals (CA) promulgated on December,
15, 2005, in accordance with Section 2 of Rule 125, in
relation to Section 3 of Rule 56, of the Rules of Court.
The CA affirmed with modification the judgment
rendered by the Regional Trial Court (RTC), Branch 38
of Lingayen, Pangasinan, thereby finding accused-
appellants Norberto (Jun) Adviento, Renato Ramos
and Lolito Aquino, guilty beyond reasonable doubt of
the crime of Murder and sentencing them to death,
but acquitting accused Rodolfo Duzon.
Accused-appellants were charged before the
RTC of Urdaneta, Pangasinan, with the crime of
murder under an Information reading as follows:
That on or about the 26th day of April 1994, in
the Poblacion of the Municipality of Laoac, Province
of Pangasinan, and within the jurisdiction of this
Honorable Court, the said accused, conspiring,
confederating with each other, with intent to kill, and
with treachery, and evident premeditation, in
consideration of a price, and by means of motor
vehicle, did then and there, willfully, unlawfully and
feloniously attack and shoot one MELVIN ALIPIO, with
a handgun hitting the latter in the different parts of
his body and the wounds being mortal caused
directly the death of said MELVIN ALIPIO, to the
damage and prejudice of his heirs.
CONTRARY to Article 248, Revised Penal Code.[2]
The testimonies of prosecution witnesses
showed the sequence of events shortly before and
after the killing of victim Melvin Alipio to be as
follows.
Raymundo Zamora is the nephew of Gregorio
Talaro, the husband of Francisca Talaro. In the
morning of April 24, 1994, when Zamora went home
for breakfast after driving his tricycle, he found
Francisca Talaro, Lolito Aquino, Renato “Atong”
Ramos, and Norberto “Jun” Adviento conversing
among themselves under a santol tree in front of his
(Zamora's) house. He went near the group to find
out what they were talking about and he learned that
his aunt, Francisca Talaro, was transacting with the
other three accused-appellants for the killing of Atty.
Melvin Alipio. He was merely a meter away from the
group so he heard the group's conversation. He
learned that Francisca Talaro would give the three
accused-appellants an advance payment of
P30,000.00 and then another P30,000.00 after Atty.
Melvin Alipio is killed, with said last payment to be
delivered in Barangay (Brgy.) Bactad. The three
accused-appellants then nodded their heads in
agreement. After learning of the group's plan,
Zamora got scared and stayed away from the group,
but three days after that meeting in front of his
house, he was asked by Francisca Talaro to drive her
and her husband Gregorio to Brgy. Bactad. The
Talaro spouses alighted at a place in Brgy. Bactad,
while Zamora stayed in his tricycle and merely waited
for them. He assumed that the couple delivered the
payment of P30,000.00 to someone in Brgy. Bactad.
[3]
Accused-appellant Lolito Aquino, when
questioned during preliminary investigation,
admitted that he and co-accused Renato Ramos
conducted a surveillance on Atty. Alipio in the
afternoon of April 25, 1994.[4]
Around 6 o'clock in the morning of April 26,
1994, tricycle driver Rodolfo Duzon was at the
parking area in the poblacion of Urdaneta waiting for
passengers, when accused-appellant Renato Ramos
approached him. Accused-appellant Ramos offered
to pay Rodolfo Duzon P200.00 for the latter to drive
Ramos' motorcycle to Laoac, Pangasinan to take
some onions and turnips there. Duzon agreed, so
after bringing his own tricycle home to his house in
Bactad, Urdaneta, he then drove Ramos' motorcycle
to the poblacion of Urdaneta. At the poblacion,
Ramos bought a basket where he placed the onions
and turnips. Ramos then told Duzon to drive the
motorcycle to Laoac, but they first passed by Garcia
Street in Urdaneta. At a house along Garcia Street,
Ramos alighted and talked to someone whom
Rodolfo Duzon later came to know as accused-
appellant Lolito Aquino. Ramos then told Duzon that
after coming from Laoac, Duzon should leave the
motorcycle at that house on Garcia Street with Lolito
Aquino. Ramos and Duzon then proceeded to Laoac,
stopping at a gas station where they fueled up.
Ramos alighted from the motorcycle at the gas
station and, taking along the basket of onions and
turnips, walked towards Guardian Angel Hospital (the
clinic owned by the Alipios). Five minutes after
Ramos alighted, Duzon heard three gunshots coming
from the west, and moments later, he saw Ramos,
who was coming toward him, being chased by
another man. When Ramos got to the motorcycle, he
ordered Duzon to immediately drive away, and poked
a gun at Duzon's back. Ramos then instructed Duzon
as to the route they should take until they reached
Urdaneta where Ramos alighted, leaving Duzon with
instructions to bring the motorcycle to Garcia Street,
leave it with Lolito Aquino, then meet him (Ramos)
again at the poblacion where he (Duzon) will be paid
P200.00 for his services. Duzon did as he was told,
but when he met with Ramos at the poblacion and
asked for the P200.00, Ramos got mad and shouted
invectives at him. A few days later, he again ran into
Ramos who warned him to keep his silence,
threatening to kill him (Duzon) too if he tells anyone
about the killing. Accused-appellant Norberto (Jun)
Adviento also threatened him not to reveal to anyone
whatever he knows about the crime. That was why
Duzon decided to keep quiet. Later, however, he
revealed the matter to his brother, Victoriano Duzon,
who accompanied him to the Criminal Investigation
Services (CIS) Office in Urdaneta so he could give his
statement. He executed affidavits, assisted by a
lawyer from the Public Attorney’s Office (PAO),
attesting to what he knew about the crime, in his
desire to be a state witness.[5]
Witness Rene Balanga, who was the helper of
the spouses Atty. Melvin and Dr. Lina Alipio, was
cleaning the windows at the clinic of Dr. Alipio
around 8 o'clock in the morning of April 26, 1994. He
heard three gunshots coming from the garage of the
clinic, which was around ten meters away from
where he was. Immediately after the gunshots, he
saw a man quickly walking out from the garage, going
towards the main gate, but he was not able to clearly
see the face of the man. He merely observed that
the man was around 5'4” to 5'5” in height, medium-
built, wearing a blue jacket and faded maong (denim)
pants. He ran towards the garage and there, he saw
Atty. Melvin Alipio lying dead. He then chased after
the man so he could identify him better but he did
not succeed in doing so because the driver of the
motorcycle that the gunman was boarding was
already drawing something out from the rear portion
of the motorcycle. After the assailant sped off,
Balanga went to the police station in Laoac to report
the crime and give his statement before the CIS.
Sometime later, at the CIS Office, he identified
Rodolfo Duzon as the driver of the motorcycle used
by the gunman to get away.[6]
Another eyewitness, Eusebio Hidalgo, whose
son was confined at the clinic, was sitting at a bench
in the garage of the clinic on the morning of April 26,
1994. Two other women who were looking for Atty.
Alipio also sat at the bench with him after he told
them that Atty. Alipio was still having his breakfast.
After a few minutes, a man arrived looking for Dr.
Alipio, and also sat at the bench. Thereafter, Atty.
Alipio came out to the garage and talked to the two
women. When Atty. Alipio finished talking to them,
the man sitting with them on the bench suddenly
stood up and shot Atty. Alipio three times. Atty.
Alipio was merely one meter away from the assailant
when the latter shot him. After the shooting, the
assailant walked away. Hidalgo then saw the helper
at the clinic, Reny Balanga, run after the assailant, but
the latter had whistled to his companion who was
waiting on his motorcycle and the two were able to
speed away aboard said vehicle. Hidalgo identified
the assailant from a picture[7] shown to him.[8] The
picture was that of Renato Ramos.[9]
A few weeks after Atty. Melvin Alipio had been
killed, Zamora was in the parking lot in Sta. Maria
Norte in Binalonan, when accused-appellant Aquino
approached him and told him to remind Francisca
Talaro that she still has to pay him (Aquino)
P10,000.00. Zamora then immediately told his uncle
Gregorio Talaro about Aquino's message and the very
next day, Gregorio went to Zamora's house with the
P10,000.00. Gregorio could no longer wait for
Aquino so he just left the money with Zamora,
instructing him to hand it over to Aquino when the
latter arrives. Later that day, Zamora saw Aquino so
he told him (Aquino) to just get the money from his
house. About three weeks later, Aquino again went
to Zamora's house, this time saying he needs another
P5,000.00 just in case he needs to escape. Zamora
then contacted Francisca Talaro and conveyed
Aquino's message to her. The following day,
Gregorio again went to Zamora's house and left the
P3,000.00 for Aquino. That afternoon, Zamora again
told Aquino to just pick up the money from his house.
Zamora observed that Aquino seemed happy enough
with the P3,000.00 he received.[10]
Zamora said that he thinks the Talaros had Atty.
Alipio killed because the latter was not able to
comply with his contractual obligations to the Talaros
to complete the construction of a building. Dr. Lina
Alipio, the wife of the victim Atty. Melvin Alipio,
confirmed that indeed, the victim entered into an
agreement with Rodolfo Talaro, the Talaro spouses'
son, for the construction of a building, but the
construction was not finished within the agreed one-
year period because of the sudden rise of prices for
materials. Atty. Alipio asked Rodolfo for additional
payment so he could finish construction, but the
latter refused to pay more. Dr. Alipio stated that
eventually, Atty. Alipio and Rodolfo agreed that Atty.
Alipio would return all the money he received from
Rodolfo and the whole property would, in turn, be
turned over to Atty. Alipio. Atty. Alipio was unable to
return the money despite several demands made by
Rodolfo, and Dr. Alipio believes this is the reason why
the Talaros had her husband killed. Dr. Alipio further
testified on matters regarding expenses for the wake
and burial, and the earnings of her husband.[11]
Dr. Arnulfo Bacarro conducted the autopsy on
the victim and stated that three slugs were taken
from the body of the victim, and the cause of death
was internal hemorrhage.[12] Police officers testified
on how they conducted the investigation, stating that
accused-appellant Aquino and Zamora's statements
were taken in the presence of their respective
lawyers. They maintain that no bodily harm was
inflicted on the accused-appellants while they were
being investigated.[13]
On the other hand, accused-appellant Lolito
Aquino stated that he was taken by CIS men without
a warrant of arrest; that he was mauled by police
authorities while under detention, but could not
undergo a medical check-up due to fear from threats
that he would be killed by police authorities if he did
so; that he was assisted by a PAO lawyer when he
made his confession, but he did not read the
contents of the document, Sgt. Tomelden just
ordered him to sign the same; that the PAO lawyer is
not his own choice; that he does not know Rodolfo
Duzon and Raymundo Zamora; and that he was not
present at the meeting held in Raymundo Zamora's
yard. He admitted, however, that the motorcycle
used by the gunman belongs to him; and that he first
agreed to be a state witness because he was
promised to be paid P20,000.00 and that he would be
placed in the witness protection program.[14]
Accused-appellant Norberto (Jun) Adviento's
defense is denial and alibi. He claimed that he was
not present during the April 24, 1994 meeting held to
plan the killing of Atty. Alipio, because on said date
and time, he was in the house of Congressman
Amadito Perez, for whom he works as driver-
messenger, and that morning, he also drove the
Congressman's family to church to hear mass. On
April 26, 1994, he also reported for work at the house
of the Congressman from 8 o'clock in the morning
until 5 o'clock in the afternoon. He likewise denied
personally knowing any of his co-accused except for
Duzon whose face is familiar to him.[15]
After trial, the RTC rendered judgment as
follows:
Wherefore, in the light of all the considerations
discussed above, this court hereby finds and holds
the accused Francisca Talaro, Norberto (Jun)
Adviento, Renato Ramos, Rodolfo Duzon and Lolito
Aquino, guilty beyond reasonable doubt of the crime
of Murder defined and penalized under the
provisions of Article 248 of the Revised Penal Code as
amended by Republic Act No. 7659 and conformable
thereto, pursuant to law, hereby imposes on each of
the accused the death penalty and to pay
proportionately the costs of the proceedings.
The court further orders the accused to
indemnify, jointly and severally, the heirs of the
deceased the sum of P83,000.00 as actual damages;
P100,000.00 as moral damages; P50,000.00 as death
indemnity; P10,000.00 as [attorney's fees] paid to
their private prosecutor and P2,400,000.00 as loss in
the earning capacity of the deceased without
subsidiary imprisonment in case of insolvency.
Taking into consideration that accused
Francisca Talaro is already 75 years old, the death
penalty meted upon her shall be commuted to
reclusion perpetua with the accessory penalties
provided in Article 40 of the Revised Penal Code.
And considering that the evidence adduced by
the prosecution against the accused Gregorio Talaro
is not sufficient to sustain his conviction of the
offense filed against him, the court hereby declares
accused Gregorio Talaro not guilty. The court
likewise declares Raymundo Zamora acquitted of the
offense filed against him.
Let an order of arrest be issued against accused
Renato Ramos who escaped from jail during the
pendency of this case, to be served by the NBI, CIC
and PNP of Urdaneta, Pangasinan.
SO ORDERED.[16]
The case was then brought to this Court for
automatic review in view of the penalty of death
imposed on accused-appellants. However, in
accordance with the ruling in People v. Mateo,[17]
and the amendments made to Sections 3 and 10 of
Rule 122, Section 13 of Rule 124, and Section 3 of
Rule 125 of the Revised Rules on Criminal Procedure,
the Court transferred this case to the CA for
intermediate review.
On December 15, 2005, the CA rendered its
Decision, the dispositive portion of which reads as
follows:
WHEREFORE, in view of the foregoing, the
decision of the Regional Trial Court, Branch 38 of
Lingayen, Pangasinan in Criminal Case No. U-8239, is
hereby AFFIRMED with the MODIFICATION that
accused-appellant Rodolfo Duzon is ACQUITTED on
reasonable doubt and his release is hereby ordered
unless he is being held for some other legal cause.
Further, in lieu of the awards made by the trial
court in favor of the heirs of deceased Atty. Melvin
Alipio, accused-appellants are ordered to pay, jointly
and severally, the heirs of the victim the following
amounts: (1) P25,000.00 as temperate damages; (2)
P75,000.00 as civil indemnity; (3) P50,000.00 as
moral damages; and (4) P25,000.00 as exemplary
damages;
SO ORDERED.[18]
The case is now before this Court on automatic
review. The prosecution opted not to file a
supplemental brief with this Court. Accused-
appellants Lolito Aquino and Renato Ramos jointly
filed their supplemental brief where it is argued that
the two should be acquitted because (1) the
prosecution evidence is insufficient to prove that
Lolito Aquino was part of the conspiracy to kill Atty.
Melvin Alipio; and (2) the identity of Renato Ramos
was never established. Accused-appellant Noberto
(Jun) Adviento argued in his Appellant's Brief filed
with the CA, that the prosecution's evidence is
insufficient to establish conspiracy, and there are no
aggravating circumstances to justify the imposition of
the death penalty.
The Court agrees with the CA's conclusion that
the evidence on record proves beyond reasonable
doubt that accused-appellants Lolito Aquino, Renato
Ramos, and Norberto (Jun) Adviento, together with
Francisca Talaro, conspired to kill Atty. Melvin Alipio.
Murder under Article 248 of the Revised Penal
Code is defined as the unlawful killing of a person,
which is not parricide or infanticide, attended by
circumstances such as treachery or evident
premeditation. The presence of any one of the
circumstances enumerated in Article 248 of the Code
is sufficient to qualify a killing as murder.[19]
In People v. Sanchez,[20] the Court held that
“[t]he essence of treachery is the sudden attack by an
aggressor without the slightest provocation on the
part of the victim, depriving the latter of any real
chance to defend himself, thereby ensuring the
commission of the crime without risk to the
aggressor.” There can be no cavil that the evidence
on record shows treachery in the killing of Atty.
Alipio, thus qualifying the crime as murder. The
assailant, identified as accused-appellant Renato
Ramos, just suddenly fired upon Atty. Alipio at a very
close distance, without any provocation from said
unarmed victim, who was then just conversing with
some other people.
There is also evident premeditation because the
evidence shows that a couple of days before the
actual shooting of Atty. Alipio, Raymundo Zamora
already saw and heard accused-appellants Norberto
(Jun) Adviento, Renato Ramos, and Lolito Aquino,
talking to Francisca Talaro and coming to an
agreement to kill Atty. Alipio.
Pitted against the prosecution evidence,
accused-appellants' only defense is that the evidence
is insufficient to prove they are part of the
conspiracy to commit the murder. Said defense is
sorely wanting when pitted against the prosecution
evidence.
In People v. Bautista,[21] the Court reiterated
the hornbook principle of conspiracy, to wit:
Conspiracy exists when two or more persons
come to an agreement concerning the commission of
a felony and decide to commit it. Where all the
accused acted in concert at the time of the
commission of the offense, and it is shown by such
acts that they had the same purpose or common
design and were united in its execution, conspiracy is
sufficiently established. It must be shown that all
participants performed specific acts which such
closeness and coordination as to indicate a common
purpose or design to commit the felony.
x x x x
Each conspirator is responsible for everything
done by his confederates which follows incidentally
in the execution of a common design as one of its
probable and natural consequences even though it
was not intended as part of the original design. x x
x[22] (Emphasis supplied)
In this case, the existence of a conspiracy has
been established by the testimony of Raymundo
Zamora, positively identifying all three accused-
appellants as the ones he saw and heard transacting
with Francisca Talaro on April 24, 1994 to kill Atty.
Melvin Alipio for the price of P60,000.00, and
pointing to Lolito Aquino as the one who demanded
and received part of the payment after Atty. Alipio
had been killed. The credibility of Raymundo
Zamora's testimony is further bolstered by Lolito
Aquino's admission[23] that he and Renato Ramos
even conducted surveillance on the victim a day
before Renato Ramos carried out the shooting, and
that the motorcycle used as a getaway vehicle
belonged to him. Rodolfo Duzon also pointed to
Renato Ramos as the gunman; he also pointed to
Renato Ramos and Norberto (Jun) Adviento as the
ones who threatened to kill him if he talks to anyone
about the shooting. All the proven circumstances
point to the conclusion that accused-appellants acted
in concert to assure the success of the execution of
the crime; hence, the existence of a conspiracy is
firmly established.
Lolito Aquino's admission, and accused-
appellants' positive identification of Raymundo
Zamora and Rodolfo Duzon cannot be belied by
accused-appellants' mere denial. It is established
jurisprudence that denial and alibi cannot prevail
over the witness' positive identification of the
accused-appellants.[24] Moreover, accused-
appellants could not give any plausible reason why
Raymundo Zamora would testify falsely against them.
In People v. Molina,[25] the Court expounded, thus:
In light of the positive identification of
appellant by the prosecution witnesses and since no
ill motive on their part or on that of their families was
shown that could have made either of them institute
the case against the appellant and falsely implicate
him in a serious crime he did not commit, appellant's
defense of alibi must necessarily fail. It is settled in
this jurisdiction that the defense of alibi, being
inherently weak, cannot prevail over the clear and
positive identification of the accused as the
perpetrator of the crime. x x x[26] (Emphasis
supplied)
Accused-appellant Lolito Aquino claimed he
merely admitted his participation in the crime out of
fear of the police authorities who allegedly
manhandled him, however, the trial court did not
find his story convincing. The trial court's evaluation
of the credibility of witnesses and their testimonies is
conclusive on this Court as it is the trial court which
had the opportunity to closely observe the demeanor
of witnesses.[27] The Court again explained the
rationale for this principle in Molina,[28] to wit:
As oft repeated by this Court, the trial court's
evaluation of the credibility of witnesses is viewed as
correct and entitled to the highest respect because it
is more competent to so conclude, having had the
opportunity to observe the witnesses' demeanor and
deportment on the stand, and the manner in which
they gave their testimonies. The trial judge therefore
can better determine if such witnesses were telling
the truth, being in the ideal position to weigh
conflicting testimonies. Further, factual findings of
the trial court as regards its assessment of the
witnesses' credibility are entitled to great weight and
respect by this Court, particularly when the Court of
Appeals affirms the said findings, and will not be
disturbed absent any showing that the trial court
overlooked certain facts and circumstances which
could substantially affect the outcome of the case.
[29]
The Court cannot find anything on record to justify
deviation from said rule.
Accused-appellant Renato Ramos insisted that
he was not properly identified in open court, and
considering that there are so many persons named
“Renato Ramos,” then there can be some confusion
regarding his identity. There is no truth to this claim.
Ramos was properly identified in open court by
Raymundo Zamora, as one of the men he saw and
heard transacting with Francisca Talaro for the killing
of Atty. Alipio.[30] Hence, there can be no doubt as
to which Renato Ramos is being convicted for the
murder of Atty. Alipio.
Another strong indication of Lolito Aquino's and
Renato Ramos' guilt is the fact that they escaped
from detention while the case was pending with the
trial court. Renato Ramos escaped from prison on
December 20, 1994,[31] while Lolito Aquino escaped
on May 5, 1996.[32] It has been repeatedly held that
flight betrays a desire to evade responsibility and is,
therefore, a strong indication of guilt.[33] Thus, this
Court finds no reason to overturn their conviction.
Nevertheless, this Court must modify the
penalty imposed on accused-appellants Norberto
(Jun) Adviento, Lolito Aquino, and Renato Ramos. In
People v. Tinsay,[34] the Court explained that:
On June 30, 2006, Republic Act No. 9346 (R.A.
9346), entitled An Act Prohibiting the Imposition of
Death Penalty in the Philippines, took effect.
Pertinent provisions thereof provide as follows:
Section 1. The imposition of the penalty of
death is hereby prohibited. Accordingly, Republic Act
No. Eight Thousand One Hundred Seventy-Seven
(R.A. No. 8177), otherwise known as the Act
Designating Death by Lethal Injection is hereby
repealed. Republic Act No. Seven Thousand Six
Hundred Fifty-Nine (R.A. No. 7659) otherwise known
as the Death Penalty Law and all other laws,
executive orders and decrees insofar as they impose
the death penalty are hereby repealed or amended
accordingly.
Section 2. In lieu of the death penalty, the
following shall be imposed:
(a) the penalty of reclusion perpetua, when
the law violated makes use of the nomenclature of
the penalties of the Revised Penal Code; or
x x x x
SECTION 3. Persons convicted of offenses
punished with reclusion perpetua, or whose
sentences will be reduced to reclusion perpetua, by
reason of this Act, shall not be eligible for parole
under Act No. 4103, otherwise known as the
Indeterminate Sentence Law, as amended.
It has also been held in People vs. Quiachon that R.A.
No. 9346 has retroactive effect, to wit:
The aforequoted provision of R.A. No. 9346 is
applicable in this case pursuant to the principle in
criminal law, favorabilia sunt amplianda adiosa
restrigenda. Penal laws which are favorable to
accused are given retroactive effect. This principle is
embodied under Article 22 of the Revised Penal
Code, which provides as follows:
Retroactive effect of penal laws. - Penal laws
shall have a retroactive effect insofar as they favor
the persons guilty of a felony, who is not a habitual
criminal, as this term is defined in Rule 5 of Article 62
of this Code, although at the time of the publication
of such laws, a final sentence has been pronounced
and the convict is serving the same.
However, appellant is not eligible for parole
because Section 3 of R.A. No. 9346 provides that
“persons convicted of offenses pushed with reclusion
perpetua, or whose sentences will be reduced to
reclusion perpetua by reason of the law, shall not be
eligible for parole.”
Hence, in accordance with the foregoing,
appellant should only be sentenced to suffer
reclusion perpetua without eligibility for parole.[35]
The awards for damages also need to be
modified. In People v. Alberto Anticamara y Cabillo,
et al.,[36] the Court held that in accordance with
prevailing jurisprudence on heinous crimes where the
imposable penalty is death but reduced to reclusion
perpetua pursuant to R.A. No. 9346, the award of
moral damages should be increased from P50,000.00
to P75,000.00, while the award for exemplary
damages, in view of the presence of aggravating
circumstances, should be P30,000.00.
WHEREFORE, the Decision of the Court of
Appeals dated December 15, 2005 in CA-G.R. CR-H.C.
No. 00071 is hereby AFFIRMED with the
MODIFICATION that the penalty of death imposed on
accused-appellants is REDUCED to reclusion perpetua
without possibility of parole in accordance with R.A.
No. 9346; and INCREASING the award of moral
damages from P50,000.00 to P75,000.00, and the
award of exemplary damages from P25,000.00 to
P30,000.00. The rest of the award of the Court of
Appeals is hereby maintained.
G.R. No. 177960 January 29, 2009
JEFFREY RESO DAYAP, Petitioner,
vs.
PRETZY-LOU SENDIONG, GENESA SENDIONG, ELVIE
SY and DEXIE DURAN, Respondents.
D E C I S I O N
Tinga, J.:
Before us is a petition for review1 on certiorari of the
Decision2 dated 17 August 2006 and
Resolution3 dated 25 April 2007 by the Court of
Appeals in CA-G.R. SP No. 01179 entitled, Pretzy-Lou
P. Sendiong, Genesa R. Sendiong, Elvie H. Sy and
Dexie Duran v. Hon. Judge Cresencio Tan and Jeffrey
Reso Dayap.
The case had its origins in the filing of an
Information4 on 29 December 2004 by the Provincial
Prosecutor’s Office, Sibulan, Negros Oriental,
charging herein petitioner Jeffrey Reso Dayap with
the crime of Reckless Imprudence resulting to
Homicide, Less Serious Physical Injuries, and Damage
to Property. The pertinent portion of the information
reads:
That at about 11:55 o’clock in the evening of 28
December 2004 at Brgy. Maslog, Sibulan, Negros
Oriental, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, did
then and there, willfully, unlawfully and feloniously
drive in a reckless and imprudent manner a 10-
wheeler cargo truck with plate number ULP-955,
color blue, fully loaded with sacks of coconut shell,
registered in the name of Ruben Villabeto of Sta.
Agueda Pamplona, Negros Oriental, thereby hitting
an automobile, a Colt Galant with plate number NLD-
379 driven by Lou Gene R. Sendiong who was with
two female passengers, namely: Dexie Duran and
Elvie Sy, thus causing the instantaneous death of said
Lou Gene R. Sendiong, less serious physical injuries
on the bodies of Dexie Duran and Elvie Sy and
extensive damage to the above-mentioned Colt
Galant which is registered in the name of Cristina P.
Weyer of 115 Dr. V. Locsin St., Dumaguete City, to
the damage of the heirs of the same Lou Gene R.
Sendiong and the other two offended parties above-
mentioned.
An act defined and penalized by Article 365 of the
Revised Penal Code.
On 10 January 2005, before the Municipal Trial Court
(MTC) of Sibulan, Negros Oriental, petitioner was
arraigned and he pleaded not guilty to the charge.5
On 17 January 2005, respondents Pretzy-Lou P.
Sendiong, Genesa Sendiong and Dexie Duran filed a
motion for leave of court to file an amended
information.6 They sought to add the allegation of
abandonment of the victims by petitioner, thus: "The
driver of the 10-wheeler cargo truck abandoned the
victims, at a time when said [Lou-Gene] R. Sendiong
was still alive inside the car; he was only extracted
from the car by the by-standers."7
On 21 January 2005, however, the Provincial
Prosecutor filed an Omnibus Motion praying that the
motion to amend the information be considered
withdrawn.8 On 21 January 2003, the MTC granted
the withdrawal and the motion to amend was
considered withdrawn.9
Pre-trial and trial of the case proceeded.
Respondents testified for the prosecution. After the
prosecution had rested its case, petitioner sought
leave to file a demurrer to evidence which was
granted. Petitioner filed his Demurrer to
Evidence10 dated 15 April 2005 grounded on the
prosecution’s failure to prove beyond reasonable
doubt that he is criminally liable for reckless
imprudence, to which respondents filed a
Comment11 dated 25 April 2005.
In the Order12 dated 16 May 2005, the MTC granted
the demurrer and acquitted petitioner of the crime of
reckless imprudence. The MTC found that the
evidence presented by respondents failed to
establish the allegations in the Information. Pertinent
portions of the order state:
An examination of the allegations in the information
and comparing the same with the evidence
presented by the prosecution would reveal that the
evidence presented has not established said
allegations. The facts and circumstances constituting
the allegations charged have not been proven. It is
elementary in the rules of evidence that a party must
prove his own affirmative allegations.
x x x x
Nowhere in the evidence of the prosecution can this
Court find that it was the accused who committed the
crime as charged. Its witnesses have never identified
the accused as the one who has committed the
crime. The prosecution never bothered to establish if
indeed it was the accused who committed the crime
or asked questions which would have proved the
elements of the crime. The prosecution did not even
establish if indeed it was the accused who was driving
the truck at the time of the incident. The Court simply
cannot find any evidence which would prove that a
crime has been committed and that the accused is
the person responsible for it. There was no evidence
on the allegation of the death of Lou Gene R.
Sendiong as there was no death certificate that was
offered in evidence. The alleged less serious physical
injuries on the bodies of Dexie Duran and Elvie Sy
were not also proven as no medical certificate was
presented to state the same nor was a doctor
presented to establish such injuries. The alleged
damage to the [C]olt [G]alant was also not
established in any manner as no witness ever
testified on this aspect and no documentary evidence
was also presented to state the damage. The
prosecution therefore failed to establish if indeed it
was the accused who was responsible for the death
of Lou Gene R. Sendiong and the injuries to Dexie
Duran and Elvie Sy, including the damage to the Colt
Galant. The mother of the victim testified only on the
expenses she incurred and the shock she and her
family have suffered as a result of the incident. But
sad to say, she could not also pinpoint if it was the
accused who committed the crime and be held
responsible for it. This Court could only say that the
prosecution has practically bungled this case from its
inception.
x x x x
The defense furthermore argued that on the
contrary, the prosecution’s [evidence] conclusively
show that the swerving of vehicle 1 [the Colt Galant]
to the lane of vehicle 2 [the cargo truck] is the
proximate cause of the accident. The court again is
inclined to agree with this argument of the defense.
It has looked carefully into the sketch of the accident
as indicated in the police blotter and can only
conclude that the logical explanation of the accident
is that vehicle 1 swerved into the lane of vehicle 2,
thus hitting the latter’s inner fender and tires. Exhibit
"7" which is a picture of vehicle 2 shows the extent of
its damage which was the effect of vehicle 1’s
ramming into the rear left portion of vehicle 2
causing the differential guide of vehicle 2 to be cut,
its tires busted and pulled out together with their
axle. The cutting of the differential guide cause[d] the
entire housing connecting the tires to the truck body
to collapse, thus causing vehicle 2 to tilt to its left side
and swerve towards the lane of vehicle 1. It was this
accident that caused the swerving, not of [sic] any
negligent act of the accused.
x x x x
Every criminal conviction requires of the prosecution
to prove two things—the fact of the crime, i.e., the
presence of all the elements of the crime for which
the accused stands charged, and the fact that the
accused is the perpetrator of the crime. Sad to say,
the prosecution has miserably failed to prove these
two things. When the prosecution fails to discharge
its burden of establishing the guilt of the accused, an
accused need not even offer evidence in his behalf.
x x x x
WHEREFORE, premises considered, the demurrer is
granted and the accused JEFFREY RESO DAYAP is
hereby acquitted for insufficiency of evidence. The
bail bond posted for his temporary liberty is also
hereby cancelled and ordered released to the
accused or his duly authorized representative.
SO ORDERED.13
Respondents thereafter filed a petition for certiorari
under Rule 65,14 alleging that the MTC’s dismissal of
the case was done without considering the evidence
adduced by the prosecution. Respondents added that
the MTC failed to observe the manner the trial of the
case should proceed as provided in Sec. 11, Rule 119
of the Rules of Court as well as failed to rule on the
civil liability of the accused in spite of the evidence
presented. The case was raffled to the Regional Trial
Court (RTC) of Negros Oriental, Br. 32.
In the order15 dated 23 August 2005, the RTC affirmed
the acquittal of petitioner but ordered the remand of
the case to the MTC for further proceedings on the
civil aspect of the case. The RTC ruled that the MTC’s
recital of every fact in arriving at its conclusions
disproved the allegation that it failed to consider the
evidence presented by the prosecution. The records
also demonstrated that the MTC conducted the trial
of the case in the manner dictated by Sec. 11, Rule
119 of the Rules of Court, except that the defense no
longer presented its evidence after the MTC gave due
course to the accused’s demurrer to evidence, the
filing of which is allowed under Sec. 23, Rule 119. The
RTC however agreed that the MTC failed to rule on
the accused’s civil liability, especially since the
judgment of acquittal did not include a declaration
that the facts from which the civil liability might arise
did not exist. Thus, the RTC declared that the aspect
of civil liability was not passed upon and resolved to
remand the issue to the MTC. The dispositive portion
of the decision states:
WHEREFORE, the questioned order of the Municipal
Trial Court of Sibulan on accused’s acquittal is
AFFIRMED. The case is REMANDED to the court of
origin or its successor for further proceedings on the
civil aspect of the case. No costs.
SO ORDERED.16
Both parties filed their motions for reconsideration of
the RTC order, but these were denied for lack of
merit in the order17 dated 12 September 2005.
Respondents then filed a petition for review with the
Court of Appeals under Rule 42, docketed as CA-G.R.
SP. No. 01179. The appellate court subsequently
rendered the assailed decision and resolution. The
Court of Appeals ruled that there being no proof of
the total value of the properties damaged, the
criminal case falls under the jurisdiction of the RTC
and the proceedings before the MTC are
null and void. In so ruling, the appellate court
cited Tulor v. Garcia (correct title of the case is Cuyos
v. Garcia)18which ruled that in complex crimes
involving reckless imprudence resulting in homicide
or physical injuries and damage to property, the
jurisdiction of the court to take cognizance of the
case is determined by the fine imposable for the
damage to property resulting from the reckless
imprudence, not by the corresponding penalty for
the physical injuries charged. It also found support in
Sec. 36 of the Judiciary Reorganization Act of 1980
and the 1991 Rule 8 on Summary Procedure, which
govern the summary procedure in first-level courts in
offenses involving damage to property through
criminal negligence where the imposable fine does
not exceed P10,000.00. As there was no proof of the
total value of the property damaged and respondents
were claiming the amount of P1,500,000.00 as civil
damages, the case falls within the RTC’s jurisdiction.
The dispositive portion of the Decision dated 17
August 2006 reads:
WHEREFORE, premises considered, judgment is
hereby rendered by Us REMANDING the case to the
Regional Trial Court (RTC), Judicial Region, Branch 32,
Negros Oriental for proper disposition of the merits
of the case.
SO ORDERED.19
Petitioner moved for reconsideration of the Court of
Appeals decision,20 arguing that jurisdiction over the
case is determined by the allegations in the
information, and that neither the 1991 Rule on
Summary Procedure nor Sec. 36 of the Judiciary
Reorganization Act of 1980 can be the basis of the
RTC’s jurisdiction over the case. However, the Court
of Appeals denied the motion for reconsideration for
lack of merit in the Resolution dated 25 April
2007.21 It reiterated that it is the RTC that has proper
jurisdiction considering that the information alleged a
willful, unlawful, felonious killing as well as
abandonment of the victims.
In the present petition for review, petitioner argues
that the MTC had jurisdiction to hear the criminal
case for reckless imprudence, owing to the
enactment of Republic Act (R.A.) No. 7691,22 which
confers jurisdiction to first-level courts on offenses
involving damage to property through criminal
negligence. He asserts that the RTC could not have
acquired jurisdiction on the basis of a legally unfiled
and officially withdrawn amended information
alleging abandonment. Respondents are also faulted
for challenging the MTC’s order acquitting petitioner
through a special civil action for certiorari under Rule
65 in lieu of an ordinary appeal under Rule 42.
The petition has merit. It should be granted.
The first issue is whether the Court of Appeals erred
in ruling that jurisdiction over the offense charged
pertained to the RTC.
Both the MTC and the RTC proceeded with the case
on the basis of the Information dated 29 December
2004 charging petitioner only with the complex crime
of reckless imprudence resulting to homicide, less
serious physical injuries and damage to property. The
Court of Appeals however declared in its decision
that petitioner should have been charged with the
same offense but aggravated by the circumstance of
abandonment of the victims. It appears from the
records however that respondents’ attempt to
amend the information by charging the aggravated
offense was unsuccessful as the MTC had approved
the Provincial Prosecutor’s motion to withdraw their
motion to amend the information. The information
filed before the trial court had remained
unamended.23 Thus, petitioner is deemed to have
been charged only with the offense alleged in the
original Information without any aggravating
circumstance.
Article 365 of the Revised Penal Code punishes any
person who, by reckless imprudence, commits any
act which, had it been intentional, would constitute a
grave felony, with the penalty of arresto mayor in its
maximum period toprision correccional in its medium
period. When such reckless imprudence the use of a
motor vehicle, resulting in the death of a person
attended the same article imposes upon the
defendant the penalty of prision correccional in its
medium and maximum periods.
The offense with which petitioner was charged is
reckless imprudence resulting in homicide, less
serious physical injuries and damage to property, a
complex crime. Where a reckless, imprudent, or
negligent act results in two or more grave or less
grave felonies, a complex crime is
committed.24 Article 48 of the Revised Penal Code
provides that when the single act constitutes two or
more grave or less grave felonies, or when an offense
is a necessary means for committing the other, the
penalty for the most serious crime shall be imposed,
the same to be applied in its maximum period. Since
Article 48 speaks of felonies, it is applicable to crimes
through negligence in view of the definition of
felonies in Article 3 as "acts or omissions punishable
by law" committed either by means of deceit (dolo)
or fault (culpa).25 Thus, the penalty imposable upon
petitioner, were he to be found guilty, is prision
correccional in its medium period (2 years, 4 months
and 1 day to 4 years) and maximum period (4 years, 2
months and 1 day to 6 years).
Applicable as well is the familiar rule that the
jurisdiction of the court to hear and decide a case is
conferred by the law in force at the time of the
institution of the action, unless such statute provides
for a retroactive application thereof.26 When this case
was filed on 29 December 2004, Section 32(2) of
Batas Pambansa Bilang 129 had already been
amended by R.A. No. 7691. R.A. No. 7691 extended
the jurisdiction of the first-level courts over criminal
cases to include all offenses punishable with
imprisonment not exceeding six (6) years irrespective
of the amount of fine, and regardless of other
imposable accessory or other penalties including
those for civil liability. It explicitly states "that in
offenses involving damage to property through
criminal negligence, they shall have exclusive original
jurisdiction thereof." It follows that criminal cases for
reckless
imprudence punishable with prision correccional in its
medium and maximum periods should fall within the
jurisdiction of the MTC and not the RTC. Clearly,
therefore, jurisdiction to hear and try the same
pertained to the MTC and the RTC did not have
original jurisdiction over the criminal
case.27 Consequently, the MTC of Sibulan, Negros
Oriental had properly taken cognizance of the case
and the proceedings before it were valid and legal.
As the records show, the MTC granted petitioner’s
demurrer to evidence and acquitted him of the
offense on the ground of insufficiency of evidence.
The demurrer to evidence in criminal cases, such as
the one at bar, is "filed after the prosecution had
rested its case," and when the same is granted, it
calls "for an appreciation of the evidence adduced by
the prosecution and its sufficiency to warrant
conviction beyond reasonable doubt, resulting in a
dismissal of the case on the merits, tantamount to an
acquittal of the accused."28 Such dismissal of a
criminal case by the grant of demurrer to evidence
may not be appealed, for to do so would be to place
the accused in double jeopardy.29 But while the
dismissal order consequent to a demurrer to
evidence is not subject to appeal, the same is still
reviewable but only by certiorari under Rule 65 of the
Rules of Court. Thus, in such case, the factual findings
of the trial court are conclusive upon the reviewing
court, and the only legal basis to reverse and set
aside the order of dismissal upon demurrer to
evidence is by a clear showing that the trial court, in
acquitting the accused, committed grave abuse of
discretion amounting to lack or excess of jurisdiction
or a denial of due process, thus rendering the
assailed judgment void.30
Accordingly, respondents filed before the RTC the
petition for certiorari alleging that the MTC gravely
abused its discretion in dismissing the case and failing
to consider the evidence of the prosecution in
resolving the same, and in allegedly failing to follow
the proper procedure as mandated by the Rules of
Court. The RTC correctly ruled that the MTC did not
abuse its discretion in dismissing the criminal
complaint. The MTC’s conclusions were based on
facts diligently recited in the order thereby disproving
that the MTC failed to consider the evidence
presented by the prosecution. The records also show
that the MTC correctly followed the procedure set
forth in the Rules of Court.
The second issue is whether the Court of Appeals
erred in ordering the remand of the case of the
matter of civil liability for the reception of evidence.
We disagree with the Court of Appeals on directing
the remand of the case to the RTC for further
proceedings on the civil aspect, as well as with the
RTC in directing a similar remand to the MTC.
The acquittal of the accused does not automatically
preclude a judgment against him on the civil aspect
of the case. The extinction of the penal action does
not carry with it the extinction of the civil liability
where: (a) the acquittal is based on reasonable doubt
as only preponderance of evidence is required; (b)
the court declares that the liability of the accused is
only civil; and (c) the civil liability of the accused does
not arise from or is not based upon the crime of
which the accused is acquitted. 31 However, the civil
action based on delict may be deemed extinguished if
there is a finding on the final judgment in the criminal
action that the act or omission from which the civil
liability may arise did not exist32 or where the accused
did not commit the acts or omission imputed to
him.33
Thus, if demurrer is granted and the accused is
acquitted by the court, the accused has the right to
adduce evidence on the civil aspect of the case unless
the court also declares that the act or omission from
which the civil liability may arise did not exist.34 This is
because when the accused files a demurrer to
evidence, he has not yet adduced evidence both on
the criminal and civil aspects of the case. The only
evidence on record is the evidence for the
prosecution. What the trial court should do is issue
an order or partial judgment granting the demurrer
to evidence and acquitting the accused, and set the
case for continuation of trial for the accused to
adduce evidence on the civil aspect of the case and
for the private complainant to adduce evidence by
way of rebuttal. Thereafter, the court shall render
judgment on the civil aspect of the case.35
A scrutiny of the MTC’s decision supports the
conclusion that the acquittal was based on the
findings that the act or omission from which the civil
liability may arise did not exist and that petitioner did
not commit the acts or omission imputed to him;
hence, petitioner’s civil liability has been extinguished
by his acquittal. It should be noted that the MTC
categorically stated that it cannot find any evidence
which would prove that a crime had been committed
and that accused was the person responsible for it. It
added that the prosecution failed to establish that it
was petitioner who committed the crime as charged
since its witnesses never identified petitioner as the
one who was driving the cargo truck at the time of
the incident. Furthermore, the MTC found that the
proximate cause of the accident is the damage to the
rear portion of the truck caused by the swerving of
the Colt Galant into the rear left portion of the cargo
truck and not the reckless driving of the truck by
petitioner, clearly establishing that petitioner is not
guilty of reckless imprudence. Consequently, there is
no more need to remand the case to the trial court
for proceedings on the civil aspect of the case, since
petitioner’s acquittal has extinguished his civil
liability.
WHEREFORE, the petition is GRANTED. The Court of
Appeals’ Decision dated 17 August 2006 and
Resolution dated 25 April 2007 in CA-G.R. SP. No.
01179 are REVERSED and SET ASIDE. The Order dated
16 May 2005 of the Municipal Trial Court of Sibulan,
Negros Oriental in Criminal Case No. 3016-04
granting the Demurrer to Evidence and acquitting
petitioner Jeffrey Reso Dayap of the offense charged
therein is REINSTATED and AFFIRMED.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. RAGA SARAPIDA MAMANTAK and LIKAD
SARAPIDA TAURAK, Accused-appellants.
D E C I S I O N
CORONA, J.:
There are people who are simply incapable of feeling
pity or compassion for others.
Ma. Teresa Basario must have felt a dagger deep in
her heart when she lost her two-year old son,
Christopher, two weeks before Christmas on
December 13, 1999. And again upon being reunited
with him some 16 months later when he could
neither recognize her nor remember who he was.
Justice demands that those responsible for this cruel
and agonizing separation of mother and child be
punished to the full extent of the law.
At about 3:00 p.m. on December 13, 1999, Teresa
went with Christopher and her elder sister Zenaida to
a McDonald's outlet in the KP Tower in Juan Luna St.,
Binondo, Manila. Teresa and Christopher looked for a
vacant table while Zenaida proceeded to order their
food. Shortly after Teresa took her seat, Christopher
followed Zenaida to the counter. Barely had
Christopher gone from his mother's sight when she
realized that he had disappeared. She and her sister
frantically looked for him inside and outside the
premises of the fastfood outlet, to no avail. As their
continued search for the child was futile, they
reported him missing to the nearest police
detachment.
The following day, Teresa went to several TV and
radio stations to inform the public of the loss of
Christopher and to appeal for help and information.
Despite the publicity, however, Teresa received no
word about Christopher's whereabouts. Worse,
pranksters were gleefully having a field day
aggravating her misery.
On February 25, 2001, Teresa received a call from a
woman who sounded like a muslim. The caller
claimed to have custody of Christopher and asked
for P30,000 in exchange for the boy.
On March 27, 2001, the same muslim-sounding
woman called and instructed Teresa to get a recent
photo of her son from the Jalal Restaurant at the
Muslim Center in Quiapo, Manila. True enough, when
Teresa went there, someone gave her a recent
picture of Christopher. She then contacted the
mysterious woman through the cellphone number
the latter had previously given her. When the woman
instructed her to immediately board a ship for
Mindanao, Teresa reasoned that she had not raised
the ransom money yet. They then agreed to conduct
the pay off in the morning of April 7, 2001 at Pitang's
Carinderia in Kapatagan, Lanao del Norte.
Teresa sought the help of the Presidential Anti-
Organized Crime Task Force (PAOCTF). A team was
formed and Police Officer (PO)31 Juliet Palafox was
designated to act as Teresa's niece.
Together with the PAOCTF team, Teresa left for
Mindanao on April 4, 2001. On April 7, 2001, they
arrived in Iligan City and proceeded to the designated
meeting place.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
At around 8:30 a.m., while Teresa and PO3 Palafox
were waiting at Pitang's Carinderia, two women
came. They were Raga Sarapida Mamantak and Likad
Sarapida Taurak. Mamantak approached Teresa and
PO3 Palafox and asked who they were waiting for.
Teresa replied that they were waiting for a certain
Rocma Bato, the name written at the back of the
picture she received in Jalal Restaurant in Manila. She
showed the photo to Mamantak who stated that she
knew Bato. Mamantak then told Teresa that she
would ask a cousin of Bato if the latter was already in
Kapatagan. Mamantak turned to Taurak, supposedly
the cousin of Bato. Taurak came near Teresa and PO3
Palafox and informed them that she had Christopher.
Taurak asked Teresa and PO3 Palafox to come with
her but they refused. Taurak reluctantly agreed to
leave Mamantak with them while she fetched
Christopher.
Several hours later, in the afternoon of the same day,
Taurak returned and told Teresa that Christopher was
in a nearby ice plant. She asked Teresa to go with her
but the latter insisted on their agreement that the
boy be handed over at the carinderia. Taurak
relented, left and came back after several minutes
with Christopher.
Upon seeing her son, Teresa cried and embraced him.
However, the child was unmoved. He no longer
recognized nor understood her for he could only
speak in the muslim dialect. When asked who he was,
the boy gave a muslim name with "Taurak" as
surname.
Mamantak and Taurak interrupted Teresa and
demanded the ransom money. She answered that
her niece had it and pointed to PO3 Palafox.
Thereafter, Mamantak and PO3 Palafox boarded a
jeepney which was parked outside, under Taurak's
watchful eyes. Inside the jeepney, PO3 Palafox
handed the ransom money to Mamantak. At this
juncture, PO3 Palafox gave the pre-agreed signal and
the PAOCTF team then closed in and arrested
Mamantak and Taurak.
Christopher relearned Tagalog after a month and
gradually began to forget the incident. On the other
hand, Teresa almost lost her sanity. At the time
Christopher was kidnapped, she was pregnant with
her third child. The child, born very sickly, eventually
died.
The sisters Mamantak and Taurak were charged
withkidnapping for ransom under the following
Information:
That on December 13, 1999 in Binondo, Manila and
within the jurisdiction of this Honorable Court, the
above-named accused conspiring, confederating and
mutually helping one another and grouping
themselves together, did then and there, willfully,
unlawfully and feloniously take, carry away and
deprive Christopher Basario, a two-year old minor of
his liberty against his will for the purpose of extorting
ransom as in fact a demand for ransom was made as
a condition for his release amounting to THIRTY
THOUSAND PESOS (P30,000.00) to the damage and
prejudice of Christopher Basario in said amount and
such other amount as maybe awarded to him under
the provisions of the Civil Code.
CONTRARY TO LAW.
Mamantak and Taurak pleaded not guilty when
arraigned. After pre-trial, trial ensued and the parties
presented their respective evidence.
In defense, Mamantak and Taurak denied the charges
against them. Taurak testified that at the time and
date of the alleged kidnapping, she was peddling
wares in Divisoria market, Manila. When she saw
Christopher wandering about aimlessly, she talked to
him but he did not seem to understand her. She took
the boy under her care and waited for someone to
come for him. No one did. As it was already 7:00
p.m., she brought the boy home with her to the
Muslim Center in Quiapo.
The next day, she and her husband took the boy to
the nearest police outpost but no one was there so
they just brought the boy to their stall. They opted to
keep the boy until his parents could claim him.
On February 17, 2001, Taurak brought the child to
Maganding, Sultan Kumander, Lanao del Sur.
Sometime later, Teresa contacted her and asked for
Christopher's picture for confirmation. It was at this
point that Taurak arranged a meeting at Pitang's
Carinderia in Kapatagan, Lanao del Norte on April 7,
2001. She did not bring the boy at first as a
precautionary measure. Only after confirming that
Teresa was the boy's mother did she relinquish
custody to her. However, she was shocked when
members of the PAOCTF suddenly arrested her. She
protested because she was innocent. There were no
charges against her nor was there a warrant for her
arrest.
Mamantak corroborated her sister Taurak's
testimony. She claimed that she was at Nunungan,
Lanao del Norte on December 13, 1999. At that time,
she did not know the exact whereabouts of Taurak
who was in Manila and whom she had not seen for
some time. They met again on April 7, 2001 at
Pitang's Carinderia but only by chance. She happened
to be there when Taurak came. When Teresa arrived
later, Taurak talked to her and then left, returning
after a few hours with Christopher whom Mamantak
saw for the first time. Taurak told her that she had
found the boy and was returning him to his mother.
Mamantak stayed in the carinderia all the while,
waiting for her ride home at 4:00 p.m. She was
stunned when PAOCTF members suddenly arrested
her and her sister as she had not committed any
crime and there was no warrant for her arrest.
After evaluating the respective evidence of the
parties, the trial court rendered a decision2on
November 30, 2004 finding Taurak and Mamantak
guilty as charged:
WHEREFORE, judgment is hereby rendered finding
both accused LIKAD SARAPIDA TAURAK and accused
RAGA SARAPIDA [MAMANTAK] GUILTY beyond
reasonable doubt of the crime of Kidnapping for
Ransom as amended by RA No. 7659 and both are
hereby sentenced to suffer the penalty of RECLUSION
PERPETUA. Both accused are hereby jointly and
severally ordered to pay the Christopher Basario
represented by the mother, [Ma.] Teresa Basario the
amount of PHP50,000.00 as compensatory damages
and PHP50,000.00 as moral damages. With costs
against the accused.
Both accused are given credit for the preventive
imprisonment undergone by them during the
pendency of this case.
SO ORDERED.3
Taurak and Mamantak appealed to the Court of
Appeals. In a decision4 dated March 31, 2006, the
appellate court ruled that the trial court erred in not
considering the demand forP30,000 as a demand for
ransom. Such circumstance required the imposition
of the death penalty. Thus, the appellate court
affirmed the conviction of Taurak and Mamantak
with modification amending the penalty
from reclusion perpetua to death.5 Pursuant to
Section 13, Rule 124 as amended by Administrative
Matter No. 00-5-03-SC, the appellate court certified
the case to this Court and accordingly ordered the
elevation of the records.6
We affirm the Court of Appeals, with a modification
of penalty.
Kidnapping is defined and punished under Article 267
of the Revised Penal Code, as amended by Republic
Act (RA) 7659:
ART. 267. Kidnapping and serious illegal detention. -
Any private individual who shall kidnap or detain
another, or in any other manner deprive him of his
liberty, shall suffer the penalty of reclusion
perpetua to death.
1. If the kidnapping or detention shall have lasted
more than three days.
2. If it shall have been committed simulating public
authority.
3. If any serious physical injuries shall have been
inflicted upon the person kidnapped or detained; or if
threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a
minor, except when the accused is any of the
parents, female or a public officer.
The penalty shall be death where the kidnapping or
detention was committed for the purpose of
extorting ransom from the victim or any other
person, even if none of the circumstances above-
mentioned were present in the commission of the
offense.
When the victim is killed or dies as a consequence of
the detention or is raped, or is subjected to torture or
dehumanizing acts, the maximum penalty shall be
imposed.
The crime has the following elements:
(1) the offender is a private individual; not either of
the parents of the victim7 or a public officer who has
a duty under the law to detain a person;8
(2) he kidnaps or detains another, or in any manner
deprives the latter of his liberty;
(3) the act of detention or kidnapping must be illegal
and
(4) in the commission of the offense, any of the
following circumstances is present: (a) the kidnapping
or detention lasts for more than three days; (b) it is
committed by simulating public authority; (c) any
serious physical injuries are inflicted upon the person
kidnapped or detained or threats to kill him are made
or (d) the person kidnapped or detained is a minor,
female or a public official.
If the victim is a minor, the duration of his detention
is immaterial. Likewise, if the victim is kidnapped and
illegally detained for the purpose of extorting
ransom, the duration of his detention becomes
inconsequential. The crime is qualified and becomes
punishable by death even if none of the
circumstances mentioned in paragraphs 1 to 4 of
Article 267 of the Revised Penal Code is present.9
The essence of the crime of kidnapping is the actual
deprivation of the victim's liberty coupled with the
intent of the accused to effect it.10 It includes not only
the imprisonment of a person but also the
deprivation of his liberty in whatever form and for
whatever length of time.11 And liberty is not limited
to mere physical restraint but embraces one's right to
enjoy his God-given faculties subject only to such
restraints necessary for the common welfare.12
The two-year-old Christopher suddenly disappeared
in Binondo, Manila and was recovered only after
almost 16 months from Taurak and Mamantak (both
of them private individuals) in Kapatagan, Lanao del
Norte. During the entire time the boy was kept away
from his mother, he was certainly deprived or
restrained of his liberty. He had no means,
opportunity or capacity to leave appellants' custody
and return to his family on his own. He had no choice
but to stay with total strangers, go with them to a far
away place and learn a culture and dialect alien to
him. At such a very tender age, he was deprived of
the liberty to enjoy the company and care of his
family, specially his mother.
Taurak unlawfully kept the child under her control
and custody and even brought him to Lanao del
Norte. She demanded P30,000 in exchange for his
return to his mother. On the other hand, Mamantak's
actions (e.g., her presence in the carinderia and her
acceptance of the ransom) showed without doubt
that she was aiding her sister and was acting in
concert with her. These were the identical factual
findings of both the trial and appellate courts. There
is no reason to disturb them as they are sufficiently
supported by evidence.
Taurak's story that she merely gave Christopher
refuge was incredible. It was like the apocryphal tale
of a man accused of theft of large cattle; his excuse
was that he saw a piece of rope and brought it home
not knowing that there was a cow tied to the other
end. She never even tried to bring the boy to the
proper authorities or surrender him to the
Department of Social Welfare and Development's
social workers in her barangay or in the city hall at
any time during the 16 months he was with her. And
how could Teresa have initiated her phone
conversations with Taurak when they were total
strangers to each other?cralawred
Similarly, Mamantak's account that she was at
Pitang's Carinderia only by coincidence and that it
was only there that she first saw Christopher invites
nothing but disbelief. The unequivocal testimonies of
the prosecution witnesses on her role in arranging for
the payment of ransom and the release of the kidnap
victim (e.g., confirming the identity of Teresa and
demanding and receiving the ransom money) showed
otherwise. The evidence clearly established that
Mamantak was a principal in the kidnapping of
Christopher.
Evidence to be believed must not only proceed from
the mouth of a credible witness but must be credible
in itself.13 The trial and appellate courts correctly
ruled that the statements of Taurak and Mamantak
did not deserve credence. Moreover, factual findings
of the trial court, including its assessment of the
credibility of the witnesses and the probative weight
thereof, are accorded great, if not conclusive, value
when affirmed by the Court of Appeals.14
The Court of Appeals considered the demand
for P30,000 as a qualifying circumstance which
necessitated the imposition of the death penalty. On
the other hand, the trial court deemed the amount as
too measly, compared to what must have been
actually spent for the care and subsistence of
Christopher for almost two years. It therefore treated
the amount not as ransom but as a reimbursement of
expenses incurred for taking care of the child.
(Kidnappers in Mindanao today call it reimbursement
for "board-and-lodging.")
Ransom means money, price or consideration paid or
demanded for the redemption of a captured person
that will release him from captivity.15 No specific form
of ransom is required to consummate the felony of
kidnapping for ransom as long as the ransom is
intended as a bargaining chip in exchange for the
victim's freedom.16 The amount of and purpose for
the ransom is immaterial.
In this case, the payment of P30,000 was demanded
as a condition for the release of Christopher to his
mother. Thus, the Court of Appeals correctly
considered it as a demand for ransom.
One final point of law. While the penalty for
kidnapping for the purpose of extorting ransom from
the victim or any other person under Article 267 of
the Revised Penal Code17is death, RA 934618 has
banned the death penalty and reduced all death
sentences toreclusion perpetua without eligibility for
parole. Pursuant to this law, we reduce the penalty
imposed on appellants from death to reclusion
perpetua, without eligibility for parole.
In line with prevailing jurisprudence, the award
of P50,000 civil indemnity19 was proper. Pursuant
to People v. Garalde,20 the award of P50,00021 moral
damages is increased toP200,000 considering the
minority of Christopher. Moreover, since the crime
was attended by a demand for ransom, and by way of
example or correction, Christopher is entitled
toP100,000 exemplary damages.22
WHEREFORE, the appeal is hereby DENIED. The
March 31, 2006 decision of the Court of Appeals in
CA-G.R. CR-H.C. No. 00729
is AFFIRMED with MODIFICATION. Appellants Raga
Sarapida Mamantak and Likad Sarapida Taurak are
hereby found guilty beyond reasonable doubt of the
crime of kidnapping for ransom for which they are
sentenced to suffer the penalty of reclusion
perpetua without eligibility for parole. They are
further ordered to pay, jointly and severally, P50,000
civil indemnity, P200,000 moral damages
and P100,000 exemplary damages to their young
victim Christopher Basario.
Costs against appellants.
SO ORDERED.
G.R. No. 165732 December 14, 2006
SAFEGUARD SECURITY AGENCY, INC., and ADMER
PAJARILLO, petitioners,
vs.
LAURO TANGCO, VAL TANGCO, VERN LARRY
TANGCO, VAN LAURO TANGCO, VON LARRIE
TANGCO, VIEN LARI TANGCO and VIVIEN LAURIZ
TANGCO, respondent.
D E C I S I O N
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari filed by
Safeguard Security Agency, Inc. (Safeguard) and
Admer Pajarillo (Pajarillo) assailing the
Decision1 dated July 16, 2004 and the
Resolution2 dated October 20, 2004 issued by the
Court of Appeals (CA) in CA-G.R. CV No. 77462.
On November 3, 1997, at about 2:50 p.m., Evangeline
Tangco (Evangeline) went to Ecology Bank, Katipunan
Branch, Quezon City, to renew her time deposit per
advise of the bank's cashier as she would sign a
specimen card. Evangeline, a duly licensed firearm
holder with corresponding permit to carry the same
outside her residence, approached security guard
Pajarillo, who was stationed outside the bank, and
pulled out her firearm from her bag to deposit the
same for safekeeping. Suddenly, Pajarillo shot
Evangeline with his service shotgun hitting her in the
abdomen instantly causing her death.
Lauro Tangco, Evangeline's husband, together with
his six minor children (respondents) filed with the
Regional Trial Court (RTC) of Quezon City, a criminal
case of Homicide against Pajarillo, docketed as
Criminal Case No. 0-97-73806 and assigned to Branch
78. Respondents reserved their right to file a
separate civil action in the said criminal case. The RTC
of Quezon City subsequently convicted Pajarillo of
Homicide in its Decision dated January 19, 2000.3 On
appeal to the CA, the RTC decision was affirmed with
modification as to the penalty in a Decision4 dated
July 31, 2000. Entry of Judgment was made on August
25, 2001.
Meanwhile, on January 14, 1998, respondents filed
with RTC, Branch 273, Marikina City, a complaint5 for
damages against Pajarillo for negligently shooting
Evangeline and against Safeguard for failing to
observe the diligence of a good father of a family to
prevent the damage committed by its security guard.
Respondents prayed for actual, moral and exemplary
damages and attorney's fees.
In their Answer,6 petitioners denied the material
allegations in the complaint and alleged that
Safeguard exercised the diligence of a good father of
a family in the selection and supervision of Pajarillo;
that Evangeline's death was not due to Pajarillo's
negligence as the latter acted only in self-defense.
Petitioners set up a compulsory counterclaim for
moral damages and attorney's fees.
Trial thereafter ensued. On January 10, 2003, the RTC
rendered its Decision,7 the dispositive portion of
which reads:
WHEREFORE, judgment is hereby rendered in favor of
the plaintiffs, the heirs of Evangeline Tangco, and
against defendants Admer Pajarillo and Safeguard
Security Agency, Inc. ordering said defendants to pay
the plaintiffs, jointly and severally, the following:
1. ONE HUNDRED FIFTY SEVEN THOUSAND FOUR
HUNDRED THIRTY PESOS (P157,430.00), as actual
damages
2. FIFTY THOUSAND PESOS (P50,000.00) as death
indemnity;
3. ONE MILLION PESOS (P1,000,000.00), as moral
damages;
4. THREE HUNDRED THOUSAND PESOS
(P300,000.00), as exemplary damages;
5. THIRTY THOUSAND PESOS (P30,000.00), as
attorney's fees; and
6. costs of suit.
For lack of merit, defendants' counterclaim is hereby
DISMISSED.
SO ORDERED. 8
The RTC found respondents to be entitled to
damages. It rejected Pajarillo's claim that he merely
acted in self-defense. It gave no credence to
Pajarillo's bare claim that Evangeline was seen
roaming around the area prior to the shooting
incident since Pajarillo had not made such report to
the head office and the police authorities. The RTC
further ruled that being the guard on duty, the
situation demanded that he should have exercised
proper prudence and necessary care by asking
Evangeline for him to ascertain the matter instead of
shooting her instantly; that Pajarillo had already been
convicted of Homicide in Criminal Case No. 0-97-
73806; and that he also failed to proffer proof
negating liability in the instant case.
The RTC also found Safeguard as employer of Pajarillo
to be jointly and severally liable with Pajarillo. It ruled
that while it may be conceded that Safeguard had
perhaps exercised care in the selection of its
employees, particularly of Pajarillo, there was no
sufficient evidence to show that Safeguard exercised
the diligence of a good father of a family in the
supervision of its employee; that Safeguard's
evidence simply showed that it required its guards to
attend trainings and seminars which is not the
supervision contemplated under the law; that
supervision includes not only the issuance of
regulations and instructions designed for the
protection of persons and property, for the guidance
of their servants and employees, but also the duty to
see to it that such regulations and instructions are
faithfully complied with.
Petitioners appealed the RTC decision to the CA. On
July 16, 2004, the CA issued its assailed Decision, the
dispositive portion of which reads:
IN VIEW OF ALL THE FOREGOING, the appealed
decision is hereby AFFIRMED, with the modification
that Safeguard Security Agency, Inc.'s civil liability in
this case is only subsidiary under Art. 103 of the
Revised Penal Code. No pronouncement as to costs.9
In finding that Safeguard is only subsidiarily liable, the
CA held that the applicable provisions are not Article
2180 in relation to Article 2176 of the Civil Code,
on quasi-delicts, but the provisions on civil liability
arising from felonies under the Revised Penal Code;
that since Pajarillo had been found guilty of Homicide
in a final and executory judgment and is said to be
serving sentence in Muntinlupa, he must be adjudged
civilly liable under the provisions of Article 100 of the
Revised Penal Code since the civil liability recoverable
in the criminal action is one solely dependent upon
conviction, because said liability arises from the
offense charged and no other; that this is also the
civil liability that is deemed extinguished with the
extinction of the penal liability with a pronouncement
that the fact from which the civil action might
proceed does not exist; that unlike in civil liability
arising from quasi-delict, the defense of diligence of a
good father of a family in the employment and
supervision of employees is inapplicable and
irrelevant in civil liabilities based on crimes or ex-
delicto; that Article 103 of the Revised Penal Code
provides that the liability of an employer for the civil
liability of their employees is only subsidiary, not joint
or solidary.
Petitioners filed their Motion for Reconsideration
which the CA denied in a Resolution dated October
20, 2004.
Hence, the instant Petition for Review
on Certiorari with the following assignment of errors,
to wit:
The Honorable Court of Appeals gravely erred in
finding petitioner Pajarillo liable to respondents for
the payment of damages and other money claims.
The Honorable Court of Appeals gravely erred when
it applied Article 103 of the Revised Penal Code in
holding petitioner Safeguard solidarily [sic] liable with
petitioner Pajarillo for the payment of damages and
other money claims.
The Honorable Court of Appeals gravely erred in
failing to find that petitioner Safeguard Security
Agency, Inc. exercised due diligence in the selection
and supervision of its employees, hence, should be
excused from any liability.10
The issues for resolution are whether (1) Pajarillo is
guilty of negligence in shooting Evangeline; and (2)
Safeguard should be held solidarily liable for the
damages awarded to respondents.
Safeguard insists that the claim for damages by
respondents is based on culpa aquiliana under Article
217611 of the Civil Code, in which case, its liability is
jointly and severally with Pajarillo. However, since it
has established that it had exercised due diligence in
the selection and supervision of Pajarillo, it should be
exonerated from civil liability.
We will first resolve whether the CA correctly held
that respondents, in filing a separate civil action
against petitioners are limited to the recovery of
damages arising from a crime or delict, in which case
the liability of Safeguard as employer under Articles
102 and 103 of the Revised Penal Code12 is subsidiary
and the defense of due diligence in the selection and
supervision of employee is not available to it.
The CA erred in ruling that the liability of Safeguard is
only subsidiary.
The law at the time the complaint for damages was
filed is Rule 111 of the 1985 Rules on Criminal
Procedure, as amended, to wit:
SECTION 1. Institution of criminal and civil actions. -
When a criminal action is instituted, the civil action
for the recovery of civil liability is impliedly instituted
with the criminal action, unless the offended party
waives the civil action, reserves his right to institute it
separately, or institutes the civil action prior to the
criminal action.
Such civil action includes recovery of indemnity under
the Revised Penal Code, and damages under Articles
32, 33, 34, and 2176 of the Civil Code of the
Philippines arising from the same act or omission of
the accused.
Respondents reserved the right to file a separate civil
action and in fact filed the same on January 14, 1998.
The CA found that the source of damages in the
instant case must be the crime of homicide, for which
he had already been found guilty of and serving
sentence thereof, thus must be governed by the
Revised Penal Code.
We do not agree.
An act or omission causing damage to another may
give rise to two separate civil liabilities on the part of
the offender, i.e., (1) civil liability ex delicto, under
Article 100 of the Revised Penal Code; and (2)
independent civil liabilities, such as those (a) not
arising from an act or omission complained of as a
felony, e.g., culpa contractual or obligations arising
from law under Article 31 of the Civil Code,
intentional torts under Articles 32 and 34, and culpa
aquiliana under Article 2176 of the Civil Code; or (b)
where the injured party is granted a right to file an
action independent and distinct from the criminal
action under Article 33 of the Civil Code. Either of
these liabilities may be enforced against the offender
subject to the caveat under Article 2177 of the Civil
Code that the offended party cannot recover
damages twice for the same act or omission or under
both causes.13
It is important to determine the nature of
respondents' cause of action. The nature of a cause
of action is determined by the facts alleged in the
complaint as constituting the cause of action.14 The
purpose of an action or suit and the law to govern it
is to be determined not by the claim of the party
filing the action, made in his argument or brief, but
rather by the complaint itself, its allegations and
prayer for relief.15
The pertinent portions of the complaint read:
7. That Defendant Admer A. Pajarillo was the guard
assigned and posted in the Ecology Bank – Katipunan
Branch, Quezon City, who was employed and under
employment of Safeguard Security Agency, Inc. hence
there is employer-employee relationship between co-
defendants.
The Safeguard Security Agency, Inc. failed to observe
the diligence of a good father of a family to prevent
damage to herein plaintiffs.
8. That defendant Admer Pajarillo upon seeing
Evangeline Tangco, who brought her firearm out of
her bag, suddenly without exercising necessary
caution/care, and in idiotic manner, with the use of
his shotgun, fired and burst bullets upon Evangeline
M. Tangco, killing her instantly. x x x
x x x x
16. That defendants, being employer and the
employee are jointly and severally liable for the death
of Evangeline M. Tangco.16
Thus, a reading of respondents' complaint shows that
the latter are invoking their right to recover damages
against Safeguard for their vicarious responsibility for
the injury caused by Pajarillo's act of shooting and
killing Evangeline under Article 2176, Civil Code which
provides:
ARTICLE 2176. Whoever by act or omission causes
damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual
relation between the parties is called a quasi-delict
and is governed by the provisions of this Chapter.
The scope of Article 2176 is not limited to acts or
omissions resulting from negligence. In Dulay v. Court
of Appeals,17 we held:
x x x Well-entrenched is the doctrine that Article
2176 covers not only acts committed with negligence,
but also acts which are voluntary and intentional. As
far back as the definitive case of Elcano v. Hill (77
SCRA 98 [1977]), this Court already held that:
"x x x Article 2176, where it refers to "fault or
negligence," covers not only acts "not punishable by
law" but also acts criminal in character, whether
intentional and voluntary or
negligent. Consequently, a separate civil action lies
against the offender in a criminal act, whether or not
he is criminally prosecuted and found guilty or
acquitted, provided that the offended party is not
allowed, if he is actually charged also criminally, to
recover damages on both scores, and would be
entitled in such eventuality only to the bigger award
of the two, assuming the awards made in the two
cases vary. In other words, the extinction of civil
liability referred to in Par. (e) of Section 3, Rule 111,
refers exclusively to civil liability founded on Article
100 of the Revised Penal Code, whereas the civil
liability for the same act considered as quasi-delict
only and not as a crime is not extinguished even by a
declaration in the criminal case that the criminal act
charged has not happened or has not been
committed by the accused. Briefly stated, We here
hold, in reiteration of Garcia, that culpa aquiliana
includes voluntary and negligent acts which may be
punishable by law." (Emphasis supplied)
The civil action filed by respondents was not derived
from the criminal liability of Pajarillo in the criminal
case but one based on culpa aquiliana or quasi-
delict which is separate and distinct from the civil
liability arising from crime.18 The source of the
obligation sought to be enforced in the civil case is
a quasi-delict not an act or omission punishable by
law.
In Bermudez v. Melencio-Herrera,19 where the issue
involved was whether the civil action filed by
plaintiff-appellants is founded on crime or on quasi-
delict, we held:
x x x The trial court treated the case as an action
based on a crime in view of the reservation made by
the offended party in the criminal case (Criminal Case
No. 92944), also pending before the court, to file a
separate civil action. Said the trial court:
It would appear that plaintiffs instituted this action
on the assumption that defendant Pontino's
negligence in the accident of May 10, 1969
constituted a quasi-delict. The Court cannot accept
the validity of that assumption. In Criminal Case No.
92944 of this Court, plaintiffs had already appeared
as complainants. While that case was pending, the
offended parties reserved the right to institute a
separate civil action. If, in a criminal case, the right to
file a separate civil action for damages is reserved,
such civil action is to be based on crime and not on
tort. That was the ruling in Joaquin vs. Aniceto, L-
18719, Oct. 31, 1964.
We do not agree. The doctrine in the case cited by
the trial court is inapplicable to the instant case x x x.
x x x x
In cases of negligence, the injured party or his heirs
has the choice between an action to enforce the civil
liability arising from crime under Article 100 of the
Revised Penal Code and an action for quasi-
delict under Article 2176-2194 of the Civil Code. If a
party chooses the latter, he may hold the employer
solidarily liable for the negligent act of his employee,
subject to the employer's defense of exercise of the
diligence of a good father of the family.
In the case at bar, the action filed by appellant was an
action for damages based on quasi-delict. The fact
that appellants reserved their right in the criminal
case to file an independent civil action did not
preclude them from choosing to file a civil action
for quasi-delict.20 (Emphasis supplied)
Although the judgment in the criminal case finding
Pajarillo guilty of Homicide is already final and
executory, such judgment has no relevance or
importance to this case.21 It would have been entirely
different if respondents' cause of action was for
damages arising from a delict, in which case the CA is
correct in finding Safeguard to be only subsidiary
liable pursuant to Article 103 of the Revised Penal
Code.22
As clearly shown by the allegations in the complaint,
respondents' cause of action is based on quasi-delict.
Under Article 2180 of the Civil Code, when the injury
is caused by the negligence of the employee, there
instantly arises a presumption of law that there was
negligence on the part of the master or the employer
either in the selection of the servant or employee, or
in the supervision over him after selection or both.
The liability of the employer under Article 2180 is
direct and immediate. Therefore, it is incumbent
upon petitioners to prove that they exercised the
diligence of a good father of a family in the selection
and supervision of their employee.
We must first resolve the issue of whether Pajarillo
was negligent in shooting Evangeline.
The issue of negligence is factual in nature. Whether
a person is negligent or not is a question of fact,
which, as a general rule, we cannot pass upon in a
petition for review on certiorari, as our jurisdiction is
limited to reviewing errors of law.23 Generally, factual
findings of the trial court, affirmed by the CA, are
final and conclusive and may not be reviewed on
appeal. The established exceptions are: (1) when the
inference made is manifestly mistaken, absurd or
impossible; (2) when there is grave abuse of
discretion; (3) when the findings are grounded
entirely on speculations, surmises or conjectures; (4)
when the judgment of the CA is based on
misapprehension of facts; (5) when the findings of
fact are conflicting; (6) when the CA, in making its
findings, went beyond the issues of the case and the
same is contrary to the admissions of both appellant
and appellee; (7) when the findings of fact are
conclusions without citation of specific evidence on
which they are based; (8) when the CA manifestly
overlooked certain relevant facts not disputed by the
parties and which, if properly considered, would
justify a different conclusion; and (9) when the
findings of fact of the CA are premised on the
absence of evidence and are contradicted by the
evidence on record. [24]
A thorough review of the records of the case fails to
show any cogent reason for us to deviate from the
factual finding of the trial court and affirmed by the
CA that petitioner Pajarillo was guilty of negligence in
shooting Evangeline.
Respondents' evidence established that Evangeline's
purpose in going to the bank was to renew her time
deposit.25On the other hand, Pajarillo claims that
Evangeline drew a gun from her bag and aimed the
same at him, thus, acting instinctively, he shot her in
self-defense.
Pajarillo testified that when Evangeline aimed the
gun at him at a distance of about one meter or one
arm's length26he stepped backward, loaded the
chamber of his gun and shot her.27 It is however
unimaginable that petitioner Pajarillo could still make
such movements if indeed the gun was already
pointed at him. Any movement could have prompted
Evangeline to pull the trigger to shoot him.
Petitioner Pajarillo would like to justify his action in
shooting Evangeline on his mere apprehension that
Evangeline will stage a bank robbery. However, such
claim is befuddled by his own testimony. Pajarillo
testified that prior to the incident, he saw Evangeline
roaming under the fly over which was about 10
meters away from the bank28 and saw her talking to a
man thereat;29 that she left the man under the fly-
over, crossed the street and approached the bank.
However, except for the bare testimony of Pajarillo,
the records do not show that indeed Evangeline was
seen roaming near the vicinity of the bank and acting
suspiciously prior to the shooting incident. In fact,
there is no evidence that Pajarillo called the attention
of his head guard or the bank's branch manager
regarding his concerns or that he reported the same
to the police authorities whose outpost is just about
15 meters from the bank.
Moreover, if Evangeline was already roaming the
vicinity of the bank, she could have already apprised
herself that Pajarillo, who was posted outside the
bank, was armed with a shotgun; that there were two
guards inside the bank30manning the entrance door.
Thus, it is quite incredible that if she really had a
companion, she would leave him under the fly-over
which is 10 meters far from the bank and stage a
bank robbery all by herself without a back-up. In fact,
she would have known, after surveying the area, that
aiming her gun at Pajarillo would not ensure entrance
to the bank as there were guards manning the
entrance door.
Evidence, to be believed, must not only proceed from
the mouth of a credible witness, but it must be
credible in itself — such as the common experience
and observation of mankind can approve as probable
under the circumstances. We have no test of the
truth of human testimony, except its conformity to
our knowledge, observation and experience.
Whatever is repugnant to these belongs to the
miraculous and is outside judicial cognizance.31
That Evangeline just wanted to deposit her gun
before entering the bank and was actually in the act
of pulling her gun from her bag when petitioner
Pajarillo recklessly shot her, finds support from the
contentions raised in petitioners' petition for review
where they argued that when Evangeline approached
the bank, she was seen pulling a gun from inside her
bag and petitioner Pajarillo who was suddenly beset
by fear and perceived the act as a dangerous threat,
shot and killed the deceased out of pure
instinct;32 that the act of drawing a gun is a
threatening act, regardless of whether or not the gun
was intended to be used against petitioner
Pajarillo;33 that the fear that was created in the mind
of petitioner Pajarillo as he saw Evangeline Tangco
drawing a gun from her purse was suddenly very real
and the former merely reacted out of pure self-
preservation.34
Considering that unlawful aggression on the part of
Evangeline is absent, Pajarillo's claim of self-defense
cannot be accepted specially when such claim was
uncorroborated by any separate competent evidence
other than his testimony which was even doubtful.
Pajarillo's apprehension that Evangeline will shoot
him to stage a bank robbery has no basis at all. It is
therefore clear that the alleged threat of bank
robbery was just a figment of Pajarillo's imagination
which caused such unfounded unlawful aggression on
his part.
Petitioners argue that Evangeline was guilty of
contributory negligence. Although she was a licensed
firearm holder, she had no business bringing the gun
in such establishment where people would react
instinctively upon seeing the gun; that had Evangeline
been prudent, she could have warned Pajarillo before
drawing the gun and did not conduct herself with
suspicion by roaming outside the vicinity of the bank;
that she should not have held the gun with the nozzle
pointed at Pajarillo who mistook the act as hold up or
robbery.
We are not persuaded.
As we have earlier held, Pajarillo failed to
substantiate his claim that Evangeline was seen
roaming outside the vicinity of the bank and acting
suspiciously prior to the shooting incident.
Evangeline's death was merely due to Pajarillo's
negligence in shooting her on his imagined threat
that Evangeline will rob the bank.
Safeguard contends that it cannot be jointly held
liable since it had adequately shown that it had
exercised the diligence required in the selection and
supervision of its employees. It claims that it had
required the guards to undergo the necessary
training and to submit the requisite qualifications and
credentials which even the RTC found to have been
complied with; that the RTC erroneously found that it
did not exercise the diligence required in the
supervision of its employee. Safeguard further claims
that it conducts monitoring of the activities of its
personnel, wherein supervisors are assigned to
routinely check the activities of the security guards
which include among others, whether or not they are
in their proper post and with proper equipment, as
well as regular evaluations of the employees'
performances; that the fact that Pajarillo loaded his
firearm contrary to Safeguard's operating procedure
is not sufficient basis to say that Safeguard had failed
its duty of proper supervision; that it was likewise
error to say that Safeguard was negligent in seeing to
it that the procedures and policies were not properly
implemented by reason of one unfortunate event.
We are not convinced.
Article 2180 of the Civil Code provides:
Art. 2180. The obligation imposed by Article 2176 is
demandable not only for one's own acts or omissions,
but also for those of persons for whom one is
responsible.
x x x x
Employers shall be liable for the damages caused by
their employees and household helpers acting within
the scope of their assigned tasks, even though the
former are not engaged in any business or industry.
x x x x
The responsibility treated of in this article shall cease
when the persons herein mentioned prove that they
observed all the diligence of a good father of a family
to prevent damage.
As the employer of Pajarillo, Safeguard is primarily
and solidarily liable for the quasi-delict committed by
the former. Safeguard is presumed to be negligent in
the selection and supervision of his employee by
operation of law. This presumption may be overcome
only by satisfactorily showing that the employer
exercised the care and the diligence of a good father
of a family in the selection and the supervision of its
employee.
In the selection of prospective employees, employers
are required to examine them as to their
qualifications, experience, and service records.35 On
the other hand, due diligence in the supervision of
employees includes the formulation of suitable rules
and regulations for the guidance of employees and
the issuance of proper instructions intended for the
protection of the public and persons with whom the
employer has relations through his or its employees
and the imposition of necessary disciplinary
measures upon employees in case of breach or as
may be warranted to ensure the performance of acts
indispensable to the business of and beneficial to
their employer. To this, we add that actual
implementation and monitoring of consistent
compliance with said rules should be the constant
concern of the employer, acting through dependable
supervisors who should regularly report on their
supervisory functions.36 To establish these factors in a
trial involving the issue of vicarious liability,
employers must submit concrete proof, including
documentary evidence.
We agree with the RTC's finding that Safeguard had
exercised the diligence in the selection of Pajarillo
since the record shows that Pajarillo underwent a
psychological and neuro-psychiatric evaluation
conducted by the St. Martin de Porres Center where
no psychoses ideations were noted, submitted a
certification on the Pre-licensing training course for
security guards, as well as police and NBI clearances.
The RTC did not err in ruling that Safeguard fell short
of the diligence required in the supervision of its
employee, particularly Pajarillo. In this case, while
Safeguard presented Capt. James Camero, its
Director for Operations, who testified on the issuance
of company rules and regulations, such as the
Guidelines of Guards Who Will Be Assigned To
Banks,37 Weapons Training,38 Safeguard Training
Center Marksmanship Training Lesson
Plan,39Disciplinary/Corrective Sanctions,40 it had also
been established during Camero's cross-examination
that Pajarillo was not aware of such rules and
regulations.41 Notwithstanding Camero's clarification
on his re-direct examination that these company
rules and regulations are lesson plans as a basis of
guidelines of the instructors during classroom
instructions and not necessary to give students copy
of the same,42 the records do not show that Pajarillo
had attended such classroom instructions.
The records also failed to show that there was
adequate training and continuous evaluation of the
security guard's performance. Pajarillo had only
attended an in-service training on March 1, 1997
conducted by Toyota Sta. Rosa, his first assignment as
security guard of Safeguard, which was in
collaboration with Safeguard. It was established that
the concept of such training was purely on security of
equipments to be guarded and protection of the life
of the employees.43
It had not been established that after Pajarillo's
training in Toyota, Safeguard had ever conducted
further training of Pajarillo when he was later
assigned to guard a bank which has a different nature
of business with that of Toyota. In fact, Pajarillo
testified that being on duty in a bank is different from
being on duty in a factory since a bank is a very
sensitive area.44
Moreover, considering his reactions to Evangeline's
act of just depositing her firearm for safekeeping, i.e.,
of immediately shooting her, confirms that there was
no training or seminar given on how to handle bank
clients and on human psychology.
Furthermore, while Safeguard would like to show
that there were inspectors who go around the bank
two times a day to see the daily performance of the
security guards assigned therein, there was no record
ever presented of such daily inspections. In fact, if
there was really such inspection made, the alleged
suspicious act of Evangeline could have been taken
noticed and reported.
Turning now to the award of damages, we find that
the award of actual damages in the
amount P157,430.00 which were the expenses
incurred by respondents in connection with the burial
of Evangeline were supported by receipts. The award
of P50,000.00 as civil indemnity for the death of
Evangeline is likewise in order.
As to the award of moral damages, Article 2206 of
the Civil Code provides that the spouse, legitimate
children and illegitimate descendants and ascendants
of the deceased may demand moral damages for
mental anguish by reason of the death of the
deceased. Moral damages are awarded to enable the
injured party to obtain means, diversions or
amusements that will serve to alleviate the moral
suffering he/she has undergone, by reason of the
defendant's culpable action. Its award is aimed at
restoration, as much as possible, of the
spiritual status quo ante;thus it must be
proportionate to the suffering inflicted.45 The
intensity of the pain experienced by the relatives of
the victim is proportionate to the intensity of
affection for him and bears no relation whatsoever
with the wealth or means of the offender.46
In this case, respondents testified as to their moral
suffering caused by Evangeline's death was so sudden
causing respondent Lauro to lose a wife and a mother
to six children who were all minors at the time of her
death. In People v. Teehankee, Jr.,47 we awarded one
million pesos as moral damages to the heirs of a
seventeen-year-old girl who was murdered. In Metro
Manila Transit Corporation v. Court of Appeals,48 we
likewise awarded the amount of one million pesos as
moral damages to the parents of a third year high
school student and who was also their youngest child
who died in a vehicular accident since the girl's death
left a void in their lives. Hence, we hold that the
respondents are also entitled to the amount of one
million pesos as Evangeline's death left a void in the
lives of her husband and minor children as they were
deprived of her love and care by her untimely
demise.
We likewise uphold the award of exemplary damages
in the amount of P300,000.00. Under Article 2229 of
the Civil Code, exemplary damages are imposed by
way of example or correction for the public good, in
addition to moral, temperate, liquidated or
compensatory damages.49 It is awarded as a
deterrent to socially deleterious actions. Inquasi-
delict, exemplary damages may be granted if the
defendant acted with gross negligence.50
Pursuant to Article 2208 of the Civil Code, attorney's
fees may be recovered when, as in the instant case,
exemplary damages are awarded. Hence, we affirm
the award of attorney's fees in the amount
of P30,000.00.
WHEREFORE, the petition for review is DENIED. The
Decision dated July 16, 2004 of the Court of Appeals
isAFFIRMED with MODIFICATION that the civil
liability of petitioner Safeguard Security Agency, Inc.
is SOLIDARYand PRIMARY under Article 2180 of the
Civil Code.
SO ORDERED.