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THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

B. Articles 124-133: Crimes Against the Fundamental Law of the State

FELICIANO GALVANTE v. HON. ORLANDO C. CASIMIRO, et al. G.R. No. 162808, 22 April 2008, THRID DIVISION (Ynares-Santiago, J.)

The complaint for warrantless search charges no criminal offense. The conduct of a warrantless search is not a criminal act for it is not penalized under the Revised Penal Code (RPC) or any other special law.

FACTS:

Private respondents confiscated from petitioner one colt pistol super .38 automatic withserial no. 67973, one short magazine, and nine super .38 live ammunitions. The confiscated materials were covered by an expired Memorandum Receipt dated September 2, 1999. Consequently, the Assistant Provincial Prosecutor filed against petitioner an Information for Illegal Possession of Firearms and Ammunitions in Relation to Commission on Elections (Comelec) Resolution No. 3258 before the Regional Trial Court (RTC), Prosperidad, Agusan del Sur. Pending resolution of Criminal Case, petitioner filed against private respondents an administrative case for Grave Misconduct, before the Internal Affairs Service (IAS), Region XIII, and a criminal case, for Arbitrary Detention, Illegal Search and Grave Threats, before the Ombudsman.

Petitioner alleged that upon arrival at the house of retired police Percival Plaza, together with Lorenzo Sanoria, Delfin Ramirez and Pedro Ramas, He immediately went down of the jeep but before he could call Mr. Plaza, four policemen in uniform blocked his way. That the four policemen were (private respondents) PO1 Romil Avenido PNP, PO1 Valentino Rufano, PNP both member of 142 nd Company, Regional Mobile Group and PO1 Eddie Degran PNP and PO1 Federico Balolot PNP members of 1403 Prov'l Mobile Group, all of Bunawan Brook, Bunawan, Agusan del Sur; who all pointed their long firearms ready to fire. He raised his arms and heard [private respondent] PO1 Avenido saying, "ANG IMONG PUSIL, IHATAG" which means "Give me your firearm," to which I answered, "WALA MAN KO'Y PUSIL" translated as "I have no firearm," showing his waistline when he raised his T-shirt. His other companions on the jeep also went down and raised their arms and showed their waistline when the same policemen and a person in civilian attire holding an armalite also pointed their firearms to them to which Mr. Percival Plaza who came down from his house told them not to harass me as I am also a former police officer but they did not heed Mr. Plaza's statements.

While we were raising our arms (private respondent) SPO4 Benjamin Conde, Jr. went near my owner type jeep and conducted a search. To which I asked them if they have any search warrant. That after a while they saw the super .38 pistol under the floor mat of the petitioner’s jeep and asked for the MR of the firearm but due to fear that their long arms were still pointed to them, He searched his wallet and gave the asked document. He further alleged that he was detained by Police Chief Rocacorba for two days having been released only after posing a bail.

Consequently, petitioner filed an Affidavit of Desistance with both the IAS and Ombudsman absolving private respondents Avenido, Degran, Rufano and Balolot, but maintaining the private respondent Conde alone be prosecuted in both administrative and criminal cases. The IAS then issued a Decision finding all private respondents guilty of grave misconduct even if they were merely being enthusiastic in the conduct of the arrest in line of duty. The RTC dismissed the case against the petitioner. On the other hand, the Ombudsman dismissed the charges against private respondents for lack of probable cause.

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THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

B. Articles 124-133: Crimes Against the Fundamental Law of the State

Thus, the petitioner assailed herein Petition for Certiorari and Mandamus under Rule 65 of the Rules of Court are the Resolution of the Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices which dismissed the criminal complaint for arbitrary detention, illegal search and grave threats for lack of probable cause the and Ombudsman Order which denied his motion for reconsideration.

ISSUE:

Whether or not the Ombudsman properly dismissed the criminal complaints filed against the private respondents.

HELD:

Yes. Public respondents' dismissal of the criminal complaint for illegal search which petitioner filed with the Ombudsman against private respondents was proper, although the reasons public respondents cited for dismissing the complaint are rather off the mark because they relied solely on the finding that the warrantless search conducted by private respondents was valid and that the Affidavit of Desistance which petitioner executed cast doubt on the veracity of his complaint. Public respondents completely overlooked the fact that the criminal complaint was not cognizable by the Ombudsman as illegal search is not a criminal offense. Nevertheless, the result achieved is the same: the dismissal of a groundless criminal complaint for illegal search, which is not an offense under the RPC. Thus, the Court need not resolve the issue of whether or not public respondents erred in their finding on the validity of the search for that issue is completely hypothetical under the circumstance.

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THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

C. Articles 134-159: Crimes Against Public Order

VICENTE P. LADLAD, et al. v. SENIOR STATE PROSECUTOR EMMANUEL Y. VELACO, et al. G.R. No. 172070-72, 01 June 2007 (Carpio, J.)

By its nature, rebellion is a crime of the masses or multitudes involving crowd action done in furtherance of a political end. Mere membership in the CPP does not constitute rebellion.

FACTS:

Beltran Petition:

On February 24, 2006, President Gloria Macapagal-Arroyo signed Presidential Proclamation No. 1017 declaring a “State of National Emergency.” Following that, police officers arrested Crispin Beltran on while he was en route to Marilao, Bulacan, and detained him in Camp Crame.

Beltran was arrested without a warrant and the arresting officers did not inform Beltran of the crime for which he was arrested. He was subjected to a first inquest involving the crime of inciting to sedition. This was based on a speech Beltran allegedly gave during a rally in Quezon City on 24 February 2006. Inquest prosecutor found probable cause. The inquest was based on the joint affidavit of Beltran’s arresting officers who claimed to have been present at the rally. The corresponding information was files with the Metropolitan Trial Court of Quezon City.

He was also subjected to a second inquest involving the crime of rebellion conducted by DOJ state prosecutors. The inquest was based on two letters from Criminal Investigation and Detection Group (CIDG) executive officer and deputy director. The letters contained results of CIDG’s investigation implicating Beltran, et al as “leaders and promoters” of an alleged foiled plot to overthrow the Arroyo government. The plot was supposed to be carried out jointly by members of the Communist Party of the Philippines (CPP) and the Makabayang Kawal ng Pilipinas (MKP), which have formed a “tactical alliance.” DOJ state prosecutors found probable cause. Beltran opposes the second inquest finding probable cause that he committed rebellion and that such inquest was void.

The panel then filed an Information with the RTC Makati. The Information was raffled to Branch

137 under Presiding Judge Jenny Lind R. Aldecoa-Delorino (Judge Delorino).

Beltran moved that Branch 137 make a judicial determination of probable cause against him. Before

the motion could be resolved, Judge Delorino recused herself from the case which was re-raffled to Branch

146 under Judge Encarnacion Jaja-Moya (Judge Moya).

Branch 146 sustained the finding of probable cause against Beltran. Beltran sought reconsideration but Judge Moya also inhibited herself from the case without resolving Beltran’s motion. Judge Elmo M. Alameda of Branch 150, to whom the case was re- raffled, issued an Order denying Beltran’s motion.

In his Comment to the petition, the Solicitor General claims that Beltran’s inquest for Rebellion was valid and that the RTC Makati correctly found probable cause to try Beltran for such felony.

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THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

C. Articles 134-159: Crimes Against Public Order

Ladlad and Maza petitions:

Ladlad, Maza, et al were called for a preliminary investigation for the crime of rebellion. The basisi of the preliminary investigation was tge results of the CIDG investigation, culled from the Beltran inquest.

During the preliminary invesitigation, CIDG presented a masked man, later identified as Jaime Fuentes, who claimed to be an eyewitness against petitioners. Velasco, who was the prosecutor, gave copies of the affidavit of Fuentes to media members present during the proceedings.

Ladlad moved for the inhibition of Velasco citing lack of impartiality and independence, considering the political milieu under which petitioners were investigated, the statements that the President and the Secretary of Justice made to the media regarding petitioners’ case, and the manner in which the prosecution panel conducted the preliminary investigation.

Furthermore, they contend that the preliminary investigation was tainted with irregularities as not pursuant to Rule 112 Sec3.

ISSUES:

1. Whether or not the inquest for rebellion against Beltran was valid?

2. Whether or not there is probable cause to indict Beltran for rebellion?

3. Whether or not the preliminary investigation conducted against Ladlad and Maza were tainted with irregularity?

HELD:

The Inquest Proceeding against Beltran for Rebellion is Void.

On the Beltran Petition

Inquest proceedings are proper only when the accused has been lawfully arrested without warrant. The joint affidavit of Beltran’s arresting officers states that the officers arrested Beltran, without a warrant, for Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have conducted as he did conduct an inquest for Inciting to Sedition and no other. Consequently, when another group of prosecutors subjected Beltran to a second inquest proceeding for Rebellion, they overstepped their authority rendering the second inquest void. None of Beltran’s arresting officers saw Beltran commit, in their presence, the crime of Rebellion. Nor did they have personal knowledge of facts and circumstances that Beltran had just committed Rebellion, sufficient to form probable cause to believe that he had committed Rebellion. What these arresting officers alleged in their affidavit is that they saw and heard Beltran make an allegedly seditious speech on 24 February 2006.

To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a Rebellion.

THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

C. Articles 134-159: Crimes Against Public Order

There is No Probable Cause to Indict Beltran for Rebellion.

Rebellion under Article 134 of the Revised Penal Code is committed

[B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, or any body of land, naval, or other armed forces or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action done in furtherance of a political end. The evidence before the panel of prosecutors who conducted the inquest of Beltran for Rebellion consisted of the affidavits and other documents attached to the CIDG letters. We have gone over these documents and find merit in Beltran’s contention that the same are insufficient to show probable cause to indict him for rebellion.

Assuming that Beltran is a member of the CPP, which Beltran does not acknowledge, mere membership in the CPP does not constitute rebellion.

On the Ladlad and Maza Petitions

The Preliminary Investigation was Tainted With Irregularities.

The prosecutors failed to comply with Section 3(a) of Rule 112 which provides that the complaint (which, with its attachment, must be of such number as there are respondents) be accompanied by the affidavits of the complainant and his witnesses, subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public. Here, the prosecutors treated the unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP as complaints and accepted the affidavits attached to the letters even though some of them were notarized by a notary public without any showing that a prosecutor or qualified government official was unavailable as required by Section 3(a) of Rule 112.

Further, Section 3(b) of Rule 112 also mandates that the prosecutor, after receiving the complaint, must determine if there are grounds to continue with the investigation. If there is none, he shall dismiss the case, otherwise he shall “issue a subpoena to the respondents.” Here, after receiving the CIDG letters, respondent prosecutors peremptorily issued subpoenas to petitioners requiring them to appear at the DOJ office on 13 March 2006 “to secure copies of the complaints and its attachments.” During the investigation, prosecutors allowed the CIDG to present a masked Fuentes who subscribed to an affidavit before respondent prosecutor Velasco. Velasco proceeded to distribute copies of Fuentes’ affidavit not to petitioners or their counsels but to members of the media who covered the proceedings. Indeed, by peremptorily issuing the subpoenas to petitioners, tolerating the complainant’s antics during the investigation, and distributing copies of a witness’ affidavit to members of the media knowing that petitioners have not had the opportunity to examine the

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THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

C. Articles 134-159: Crimes Against Public Order

charges against them, respondent prosecutors not only trivialized the investigation but also lent credence to petitioners’ claim that the entire proceeding was a sham. Hence, the court concluded that there was indeed partiality on the part of the prosecutors who conducted the preliminary investigation.

On Respondent Prosecutors’ Lack of Impartiality

The SC found merit in petitioners’ doubt on respondent prosecutors’ impartiality. Respondent Secretary of Justice, who exercises supervision and control over the panel of prosecutors, stated in an interview on 13 March 2006, the day of the preliminary investigation, that, “We [the DOJ] will just declar eprobable cause, then it’s up to the [C]ourt to decide x x x.” Petitioners raised this issue in their petition, but respondents never disputed the veracity of this statement. This clearly shows pre-judgment, a determination to file the Information even in the absence of probable cause.

SC granted the petition and set aside the rulings of RTC Makati branch 146 and branch 150 as well as the Orders of the respondent prosecutors.

THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

C. Articles 134-159: Crimes Against Public Order

LT. (SG) EUGENE GONZALES, et. al. V. GEN. NARCISO ABAYA G.R. No. 164007 August 10, 2006 (SANDOVAL-GUTIERREZ, J.)

The charge against the petitioners concerns the violation of their solemn oath as officers to defend the Constitution and the duly-constituted authorities. Such violation caused dishonor and disrespect to the military profession. The charge has a bearing on the professional conduct and behavior as military officers. Equally indicative of the service-connected nature of the offense is the penalty prescribed by the same, that is, dismissal from the service, imposable only by the military court.

FACTS:

On July 27, 2003, more than 300 heavily armed junior officers and enlisted men of the AFP entered the premises of Oakwood Apartments in Makati. Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red armbands emblazoned with the emblem of the “Magdalo” faction of the Katipunan. They then announced their grievances against the Arroyo Administration, corruption in the Military, illegal sale of arms and ammunitions to the enemies of the State, and the bombings in Davao City intended to acquire more military service from the government. They also declared their withdrawal of support from their Commander-in-Chief and demanded that she resign as President, as well as her cabinet members and the top brass of the AFP and PNP.

The President issued Proclamation No. 427 declaring a state of rebellion followed by General Order No. 4 directing the AFP and PNP to take all necessary measures to suppress the rebellion then taking place in Makati City. After negotiation, the group finally laid down their arms. After investigation, they were charged with coup d’ etat penalized under Article 134-A, RPC. They were likewise charged under the Articles of War, specifically Article 96 for conduct unbecoming an officer and a gentleman.

Petitioners filed a motion with RTC Makati where the coup d’etat case was pending to take over jurisdiction over all the cases pending with the military tribunal following the doctrine of absorption. The lower court ruled that the cases before the military tribunal were not service-connected but rather absorbed in furtherance of the crime of coup d’etat.

When they were charged under Art. 96 of the Articles of War, they filed this petition for prohibition praying that the respondents be ordered to desist from charging them with the said violation. Petitioners maintain that since the RTC has made a determination that the offense for violation of Article 96 is not service-connected, the military tribunal cannot compel them to submit to its jurisdiction and thus, within the jurisdiction of the RTC. The OSG contended that under RA 7055, violation of Art. 96 is service- connected, hence, within the jurisdiction of the military tribunal.

ISSUE:

Whether or not petitioners are entitled to the writ of prohibition.

HELD:

No. Petition DISMISSED.

The delineation of jurisdiction by R.A. No. 7055 is necessary to preserve the peculiar nature of military justice system over military personnel charged with service-connected offenses. The

THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

C. Articles 134-159: Crimes Against Public Order

military justice system is disciplinary in nature, aimed at achieving the highest form of discipline in order to ensure the highest degree of military efficiency.

The offense for violation of Article 96 of the Articles of War is service-connected. Section 1(2) of R.A. No. 7055 bears stressing that the charge against the petitioners concerns the alleged violation of their solemn oath as officers to defend the Constitution and the duly-constituted authorities. Such violation allegedly caused dishonor and disrespect to the military profession. The charge has a bearing on the professional conduct and behavior as military officers. Equally indicative of the service-connected nature of the offense is the penalty prescribed by the same, that is, dismissal from the service, imposable only by the military court. Such penalty is purely disciplinary in character, evidently intended to cleanse the military profession of misfits and to preserve the stringent standard of military discipline.

Anent the issue of absorption, Sec. 1 of RA 7055 specifically specifies what are considered as service- connected offenses or crimes, and vests upon the military courts jurisdiction. In fact, it mandates that they be tried by court-martial. The doctrine only applies to crimes punished by the same statute, not where the crimes are punishable by different statutes. It applies also if the trial court has jurisdiction over both offenses. Sec. 1, RA 7055 deprives civil courts of jurisdiction over service-connected offenses, including Article 96 of the Articles of War.

THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

C. Articles 134-159: Crimes Against Public Order

PEOPLE OF THE PHILIPPINES V. WALPAN LADJAALAM G.R. Nos. 136149-51. September 19, 2000 (PANGANIBAN, J.)

RA No. 8294 penalizes simple illegal possession of firearms, provided that the person arrested committed “no other crime.” Furthermore, if the person is held liable for murder or homicide, illegal possession of firearms is an aggravating circumstance, but not a separate offense. Hence, where an accused was convicted of direct assault with multiple attempted homicide for firing an unlicensed M-14 rifle at several policemen who were about to serve a search warrant, he cannot be held guilty of the separate offense of illegal possession of firearms. Neither can such unlawful act be considered to have aggravated the direct assault.

FACTS:

In the afternoon of September 24, 1997, more than thirty (30) policemen proceeded to the house of appellant Walpan Ladjaalam and his wife to serve the search warrant. When the policemen were about 10 meters from the main gate of the house, they were met by a rapid burst of gunfire coming from the second floor of the house. After gaining entrance, two of the police officers proceeded to the second floor where they earlier saw appellant firing the rifle. As he noticed their presence, the appellant jumped from the window to the roof of a neighboring house. He was subsequently arrested at the back of his house after a brief chase. At the second floor, one policeman saw 3 M14 rifle magazines and 316 rifle magazines with live ammunition in the magazines. On the ground floor, in the presence of Punong Barangay, the other policemen found on top of a table a pencil case with 50 folded aluminum foils inside, each containing ‘shabu’. The records show that appellant had not applied/filed any application for license to possess firearm and ammunition or been given authority to carry a firearm outside of his residence. With respect to the crystalline substances, the examination yielded positive results for the presence of shabu.

The trial court found the appelant guilty of maintaining a drug den, an offense for which was sentenced to reclusion perpetua. Appelant’s guilt was established by the testimony of Prosecution Witness , who himself had used the extension house of appellant as a drug den on several occasions, including the time of the raid. The former’s testimony was corroborated by all the raiding police officers who testified before the court. That appelant did not deny ownership of the house and its extension lent credence to the prosecution’s story.

The trial court also convicted appellant of direct assault with multiple counts of attempted homicide. It found that the act of the accused of firing an M14 rifle at the policemen, who were about to enter his house to serve a search warrant constituted such complex crime. He was also convicted him also of the separate offense of illegal possession of firearms under PD 1866, as amended by RA 8294.

ISSUE:

Whether or not appellant can be convicted separately of illegal possession of firearms after using said firearm in the commission of another crime.

THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

C. Articles 134-159: Crimes Against Public Order

HELD:

No. The appealed Decision is AFFIRMED with the MODIFICATION that appellant is found guilty only of two offenses: (1) direct assault and multiple attempted homicide with the use of a weapon; and (2) maintaining a drug den.

Section 1 of RA 8294 substantially provides that any person who shall unlawfully possess any firearm or ammunition shall be penalized, “unless no other crime was committed”. Furthermore, if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. Since the crime committed was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance.

A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the “other crime” is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms.

Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294’s simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide.

THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

C. Articles 134-159: Crimes Against Public Order

ANGEL CELINO, SR. vs. COURT OF APPEALS, ET AL. G.R. No. 170562 June 29, 2007 CARPIO MORALES, J.:

"In sum, when the other offense involved is one of those enumerated under R.A. 8294, any information for illegal possession of firearm should be quashed because the illegal possession of firearm would have to be tried together with such other offense, either considered as an aggravating circumstance in murder or homicide, or absorbed as an element of rebellion, insurrection, sedition or attempted coup d'etat."

FACTS:

Two separate informations were filed before the RTC charging petitioner with violation of the gunban and illegal possession of firearms. Petitioner pleaded not guilty to the gun ban violation charge whereas he filed a Motion to Quash to the illgegal possession charge contending that he "cannot be

if he was also charged of having committed

another crime of [sic] violating the Comelec gun ban under the same set of facts.”

prosecuted for illegal possession of firearms (R.A. 8294)

is not

one of those enumerated under R.A. 8294

where petitioner contends that the mere filing of an information for gun ban violation against him necessarily bars his prosecution for illegal possession of firearms.

." The denial was affirmed on appeal. Hence this petition,

The trial court denied the motion to quash on the ground that "the other offense charged

ISSUE:

Did the court err in denying the Motion to Quash?

HELD: No.

The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that "no other crime was committed by the person arrested." If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so. As accusation is not synonymous with guilt, there is yet no showing that petitioner did in fact commit the other crime charged. Consequently, the proviso does not yet apply.

Petitioner’s reliance on Agote, Ladjaalam, Evangelista, Garcia, Pangilinan, Almeida, and Bernal is, therefore, misplaced. In each one of these cases, the accused were exonerated of illegal possession of firearms because of their commission, as shown by their conviction, of some other crime.In the present case, however, petitioner has only been accused of committing a violation of the COMELEC gun ban. As accusation is not synonymous with guilt, there is yet no showing that petitioner did in fact commit the other crime charged.Consequently, the proviso does not yet apply.

More applicable is Margarejo where, as stated earlier, this Court affirmed the denial of a motion to quash an information for illegal possession of firearm on the ground that "the other offense charged [i.e., violation of gun ban] x x x is not one of those enumerated under R.A. 8294 x x x." in consonance with the earlier pronouncement in Valdez that "all pending cases involving illegal possession of firearm should continue to be prosecuted and tried if no other crimes expressly indicated in Republic Act No. 8294 are involved x x x."

THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

C. Articles 134-159: Crimes Against Public Order

In sum, when the other offense involved is one of those enumerated under R.A. 8294, any information for illegal possession of firearm should be quashed because the illegal possession of firearm would have to be tried together with such other offense, either considered as an aggravating circumstance in murder or homicide, or absorbed as an element of rebellion, insurrection, sedition or attempted coup d'etat. Conversely, when the other offense involved is not one of those enumerated under R.A. 8294, then the separate case for illegal possession of firearm should continue to be prosecuted.

THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

C. Articles 134-159: Crimes Against Public Order

ARNEL SISON y ESCUADRO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. G.R. No. 187229 February 22, 2012 PERALTA, J.:

"The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that "no other crime was committed by the person arrested." If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph."

FACTS:

Private complainant [AAA] were on her way to her work, boarded the Mitsubishi Adventure with plate no. CSV- 606, driven by the accused who was then plying his route at Bocaue Toll Gate going to Cubao, Quezon City, and upon reaching EDSA corner New York Street, Cubao, this City, accused suddenly poked his gun at her, kidnap and detain her and forcibly brought her at the Town and Country, Sta. Mesa, Manila, where accused had carnal knowledge of her by force and intimidation against her will and without her consent.

Moreover, two charged were filed against the accused, one for the crime of kidnapping with rape and the other was illegal possession of firearms to which the Trial Court found the accused as guilty to both charged. On appeal, CA affirmed with modification By pointing out that the crime committed was not kidnapping with rape, but only rape qualified with the use of a deadly weapon. Hence, the present petition.

ISSUE:

Wether or not the accused maybe prosecuted of the crime of illegal possession of firearms as a separate offense.

HELD: No. The petitioner's conviction for illegal possession of firearms, such judgment must be set aside. We find that he can no longer be held liable for such offense since another crime was committed, i.e., rape.

In People v. Ladjaalam, we laid down the correct interpretation of the law and ruled: x x x A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the "other crime" is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms.

Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294’s simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with

THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

C. Articles 134-159: Crimes Against Public Order

attempted homicide. Moreover, since the crime committed was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance.

The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that "no other crime was committed by the person arrested." If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we. All told, we affirm petitioner's conviction for the crime of rape. However, petitioner's conviction of illegal possession of firearms is set aside.

THE REVISED PENAL CODE BOOK TWO AND RELATED SPECIAL PENAL LAWS

C. Articles 134-159: Crimes Against Public Order

RAUL B. ESCALANTE, Petitioner, v. PEOPLE OF THE PHILIPPINES and THEHONORABLECOURTOF APPEALS, FORMER SPECIAL TWENTIETH DIVISION and EIGHTEENTH DIVISION, COURT OF APPEALS, CEBU CITY, Respondents.

G.R. No. 192727, January 9, 2013, FIRST DIVISION (REYES, J.)

"Under the doctrine of finality of judgment or immutability of judgment, a decision that has acquired finality becomes immutable and unalterable, and may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and law, and whether it be made by the court that rendered it or by the Highest Court of the land."

Facts: The instant case stemmed from two (2) separate Informations that were filed with the Regional Trial Court (RTC) of Calbayog City, Samar against the petitioner, charging him for violation of Section 261 (q) of BP 881 (Election Gun Ban) and Section 1 of Presidential Decree (P.D.) No.1866, as amended (Illegal Possession of Firearms and Ammunitions). The two cases were consolidated and jointly tried by the RTC as the crimes charged against the petitioner arose from the same incident. Upon arraignment, the petitioner pleaded not guilty to both charges.

In the trial of the case, the prosecution’s versions of the facts are as follows: The petitioner, then the Municipal Mayor of Almagro, Samar, was the guest of honor during the fiesta celebration in Barangay Biasong that was held on April 3, 1995. Towards the end of the program, the emcee called on the petitioner and Ina Rebuya to crown the fiesta queen. Thereupon, the petitioner went to fetch Ina Rebuya who was seated together with Atty. Felipe Maglana, Jr. (Atty. Maglana) and the other members of the rival political party. It was then that Atty. Maglana noticed that the petitioner had a firearm tucked on his waist. After the crowning ceremony, the petitioner delivered a speech, stating that he had never won at Barangay Biasong in any election. This caught the ire of a group of supporters of the rival political party who then shouted invectives at the petitioner. Shamed by the insults hurled at him, the petitioner cut short his speech and, thereafter, went back to his table. However, the mocking continued. Thereupon, the petitioner, with the loaded firearm in hand, went to the table occupied by his political rivals. He then stared at Atty. Maglana and thereafter fired a shot upwards, causing the crowd to scamper for safety. The petitioner’s bodyguards immediately took hold of his hand to prevent him from firing another shot. Consequently, Ali Prudenciado, a former policeman and then, a kagawad, disarmed the petitioner. The following morning, the Chief of Police of Almagro, Samar entered the incident into the police blotter as an "accidental firing".

On the other hand, the defense’s versions of the facts are as follows: The petitioner denied that he was in possession of a firearm during the April 3, 1995 fiesta celebration in Barangay Biasong. He claimed that, while he was delivering his speech therein, a group of people were shouting insults at him. Not wanting to aggravate the situation, the petitioner abruptly ended his speech and went to the group to ask them not to disturb the festivities. The group, however, continued to mock the petitioner, prompting PO3 Conrado Unajan (PO3 Unajan) to draw his firearm from his holster to pacify the unruly crowd. When the petitioner saw this, he tried to take the firearm away from PO3 Unajan and, in the process, a shot was accidentally fired. Thereafter, the petitioner was able to take hold of the firearm and, together with PO3 Unajan, went back to his table. He then returned the firearm to PO3 Unajan.

On May 23, 2003, the RTC rendered a judgment finding the petitioner guilty beyond reasonable doubt of the crimes of violation of election gun ban and illegal possession of firearms and ammunitions. The

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petitioner appealed to the CA, asserting that the RTC erred in convicting him for the crimes charged since the prosecution failed to establish the following: (1) the existence of the firearm which is the corpus delicti; and (2) the absence of a license or permit for the firearm.

The petitioner sought a reconsideration of the June 24, 2008 Decision of the CA, maintaining that the prosecution failed to substantiate the elements of the crimes charged against him. Additionally, the petitioner averred that the case for illegal possession of firearms and ammunitions should be dismissed pursuant to the ruling of this Court in Agote v. Judge Lorenzo which declared that an accused is not liable for illegal possession of firearm if the firearm was used in the commission of an offense such as a violation of the election gun ban.

On March 4, 2009, the CA issued a resolution which partly granted the petitioners motion for reconsideration. The CA ruled that under prevailing jurisprudence there can be no separate offense of simple illegal possession of firearm if the unlicensed firearm is used in the commission of any crime. Considering that the petitioner was convicted of violation of election gun ban, the CA held that he can no longer be convicted for illegal possession of firearm. Nevertheless, the CA found no reason to reverse the conviction of the petitioner for violation of election gun ban.

Issue: WHETHER THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT RESOLVED TO DENY THE APPEAL FILED BY THE PETITIONER DESPITE THE FACT THAT ONE OF THE ESSENTIAL ELEMENTS OF THE OFFENSE OF VIOLATION OF COMELEC GUN BAN IS ABSENT.

Held:

Petition is DENIED.

Despite the fact that one of the essential elements of the offense of violation of COMELEC gun ban is absent, The petitioner committed a serious procedural faux pas by filing before this Court a petition for certiorari under Rule 65, when the proper remedy should have been a petition for review on certiorari under Rule 45 of the Rules of Court.

Decisions, final orders or resolutions of the CA in any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed to this Court by filing a petition for review under Rule 45, which would be but a continuation of the appellate process over the original case. The period to file a petition for review on certiorari is 15 days from notice of the decision appealed from or of the denial of the petitioner’s motion for reconsideration. Here, the petitioner received a copy of the CAs May 5, 2010 Resolution, which denied his second motion for reconsideration, on May 20, 2010, thus, he only had until June 4, 2010 to file a petition for review on certiorari with this Court. This he failed to do.

"The perfection of an appeal in the manner and within the period prescribed by law is mandatory. Failure to conform to the rules regarding appeal will render the judgment final and executory and, hence, unappealable."Thus, the petitioners failure to file a petition for review under Rule 45 within the reglementary

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period rendered the CAs June 24, 2008 Decision, as modified by its March 4, 2009 Resolution, final and executory.

In any case, assuming arguendo that a petition for certiorari is the proper remedy, the petition would still be dismissed. Basically, the petitioner asks this Court to overturn the factual findings of the RTC and the CA for alleged misapprehension of evidence. However, "it is settled that questions of fact cannot be raised in an original action for certiorari."Only established or admitted facts can be considered.

The Court notes, however, that the lower courts erred in imposing the applicable penalty against the petitioner. Finding the petitioner guilty of the offense of violation of election gun ban, the RTC imposed upon him the straight penalty of one (1) year imprisonment. Applying the Indeterminate Sentence Law, the imposable penalty for violation of the election gun ban should have a maximum period, which shall not exceed six (6) years, and a minimum period which shall not be less than one (1) year. Accordingly, the RTC and the CA erred in imposing a straight penalty of one (1) year imprisonment against the petitioner.

Nevertheless, considering that the CAs June 24, 2008 Decision and March 4, 2009 Resolution had already attained finality on account of the petitioners failure to timely file a petition for review on Certiorari under Rule 45, the Court may no longer modify the penalty imposed by the lower courts no matter how obvious the error may be. "Under the doctrine of finality of judgment or immutability of judgment, a decision that has acquired finality becomes immutable and unalterable, and may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and law, and whether it be made by the court that rendered it or by the Highest Court of the land."

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RICARDO S. SANTOS, JR., v. PEOPLE OF THE PHILIPPINES G.R. No. 167671, September 3, 2008, FIRST DIVISION (CORONA, J.)

The power of supervision or control over another does not preclude inducement. A person may be induced to commit a crime in two ways: (1) by giving a price or offering a reward or promise and (2) by using words of command.

Facts: On October 8, 1969, four separate informations for malversation of public funds thru falsification of public documents were filed in the Court of First Instance of Rizal (CFI), Branch V, Quezon City against petitioner and nine others. These cases were docketed as Criminal Case Nos. Q-9783, Q-9784, Q-9787 and Q-9788. After trial, the CFI found petitioner and his co-accused Pedro Velasco guilty beyond reasonable doubt as principals of the complex crime of malversation thru falsification of public documents under Articles 217 and 171 of the Revised Penal Code (RPC). All of the accused who were convicted appealed the consolidated decision of the CFI to the CA. However, all of them except petitioner died during the pendency of the appeal.

CA held that petitioner was a principal by inducement, based on the testimony of state witness Henry Cruz that petitioner induced him to sign the travel expense voucher (Exhibit AA-1), subject of Criminal Case No. Q-9787 in exchange for receiving a share of the proceeds of the claim even if he was not entitled thereto.

Petitioner finds it incredulous that the CA believed the testimony of Cruz with respect to “Exhibit AA-1” but not Cruz’s testimony with respect to “Exhibits G, H, I, W, X, X1 and X2.” ( Treasury warrants which were issued pursuant to travel expense vouchers subjects of Criminal Case Nos. Q-9783, Q-9784 and Q-9788.) Hence, petitioner argues that the CA erred in finding him guilty, as a principal by inducement, of falsification of a public document.

Issue: WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THE PETITIONER GUILTY, AS A PRINCIPAL BY INDUCEMENT, OF FALSIFICATION OF A PUBLIC DOCUMENT.

Held: Petition is DENIED.

The credibility of a witness is left primarily to the judgment of the trial judge. He is in a vantage position to assess the witness’ demeanor, conduct and attitude under grueling examination because he has the direct opportunity to observe the witness on the stand. The factual findings of the appellate court are also given great weight especially if in complete accord with the findings of the lower court. In holding that the evaluation of the testimonies of witnesses must be left to the trial court as the agency in the best position to observe the witnesses’ demeanor on the witness stand, the CA merely applied a well-settled rule. We find no reason to rule otherwise.

The CA acquitted petitioner in Criminal Case Nos. Q-9783, Q-9784 and Q-9788 after it found “That the testimonies of both prosecution witnesses, Henry Cruz and Tolentino C. Mendoza [did] not establish with moral certainty the culpability of the accused-appellant for the falsification of the subject travel expense vouchers”

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This pronouncement did not state that Cruz lied. The CA merely stated that Cruz’s testimony was insufficient or inadequate to sustain petitioner’s conviction for falsification in Criminal Case Nos. Q-9783, Q- 9784 and Q-9788. In Criminal Case No. Q-9787 however, the CA found Cruz’s testimony in relation to “Exhibit AA-1” sufficient to prove that petitioner committed the crime of falsification of public documents under paragraph 1, Article 172 in relation to paragraph 2, Article 171 of the RPC.

Falsification of documents under paragraph 1 of Article 172 refers to falsification by a private individual or a public officer or employee who did not take advantage of his official position, of public, private or commercial documents. Its elements are:

(1) that the offender is a private individual or a public officer or employee who did not take advantage of his official

position;

(2) that he committed any of the acts of falsification enumerated in Article 171; and (3) that the falsification was committed in a public, official or commercial document.

Petitioner was a disbursing officer of the Bureau of Lands. He was a public official. While the CFI did not state in its decision that petitioner took advantage of his position in the government in committing the crime, the CA made a more definite pronouncement to this effect. Petitioner’s functions as disbursing officer did not include the duty to make, prepare or otherwise intervene in the preparation of the falsified travel expense voucher. His function was only to pay payees of treasury warrants and other cash vouchers or payrolls. Nonetheless, he took the liberty of intervening in the preparation of the travel expense voucher in question. The first element for the crime under paragraph 1 of Article 172 of the RPC was present.

The second element was likewise there. Petitioner allegedly committed the crime by “causing it to appear that persons participated in an act or a proceeding when they did not in fact so participate.” Its requisites are:

(1) that the offender caused it to appear in a document that a person or persons participated in an act or proceedings;

and

(2) that such person or persons did not in fact so participate in the act or proceeding.

Both the CFI and the CA found that petitioner asked Cruz to sign the falsified voucher on the promise of a share of the proceeds, even if Cruz was not entitled it.

Petitioner claims that he could not have induced Cruz to falsify the travel expense voucher because he did not have the power of supervision or control over Cruz. The Court disagreed. The power of supervision or control over another does not preclude inducement. A person may be induced to commit a crime in two ways: (1) by giving a price or offering a reward or promise and (2) by using words of command. In this case, petitioner was found by both the CFI and the CA to have offered Cruz a share of the proceeds in exchange for his act of falsification. That promise was the inducement for the falsification.

Finally, the parties never disputed the finding that the travel voucher was a public document. We see no reason to depart from the findings of the CFI and CA.

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OLGA M. SAMSON vs. JUDGE VIRGILIO CABALLERO A.M. No. RTJ-08-2138 August 5, 2009

The making of untruthful statements in the PDS amounts to dishonesty and falsification of an official document. Dishonesty, being in the nature of a grave offense, carries the extreme penalty of dismissal from the service with forfeiture of retirement benefits.

FACTS:

This is an administrative complaint for dishonesty and falsification of a public document against respondent Judge Virgilio G. Caballero, Regional Trial Court (RTC), Branch 30, Cabanatuan City, Nueva Ecija.

In her complaint, complainant Olga M. Samson alleged that respondent Judge Virgilio G. Caballero should not have been appointed to the judiciary for lack of the constitutional qualifications of proven competence, integrity, probity and independence and for violating the Rules of the Judicial and Bar Council (JBC) which disqualifies from nomination any applicant for judgeship with a pending administrative case.

According to the complainant, respondent, during his JBC interviews, deliberately concealed the fact that he had pending administrative charges against him.

She disclosed that, on behalf of Community Rural Bank of Guimba (Nueva Ecija), Inc., she had filed criminal and administrative charges for grave abuse of authority, conduct prejudicial to the best interest of the service and violation of Article 208 of the Revised Penal Code against respondent in the Office of the Ombudsman on July 23, 2003. However, respondent insisted that those cases were already dismissed before the interview.

The Office of Administrative Services-Office of the Court Administrator (OAS-OCA) RTC Personnel Division found respondent administratively liable for dishonesty and falsification of an official document for his false statement in his Personal Data Sheet.

ISSUE:

Whether or not Judge Caballero is guilty of dishonesty and falsification of official document.

HELD:

YES

We have no way of knowing whether respondent withheld information from the JBC, as both he and complainant never backed their respective allegations with concrete evidence. Thus, no probative value can be given either to the charges or to the defenses.

However, respondent is not to be exonerated on the basis of the foregoing alone. Regardless of whether he disclosed his pending cases during his interviews, the fact remains that he committed dishonesty when he checked the box indicating “No” to the question “Have you ever been formally charged?” in his March 21, 2006 PDS filed in the OAS-OCA RTC Personnel.

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Respondent’s act of making an obviously false statement in his PDS was reprehensible, to say the least. It was not mere inadvertence on his part when he answered “No” to that very simple question posed in the PDS. He knew exactly what the question called for and what it meant, and that he was committing an act of dishonesty but proceeded to do it anyway. To make matters worse, he even sought to wriggle his way out of his predicament by insisting that the charges against him were already dismissed, thus, his negative answer in the PDS. However, whether or not the charges were already dismissed was immaterial, given the phraseology of the question “Have you ever been formally charged?,” meaning, charged at anytime in the past or present.

To further support her charge of dishonesty against respondent, complainant pointed to the Personal Data Sheet (PDS) filed by respondent on March 21, 2006 in the Office of Administrative Services-Office of the Court Administrator (OAS-OCA) RTC Personnel Division. According to her, respondent categorically denied ever having been charged formally with any infraction.

On the basis of the pleadings and documents presented by both parties, the OCA found respondent administratively liable for dishonesty and falsification of an official document for his false statement in his PDS. It recommended respondent’s dismissal from the service with forfeiture of retirement benefits, except accrued leave credits, and with prejudice to re-employment in the government service.

In Ratti v. Mendoza-De Castro,[15] we held that the making of untruthful statements in the PDS amounts to dishonesty and falsification of an official document. Dishonesty, being in the nature of a grave offense, carries the extreme penalty of dismissal from the service with forfeiture of retirement benefits except accrued leave credits, and perpetual disqualification from reemployment in the government service.

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CESARIO URSUA, vs. COURT OF APPEALS G.R. No. 112170. April 10, 1996, FIRST DIVISION (BELLOSILLO, J.)

The use of a fictitious name or a different name belonging to another person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition contained in C.A. No. 142 as amended.

FACTS:

Petitioner Cesario Ursua was a Community Environment and Natural Resources Officer assigned in Kidapawan, Cotabato. An investigation was conducted on a complaint for bribert, dishonesty, abuse of authority by the petitioner. Atty. Francis Palmones, counsel for petitioner, wrote the Office of the Ombudsman in Davao City requesting that he be furnished copy of the complaint against petitioner. Atty. Palmones then asked his client Ursua to take his letter-request to the Office of the Ombudsman because his law firm’s messenger, Oscar Perez, had to attend to some personal matters. When petitioner arrived at the Office of the Ombudsman in Davao City he was instructed by the security officer to register in the visitors’ logbook. Instead of writing down his name petitioner wrote the name “Oscar Perez” after which he was told to proceed to the Administrative Division for the copy of the complaint he needed. Upon learning that the person who introduced himself as “Oscar Perez” was actually petitioner Cesario Ursua, such matter was reported to the Deputy Ombudsman who recommended that petitioner be accordingly charged. The trial court convicted Ursua for violation of Sec. 1 of C.A. No. 142, as amended by R.A. No. 6085, otherwise known as “An Act to Regulate the Use of Alliases.” On appeal, CA affirmed the conviction.

ISSUE:

Whether or not Ursua should be held liable violation of C.A. No. 142, as amended by R.A. No. 6085, otherwise known as “An Act to Regulate the Use of Alliases.”

HELD:

NO An alias is a name or names used by a person or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time or substitute name authorized by a competent authority. A man’s name is simply the sound or sounds by which he is commonly designated by his fellows and by which they distinguish him but sometimes a man is known by several different names and these are known as aliases. The use of a fictitious name or a different name belonging to another person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition contained in C.A. No. 142 as amended.

This is so in the case at bench. It is not disputed that petitioner introduced himself in the Office of the Ombudsman as “Oscar Perez,” which was the name of the messenger of his lawyer who should have brought

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the letter to that office in the first place instead of petitioner. He did so while merely serving the request of his lawyer to obtain a copy of the complaint in which petitioner was a respondent. There is no question then that “Oscar Perez” is not an alias name of petitioner. There is no evidence showing that he had used or was intending to use that name as his second name in addition to his real name. The use of the name “Oscar Perez” was made by petitioner in an isolated transaction where he was not even legally required to expose his real identity. For, even if he had identified himself properly at the Office of the Ombudsman, petitioner would still be able to get a copy of the complaint as a matter of right, and the Office of the Ombudsman could not refuse him because the complaint was part of public records hence open to inspection and examination by anyone under the proper circumstances. While the act of petitioner may be covered by other provisions of law, such does not constitute an offense within the concept of C.A. No. 142 as amended under which he is prosecuted. The confusion and fraud in business transactions which the anti-alias law and its related statutes seek to prevent are not present here as the circumstances are peculiar and distinct from those contemplated by the legislature in enacting C.A. No. 142 as amended. There exists a valid presumption that undesirable consequences were never intended by a legislative measure and that a construction of which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences. Indeed, our mind cannot rest easy on the proposition that petitioner should be convicted on a law that does not clearly penalize the act done by him

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PEOPLE OF THE PHILIPPINES v. JOSEPH EJERCITO ESTRADA and THE HONORABLE SPECIAL DIVISION OF THE SANDIGANBAYAN G.R. Nos. 164368-69, 2 April 2009, EN BANC (Brion, J)

On April 4, 2001, an Information for plunder (docketed as Crim. Case No. 26558) was filed with the Sandiganbayan against respondent Estrada, among other accused. A separate Information for illegal use of alias, docketed as Crim. Case No. 26565, was likewise filed against Estrada. The Amended Information in Crim. Case No. 26565 reads:

That on or about 04 February 2000, or sometime prior or subsequent thereto, in the City of Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then President of the Republic of the Philippines, without having been duly authorized, judicially or administratively, taking advantage of his position and committing the offense in relation to office, i.e., in order to CONCEAL THE ill-gotten wealth HE ACQUIRED during his tenure and his true identity as THE President of the Republic of the Philippines, did then and there, willfully, unlawfully and criminally REPRESENT HIMSELF AS ‘JOSE VELARDE’ IN SEVERAL TRANSACTIONS AND use and employ the SAID alias "Jose Velarde" which IS neither his registered name at birth nor his baptismal name, in signing documents with Equitable PCI Bank and/or other corporate entities.

CONTRARY TO LAW.

Crim. Case Nos. 26565 and 26558 were subsequently consolidated for joint trial. Still another Information, this time for perjury and docketed as Crim. Case No. 26905, was filed with the Sandiganbayan against Estrada. This was later consolidated, too, with Crim. Cases No. 26558 and 26565.

Estrada was subsequently arrested on the basis of a warrant of arrest that the Sandiganbayan issued. A Special Division in the Sandiganbayan was then created to try, hear, and decide the charges of plunder and related cases (illegal use of alias and perjury) against respondent Estrada.

At the trial, the People presented testimonial and documentary evidence to prove the allegations of the Informations for plunder, illegal use of alias, and perjury. The People’s evidence for the illegal alias charge, as summarized by the Sandiganbayan, consisted of:

A. The testimonies of Philippine Commercial and Industrial Bank (PCIB) officers Clarissa G. Ocampo (Ocampo) and Atty. Manuel Curato (Curato) who commonly declared that on February 4, 2000, Estrada opened a numbered trust account with PCIB and signed as "Jose Velarde" in the account opening documents;

B. (1) The testimony of PCIB-Greenhills Branch Manager Teresa Barcelan, who declared that a certain Baby Ortaliza (Ortaliza) transacted several times with her; that Ortaliza deposited several checks in PCIB under the account name "Jose Velarde"

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(2) Documents duly identified by witnesses showing that Lucena Ortaliza was employed in the Office of the Vice President and, later on, in the Office of the President when Estrada occupied these positions and when deposits were made to the savings account of Jose Velarde

Estrada filed separate Demurrers to Evidence. His demurrer to evidence for Crim. Case No. 26565 (illegal use of alias) was anchored on the ground that the thirty-five (35) witnesses presented by the prosecution, only two (2) witnesses, Ms. Clarissa Ocampo and Atty. Manuel Curato, testified that on one occasion (4 February 2000), they saw movant use the name "Jose Velarde". The Sandiganbayan found that the People failed to present evidence that Estrada committed the crime punished under Commonwealth Act No. 142, as amended by Republic Act (R.A.) No. 6085 (CA 142), as interpreted by the Supreme Court in Ursua v. Court of Appeals. 13 It ruled that there is an illegal use of alias within the context of CA 142 only if the use of the alias is public and habitual. In Estrada’s case, the Sandiganbayan noted, the application of the principles was not as simple because of the complications resulting from the nature of the transaction involved the alias was used in connection with the opening of a numbered trust account made during the effectivity of R.A. No. 1405, as amended, 14 and prior to the enactment of Republic R.A. No. 9160.

ISSUE: Whether Estrada may be made liable for illegal use of alias based on the evidence the People presented

HELD:

The petition has no merit.

The Law on Illegal Use of Alias and the Ursua Ruling

Sections 1 and 2 of CA No. 142, as amended, read:

Section 1. Except as a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice, no person shall use any name different from the one with which he was registered at birth in the office of the local civil registry or with which he was baptized for the first time, or in case of an alien, with which he was registered in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court: Provided, That persons whose births have not been registered in any local civil registry and who have not been baptized, have one year from the approval of this act within which to register their names in the civil registry of their residence. The name shall comprise the patronymic name and one or two surnames.

Section 2. Any person desiring to use an alias shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name and no person shall be allowed to secure such judicial authority for more than one alias. The petition for an alias shall set forth the person's baptismal and family name and the name recorded in the civil registry, if different, his immigrant's name, if an alien, and his pseudonym, if he has such names other than his original or real name, specifying the reason or reasons for the desired alias. The judicial authority for the use of alias, the Christian name and the alien immigrant's name shall be recorded in the proper local civil registry, and no person shall use any name or names other than his original or real name unless the same is or are duly recorded in the proper local civil registry.

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How this law is violated has been answered by the Ursua definition of an alias "a name or names used by a person or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time or substitute name authorized by a competent authority." There must be, in the words of Ursua, a "sign or indication that the user intends to be known by this name (the alias) in addition to his real name from that day forth … [for the use of alias to] fall within the prohibition contained in C.A. No. 142 as amended." 18

Ursua further relates the historical background and rationale that led to the enactment of CA No. 142, as follows:

The enactment of C.A. No. 142 was made primarily to curb the common practice among the Chinese of adopting scores of different names and aliases which created tremendous confusion in the field of trade. Such a practice almost bordered on the crime of using fictitious names which for obvious reasons could not be successfully maintained against the Chinese who, rightly or wrongly, claimed they possessed a thousand and one names. C.A. No. 142 thus penalized the act of using an alias name, unless such alias was duly authorized by proper judicial proceedings and recorded in the civil register. 19

Following the doctrine of stare decisis, 20 we are guided by the Ursua ruling on how the crime punished under CA No. 142 may be committed. Close adherence to this ruling, in other words, is unavoidable in the application of and the determination of criminal liability under CA No. 142.

Among the many grounds the People invokes to avoid the application of the Ursua ruling proceeds from Estrada’s position in the government; at the time of the commission of the offense, he was the President of the Republic who is required by law to disclose his true name. We do not find this argument sufficient to justify a distinction between a man on the street, on one hand, and the President of the Republic, on the other, for purposes of applying CA No. 142. In the first place, the law does not make any distinction, expressly or impliedly, that would justify a differential treatment. CA No. 142 as applied to Estrada, in fact allows him to use his cinema or screen name of Joseph Estrada, which name he has used even when he was already the President of the Philippines. Even the petitioner has acquiesced to the use of the screen name of the accused, as shown by the title of the present petition. Additionally, any distinction we make based on the People’s claim unduly prejudices Estrada; this is proscribed by the Ursua dictum that CA No. 142, as a penal statute, should be construed strictly against the State and in favor of the accused. 21 The mode of violating CA No. 142 is therefore the same whoever the accused may be.

The People also calls our attention to an earlier Sandiganbayan ruling (Resolution dated February 6, 2002) denying Estrada’s motion to quash the Information. This earlier Resolution effectively rejected the application of Ursua under the following tenor:

The use of the term "alias" in the Amended Information in itself serves to bring this case outside the ambit of the ruling in the case of Ursua v. Court of Appeals (256 SCRA 147 [1996]), on which the accused heavily relies in his motion to quash. The term "alias" means "otherwise known as" (Webster Third New International Dictionary, 1993 ed., p. 53). The charge of using an "alias" logically implies that another name has been used publicly and habitually. Otherwise, he will not be known by such name. In any case, the amended information adverts to "several transactions" and signing of documents with the Equitable PCI

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Bank and/or other corporate entities where the above-mentioned alias was allegedly employed by the accused.

The facts alleged in the information are distinctly different from facts established in the Ursua case where another name was used by the accused in a single instance without any sign or indication that that [sic] he intended to be known from that day by this name in addition to his real name. 22

The People argues that the Sandiganbayan gravely abused its discretion in applying Ursua notwithstanding this earlier final ruling on its non-applicability a ruling that binds the parties in the present case. The People thus claims that the Sandiganbayan erred to the point of gravely abusing its discretion when it resurrected the application of Ursua, resulting in the reversal of its earlier final ruling.

We find no merit in this argument for two reasons. First, the cited Sandiganbayan resolution is a mere interlocutory order a ruling denying a motion to quash 23 that cannot be given the attributes of finality and immutability that are generally accorded to judgments or orders that finally dispose of the whole, of or particular matters in, a case. 24 The Sandiganbayan resolution is a mere interlocutory order because its effects would only be provisional in character, and would still require the issuing court to undertake substantial proceedings in order to put the controversy to rest. 25 It is basic remedial law that an interlocutory order is always under the control of the court and may be modified or rescinded upon sufficient grounds shown at any time before final judgment. 26 Perez v. Court of Appeals, 27 albeit a civil case, instructively teaches that an interlocutory order carries no res adjudicata effects. Says Perez:

The Decision in CA-G.R. No. 10415 having resolved only an interlocutory matter, the principle of res judicatacannot be applied in this case. There can be no res judicata where the previous order in question was not an order or judgment determinative of an issue of fact pending before the court but was only an interlocutory order because it required the parties to perform certain acts for final adjudication. In this case, the lifting of the restraining order paved the way for the possession of the fishpond on the part of petitioners and/or their representatives pending the resolution of the main action for injunction. In other words, the main issue of whether or not private respondent may be considered a sublessee or a transferee of the lease entitled to possess the fishpond under the circumstances of the case had yet to be resolved when the restraining order was lifted. 28

Second, in the earlier motion to quash, the Sandiganbayan solely looked at the allegations of the Information to determine the sufficiency of these allegations and did not consider any evidence aliunde. This is far different from the present demurrer to evidence where the Sandiganbayan had a fuller view of the prosecution’s case, and was faced with the issue of whether the prosecution’s evidence was sufficient to prove the allegations of the Information. Under these differing views, the Sandiganbayan may arrive at a different conclusion on the application of Ursua, the leading case in the application of CA 142, and the change in ruling is not per se indicative of grave abuse of discretion. That there is no error of law is strengthened by our consideration of the Sandiganbayan ruling on the application of Ursua.

In an exercise of caution given Ursua’s jurisprudential binding effect, the People also argues in its petition that Estrada’s case is different from Ursua’s for the following reasons: (1) respondent Estrada used and intended to continually use the alias "Jose Velarde" in addition to the name "Joseph Estrada"; (2) Estrada’s use of the alias was not isolated or limited to a single transaction; and (3) the use of the alias "Jose Velarde"

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was designed to cause and did cause "confusion and fraud in business transactions" which the anti-alias law and its related statutes seek to prevent. The People also argues that the evidence it presented more than satisfied the requirements of CA No. 142, as amended, and Ursua, as it was also shown or established that Estrada’s use of the alias was public.

In light of our above conclusions and based on the parties’ expressed positions, we shall now examine within the Ursua framework the assailed Sandiganbayan Resolution granting the demurrer to evidence. The prosecution has the burden of proof to show that the evidence it presented with the Sandiganbayan satisfied the Ursua requirements, particularly on the matter of publicity and habituality in the use of an alias.

What is the coverage of the indictment?

We fully agree with the disputed Sandiganbayan’s reading of the Information, as this was how the accused might have similarly read and understood the allegations in the Information and, on this basis, prepared his defense. Broken down into its component parts, the allegation of time in the Information plainly states that (1) ON February 4, 2000; (2) OR before February 4, 2000; (3) OR sometime prior or subsequent to February 4, 2000, in the City of Manila, Estrada represented himself as "Jose Velarde" in several transactions in signing documents with Equitable PCI Bank and/or other corporate entities.

The conclusion we arrived at necessarily impacts on the People’s case, as it deals a fatal blow on the People’s claim that Estrada habitually used the Jose Velarde alias. For, to our mind, the repeated use of an alias within a single day cannot be deemed "habitual," as it does not amount to a customary practice or use. This reason alone dictates the dismissal of the petition under CA No. 142 and the terms of Ursua.

The issues of publicity, numbered accounts, and the application of CA No. 142, R.A. No. 1405, and R.A. No. 9160.

The People claims that even on the assumption that Ocampo and Curato are bank officers sworn to secrecy under the law, the presence of two other persons who are not bank officers Aprodicio Laquian and Fernando Chua – when Estrada’s signed the bank documents as "Jose Velarde" amounted to a "public" use of an alias that violates CA No. 142. To our mind, the presence of Lacquian and Chua when Estrada signed as Jose Velarde and opened Trust Account No. C-163 does not necessarily indicate his intention to be publicly known henceforth as Jose Velarde. In relation to Estrada, Lacquian and Chua were not part of the public who had no access to Estrada’s privacy and to the confidential matters that transpired in Malacañan where he sat as President; Lacquian was the Chief of Staff with whom he shared matters of the highest and strictest confidence, while Chua was a lawyer-friend bound by his oath of office and ties of friendship to keep and maintain the privacy and secrecy of his affairs. Thus, Estrada could not be said to have intended his signing as Jose Velarde to be for public consumption by the fact alone that Lacquian and Chua were also inside the room at that time. The same holds true for Estrada’s alleged representations with Ortaliza and Dichavez, assuming the evidence for these representations to be admissible. All of Estrada’s representations to these people were made in privacy and in secrecy, with no iota of intention of publicity.

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In finding the absence of the requisite publicity, we simply looked at the totality of the circumstances obtaining in Estrada’s use of the alias "Jose Velarde" vis-à-vis the Ursua requisites. We do not decide here whether Estrada’s use of an alias when he occupied the highest executive position in the land was valid and legal; we simply determined, as the Sandiganbayan did, whether he may be made liable for the offense charged based on the evidence the People presented. As with any other accused, his guilt must be based on the evidence and proof beyond reasonable doubt that a finding of criminal liability requires. If the People fails to discharge this burden, as they did fail in this case, the rule of law requires that we so declare. We do so now in this review and accordingly find no reversible error of law in the assailed Sandiganbayan ruling.

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E. Crimes Relative to Opium & Other Prohibited Drugs

THE PEOPLE OF THE PHILIPPINES v. RAFAEL STA. MARIA y INDON G.R. No. 171019, February 23, 2007, FIRST DIVISION (Garcia, J)

Under consideration is this appeal by Rafael Sta. Maria y Indon from the Decision1 dated November 22, 2005 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00802, denying his earlier appeal from and affirming the May 5, 2004 decision2 of the Regional Trial Court (RTC) of Bulacan, Branch 20, which found him guilty beyond reasonable doubt of the crime of violation of Section 5,3 Article II of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

The indicting Information, docketed in the RTC as Criminal Case No. 3364-M-2002, alleges:

That on or about the 29th day of November, 2002, in the municipality of San Rafael, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and legal justification, did then and there willfully, unlawfully and feloniously sell, trade, deliver, give away, dispatch in transit and transport dangerous drug consisting of one (1) heat sealed transparent plastic sachet containing methylampetamine hydrochloride weighing 0.041 gram.

Contrary to law. Duly arraigned on January 23, 2003, appellant pleaded "Not Guilty" to the crime charged. During trial, the prosecution and the defense gave different versions of what transpired. In a decision dated May 5, 2004, the trial court found appellant guilty beyond reasonable doubt of the offense charged, and accordingly sentenced him.

On November 22, 2005, the CA promulgated the herein assailed Decision denying the appeal and affirming that of the trial court.

In his Brief, appellant contends that the trial court erred in convicting him because his guilt was not proven beyond reasonable doubt. He maintains that instigation, not entrapment, preceded his arrest. He also faults the appellate court in not finding that the evidence adduced by the prosecution was obtained in violation of Sections 21 and 86 of Republic Act No. 9165.

ISSUE:

Whether Sta. Maria is liable under Republic Act No. 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002

HELD:

Petition is without merit. Entrapment vs. Instigation It is appellant’s submission that what transpired on that fateful evening of November 29, 2002 was instigation and not a valid buy-bust operation. He would make much of the fact that the transaction between him and the police informant occurred on November 27, 2002, while the buy-bust operation took place on November 29, 2002. To appellant, the informant, by pretending that he was in need of shabu, instigated or induced him to violate the anti-dangerous drugs law. He adds that the prosecution was not able to prove that at the time of

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the police surveillance, he was indeed looking for buyers of shabu, and that were it not for the inducement of the informant that the latter would buy shabu, he would not have produced the same on November 29, 2002. In entrapment, the entrapper resorts to ways and means to trap and capture a lawbreaker while executing his criminal plan. In instigation, the instigator practically induces the would-be-defendant into committing the offense, and himself becomes a co-principal. In entrapment, the means originates from the mind of the criminal. The idea and the resolve to commit the crime come from him. In instigation, the law enforcer conceives the commission of the crime and suggests to the accused who adopts the idea and carries it into execution. The legal effects of entrapment do not exempt the criminal from liability. Instigation does.8

Here, the mere fact that the agreement between appellant and the police informant for the purchase and sale of illegal drugs was made on November 27, 2002, while the buy-bust operation was conducted on November 29, 2002, is of no moment. Without more, it does not prove that said informant instigated appellant into committing the offense. If at all, the earlier agreement and the subsequent actual sale suggest that appellant was habitually dealing in illegal drugs.

It is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the "decoy solicitation" of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting its commission. Especially is this true in that class of cases where the offense is one habitually committed, and the solicitation merely furnishes evidence of a course of conduct.

As here, the solicitation of drugs from appellant by the informant utilized by the police merely furnishes evidence of a course of conduct. The police received an intelligence report that appellant has been habitually dealing in illegal drugs. They duly acted on it by utilizing an informant to effect a drug transaction with appellant. There was no showing that the informant induced appellant to sell illegal drugs to him.

On Whether Sections 21 and 86 of R.A. 9165 Were Complied With Appellant demands absolute compliance with Section 21 and insists that anything short of the adherence to its letter, renders the evidence against him inadmissible. Pertinently, Section 21 of the law provides:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

Regrettably, the pertinent implementing rules, Section 21 of the IRR, states:

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Section 21. a. xxx Provided further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.

It is beyond quibbling then that the failure of the law enforcers to comply strictly with Section 21 was not fatal. It did not render appellant’s arrest illegal nor the evidence adduced against him inadmissible.

The law excuses non-compliance under justifiable grounds. However, whatever justifiable grounds may excuse the police officers involved in the buy-bust operation in this case from complying with Section 21 will remain unknown, because appellant did not question during trial the safekeeping of the items seized from him. Indeed, the police officers’ alleged violations of Sections 21 and 86 of Republic Act No. 9165 were not raised before the trial court but were instead raised for the first time on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection he cannot raise the question for the first time on appeal.

To recapitulate, the challenged buy-bust operation, albeit made without the participation of PDEA, did not violate appellant’s constitutional right to be protected from illegal arrest. There is nothing in Republic Act No. 9165 which even remotely indicate the intention of the legislature to make an arrest made without the participation of the PDEA illegal and evidence obtained pursuant to such an arrest inadmissible. Moreover, the law did not deprive the PNP of the power to make arrests.

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PEOPLE v. PRINGAS

DOLERA v. PEOPLE

GR 175928, AUG. 31, 2007

GR 180693, SEPT. 4, 2009

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E. Crimes Relative to Opium & Other Prohibited Drugs

PEOPLE OF THE PHILIPPINES, Appellee,

vs. NICOLAS GUTIERREZ y LICUANAN Appellant.

G.R. No. 179213

September 3, 2009

SECOND DIVISION (Carpio Morales,J)

. "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plants source of dangerous drugs or laboratory equipment at each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court and destruction. Such record of movements and custody of the seized item shall include the identity and signature of the person who held temporary custody of the seized item, the dates and times when such transfers of custody were made in the course of safekeeping and use in court as evidence, and the final disposition.

FACTS:

While on duty at the Drug Enforcement Unit of the Pasig City Police Force, SPO3 Matias received information from a concerned citizen that a certain alias "Nick," later identified to be appellant, was peddling shabu in Barangay Palatiw, Pasig City. On the instructions of SPO3 Matias, PO1 Espares and PO1 Mapula proceeded to, and surveilled, the area and confirmed the information.

SPO3 Matias thus formed a buy-bust team, which he headed, with PO1 Espares as poseur-buyer, and PO1 Mapula and PO1 Michael Familara (PO1 Familara) as members. The team thereafter went to the target area and met with a confidential asset who was to assist them in the operation.

During the operation, the buy-bust team yielded a pair of scissors, an unsealed plastic sachet containing traces of white crystalline substance, and five empty plastic sachets from appellant. PO1 Espares then marked all the seized items including the plastic sachet containing the substance subject of the sale. Appellant was brought to the police station wherein the confiscated items were surrendered to an investigator

Appellant was then charged with illegal sale of 0.05 gram of shabu and illegal possession of paraphernalia "fit or intended for smoking or introducing any dangerous drug into the body" under Sec(s) 5 and 12, respectively of R.A.9165

Appellant, for his part, advanced the defense of frame-up. He asserted that he was at home having dinner with his wife Josephine, daughter Jennifer and her husband when someone kicked open the door of their house. Four armed men in civilian clothes immediately entered, handcuffed and frisked him, and confiscated his wallet. On asking them what his offense was, he was simply told to explain at the police station.He was thereafter brought to the Pariancillo police precinct where a police officer showed him a plastic sachet and threatened that a case would be filed against him unless he paid P20,000. He failed to pay, however, hence, he was detained and subsequently charged.

The trial court convicted appellant of illegal sale of shabu. However, he was exonerated of the charge of illegal possession of paraphernalia. The Court of Appeals affirmed the decision of the trial court.

ISSUE: Whether or not the corpus delicti was duly established under the chain of custody rule.

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HELD:

Petition GRANTED.

The Court finds that the evidence for the prosecution failed to establish the chain of custody of the allegedly seized shabu. That the defense stipulated on these matters, viz: that the specimen exists, that a request has been made by the arresting officers for examination thereof, that a forensic chemist examined it, and that it tested positive for methylamphetamine hydrochloride has no bearing on the question of chain of custody. These stipulations, which merely affirm the existence of the specimen, and the request for laboratory examination and the results thereof, were entered into during pre-trial only in order to dispense with the testimony of the forensic chemist and abbreviate the proceedings. That such is the intention of the parties is clear from the additional stipulations that the forensic chemist had no personal knowledge as to the source of the alleged specimen; and that the defense was reserving its right to object to the pieces of evidence marked by the prosecution. 21 Clearly, the stipulations do not cover the manner the specimen was handled before it came to the possession of the forensic chemist and after it left her possession.

The nagging question, therefore, remains whether the object evidence subjected to laboratory examination and presented in court is the same object allegedly seized from appellant.

While alleged poseur-buyer PO1 Espares testified on the marking and eventual turnover of the allegedly seized sachet of substance to the investigator, no explanation was given regarding its custody in the interim from the time it was turned over to the investigator to its turnover for laboratory examination. Such want of explanation bares a significant gap in the chain of custody of the allegedly seized item. And what happened to the allegedly seized shabu between the turnover by the chemist to the investigator and its presentation in court, the records do not show.

The Court made it clear in Malillin that the chain of custody rule requires that there be testimony about every link in the chain, from the moment the object seized was picked up to the time it is offered in evidence, in such a way that every person who touched it would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. The totality of the prosecution evidence does not meet this standard.

The Court also notes another lapse of the members of the buy-bust team their failure to comply with the procedural requirements of Section 21, Paragraph 1 of Article II of R.A. No. 9165 with respect to custody and disposition of confiscated drugs. There was no physical inventory and photograph of the shabu allegedly confiscated from appellant. There was likewise no explanation offered for the non-observance of the rule. Coupled with the failure to prove that the integrity and evidentiary value of the items adduced were not tainted, the buy bust team’s disregard of the requirements of Section 21 is fatal.

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E. Crimes Relative to Opium & Other Prohibited Drugs

PEOPLE OF THE PHILIPPINES, appellee vs. ROLANDO LAYLO Y CEPRES, appellant G.R.No.192235, July 6, 2011 Second Division ( Carpio, J.)

The elements necessary for the prosecution of illegal sale of drugs are: (1) the identity of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment. 9

FACTS:

PO1 Reyes and PO1 Pastor, both wearing civilian clothes, were conducting anti-drug surveillance operations

in Binangonan, Rizal. While the police officers were in front of a sari-sari store , appellant Laylo and his live-in

partner, Ritwal,

Bakit mayroon ka ba?” Laylo then brought out two plastic bags containing shabu and told the police officers, Dos (P200.00) ang isa.” Upon hearing this, the police officers introduced themselves as cops. PO1 Reyes immediately arrested Laylo. Ritwal, on the other, tried to get away but PO1 Pastor caught up with her. PO1 Pastor then frisked Ritwal and found another sachet of shabu in a SIM card case which Ritwal was carrying.

approached them and asked, “Gusto mong umiskor ng shabu?” PO1 Reyes replied,

The police officers charged Laylo for attempted sale of illegal drugs and used the two plastic sachets containing shabu as basis while Ritwal was charged for possession of illegal drugs using as basis the third sachet containing 0.02 grams of shabu.

Laylo, on his part denied the allegations against him and testified that while he and his common-law wife, Ritwal, were walking on the street, two men grabbed them. The two men, who they later identified as PO1 Reyes and PO1 Pastor, dragged them to their house. Once inside, the police officers placed two plastic sachets in each of their pockets. Afterwards, they were brought to the police station where, despite protests and claims that the drugs were planted on them, they were arrested and charged. This was further corroborated by his three neighbors.

The RTC found Laylo and Ritwal guilty beyond reasonable doubt of violations of RA 9165. The Court of Appeals affirmed the decision of the trial court, hence this appeal.

ISSUE:

Whether or not Rolando Laylo and Melitona Ritwal guilty of violating Sec 26(b) and Sec 11 of R.A. 9165, respectively.

HELD:

Petition DENIED

The elements necessary for the prosecution of illegal sale of drugs are: (1) the identity of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment. 9

From the testimonies given, PO1 Reyes and PO1 Pastor testified that they were the poseur-buyers in the sale. Both positively identified appellant as the seller of the substance contained in plastic sachets which were

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found to be positive for shabu. The same plastic sachets were likewise identified by the prosecution witnesses when presented in court. Even the consideration of P200.00 for each sachet had been made known by appellant to the police officers. However, the sale was interrupted when the police officers introduced themselves as cops and immediately arrested appellant and his live-in partner Ritwal. Thus, the sale was not consummated but merely attempted. Thus, appellant was charged with attempted sale of dangerous drugs

In addition, the plastic sachets were presented in court as evidence of corpus delicti. Thus, the elements of the crime charged were sufficiently established by evidence.

Further, it was held that allegations of frame-up and extortion by police officers are common and standard defenses in most dangerous drugs cases. They are viewed by the Court with disfavor, for such defenses can easily be concocted and fabricated.

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G. Articles 203-245: Crimes Committed by Public Officers

ACEJAS III v. PEOPLE

TORRES v. PEOPLE

GR 156643, JUNE 27, 2006

GR 175074, AUG. 31, 2011

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G. Articles 203-245: Crimes Committed by Public Officers

Candao v. People of the Philippines G.R. Nos. 186659-710; October 19, 2011

The failure of a public officer to have duly forthcoming any public fund or property with which he is chargeable, upon demand by any duly authorized officer, shall beprima facie evidence that he has put such missing funds or property to personal uses.

Villarama, Jr., J.:

Chairman Pascasio S. Banaria of the Commission on Audit (COA) constituted a team of auditors from the central office to conduct an Expanded Special Audit of the Office of the Regional Governor, Autonomous Region for Muslim Mindanao (ORG-ARMM). In the Special Audit Office (SAO) Report No. 93-25 as submitted by the audit team, it was found that illegal withdrawals were made from the depository accounts of the agency through the issuance of checks payable to the order of petitioner Israel B. Haron (Disbursing Officer II) without the required disbursement vouchers. Subsequently, Chairman Banaria demanded from petitioner Haron to produce and restitute to the ARMM-Regional Treasurer immediately the full amount of P21,045,570.64 and submit his explanation within seventy-two (72) hours together with the official receipt issued by the ARMM Regional Treasurer in acknowledgment of such restitution.

On April 17, 1998, the Office of the Special Prosecutor, Office of the Ombudsman-Mindanao, filed in the Sandiganbayan criminal cases for malversation of public funds against the following ORG-ARMM

officials/employees: Zacaria A. Candao (Regional Governor), Israel B. Haron (Disbursing Officer II), Abas

A. Candao (Executive Secretary) and Pandical M. Santiago (Cashier). They were charged with violation of

Article 217 of the Revised Penal Code, as amended, under several informations with identical allegations except for the varying date, number and amount of the check involved in each case. Several witnesses were presented by the defense, all saying that it was SOP to issue checks for the purpose of "peace and order campaign." However, it was clear that the way that the funds totalling over 21 million pesos were disbursed was highly irregular.

The Sandiganbayan found petitioner Haron guilty beyond reasonable doubt of malversation of public funds under Article 217 of the Revised Penal Code, as amended, committed in conspiracy with petitioners Zacaria

A. Candao and Abas A. Candao who were likewise sentenced to imprisonment and ordered to pay a fine

equivalent to the amount of the check in each case. It is worthy to note that the disbursement vouchers for

the amount in question surfaced, but only during the proceedings at the Sandiganbayan.

The Sandiganbayan found no merit in petitioners’ claim that the subject checks were covered by existing disbursement vouchers which were belatedly submitted and received by the COA Central Office on October 29, 1993. It said that had those vouchers really existed at the time of the 52 withdrawals petitioners made from December 29, 1992 to March 30, 1993, petitioner Haron could have readily produced them when required to do so by the special audit team on August 24, 1993.

The Sandiganbayan noted that petitioners presented no proof that the cash advances intended for “peace and order campaign” were spent for public purposes, as in fact the alleged disbursement vouchers did not indicate any detail as to the nature of the expense/s such as purchase of equipment, services, meals, travel, etc. and there were no supporting documents such as the Request for Issuance of Voucher, Purchase Request and Inspection Report of the items supposedly purchased.

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On whether the petitioners are liable under Article 217 of the RPC

THE PETITION HAS NO MERIT.

Article 217 of the Revised Penal Code, as amended, provides:

Art. 217. Malversation of public funds or property Presumption of malversation. - Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the

amount involved in the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the

amount involved is more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its

minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the

amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public fund or property with which he is chargeable, upon demand by any duly authorized officer, shall beprima facie evidence that he has put such missing funds or property to personal uses.

The following elements are essential for conviction in malversation cases:

1. That the offender is a public officer;

2. That he had custody or control of funds or property by reason of the duties of his office;

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G. Articles 203-245: Crimes Committed by Public Officers

3. That those funds or property were public funds or property for which he was accountable; and

4. That he appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them.

All the foregoing elements were satisfactorily established by the prosecution in this case. Petitioners have not rebutted the legal presumption that with the Disbursing Officer’s (Haron) failure to account for the illegally withdrawn amounts covered by the subject checks when demanded by the COA, they misappropriated and used the said funds for their personal benefit.

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Javier v. Sandiganbayan G.R. Nos. 147026-27; September 11, 2009

Notwithstanding that petitioner came from the private sector to sit as a member of the NBDB, the law invested her with some portion of the sovereign functions of the government, so that the purpose of the government is achieved.

Peralta, J.:

Republic Act (R.A.) No. 8047, or "Book Publishing Industry Development Act", was enacted into law. Foremost in its policy is the State's goal in promoting the continuing development of the book publishing industry, through the active participation of the private sector, to ensure an adequate supply of affordable, quality-produced books for the domestic and export market.

Petitioner was appointed to the Governing Board as a private sector representative for a term of one (1) year. During that time, she was also the President of the Book Suppliers Association of the Philippines (BSAP). She was on a hold-over capacity in the following year. On September 14, 1998, she was again appointed to the same position and for the same period of one (1) year. Part of her functions as a member of the Governing Board is to attend book fairs to establish linkages with international book publishing bodies. On September 29, 1997, she was issued by the Office of the President a travel authority to attend the Madrid International Book Fair in Spain on October 8-12, 1997. Based on her itinerary of travel, she was paidP139,199.00 as her travelling expenses.

Unfortunately, petitioner was not able to attend the scheduled international book fair.

Resident Auditor Rosario T. Martin advised petitioner to immediately return/refund her cash advance considering that her trip was canceled. Petitioner, however, failed to do so. She was issued a Summary of Disallowances from which the balance for settlement amounted to P220,349.00. Despite said notice, no action was forthcoming from the petitioner.

Dr. Nellie R. Apolonio, then the Executive Director of the NBDB, filed with the Ombudsman a complaint against petitioner for malversation of public funds and properties. She averred that despite the cancellation of the foreign trip, petitioner failed to liquidate or return to the NBDB her cash advance within sixty (60) days from date of arrival, or in this case from the date of cancellation of the trip, in accordance with government accounting and auditing rules and regulations. Dr. Apolonio further charged petitioner with violation of Republic Act (R.A.) No. 6713 for failure to file her Statement of Assets and Liabilities.

The Ombudsman found probable cause to indict petitioner for violation of Section 3(e) of R.A. No. 3019, as amended, and recommended the filing of the corresponding information. It, however, dismissed for insufficiency of evidence, the charge for violation of R.A. No. 6713. Petitioner was charged with violation of Section 3(e) of R.A. No. 3019 before the Sandiganbayan which was docketed as Criminal Case No. 25867.

Meanwhile, the Commission on Audit charged petitioner with Malversation of Public Funds, as defined and penalized under Article 217 of the Revised Penal Code, for being a member of the Governing Board of the National Book Development Board equated to Board Member II with a salary grade 28 and as such, is accountable for not liquidating the cash advance granted to her in connection with her supposed trip to

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Spain. During the conduct of the preliminary investigation, petitioner was required to submit her counter- affidavit but she failed to do so. The Ombudsman found probable cause to indict petitioner for the crime charged and recommended the filing of the corresponding information against her.

On whether the petitioner is a public officer.

PETITION DISMISSED. THE COURT RULED THAT THE PETITIONER IS A PUBLIC OFFICER.

Petitioner hinges the present petition on the ground that the Sandiganbayan has committed grave abuse of discretion amounting to lack of jurisdiction for not quashing the two informations charging her with violation of the Anti-Graft Law and the Revised Penal Code on malversation of public funds. She advanced the following arguments in support of her petition, to wit: first, she is not a public officer, and second, she was being charged under two (2) informations, which is in violation of her right against double jeopardy.

To substantiate her claim, petitioner maintained that she is not a public officer and only a private sector representative, stressing that her only function among the eleven (11) basic purposes and objectives provided for in Section 4, R.A. No. 8047, is to obtain priority status for the book publishing industry. At the time of her appointment to the NDBD Board, she was the President of the BSAP, a book publishers association. As such, she could not be held liable for the crimes imputed against her, and in turn, she is outside the jurisdiction of the Sandiganbayan.

A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.

Notwithstanding that petitioner came from the private sector to sit as a member of the NBDB, the law invested her with some portion of the sovereign functions of the government, so that the purpose of the government is achieved. In this case, the government aimed to enhance the book publishing industry as it has a significant role in the national development. Hence, the fact that she was appointed from the public sector and not from the other branches or agencies of the government does not take her position outside the meaning of a public office. She was appointed to the Governing Board in order to see to it that the purposes for which the law was enacted are achieved. The Governing Board acts collectively and carries out its mandate as one body. The purpose of the law for appointing members from the private sector is to ensure that they are also properly represented in the implementation of government objectives to cultivate the book publishing industry.

The Court is not unmindful of the definition of a public officer pursuant to the Anti-Graft Law, which provides that a public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government. Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been elected or appointed to a public office. Petitioner was appointed by the President to the Governing Board of the NDBD.

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Revised Penal Code defines a public officer as any person who, by direct provision of the law, popular election, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public officer.

Where, as in this case, petitioner performs public functions in pursuance of the objectives of R.A. No. 8047, verily, she is a public officer who takes part in the performance of public functions in the government whether as an employee, agent, subordinate official, of any rank or classes. In fact, during her tenure, petitioner took part in the drafting and promulgation of several rules and regulations implementing R.A. No. 8047. She was supposed to represent the country in the canceled book fair in Spain.

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Ariel Santos vs. People of the Philippines and the Sandiganbayan G.R. No. 161877, 23 March 2006, SECOND DIVISION (Garcia, J.)

The Petitioner’s act of issuing the two writs of execution without first resolving the pending motion for reconsideration and despite the existence of a TRO was clearly tainted with or attended by evident partiality causing undue injury to private complainant.

FACTS:

Labor Arbiter Andres Palumbarit of the Ministry of Labor and Employment of Region 3 rendered a decision in the case entitled Abraham M. Mose vs. Plaza Hotel/Apartments, owned by Conrado L. Tiu. ordering Conrado L. Tiu to pay his former employee, Abraham Mose, backwages and other benefits from the time he was illegally dismissed up to the time of his reinstatement, without however indicating any particular amount.

Pursuant to the above Labor Decision, NLRC Corporate Auditing Examiner Maria Lourdes L. Flores issued a Report of Examiner rendering the computation of Abraham Mose’s backwages and benefits for a period of three (3) years from July 1979 for a total amount of P16,360.50.

Plaza Hotel/Apartments filed a Memorandum of Appeal with the MOLE Region 3, seeking for the reversal/reconsideration of the above stated Labor Decision. This appeal was, however, dismissed. Plaza Hotel/Apartments raised their appeal to the Honorable Supreme Court. While the appeal was still pending before the Court, another Report of Examiner was rendered by Examiner Philip A. Manansala increasing the award from P16,360.50 to P63,537.76 which now covered backwages and benefits from July 1979 to May 1987. This sudden increase of judgment award prompted Plaza Hotel/Apartments to file an objection to the Report of Examiner Philip Manansala, citing among others: a) Supreme Court rulings that the maximum backwages to be paid should only cover three (3) years from dismissal; Supreme Court denied the appeal filed by Plaza Hotel/Apartments and with finality. Thereafter, NLRC Region 3 through Norma G. Reyes made a re-computation of the judgment award in favor of Abraham Mose in accordance with the Supreme Court ruling covering a period of only three (3) years from the date of dismissal. This recomputed award amounted to P19,908.46.

After the above incidents, the Petitioner took over the above Labor Case. He issued an Order which increased the judgment award from P19,908.46 to a skyrocketing P178,462.56. This computation was contrary to the prevailing jurisprudence in Lepanto Consolidated Mining Co. vs. Encarnacion, where the monetary awards for illegally dismissed employees should only cover a three (3) year-period from the time of dismissal. The Order of the petitioner included the order for the issuance of Writ of Execution. Plaza Hotel/Apartments filed a Motion for Reconsideration seeking the reconsideration of the above Order of the Petitioner. During the pendency of the Plaza Hotel’s Motion for Reconsideration, Abraham Mose through counsel filed an Ex-Parte Motion for Execution of the Order. This was opposed by Plaza Hotel/Apartments. Without however acting on the Plaza Hotel/Apartments’ Motion for Reconsideration and the Opposition to Motion for Execution, the Petitioner issued a Writ of Execution to implement his Order to collect the amount of P178,462.56. Plaza Hotel/Apartments filed a Motion to Quash Writ of Execution and to Resolve Motion for Reconsideration. The Petitioner however ignored all the abovesaid Motions and pleadings filed by Plaza Hotel/Apartments.

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Conrado L. Tiu was then compelled to file a Petition for Injunction before the Department of Labor and Employment with a prayer for a Temporary Restraining Order [TRO].

The NLRC issued the TRO enjoining the Petitioner from enforcing his Writ of Execution. In order to implement the TRO, the NLRC imposed as a condition the posting by Conrado L. Tiu of a cash or surety bond equivalent to the judgment award. Despite the TRO, the Petitioner issued an "Alias Writ of Execution" reiterating the enforcement of his previous Writ of Execution. However, this was not enforced due to the TRO presented by Conrado L. Tiu to the NLRC Sheriffs. Information was filed with the Sandiganbayan charging the Petitioner with the violation of Section 3(e) of Republic Act (R.A.) No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. The Petitioner contended that he deemed not to resolve the Motion for Reconsideration filed by the Plaza Hotel/Apartments because he felt there is no necessity to resolve it, since the decision of Labor Arbiter Palumbarit has become final and executory, hence, ministerial for his part to implement and enforce the same. The Sandiganbayan adjudged petitioner guilty as charged. His Motion for Reconsideration was likewise denied. Hence, this petition.

ISSUES:

1. Was the Petitioner guilty of manifest partiality in issuing the writs of execution subject of the Information?

2. Did the Private Complainant suffered undue injury? (since judgment for which he was held liable to pay

backwages whether for that limited period of 3 year or continuing backwages until actual reinstatement has

never been satisfied)

HELD:

Petition DENIED. Section 3(e) of R.A. No. 3019, as amended, under which petitioner was indicted and convicted, reads:

SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

xxx xxx xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. In Jacinto vs. Sandiganbayan, 11 the Court en banc enumerated the essential elements of the crime punishable under the aforequoted statutory provision, to wit:

1. The accused must be a public officer discharging administrative, judicial or official functions;

2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and

3. That his action caused any undue injury to any party, including the government, or giving any private party

unwarranted benefits, advantage or preference in the discharge of his functions. GUILTY OF MANIFEST PARTIALITY The Court agrees with the findings and disquisitions of the Sandiganbayan that petitioner exhibited manifest partiality towards Abraham Mose in issuing the two Writs of Execution.

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As a Labor Arbiter, and a lawyer at that, it is incumbent upon him to exercise prudence and probity in the exercise of his functions. He knew that there was a pending Motion for Reconsideration filed by Plaza Hotel/Apartments contesting his order ordering, in haste, the issuance of the writ of execution and regarding the hulking increase of the amount of backwages to be paid to Abraham Mose from P19,908.46 to P178,462.56, and despite the pendency of the said Motion, he issued the corresponding writ of execution. His reason that there is no longer a necessity to resolve the motion for reconsideration because the Decision of Labor Arbiter Palumbarit has become final and executory is untenable and a very negligible statement. The issue raised in the motion for reconsideration is not the Decision of Labor Arbiter Palumbarit, but Petitioner's Order and thus, incumbent upon him to resolve first the pending motion for reconsideration before pursuing with the implementation of the said Order and instead of issuing the writ of execution. Furthermore, Petitioner again issued an alias writ of execution, this time, despite issuance of a temporary restraining order by the DOLE-NLRC. By these acts of Ariel Santos, it is clearly evident that he had exercised manifest partiality or bias on Abraham Mose in impetuously issuing the two writs of execution, thus, causing damage and injury, which are not merely negligible to Plaza Hotel/Apartments. PRIVATE COMPLAINANT SUFFERED INJURY Petitioner also maintains that Plaza Hotel did not suffer damage or injury consequent to his having issued the two writs of execution, arguing that neither was ever enforced. Pressing the point, he also states that what Plaza Hotel paid by way of attorney's fees and premium for the supersedeas bond it posted to enjoin the enforcement of the alias writ of execution is not the damage or injury contemplated under Section 3(e) of R.A. No. 3019. The contention is untenable. Due to the issuance of the Petitioner of the two writs of execution despite the issuance by the NLRC Proper of a TRO, Plaza Hotel was within its right to secure the services of counsel and, to apply for injunctive relief and then pay for the supersedeas bond to stay the implementation of the writ of execution in question. In net effect, Plaza Hotel incurred damages rendered necessary by the illegal or improper acts of petitioner. All told, the Court rules and so holds, as did the Sandiganbayan, that the elements of the offense charged

had been duly established beyond reasonable doubt. Petitioner, being a labor arbiter of the NLRC,

discharges quasi-judicial functions. His act of issuing the two writs of execution without first resolving the pending motion for reconsideration of his Order, and despite the existence of a TRO was clearly tainted with or attended by evident partiality causing undue injury to private complainant Conrado L. Tiu.

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Marietta T. Caugma, et al vs. People of the Philippines and the Sandiganbayan G.R. No. 167048, 7 April 2006, FIRST DIVISION (CALLEJO, SR., J.)

The prosecution is burdened to prove the factual basis and amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party. Courts cannot simply rely on speculations, conjectures or guesswork in determining the fact and the amount of damages. Conspiracy or collusion by and among public officers, inter se, and via private individuals to commit the crime under Section 3(e) of Rep. Act No. 3019 must likewise be proven by the prosecution beyond reasonable doubt.

FACTS:

Way back, Bureau of Fisheries and Aquatic Resources (BFAR) had acquired eight vessels from Japan under the RP-Japan Reparation Commission Agreement, one of which is the “M/V Malasugui”. Due to old age (27 years), the vessel has to be repaired more frequently. The vessel sustained leaks on her forward hull while docked at Pier 4, Fishing Port, Navotas. BFAR engaged the services of V/L Shipyard Corporation (Corporation) for which BFAR was billed a total amount of P103,111.40 for services rendered including repairs and berthing fees evidenced by Invoice Nos. 1529 and 1589.

It was recommended to the Bureau Director that the vessel should be disposed of considering that it could no longer serve its purpose due to “old age and deteriorating superstructure.”

Pursuant to E.O. No. 888, BFAR created a Disposal Committee in order to facilitate the disposal of

M/V Malasugui. Among the committee members were Marietta T.

as chairperson; Amiana M. Abella, vice-chairperson; Rosauro M. Martinez, BFAR Representative as member; Villa J. Bernaldo, COA Auditor/Representative as member; and Meynardo Geralde, Jr., Supply Coordination Office representative, as member.

Caugma, Chief of the Finance Division

The Disposal Committee submitted its Report on the appraisal of the vessel, recommending that it be sold at public auction at the appraised value of P86,917.60, including the charges of the sale. These were transmitted to Bureau Director Gonzales.

Gonzales issued an Invitation to Bid which also contained the conditions of the sale of the vessel. He revised the proposed procedural guidelines of the Committee (Condition No. 8 of the Invitation to Bid) to provide that the “bidder agrees to pay, in addition to the award price, taxes, duties and other costs such as berthing fees, cost of publication of the bid, etc. and levies which may be imposed by law.”

The invitation to bid was published in the Times Journal for three consecutive days. The publisher billed the BFAR P2,400.00 as publication fee.

During the publing bidding, the Corporation submitted its sealed bid P13,890.00 or 10% of its bid price as required by the invitation to bid as well as copies of Invoice Nos. 1529 and 1589 showing that the Corporation had billed the Bureau the total amount of P103,111.40 for various services rendered on the vessel.

Caugma asked the committee members if the lone bid of the Corporation could already be opened and they all agreed. Nacua did not interpose any objection because she believed in good faith that it was in

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accordance with COA rules and regulations. Caugma opened the bid and receipted the P13,890.00

representing 10% of the bid price of P138,900.00, broken down as follows: publication fee, P2,400.00;

berthing fee,

P103,111.40; charges on the BFAR, P33,388.60.

Believing that the bid price for the vessel was P138,900.00 and that this amount surpassed the appraised value of P86,917.60, the Committee members resolved to recommend to the Bureau Director that the sale of the vessel be awarded to the Corporation for final approval.

Gonzales after a thorough investigation was authorized to award and sell the vessel to the Corporation for P138,900.00, pursuant to Section 79 of P.D. No. 1445, and Section 3, paragraph 3 of E.O. No. 888.

Antonio B. Baltazar, a former BFAR Chief Technologist filed a Complaint-Affidavit with the Ombudsman against Director Felix Gonzales for negligence under Article 365 of the Revised Penal Code for the leaks of the vessel while berthed at Navotas, Metro Manila. Baltazar claimed, among others, that Gonzales had failed to file an insurance claim on the vessel from the Government Service Insurance System. The matter was referred to the COA.

Regional Director of the COA directed Villa Bernaldo (then BFAR Auditor) to conduct a discreet inquiry regarding Baltazar’s complaint. Bernaldo concluded that the vessel’s appraised value of P86,917.60 was not met xx.

Baltazar thereafter filed a Manifestation with the Ombudsman requesting the inclusion of Caugma, Abella, Bernaldo, and Martinez as respondents.

Ombudsman filed an Information charging Eddie S. Galler, Jr., Marietta Caugma, Amiana Abella and

Rosauro Martinez of

violating Section 3(e) of Republic Act No. 3019.

It was claimed that the second bidding should not have proceeded because the lone bidder offered to purchase the vessel for only P33,388.60 instead of its appraised value as required by

Section 6, paragraph 1 of E.O. No. 888. She further declared that to comply with E.O. No. 888, the minimum acceptable selling price was P190,000.00 broken down as follows: P2,400.00 for publication fee; berthing fee of P103,111.40; and P86,917.60 for the appraised value of the vessel. Considering that this bid price was not reached after the second bid, the Committee should have declared a failure of bid, hence, per COA regulations, the vessel should have been sold through negotiation for a price to be fixed by the Commission.

Sandiganbayan rendered judgment convicting the four (4) accused of the crime charged.

The Sandiganbayan ruled that, under Condition No. 8 of the invitation to bid, only those bidders who had agreed to pay no less than the appraised value of the vessel, P86,917.60, excluding taxes, duties and other costs (such as berthing fees, publication of the bid and levies which may be imposed by law), should have been considered by the Committee. Caugma was aware of this condition in the invitation to bid. The Sandiganbayan further declared that Caugma had knowledge of the fact that the berthing fee was P103,111.40 since it was clearly indicated in the invitation to bid. Thus, in evident bad faith, the accused conspired

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together and awarded the vessel to the Corporation for P138,900.00, of which only P33,388.60 would be remitted to the BFAR.

The Sandiganbayan concluded that the prosecution proved beyond reasonable doubt that the Disposal Committee gave unwarranted advantage and preference to Galler, Jr., causing injury to the government to the extent of P53,529.00; after deducting the publication fee of P2,400.00 and the berthing fee of P103,111.40, the government realized only the net amount of P33,388.60, short by P53,529.00 of the appraisal value of the vessel, P86,917.60.

Petitioners moved for the reconsideration of the decision, which the graft court denied.

Hence, this petition.

ISSUES:

Was the prosecution able to prove that the petitioners acted in evident bad faith in awarding the sale of the vessel to the Corporation (NO)

Did the Government suffer damage/injury in the amount of P53,529.00. (NO)

HELD:

Petition GRANTED.

Section 3(e) of Rep. Act No. 3019 provides:

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith, or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

The essential elements of violation of the provision are as follows:

1. The accused must be a public officer discharging administrative, judicial or

official functions;

2. He must have acted with manifest partiality, evident bad faith or inexcusable

negligence; and

3. That his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.

It must be stressed that mere bad faith is not enough for one to be liable under the law, since the act of bad faith must in the first place be evident.

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Undue injury has been interpreted as synonymous to actual damages which is akin to that in civil law. The prosecution is burdened to prove the factual basis and amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party. Courts cannot simply rely on speculations, conjectures or guesswork in determining the fact and the amount of damages.

Conspiracy or collusion by and among public officers, inter se, and via private individuals to commit the crime under Section 3(e) of Rep. Act No. 3019 must likewise be proven by the prosecution beyond reasonable doubt. This was the ruling of the Court in Desierto v. Ocampo:

Collusion implies a secret understanding whereby one party plays into another’s hands for fraudulent purposes. It may take place between and every contractor resulting in no competition, in which case, the government may declare a failure of bidding. Collusion may also ensue between contractors and the chairman and members of the PBAC to simulate or rig the bidding process, thus insuring the award to a favored bidder, to the prejudice of the government agency and public service. For such acts of the chairman and the members of the PBAC, they may be held administratively liable for conduct grossly prejudicial to the best interest of the government service. Collusion by and among the members of the PBAC and/or contractors submitting their bids may be determined from their collective acts or omissions before, during and after the bidding process. The complainants are burdened to prove such collusion by clear and convincing evidence because if so proved, the responsible officials may be dismissed from the government service or meted severe administrative sanctions for dishonesty and conduct prejudicial to the government service.

The SC agrees with petitioners’ contention that the crime of violation of Section 3(e) of Rep. Act No. 3019 was not committed when the Committee conducted the bidding and resolved to recommend to the Minister, through the BFAR Director, to award the sale of the vessel to the Corporation; neither was it committed when the award was made by the BFAR Director to the Corporation. This is so because there was as yet no evidence that the government sustained a loss of P53,529.60. The crime would have been committed if the Corporation had remitted to the National Treasurer the P138,900.00, and the P103,111.40 was applied by way of set-off against Bureau’s account to said Corporation for Bill Nos. 1529 and 1589.

The prosecution failed to prove beyond reasonable doubt that the government lost P53,529.00 in the sale of the vessel. The only evidence presented is the Corporation’s bid and the Report of Villa Bernaldo. The Prosecution offered no competent and sufficient evidence to prove the actual damages caused to the government. On the other hand, the BFAR Director declared that the vessel was sold to the Corporation for P138,900.00, which accepted and remitted the amount to the national treasury, as full payment of the vessel. The government receipted the amount “as proceeds of the sale” of the vessel. To reiterate, there is no evidence on record that, after the Corporation had remitted the P138,900.00, P103,111.40 thereof was applied to the Bureau’s account under Bill Nos. 1529 and 1589 by way of set off.

Thus, the full amount of the bid price, P138,900.00, which the Corporation remitted to the

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national treasury was intact; yet, petitioners were prosecuted and convicted of violation of Section 3(e) of Rep. Act No. 3019.

In fine then, the Court holds that the travesty which had been committed must be undone.

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VENANCIO R. NAVA vs. RODOLFO G. PALATTAO et al. G.R. No. 160211, August 28, 2006, PANGANIBAN, CJ

To sustain a conviction under Section 3(g) of Republic Act No. 3019, it must be clearly proven that 1) the accused is a public officer; 2) the public officer entered into a contract or transaction on behalf of the government; and 3) the contract or transaction was grossly and manifestly disadvantageous to the government.

Lack of public bidding alone does not result in a manifest and gross disadvantage. Indeed, the absence of a public bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption. Nevertheless, the law requires that the disadvantage must be manifest and gross. Penal laws are strictly construed against the government.

FACTS:

COA conducted an audit of the 9.36 million allotment which was released in 1990 by the DECS, Region XI to its Division Offices. In the Audit Report, the amount of P603,265.00 was shown to have been released to the DECS Division of Davao del Sur for distribution to the newly nationalized high schools located within the region. Through the initiative of accused Venancio Nava, a meeting was called among his seven (7) schools division superintendents whom he persuaded to use the money or allotment for the purchase of Science Laboratory Tools and Devices (SLTD). In other words, instead of referring the allotment to the one hundred fifty-five (155) heads of the nationalized high schools for the improvement of their facilities, accused Nava succeeded in persuading his seven (7) schools division superintendents to use the allotment for the purchase of science education facilities for the calendar year 1990.

In the purchase of the school materials, the law provides that the same shall be done through a public bidding pursuant to Circular No. 85-55, series of 1985. But in the instant case, evidence shows that accused Nava persuaded his seven (7) schools division superintendents to ignore the circular as allegedly time was of the essence in making the purchases and if not done before the calendar year 1990, the funds allotted will revert back to the general fund.

In the hurried purchase of SLTD’s, the provision on the conduct of a public bidding was not followed. Instead the purchase was done through negotiation. As disclosed by the audit report, the prices of the [SLTDs] as purchased exceeded the prevailing market price ranging from 56% to 1,175% based on the mathematical computation done by the COA audit team. The report concluded that the government lost P380,013.60. That the injury to the government as quantified was the result of the non-observance by the accused of the COA rules on public bidding and DECS Order No. 100 suspending the purchases of [SLTDs].

The Commission on Audit (COA) Report recommended the filing of criminal and administrative charges against the persons liable, including petitioner, before the Office of the Ombudsman-Mindanao. Petitioner Nava was subsequently charged with a violation of the Anti-Graft and Corrupt Practices Act. After due trial, only petitioner was convicted, while all the other accused were acquitted.

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The Sandiganbayan found petitioner Nava guilty of violating Section 3(g) of the Anti-Graft and Corrupt Practices Act, or entering on behalf of the government any contract or transaction manifestly and grossly disadvantageous to the latter, whether or not the public officer profited or would profit thereby.

The Sandiganbayan (SBN) said that, in the purchase of the Science Laboratory Tools and Devices (SLTDs), petitioner Nava had not conducted a public bidding in accordance with COA Circular No. 85- 55A. As a result, the prices of the SLTDs, as purchased, exceeded the prevailing market price from 56 percent to 1,175 percent, based on the mathematical computations of the COA team. In his defense, petitioner had argued that the said COA Circular was merely directory, not mandatory. Further, the purchases in question had been done in the interest of public service.

In its assailed Resolution, the SBN denied petitioner’s Motion for Reconsideration. It held that the series of acts culminating in the questioned transactions constituted violations of Department of Education, Culture and Sports (DECS) Order No. 100; and COA Circular No. 85-55A. Those acts, ruled the SBN, sufficiently established that the contract or transaction entered into was manifestly or grossly disadvantageous to the government.

Hence, this Petition.

ISSUE:

Whether or not the Sandiganbayan committed reversible errors (not grave abuse of discretion) in finding petitioner guilty beyond reasonable doubt of violation of Section 3(g), Republic Act No. 3019.

HELD:

Petition is DENIED.

To sustain a conviction under Section 3(g) of Republic Act No. 3019, it must be clearly proven that 1) the accused is a public officer; 2) the public officer entered into a contract or transaction on behalf of the government; and 3) the contract or transaction was grossly and manifestly disadvantageous to the government.

From the foregoing, it is clear that the Sandiganbayan did not err in ruling that the evidence presented warranted a verdict of conviction. Petitioner is a public officer, who approved the transactions on behalf of the government, which thereby suffered a substantial loss. The discrepancy between the prices of the SLTDs purchased by the DECS and the samples purchased by the COA audit team clearly established such undue injury. Indeed, the discrepancy was grossly and manifestly disadvantageous to the government.

We must emphasize however, that the lack of a public bidding and the violation of an administrative order do not by themselves satisfy the third element of Republic Act No. 3019, Section 3(g); namely, that the contract or transaction entered into was manifestly and grossly disadvantageous to the government, as seems to be stated in the Resolution of the Sandiganbayan denying the Motion for Reconsideration. Lack of public

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bidding alone does not result in a manifest and gross disadvantage. Indeed, the absence of a public bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption. Nevertheless, the law requires that the disadvantage must be manifest and gross. Penal laws are strictly construed against the government.

If the accused is to be sent to jail, it must be because there is solid evidence to pin that person down, not because of the omission of a procedural matter alone. Indeed, all the elements of a violation of Section 3(g) of Republic Act No. 3019 should be established to prove the culpability of the accused. In this case, there is a clear showing that all the elements of the offense are present. Thus, there can be no other conclusion other than conviction.

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OFELIA C. CAUNAN vs. PEOPLE OF THE PHILIPPINES et al. / JOEY P. MARQUEZ vs. SANDIGANBAYAN G.R. Nos. 181999 & 182001-04 / G.R. Nos. 182020-24, September 2, 2009, NACHURA, J.

The gross and manifest disadvantage to the government was not sufficiently shown because the conclusion of overpricing was erroneous since it was not also adequately proven.

In criminal cases, to justify a conviction, the culpability of an accused must be established by proof beyond a reasonable doubt. The burden of proof is on the prosecution, as the accused enjoys a constitutionally enshrined disputable presumption of innocence. The court, in ascertaining the guilt of an accused, must, after having marshaled the facts and circumstances, reach a moral certainty as to the accused’s guilt. Moral certainty is that degree of proof which produces conviction in an unprejudiced mind. Otherwise, where there is reasonable doubt, the accused must be acquitted.

FACTS:

In March 1999, a Special Audit Team audited selected transactions of Parañaque City for the calendar years 1996 to 1998, including the walis tingting purchases. Based on the findings of the Commission on Audit (COA) Special Audit Team that there was overpricing in certain purchase transactions of Parañaque City, five (5) informations were filed against Marquez and Caunan, along with four (4) other local government officials of Parañaque City charging them of violation of Section 3(g) of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

Parenthetically, to ascertain the prevailing price of walis tingting for the years 1996 to 1998, the audit team made a canvass of the purchase prices of the different merchandise dealers of Parañaque City. All, however, were reluctant to provide the team with signed quotations of purchase prices for walis tingting. In addition, the audit team attempted to purchase walis tingting from the named suppliers of Parañaque City. Curiously, when the audit team went to the listed addresses of the suppliers, these were occupied by other business establishments. Thereafter, the audit team located, and purchased from, a lone supplier that sold walis tingting.

As previously adverted to, the audit team made a report which contained the following findings:

1. The purchase of walis tingting was undertaken without public bidding;

2. The purchase of walis tingting was divided into several purchase orders and requests to evade the

requirement of public bidding and instead avail of personal canvass as a mode of procurement;

3. The purchase of walis tingting through personal canvass was attended with irregularities; and

4. There was glaring overpricing in the purchase transactions.

The Ombudsman found probable cause to indict petitioners and the other local government officials of Parañaque City for violation of Section 3(g) of R.A. No. 3019. Consequently, the five (5) Informations against petitioners, et al. were filed before the Sandiganbayan.

After trial, the Sandiganbayan rendered judgment finding petitioners Caunan and Marquez, along with Silvestre de Leon and Marilou Tanael, guilty of violating Section 3(g) of R.A. No. 3019. The Sandiganbayan ruled as follows:

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1. The Bids and Awards Committee was not properly constituted; the accused did not abide by the prohibition against splitting of orders; and Parañaque City had not been afforded the best possible advantage for the most objective price in the purchase of walis tingting for failure to observe the required public bidding;

2. The contracts for procurement of walis tingting in Parañaque City for the years 1996-1998 were awarded to pre-selected suppliers; and

3. On the whole, the transactions undertaken were manifestly and grossly disadvantageous to the government.

Caunan, Marquez and Tanael, moved for reconsideration of the Sandiganbayan decision. All the motions filed by Marquez, as well as Caunan’s motion, were denied by the Sandiganbayan. However, with respect to Tanael, the Sandiganbayan found reason to reconsider her conviction.

Hence, these separate appeals by petitioners Marquez and Caunan.

ISSUE:

Whether or not the Sandiganbayan erred in finding the petitioners guilty of violation of Section 3(g) of R.A. No. 3019.

HELD:

Petitioners Joey P. Marquez and Ofelia C. Caunan are ACQUITTED.

Both petitioners insist that the fact of overpricing, upon which the charge against them of graft and corruption is based, had not been established by the quantum of evidence required in criminal cases, i.e., proof beyond reasonable doubt. Petitioners maintain that the evidence of overpricing, consisting of the report of the Special Audit Team and the testimony thereon of Bermudez, constitutes hearsay and, as such, is inadmissible against them. In addition, petitioner Marquez points out that the finding of overpricing was not shown to a reliable degree of certainty as required by COA Memorandum No. 97-012 dated March 31, 1997. In all, petitioners asseverate that, as the overpricing was not sufficiently established, necessarily, the last criminal element of Section 3(g) of R.A. No. 3019 a contract or transaction grossly and manifestly disadvantageous to the government was not proven.

Section 3(g) of R.A. No. 3019 provides:

Section 3.

Corrupt practices of public officersIn addition to acts or omissions of

public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

x x x x

(g)

Entering on behalf of the Government, into any contract or transaction,

manifestly and grossly disadvantageous to the same, whether or not the public officer

profited or will profit thereby.

For a charge under Section 3(g) to prosper, the following elements must be present: (1) that the accused is a public officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government.

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The presence of the first two elements of the crime is not disputed. Hence, the threshold question we should resolve is whether the walis tingting purchase contracts were grossly and manifestly injurious or disadvantageous to the government.

We agree with petitioners that the fact of overpricing is embedded in the third criminal element of Section 3 (g) of R.A. No. 3019. Given the factual milieu of this case, the subject contracts would be grossly and manifestly disadvantageous to the government if characterized by an overpriced procurement. However, the gross and manifest disadvantage to the government was not sufficiently shown because the conclusion of overpricing was erroneous since it was not also adequately proven. Thus, we grant the petitions.

In criminal cases, to justify a conviction, the culpability of an accused must be established by proof beyond a reasonable doubt. The burden of proof is on the prosecution, as the accused enjoys a constitutionally enshrined disputable presumption of innocence. The court, in ascertaining the guilt of an accused, must, after having marshaled the facts and circumstances, reach a moral certainty as to the accused’s guilt. Moral certainty is that degree of proof which produces conviction in an unprejudiced mind. Otherwise, where there is reasonable doubt, the accused must be acquitted.

In finding that the walis tingting purchase contracts were grossly and manifestly disadvantageous to the government, the Sandiganbayan relied on the COA’s finding of overpricing which was, in turn, based on the special audit team’s report. The audit team’s conclusion on the standard price of a walis tingting was pegged on the basis of the following documentary and object evidence: (1) samples of walis tingting without handle actually used by the street sweepers; (2) survey forms on the walis tingting accomplished by the street sweepers; (3) invoices from six merchandising stores where the audit team purchased walis tingting; (4) price listing of the DBM Procurement Service; and (5) documents relative to the walis tingting purchases of Las Piñas City. These documents were then compared with the documents furnished by petitioners and the other accused relative to Parañaque City’s walis tingting transactions.

Notably, however, and this the petitioners have consistently pointed out, the evidence of the prosecution did not include a signed price quotation from the walis tingting suppliers of Parañaque City. In fact, even the walis tingting furnished the audit team by petitioners and the other accused was different from the walis tingting actually utilized by the Parañaque City street sweepers at the time of ocular inspection by the audit team. At the barest minimum, the evidence presented by the prosecution, in order to substantiate the allegation of overpricing, should have been identical to the walis tingting purchased in 1996-1998. Only then could it be concluded that the walis tingting purchases were disadvantageous to the government because only then could a determination have been made to show that the disadvantage was so manifest and gross as to make a public official liable under Section 3(g) of R.A. No. 3019.

The reasoning of the Sandiganbayan is specious and off tangent. The audit team reached a conclusion of gross overpricing based on documents which, at best, would merely indicate the present market price of walis tingting of a different specification, purchased from a non-supplier of Parañaque City, and the price of walis tingting purchases in Las Piñas City. Effectively, the prosecution was unable to demonstrate the requisite burden of proof, i.e., proof beyond reasonable doubt, in order to overcome the presumption of innocence in favor of petitioners.

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AMBIL JR., vs. SANDIGANBAYAN GR 175457, JULY 6, 2011

Prosecution for violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public officer is charged with the grant of licenses or permits or other concessions.

VILLARAMA, JR.,J.:

FACTS:

The present controversy arose from a letter of Atty. David B. Loste, president of the Eastern Samar Chapter of the Integrated Bar of the Philippines, to the Office of the Ombudsman, praying for an investigation into the alleged transfer of then Mayor Francisco Adalim, an accused in a murder case from the provincial jail of

Sometime around

Eastern Samar to the residence of petitioner, then Governor Ruperto A. Ambil, Jr

September 1998, Ambil, jr and Alexandro R. Apelado (being then the Provincial warden of Eastern Samar, both having been public officers, committing an offense in relation to office, conniving and confederating

together and mutually helping x x x each other , with deliberate intent, manifest partiality and evident bad faith, did then and there wilfully, unlawfully and criminally order and cause the release of Adalim by virtue of

a warrant of arrest issued by the RTC-Branch 2 eastern samar and allowing said Mayor Adalim to stay at

petitioner Ambil’s residence for a period of 85 days which act was done without any Court order, thus petitioner in the performance of official functions had given unwarranted benefits and advantage to detainee

Mayor Francisco Adalim to the prejudice of the government, thus contrary to law.

On arraignment, petitioners pleaded not guilty and posted bail. At the pre-trial, petitioners admitted the allegations in the information. However, they reason that it was justified by imminent threats upon his person by Adalim’s sister Atty. Juliana A. Adalim-White, had sent numerous prisoners to the same jail where Mayor Adalim was to be held.

Sandiganbayan, First Division found petitioners guilty of violating Section 3(e) of RA 3019. Hence, the present petition.

ISSUE: Whether or not the transfer of the detainee, who was a mayor, by the governor was a violation in contemplation of Sec3(e) of RA 3019 in relation to sec2(b) of the same act.

HELD:

YES. Petitioners were charged with violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act which provides:

Section. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already

penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

x x x x

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall

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apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

In order to hold a person liable under this provision, the following elements must concur: (1) the accused must be a public officer discharging administrative, judicial or official functions; (2) he must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and (3) his action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions.

In the case at hand, the Information specifically accused petitioners of giving unwarranted benefits and advantage to Mayor Adalim, a public officer charged with murder, by causing his release from prison and detaining him instead at the house of petitioner Ambil, Jr. Petitioner Ambil, Jr. negates the applicability of Section 3(e), R.A. No. 3019 in this case on two points. First, Section 3(e) is not applicable to him allegedly because the last sentence thereof provides that the “provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses, permits or other concessions” and he is not such government officer or employee. Second, the purported unwarranted benefit was accorded not to a private party but to a public officer.

However, as regards his first contention, it appears that petitioner Ambil, Jr. has obviously lost sight, if he is not altogether unaware, of our ruling in Mejorada v. Sandiganbayan[42] where we held that a prosecution for violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public officer is “charged with the grant of licenses or permits or other concessions.” With regard to his second contention, when petitioners transferred Mayor Adalim from the provincial jail and detained him at petitioner Ambil, Jr.’s residence, they accorded such privilege to Adalim, not in his official capacity as a mayor, but as a detainee charged with murder. Thus, for purposes of applying the provisions of Section 3(e), R.A. No. 3019, Adalim was a private party.

WHEREFORE, the consolidated petitions are DENIED. The Decision of the Sandiganbayan in Criminal Case No. 25892 is AFFIRMED WITH MODIFICATION. We find petitioners Ruperto A. Ambil, Jr. and Alexandrino R. Apelado, Sr. guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019. Petitioner Alexandrino R. Apelado, Sr. is, likewise, sentenced to an indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months.

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ORGANO vs. SANDIGANBAYAN GR 133535, SEPT. 9, 1999

Sandiganbayan has no jurisdiction over the crime of plunder unless committed by public officials and employees occupying the positions with Salary Grade “27” or higher

PARDO, J.:

FACTS:

Dominga S. Manalili, Teopisto A. Sapitula, Jose dP. Marcelo, Lilia B. Organo, being then public officers and taking advantage of their official positions as employees of the Bureau of Internal Revenue, Region 7, Quezon City, and Gil R. Erencio, Reynaldo S. Enriquez and Luis S. Se, Jr., conspiring, confabulating and confederating with one another, did then and there wilfully, unlawfully and criminally amass and acquire funds belonging to the National Government by opening an unauthorized bank account with the Landbank of the Philippines for and in behalf of the Bureau of Internal Revenue and deposit therein money belonging to the government of the Philippines, consisting of revenue tax payments, then withdraw therefrom (P193,565,079.64) without proper authority, through checks made payable to themselves and/or the sole proprietorship firms of the above named private persons, thereby succeeding in misappropriating, converting, misusing and/or malversing said public funds tantamount to a raid on the public treasury, to their own personal gains, advantages and benefits, to the damage and prejudice of the government in the aforestated amount.

Petitioner filed a motion to quash with the Sandiganbayan for lack of jurisdiction contending that SB no longer had jurisdiction over the case under RA 8249. SB without first resolving petitioner’s motion issued a warrant of arrest against all the accused. SB then issued a resolution denying petitioner’s motion to quash for lack of merit. Petitioner filed a motion for reconsideration but was denied for the reason that she should first surrender to the Court before she may file any further pleading. Hence, this petition.

ISSUE: WON Sandiganbayan has jurisdiction over the case

HELD:

NO. The crime of "plunder" defined in Republic Act No. 7080, as amended by Republic Act No. 7659, was provisionally placed within the jurisdiction of the Sandiganbayan "until otherwise provided by law." Republic Act No. 8429, enacted on February 5, 1997 is the special law that provided for the jurisdiction of the Sandiganbayan "otherwise" than that prescribed in Republic Act No. 7080.

Consequently, we rule that the Sandiganbayan has no jurisdiction over the crime of plunder unless committed by public officials and employees occupying the positions with Salary Grade "27" or higher, under the Compensation and Position Classification Act of 1989 (Republic Act No. 6758) in relation to their office.

In ruling in favor of its jurisdiction, even though none of the accused occupied positions with Salary Grade “27” or higher under the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), the Sandiganbayan incurred in serious error of jurisdiction, entitling petitioner to the relief prayed for.

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WHEREFORE, the Court hereby GRANTS the petition for certiorari and ANNULS the resolutions of the Sandiganbayan, dated November 20, 1997, and April 28, 1998, in Criminal Case No. 24100.

The Court orders the Sandiganbayan to forthwith refer the case to the court of proper jurisdiction.

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JOSE “JINGGOY” E. ESTRADA, petitioner, vs. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES and OFFICE OF THE OMBUDSMAN, respondents. [G.R. No. 148965. February 26, 2002]

FACTS:

As an offshoot of the impeachment proceedings against Joseph Ejercito Estrada, then President of the Republic of the Philippines, five criminal complaints against the former President and members of his family, his associates, friends and conspirators were filed with the respondent Office of the Ombudsman. The respondent Ombudsman issued a Joint Resolution finding probable cause warranting the filing with the Sandiganbayan of several criminal Informations against the former President and the other respondents therein. One of the Informations was for the crime of plunder under Republic Act No. 7080 and among the respondents was herein petitioner Jose “Jinggoy” Estrada, then mayor of San Juan, Metro Manila. The Information was amended and the arraignment of the accused was set, no bail for petitioner’s provisional liberty was fixed.

Petitioner filed a “Motion to Quash or Suspend” the Amended Information on the ground that the Anti-Plunder Law, R.A. No. 7080, is unconstitutional and that it charged more than one offense. Respondent Ombudsman opposed the motion. The respondent court issued a warrant of arrest for petitioner and his co- accused. On its basis, petitioner and his co-accused were placed in custody of the law.

Petitioner then filed a “Very Urgent Omnibus Motion”[2] alleging that: (1) no probable cause exists to put him on trial and hold him liable for plunder, it appearing that he was only allegedly involved in illegal gambling and not in a “series or combination of overt or criminal acts” as required in R.A. No. 7080; and (2) he is entitled to bail as a matter of right. Petitioner prayed that he be excluded from the Amended Information and be discharged from custody. In the alternative, petitioner also prayed that he be allowed to post bail in an amount to be fixed by respondent court.

On July 9, 2001, respondent Sandiganbayan issued a Resolution denying petitioner’s “Motion to Quash and Suspend” and “Very Urgent Omnibus Motion.” Petitioner moved for reconsideration of the Resolution. Respondent court denied the motion and proceeded to arraign petitioner. Petitioner refused to make his plea prompting respondent court to enter a plea of “not guilty” for him.

ISSUES:

1.)

2.) Whether or not sustaining the charge against petitioner for alleged offenses, and with alleged conspirators, with which and with whom he is not even remotely connected - contrary to the dictum that criminal liability is personal, not vicarious - results in the denial of substantive due process; 3.) Whether or not fixing bail for petitioner for alleged involvement in jueteng in one count of the information which amounts to cruel and unusual punishment totally in defiance of the principle of proportionality.

Whether or not R.A. No. 7080 is unconstitutional on its face

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HELD:

1.)

Petitioner contends that R.A. No. 7080 is unconstitutional on its face and as applied to him and denies him the equal protection of the laws.

Petitioner’s premise is patently false. Pertinent to the case at bar is the predicate act alleged in sub- paragraph (a) of the Amended Information which is of “receiving or collecting, directly or indirectly, on several instances, money in the aggregate amount of P545,000,000.00 for illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary benefit x x x.” In this sub- paragraph (a), petitioner, in conspiracy with former President Estrada, is charged with the act of receiving or collecting money from illegal gambling amounting to P545 million. Contrary to petitioner’s posture, the allegation is that he received or collected money from illegal gambling “on several instances.” The phrase “on several instances” means the petitioner committed the predicate act in series. To insist that the Amended Information charged the petitioner with the commission of only one act or offense despite the phrase “several instances” is to indulge in a twisted, nay, “pretzel” interpretation.

2.)

Sustaining the charge against petitioner for alleged offenses, and with alleged conspirators, with which and with whom he is not even remotely connected - contrary to the dictum that criminal liability is personal, not vicarious - results in the denial of substantive due process;

There is no denying the fact that the “plunder of an entire nation resulting in material damage to the national economy” is made up of a complex and manifold network of crimes. In the crime of plunder, therefore, different parties may be united by a common purpose. In the case at bar, the different accused and their different criminal acts have a commonalityto help the former President amass, accumulate or acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended Information alleged the different participation of each accused in the conspiracy. The gravamen of the conspiracy charge, therefore, is not that each accused agreed to receive protection money from illegal gambling, that each misappropriated a portion of the tobacco excise tax, that each accused ordered the GSIS and SSS to purchase shares of Belle Corporation and receive commissions from such sale, nor that each unjustly enriched himself from commissions, gifts and kickbacks; rather, it is that each of them, by their individual acts, agreed to participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth of and/or for former President Estrada.

3.)

Not fixing bail for petitioner for alleged involvement in jueteng in one count of the information which amounts to cruel and unusual punishment totally in defiance of the principle of proportionality.”

The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of whether or not the evidence of guilt of the accused is strong. This requires that the trial court conduct bail hearings wherein both the prosecution and the defense are afforded sufficient opportunity to present their respective evidence. The burden of proof lies with the prosecution to show strong evidence of guilt.

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PEOPLE OF THE PHILIPPINES, appellee, vs. PO3 ARMANDO DALAG y CUSTODIO, appellant. [G.R. No. 129895. April 30, 2003]

FACTS:

Armando Dalag, a member of the Philippine National Police assigned to the Bacolod City police station, was lawfully married to Leah Nolido Dalag. They had three children: Francis, Princess Joy and Ezra John. At around 8:00 p.m., the children heard their parents quarreling. Leah was admonishing Armando not to drink liquor. The kids sensed that some object was being banged on the wall. Thereafter, they heard their mother cry. Francis and Princess Joy rushed outside the house to see what was happening. They were horrified when from a distance of three meters, they saw Armando pushing and kicking Leah on the left side of her body. She fell to the ground. Even as Leah was already lying posthaste on the ground, Armando continued to beat her up, punching her on the different parts of the body. Francis and Princess Joy pleaded to their father to stop maltreating their mother. Armando angrily told them not to interfere and that he will later beat them up as well. He grabbed Leah’s hair and banged her head on the wall. Leah’s forehead directly hit the wall. In the process, Armando stepped on a nail. Even as she was being assaulted by her husband, she told him “Toy, Toy, I will find some medicine for your wound.” Leah then fled to the house of their neighbor, Felisa Horilla or “Tia Feli.” Armando ran after Leah and pushed her to the house of Felisa. Francis went back to the house. Princess Joy looked for her parents but could not find them. She decided to go back to their house to sleep. In the meantime, Armando herded Leah back to the house. Princess Joy was awakened when she heard her mother crying. When Princess Joy went outside of the house, she saw her mother being pushed by her father. Leah fell to the ground and lost consciousness. Armando placed the head of Leah on a stone and ordered Princess Joy to get some water. She did. She poured water on the face of her mother but the latter did not move. Armando then tried to revive Leah by applying mouth-to-mouth resuscitation to no avail.

Armando and Francis carried Leah to the house. Francis noticed that there were lumps on his mother’s face as well as bruises on both her arms, between her breasts and on her thighs. There was likewise blood on Leah’s right ear. After laying down her head on the bed, Armando told Francis to get some hot water. Armando then washed his wife’s face with lukewarm water. When Francis finally went to sleep, his mother was still unconscious.

When they woke up the following day, or on August 16, 1996, Francis and Princess Joy noticed that their mother remained unconscious. Despite their mother’s condition, they decided to go to school. During lunchtime, Francis went home and saw that Leah’s condition had not improved. When the children came home in the afternoon after their classes, Armando told them that their mother was brought to the hospital.

Armando instructed Francis to inform his colleagues at the police headquarters that he would be unable to report for duty because his wife accidentally slipped and had to be brought to the hospital.When Francis visited his mother in the hospital, he saw her lying on the bed, her face badly swollen. He saw the lumps and bruises on the different parts of her body. Leah never regained her consciousness. She died on August 22,

1996.

The trial court rendered judgment finding Armando guilty beyond reasonable doubt of parricide for killing his wife and sentenced him to the penalty of reclusion perpetua. The trial court appreciated the

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mitigating circumstances of voluntary surrender and “one analogous to passion and obfuscation” in favor of Armando.

ISSUE:

Whether or not the credibility of witnesses and their testimony should be given probative weight.

HELD:

It is axiomatic in criminal jurisprudence that when the issue is one of credibility of witnesses, an appellate court will normally not disturb the factual findings of the trial unless the lower court has reached conclusions that are clearly unsupported by evidence, or unless it has overlooked some facts or circumstances of weight and influence which, if considered, would affect the result of the case. The rationale for this rule is that trial courts have superior advantages in ascertaining the truth and in detecting falsehood as they have the opportunity to observe at close range the manner and demeanor of witnesses while testifying.

In this case, the trial court declared that the children, Francis and Princess Joy, the principal prosecution witnesses, testified “in a logical, candid, and straight-forward manner, describing in detail what they saw and heard in a manner characteristic of witnesses who are telling the truth.” The Court finds no reason to deviate from these findings as the records fully support the same. The children recalled the sordid events that happened in the evening of August 15, 1996 involving their parents without any trace of bias, impelled by no other motive than to bring justice to their mother’s senseless death.

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PEOPLE OF THE PHILIPPINES VS. ROSENDO REBUCAN G.R. No. 182551 July 27, 2011 Leonardo-De Castro, J.:

According to Article 248 of the Revised Penal Code, as amended, any person who shall kill another shall be guilty of murder if the same was committed with the attendant circumstance of treachery, among other things, and that the situation does not fall

within the provisions of Article 246

There is treachery even if the attack is frontal if it is sudden and unexpected, with the

victims having no opportunity to repel it or defend themselves

FACTS:

Rosendo Rebucan worked in Manila. While in Manila, the victim, Felipe Lagera, went to their house and placed himself on top of Rebucan's wife, Marites, who was lying down. The incident was seen by Raymond Rance, Rebucan's step-son and his younger daughter who were sleeping next to Marites. Marites succeeded in driving Felipe out of their house. Thereafter, Marites left for Manila. When Rebucan returned to their house, Raymond told him about the incident. Rebucan went to the house of Felipe with a long bolo (sundang). Felipe was carrying his grandson, Ramil Tagpis, Jr., 1-year old. Carmela, his granddaughter, eyewitness, was also with them playing in the house. Carmela recounted that she saw Rebucan enter the house suddenly, without any word and hacked Felipe on the face, left arm and right arm and Ranil on the forehead. Felipe was still able to walk outside the house but fell on the ground afterwards. Subsequently, Rebucan immediately ran outside the house.

On the part of the defense, Rebucan testified that he went to the house of Felipe because he needed to buy kerosene. He saw Felipe feeding chickens and confronted Felipe about the alleged sexual abuse of his wife. Felipe got angry and threw the cover of a chicken cage at Rebucan but the latter was able to parry it with his hand. Rebucan drew his bolo and hacked Felipe on the left side as the latter was running towards the house. Rebucan followed since he thought that Felipe might get a weapon. As Rebucan was about to deliver the second blow, Felipe held up his grandson, Ramil, as a shield which caused Rebucan to hit Ranil on the forehead. Rabucan became angry as Felipe walked outside of the house. Rebucan followed and delivered another blow to Felipe on his right arm. He ran and voluntarily surrendered to the barangay chariperson.

The RTC convicted Rebucan of the complex crime of double murder. It elucidated that the manner by which the accused adopted in killing the victims was a premeditated decision and executed with treachery. he was sentenced to suffer the penalty of Death.

The case was elevated to the Supreme Court in automatic review but the SC ordered to transfer the case to the CA for appropriate disposition.

The CA modified the RTC judgment. Rebucan was found guilty beyond reasonable doubt of two (2) counts of murder for the prosecution failed to prove the existence of a complex crim of double murder. The court subscribed to the findings of the RTC that the killing of the victims were attended by treachery and evident premeditation.

Rebucan filed a Notice of Appeal to the SC.

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The contention of the accused is there is no treachery because there was no witness whi stated that he attacked the victims suddenly, thereby depriving them of any means to defend themselves.

ISSUE: Whether or not Rebucan was guilty of murder by committing the crime with treachery.

RULING: APPEAL DENIED.

The SC affirmed the decision of the RTC and CA. The evidence of the prosecution established the fact that the killings were attended by treachery, thus qualifying the same to murder. According to Article 248 of the Revised Penal Code, as amended, any person who shall kill another shall be guilty of murder if the same was committed with the attendant circumstance of treachery, among other things, and that the situation does not fall within the provisions of Article 246. There is treachery even if the attack is frontal if it is sudden and unexpected, with the victims having no opportunity to repel it or defend themselves for what is decisive in treachery is that the execution of the attack made it impossible for the victims to defend themselves.

The SC respected the resolution of the RTC in giving weight to the testimony of Carmela that she categorically pointed to Reburca as the person who hacked Felipe and Ramil. She also stated in her testimony that the attack was not preceded by any altercation between Reburca and Felipe. Without any provocation, Reburca suddenly delivered fatal hacking blows to Felipe.

The abruptness rendered Felipe defenseless and deprived of an opportunity to defend himself. As Felipe was carrying Ramil, the child suffered the same fatal blows. Treachery may be properly considered even when the victim of the attack was not the one intended by the defendant to kill if it appears that neither of the two could put up a defense against the attack or become aware of it. Furthermore, the killing of the child is characterized by treachery for the weakness of the victim due to his tender years results in the absence of any danger to the accused.

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PEOPLE VS. CECILIA LAGMAN G.R. No. 197807 April 16, 2012 Velasco, Jr., J.:

In order that treachery may be properly appreciated, the following elements must concur: (1) at the time of the attack, the victim was not in a position to defend himself; (2) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him. The essence of treachery is that the attack is deliberate and without warning, done in a swift and unexpected way, affording the unarmed and unsuspecting victim no chance to resist or escape.

FACTS:

2 Informations were filed against Cecilia Lagman (Lagman). The first Information was for the Murder of Jondel Santiago (Santiago), that Lagman killed Santiago with the use of a knife by stabbing him and hitting his neck and trunk thereby inflicting fatal wounds resulting to his immediate death. The second Information was for Attempted Homicide of Violeta Sicor (Sicor) by stabbing her in the middle of her buttocks with a knife.

The prosecution presented Donna Maniego (Maniego), daughter of Sicor, PO3 Ricardo Alateit (Alateit) and Sicor as witnesses. Based on Maniego's tetestimony she was with Sicor riding a side car when without any warning Lagman punched Maniego on the face then turned to Sicor and stabbed the latter in the middle of her buttocks with a knife. She asked for help in the barangay hall but the Barangay Chairman was not around. She then went to check on her common-law spouse, Santiago, she saw Lagman stab Santiago. Lagman then flee the scene of the crime while carrying her knife. Maniego rushed to Santiago and saw that he was seriously hurt, they proceeded to a hospital where Santiago died. Maniego also testified that she was a close friend of Lagman but the latter got angry with her when Santiago eloped with Maniego.

Sicor corroborated with Maniego's testimony.

PO3 Alateit testified that while he was riding his motorcyle on his way home, it was reported to him that there was a stabbing incident. He headed toward the area where a crowd was causing a commotion and saw a Lagman running towards him with a bloodied head. He was informed that Lagman stabbed someone. While he was arresting Lagman, a sharp object fell from the woman's waist. He confiscated the sharp object and brought her to the police station.

For the part of the defense, they offered the testimonies of Lagman.She claimed that she confronted Maniego if it was true that the latter was spreading rumors that Lagman was insane to which Maniego affirmed. Lagman slapped Maniego and left, Santiago and Sicor ran after her. Santiago hit her with a lead pipe. She denied that she killed Santiago, that the knife was not hers and she only had an argument with Maniego.

The RTC convicted Lagman of the crime of Murder and Less Serious Physical Injuries.

The CA found the presence of treachery. In the CA's decision, it stated that the Santiago was caught off guard when the Lagman, without warning, stabbed him 4 times leaving him no chance to evade the knife thrusts and defend himself. Thus, there is no denying that Lagman's act of suddenly stabbing Santiago left the latter with no room for defense is a clear case of treachery. CA ruled that the totality of the prosecution's

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evidence established guilt beyond reasonable doubt and that the accused failed to show any ill-motive on the part of the witnesses of the prosecution to falsely testify against her.

Hence, Lagman appealed.

Accused argues that the prosecution was unable to prove that the killing of Santiago was attended by treachery, it was not proved that she deliberately adopted her mode of attack. The encounter was preceded with an argument between the accused and Maniego. The accused was followed by victims, thus, the stabbing incident should have been considered as a spur of the moment occurence.

ISSUE: Whether or not the killing was attended with treachery

RULING: Appeal Denied. The killing was attended by treachery.

The elements of murder are: (1) that a person was killed; (2) that the accused killed him or her; (3) that the killing was attended by any of the qualifying circumstances mentioned in Article 248 of the RPC; (4) that the killing is not parricide nor infanticide.

The prosecution clearly established that it was Lagman who killed Santiago as there was an eyewitness to the crime. The killing was attended by the qualifying circumstance of Treachery. Treachery is defined as the direct employment of means, methods, or forms in the execution of the crime against persons which tend to directly insure its execution, without risk to the offender arising from the defense which the offended party might take. In order that treachery may be properly appreciated, the following elements must concur: (1) at the time of the attack, the victim was not in a position to defend himself; (2) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him. The essence of treachery is that the attack is deliberate and without warning, done in a swift and unexpected way, affording the unarmed and unsuspecting victim no chance to resist or escape. These elements were present when Lagman stabbed Santiago to death.

Lagman's method of inflicting harm ensured that she would fatally wound Santiagi without any risk to herself. The alleged advantage of Santiago in terms of height was of no use to him as Lagman employed treachery in killing him. He was not given the oppotunity to defend himself due to the accused's sudden asudden stabbing him repeatedly with a knife.

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PEOPLE OF THE PHILIPPINES v. ARNOLD T. AGCANAS G.R. No. 174476, 11 October 2011, EN BANC (SERENO, J.)

For treachery to be considered, two elements must concur: (1) the employment of means of execution that gives the persons attacked no opportunity to defend themselves or retaliate; and (2) the means of execution were deliberately or consciously adopted. FACTS:

The provincial prosecutor of Laoag City charged the accused with murder in the Regional Trial Court (RTC), Branch 16, Laoag City.

Upon arraignment, the accused pleaded not guilty. Thereafter, trial ensued.

The trial court found that on 4 May 2000, at about nine o’clock in the evening while the victim Warlito Raguirag was having dinner at home, herein accused Arnold Agcanas entered the former's house through the kitchen door. The accused pointed a gun at the back of the left ear of the victim and shot him point-blank. Under the 50-watt light bulb and with only a meter between them, Beatriz Raguirag (hereinafter Beatriz), the wife, was able to identify the accused, who was the son of her cousin. Around 9:15 in the evening, when the police officers arrived, Beatriz informed them that Arnold Agcanas was the assailant. Thereafter, around ten o’clock in the evening, the police found the accused in the house of his brother, Alejandro Agcanas, who was actually residing in Barangay San Miguel, Sarrat, Ilocos Norte. The accused then went willingly with the police officers to the police station.

The trial court found the accused guilty beyond reasonable doubt of the crime of murder, qualified by treachery and attended by the aggravating circumstances of dwelling and the use of an illegally possessed firearm.

On intermediate appellate review by the Court of Appeals, the conviction was affirmed. However, the award of damages was modified based on prevailing jurisprudence.

ISSUES:

1. Whether the crime was committed with treachery, thus, qualifying it as murder.

2. Whether the trial court erred in finding that the crime was aggravated by the circumstance of dwelling and illegal possession of firearm.

HELD:

Decision AFFIRMED.

There is treachery when the offender commits any of the crimes against persons, employing means, methods, or forms in the execution, which tend directly and specially to insure its execution, without risk to the offender arising from the defense which the offended party might make. The essence of treachery is that the attack comes without a warning and in a swift, deliberate, and unexpected manner, affording the hapless, unarmed, and unsuspecting victim no chance to resist or escape. For treachery to be considered, two

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elements must concur: (1) the employment of means of execution that gives the persons attacked no opportunity to defend themselves or retaliate; and (2) the means of execution were deliberately or consciously adopted.

The victim was then eating his dinner, seated with his back to the kitchen door. Suddenly, without provocation or reason, the accused entered through that door and shot the victim in the head, causing the latter's instantaneous death. With the suddenness of the attack, the victim could not do anything, except turn his head towards the accused. The trial court was also correct in ruling that dwelling was an aggravating circumstance. It has been held in a long line of cases that dwelling is aggravating because of the sanctity of privacy which the law accords to human abode. He who goes to another's house to hurt him or do him wrong is more guilty than he who offends him elsewhere.

The aggravating circumstance of illegal possession of firearm was likewise properly appreciated, even though the firearm used was not recovered. As this Court held in People v. Taguba, 11 the actual firearm itself need not be presented if its existence can be proved by the testimonies of witnesses or by other evidence presented. In the case at bar, Beatriz Raguirag testified that she saw the accused holding a gun and then heard a gunshot. The post-mortem examination also showed that the accused died of a gunshot wound. Thus, the presentation of the actual firearm was not indispensible to prove its existence and use.

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PEOPLE OF THE PHILIPPINES v. NOEL DION G.R. No. 181035, 4 July 2011, FIRST DIVISION (LEONARDO-DE CASTRO, J.)

In statutory rape, time is not an essential element. What is important is that the information alleges that the victim was a minor under twelve years of age and that the accused had carnal knowledge of her, even if the accused did not use force or intimidation on her or deprived her of reason. FACTS:

Accused-appellant Noel Dion y Duque (Dion) was charged with two counts of statutory rape in two separate criminal complaints filed directly before the RTC.

Criminal Case No. 4354-R charges the accused of rape committed on 16 June 2001 by means of force, threats and intimidation against the complainant, a minor, 10 years of age. While Criminal Case No. 4355-R, also charges the accused of rape committed sometime on April of 2001.

Upon arraignment, Dion entered a plea of not guilty to the two charges.

During trial, AAA alleged that at around three o’clock in the afternoon, after she had finished throwing garbage at the "bakir" or garbage pit 11 located some 300 meters from the back of their house, Dion came out from behind some trees, beckoning her to approach him. Instead of going to Dion, AAA started to run to their house, but she tripped and fell to the ground. This allowed Dion to catch up to her, and he then pulled her toward an area covered with tall grasses. After threatening AAA that he will cut her tongue and neck if she shouted, Dion forced her on her back and removed her undergarments. Dion then removed his own short pants and briefs then climbed on top of her. AAA described how Dion made the "push and pull movement" after he inserted his penis into her vagina. AAA claimed that when Dion had finished, he stood up and again warned her not to report the incident to anyone, otherwise he will cut her neck or tongue.

Regarding the second incident of rape, AAA averred that at around ten o’clock in the evening of June 16, 2001, while she was getting water from their kitchen, she heard knocking at the door. AAA inquired who it was but received no response. She testified that all of a sudden, Dion was already inside their house, and he was calling her. Once again, Dion gave the same threats to AAA before raping her as he did previously, in April 2001. Dion had just finished his deed and was about to go home when AAA’s uncle, CCC, arrived. Following the sound he had heard, CCC found Dion hiding in a corner in the kitchen. CCC immediately collared Dion and woke up BBB, AAA’s grandmother. BBB thereafter called Dion’s father and their Barangay Chairman.

Dr. Romero-Fernandez, who conducted the medico-legal examination, elaborated that a number of factors could cause lacerations to the hymen, but admitted that in AAA’s case, she "could not surmise or definitely say that those lacerations could have been caused by sexual abuse."

After trial, the RTC rendered its Decision, finding Dion guilty beyond reasonable doubt of two counts of statutory rape. The Court of Appeals affirmed in toto the RTC decision.

ISSUE:

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Whether or not the accused is guilty of two counts of rape as charged.

HELD:

Decision AFFIRMED with MODIFICATION.

Dion argues that because the complaint failed to state the exact, or at least the approximate, date the purported rape was committed, he was not able to intelligently prepare for his defense and persuasively refute the indictment against him.

We have repeatedly held that the date of the commission of rape is not an essential element of the crime. It is not necessary to state the precise time when the offense was committed except when time is a material ingredient of the offense. In statutory rape, time is not an essential element. What is important is that the information alleges that the victim was a minor under twelve years of age and that the accused had carnal knowledge of her, even if the accused did not use force or intimidation on her or deprived her of reason.

Furthermore, in refuting AAA’s testimony, Dion proffered the defense of alibi and denial.

This Court has time and again held that alibi is one of the weakest defenses, not only because it is inherently frail and unreliable, but also because it is easy to fabricate and difficult to check out or rebut.

Dion has failed to show us that it was physically impossible for him to be at the scene of the crime in April 2001. In fact, his alibi was discredited by the testimonies of his own witnesses.

It is well-settled that denial, if unsubstantiated by clear and convincing evidence, is a self-serving assertion that deserves no weight in law. Denial cannot prevail over the positive, candid and categorical testimony of the complainant and as between the positive declaration of the complainant and the negative statement of the appellant, the former deserves more credence.

Lastly, Dion insists that the findings in the medical certificate cast serious doubts on AAA’s claim of being raped.

The medical examination of the victim or the presentation of the medical certificate is not essential to prove the commission of rape as the testimony of the victim alone, if credible, is sufficient to convict the accused of the crime.

The absence of spermatozoa in the vagina of the victim does not negate the commission of rape for the simple reason that the mere touching of the labia of the female organ by the penis is already considered as consummated rape. The presence of sperm is not a requisite for rape. For in rape, it is not ejaculation but penetration that consummates the sexual act.

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G.R. No.182237 THE PEOPLE OF THE PHILIPPINES, APPELLEE, VS TERENCIO FUNESTO y LLOSPARDAS, APPELLANT.

DECISION BRION, J.:

FACTS:

On June 9, 1992, the prosecution charged the appellant at the Regional Trial Court (RTC), Branch 2, Libertad, Butuan City, with rape committed on January 15, 1992 against AAA, a child below 12 years old. The appellant pleaded not guilty to the charge.[6] In the trial that followed, AAA, her mother (BBB), and Dr. Teonesto K. Mora (Medical Officer at Cabadbaran District Health Office) testified on the details of the crime.

The appellant, BBB, and AAA lived in a house in Barangay Marcos, Magallanes, Agusan del Norte. At around 9:00 p.m. of January 15, 1992, while BBB was at a prayer service, the appellant approached the sleeping AAA, then nine years old, and removed her panty. He then forcibly inserted his penis into her vagina, waking up AAA. Due to the extreme pain and numbness in her legs, AAA could not push him away. After satisfying his lust, the appellant restored AAA’s panty and returned to his mosquito net. AAA noticed blood in her private parts.

When BBB returned from the prayer service (held at the residence of a certain Edna M. Almonte in observance of the feast of Sto. Niño), she noticed blood at the hemline and at the back part of AAA’s dress. Upon inquiry, AAA disclosed to her what the appellant did to her. BBB confronted the appellant who denied the allegations and threatened to slap AAA. BBB wanted to go out to ask for help, but the appellant threatened to kill her if she reported the incident.

BBB brought AAA the following day to the Cabadbaran Emergency Hospital because AAA could not stand, could hardly urinate, and felt extreme pain in her abdomen. Dr. Mora, who medically examined AAA, found that her hymen was no longer intact, and that she had an anterior vaginal laceration. He also noticed the reddish discoloration of her labia minora. Specimen taken from her genitalia also tested positive for the presence of human spermatozoa.

The appellant, interposing denial as a defense, alleged that BBB fabricated the charge due to his rejection of her sexual advances, and to extort money.

The RTC found the appellant guilty of statutory rape in its May 4, 1999 decision. The CA affirmed the RTC’s appreciation of AAA’s clear, straightforward, and spontaneous testimony that pointed to the appellant as the person who raped her.

ISSUE:

WON the guilt of the Accused has been proven beyond reasonable doubt

HELD:

We affirm the appellant’s conviction.

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Based on the records before us, we see no reason to disturb the RTC’s appreciation of the credibility of AAA’s testimony. The assessment of the credibility of witnesses is a domain best left to the trial court judge because of his unique opportunity to observe their deportment and demeanor on the witness stand; his findings are binding and conclusive upon this Court when affirmed by the CA. We differ from the lower courts’ conclusion that AAA’s minority can be appreciated to qualify the crime as statutory rape since her minority was not proven by independent evidence. In People v. Pruna, the Court set out the following guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance:

1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim’s mother or relatives concerning the victim’s age, the complainant’s testimony will suffice provided that it is expressly and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.

6. The trial court should always make a categorical finding as to the age of the victim.

In the present case, the prosecution failed to present any certificate of live birth or any similar authentic document to prove the age of AAA when she was sexually violated. Neither did the appellant expressly admit AAA’s age. Thus, the appellant is guilty of simple rape under Article 335(2) of the Revised Penal Code, and was properly sentenced with the penalty of reclusion perpetua.

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PEOPLE OF THE PHILIPPINES V. CONRADO LAOG Y RAMIN G.R. NO. 178321, OCTOBER 5, 2011.

FACTS:

Appellant Conrado Laog y Ramin was charged with murder before the Regional Trial Court (RTC), Branch 11, of Malolos, Bulacan. He was likewise charged before the same court with the crime of rape of AAA.

When arraigned, appellant pleaded not guilty to both charges. The two cases were thereafter tried jointly because they arose from the same incident. The prosecution presented as its principal witness AAA, the rape victim who was 19 years old at the time of the incident. Her testimony was corroborated by her grandfather BBB, Dr. Ivan Richard Viray, and her neighbor CCC.

AAA testified that at around six o’clock in the evening of June 6, 2000, she and her friend, Jennifer Patawaran-Rosal, were walking along the rice paddies on their way to apply for work at a canteen near the National Highway in Sampaloc, San Rafael, Bulacan. Suddenly, appellant, who was holding an ice pick and a lead pipe, waylaid them and forcibly brought them to a grassy area at the back of a concrete wall. Without warning, appellant struck AAA in the head with the lead pipe causing her to feel dizzy and to fall down. When Jennifer saw this, she cried out for help but appellant also hit her on the head with the lead pipe, knocking her down. Appellant stabbed Jennifer several times with the ice pick and thereafter covered her body with thick grass. Appellant then turned to AAA. He hit AAA in the head several times more with the lead pipe and stabbed her on the face. While AAA was in such defenseless position, appellant pulled down her jogging pants, removed her panty, and pulled up her blouse and bra. He then went on top of her, sucked her breasts and inserted his penis into her vagina. After raping AAA, appellant also covered her with grass. At that point, AAA passed out.

When AAA regained consciousness, it was nighttime and raining hard. She crawled until she reached her uncle’s farm at daybreak on June 8, 2000. When she saw him, she waved at him for help. Her uncle, BBB, and a certain Nano then brought her to Carpa Hospital in Baliuag, Bulacan where she stayed for more than three weeks. She later learned that Jennifer had died.

Appellant, on the other hand, denied the charges against him. Appellant testified that he was at home cooking dinner around the time the crimes were committed. With him were his children, Ronnie, Jay, Oliver and Conrado, Jr. and his nephew, Rey Laog.

Appellant further testified that AAA and Jennifer frequently went to his nipa hut whenever they would ask for rice or money. He claimed that in the evening of June 5, 2000, AAA and Jennifer slept in his nipa hut but they left the following morning at around seven o’clock. An hour later, he left his house to have his scythe repaired. However, he was not able to do so because that was the time when he “went wild” after seeing his wife with another man. He admitted that his nipa hut is more or less only 100 meters away from the scene of the crime.

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After trial, the RTC rendered a Joint Decision finding appellant guilty beyond reasonable doubt of both crimes. The CA affirmed with modification the trial court’s judgment.

ISSUE:

WON the accused is guilty of the offenses charged

HELD:

The appeal lacks merit.

Appellant principally attacks the credibility of prosecution witness AAA. Jurisprudence has decreed that the issue of credibility of witnesses is “a question best addressed to the province of the trial court because of its unique position of having observed that elusive and incommunicable evidence of the witnesses’ deportment on the stand while testifying which opportunity is denied to the appellate courts” and “absent any substantial reason which would justify the reversal of the trial court’s assessments and conclusions, the reviewing court is generally bound by the former’s findings, particularly when no significant facts and circumstances are shown to have been overlooked or disregarded which when considered would have affected the outcome of the case.” This rule is even more stringently applied if the appellate court concurred with the trial court.

While we concur with the trial court’s conclusion that appellant indeed was the one who raped AAA and killed Jennifer, we find that appellant should not have been convicted of the separate crimes of murder and rape. An appeal in a criminal case opens the entire case for review on any question, including one not raised by the parties. The facts alleged and proven clearly show that the crime committed by appellant is rape with homicide, a special complex crime provided under Article 266-B, paragraph 5 of the Revised Penal Code, as amended by Republic Act (R.A.) No. 8353.[

Article 266-B of the Revised Penal Code, as amended, provides only a single penalty for the composite acts of rape and the killing committed by reason or on the occasion of the rape. Considering that the prosecution in this case was able to prove both the rape of AAA and the killing of Jennifer both perpetrated by appellant, he is liable for rape with homicide under the above provision. There is no doubt that appellant killed Jennifer to prevent her from aiding AAA or calling for help once she is able to run away, and also to silence her completely so she may not witness the rape of AAA, the original intent of appellant.

Finally, appellants contend that the trial court erred in concluding that the aggravating circumstance of treachery is present. They aver that treachery applies to crimes against persons and not to crimes against property. However, we find that the trial court in this case correctly characterized treachery as a generic aggravating, rather than qualifying, circumstance. Miguel was rendered helpless by appellants in defending himself when his arms were held by two of the attackers before he was stabbed with a knife by appellant Macabales, as their other companions surrounded them. In People v. Salvatierra, we ruled that when alevosia (treachery) obtains in the special complex crime of robbery with homicide, such treachery is to be regarded as a generic aggravating circumstance. Robbery with homicide is a composite crime with its own definition and special penalty in the Revised Penal Code. There is no special complex crime of robbery with murder under the Revised Penal Code. Here, treachery forms part of the circumstances proven concerning the actual

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commission of the complex crime. Logically it could not qualify the homicide to murder but, as generic aggravating circumstance, it helps determine the penalty to be imposed.

The aggravating circumstance of abuse of superior strength is considered whenever there is notorious inequality of forces between the victim and the aggressor that is plainly and obviously advantageous to the aggressor and purposely selected or taken advantage of to facilitate the commission of the crime.[50] It is taken into account whenever the aggressor purposely used excessive force that is out of proportion to the means of defense available to the person attacked.

In this case, as personally witnessed by AAA, appellant struck Jennifer in the head with a lead pipe then stabbed her repeatedly until she was dead. Clearly, the manner by which appellant had brutally slain Jennifer with a lethal weapon, by first hitting her in the head with a lead pipe to render her defenseless and vulnerable before stabbing her repeatedly, unmistakably showed that appellant intentionally used excessive force out of proportion to the means of defense available to his unarmed victim.

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PEOPLE OF THE PHILIPPINES VS. CHRISTOPHER PAREJA Y VELASCO G.R. No. 188979, September 05, 2012, SECOND DIVISION (Brion, J.)

Simply put, “rape is consummated by the slightest penile penetration of the labia majora or pudendum of the female organ.” Without any showing of such penetration, there can be no consummated rape; at most, it can only be attempted rape or acts of lasciviousness.

Facts:

The evidence for the prosecution disclosed that AAA, 13 years of age, sister of the common law spouse of appellant, was sleeping beside her two-year old nephew, BBB, on the floor of her sister’s room, when the appellant hugged her and kissed her nape and neck. AAA cried, but the appellant covered her and BBB with a blanket. The appellant removed AAA’s clothes, short pants, and underwear; he then took off his short pants and briefs. The appellant went on top of AAA, and held her hands. AAA resisted, but the appellant parted her legs using his own legs, and then tried to insert his penis into her vagina. The appellant stopped when AAA’s cry got louder. The appellant put his clothes back on, and threatened to kill AAA if she disclosed the incident to anyone. Thereafter, AAA proceeded to the house of her older sister, and narrated to her what had happened. Afterwards, AAA, accompanied by her brother and sister went to the Women and Children’s Desk of the Mandaluyong City Police Station and reported the incident. For his defense, the appellant declared on the witness stand that he hauled “filling materials” at his house, on the day of the incident. After trial, the RTC found the appellant guilty beyond reasonable doubt of the crime of rape. The CA affirmed the trial court’s decision. It explained that a slight penetration of the labia by the male organ is sufficient to constitute rape, and held that a slight penetration took place when the appellant’s penis touched AAA’s vagina as he was trying to insert it. In his brief, the appellant argued that the lower courts erred in convicting him for the crime of rape, as the prosecution failed to prove even the slightest penetration of his penis into the victim’s vagina.

ISSUE:

Whether the accused appellant is guilty of consummated rape.

Held:

CARNAL KNOWLEDGE NOT PROVEN WITH MORAL CERTAINTY. We find that the prosecution failed to prove the appellant’s guilt beyond reasonable doubt of the crime of consummated rape. We convict him instead of attempted rape, as the evidence on record shows the presence of all the elements of this crime. From the foregoing, we find it clear that the appellant’s penis did not penetrate, but merely ‘touched’ (i.e., “naidikit”) AAA’s private part. In fact, the victim confirmed on cross-examination that the appellant did not succeed in inserting his penis into her vagina. Significantly, AAA’s Sinumpaang Salaysay also disclosed that the appellant was holding the victim’s hand when he was trying to insert his penis in her vagina. This circumstance coupled with the victim’s declaration that she was resisting the appellant’s attempt to insert his penis into her vagina makes penile penetration highly difficult, if not improbable. Significantly, nothing in the records supports the CA’s conclusion that the appellant’s penis penetrated, however slightly, the victim’s female organ. In People v. Campuhan, the Court laid down the PARAMETERS OF GENITAL CONTACT in rape cases, thus:

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Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. As the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape. The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora. Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. Simply put, “rape is consummated by the slightest penile penetration of the labia majora or pudendum of the female organ.” Without any showing of such penetration, there can be no consummated rape; at most, it can only be attempted rape or acts of lasciviousness.” As earlier discussed, the prosecution failed to present sufficient and convincing evidence to establish the required penile penetration. AAA’s testimony did not establish that the appellant’s penis touched the labias or slid into her private part. Aside from AAA’s testimony, no other evidence on record, such as a medico-legal report, could confirm whether there indeed had been penetration, however slight, of the victim’s labias. In the absence of testimonial or physical evidence to establish penile penetration, the appellant cannot be convicted of consummated rape. Article 6 of the Revised Penal Code, as amended, states that there is an attempt when the offender commenced the commission of the crime directly by overt acts but does not perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance. In People v. Publico, we ruled that when the "touching" of the vagina by the penis is coupled with the intent to penetrate, attempted rape is committed; otherwise, the crime committed is merely acts of lasciviousness. In the present case, the appellant commenced the commission of rape by the following overt acts:

kissing AAA’s nape and neck; undressing her; removing his clothes and briefs; lying on top of her; holding her hands and parting her legs; and trying to insert his penis into her vagina. The appellant, however, failed to perform all the acts of execution which should produce the crime of rape by reason of a cause other than his own spontaneous desistance, i.e., the victim's loud cries and resistance. The totality of the appellant’s acts demonstrated the unmistakable objective to insert his penis into the victim’s private parts. “ In rape cases, the prosecution bears the primary duty to present its case with clarity and persuasion, to the end that conviction becomes the only logical and inevitable conclusion. We emphasize that a conviction cannot be made to rest on possibilities; strongest suspicion must not be permitted to sway judgment. In the present case, the prosecution failed to discharge its burden of proving all the elements of consummated rape.

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The appellant's conviction for the crime of rape is VACATED, and we find appellant Christopher Pareja y Velasco GUILTY of the crime of ATTEMPTED RAPE.

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PEOPLE OF THE PHILIPPINES VS. EDGAR PADIGOS G.R. No. 181202, December 05, 2012 FIRST DIVISION (LEONARDO-DE CASTRO, J.)

In the case at bar, the prosecution may have been unable to present AAA’s birth certificate or other authentic document such as a baptismal certificate during trial, however, that failure to present relevant evidence will not deter this Court from upholding that qualified rape was indeed committed by appellant because he himself admitted, in his counter-affidavit which formed part of the evidence for the defense and the contents of which he later affirmed in his testimony in open court, that AAA was below 7 years old around the time of the rape incident. In the Court’s view, this admission from appellant, taken with the testimony of the victim, sufficiently proved the victim’s minority.

Facts:

The evidence for the prosecution discloses that “AAA” who was then only six-years old was sleeping inside their house on August 26, 2002 when her father, herein accused-appellant raped her. He undressed her and removed her panty. He also took off his pants. He inserted his penis into her vagina and made push and pull movements. She felt pain in her private organ. Her mother was not around as it was only her and her father who were home. The next day, accused-appellant made her hold his penis. He, on the other hand, touched her genitals and inserted his fingers into her vagina causing her to feel pain. She related the incidents to her mother who simply gave her father a fierce piercing stare but did nothing. She also confided to her aunt, sister of her mother, who brought her to a doctor for medical examination and to the police station to report the matter. According to the accused, the present charges were merely fabricated by his wife as they have been estranged from each other because she was cohabiting with another man prior to the incidents complained of. His wife prevented their daughter/victim herein from returning to their house. A few days hence, to his surprise, he was arrested by police authorities and was detained at the Talisay City Jail for having raped his own daughter. Their daughter never returned to their house since he and his wife separated. After trial, the trial court convicted appellant of the crimes of rape and acts of lasciviousness both in relation to Republic Act No. 7160. The death penalty was imposed by the trial court because it found the appellant guilty of qualified rape. This ruling was affirmed by the Court of Appeals, albeit reduced to reclusion perpetua in accordance with Republic Act No. 9346.

Issue: Whether the victim’s minority has been sufficiently proved.

Held:

Petition DENIED Article 266-A of the Revised Penal Code which deals with the offense of rape provides:

Art. 266-A. Rape, When and How Committed. Rape is committed

1. By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a. Through force, threat or intimidation;

b. When the offended party is deprived of reason or is otherwise unconscious;

c. By means of fraudulent machination or grave abuse of authority;

d. When the offended party is under twelve (12) years of age or is demented, even though none of the

circumstances mentioned above be present;

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2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. As cemented in jurisprudence, the elements of rape under the said provision of law are: (1) the offender had carnal knowledge of the victim; and (2) such act was accomplished through force or intimidation; or when the victim is deprived of reason or otherwise unconscious; or when the victim is under 12 years of age. Thus, sexual intercourse with a girl below 12 years old, which is the subject of this case, is considered as statutory rape in this jurisdiction. According to the sixth paragraph of Article 266-B, the death penalty shall be imposed if the crime of rape is committed “when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.”

It would appear from the death penalty imposed by the trial court that it found appellant guilty of qualified rape. This ruling was affirmed by the Court of Appeals, albeit reduced to reclusion perpetua in accordance with Republic Act No. 9346. After a careful review of the records of this case, we are persuaded that appellant is indeed guilty of qualified rape. In People v. Pruna, we formulated a set of guidelines that will serve as a jurisprudential benchmark in appreciating age either as an element of the crime or as a qualifying circumstance in order to address the seemingly conflicting court decisions regarding the sufficiency of evidence of the victim’s age in rape cases. The Pruna guidelines are as follows:

1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances:

a) If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old;

b) If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old;

c) If the victim is alleged to be below 12 years of age and what is sought to be proved

is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim’s

mother or relatives concerning the victim’s age, the complainant’s testimony will suffice provided that it is expressly and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.

6. The trial court should always make a categorical finding as to the age of the victim.

In the case at bar, the prosecution may have been unable to present AAA’s birth certificate or other authentic document such as a baptismal certificate during trial, however, that failure to present relevant evidence will not deter this Court from upholding that qualified rape was indeed committed by appellant because he

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himself admitted, in his counter-affidavit which formed part of the evidence for the defense and the contents of which he later affirmed in his testimony in open court, that AAA was below 7 years old around the time of the rape incident. In the Court’s view, this admission from appellant, taken with the testimony of the victim, sufficiently proved the victim’s minority. In view of the foregoing, we therefore affirm the conviction of appellant for qualified rape and acts of lasciviousness. Further, he is to suffer the penalty imposed by the Court of Appeals which is reclusion perpetua.

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PEOPLE v. EDMUND VILLAFLORES G.R. No. 184926, 11 April 2012, FIRST DIVISION, (Bersamin, J. )

Under Article 266-A, rape is always committed when the accused has carnal knowledge of a female under 12 years of age. The crime is commonly called statutory rape, because a female of that age is deemed incapable of giving consent to the carnal knowledge. Marita’s Certificate of Live Birth disclosed that she was born on October 29, 1994, indicating her age to be only four years and eight months at the time of the commission of the crime on July 2, 1999. As such, carnal knowledge of her by Villaflores would constitute statutory rape.

FACTS:

Accused Appellant Edmundo Villaflores also known as “Batman” in their neighborhood and known to be a drug-addict was charged with the crime of Rape with Homicide of a four-year old girl named Marita. Based on the testimony of the mother of the victim, On July 2, 1999, Marita was last seen to be playing at the rear of their residence. When her mother noticed that she was missing, she called her husband who rushed home to find their daughter. At 6:00AM of July 3, 1999, they found Marita’s lifeless body covered with blue and yellow sack five houses away from their home. The result of the postmortem examination showed that the child was raped and the cause of death is asphyxia by strangulation .Two (2) witnesses pointed Villaflores as the culprit. Both witnesses narrated that at about 10:00AM on July 2, 1999, they saw Villaflores leading Maria by the hand. At noon, the three used shabu for a while, but the witnesses did not see Marita in the vicinity of Villaflores’ house. It was only on 3:00PM that they heard cries of a child. At about 7:00PM both witnesses saw Villaflores carrying a yellow sack which appears heavy, the same sack that he saw when they are still inside the house of Villaflores. The wife of the accused also gave a supporting testimony that on the night of July 2, 1999 she saw his husband place some sacks under their house and then went closer and saw a protruding elbow inside the sack, when she confronted his husband who was on drugs, Villaflores said it was nothing.

Based from these circumstances, the RTC convicted Villaflores of rape with homicide holding that the circumstantial evidence led to no other conclusion but that his guilt was shown beyond reasonable doubt. The Court of Appeals also affirmed the conviction. The accused appealed and argued that both RTC and CA erred in convicting him of a composite crime of Rape with homicide.

ISSUE:

Whether or not court erred in finding the accused guilty beyond reasonable doubt of crime of Rape with Homicide?

HELD: No. Decision of Court of Appeals is AFFIRMED.

Republic Act No. 8353 (Anti-Rape Law of 1997) pertinently provides:

Article 266-A. Rape; When and How Committed. Rape is committed

1)

circumstances:

By a man who have carnal knowledge of a woman under any of the following

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented,

even though none of the circumstance mentioned above be present. xxx

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Article 266-B. Penalties. Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. Xxx When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, homicide is committed, the penalty shall be death.xxx

The law on rape quoted herein thus defines and sets forth the composite crimes of attempted rape with homicide and rape with homicide. In both composite crimes, the homicide is committed by reason or on the occasion of rape. As can be noted, each of said composite crimes is punished with a single penalty, the former with reclusion perpetua to death, and the latter with death. The phrases by reason of the rape and on the occasion of the rape are crucial in determining whether the crime is a composite crime or a complex or compound crime. The phrase by reason of the rape obviously conveys the notion that the killing is due to the rape, the offense the offender originally designed to commit. The victim of the rape is also the victim of the killing. The indivisibility of the homicide and the rape (attempted or consummated) is clear and admits of no doubt. In contrast, the import of the phrase on the occasion of the rape may not be as easy to determine. To understand what homicide may be covered by the phrase on the occasion of the rape, a resort to the meaning the framers of the law intended to convey thereby is helpful. Indeed, during the floor deliberations of the Senate on Republic Act No. 8353, the legislative intent on the import of the phrase on the occasion of the rape to refer to a killing that occurs immediately before or after, or during the commission itself of the attempted or consummated rape, where the victim of the homicide may be a person other than the rape victim herself for as long as the killing is linked to the rape, became evident.

Under Article 266-A, supra, rape is always committed when the accused has carnal knowledge of a female under 12 years of age. The crime is commonly called statutory rape, because a female of that age is deemed incapable of giving consent to the carnal knowledge. Marita’s Certificate of Live Birth (Exhibit K) disclosed that she was born on October 29, 1994, indicating her age to be only four years and eight months at the time of the commission of the crime on July 2, 1999. As such, carnal knowledge of her by Villaflores would constitute statutory rape. We have often conceded the difficulty of proving the commission of rape when only the victim is left to testify on the circumstances of its commission. The difficulty heightens and complicates when the crime is rape with homicide, because there may usually be no living witnesses if the rape victim is herself killed. Yet, the situation is not always hopeless for the State, for the Rules of Court also allows circumstantial evidence to establish the commission of the crime as well as the identity of the culprit.

In resolving to convict Villaflores, both the RTC and the CA considered several circumstances, which when “appreciated together and not piece by piece,” according to the CA, were seen as “strands which create a pattern when interwoven,” and formed an unbroken chain that led to the reasonable conclusion that Villaflores, to the exclusion of all others, was guilty of rape with homicide.

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JOJIT GARINGARAO vs. PEOPLE G.R. No. 192760, 20 July 2011, SECOND DIVISION, (Carpio, J.)

The Court has ruled that a child is deemed subject to other sexual abuse when the child is the victim of lascivious conduct under the coercion or influence of any adult. In lascivious conduct under the coercion or influence of any adult, there must be some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party’s free will. The Court has already ruled that it is inconsequential that sexual abuse under RA 7610 occurred only once. Section 3(b) of RA 7610 provides that the abuse may be habitual or not.

FACTS:

AAA, 16 years of age, was brought to the Virgen Milagrosa Medical Center by her father BBB and mother CCC due to fever and abdominal pain. AAA was admitted at the hospital for further observation. The next day, her father and mother left the hospital to process AAA’s Medicare papers and to attend to their store, respectively, leaving AAA alone in her room. When her father returned to the hospital, AAA told him that she wanted to go home. The doctor allowed them due to AAA’s insistence but instructed her that she should continue her medications. At home, AAA told her parents that Garingarao sexually abused her. They went back to the hospital and reported the incident to Dr. Morante. They inquired from the nurses’ station and learned that Garingarao was the nurse on duty on that day. An Information was filed against Garingarao for acts of lasciviousness in relation to RA 7610. During the trial, AAA testified that, Garingarao, entered her room to check her medications and if she was still experiencing pains. Garingarao lifted AAA’s bra and touched her left breast and insisted that he was only examining her. Garingarao also slid his finger inside AAA’s private part and only stopped when he saw that AAA really had her monthly period. In his defense, the accused testified that he went inside AAA’s room to administer her medicines and check her vital signs. Garingarao alleged that the filing of the case was motivated by the argument he had with AAA’s father about the administering of medicines. He was supported by the testimony of the nursing aide, Tamayo. Garingarao further alleged that, assuming the charges were correct, there was only one incident when he allegedly touched AAA and as such, he should have been convicted only of acts of lasciviousness and not of violation of RA 7610. The RTC found Garingarao guilty as charged and gave credence to the testimony of AAA over Garingarao’s denial, which was affirmed by the CA.

ISSUE: Whether or not the single incident of act of lasciviousness would suffice to hold the accused liable under RA 7610?

RULING: YES. Decision of CA is AFFIRMED. The Court has ruled that in case of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused. It is a settled rule that denial is a weak defense as against the positive identification by the victim. Both denial and alibi are inherently weak defenses and constitute self-serving negative evidence which cannot be accorded greater evidentiary weight than the positive declaration by a credible witness. Section 5, Article III of RA 7610 provides:

Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in

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sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The elements of sexual abuse under Section 5, Article III of RA 7610 are the following:

1. The accused commits the act of sexual intercourse or lascivious conduct;

2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and

3. The child, whether male or female, is below 18 years of age.

Under Section 32, Article XIII of the Implementing Rules and Regulations of RA 7610, lascivious conduct is defined as follows:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with the intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.

In this case, the prosecution established that Garingarao touched AAA’s breasts and inserted his finger into her private part for his sexual gratification. Garingarao used his influence as a nurse by pretending that his actions were part of the physical examination he was doing. Garingarao persisted on what he was doing despite AAA’s objections. AAA twice asked Garingarao what he was doing and he answered that he was just examining her. The Court has ruled that a child is deemed subject to other sexual abuse when the child is the victim of lascivious conduct under the coercion or influence of any adult. In lascivious conduct under the coercion or influence of any adult, there must be some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party’s free will. In this case, Garingarao coerced AAA into submitting to his lascivious acts by pretending that he was examining her. Garingarao insists that, assuming that the testimonies of the prosecution witnesses were true, he should not be convicted of violation of RA 7610 because the incident happened only once. Garingarao alleges that the single incident would not suffice to hold him liable under RA 7610. This argument has no legal basis. The Court has already ruled that it is inconsequential that sexual abuse under RA 7610 occurred only once. Section 3(b) of RA 7610 provides that the abuse may be habitual or not. Hence, the fact that the offense occurred only once is enough to hold Garingarao liable for acts of lasciviousness under RA 7610. The Court finds Jojit Garingarao guilty beyond reasonable doubt of acts of lasciviousness in relation to Republic Act No. 7610.

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PEOPLE OF THE PHILIPPINES v. DINA DULAY y PASCUAL G.R. No. 193854. September 24, 2012. THIRD DIVISION, PERALTA, J.

Private complainant AAA was 12 years old when the whole incident happened. AAA's sister introduced Dina Dulay to AAA as someone who is nice. Thereafter, Dina convinced AAA to accompany her at a wake at GI San Dionisio, Parañaque City. Before going to the said wake, they went to a casino to look for Dina's boyfriend, but since he was not there, they went to Sto. Niño at Don Galo. However, her boyfriend was also not there. When they went to Bulungan Fish Port along the coastal road to ask for some fish, they saw her boyfriend. Afterwards, AAA, Dina and the latter's boyfriend proceeded to the Kubuhan located at the back of the Bulungan Fish Port. When they reached the Kubuhan, Dina suddenly pulled AAA inside a room where a man known by the name "Speed" was waiting. AAA saw "Speed" give money to Dina and heard "Speed" tell her to look for a younger girl. Thereafter, "Speed" wielded a knife and tied AAA's hands to the papag and raped her. AAA asked for Dina's help when she saw the latter peeping into the room while she was being raped, but she did not do so. After the rape, "Speed" and Dina told AAA not to tell anyone what had happened or else they would get back at her.

AAA went to San Pedro, Laguna after the incident and told her sister what happened and the latter informed their mother about it. AAA, her sister and mother, filed a complaint at Barangay San Dionisio. Thereafter, the barangay officials of San Dionisio referred the complaint to the police station.

Thus, an Information was filed. , appellant entered a plea of not guilty. Therafter, trial on the merits ensued. RTC found appellant Dulay guilty beyond reasonable doubt of the crime of rape as co-principal by indispensable cooperation. The appellant Dulay brought the case to the CA. The latter, on August 4, 2010, promulgated its decision affirming the ruling of the RTC with a modification on the award of damages

Issue

Whether Dina Dulay Is guilty of rape as co-principal by indispensable cooperation.

Held

The appeal of appellant Dina Dulay y Pascual is hereby DISMISSED. However, the Decision of the CA is hereby MODIFIED as appellant is not guilty beyond reasonable doubt of the crime of rape, but of violating Section 5 (a), Article III R.A. 7610, amended, for which she is sentenced to fourteen (14) years and eight (8) months of reclusion temporal, as minimum, to twenty (20) years of reclusion temporal, as maximum. Appellant is also ORDERED to pay AAA the amount of P 50,000.00 as civil indemnity.

In sustaining the conviction of the appellant as co-principal by indispensable cooperation, the CA, ratiocinated:

To cooperate means to desire or wish in common a thing. But that common will or purpose does not necessarily mean previous understanding, for it can be explained or inferred from the circumstances of each case. The cooperation must be indispensable, that is, without which the commission of the crime would not have been accomplished. x x x

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x x x x

The proven facts and circumstances obtaining in this case fall squarely on the above-cited example. It will be noted that the cooperation of the accused-appellant consisted in performing an act which is different from the act of execution of the crime committed by the rapist. Accused-appellant cooperated in the perpetration of the crime of rape committed by "Speed" by acts without which the crime would not have been consummated, since she prepared the way for the perpetration thereof, convinced the victim to go with her under the guise of looking for her boyfriend and upon arrival at the kubuhan, she pulled the victim inside a room where "Speed" was waiting, delivered the victim to him, and then after receiving some amount of money from "Speed" she settled in another room together with her boyfriend so that "Speed" might freely consummate the rape with violence and intimidation, as he did.

However, this Court is of another view and does not subscribe to the findings of the trial court, as sustained by the CA that appellant is guilty beyond reasonable doubt as co-principal by indispensable cooperation in the crime of rape.

Under the Revised Penal Code, an accused may be considered a principal by direct participation, by inducement, or by indispensable cooperation. To be a principal by indispensable cooperation, one must participate in the criminal resolution, a conspiracy or unity in criminal purpose and cooperation in the commission of the offense by performing another act without which it would not have been accomplished. Nothing in the evidence presented by the prosecution does it show that the acts committed by appellant are indispensable in the commission of the crime of rape. The events narrated by the CA, from the time appellant convinced AAA to go with her until appellant received money from the man who allegedly raped AAA, are not indispensable in the crime of rape. Anyone could have accompanied AAA and offered the latter's services in exchange for money and AAA could still have been raped. Even AAA could have offered her own services in exchange for monetary consideration and still end up being raped. Thus, this disproves the indispensable aspect of the appellant in the crime of rape. It must be remembered that in the Information, as well as in the testimony of AAA, she was delivered and offered for a fee by appellant, thereafter, she was raped by "Speed.

In this light, while this Court does not find appellant to have committed the crime of rape as a principal by indispensable cooperation, she is still guilty of violation of Section 5 (a) of R.A. 7610, or the Special Protection of Children Against Abuse, Exploitation and Discrimination Act, which states that:

Section 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:

(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: