People vs Sendaydiego, et. al.

Chester Cabalza recommends his visitors to please read the original & full text of the case cited. Xie xie! People vs Sendaydiego, et. al. G.R. No. L-33254 and 33253 January 20, 1978 Facts: In these three cases of malversation through falsification, the prosecution's theory is that in 1969 Licerio P. Sendaydiego, the provincial treasurer of Pangasinan, in conspiracy with Juan Samson y Galvan, an employee of a lumber and hardware store in Dagupan City, and with Anastacio Quirimit, the provincial auditor, as an accomplice, used six (6) forged provincial vouchers in order to embezzle from the road and bridge fund the total sum of P57,048.23. The provincial voucher in these cases has several parts. In the upper part with the legend "ARTICLE OR SERVICE" the nature of the obligation incurred is indicated. That part is supposed to be signed by two officials of the provincial engineer's office and by the governor's representative. The middle part of the voucher contains five numbered printed paragraphs. Paragraph 1 is a certificate to be signed by the creditor. It is stated therein that the creditor vouches that the expenses "were actually and necessarily incurred". In the instant cases paragraph 1 was not signed presumably because it is not relevant to the purchase of materials for public works projects. Paragraph 2 is a certification that the expenses are correct and have been lawfully incurred. It is signed by the provincial engineer. Paragraph 3 contains these words: "Approved for pre-audit and payment, appropriations and funds being available therefore." This is signed by the provincial treasurer. Paragraph 4 is a certification which, as filed up in Exhibit K, Voucher No. 10724 dated February 28, 1969, certifying that the voucher has been pre-audited and signed by the auditor. Paragraph 5 is a certification signed by the provincial treasurer that the account mentioned in the provincial engineer's certification "was paid in the amount and on the date shown below and is chargeable as shown in the summary hereof. " It may be noted that the provincial treasurer signs two part of the voucher. Issue: Whether or not appellants are liable for the crimes of falsicification of public documents and six crimes of malversation? Held: Samson is convicted of six crimes of falsification of a public document and six crimes of malversation. In lieu of the penalties imposed by the trial court, he is sentenced to the following penalties: For each of the six falsification of the vouchers (Exh. K, O, P, Q, R and S), Samson is sentenced to an indeterminate penalty of two (2) years of prison correccional minimum, as minimum, to four (4) years of prision correccional medium, as maximum, and to pay a fine of three thousand pesos. For the malversation of the sum of P16,727.52 covered by voucher No. 10724 (Exh. K), Samson is sentenced to an indeterminate penalty of twelve (12) years of prision mayor maximum, as minimum, to seventeen (17) years of reclusion temporal medium, as maximum; to pay a fine in the amount of P16,727.52, and to indemnify the province of Pangasinan in the same amount (Criminal Case NO. 23349, L-

33252). For the malversation of the sum of P14,571.81 covered by voucher No. 11995 (Exh. O), Samson is sentenced to an indeterminate penalty of twelve (12) years of prision mayor maximum, as minimum, to seventeen (17) years of reclusion temporal medium, as maximum; to pay a fine in the sum of P14,571.81, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23351, L-33254). For the malversation of the sum of P6,290.60 covered by voucher No. 11870 (Exh. Q), Samson is sentenced to an indertiminate penalty of nine (9) years of prision mayor medium, as minimum, to thirteen (13) years of reclusion temporal minimum, as maximum; to pay a fine of P6,290.60, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L33253). For the malversation of the sum of P9,769.64 covered by voucher No. 11871 (Exh. R), Samson is sentenced to an indeterminate penalty of nine (9) years of prision mayor medium, as minimum, to thirteen (13) years of reclusion temporal minimum, as maximum; to pay a fine of P9,769.64, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253). For the malversation of the sum of P5,187.28, covered by voucher No. 11869 (Exh. P), Samson is sentenced to an indeterminate penalty of five (5) years of prision correccional maximum, as minimum, to eight (8) of prision mayor minimum, as maximum; to pay a fine of P5,187.28, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253). For the malversation of the sum of P4,501.38 covered by voucher no. 11872 (Exh. S), Samson is sentenced to an indeterminate penalty of five (5) years of prision correccional maximum, as minimum, to eight (8) years of prision mayor minimum, as maximum; to pay a fine of P4,501.38, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253). In the service of the twelve penalties meted to Samson, the threefold limit provided for in article 70 of the Revised Penal Code should be observed (People vs. Escares, 102 Phil. 677), meaning that the maximum penalty that he should serve is three times the indeterminate sentence of twelve (12) years to seventeen (17) years, the severest penalty imposed on him, or thirty-six (36) years to fifty-one (51) years (see People vs. Peas, 68 Phil. 533). The maximum duration of his sentences should not exceed forty (40) years (Penultimate par. of art. 70; People vs. Alisub, 69 Phil. 362; People vs. Concepcion, 59 Phil. 518, 68 Phil. 530 and 69 Phil. 58). The estate of the late Licerio P. Sendaydiego is ordered to indemnify the province of Pangasinan in the sum of P57,048.23. Samson and the said estate are solitarily liable for the said indemnity (Art. 110, Revised Penal Code). Samson should pay one-half of the costs. SO ORDERED.

G.R. No. 73998 November 14, 1988 PEDRO T. LAYUGAN, petitioner, vs. INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and TRAVELLERS MULTIINDEMNITY CORPORATION, respondents. Edralin S. Mateo for petitioner. Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp. Roberto T. Vallarta for respondent Godofredo Isidro.

SARMIENTO, J.: Assailed in this petition for review on certiorari are 1) the decision 1 of the then Intermediate Appellate Court 2 in AC-G.R. CV No. 01055, entitled "Pedro T. Layugan, Plaintiff-Appellee, versus Godofredo Isidro, Defendant-Appellant and Third-Party Plaintiff-Appellee, versus Travellers Multi-Indemnity Corporation, Third Party Defendant- Appellant, "which reversed and set aside the decision 3 of the Regional Trial Court, Third Judicial Region, Branch XXVI, Cabanatuan City, and also dismissed the complaint, third party complaint, and the counter claims of the parties and 2) the resolution 4 denying the plaintiff-appellee's (herein petitioner) motion for reconsideration, for lack of merit. The findings of fact by the trial court which were adopted by the appellate court are as follows: 5 xxx xxx xxx Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging that on May 15, 1979 while at Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a companion were repairing the tire of their cargo truck with Plate No. SU-730 which was parked along the right side of the National Highway; that defendant's truck bearing Plate No. PW-583, driven recklessly by Daniel Serrano bumped the plaintiff, that as a result, plaintiff was injured and hospitalized at Dr. Paulino J. Garcia Research and Medical Center and the Our Lady of Lourdes Hospital; that he spent TEN THOUSAND PESOS (Pl0,000.00) and will incur more expenses as he recuperates from said injuries; that because of said injuries he would be deprived of a lifetime income in the sum of SEVENTY THOUSAND PESOS (P70,000.00); and that he agreed to pay his lawyer the sum of TEN THOUSAND PESOS (Pl0,000.00). As prayed for by the plaintiffs counsel, the Court declared the defendant in default on October 12, 1979, and plaintiff's evidence was received ex-parte on January 11, 1978 and February 19, 1980. The decision on behalf of the plaintiff was set aside to give a chance to the defendant to file his answer and later on, a third-party complaint. Defendant admitted his ownership of the vehicle involved in the accident driven by Daniel Serrano. Defendant countered that the plaintiff was merely a bystander, not a truck helper being a brother-in-law law of the driver of said truck; that the truck allegedly being repaired was parked, occupying almost half of the right lane towards Solano, Nueva Vizcaya, right after the curve; that the proximate cause of the incident was the failure of the driver of the parked truck in installing the early warning device, hence the driver of the parked car should be liable for damages sustained by the truck of the herein defendant in the amount of more than P20,000.00; that plaintiff being a mere bystander and hitchhiker must suffer all the damages he incurred. By way of counterclaim defendant alleged that due to plaintiffs baseless complaint he was constrained to engage the services of counsel for P5,000.00 and P200.00 per court appearance; that he suffered sleepless nights, humiliation, wounded feelings which may be estimated at P30.000.00. On May 29, 1981, a third-party complaint was filed by the defendant against his insurer, the Travellers Multi Indemnity Corporation; that the third-party plaintiff, without admitting his liability to the plaintiff, claimed that the thirdparty defendant is liable to the former for contribution, indemnity and

subrogation by virtue of their contract under Insurance Policy No. 11723 which covers the insurer's liability for damages arising from death, bodily injuries and damage to property. Third-party defendant answered that, even assuming that the subject matter of the complaint is covered by a valid and existing insurance policy, its liability shall in no case exceed the limit defined under the terms and conditions stated therein; that the complaint is premature as no claim has been submitted to the third party defendant as prescribed under the Insurance Code; that the accident in question was approximately caused by the carelessness and gross negligence of the plaintiff-, that by reason of the thirdparty complaint, third-party defendant was constrained to engage the services of counsel for a fee of P3,000.00. Pedro Layugan declared that he is a married man with one (1) child. He was employed as security guard in Mandaluyong, Metro Manila, with a salary of SIX HUNDRED PESOS (600.00) a month. When he is off-duty, he worked as a truck helper and while working as such, he sustained injuries as a result of the bumping of the cargo truck they were repairing at Baretbet, Bagabag, Nueva Vizcaya by the driver of the defendant. He used to earn TWO HUNDRED PESOS (P200.00) to THREE HUNDRED PESOS (P300.00) monthly, at the rate of ONE HUNDRED PESOS (Pl00.00) per trip. Due to said injuries, his left leg was amputated so he had to use crutches to walk. Prior to the incident, he supported his family sufficiently, but after getting injured, his family is now being supported by his parents and brother. GODOFREDO ISIDRO, defendant/third-party plaintiff, testified that his truck involved in this vehicular accident is insured with the Travellers Multi Indemnity Corporation covering own damage and third-party liability, under vehicle policy No. 11723 (Exh. "1") dated May 30, 1978; that after he filed the insurance claim the insurance company paid him the sum of P18,000.00 for the damages sustained by this truck but not the third party liability. DANIEL SERRANO, defendant driver, declared that he gave a statement before the municipal police of Bagabag, Nueva Vizcaya on May 16, 1979; that he knew the responsibilities of a driver; that before leaving, he checked the truck. The truck owner used to instruct him to be careful in driving. He bumped the truck being repaired by Pedro Layugan, plaintiff, while the same was at a stop position. From the evidence presented, it has been established clearly that the injuries sustained by the plaintiff was caused by defendant's driver, Daniel Serrano. The police report confirmed the allegation of the plaintiff and admitted by Daniel Serrano on cross-examination. The collision dislodged the jack from the parked truck and pinned the plaintiff to the ground. As a result thereof, plaintiff sustained injuries on his left forearm and left foot. The left leg of the plaintiff from below the knee was later on amputated (Exh. "C") when gangrene had set in, thereby rendering him incapacitated for work depriving him of his income. (pp. 118 to 120, Record on Appeal.) xxx xxx xxx Upon such findings, amply supported by the evidence on record, the trial court rendered its decision, the dispositive part of which reads as follows: 6

WHEREFORE, premises considered, the defendant is hereby ordered: a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS actual and compensatory damages; b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees; c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and d) To pay the costs of this suit. On the third-party complaint, the third-party defendant is ordered to indemnify the defendant/third party plaintiff-. a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual and compensatory damages; and b) The costs of this suit. The Intermediate Appellate Court as earlier stated reversed the decision of the trial court and dismissed the complaint, the third-party complaint, and the counter- claims of both appellants. 7 Hence, this petition. The petitioner alleges the following errors.
8

1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY IN REVERSING AND SETTING ASIDE AND DISMISSING THE PLAINTIFF-APPELLEE'S COMPLAINT. 2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY IN APPLYING THE DOCTRINE OF "RES IPSA LOQUITUR" WITH PROPER JURISPRUDENTIAL (sic) BASIS. The crux of the controversy lies in the correctness or error of the decision of the respondent court finding the petitioner negligent under the doctrine of Res ipsa loquitur (The thing speaks for itself).<re||an1w> Corollary thereto, is the question as to who is negligent, if the doctrine is inapplicable. The respondent corporation stresses that the issues raised in the petition being factual, the same is not reviewable by this Court in a petition for review by certiorari. 9 Indeed, it is an elementary rule in the review of decisions of the Court of Appeals that its findings of fact are entitled to great respect and will not ordinarily be disturbed by this Court. 10 For if we have to review every question of fact elevated to us, we would hardly have any more time left for the weightier issues compelling and deserving our preferential attention. 11 Be that as it may, this rule is not inflexible. Surely there are established exceptions 12 when the Court should review and rectify the findings of fact of the lower court, such as: 1) when the conclusion is a finding grounded entirely on speculation, surmise, or conjecture; 2) the inference made is manifestly mistaken; 3) there is grave abuse of discretion; 4) the judgment is based on misapprehension of facts; 5) the Court of Appeals went beyond the

issues of the case if the findings are contrary to the admission of both the appellant and the appellee; 6) the findings of the Court of Appeals are contrary to those of the trial court; 7) the said findings of fact are conclusions without citation of specific evidence on which they are based; 8) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and 9) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted on record. Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a deviation from the general rule. From its finding that the parked truck was loaded with ten (10) big round logs 13 the Court of Appeals inferred that because of its weight the truck could not have been driven to the shoulder of the road and concluded that the same was parked on a portion of the road 14 at the time of the accident. Consequently, the respondent court inferred that the mishap was due to the negligence of the driver of the parked truck. 15 The inference or conclusion is manifestly erroneous. In a large measure, it is grounded on speculation, surmise, or conjecture. How the respondent court could have reversed the finding of the trial court that a warning device was installed 16escapes us because it is evident from the record that really such a device, in the form of a lighted kerosene lamp, was installed by the driver of the parked truck three to four meters from the rear of his parked truck. 17 We see this negative finding of the respondent appellate court as a misreading of the facts and the evidence on record and directly contravening the positive finding of the trial court that an early warning device was in proper place when the accident happened and that the driver of the private respondent was the one negligent. On the other hand, the respondent court, in refusing to give its "imprimatur to the trial court's finding and conclusion that Daniel Serrano (private respondent Isidro's driver) was negligent in driving the truck that bumped the parked truck", did not cite specific evidence to support its conclusion. In cavalier fashion, it simply and nebulously adverted to unspecified "scanty evidence on record." 18 On the technical aspect of the case, the respondent corporation would want us to dismiss this petition on the ground that it was filed out of time. It must be noted that there was a motion for extension, 19 albeit filed erroneously with the respondent court, dated March 19, 1986, requesting for 30 days from March 20, 1986, to file the necessary petition or pleading before the Supreme Court". Also, on April 1, 1986, an appearance of a new lawyer for the petitioner before the Supreme Court" with motion 20 was filed, again erroneously, with the Court of Appeals, requesting for 20 days extension "to file the Petition for Review on Certiorari." Likewise a similar motion21 was filed with this Court also on April 1, 1986. On the other hand, the instant petition for review was filed on April 17, 1986 22 but it was only after three months, on August 1, 1986, in its comment 23 that the respondent corporation raised the issue of tardiness. The respondent corporation should not have waited in ambush before the comment was required and before due course was given. In any event, to exact its "a pound of flesh", so to speak, at this very late stage, would cause a grave miscarriage of justice. Parenthetically, it must be noted that private respondent Isidro did not raise this issue of late filing. We now come to the merits of this petition. The question before us is who was negligent? Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do 24 or as Judge Cooley defines it, "(T)he failure to observe for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. 25

In Picart vs. Smith,

26

decided more than seventy years ago but still a sound rule, we held:

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation ? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The Law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that. Respondent Isidro posits that any immobile object along the highway, like a parked truck, poses serious danger to a moving vehicle which has the right to be on the highway. He argues that since the parked cargo truck in this case was a threat to life and limb and property, it was incumbent upon the driver as well as the petitioner, who claims to be a helper of the truck driver, to exercise extreme care so that the motorist negotiating the road would be properly forewarned of the peril of a parked vehicle. Isidro submits that the burden of proving that care and diligence were observed is shifted to the petitioner, for, as previously claimed, his (Isidro's) Isuzu truck had a right to be on the road, while the immobile cargo truck had no business, so to speak, to be there. Likewise, Isidro proffers that the petitioner must show to the satisfaction of a reasonable mind that the driver and he (petitioner) himself, provided an early warning device, like that required by law, or, by some other adequate means that would properly forewarn vehicles of the impending danger that the parked vehicle posed considering the time, place, and other peculiar circumstances of the occasion. Absent such proof of care, as in the case at bar, Isidro concludes, would, under the doctrine of Res ipsa loquitur, evoke the presumption of negligence on the part of the driver of the parked cargo truck as well as his helper, the petitioner herein, who was fixing the flat tire of the said truck. 27 Respondent Isidro's contention is untenable. The evidence on record discloses that three or four meters from the rear of the parked truck, a lighted kerosene lamp was placed. 28 Moreover, there is the admission of respondent Isidro's driver, Daniel Serrano, to Wit: 29 Question No. 8 (by Patrolman Josefino Velasco)Will you narrate to me in brief how the accident happens (sic) if you can still remember? Answer: (by Daniel Serrano) That on or about 10:40 p.m., 15 May 1979 while driving Isuzu truck at Baretbet, Bagabag, Nueva Vizcaya and at KM 285, I met another vehicle who (sic) did not dim his (sic) lights which cause (sic) me to be blinded with intense glare of the light that's why I did not notice a parked truck who (sic) was repairing a front flat tire. When I was a few meters away, I saw the truck which was loaded with round logs. I step (sic) on my foot brakes but it did not function with my many attempts. I have (sic) found out later that the fluid pipe on the rear right was cut that's why the breaks did not function . (Emphasis supplied).

Whether the cargo truck was parked along the road or on half the shoulder of the right side of the road would be of no moment taking into account the warning device consisting of the lighted kerosene lamp placed three or four meters from the back of the truck. 30 But despite this warning which we rule as sufficient, the Isuzu truck driven by Daniel Serrano, an employee of the private respondent, still bumped the rear of the parked cargo truck. As a direct consequence of such accident the petitioner sustained injuries on his left forearm and left foot. His left leg was later amputated from below the knee when gangrene had set in. 31 It is clear from the foregoing disquisition that the absence or want of care of Daniel Serrano has been established by clear and convincing evidence. It follows that in stamping its imprimatur upon the invocation by respondent Isidro of the doctrine of Res ipsa loquitur to escape liability for the negligence of his employee, the respondent court committed reversible error. The respondent court ruled: xxx xxx xxx In addition to this, we agree with the following arguments of appellant Godofredo Isidro which would show that the accident was caused due to the negligence of the driver of the cargo truck: xxx xxx xxx ... In the case at bar the burden of proving that care and diligence was (sic) observed is shifted evidently to the plaintiff, for, as adverted to, the motorists have the right to be on the road, while the immobile truck has no business, so to speak, to be there. It is thus for the plaintiff to show to the satisfaction of a reasonable mind that the driver and he himself did employ early warning device such as that required by law or by some other adequate means or device that would properly forewarn vehicles of the impending danger that the parked vehicle posed considering the time, place and other peculiar circumstances of the occasion. Absent such proof of care, as in the case at bar, will evoke the presumption of negligence under the doctrine of res ipsa loquitur, on the part of the driver of the parked cargo truck as well as plaintiff who was fixing the flat tire of said truck. (pp. 14-17, Appellant's Brief). (Emphasis supplied). At this juncture, it may be enlightening and helpful in the proper resolution of the issue of negligence to examine the doctrine of Res ipsa loquitur. This doctrine is stated thus: "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care. 33 Or as Black's Law Dictionary 34 puts it: Res ipsa loquitur. The thing speaks for itself Rebuttable presumption or inference that defendant was negligent, which arises upon proof that instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarily does not happen in absence of
32

negligence. Res ipsa loquitur is rule of evidence whereby negligence of alleged wrongdoer may be inferred from mere fact that accident happened provided character of accident and circumstances attending it lead reasonably to belief that in absence of negligence it would not have occurred and that thing which caused injury is shown to have been under management and control of alleged wrongdoer. Hillen v. Hooker Const. Co., Tex. Civ. App., 484 S.W. 2d 133, 155. Under doctrine of "res ipsa loquitur" the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that injury was caused by an agency or instrumentality under exclusive control and management of defendant, and that the occurrence was such that in the ordinary course of things would not happen if reasonable care had been used. In this jurisdiction we have applied this doctrine in quite a number of cases, notably in Africa et al. vs. Caltex, Inc., et al., 35 and the latest is in the case of F.F. Cruz and Co., Inc. vs. CA. 36 The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. 37 The doctrine is not a rule of substantive law 38 but merely a mode of proof or a mere procedural convenience. 39 The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable negligence on the part of the party charged. 40 It merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. 41 The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available. 42 Hence, it has generally been held that the presumption of inference arising from the doctrine cannot be availed of, or is overcome, where plaintiff has knowledge and testifies or presents evidence as to the specific act of negligence which is the cause of the injury complained of or where there is direct evidence as to the precise cause of the accident and all the facts and circumstances attendant on the occurrence clearly appear. 43 Finally, once the actual cause of injury is established beyond controversy, whether by the plaintiff or by the defendant, no presumptions will be involved and the doctrine becomes inapplicable when the circumstances have been so completely eludicated that no inference of defendant's liability can reasonably be made, whatever the source of the evidence, 44 as in this case. The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil Code. In the latter, when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after selection, or both. Such presumption is juris tantum and not juris et de jure and consequently, may be rebutted. If follows necessarily that if the employer shows to the satisfaction of the court that in the selection and in the supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability. 45 In disclaiming liability for the incident, the private respondent stresses that the negligence of his employee has already been adequately overcome by his driver's statement that he knew his responsibilities as a driver and that the truck owner used to instruct him to be careful in driving. 46 We do not agree with the private respondent in his submission. In the first place, it is clear that the driver did not know his responsibilities because he apparently did not check his vehicle before he took it on the road. If he did he could have discovered earlier that the brake fluid pipe on the right was cut, and could have repaired it and thus the accident could have been avoided. Moveover, to our mind, the fact that the private respondent used to

intruct his driver to be careful in his driving, that the driver was licensed, and the fact that he had no record of any accident, as found by the respondent court, are not sufficient to destroy the finding of negligence of the Regional Trial Court given the facts established at the trial 47 The private respondent or his mechanic, who must be competent, should have conducted a thorough inspection of his vehicle before allowing his driver to drive it. In the light of the circumstances obtaining in the case, we hold that Isidro failed to prove that the diligence of a good father of a family in the supervision of his employees which would exculpate him from solidary liability with his driver to the petitioner. But even if we concede that the diligence of a good father of a family was observed by Isidro in the supervision of his driver, there is not an iota of evidence on record of the observance by Isidro of the same quantum of diligence in the supervision of his mechanic, if any, who would be directly in charge in maintaining the road worthiness of his (Isidro's) truck. But that is not all. There is paucity of proof that Isidro exercised the diligence of a good father of a family in the selection of his driver, Daniel Serrano, as well as in the selection of his mechanic, if any, in order to insure the safe operation of his truck and thus prevent damage to others. Accordingly, the responsibility of Isidro as employer treated in Article 2180, paragraph 5, of the Civil Code has not ceased. WHEREFORE, the petition is hereby GRANTED. The Decision of the respondent court as well as its Resolution denying the petitioner's motion for reconsideration are hereby SET ASIDE and the decision of the trial court, dated January 20, 1983, is hereby REINSTATED in toto. With costs against the private respondents. SO ORDERED.

[G.R. Nos. 132635 & 14387275. February 21, 2001]

THE

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LAMBERTO VELASQUEZ, accused-appellant. DECISION

MENDOZA, J.: This is an appeal from the decision, [1] dated February 12, 1998, of the Regional Trial Court, Branch 59, Angeles City, convicting accused-appellant Lamberto Velasquez of (1) acts of lasciviousness committed against his granddaughter Aira Velasquez and sentencing him to suffer imprisonment from 12 years and 1 day of reclusion temporal minimum, as minimum, to 17 years of reclusion temporal medium, as maximum, and to indemnify Aira Velasquez in the amount of P30,000.00; and (2) rape of his stepdaughter Mary Joy Ocampo and sentencing him to suffer the penalty of death and to indemnify Mary Joy Ocampo in the amount of P50,000.00. In another case for acts of lasciviousness, accused-appellant was acquitted, while two other ones, also for acts of lasciviousness, were dismissed by the court for lack of jurisdiction. In Criminal Case No. 97-307, it was alleged That sometime in the month of April, 1997, Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named

accused, being the grandfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of AIRA G. VELASQUEZ, a girl of 2 years of age, by inserting his finger into Airas vagina, by means of force and against the will of the said complainant. ALL CONTRARY TO LAW.[2] In Criminal Case No. 97-308, the charge was That sometime in the month of October, 1994, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the stepfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of MARY JOY D. OCAMPO, then 13 years old, by inserting his finger into Mary Joys vagina, by means of force and against the will of the said complainant. ALL CONTRARY TO LAW.[3] In Criminal Case No. 97-309, it was alleged That sometime in the month of April, 1997, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, being the stepfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of MARY JOY D. OCAMPO, a girl of 16 years of age, by then and there kissing her, caressing and fondling her private parts, by means of force and against the will of the said complainant. ALL CONTRARY TO LAW.[4] In Criminal Case No. 97-310, it was recited That sometime in the month of March, 1997, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being the grandfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of KIMBERLY O. VELASQUEZ, a girl of 2 years of age, by inserting his finger into Kimberlys vagina, by means of force and against the will of the said complainant. ALL CONTRARY TO LAW.[5] In Criminal Case No. 97-311, it was alleged That sometime in the month of October, 1994, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the stepfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously have carnal knowledge with one MARY JOY D. OCAMPO, then 13 years old, by means of force and against her will and consent.

ALL CONTRARY TO LAW.[6] Accused-appellant pleaded not guilty to the charges against him, [7] whereupon the cases were consolidated and jointly tried. The prosecution presented Mary Joy Ocampo, Angelina Velasquez, Ma. Regail Velasquez, Mary Grace Velasquez, Dr. Edwin Manson, and NBI medico-legal officer Dr. Dominic Aguda as witnesses. On the other hand, the defense presented accused-appellant, Adelaido Velasquez, Sonia Velasquez, Mario Manarang, Rochelle Velasquez, Renato Cruz, and Roberto Velasquez as its witnesses. The evidence for the prosecution is as follows: Accused-appellant Lamberto Velasquez married Caridad Guevarra on March 14, 1965 and begot six children by her, namely, Randy, Rochelle, [8] Regail, Ranold, Renel,[9] and Ryan. During their marriage, he lived in common-law relation with Dolores Cabinan, by whom he had five children, namely, Robert, Rhea, [10] Roan, Roel, and Judan. He lived with Dolores and their children for more than eight years in a house which they rented from Eladio Dungca.[11] After Dolores died in 1984,[12] accused-appellant lived in common-law relation with Eladios married daughter, Angelina.[13] Angelina already had three children by her husband Roberto Ocampo, namely, Mary Grace, Mary Joy, and Edward. [14] She begot two more children by accused-appellant, named Raymond and Raygel. In 1987, accused-appellants wife, Caridad, died of cancer.[15] On November 8, 1989, accused-appellant married Angelina Dungca[16] and brought his children by Caridad and Dolores to live with them in Angelinas three-bedroom house at 5069 New York Street, Don Cornelio, Dau, Mabalacat, Pampanga. [17] In October 1994, Mary Joy Ocampo, then 13 years of age, slept in a room she shared with accused-appellant, her mother Angelina, and her two half-brothers, Raygel, 12, and Raymond, 5. When she woke up in the morning, she found accused-appellant beside her on the floor, her mother having left for the market. Accused-appellant kissed her on the mouth and the breasts. Then he raised her shirt, pulled down her shorts and underwear, and kissed her private parts. Afterward, accused-appellant inserted his middle finger into Mary Joys vagina. Mary Joy felt a sharp pain and tried to resist by kicking accused-appellant, which made the latter remove his finger although he continued kissing her. Accusedappellant then left, but not before warning her to keep quiet and not to tell anyone what he had done to her.[18] Mary Joy ran to the bathroom and examined herself. Her underwear had bloodstains, and her vagina was bleeding. She felt pain when she washed herself. Her mother returned as she was about to go to school, but because of fear of accused-appellant she said nothing.[19] Two weeks later, still in the month of October, while Mary Joy was watching television alone in the living room, accused-appellant approached her and, though she tried to evade him, he succeeded in forcing her to their room. He lowered her shorts and underwear, raised her shirt and bra, and started kissing her. Then he inserted his middle finger into her vagina and later had sexual intercourse with her. Mary Joy cried out in pain, prompting him to stop, although he continued kissing and fondling her.[20] Up to April 1997, accused-appellant continuously molested Mary Joy, sometimes forcing her to masturbate him and at other times licking her vagina. [21] Regail Velasquez, accused-appellants daughter by Caridad, has a daughter named Aira. On April 16, 1997, at 3 oclock in the afternoon, while Regail was folding clothes, Aira walked into the room crying. Aira complained that her grandfather did something to her,

which she demonstrated by opening her right leg and moving one of her right fingers toward her vagina.[22] Regail did not want to believe her daughter and thought that her father was just joking with the latter. However, Aira started to cry. In the days that followed, she noticed that Aira complained of pain in her vagina while taking a bath. When Regail asked her why her vagina hurt, Aira said it was because of the things her grandfather had been doing to her vagina, showing her mother what had been done to her.[23] On April 28, 1997, Regail noticed pus coming out of Airas vagina. She also noticed that her daughter was running a fever, and that her vagina was red and swollen. She took Aira to Dr. Lydia Buyboy, a private physician, who told her that her daughter had lacerations in her vaginal area and that she had probably been fingered. However, the doctor declined to give a medical certificate as she did not want to get involved in any case. [24] Regail went home and told her stepmother everything. Angelina cried as she could not believe what she had been told. Remembering that a similar thing had happened to her sister-in-laws daughter, Regail talked to Mary Grace. Mary Grace Ocampo Velasquez, Angelinas daughter, married Ranold Velasquez, accused-appellants son by Caridad and Regails brother. Mary Grace testified that she had been molested by her father when she was nine years old. She recalled when, as a new couple, Angelina and accused-appellant spent the night at an aunts house in San Fernando, Pampanga. Mary Grace was with them. According to Mary Grace, accused-appellant went to her side, raised her clothes, and fondled her breasts. His hands went lower. She was unable to resist accused-appellants advances because of his strength and threats. To prevent a recurrence of the event, Mary Grace moved out of their house and went to live with her aunt in Angeles City.[25] Kimberly was around Airas age, and Regail remembered hearing that pus had also come out of the childs vagina. When she told her about Dr. Buyboys findings, Mary Grace lost no time and took Kimberly to Dr. Buyboy, who made the same findings. [26] That evening, Mary Grace told her husband Ranold about the doctors examination and findings. But they did not know what to do. They could not talk to accused-appellant as he was always drunk and they were afraid of him.[27] On April 30, 1997, a despedida was held for Angelinas sister Loida Kellow, who was leaving for the United States. On that occasion, Regail told her aunt about Airas and Kimberlys ordeal. Angelina was brought in. They also called Mary Joy who, after drinking beer, began to tell everything. Mary Grace and Regail were summoned, and eventually they pieced together accused-appellants pattern of abuse. They decided to file a case against him. Early the next morning, Angelina and Loida went to the police station to make a report. They then went back to the house, fetched the children, and brought them to Dr. Lydia Buyboy for medical examination. However, Dr. Buyboy refused to examine the children. They next went to the Mabalacat District Hospital. Meeting the same rejection, they went to the Department of Social Welfare and Development (DSWD), where they obtained the assistance of a certain Mrs. Dimabuyu. They proceeded to the Ospital ng Angeles where, with Mrs. Dimabuyus help, they were able to prevail on Dr. Edwin Manson to conduct a physical examination of Aira, Kimberly, and Mary Joy. However, Dr. Manson told them that Sige, titingnan ko sila pero walang magandang resulta akong maibibigay sa inyo.[28] After the examination, they went home. Accused-appellant was no longer there. They gathered their things and, with their relatives, checked in at the Monte Carlo Hotel in Dau, Mabalacat. There were over 40 of them. They went back to the Mabalacat Police Station and gave their statements.[29]

They stayed at the Monte Carlo Hotel for over four days. When they returned home, accused-appellant had not returned. On May 9, 1997, at Loidas prompting, they went to the National Bureau of Investigation (NBI) for another physical examination. NBI medico-legal officer Dr. Dominic Aguda reported the following findings on Aira Velasquez: THIRD DIVISION [G.R. No. 116754. March 17, 2000] MORONG WATER DISTRICT, petitioner, vs. OFFICE OF THE DEPUTY OMBUDSMAN, WIFRED L. PASCASIO, RAUL R. ARNAU, ABELARDO L. APORTADERA, JR., FRANCISCO VILLA, EDGARD STA. MARIA and EMMA CENSON,respondents. Sc DECISION GONZAGA_REYES, J.: Assailed in this petition for certiorari is the Resolution[1] dated 28 March 1994 of the Office of the Ombudsman which dismissed the case for violation of R.A. 3019, the Anti-Graft and Corrupt Practices Act, and Article 217 of the Revised Penal Code filed against private respondents Edgard Sta. Maria and Emma Censon by herein petitioner Morong Water District. Likewise assailed is the Order[2] dated dated 27 May 1994 denying petitioners motion for reconsideration. The facts of the case are as follows: Scmis Private respondent Edgard Sta. Maria, was the former General Manager of petitioner Morong Water District in San Pedro, Morong, Rizal. Private respondent Emma Censon was the advisor of the Local Water Utilities Administration assigned to petitioner Morong Water District. Respondents Wilfred L. Pascasio, Raul R. Arnau, Abelardo L. Aportadera, Jr. and Francisco Villa are officials of the Office of the Ombudsman who are included as respondents in their official capacities as the public officers who promulgated the questioned resolution and order. On 3 August 1993, Edgard Sta. Maria, while still the General Manager of MOWAD, received from petitioner a cash advance of P33,190.73[3]representing an initial release of funds for the design and execution of the Wawa pipeline extension project in Morong, Rizal. On 5 August 1992, as shown by a journal voucher[4] issued by petitioner, Sta. Maria submitted a partial liquidation of expenses amounting to P15,000.00 against the cash advance of P33,190.73. Respondent Sta. Maria allegedly used the money as payment for the design, including the pipelaying scheme, service connection detail, and the interconnection detail, of the Sitio Wawa Pipeline Extension. The liquidation report was supported by a Reimbursement Expense Receipt[5] indicating that the P15,000.00 was paid to and received by a certain Engineer Ricardo Reyes. On 10 November 1992, Sta. Maria made a final liquidation of expenses amounting to P16,790.40. The amount was used for the Paglabas Pipeline Extension in compliance with the request of the Municipal Mayor. As indicated in the journal voucher [6] supporting the transaction, the diversion of funds was authorized by the Board of directors in a Board Meeting held on 9 October 1992. Mis sc

On 14 December 1992, Sta. Maria was ousted as General Manager of petitioner Morong Water District. On 24 September 1993, Maximo San Diego, petitioners officer-in-charge, filed a complaint[7] before the Office of the Ombudsman-Luzon against private respondents Sta. Maria and Censon for alleged violations of R.A. 3019, the Anti-Graft and Corrupt Practices Act and Article 217 of the Revised Penal Code on malversation of public funds. The complaint stated that respondents Sta. Maria and Censon confederated with one another and took advantage of their official positions as General Manager and Advisor, respectively, of the Morong Water District in taking from the funds of the said office the amount of P33,190.75 for the purpose of paying for the design of MOWAD Wawa, San Juan, Morong project. The complaint alleged that no such design was made, and that respondents made it appear that the amount of P15,000.00 was given to a certain Engineer Ricardo Reyes when in fact, they personally pocketed the aforesaid amount and the rest was spent in installing the water connections of the new market site of Morong, Rizal. As proof, petitioner attached the joint affidavit [8] of its Bookkeeper, Cashier and Finance Manager and a certification[9] from the Local Water Utilities Administration that no person by the name of engineer Ricardo Reyes has ever been employed by their agency. Respondents denied the charges in their respective counter-affidavits. Mis spped In her counter-affidavit, respondent Emma Censon denied receiving the amount of P15,000.00 as charged. She claimed that she was not the custodian of petitioners funds and that she did not have any participation in the preparation and execution of disbursement vouchers covering the release of funds.[10] For his part, respondent Edgard Sta. Maria stated in his counter-affidavit that he was forcibly ousted as petitioners General Manager on 14 December 1992 due to the criminal and administrative complaints he lodged against some members of petitioners Board of directors. In view of their subsequent indictment, the said officials vowed to get even with him by filing various complaints against him. With respect to the design for the Wawa Project, he claimed that he sent a letter dated March 29, 1993 to the Chairman of the Board, Mr. Aniceto Mateo, informing him that the original detailed design plans and drawings of the project were left at petitioners office. He likewise averred that the present complaint is closely interrelated with another case, docketed as Civil Case No. 492-M, pending with the Regional Trial Court of Morong, Rizal.[11] On March 28, 1994, public respondent, through Graft Investigation Officer Aleu A. Amante, issued the questioned Resolution dismissing the compliant. The resolution stated that "(a)fter a meticulous examination of the records of the case, there is no sufficient evidence to establish a probable cause for malversation or violation of RA 3019." [12]Spped On 6 May 1994, petitioner filed a motion for Reconsideration [13] of the above Resolution. On May 27, 1994, public respondent, through Graft Investigation Officer Wilfredo L. Pacasio, issued the questioned Order dismissing the Motion for Reconsideration. The Order first noted that the motion for reconsideration did not raise any new issues and did not adduce any newly discovered evidence. Instead of dismissing the motion outright on this ground, the Office of the Ombudsman made an extended discussion of the issues raised by petitioner. It was emphasized that the evidence on record, particularly the "journal voucher" and "reimbursement expense receipt", indubitably disclosed that the sum allegedly misappropriated had, in fact, been duly liquidated by the respondents. Moreover, the Ombudsman stated that the version of the respondents was more logical, natural and

believable. Finally, public respondent states that the allegation of conspiracy had not been fully substantiated and thus, the inclusion and joiner of respondent Emma Censon had no legal justification. Public respondent thus dismissed the motion for reconsideration and affirmed its Resolution dated 28 March 1994. Petitioner now comes to us by way of the instant Petition for Certiorari. Petitioner grounds the instant petition on the following allegation: Jo spped "(The) Hon. Office of the Deputy Ombudsman acted arbitrarily, whimsically and with grave abused (sic) of discretion and authority dismissed OMB Case No. 0-93-2579 when in the conduct of the preliminary investigation Respondents biasely (sic) disregarded the evidence in the record which clearly established a prima facie case of malversation as supported by the facts, the law and existing jurisprudence." [14] There is no merit in the petition. At the outset, a reading of the petition shows that the issues raised refer primarily to the findings of fact made by the respondent public officials. On this point, it must be stressed that any appeal or application for remedy against a decision or finding of the Office of the Ombudsman may only be entertained by the Supreme Court, on pure question of law. [15] Section 14 of Republic Act No. 6770, the Ombudsman Act of 1989, provides that "(n)o court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court on pure question of law." Moreover, Section 27 of the said Act provides further that "(f)indings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive." A thorough examination of the questioned Order and Resolution of the Office of the Ombudsman and the records of the case reveal that the findings of fact made by the Ombudsman are supported by substantial evidence on record. Spped jo Petitioners main contention in its complaint before the Office of the Ombudsman is that private respondents conspired with each other in withdrawing the amount of P33,190.75 from the coffers of petitioner and then pocket P15,000.00 for their own personal use.[16] On this point, we note with approval the following pronouncement of the Office of the Ombudsman: "After a meticulous examination of the records of the case, the undersigned finds that there is no sufficient evidence to establish a probable cause for malversation or violation of R.A. 3019 for that matter, and that respondents are probably guilty thereof. There is no question that respondent Edgard Sta. Maria is the payee of Cash Voucher No. 3150 dated August 3, 1992. On the face of the said cash voucher, it is disclosed that it was prepared by the Bookkeeper, certified as to the availability of funds by the Finance Officer and the check prepared by the Cashier. It is also disclosed by the same document that the cash advance was to be used for the design and execution of Project Wawa Pipeline Extension. As regards, therefore, to the participation of respondent Emma Censon it is very clear that she has nothing to do with the cash advance of P33,190.73. With respect to respondent Edgard Sta. Maria, obviously he has the duty to liquidate the said cash advance. However, complainants Annex "B" which is a general ledger of account, disclose that the amount of P16,790.40 was diverted to Paglabas Pipeline Extension, but which diversion was authorized by the Board of Directors as per Board Meeting of October 9, 1992. It is worthy to note that this general ledger was signed by complainants witnesses, the Bookkeeper and the Finance Manager,

in the same manner that they affixed signatures on the cash voucher, together with the cashier. Miso Going back to respondent Sta. Marias duty to liquidate or account for the said cash advance, the evidence of complainant also shows that the P16,790.40 was duly receipted by the Filacon Enterprises for the amount of 4 rolls of P.S. Tubing (32 pieces) 1 x 100 cm. It cannot be said therefore, that the amount of P16,790.40 was misappropriated by respondent Sta. Maria for his personal benefit. As to the remaining balance of P15,000.00 which allegedly was pocketed by respondent instead of using the same in payment in payment of the design for the Wawa project, there also appears a reimbursement expense receipt which is attached by the complainant as its Annex "D." The same was signed by a certain civil engineer Ricardo Reyes. The latter attested that he received the amount as partial payment for the design. Complainants claim that Ricardo Reyes is a fictitious person is based on the certification from the Local Water Utilities Administration that he is not an employee therein. The reimbursement expense receipt did not however state that Engineer Ricardo Reyes is an employee of LWUA. Hence, the certification of said agency will not be conclusive evidence of Ricardo Reyes being a fictitious person, as there was no representation of said fact in the reimbursement receipt." [17] The above-quoted portion of the questioned resolution clearly shows that the findings of the Office of the Ombudsman regarding the liability of private respondents are supported by substantial evidence. The conclusion that the amounts allegedly malversed by private respondents were actually liquidated by them finds support not only in the evidence of private respondents but even in the evidence submitted by petitioner in its complaint. Such factual findings of the Office of the Ombudsman deserve due respect from the Supreme Court and should not be disturbed on appeal.[18] Despite a clear showing that the issues involved in the instant petition are factual, petitioner, nonetheless, invokes the power of the court to reverse the decision of the Ombudsman by alleging that the Office of the Ombudsman acted with grave abuse of discretion and authority. Petitioner claims that the public respondents acted arbitrarily and whimsically in disregarding the evidence on record which allegedly clearly show a prima facie case for malversation. Nex old We have closely examined the issues raised in the present petition, the arguments in support thereof, as well as the comments of the respondents thereon and the reply thereto and we find that the petition fails to show a grave abuse of discretion or any act without or in excess of jurisdiction on the part of private respondents. The public respondents act of dismissing the complaint against herein private respondents is neither whimsical or capricious. In fact, the complaint of petitioner was taken up by the Office of the Ombudsman in two extended discussions. Such fact virtually dispels any allegation that arbitrariness or abuse of discretion attended the resolution of petitioners complaint. The act of the Ombudsman is dismissing the complaint is an exercise of the Ombudsmans powers based upon constitutional mandate and the courts should not interfere with such exercise.[19] 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, the functions of the Court will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it.

One final point. Petitioner likewise contends that the Office of the Ombudsman erred in stating that demand from the Commission on Audit to settle or liquidate the amount is needed before a case for malversation can mature. Citing the case of U.S. vs. Saberon, [20] the petitioner argues that demand need not be made by the Commission on Audit as it is sufficient that there is a law or regulation requiring the public officer to render an accounting. Mani kx There is merit in petitioners contention although his reliance on the cited case is misplaced. The Saberon case is not applicable as it deals with a violation of Article 218 of the Revised Penal Code for failure of accountable officers to render accounts. On the other hand, the instant case involves a violation of Article 217 of the Revised Penal Code for malversation of public funds and property which is entirely separate and distinct from Article 218. Petitioner should have cited the case of People vs. Tolentino[21] which held that previous demand is not necessary for violation of article 217 in spite of the last paragraph of the said provision. The last paragraph of article 217 provides only for a rule of procedural law. More recently, in the case of Nizurtado vs. Sandiganbayan,[22] the Court stated in this regard that "(d)emand merely raises a prima facie presumption that missing funds have been put to personal use. The demand itself, however, is not an element of, and not indispensable to constitute, malversation." Maniks Be that as it may, this is still no reason to overturn the assailed Order and Resolution of the Office of the Ombudsman. The holding of the Office of the Ombudsman that no demand was made by the Commission on Audit is not the main reason why petitioners complaint was dismissed. As stated previously, the Office of the ombudsman dismissed the complaint as it found that there was no sufficient evidence to establish probable cause against private respondents for malversation or violation of R.A. 3019. In sum, the order and the Resolution of the Ombudsman are based on substantial evidence. In dismissing the complaint of petitioner, we cannot say that the Ombudsman committed grave abuse of discretion so as to call for the exercise of our supervisory powers over him. This court is not a trier of facts. As long as there is substantial evidence in support of the Ombudsmans decision, that the decision will not be overturned. [23] WHEREFORE, premises considered, the instant petition is DISMISSED. The Resolution dated March 28, 1994 and the Order dated May 27, 1994 of the Office of the Ombudsman are hereby AFFIRMED. SO ORDERED. Manikan G.R. No. L-6805 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. PEDRO LANCANAN, defendant-appellee. Office of the Solicitor General Juan R. Liwag and Solicitor Jose G. Bautista for Plaintiff. Valeriano C. Lancanan for appellee. Labrador, J.: This is an appeal from an order of the Court of First Instance of Samar, dismissing an information on a motion to quash. The motion to quash is based on the alleged failure of the information to allege facts sufficient to constitute a cause of action.

The principal allegations of the information which originated this criminal case are: That on or about the 13th day of November, 1951 the above-named accused, being then the Chief of Police and while entrusted with the custody or charge and vigilance of (name of persons detained), who were detention prisoners , then and there willfully, unlawfully and feloniously consent to the escape of said prisoners and evade detention by releasing them without the order of the court . The motion to quash alleged: The original complaint for Illegal Possession of Firearms in Criminal Case No. 2580 was filed on December 19, 1951 although the six accused were arrested without warrant on November 12, 1951 at about 9:30 in the evening. The fact therefore is clear that on November 13, 1951 when these six persons were allegedly released by the accused, there was no pending charge against them. The provincial fiscal opposed the motion to quash, alleging that it is not predicated on the insufficiency of the facts alleged, but on the claim that the persons released were not yet charged with any valid complaint on November 13, 1951, so their release was made when they were not yet prisoners detained by a court order facts which do not appear in the information, but which go to the merits of the case. The court a quo examined the records of the case and found that on November 12, 1951, the complaint was sworn to before the municipal mayor. It was to be presented to the Justice of the Peace, but the latter was absent; as a matter of fact the following note was placed on the complaint RECEIVED AND FILED THIS 12TH DAY OF NOV. 51, but no signature appears on the typewritten name of the justice of the peace below the note. Below the above note, the following note appeared RECEIVED AND REFILED THIS 19TH DAY OF DECEMBER, 1951, under which appeared the signature of the justice of the peace. There were affidavits attached to the complaint, also dated November 12, 1951, but nowhere does it appear that the municipal mayor made a preliminary investigation, or issued a warrant for the arrest of the accused therein. On the basis of the above facts and findings the trial court held that the herein accused Pedro C. Lancanan has not committed the crime of infidelity in the custody of the prisoners and ordered the dismissal of the case. The first error imputed to the trial court is its consideration of facts not alleged in the information. The facts, however, are apparent from the record and these facts are not denied by the provincial fiscal. Though they may not constitute admissions on the part of the fiscal, they certainly fall within the spirit and principle contained in People vs. Navarro, 75 Phil. 516. We find no difference between facts merely admitted and undeniable facts appearing on the record of a case. If one is allowed, there is no reason for denying admission of the other. As the facts are clear and not susceptible of contradiction, it would be idle ceremony to return the case to the trial court for trial at which the same facts of record will have to be introduced. It seems more in accord with expendiency for us to overlook the technical irregularity that the trial court is claimed to have committed, which

irregularity we do not here admit to exist because it was sanctioned by us in the case of Navarro, supra, and proceed to determine the validity of the order of the court on the basis of the facts found in the record, rather than remand the case to the trial court. The claim that the court acted improperly in the consideration of the motion to quash must be dismissed. The conclusion of the trial court that the case was not filed until December 19, 1951 is borne out by the record and is correct. The note RECEIVED AND FILED THIS 12TH DAY OF NOV. 1951 with the typewritten name of the justice of the peace, but without his signature, shows that the complaint was merely intended to be filed with said official. If the mayor had intended to receive it for filing, he should have signed the above note. There was, therefore, merely an attempt and intent to file it with the justice of the peace, which attempt was not carried out because the justice of the peace was absent. An attempt to file, which was not carried out because the official before whom it was to be presented for filing was absent, can not be confused with actual filing. And swearing a complaint before a municipal mayor is no filing either. The latter official is not a clerk or officer of the court; no provision of the rules authorizes him to act for and on behalf of the justice of the peace in the acceptance of complaints for filing. The fact also that the justice of the peace on December 19, 1951 may have believed that on that day the complaint was being refiled, is no reason why we may conclude that it was filed previously, i. e. on November 12. The alleged error imputed to the trial court for dismissing the complaint is, therefore, also without merit. For the foregoing reasons, the order appealed from is hereby confirmed. Without costs. Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo and Concepcion, JJ., concur. EN BANC G.R. No. L-48398 November 28, 1942

MELCHOR V. KATANIAG, Petitioner, vs. THE PEOPLE OF THE PHILIPPINES, Respondent. MORAN, J.: chanrobles virtual law library 1. CRIMINAL LAW; INFIDELITY IN THE CUSTODY OF PUBLIC DOCUMENTS; ESSENTIAL ELEMENTS. - Whether during or after office hours, if the removal by a public officer of any official document from its usual place of safe-keeping is for an illicit purpose, such as to tamper with or to otherwise profit by it, or to do in connection therewith an act which would constitute a breach of trust in his official care thereof, the crime of infidelity in the custody of public documents is committed. On the other hand, where the act of removal is actuated with lawful or commendable motives, as when the public officer removes the public documents committed to his trust for examination in connection with official duty, or with a view to securing them from imminent danger of loss, there would be no crime committed under the law. This is so, because the act of removal, destruction or concealment of public documents is punished by law only when any of such acts would constitute infidelity in the custody thereof. Several circumstances are set out in the body of the decision to show

conclusively that in the instant case there has been a removal effected for illicit purposes.chanroblesvirtualawlibrary chanrobles virtual law library 2. ID.; ID.; ID.; REMOVAL NEED NOT BE COUPLED WITH PROOF OF INTENTION TO CONCEAL; STATUTORY CONSTRUCTION. - To warrant a finding of guilt of infidelity in the custody of public documents, it is not necessary that the act of removal must be coupled with proof of intention to conceal. The law punishes "any public officer who shall remove, destroy or conceal documents or papers officially entrusted to him." (Art. 226, Revised Penal Code.) The word "or" is a disjunctive conjunction which, in the ordinary usage, signifies dissociation and independence of one thing from each of the other things mentioned. While in the interpretation of statutes, "or" may read "and" and vice versa, it is so only when the context so requires. And, in the instant case, there is nothing in the context of the law which would require the giving to the conjunction "or" a meaning different from its ordinary usage. Accordingly,removal, destruction and concealment must be viewed as distinct modes of committing the offense.chanroblesvirtualawlibrary chanrobles virtual law library 3. ID.; ID.; ID.; DAMAGE TO PUBLIC INTEREST OR TO THIRD PARTY. - Upon the matter of damage to public interest or to third party, it is true that such damage must be actual and not hypothetical. But an actual damage need not necessarily be pecuniary or material. It may consists in mere alarm to the public or in the allienation of its confidence in any branch of the government service. In the instant case, aside from the necessity of maintaining the integrity of public records, the removal for illicit purposes by petitioner of the documents in question from their usual place of safekeeping against the strictest surveillance ordered buy the higher authorities and in the midst of the immigration scandal when the probe was in full swing, constitutes such a perversity of officials. Such effect constitutes damage to public interest, and such damage is, under the circumstances stated, unquestionably a serious one.chanroblesvirtualawlibrary chanrobles virtual law library 4. ID.; ID.; CRIME COMMITTED IS CONSUMMATED AND NOT MERELY ATTEMPTED. - Petitioner has committed not merely the attempted but the consummated crime of infidelity in the custody of public documents. True, at the moment of his arrest the records he was caught carrying with him were intact, but as he had already succeeded in removing or secreting away the documents in question from his office, for he was caught carrying them after he had locked the door of his office and was already out walking through the lobby towards the main door of the building, the crime of removal of public documents summated, it being immaterial whether he has or has not actually accomplished moved said documents. G.R. No. 89043-65 July 16, 1990 JOSE R. VELOSO, petitioner, vs. SANDIGANBAYAN (Second Division) and the PEOPLE OF THE PHILIPPINES, respondents. Amado A. Caballero for petitioner.

CORTES, J.: This is a petition to review the decision of the Second Division of the Sandiganbayan in Crim Cases Nos. 2073-2095 and 33233345 insofar as it finds petitioner Jose R. Veloso guilty as coprincipal in the complex crimes of Estafa thru Falsification of Public Documents, as defined

and penalized under Article 318 Revised Penal Code.

and 171, paragraph 4,2 in relation to Article 48,

of the

The nature of the cases filed before the Sandiganbayan was as follows: For defrauding the Government in the amount of Nine Hundred Eighty- Two Thousand Two Hundred Seven Pesos and Sixty Centavos (P982,207.60) through the illegal and unauthorized issuance of fake Letters of Advice of Allotments and Cash Disbursement Ceilings and the tampering and falsifications of General Vouchers and supporting documents, the following officials and employees of the Ministry of Public Highways Central Office, Regional Office No. VII and the Siquijor Highway Engineering District, together with contractors Clodualdo Gomilla, Juliana de los Angeles and Manuel Mascardo, were charged with forty-six (46) counts of Estafa thru Falsification of Public Documents: (1) Rolando Mangubat, Angelina Escano, Chief Regional Accountant and Regional Finance Officer, respectively, of the 7th Highway Regional Office in Cebu City; Wilfredo Monte, Zosimo S. Dinsay, Cresencia L. Tan, Isaac T. Mananquil, Trinidad T. Manloloyo, Aurelio M. de la Pena Eugenio S. Machan, Ediltrudes Kilat Jose R. Veloso, Regino Junawan Arsenio Pakilit Juan Sumagang, Francisco Ganhinhin and Urbano Arcamo, the Civil Engineer, Senior Civil Engineer, Accountant I, Highway District Engineer II, Assistant Highway District Engineer, Administrative Officer, Property Custodian, Auditing Aide Auditor, Auditing Examiner, Senior Civil Engineer, Crewman and Auditing Aide respectively, of the Siquijor Highway Engineering District (SHED) in Crim. Cases Nos. 20732095, and (2) Manuel de Veyra, Regional Director, Basilisa Galwan Budget Officer, Matilde Jabalde, Supervising Accounting Clerk, Josefina Luna, Accountant II, Jose Sayson, Budget Examiner, of the Department of Public Works and Highways, Region VII, Cebu City; Leonila del Rosario, Chief, Finance and Management Service, Engracia Escobar, Chief Accountant, Abelardo Cardona, Asst. Chief Accountant and Leonardo Tordecilla, Supervising Accountant, of the Department of Public Works and Highways, Central Office, Manila, in Crim. Cases Nos. 33233345 [Decision, pp. 7-8; Rollo, pp. 37-38.] Petitioner, together with accused Mangubat, Mananquil, Monte, Machan Tan, Ganhinhin, Manloloyo, de la Pea Dinsay, Kilat Jumawan, Pakilit Arcamo, Sumagang and Gomilla were found guilty as co-principals and sentenced in each of twenty-three (23) cases (Crim. Cases Nos. 2073-2095) to suffer imprisonment of from four (4) years, two (2) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, to pay a fine of One Thousand Five Hundred Pesos (P1,500.00) in each case and to indemnify the government in amounts varying from case to case. Those found guilty filed separate motions for reconsideration but these were denied by the Sandiganbayan. Thus, this petition by Jose R. Veloso. Petitioner does not dispute the finding that there were anomalies in the Siquijor Highway Engineering District (SHED) Neither does he dispute the existence of a conspiracy between the suppliers and certain government officials and employees. What he vehemently denies is the Sandiganbayan's finding that he was a conspirator. Thus, for purposes of this petition we will no longer inquire into whether or not the offenses charged were in fact committed, but shall limit ourselves to the issue of whether or not petitioner's participation in the criminal conspiracy has been established beyond reasonable doubt.

The Sandiganbayan found that petitioner's liability, as District Auditor, emanated from his irregular and improper processing, pre-audit and approval of all the general vouchers and checks in question, based on irregular or fake supporting papers. The graft court found that he also signed and passed in audit the vouchers and checks knowing that these were illegally funded and improperly charged to "Fund 81-400" (the prior year's obligations), and engaged in "splitting," so that he would be the one to pass the vouchers in audit when such should have been forwarded to the Commission on Audit (COA) Regional Auditor for action or review, [Decision, p. 83; Rollo, p. 113.] The Sandiganbayan described the details of the "splitting" resorted to as follows: Fifthly, based on the foregoing, the Court finds that the accused district officials resorted to "splitting" of RSEs, POs (Purchase Orders) and GVs in order to avoid review or approval by higher authorities. Under COA Circular No. 76-41, dated July 30, 1976, in relation to COA Circular No. 16-16A, dated February 10, 1976, of which the Court takes judicial notice, it is provided that "Resident Auditors of bureaus, offices and agencies of the National Government in Metropolitan Manila, as well as other Auditors 3 for District/City Highway, Public Works/School, State Colleges and Universities, Military Areas and Zones outside Metropolitan Manila, are authorized to countersign checks and warrants in amounts not exceeding P50,000.00 in each case" (Emphasis supplied). Consequently, all GVs in amounts exceeding P50,000.00 must have to be processed, pre-audited and approved by the Regional Auditor of the COA, instead of (SHED) resident auditor Jose Veloso, one of the accused herein. Thus, in the very wording of COA Circular No. 76-41, "to avoid action, review or approval by higher authorities", the district officials herein resorted to the splitting of the RSEs, POs and the GVs involved in the fake LAA dated October 6, 1977 in the amount of P200,000.00. Said LAA evolved into three (3) separate transactions involving the amounts of P48,480.00, P48,480.00 and P48,189.60 as evidenced by three GVs dated December 21, December 21 and December 23, 1977, respectively. Otherwise, if such transactions were to be reviewed and pre-audited by the Regional (COA) Auditor, who might be averse to joining the conspiracy, then the GVs and supporting papers may be found to be the result of (1) inexistent programs of work, (2) illegal funding, (3) irregular or non-existent bidding, (4) fictitious deliveries and inspection, and other anomalies. Consequently, the Court considers such "splitting" as an integral and/or essential element or link in the conspiracy to defraud the Government inasmuch as such practices was (sic) consciously and deliberately resorted to in order to hide the massive and stupefying misappropriations being undertaken by the accused herein. [Decision, pp. 75-76; Rollo, pp. 105-106; underscoring in the original. But petitioner vigorously argues his innocence, alleging his non- participation in the conspiracy and his good faith in attaching his signature to the documents involved. He contends that it has not been shown that he falsified any of the documents which the Sandiganbayan found to be falsifications. Thus, while he admits that he signed the general vouchers, he claims that his act of doing so was merely ministerial considering that all the supporting papers and documents were submitted and attached to the vouchers. He continues that he could not question the veracity of the prepared Letters of Advice of Allotments (LAA) and Sub-Advices of Cash Disbursement Ceiling (SACDC) since these documents, with the program of work accompanying them and other inspection reports, gave him the go-signal to pass them in audit. Thus, he claims that the vouchers would have been cleared even without his signature as they were supported by the required documents and certifications.

This argument cannot be given much weight. It has already been rejected by the Sandiganbayan in this wise: xxx xxx xxx None of the accused regional and district officials can claim good faith or reliance on the regularity of the documents processed and signed by them or on the presumption that their subordinates and/or superiors have acted regularly, since by the very nature of their duties, they should have known or realized by mere scrutiny of the documents or by the exercise of ordinary diligence that there were irregularities or anomalies reflected on their very faces. This is simplified by several circumstances patent on said documents, to wit, the irregular funding of the LAAs the improper charging to prior year's obligations; the unauthorized and/or improper action by officials on the supporting documents; the lack or incompleteness of supporting documents, and the splitting of payments. Neither can the accused-contractors claim good faith likewise and reliance on the actuations of their co-accused public officials since they knew fully well that their participation in the transactions under question were only make believe or a farce and that their names, business standing and signatures were only utilized, with their whole-hearted cooperation, in seeking the consummation of their plans to defraud the government. xxx xxx xxx [Decision, pp. 85-86; Rollo, pp. 115-116; emphasis supplied] Clearly, given his acts and omissions in auditing the documents, which related not only to one but to several transactions, petitioner's participation in the conspiracy to defraud the Government has been established beyond reasonable doubt. It is well-settled that there need not be direct evidence of the existence and details of the conspiracy [People v. Romualdez, 57 Phil. 148 (1932); People v. Cadag, G.R. No. L-13830, May 31, 1961, 2 SCRA 388.] Like the guilt of the individual offender, the existence of a conspiracy and a conspirator's participation may be established through circumstantial evidence [ Ibid.] Petitioner, as resident auditor of the SHED was tasked with ensuring the regularity of all transactions that are subject to his review. In these cases, he had before him, for his signature, vouchers that were patently irregular, supported by similarly irregularly issued documents, which he should not have passed in audit. Instead of refusing to affix his signature and reporting the irregularities to his superiors, as he was duty bound to do, he turned a blind eye and signed the documents, completing the process that led to the consummation of the crime. He can not rely on the excuse that his subordinates have already initialed the documents for his signature because his function, as their superior, is to check on their work and to ensure that they do it correctly. Otherwise, if his signature was a superfluity, petitioner would be serving no useful purpose in occupying his position of resident auditor. The number of transactions in which petitioner is involved and the magnitude of the amount involved also prevent a reasonable mind from accepting the proposition that petitioner was merely careless or negligent in the performance of his functions He passed in audit twentyfour (24) general vouchers which resulted in the issuance of twenty-three (23) checks amounting to Nine Hundred Eighty-Two Thousand Two Hundred Seven Pesos and Sixty

Centavos (P982,207.60).itc-asl Moreover, the irregularities were not of the kind that could have gone unnoticed by the trained eyes of an auditor. Finally, it may be that petitioner has already been administratively penalized for his malfeasance, as in fact he was suspended for one (1) year without pay [Annex "A" of the Reply; Rollo, pp. 189- 200], but such will not bar his conviction under the general penal laws. Administrative liability is separate and distinct from penal liability. In sum, no reversible error was committed by the Sandiganbayan in adjudging petitioner guilty beyond reasonable doubt of the crime charged. WHEREFORE, the petition is hereby DENIED, and the decision of the Sandiganbayan, insofar as it relates to petitioner, is AFFIRMED. SO ORDERED. Fernan (C.J.), Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea and Regalado JJ., concur G.R. No. L-30306 June 20, 1969

JOSE C. LUCIANO, petitioner, vs. THE PROVINCIAL GOVERNOR, and/or THE PROVINCIAL BOARD, both of the Province of Rizal; MAYOR MAXIMO ESTRELLA, VICE-MAYOR TEOTIMO GEALOGO, COUNCILORS JUSTINO VENTURA, PEDRO ISON, IGNACIO BABASA and BERNARDO NONATO, all of the Municipality of Makati, Province of Rizal; THE HONORABLE JUDGES DELFIN B. FLORES and HERMINIO C. MARIANO, both of the Court of First Instance of Rizal; and THE HONORABLE COURT of APPEALS, respondents. Salonga, Ordoez, Sicat, Yap and Associates and Amelito Mutuc for petitioner. Neptali Gonzales for respondents. SANCHEZ, J.: The petition now before us, originally for mandamus filed by Jose C. Luciano, Councilor of Makati, Rizal, who received the highest number of votes in the last general elections of 1967, to compel the Provincial Governor and/or the Provincial Board of Rizal under Section 13 of the Anti-Graft and Corrupt Practices Act to suspend Makati Mayor Maximo Estrella and others, soon branched out to include quo warranto to have petitioner declared to be entitled to act as Mayor of Makati, Rizal and, thereafter, further expanded to add a prayer for injunction against newly named party respondents, Judges Delfin B. Flores and Herminio C. Mariano, both of the Court of First Instance of Rizal, and the Court of Appeals, because said judges and the Court of Appeals have restrained or enjoined the suspension of Mayor Estrella and others. It may be well to state right at the outset that the issues herein may not perhaps be properly understood unless the necessary facts are presented in their peculiar setting, thus: In the general elections of November 14, 1967, the following were declared elected municipal officials of Makati, Province of Rizal; Mayor Maximo B. Estrella; Vice-Mayor Teotimo Gealogo; Councilors (1) Jose C. Luciano, (2) Justino Ventura, (3) Johnny Wilson, (4)

Pedro P. Ison (5) Bernardo P. Nonato, (6) Ignacio C. Babasa, (7) Juan E. Tengco, and 8) Cesar C. Alzona. On January 18, 1969, First Assistant Provincial Fiscal B. Jose Castillo instituted Criminal Case 18821 in the Court of First Instance of Rizal against Makati Mayor Maximo Estrella, Vice-Mayor Teotimo Gealogo, Councilors Justino Ventura, Pedro Ison, Ignacio Babasa, and Bernardo Nonato (respondent elective municipal officials) and others, for violation of Sections 3-G and 4-B of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. 1 The criminal information therefor substantially charged that, on or about July 26, 1967, Mayor Estrella and his co-accused, conspiring and confederating together, unlawfully entered into a contract with JEF Enterprises for delivery and installation of 59 traffic deflectors valued at P1,426.50 each, 34 units thereof having been delivered, installed and paid for in the total amount of P48,841.00, less 10% which was retained, such contract being manifestly and grossly disadvantageous to the municipal government of Makati and to the latter's prejudice. Because of the pendency of the foregoing case, the Provincial Governor requested the Provincial Fiscal for legal advice as to whether Mayor Estrella and other municipal officials charged were to be suspended by him or not. The Provincial Fiscal, in turn, asked the Secretary of Justice, Hon. Juan Ponce Enrile, for guidance. On February 12, 1969, the Secretary of Justice rendered the opinion sought declaring that under Section 13 of Republic Act 3019, it was the mandatory duty of the Provincial Governor to suspend Mayor Estrella and the other elective municipal officials who were prosecuted with the latter, pending final judgment in Criminal Case 18821. The Secretary's opinion was, on February 26, forwarded by the Fiscal to the Governor. On that same day, February 26, respondent elective municipal officials of Makati registered an injunction suit Civil Case 11593 in the Court of First Instance of Rizal, against the Provincial Governor, to prevent the latter from suspending them. 2 Averment was there made, amongst others, that the suspension threatened by the Governor before the final determination of the criminal case and/or administrative charge against plaintiffs therein was violative of constitutional due process and that the power of preventive suspension is now vested exclusively in the Provincial Board pursuant to Section 5 of the Decentralization Act of 1967 and in line with our decision inSarcos vs. Castillo (G.R. No. L29755, January 31, 1969), 26 SCRA 853. On February 27, 1969, respondent Judge Delfin B. Flores issued ex-parte in said Civil Case 11593 a restraining order directing the Provincial Governor "to refrain or desist from suspending" respondent municipal officials. Subsequently, on April 26, 1969, Judge Flores replaced the restraining order with another for the issuance of a writ of preliminary injunction in favor of herein respondent municipal officials upon a P5,000-bond. In the meanwhile, on March 18, 1969, as stated at the start of this opinion, petitioner, in his capacity as No. 1 Councilor of Makati and as a private citizen residing in Makati, commenced the present mandamus proceedings in this Court; on March 25, 1969, the mandamus petition was amended to include quo warranto as another cause of action and to implead respondent local officials of Makati. Then, on May 17, 1969, Judge Andres Reyes rendered judgment in Criminal Case 18821 earlier adverted to. Herein respondent municipal officials, with others, were convicted. The dispositive portion of the decision material to the present case reads: IN VIEW OF THE FOREGOING, the Court finds the accused Mayor Maximo Estrella and the Councilors Teotimo Gealogo, 3 Justino Ventura, Pedro Ison, Ignacio

Babasa and Bernardo Nonato, the Municipal Treasurer Eduardo S. Francisco, the Provincial Auditor Gualberto San Pedro, the Chief of Police Jose San Mateo and the Chief of the Traffic Control Bureau, Lutgardo Ambrosio, all of the municipality of Makati, Province of Rizal, guilty beyond reasonable doubt, of violating Section 3, paragraph G of Republic Act 3019 otherwise known as Anti-Graft and Corrupt Practices Act, as charged in the Information, and sentences each of them to suffer imprisonment for a period of SIX (6) YEARS. In addition to this, the same accused are hereby perpetually disqualified to hold office. Sec. 13 of R.A. No. 3019 states that the accused shall be suspended from office upon the filing of the Information. The law is wise, for a public official who has violated his oath of office by committing graft and corrupt practices should not stay in office even for a single minute until he is cleared of those charges. If the accused should be suspended upon the filing of the information, there is more reason to remove them after a judgment of conviction. After all, if eventually they are exonerated, they are entitled to reinstatement and all the benefits attached to their office during suspension. In view thereof, the Provincial Sheriff of Rizal is hereby ordered to remove said accused, namely: Maximo Estrella, Teotimo Gealogo, Justino Ventura, Pedro Ison, Ignacio Babasa, Bernardo Nonato, Eduardo S. Francisco, Gualberto San Pedro, Jose San Mateo and Lutgardo Ambrosio, from office immediately and to furnish the Court a return hereof within twenty-four (24) hours upon receipt of a copy of this decision.1awphil.nt Per the Sheriff's return and supplemental return, he was unable to implement the order of "removal" of the accused Mayor, Vice-Mayor and Councilors within the 24-hour period as directed by the decision of Judge Reyes because they could not be located and because he (the sheriff) was served with a temporary restraining order emanating this time from respondent Judge Herminio C. Mariano of the same Court of First Instance of Rizal. The temporary restraining order last mentioned came about in this manner: On May 20, 1969, Mayor Estrella and his Secretary, Ciriaco Alano, filed in the Court of First Instance of Rizal (Civil Case 11802, entitled "Ciriaco Alano and Maximo Estrella, Petitioners, versus Jose Luciano, Respondent") what appears to be a case for injunction with prayer for preliminary injunction against petitioner Jose C. Luciano, to stop the latter from assuming the post of Mayor. The petition averred inter alia that although the decision of Judge Reyes ordered the removal from office of Mayor Estrella and his other co-accused within 24 hours after receipt of the decision, they appealed to the Court of Appeals on the same day that the decision was promulgated; that in view of the appeal, said decision had not become final and executory and could not be executed in any way; that said appeal notwithstanding, petitioner Luciano had publicly announced that he would assume on that day, May 20, the post of Mayor in the company of Philippine Constabulary soldiers, sheriffs and other agents and men with the threat of using force and violence; that such forcible assumption was improper and contrary to law because there was no vacancy to be filled, and even if there was, it was the Provincial Governor who could fill up the vacancy by appointment; and that petitioner Luciano also threatened to dismiss therein petitioner Ciriaco Alano. Upon the foregoing allegations, Judge Herminio C. Mariano set the hearing for preliminary injunction for May 27, 1969 and directed as follows In the meantime, and in order to maintain the status quo, respondent Jose Luciano and any and all Philippine Constabulary officers and soldiers, sheriffs, agents, and all persons acting for and in their behalf, are hereby temporarily restrained from

performing the acts sought to be enjoined, to wit, from removing or attempting to remove, in any mode or manner, the petitioners and defendants in Criminal. Case No. 18821 from their respective offices, from molesting or impeding them in the performance of their duties in any way, and from installing or placing respondent Luciano or any other persons in their offices in any way, until further orders from this Court. The May 27 hearing was held but Civil Case 11802 was ordered dismissed by Judge Mariano upon joint petition of the parties. In a separate development, on May 20, 1969 the very same day that respondent Estrella and his secretary presented in the Court of First Instance of Rizal Civil Case 11802 just mentioned Estrella and the other respondent municipal officials of Makati went to the Court of Appeals, allegedly in aid of the latter's appellate jurisdiction in Criminal Case 18821, on certiorari, prohibition and mandamus with prayer for preliminary injunction against Judge Andres Reyes and Provincial Sheriff Nicanor Salaysay, to stop the latter two in their attempt to enforce the removal order contained in the decision of Case 18821. 4 It was there alleged, amongst others, that, in view of therein petitioners' appeal, "said decision has not become final and executory and its executory or enforcement has been and is stayed"; that therein respondent Salaysay had been directed by Judge Reyes to continue to enforce and execute his decision of "removal"; and that respondent Judge Reyes threatened to cancel the bail bonds of therein petitioners and cause their arrest. On May 21, 1969, the Court of Appeals issued a temporary restraining order against therein respondents, upon a P1,000-cash bond, the pertinent part of which reads as follows: NOW THEREFORE, you are hereby ORDERED, jointly and separately, to desist from executing or enforcing the Decision in Crim. Case No. 18821 of the Court of respondent judge, from cancelling the bail bonds of the petitioners and thereafter ordering their arrest, or if the bail bonds have already been cancelled by respondent Judge, to re-instate the said bail bonds and desist from arresting the petitioners or any of them, until further orders from this Court. On June 6, 1969, after hearing, the Court of Appeals superseded the foregoing temporary restraining order with an order for the issuance of the writ of preliminary injunction upon a P1,000-bond. Meantime, on May 21, 1969, petitioner Luciano filed before this Court in the present case a motion for preliminary mandatory injunction to order the Provincial Governor and/or Provincial Board to immediately suspend respondent elective municipal officials of Makati and to either install petitioner or recognize his right as Acting Mayor pending final determination of this case. On May 22, 1969, Luciano amended the motion to include respondent Judges Flores and Mariano. On May 27, Luciano, as stated earlier, filed a reamended petition with preliminary mandatory and prohibitory injunction which also took in as respondents Judges Flores and Mariano and the Court of Appeals. On June 5, 1969, respondent municipal officials of Makati moved to dismiss the present case on the ground that petitioner Luciano had "lost any and all personality, standing and right to prosecute this case." Ground for this assertion is the fact that on May 30, 1969, Rizal Provincial Fiscal Benjamin H. Aquino, now Judge of First Instance, filed with the Rizal court a criminal information dated May 29, 1969 (Criminal Case 19346) charging herein petitioner with violation of Section 3, paragraphs (a) and (e), Republic Act 3019. 5

Parenthetically, on June 3, 1969, petitioner Luciano lodged a new and separate petition before this Court, G.R. No. L-30544, for prohibition with preliminary injunction praying that therein respondent Rizal Provincial Fiscal Aquino be prohibited from filing and causing to be docketed; the May 29, 1969 criminal information (Criminal Case 19346); that the Court of First Instant of Rizal be prohibited from accepting and/or giving due course to that information and ordering petitioner's arrest; that said criminal information be declared invalid, null and void; and that therein respondents Provincial Governor and Provincial Board be prohibited from suspending petitioner on the basis of the information aforesaid. 6 On June 5, 1969, we dismissed the foregoing petition "without prejudice to petitioner's filing in the Court of First Instance of Rizal in Criminal Case 19346 an appropriate motion praying: (1) that a preliminary investigation of the said criminal case be conducted; and (2) that the proceedings in the criminal case aforesaid be suspended pending the resolution of said motion and the result of the preliminary investigation." The returns having been filed, and hearing having been concluded, petitioner's motion for preliminary injunction here as well as the case on the merits are now submitted for decision. 1. The first problem we are to grapple with is the legal effect of the reelection of respondent municipal officials. Said respondents would want to impress upon us the fact that in the last general elections of November 14, 1967 the Makati electorate reelected all of them, except the Vice-Mayor Teotimo Gealogo, a councilor prior thereto, was elevated to vice-mayor. These respondents contend that their reelection erected a bar to their removal from office for misconduct committed prior to November 14, 1967. It is to be recalled that the acts averred in the criminal information in Criminal Case 18821 and for which they were convicted allegedly occurred on or about July 26, 1967, or prior to the 1967 elections. They ground their position on Pascual vs. Provincial Board of Nueva Ecija, 106 Phil. 466, and Lizares vs. Hechanova, 17 SCRA 58. A circumspect view leaves us unconvinced of the soundness of respondents' position. The two cases relied upon have laid down the precept that a reelected public officer is no longer amenable to administrative sanctions for acts committed during his former tenure. But the present case rests on an entirely different factual and legal setting. We are not here confronted with administrative charges to which the two cited cases refer. Here involved is a criminal prosecution under a special statute, the Anti-Graft and Corrupt Practices Act (Republic Act 3019). A cursory look at Republic Act 3019 leads one to conclude that it makes no time distinctions. Indeed, heavy compulsion there is for us to say that the Act's statement of policy clearly points the other way. Section 1 of said Act reads: "It is the policy of the Philippine Government, in line with the principle that a public office is a public trust, to repress certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto." Implicit in the foregoing lines is congressional respect for the sacredness of a public office which must be kept clear of grafting and corrupting officials who, everyone knows, are the bane of public administration. In this context, it is immaterial when a repressible act is committed by a public officer. More specifically, we cannot draw a line between acts done during a former term of office of a particular public officer and acts done during a later term. The law does not distinguish. It is impermissible for us to do so. And more. One of the penalties that attach under the Anti-Graft and Corrupt Practices Act, it must be noted, is "perpetual disqualification from public office." 7 The relevance here

of this penalty is that it extends beyond a particular term of office. For, the disqualification is perpetual. What should clinch the point is the realization that normally crime is not to be condoned. Crimes under the Anti-Graft and Corrupt Practices Act only prescribe in ten (10) years, by its Section 11. The argument that reelection condones previous criminal acts of an elective official punishable under the anti-graft legislation makes no eminent sense. For if this were so, then, after the reelection of an official, no crime committed by him prior thereto becomes repressible even if the time marked by the statute of limitations has not yet run out. Some such notion is patently offensive to the objectives and the letter of the Anti-Graft and Corrupt Practices Act. We stand the possibility of being confronted with the stark reality that an official may amass wealth thru graft and corrupt practices and thereafter use the same to purchase reelection and thereby launder his evil acts. We, accordingly, hold that under the Anti-Graft and Corrupt Practices Act, reelection of a public official does not bar prosecution for crimes committed prior thereto by said official. 2. We next consider the question: Is the suspension mentioned in Section 13 of Republic Act 3019 automatic? A view suggested is that said suspension ipso jure results upon the filing of the criminal information without the need of an act of suspension by any superior authority. Said Section 13 provides: SEC. 13. Suspension and loss of benefits. Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. The language of the law can be no clearer. It provides that any public officer charged under a valid information "shall be suspended from office." It does not say "is suspended" or "is deemed suspended." It uses the word "shall". We think it evident upon the terms of the statute that there must be someone who shall exercise the act of suspension. Adding strength to this view is that in line with the statutory text of Section 13, the suspension spoken of follows the pendency in court of a criminal prosecution under a "valid information". Adherence to this rigoristic requirement funnels us down to no other conclusion than that there must, first of all, be a determination that the information filed is valid before suspension can be effected. This circumstance militates strongly against the notion that suspension is automatic. Suspension is, however, mandatory. The word "shall" used in Section 13 is an express index of this conclusion. 8 We, therefore, hold that the suspension envisioned in Section 13 of Republic Act 3019 is mandatory but is not self-operative. 3. Proceeding from our holding that suspension is not automatic, who should exercise the mandatory act of suspension under Section 13 of the Anti-Graft and Corrupt Practices Act?

Three theories have been advanced. One is that the power of suspension where a criminal case has already been filed in court still is with the Provincial Governor, relying on Section 2188 of the Revised Administrative Code. Another is that, following the ruling in Sarcos vs. Castillo (1969), 26 SCRA 853, because the main respondents are elective municipal officials, that power of suspension must be held to repose in the Provincial Board, under Section 5 of the Decentralization Act of 1967 (Republic Act 5185). The third is that, by Section 13 of the Anti-Graft and Corrupt Practices Act, solely the court in which the criminal case has been filed shall wield the power of suspension. We opt for the third. Common sense and the scheme of the law so dictate. It is true to say that nothing in Section 13 of the Anti-Graft and Corrupt Practices Act grants with specifity upon the Court of First Instance the power to suspend an official charged with a violation thereof. It would seem to us though that suspensions by virtue of criminal proceedings are separate and distinct from suspensions in administrative cases. An accurate reading of Section 13 yields two methods of investigation, one separate from the other: one criminal before the courts of justice, and the other administrative. This is the plain import of the last sentence of Section 13, which says that if acquitted, defendant in an Anti-Graft and Corrupt Practices case "shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him." 9 Our interpretation but preserves, as it should, the substantial symmetry between the first part of Section 13 and the last part thereof just quoted. And so, there is in this legal provision a recognition that once a case is filed in court, all other acts connected with the discharge of court functions which here include suspension should be left to the Court of First Instance. Not that this view finds no statutory support. By Section 9 of the Anti-Graft and Corrupt Practices Act, the court is empowered to punish any public official committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of the law, amongst others, to "perpetual disqualification from public office." Here, the Makati elective officials heretofore named have been charged with and found guilty of a violation of Section 3 (g) of the Anti-Graft and Corrupt Practices Act and were sentenced by the court below, amongst others, to be "perpetually disqualified to hold office." Article 30 of the Revised Penal Code declares that the penalty of perpetual absolute disqualification entails "[t]he deprivation of the public offices and employments which the offender may have held, even if conferred by popular election." 10 No stretch of the imagination is necessary to show that perpetual absolute disqualification which, in effect, is encompassed in the punishment set forth in Section 9 of the Anti-Graft and Corrupt Practices Act covers that of removal from the office which each of the respondent municipal official holds. Since removal from office then is within the power of the court, no amount of judicial legerdemain would deprive the court of the power to suspend. Reason for this is that suspension necessarily is included in the greater power of removal. 11 It is without doubt that Congress has power to authorize courts to suspend public officers pending court proceedings for removal and that the congressional grant is not violative of the separation of powers. For, our Constitution being silent, we are not to say that from Congress is withheld the power to decide the mode or procedure of suspension and removal of public officers. 12 A look into the legislative intent, along with the legislative scheme, convinces us the more that the power of suspension should be lodged with the court. While the law may not be a model of precise verbal structure, the intent is there. Section 13 requires as a precondition of the power to suspend that there be a valid information. Validity of information,

of course, is determined by the Court of First Instance where the criminal case is pending. That is essentially a judicial function. Suspension is a sequel to that finding, an incident to the criminal proceedings before the court. Indeed, who can suspend except one who knows the facts upon which suspension is based? We draw support from Lason vs. Roque, supra, at page 469: "We are certain that no authority or good reason can be found in support of a proposition that the Chief Executive can suspend an officer facing criminal charges for the sole purpose of aiding the court in the administration of justice. Independent of the other branches of the Government, the courts can well take care of their own administration of the law." The Anti-Graft and Corrupt Practices Act, an important legislation, should not be artificially construed so as to exclude the courts from the power to suspend a prime tool designed by Congress to prevent the power which an official wields from frustrating the purity and certainty of the administration of justice. Surely, we should not be pedantically exacting in reading its provisions. We should rather say that if the court's power of suspension incident to the court proceedings is to be withheld or narrowed by construction, Congress should have spelled it out in no uncertain terms. It has done so in Section 16, Police Act of 1966 (Republic Act 4864), when it said: SEC. 16. Suspension of Members of the Police Force or Agency . ... When a member of the police force or agency is accused in court of any felony or violation of law by the city or municipal attorney or by the chief of the municipal police or the provincial or assistant provincial fiscal or city or assistant city fiscal, as the case may be, the city mayor or municipal mayor concerned, shall immediately suspend the accused from office pending the final decision by the court, and in case of acquittal, the accused shall be entitled to immediate reinstatement and the payment of the entire salary he failed to receive during his suspension: Provided, however, That trial and disposition of criminal cases against members of the police forces shall be accorded priority by the courts. 13 Not that the view we take of the statute may be taken as an encroachment upon the power of suspension given other officials. As adverted to elsewhere, a line should be drawn between administrative proceedings and criminal action in court one is apart from the other. Were this merely a case where respondent municipal officials were subjected to administrative investigation, we would not hesitate to say that, as we have ruled in Sarcos vs. Castillo, supra, the Provincial Board of Rizal may take a hand. We must have to harmonize the Decentralization Act of 1967 with the Anti-Graft and Corrupt Practices Act. When Section 5 of the Decentralization Act of 1967 governing "Suspension and Removal of Elective Local Officials" upon which the Sarcos decision was anchored provided in its first paragraph that "[a]ny provision of law to the contrary notwithstanding, the suspension and removal of elective local officials shall be governed exclusively by the provisions of this section", it was not meant to include suspension and removal under the Anti-Graft and Corrupt Practices Act. For, said Section 5 solely embraces administrative investigations. Proof that the anti-graft legislation is outside the ambit of Section 5 of the Decentralization Act is furnished by the second, third and penultimate paragraphs of said section, viz.: The grounds for suspension and removal of elective local officials are the following: (a) disloyalty to the Republic of the Philippines; (b) dishonesty; (c) oppression; and (d) misconduct in the office.

Written subscribed and sworn charges against any elective provincial and city official shall be preferred before the President of the Philippines; against any elective municipal official before the provincial governor or the secretary of the provincial board concerned; and against any elective barrio official before the municipal or city mayor or the municipal or city secretary concerned. ... Provided, That the penalty of suspension shall not exceed the unexpired term of the respondent:Provided, further, That the penalty of suspension or removal shall not be a bar to the candidacy of the respondent so suspended or removed for any elective public office as long as he meets the qualifications so required for the office: And provided, finally, That the decision shall not preclude the filing of criminal actionsarising from the same charges as provided for under existing laws. 14 The last proviso of the penultimate paragraph abovequoted sets the administrative case apart from the criminal; and the limitations on the penalties of suspension and removal abovequoted contradict the Anti-Graft and Corrupt Practices Act which punishes the offender to, amongst others, "perpetual disqualification from public office." As for the Provincial Governor, we find no cause or reason why we should break away from the view espoused in Sacros that since the passage of the Decentralization Act of 1967, his power of suspension has been abrogated. There is reasonable ground to believe that Congress did really apprehend danger should the power of suspension in consequence of a criminal case under the Anti-Graft and Corrupt Practices Act be lodged in any authority other than the court. Quite apart from the fact that the court has a better grasp of the situation, there is one other factor, and that is, the rights of the person accused. The court could very well serve as a lever to balance in one equation the public interests involved and the interests of the defendant. And then, there is the danger that partisan politics may creep in. The hand of political oppression cannot just be ignored especially if the majority members of the Provincial Board and the defendant public local elective officer are on opposite sides of the political fence. Power may be abused. Conversely, if both are of the same political persuasion, the suspending authority will display reluctance in exercising the power of suspension. It is thus that the statute should catch up with the realities of political life. There is indeed the dispiriting lesson that in a clash between political considerations and conscience it is the latter that quite often gets dented. Hard to pigeonhole is the timely observation made by Mr. Justice Fernando in Sarcos vs. Castillo, supra, thus: Such a restraining influence is indeed needed for the undeniable facts of the contemporary political scene bear witness to efforts, at times disguised, at other times quite blatant, on the part of local officials to make use of their positions to gain partisan advantage. Harassment of those belonging to opposing factions or groups is not unknown. Unfortunately, no stigma seems to attach to what really amounts to a misuse of official power. The truism that a public office is a public trust, implicit in which is the recognition that public advantage and not private benefit should be the test of one's conduct, to have been ignored all too often. The construction of any statute, therefore, even assuming that it is tainted by ambiguity which would reduce the opportunity of any public official to use of his position for partisan ends, has much to recommend it. 15 Therefore, since suspension is incident to removal and should proceed from one who should logically do so, and considering that in the operation of a given statute fairness must have in the mind of the legislators, we brush aside needless refinements, and rule that under Section 13 of the Anti-Graft and Corrupt Practices Act, once a valid information upon

the provisions thereof is lodged with the Court of First Instance, that court has the inescapable duty to suspend the public official indicted there under. 4. Not much learning and effort is necessary to arrive at the meaning and intent of the decision of the Court of First Instance of Rizal (Judge Andres Reyes presiding) in its Criminal Case 18821 when it declared that "the Provincial Sheriff of Rizal is hereby ordered to remove" respondent municipal officials upon the premise that "[i]f the accused should be suspended upon the filing of the Information, there is more reason to remove them after a judgment of conviction." This was qualified by the succeeding sentence: "After all, if eventually they are exonerated, they are entitled to reinstatement and all the benefits attached to their office during suspension." 16 It is because of all these that we say that when the court directed that the Sheriff of Rizal "remove" said respondents, what was meant was simply their physical removal from their respective offices because they were ordered suspended. And this, for the reason that judgment has not yet become final. Suspension, of course, rises to the level of permanent removal after the judgment of conviction becomes final. And acquittal certainly may not give rise to removal. For, by mandate of Section 13 of the law, said respondents shall be entitled to reinstatement and to the salaries and benefits which they "failed to receive during suspension," with this proviso "unless in the meantime administrative proceedings have been filed against" them. 5. Challenged by respondent municipal officials is the standing of petitioner Jose C. Luciano to prosecute this case. The reasons given are that: first, he does not succeed to the mayoralty of Makati, and second, because subsequent to the filing of the petition herein, he was also charged in court for a violation of the Anti-Graft and Corrupt Practices Act and was thereafter suspended by the Provincial Governor. What flaws respondents' position are: First. Having reached the conclusion that said respondents should only be deemed suspended, not removed, then a temporary vacancy in the Office of Mayor of Makati is created. Both the Mayor and the Vice-Mayor are in the status of suspended officials. Thus, under the provisions of Section 7 of the Local Autonomy Act, Republic Act 2264, Petitioner should normally be entitled to the position of Mayor. Section 7 of the Local Autonomy Act reads: Sec 7. The city, municipal and municipal district vice-mayor and succession to the office of mayor. The vice-mayor of every city, municipality or municipal district shall assume the office of mayor for the unexpired term of the latter in the event of permanent vacancy in the office of mayor. If for some reason the vice-mayor is incapacitated from assuming the office of mayor or refuses to assume such office, the councilor who obtained the largest number of votes in the local elections immediately preceding shall assume the office of mayor. If for some reason the councilor who obtained the largest number of votes in the local elections immediately preceding is incapacitated from assuming the office of mayor or refuses to assume such office, the councilor who obtained the next largest number of votes in the local elections immediately preceding shall assume the office of mayor, and so on until the permanent vacancy in the office of mayor is filled. Should the mayor-elect die before assumption of office or fail to qualify for any reason, the vice-mayor-elect shall assume the office of mayor, but in the latter case, he shall hold such office only until the mayor-elect qualifies. If for some reason the vice-mayor-elect is incapacitated from assuming the office of mayor or refuses to

assume such office, the councilor-elect who obtained the largest number of votes, in the local elections immediately preceding shall assume the office of mayor. If for some reason the councilor-elect who obtained the largest number of votes in the local elections immediately preceding is incapacitated from assuming the office of mayor or refuses to assume such office, the councilor-elect who obtained the next largest number of votes in the local elections immediately preceding shall assume the office of mayor, and so on until the office of mayor is filled. In the event of temporary incapacity of the mayor to perform the duties of his office on account of absence on leave, sickness, or any temporary incapacity, the vice mayor shall perform the duties and exercise the powers of the mayor except the power to appoint, suspend or dismiss employees. In the event the vice-mayor is temporarily indicated to perform the duties of the office of mayor, the councilor who obtained the largest number of votes among the incumbent councilors in the local elections immediately preceding shall perform the duties and exercise the powers of the mayor except the power to appoint, suspend or dismiss employees. The provisions of this section shall not apply to cities which have no elective mayors and/or vice-mayors.17 The foregoing section in the Local Autonomy Act, we must say, is meant to cover all cases of succession in elective positions for mayors and vice-mayors. Provisions have been made for permanent vacancies and temporary in capacities, and even situations where mayors-elect die before assumption of office. We cannot assume that Congress intended to leave gaps in legislation. That Section 21(a) of the Revised Election Code 18 provides for the filling up of temporary vacancies of elective municipal offices by appointment of the provincial governor with the consent of the provincial board, should not stand in the way of said Section 7, Local Autonomy Act, above-quoted. To the extent that said Section 21(a) conflicts with Section 7 of the Local Autonomy Act, a later legislation, the former should yield. We cannot escape the broad sweep of the term "any temporary incapacity" expressed in the third paragraph of Section 7. That phrase catches within its reach the present situation before us. Incapacity, a dictionary quote tells us, is the "lack of physical or intellectual power or of natural or legal qualification." 19 Embraced in the foregoing is the legal inability of Mayor Estrella and ViceMayor Gealogo to perform the functions of their respective offices, by reason of their suspension by the Court of First Instance of Rizal. Because of this, the suggestion that the rule of ejusdem generis should limit the incapacity referred to physical disability appears pointless; it siphons off one significant import of the term lack of legal qualification. Under the statutory set-up, and the meaning we attribute to the phrase "temporary incapacity," that interpretation would unreasonably constrict legislative intent. It is thus our conclusion that, because of the temporary incapacity of the Mayor and Vice-Mayor of Makati, Rizal, the Councilor who obtained the largest number of votes among the incumbent Councilors in the local election immediately preceding who, in this case, is petitioner Jose C. Luciano, should, by the law, ordinarily "perform the duties and exercise the powers of the mayor" except as the statute so directs the power to appoint, suspend or dismiss employees, which after all is not inherent in one acting in a temporary capacity. Second. The suspension of petitioner from office by the Provincial Governor is null and void, the reason being that, as heretofore stated, having been prosecuted under the

provisions of the Anti-Graft and Corrupt Practices Act, the authority to suspend is not lodged with the Provincial Governor but with the Court of First Instance where he was charged. 6. Respondents argue that petitioner should have intervened in Civil Case 11593 before Judge Flores. It is to be recalled that said case was a suit by respondent Makati elective officials against the Provincial Governor to restrain the latter from suspending them pending the result of the criminal case. Respondents' argument loses potency in the face of our ruling that the power to suspend does not lie with the Provincial Governor. Referring now to respondent Judge Mariano, it is true that he has temporarily restrained enforcement of the judgment of Judge Reyes in Criminal Case 18821. The case before Judge Mariano, however, has since been dismissed on joint petition of the parties therein. His restraining order has, therefore, become functus officio. At any rate, said restraining order is null and void. Long familiar is the rule that a judge of a branch of a court may not interfere with the proceedings before a judge of another branch of the same court. Pointedly applicable is the statement of this Court found in Lacuna vs. Ofilada, 20 that: "But the rule is infringed where the Judge of a branch of the court issues a writ of preliminary injunction in a case to enjoin the sheriff from carrying out an order of execution issued in another case by the Judge of another branch of the same court." The injunction issued by respondent Court of Appeals insofar as it operates to stop the suspension of respondent municipal elective officials of Makati cannot be maintained. And this, for the reason that as we construe the provisions of Section 13 of the Anti-Graft and Corrupt Practices Act, it was the mandatory duty of the trial court to order their suspension. 7. Likewise to be resolved in these proceedings is the claim petitioner Jose C. Luciano advances that he should now be allowed to sit as Mayor of Makati. Respondent elective municipal officials oppose. These respondents' pose is that Luciano subsequent to the filing of the present case before this Court was charged with a violation of the very same law for which they were indicted; that the prosecution against petitioner is pending before the Court of First Instance of Rizal; and that in fact he was suspended by the Provincial Governor. But, that suspension by the Provincial Governor, we have here said, is null and void. Unless petitioner is suspended by the Court of First Instance, no reason exists why he should not be allowed to sit as Acting Mayor. His own qualifications to fill the office have not been disputed. We should respect his right. For the reasons given, JUDGMENT is hereby rendered: (1) Declaring that respondents Mayor Maximo Estrella, Vice-Mayor Teotimo Gealogo and Councilors Justino Ventura, Pedro Ison, Ignacio Babasa and Bernardo Nonato, all of the Municipality of Makati, Province of Rizal, are suspended from the discharge of the duties and the exercise of the functions of their respective public offices by virtue of, and as of the date of the promulgation of, the decision in Criminal Case 18821 of the Court of First Instance of Rizal; and directing that, in pursuance of such suspension, those of said respondents who are still discharging the duties and exercising the functions of their respective offices forthwith cease and desist from so doing; (2) Declaring null and void the preliminary injunction issued by respondent Judge Delfin B. Flores in Civil Case 11593 of the Court of First Instance of Rizal and permanently enjoining him, or whoever acts in his place, from further proceeding with the said case;

(3) Declaring null and void the order of respondent Provincial Governor of Rizal dated June 3, 1969 suspending petitioner Jose C. Luciano as Municipal Councilor of Makati, Rizal; (4) Permanently enjoining the Court of Appeals from enforcing the preliminary injunction issued by the court in CA-G.R. 43239-R insofar as it prevents the suspension of respondent elective municipal officials herein; and . (5) Declaring that petitioner Jose C. Luciano is entitled to sit as Acting Mayor of Makati, Rizal. Costs against respondent elective municipal officials of Makati. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Capistrano, Teehankee and Barredo, JJ., concur. NILO A. MALANYAON, Petitioner-Appellant, vs. HON. ESTEBAN M. LISING, as Judge of the CFI of Camarines Sur, Br. VI, and CESARIO GOLETA, as Municipal Treasurer of Bula, Camarines Sur, Respondents-Appellees. DECISION ABAD SANTOS, J.: The question which is presented to Us for resolution in this petition for review concerns the interpretation of Section 13 of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act which stipulates: Sec. 13. Suspension and loss of benefits. Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. The facts are stated in the Order dated October 3, 1980, of the respondent judge: The late Mayor S.B. Pontanal is one of the accused in Criminal Case No. P-339 for Violation of the Anti-Graft and Corrupt Practices Act. Upon the filing of the case against him in court and after hearing, he was suspended from office and during his incumbency he died. Due to his death the charge against him in Criminal Case No. P339 was dismissed. Petitioner now contends that any disbursement of funds by the respondent, Cesario Goleta, in his capacity as Municipal Treasurer in favor of the heirs of the late Mayor for salaries corresponding to the period he was under suspension and other benefits will be illegal and contrary to the provisions of Section 13 because said late Mayor S.B. Pontanal was not acquitted of the charge against him. Nilo A. Malanyaon, the petitioner, was formerly a member of the Sangguniang Bayan of Bula, Camarines Sur. He filed an action to declare illegal the disbursement made by Cesario Goleta as Municipal Treasurer of the Municipality of Bula, Camarines Sur, to Venancia

Pontanal, widow of the late Mayor S.B. Pontanal, in the amount of P5,000.00 representing a portion of the salary of the late Mayor as such mayor of said municipality during the period of his suspension from August 16, 1977 up to November 28, 1979, and to restrain or prevent respondent Cesario Goleta as such Municipal Treasurer of the aforementioned municipality from further paying or disbursing the balance of the claim. chanroblesvirtualawlibrary(Par. 1 of the Order, supra.) However, the respondent judge dismissed the action on the ground that the criminal case against the late Mayor S.B. Pontanal due to his death amounted to acquittal. We grant the petition and set aside the Order of the court a quo. It is obvious that when the statute speaks of the suspended officer being acquitted it means that after due hearing and consideration of the evidence against him the court is of the opinion that his guilt has not been proved beyond reasonable doubt. Dismissal of the case against the suspended officer will not suffice because dismissal does not amount to acquittal. As aptly stated in People v. Salico, 84 Phil. 722, 732-733[1949]: Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendants guilt is beyond a reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissal terminates the proceeding, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance, etc. The only case in which the word dismissal is commonly but not correctly used, instead of the proper term acquittal, is when, after the prosecution has presented all its evidence, the defendant moves for the dismissal and the court dismisses the case on the ground that the evidence fails to show beyond a reasonable doubt that the defendant is guilty; for in such case the dismissal is in reality an acquittal because the case is decided on the merits. If the prosecution fails to prove that the offense was committed within the territorial jurisdiction of the court and the case is dismissed, the dismissal is not an acquittal, inasmuch as if it were so the defendant could not be again prosecuted before the court of competent jurisdiction; and it is elemental that in such case the defendant may again be prosecuted for the same offense before a court of competent jurisdiction. Respondents invoke Art. 81, No. 1 of the Revised Penal Code which provides that Death of the accused pending appeal extinguishes his criminal and civil liability. We do not see the relevance of this provision to the case at bar. For one thing the case against Mayor Pontanal was not on appeal but on trial. For another thing the claim for back salaries is neither a criminal nor a civil liability. It is in fact a right provided the conditions of the law are present.:onad WHEREFORE, finding the petition to be well-taken, the same is hereby granted, the order of the court a quo is hereby set aside and another one is entered declaring illegal the payment of municipal funds for the salaries of the late Mayor S.B. Pontanal during his suspension from office and ordering the respondent treasurer to retrieve payments so far disbursed. No pronouncement as to costs. SO ORDERED.