G.R. No.
175926 July 6, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
RESTITUTO CARANDANG, HENRY MILAN AND JACKMAN CHUA, Accused-Appellants.
DECISION
LEONARDO-DE CASTRO, J.:
This is an appeal by Henry Milan and Jackman Chua from the Decision1 of the Court of
Appeals in CA-G.R. CR.-H.C. No. 01934 dated May 10, 2006. Said Decision affirmed that of
the Regional Trial Court (RTC) convicting them and one Restituto Carandang for two counts
of murder and one count of frustrated murder in Criminal Cases No. Q-01-100061, Q-01-
100062 and Q-01-100063, the Informations for which read:
Criminal Case No. Q-01-100061
That on or about the 5th day of April 2001, in Quezon City, Philippines, the above-named
accused, conspiring together, confederating with and mutually helping one another, did then
and there, willfully, unlawfully and feloniously with intent to kill, taking advantage of superior
strength and with treachery and evident premeditation, attack, assault and employ personal
violence upon the person of PO2 DIONISIO ALONZO Y SALGO, by then and there shooting
the latter several times with the use of a firearm of unknown caliber hitting him on the
different parts of the body, thereby inflicting upon him serious and mortal gunshot wounds
which were the direct and immediate cause of his death, to the damage and prejudice of the
immediate heirs of said PO2 DIONISIO ALONZO Y SALGO.
That the crime was committed in contempt of or with insult to the public authorities.2
Criminal Case No. Q-01-100062
That on or about the 5th day of April, 2001, in Quezon City, Philippines, the above-named
accused, conspiring together, confederating with and mutually helping one another, did then
and there, willfully, unlawfully and feloniously with intent to kill, taking advantage of superior
strength and with treachery and evident premeditation, attack, assault and employ personal
violence upon the person of SPO2 WILFREDO RED Y PILAR, by then and there shooting the
latter several times with the use of a firearm of unknown caliber, hitting him on the different
parts of the body and as soon as the said victim fell on the ground, by placing a hand
grenade (sic) underneath the body which directly caused an explosion and mutilated the body
which directly caused the death of SPO2 WILFREDO RED Y PILAR, to the damage and
prejudice of the heirs of the victim in such amount as may be awarded to them under the
provisions of the Civil Code.
That the crime was committed in contempt of or with insult to the public authorities.3
Criminal Case No. Q-01-100063
That on or about the 5th day of April, 2001, in Quezon City, Philippines, the above-named
accused, conspiring together, confederating with and mutually helping one another, with
intent to kill with evident premeditation and with treachery, did then and there willfully,
unlawfully and feloniously, assault, attack and employ personal violence upon the person of
SPO1 WILFREDO MONTECALVO Y DALIDA, by then and there shooting the latter with the
use of a firearm of unknown caliber, hitting him on his neck, thereby inflicting upon him
serious and mortal injuries, the offender thus performing all the acts of execution which would
have produced the crime of murder as a consequence, but nevertheless did not produce it by
reasons or causes independent of the will of the perpetrators, that is the timely and able
medical assistance rendered to said SPO1 WILFREDO MONTECALVO Y DALIDA, to the
damage and prejudice of the said offended party.
That the crime was committed in contempt of or with insult to the public authorities.4
On May 15, 2001, accused-appellants Carandang, Milan and Chua pleaded not guilty to the
crimes charged.
The prosecution evidence, culled from the testimonies of Senior Police Officer (SPO) 1
Wilfredo Montecalvo, SPO1 Rodolfo Estores, Police Senior Inspector (P/Sr. Insp.) Virgilio
Calaro, P/Supt. Manuel Roxas and Dr. Wilson Tan, yielded the following version of the facts:
In the afternoon of April 5, 2001, the drug enforcement unit of the La Loma Police Station 1
received a request for assistance from the sister of accused Milan regarding a drug deal that
would allegedly take place in her house at Calavite St., Brgy. Salvacion, Quezon City. The
station commander called SPO2 Wilfredo Pilar Red and instructed him to talk to Milan’s
sister, who was in their office. SPO2 Red, accompanied by Police Officer (PO) 2 Dionisio
Alonzo, SPO1 Estores and SPO1 Montecalvo, talked to Milan’s sister. Thereafter, SPO2 Red
formed a team composed of the officers who accompanied him during the interrogation, with
him as team leader. The team received further instructions from the station commander then
proceeded to Calavite Street aboard two vehicles, a mobile patrol car and an unmarked car.5
When the team reached the place at around 4:00 p.m.,6 they alighted from their vehicles and
surrounded Milan’s house. SPO1 Montecalvo’s group went to the left side of the house, while
SPO2 Red’s group proceeded to the right. The two groups eventually met at the back of the
house near Milan’s room. The door to Milan’s room was open, enabling the police officers to
see Carandang, Milan and Chua inside. SPO2 Red told the group that the persons inside the
room would not put up a fight, making them confident that nothing violent would erupt.
However, when the group introduced themselves as police officers, Milan immediately shut
the door.7
PO2 Alonzo and SPO2 Red pushed the door open, causing it to fall and propelling them
inside the room. PO2 Alonzo shouted "Walang gagalaw!" Suddenly, gunshots rang, hitting
PO2 Alonzo and SPO2 Red who dropped to the floor one after the other. Due to the
suddenness of the attack, PO2 Alonzo and SPO2 Red were not able to return fire and were
instantly killed by the barrage of gunshots. SPO1 Montecalvo, who was right behind SPO2
Red, was still aiming his firearm at the assailants when Carandang shot and hit him. SPO1
Montecalvo fell to the ground. SPO1 Estores heard Chua say to Milan, "Sugurin mo na!"
Milan lunged towards SPO1 Montecalvo, but the latter was able to fire his gun and hit Milan.
SPO1 Estores went inside the house and pulled SPO1 Montecalvo out.8
Reinforcements came at around 4:30 p.m. upon the arrival of P/Sr. Insp. Calaro, Chief
Operations Officer of the La Loma Police Station 1, and P/Supt. Roxas, the Deputy Station
Commander of Police Station 1 at the time of the incident.9 SPO1 Montecalvo was brought to
the Chinese General Hospital. Milan stepped out of the house and was also brought to a
hospital,10 but Carandang and Chua remained holed up inside the house for several hours.
There was a lengthy negotiation for the surrender of Carandang and Chua, during which they
requested for the presence of a certain Colonel Reyes and media man Ramon Tulfo.11 It
was around 11:00 p.m. to 12:00 midnight when Carandang and Chua surrendered.12 SPO2
Red and PO2 Alonzo were found dead inside the house, their bodies slumped on the floor
with broken legs and gunshot and grenade shrapnel wounds.13
Dr. Winston Tan, Medico-Legal Officer of the Philippine National Police (PNP) Crime
Laboratory, conducted the post-mortem examination of the bodies of SPO2 Red and PO2
Alonzo. He found that the gunshot wounds of Red and Alonzo were the cause of their
deaths.14
According to SPO1 Montecalvo’s account, Dr. Bu Castro of the Chinese General Hospital
operated on him, removing a bullet from the right portion of his nape. SPO1 Montecalvo’s
hospitalization expenses amounted to ₱14,324.48. He testified that it was a nightmarish
experience for him as he feared that he might be paralyzed later on.15
The defense presented the three accused as witnesses, testifying as follows:
Carandang claims that he had no firearm during the incident, and that it was the police
officers who fired all the shots. He was in Milan’s house during the incident in order to ask
Milan to accompany him to convert his cellular phone’s SIM card. When he arrived at Milan’s
place, he found Milan and Chua playing a card game. A short time later, there was banging
on the door. The door of the house was destroyed and gunfire suddenly erupted, prompting
him to take cover under a bed. Chua cried out to him that he was hit and that he might lose
blood. Milan ran outside and sustained injuries as well. There was an explosion near the
door, causing burns on Carandang’s left arm. Gunfire continued coming from different
directions for two to three minutes. Suddenly, the place became dark as the lights went
out.16
Since gunshots were still heard every now and then, Carandang stayed in the house and did
not come out. Col. Tor, the new Chief of the Criminal Investigation Division (CID) Sikatuna,
negotiated for Carandang to come out. Carandang requested for the presence of his wife,
Col. Doroteo Reyes and media man Ramon Tulfo. He went out of the house at around
midnight when the three arrived.17
Milan testified that he was at home in Calavite St. at the time of the incident. He knew
Carandang for seven months. Chua was their neighbor. While playing a card game inside his
room, they heard someone pounding at the door. He stood and approached the door to
check. The door was destroyed, and two unidentified men barged in. Gunshots erupted. He
was hit on the left side of his body. He ran out of the room, leaving Chua and Carandang
behind. As he was doing so, he saw his mother lying down and shouting "Itigil niyo ang
putukan; maraming matatanda dito!" Milan was then hit on his left leg by another gunshot.18
Chua testified that he went to the house of Milan at around noontime of April 4, 2001 to play a
card game. They played inside Milan’s ground floor room. Five to ten minutes later,
Carandang arrived and laid down on the bed. Chua did not pay much attention as Milan and
Carandang discussed about cellular phones. Later, they heard a loud banging in the door as
if it was being forced open. Milan stood up to see what was happening. Chua remained
seated and Carandang was still on the bed. The door was forcibly opened. Chua heard
successive gunshots and was hit on his left big toe. He ducked on the floor near the bed to
avoid being hit further. He remained in that position for several hours until he lost
consciousness. He was already being treated at the Chinese General Hospital when he
regained consciousness. In said hospital, a paraffin test was conducted upon him.19
P/Sr. Insp. Grace Eustaquio, Forensic Chemist of the PNP Crime Laboratory, later testified
that the paraffin test on Chua yielded a negative result for gunpowder nitrates, but that
performed on Carandang produced a positive result. She was not able to conduct a paraffin
test on Milan, who just came from the operating room when she saw him. Milan seemed to be
in pain and refused to be examined.20
On April 22, 2003, the trial court rendered its Decision21 finding Carandang, Milan and Chua
guilty of two counts of murder and one count of frustrated murder:
WHEREFORE, finding the accused RESTITUTO CARANDANG, HENRY MILAN AND
JACKMAN CHUA guilty beyond reasonable doubt of the crime of murder described and
penalized under Article 249 of the Revised Penal Code in relation to Article 63 of the same
Code, for the killing of SPO2 Wilfredo Pilar Red and PO2 Dionisio Alonzo qualified by
treachery and acting in conspiracy with each other, they are hereby sentenced to suffer the
penalty of reclusion perpetua for each count of murder and to indemnify the heirs of the On May 10, 2006, the Court of Appeals rendered the assailed Decision modifying the
victims, jointly and severally, as follows: Decision of the trial court:

To the heirs of SPO2 Wilfredo Red: WHEREFORE, premises considered, the Decision of the Regional Trial Court of Quezon
City, Branch 76, in Criminal Case Nos. Q-01-100061-63 finding accused-appellants guilty
1. ₱50,000.00 as civil indemnity; beyond reasonable doubt of two (2) counts of Murder and one (1) count of Frustrated Murder
is hereby AFFIRMED with MODIFICATIONS as follows:
2. ₱50,000.00 as moral damages;
1) In Criminal Case Nos. Q-01-100061 and Q-01-100062, accused-appellants are hereby
3. ₱149,734.00 as actual damages; and ordered to pay the heirs of PO2 Dionisio S. Alonzo and SPO2 Wilfredo P. Red an indemnity
for loss of earning capacity in the amount of ₱2,140,980.69 and ₱2,269,243.62, respectively;
4. ₱752,580.00 as compensatory damages and

To the heirs of PO2 Dionisio Alonzo: 2) In Criminal Case No. Q-01-100063, accused-appellants are hereby instead sentenced to
suffer an indeterminate prison term of six (6) years and one (1) day of prision mayor, as
1. ₱50,000.00 as civil indemnity; minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as
maximum.
2. ₱50,000.00 as moral damages;
With costs against the accused-appellants.27
3. ₱139,910.00 as actual damages; and
Milan and Chua appealed to this Court anew.28 Carandang did not appeal, and instead
4. ₱522,960.00 as compensatory damages. presented a letter informing this Court that he is no longer interested in pursuing an
appeal.29 On April 9, 2008, Milan and Chua filed a Supplemental Appellant’s Brief to further
Likewise, finding the accused Restituto Carandang, Henry Milan and Jackman Chua guilty discuss the Assignment of Errors they presented in their September 28, 2004 Appellant’s
beyond reasonable doubt of the crime of frustrated murder, described and penalized under Brief:
Article 249 in relation to Article 6, paragraph 2, having acted in conspiracy with each other
and applying the Indeterminate Sentence Law, they are hereby sentenced to suffer I.
imprisonment of six (6) years of prision mayor to twelve (12) years and one (1) day of
reclusion temporal, and to indemnify the victim Wilfredo Montecalvo as follows: The court a quo erred in holding that there was conspiracy among the appellants in the case
at bar.
1. ₱14,000.00 as actual damages;
II.
2. ₱20,000.00 as moral damages;
Assuming arguendo that conspiracy exists, the court a quo gravely erred in convicting them
3. ₱20,000.00 as reasonable attorney’s fees; and of the crime of murder and frustrated murder instead of homicide and frustrated homicide
only, the qualifying circumstance of treachery not having been duly proven to have attended
4. To pay the costs.22 the commission of the crimes charged.30

Carandang, Milan and Chua appealed to this Court.23 The appeals were separately The trial court had ruled that Carandang, Milan and Chua acted in conspiracy in the
docketed as G.R. Nos. 160510-12.24 Pursuant, however, to the decision of this Court in commission of the crimes charged. Thus, despite the established fact that it was Carandang
People v. Mateo,25 the appeals were transferred26 to the Court of Appeals, where they were who fired the gun which hit SPO2 Red, PO2 Alonzo and SPO1 Montecalvo, all three accused
assigned a single docket number, CA-G.R. CR.-H.C. No. 01934. were held equally criminally responsible therefor. The trial court explained that Carandang,
Milan and Chua’s actuations showed that they acted in concert against the police officers.
The pertinent portion of the RTC Decision reads:
Milan, Carandang and Chua were all inside the room of Milan. Upon arrival of police officers
Red, Alonzo and the others and having identified themselves as police officers, the door was
closed and after Alonzo and Red pushed it open and as Alonzo shouted, "walang gagalaw,"
immediately shots rang out from inside the room, felling Alonzo, then Red, then Montecalvo.
Chua was heard by Estores to shout to Milan: "Sugurin mo na" (tsn, October 16, 2001, page
8). And as Milan lunged at Montecalvo, the latter shot him.
That the three acted in concert can be gleaned from their actuations. First, when they learned
of the presence of the police officers, they closed the door. Not one of them came out to talk
peacefully with the police officers. Instead, Carandang opened fire, Alonzo and Red did not
even have the chance to touch their firearms at that instant.31
In affirming this ruling, the Court of Appeals further expounded on the acts of Milan and Chua
showing that they acted in concert with Carandang, to wit:
In the present case, when appellants were alerted of the presence of the police officers, Milan
immediately closed the door. Thereafter, when the police officers were finally able to break
open said door, Carandang peppered them with bullets. PO2 Alonzo and SPO2 Red died
instantly as a result while SPO1 Montecalvo was mortally wounded. Then, upon seeing their
victims helplessly lying on the floor and seriously wounded, Chua ordered Milan to attack the
police officers. Following the order, Milan rushed towards Montecalvo but the latter, however,
was able to shoot him.
At first glance, Milan’s act of closing the door may seem a trivial contribution in the
furtherance of the crime. On second look, however, that act actually facilitated the
commission of the crime. The brief moment during which the police officers were trying to
open the door paved the way for the appellants to take strategic positions which gave them a
vantage point in staging their assault. Thus, when SPO2 Red and PO2 Alonzo were finally
able to get inside, they were instantly killed by the sudden barrage of gunfire. In fact, because
of the suddenness of the attack, said police officers were not able to return fire.
Insofar as Chua is concerned, his participation in the conspiracy consisted of lending
encouragement and moral ascendancy to his co-conspirators as evidenced by the fact that
he ordered Milan to attack the already fallen police officers with the obvious intention to finish
them off. Moreover, he did not immediately surrender even when he had the opportunity to do
so but instead chose to stay with Carandang inside the room until their arrest.32
Milan and Chua object to the conclusion that they were in conspiracy with Carandang due to
their acts of closing the door and not peaceably talking to the police officers. According to
them, those acts were caused by their being frightened by the police officers who were
allegedly in full battle gear.33 Milan and Chua further assert that the fortuitous and
unexpected character of the encounter and the rapid turn of events should have ruled out a
finding of conspiracy.34 They claim that the incident happened so fast, giving them no
opportunity to stop Carandang.35
Appellants contest the factual finding that Chua directed Milan to go after SPO1 Montecalvo,
alleging that they were both unarmed and that there was no way for Milan to attack an armed
person. What really happened, according to them, was that Milan ran out of the room for
safety and not to attack SPO1 Montecalvo.36 Milan claims that he was already injured in the
stomach when he ran out, and it was natural for him to seek safety.
Assuming arguendo that Chua uttered "Sugurin mo na!" to Milan, appellants argue that no
crime was committed due to the same as all the victims had already been shot when said
words were shouted.37 Furthermore, it appears to have been uttered as a result of
indiscretion or lack of reflection and did not inherently carry with it inducement or
temptation.38
In the Supplemental Brief, Milan and Chua point out that the assault on the victims was the
result of the impulsive act of Carandang and was not a result of any agreement or a
concerted action of all the accused.39 They claim that when the shootout ensued, Chua
immediately dove down near the bed while Milan ran out of the room out of fear.40 It is
allegedly hard to imagine that SPO1 Montecalvo with certainty heard Chua utter the phrase
"Sugurin mo na," considering that the incident happened so fast, there were lots of
gunshots.41
To summarize, Milan’s and Chua’s arguments focus on the lack of direct evidence showing
that they conspired with Carandang during the latter’s act of shooting the three victims.
However, as we have held in People v. Sumalpong, 42 conspiracy may also be proven by
other means:
Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Evidence need not establish the actual
agreement among the conspirators showing a preconceived plan or motive for the
commission of the crime. Proof of concerted action before, during and after the crime, which
demonstrates their unity of design and objective, is sufficient. When conspiracy is
established, the act of one is the act of all regardless of the degree of participation of each.43
In the case at bar, the conclusion that Milan and Chua conspired with Carandang was
established by their acts (1) before Carandang shot the victims (Milan’s closing the door
when the police officers introduced themselves, allowing Carandang to wait in ambush), and
(2) after the shooting (Chua’s directive to Milan to attack SPO1 Montecalvo and Milan’s
following such instruction). Contrary to the suppositions of appellants, these facts are not
meant to prove that Chua is a principal by inducement, or that Milan’s act of attacking SPO1
Montecalvo was what made him a principal by direct participation. Instead, these facts are
convincing circumstantial evidence of the unity of purpose in the minds of the three. As co-
conspirators, all three are considered principals by direct participation.
Appellants’ attempt to instill doubts in our minds that Chua shouted "sugurin mo na" to Milan,
who then ran towards SPO1 Montecalvo, must fail. SPO1 Estores’s positive testimony44 on
this matter prevails over the plain denials of Milan and Chua. SPO1 Estores has no reason to
lie about the events he witnessed on April 5, 2001. As part of the team that was attacked on
that day, it could even be expected that he is interested in having only the real perpetrators
punished.
Furthermore, we have time and again ruled that factual findings of the trial court, especially
those affirmed by the Court of Appeals, are conclusive on this Court when supported by the
evidence on record.45 It was the trial court that was able to observe the demeanors of the
witnesses, and is consequently in a better position to determine which of the witnesses are
telling the truth. Thus, this Court, as a general rule, would not review the factual findings of
the courts a quo, except in certain instances such as when: (1) the conclusion is grounded on
speculations, surmises or conjectures; (2) the inference is manifestly mistaken, absurd or
impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a
misapprehension of facts; (5) the findings of fact are conflicting; (6) there is no citation of
specific evidence on which the factual findings are based; (7) the finding of absence of facts
is contradicted by the presence of evidence on record; (8) the findings of the Court of
Appeals are contrary to the findings of the trial court; (9) the Court of Appeals manifestly
overlooked certain relevant and undisputed facts that, if properly considered, would justify a
different conclusion; (10) the findings of the Court of Appeals are beyond the issues of the
case; and (11) such findings are contrary to the admissions of both parties.46
Neither can the rapid turn of events be considered to negate a finding of conspiracy. Unlike
evident premeditation, there is no requirement for conspiracy to exist that there be a sufficient
period of time to elapse to afford full opportunity for meditation and reflection. Instead,
conspiracy arises on the very moment the plotters agree, expressly or impliedly, to commit
the subject felony.47
As held by the trial court and the Court of Appeals, Milan’s act of closing the door facilitated
the commission of the crime, allowing Carandang to wait in ambush. The sudden gunshots
when the police officers pushed the door open illustrate the intention of appellants and
Carandang to prevent any chance for the police officers to defend themselves. Treachery is
thus present in the case at bar, as what is decisive for this qualifying circumstance is that the
execution of the attack made it impossible for the victims to defend themselves or to
retaliate.48
The trial court correctly sentenced appellants to suffer the penalty of reclusion perpetua in
Criminal Case Nos. Q-01-100061 and Q-01-100062. The penalty for murder under Article
24849 of the Revised Penal Code is reclusion perpetua to death. Applying Article 6350 of the
same Code, since there was no other modifying circumstance other than the qualifying
circumstance of treachery, the penalty that should be imposed is reclusion perpetua.
In Criminal Case No. Q-01-100063, the Court of Appeals correctly modified the penalty for
the frustrated murder of SPO1 Montecalvo. Under Article 5051 in connection with Article 61,
paragraph 252 of the Revised Penal Code, the penalty for frustrated murder is one degree
lower than reclusion perpetua to death, which is reclusion temporal. Reclusion temporal has
a range of 12 years and 1 day to 20 years. Its medium period, which should be applied in this
case considering that there is no modifying circumstance other than the qualifying
circumstance of treachery, is 14 years, 8 months and 1 day to 17 years and 4 months – the
range of the maximum term of the indeterminate penalty under Section 153 of the
Indeterminate Sentence Law. The minimum term of the indeterminate penalty should then be
within the range of the penalty next lower to reclusion temporal, and thus may be any term
within prision mayor, the range of which is 6 years and 1 day to 12 years. The modified term
of 6 years and 1 day of prision mayor as minimum, to 14 years, 8 months and 1 day of
reclusion temporal as maximum, is within these ranges.
The civil liabilities of appellants should, however, be modified in accordance with current
jurisprudence. Thus, in Criminal Case Nos. Q-01-100061 and Q-01-100062, the award of
₱50,000.00 as civil indemnity for each victim must be increased to ₱75,000.00.54 In cases of
murder and homicide, civil indemnity of ₱75,000.00 and moral damages of ₱50,000.00 are
awarded automatically, without need of allegation and proof other than the death of the
victim.55 Appellants are furthermore solidarily liable to each victim for ₱30,000.00 as
exemplary damages, which is awarded when the crime was committed with an aggravating
circumstance, be it generic or qualifying.56 However, since Carandang did not appeal, he is
only solidarily liable with Milan and Chua with respect to the amounts awarded by the Court
of Appeals, since the Court of Appeals’ Decision has become final and executory with respect
to him. The additional amounts (₱25,000.00 as civil indemnity and ₱30,000.00 as exemplary
damages) shall be borne only by Milan and Chua, who are hereby held liable therefor
solidarily.
In Criminal Case No. Q-01-100063, the solidary liability of Milan and Chua for moral damages
to SPO1 Wilfredo Montecalvo is likewise increased to ₱40,000.00, in accordance with
prevailing jurisprudence.57 An award of ₱20,000.00 as exemplary damages is also
warranted.58 The additional amounts (₱20,000.00 as moral damages and ₱20,000.00 as
exemplary damages) are likewise to be solidarily borne only by Milan and Chua.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 01934 dated
May 10, 2006 is hereby AFFIRMED, with the following MODIFICATIONS:
1. In Criminal Case Nos. Q-01-100061 and Q-01-100062, appellants Henry Milan and
Jackman Chua are held solidarily liable for the amount of ₱25,000.00 as civil indemnity and
₱30,000.00 as exemplary damages to the heirs of each of the victims, PO2 Dionisio S.
Alonzo and SPO2 Wilfredo P. Red, in addition to the amounts to which they are solidarily
liable with Restituto Carandang as held in CA-G.R. CR.-H.C. No. 01934. Thus, to summarize
the rulings of the lower courts and this Court:
a. The heirs of SPO2 Wilfredo Red are entitled to the following amounts:
i. ₱75,000.00 as civil indemnity, ₱50,000.00 of which shall be solidarily borne by Carandang,
Milan and Chua, while ₱25,000.00 shall be the solidary liability of Milan and Chua only;
ii. ₱50,000.00 as moral damages to be solidarily borne by Carandang, Milan and Chua;
ii. ₱40,000.00 as moral damages, ₱20,000.00 of which shall be solidarily borne by
Carandang, Milan and Chua, while ₱20,000.00 shall be the solidary liability of Milan and
Chua only;
iii. ₱20,000.00 as exemplary damages to be solidarily borne by Milan and Chua only; and
iv. ₱20,000.00 as reasonable attorney’s fees, to be solidarily borne by Carandang, Milan and
Chua.
3. Appellants are further ordered to pay interest on all damages awarded at the legal rate of
Six Percent (6%) per annum from date of finality of this judgment.1avvphi1

iii. ₱149,734.00 as actual damages to be soldarily borne by Carandang, Milan and Chua; SO ORDERED.

iv. ₱2,140,980.00 as indemnity for loss of earning capacity to be solidarily borne by

Carandang, Milan and Chua; and

v. ₱30,000.00 as exemplary damages to be solidarily borne by Milan and Chua only;

b. The heirs of PO2 Dionisio Alonzo are entitled to the following amounts:

i. ₱75,000.00 as civil indemnity, ₱50,000.00 of which shall be solidarily borne by Carandang,

Milan and Chua, while ₱25,000.00 shall be the solidary liability of Milan and Chua only;

ii. ₱50,000.00 as moral damages to be solidarily borne by Carandang, Milan and Chua;

iii. ₱139,910.00 as actual damages to be solidarily borne by Carandang, Milan and Chua;

iv. ₱2,269,243.62 as indemnity for loss of earning capacity to be solidarily borne by

Carandang, Milan and Chua;

v. ₱30,000.00 as exemplary damages to be solidarily borne by Milan and Chua only;

2. In Criminal Case No. Q-01-100063, appellants Henry Milan and Jackman Chua are held
solidarily liable for the amount of ₱20,000.00 as moral damages and ₱20,000.00 as
exemplary damages to SPO1 Wilfredo Montecalvo, in addition to the amounts to which they
are solidarily liable with Restituto Carandang as held in CA-G.R. CR.-H.C. No. 01934. Thus,
to summarize the rulings of the lower courts and this Court, SPO1 Wilfredo Montecalvo is
entitled to the following amounts:

i. ₱14,000.00 as actual damages to be solidarily borne by Carandang, Milan and Chua;

G.R. No. 174471
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
JERRY PEPINO y RUERAS and PRECIOSA GOMEZ y CAMPOS, Accused-Appellants.
DECISION
BRION, J.:
This is an appeal filed by Jerry Pepino (Pepino) and Preciosa Gomez (Gomez) assailing the
June 16, 2006 decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 02026.
ANTECEDENTS
The prosecution evidence showed that at 1:00 p.m., on June 28, 1997, two men and a
woman entered the office of Edward Tan at Kilton Motors Corporation in Sucat, Parafiaque
City, and pretended to be customers. When Edward was about to receive them, one of the
men, eventually identified as Pepino pulled out a gun. Thinking that it was a holdup, Edward
told Pepino that the money was inside the cashier's box. Pepino and the other man looted the
"'cashier's box, handcuffed Edward, and forced him to go with them.2 From the hallway,
Jocelyn Tan (mentioned as "Joselyn" in some parts of the record), Edward's wife, saw Pepino
take her husband. She went to the adjoining room upon Edward's instructions.3
Pepino brought Edward to a metallic green Toyota Corolla where three other men were
waiting inside. The woman (later identified as Gomez) sat on the front passenger seat.4 The
abductors then placed surgical tape over Edward's eyes and made him wear sunglasses.
After travelling for two and a half hours, they arrived at an apartment in Quezon City. The
abductors removed the tape from Edward's eyes, placed him in a room, and then chained his
legs. Pepino approached Edward and asked for the phone number of his father so that he
could ask for ransom for his (Edward's) liberty. Edward told Pepino to negotiate with his wife,
but the latter insisted on talking to his father.5
At around 5:00 p.m. of the same day, the kidnappers called Edward's father and demanded a
P40 million ransom for his release. Edward's father told the kidnappers that he did not have
that amount. The abductors negotiated with Jocelyn who eventually agreed to a P700,000.00
ransom. The kidnappers told Jocelyn to pack the money into two packages and to drop these
at a convenience store in front of McDonald's at Mindanao Avenue. They further demanded
that Edward's vehicle be used to bring the money.6
After four days, or on July 1, 1997, Antonio Gepiga (the family driver) brought the agreed
amount to the 7-Eleven convenience store at Mindanao A venue as instructed.7 That
evening, three men and Gomez blindfolded Edward, made him board a car, and drove
around for 30 minutes. Upon stopping, they told Edward that he could remove his blindfold
after five minutes. When Edward removed his blindfold, he found himself inside his own car
parked at the UP Diliman Campus. He drove home and reported his kidnapping to Teresita
Ang See, a known anti-crime crusader.8
After five months, the National Bureau of Investigation (NBI!) informed Edward that they had
apprehended some suspects, and invited him to identify them from a lineup consisting of
seven persons: five males and two females. Edward positively identified Pepino, Gomez, and
one Mario Galgo.9 Jocelyn likewise identified Pepino.10
Pepino and Gomez did not testify for their defense. The defense instead presented Zeny
Pepino, Reynaldo Pepino, NBI Special Investigator Marcelo Jadloc and P/Sr. Insp. Narciso
Quano (mentioned as "Qano" in some parts of the record).
Zeny testified that she and her husband, Jerry Pepino, were inside their house in Cebu City
on December 7, 1997, when about 20 heavily armed men entered their house looking for
Jerry. When Jerry asked them if they had a warrant of arrest, one of the men pointed a gun at
him and handcuffed him; the armed men then hit him with the butt of an armalite and
punched him. The men also took Pepino' s wristwatch and wallet, as well as Zeny's bag and
watch. Some of the armed men searched the second floor of the house, and found a .45
caliber gun. The armed men brought Zeny and Pepino outside their house where Zeny saw
Renato Pepino and Larex Pepino already handcuffed. The armed men brought them to the
Cebu City Police Headquarters before bringing them to the NBI Headquarters in Manila. The
following day, Jerry, Renato, and Larex were brought to the Department of Justice (DO.I).
Zeny, on the other hand, was released after being detained at the NBI for three (3) days.11
Reynaldo's testimony was summarized by the CA as follows:
x x x On December 6, 1997, he accompanied accused-appellant Gomez to his brother's
sister-in-law who happens to work in a recruitment agency. While they were inside the latter's
house at Lot 2, Block 15, Marikina Heights, Marikina City, they heard a noise at the gate.
When he peeped through the window, he saw two (2) motorcycles and two (2) Vannette
vans. Shortly thereafter, someone kicked the back door and several armed men emerged
therefrom and announced their arrest. When he asked them if they had any warrant, they
replied: "Walang warrant, warrant. Walang search, search." They were then hogtied and
made to lie face down. Five (5) of them then went upstairs and seized his personal
belongings together with his briefcase which contained P45,000.00, documents of accused-
appellant Gomez, and his .45 caliber pistol as well as his license and permit to carry the
same. No receipts were issued for their personal effects which were confiscated. They were
subsequently brought to Camp Crame and subjected to torture. The following day, they were
brought to the Department of Justice and a case for kidnapping was filed against him. Upon
reinvestigation, however, he was discharged from the Information and the court dismissed
the case against him.12

SI Jadloc and Police Senior Inspector Quano, Jr. were presented as hostile witnesses.
Jadloc declared on the witness stand that NBI Assistant Director Edmundo Arugay
dispatched a team to Cebu City to investigate a kidnap-for-ransom case. The team
immediately conducted surveillance operations when they arrived at Calle Rojo, Lahug, Cebu
City. One of the team members saw Renato and Larex Pepino with guns tucked in their
waists. When the team approached them, the two men ran inside their house. The team went
after them and on entering the house, they saw Jerry in possession of a .45 caliber gun. The
team arrested Jerry, Renato and Larex, and then brought them to the NBI Headquarters in
Manila.13
Quano testified that he was designated as the leader of a team tasked to arrest members of a
kidnap-for-ransom group at their safe house in Lot 2, Block 50, Marikina Heights, Marikina
City. When they arrived there, they introduced themselves as police officers. The police
forcibly opened the door after the occupants of the house refused to open the ground floor
door. During their search at the second floor, the operatives found an armalite and a .45
caliber gun. The members of the team handcuffed Gomez and Reynaldo, and then brought
them to Camp Crame.14
The prosecution charged Preciosa Gomez, Jerry Pepino, Reynaldo Pepino, Jessie Pepino,
George Curvera, Boy Lanyujan, Luisito "Tata" Adulfo, Henriso Batijon (a.k.a. Dodoy Batijon),
Nerio Alameda, and an alias Wilan Tan with kidnapping for ransom and serious illegal
detention before the Regional Trial Court (RTC), Branch 259, Paranaque City.15 Reynaldo
was subsequently discharged after reinvestigation. Only Pepino, Gomez, and Batijon were
arraigned; their other co-accused remained at large.
In its May 15, 2000 decision, the RTC convicted Pepino and Gomez of kidnapping and
serious illegal detention under Article 267 of the Revised Penal Code (as amended) and
sentenced them to suffer the death penalty. The RTC also ordered them to pay Edward
P700,000.00 representing the amount extorted from him; P50,000.00 as moral damages; and
P50,000 as exemplary damages. The trial court acquitted Batijon for insufficiency of
evidence.
The R TC held that Edward positively identified Pepino and Gomez as two of the persons
who forcibly abducted him at gunpoint inside Kilton Motors, and who consequently detained
him somewhere in Quezon City for four (4) days until he was released inside the UP Diliman
Campus after the payment of ransom. The RTC added that Jocelyn corroborated Edward's
testimony on material points. It also pointed out that Edward identified both Pepino and
Gomez at the lineup conducted inside the NBI compound, although Jocelyn only recognized
Gomez.
The R TC further ruled that the accused were already estopped from questioning the validity
of their arrest after they entered their respective pleas.
The case was automatically elevated to this Court in view of the death penalty that the R TC
imposed. We referred the case to the CA for intermediate review pursuant to our ruling in
People v. Mateo.16
In its decision dated June 16, 2006, the Court of Appeals affirmed the RTC decision with the
modification that the amounts of moral and exemplary damages were increased from
P300,000.00 and Pl00,000.00, respectively.
The CA held that Pepino and Gomez were deemed to have waived any objection to the
illegality of their arrests when they did not move to quash the information before entering their
plea, and when they participated at the trial.
The CA further ruled that Pepino and Gomez conspired with each other to attain a common
objective, i.e., to kidnap Edward in exchange for ransom.
While the case was under review by the Supreme Court, Pepino filed an urgent motion to
withdraw his appeal, which the Court granted.17 Only Gomez's appeal is now pending before
us.
In her brief18 and supplemental brief,19 Gomez maintained that it was impossible for Edward
to have seen her in the front seat of the getaway car because he (Edward) was blindfolded.
She also alleged that the prosecution failed to prove that she had conspired with the other
accused.
Gomez further claimed that Edward's identification of her during trial "may have been
preconditioned x x x by suggestive identification"20 made at the police lineup. She further
argued that the death penalty imposed on her is no longer proper due to the enactment of
Republic Act No. 9346.
THE COURT'S ·RULING
We affirm Gomez's conviction, but we modify the penalty imposed and the awarded
indemnities.
Illegality of the Arrest
We point out at the outset that Gomez did not question before arraignment the legality of her
warrantless arrest or the acquisition of RTC's jurisdiction over her person. Thus, Gomez is
deemed to have waived any objection to her warrantless arrest.
It is settled that [a]ny objection to the procedure followed in the matter of the acquisition by a Q: Can you tell us if anything unusual happened to you on June 28, 1997?
court of jurisdiction over the person of the accused must be opportunely raised before he
enters his plea; otherwise, the objection is deemed waived.21 As we held in People v. EDWARD TAN:
Samson:22
A: I was kidnapped.
[A ]ppellant is now estopped from questioning any defect in the manner of his arrest as he
failed to move for the quashing of the information before the trial court. Consequently, any xxxx
irregularity attendant to his arrest was cured when he voluntarily submitted himself to the
jurisdiction of the trial court by entering a plea of "not guilty" and by participating in the trial.23 Q: Can you tell this Court how the kidnapping was initiated?

At any rate, the illegal arrest of an accused is not sufficient cause for setting aside a valid
judgment rendered upon a sufficient complaint after a trial free from error. Simply put, the
illegality of the warrantless arrest cannot deprive the State of its right to prosecute the guilty
when all other facts on record point to their culpability. It is much too late in the day to
complain about the warrantless arrest after a valid information had been filed, the accused
had been arraigned, the trial had commenced and had been completed, and a judgment of
conviction had been rendered against her.24
Sufficiency of the Prosecution Evidence
a. Elements of kidnapping proved
A: At around 1:00 o'clock in the afternoon, there were three persons who entered the office of
Kilton Motors and pretended to be customers.
Q: What was the gender of these three persons that you are referring to?
A: Two men and a woman.
Q: After they pretended to be customers, tell us what happened?
A: · They told me they were going to pay but instead of pulling out money, they pulled out a
gun.

The elements of kidnapping and serious illegal detention under Article 267 of the Revised Q: How many people pulled out guns as you said?
Penal Code, as amended, are: (1) the offender is a private individual; (2) he kidnaps or
detains another or in any other manner deprives the latter of his liberty; (3) the act of A: Only one, sir.
detention or kidnapping must be illegal; and (4) in the commission of the offense, any of the
following circumstances is present: (a) the kidnapping or detention lasts for more than three Q: Will you look around this courtroom now and tell us if the person who pulled out a gun is in
(3) days; or (b) it is committed by simulating public authority; or (c) serious physical injuries court?
are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) the
person kidnapped or detained is a minor, female, or a public officer. If the victim of A: (WITNESS POINTED TO A PERSON AT THE RIGHT SECTION, SECOND ROW WHO,
kidnapping and serious illegal detention is a minor, the duration of his detention is immaterial. WHEN ASKED HIS NAME, ANSWERED JERRY PEPINO)
Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting ransom,
the duration of his detention is also of no moment and the crime is qualified and becomes Q: Now, you said that there were two men and a woman who went up the Kilton Motors
punishable by death even if none of the circumstances mentioned in paragraphs 1 to 4 of Office and you pointed to one of the men as Jerry Pepino, can you look around the courtroom
Article 267 is present.25 and tell us if any of the two others are in court?

All these elements have been established by the prosecution. Edward positively identified A: (WITNESS POINTED TO A WOMAN INSIDE THE COURTROOM WHO, WHEN ASKED
Gomez and Pepino - both private individuals - as among the three persons who entered his HER NAME, ANSWERED AS PRECIOSA GOMEZ)
office and pretended to be Kilton Motors'customers. He further declared that Pepino pointed a
gun at him, and forcibly took him against his will. To directly quote from the records: xxxx

ATTY. WILLIAM CHUA: Q: You said Mr. Pepino pulled out his gun, what happened after he pulled out his gun?
A: He told me just to be quiet and go with him.
Q: What was your reaction when he pointed a gun to you and he stated those words?
A: I thought it was only a holdup and so I told him there was money with the cashier and told
him to get it.
Q: What happened after you told him the money was in the cashier's box?
A: His companion took the money and told me to still go with them.
Q: When they told you to go with them, what happened next? A: I told them why should I still
go with them and then, I was handcuffed and was forced to go down.
xxxx
Q: As they were bringing you down, what happened next, Mr. Witness?
A: When we went down nearing his car, I was boarded on [in] his car.
xxxx
Q: When they boarded you inside that car, what did they do to you, Mr. Witness?
A: They put surgical tape on my eyes and also sunglasses.
xxxx
Q: Who was at the passenger's front seat of the car?
A: It was Preciosa Gomez.26
xxxx
Edward further declared on the witness stand that Pepino, Gomez, and their other co-
accused brought him to a safe house in Quezon City; detained him there for four (4) days;
and demanded ransom from his (Edward's) family.
It is settled that the crime of serious illegal detention consists not only of placing a person in
an enclosure, but also in detaining him or depriving him of his liberty in any manner. For there
to be kidnapping, it is enough that the victim is restrained from going home. Its essence is the
actual deprivation of the victim's liberty, coupled with indubitable proof of the intent of the
accused to effect such deprivation.27
Notably, Jocelyn corroborated Edward's testimony on the following points: Pepino poked a
handgun at Edward while they were on the second floor of Kilton; Pepino and his companion
brought him downstairs and out of the building, and made him board a car; and the
kidnappers demanded ransom in exchange for Edward's release.
Both the RTC and the CA found the respective testimonies of Edward and Jocelyn credible
and convincing. We affirm the credibility accorded by the trial court (and affirmed by the CA)
to these prosecution witnesses, in the absence of any showing that this factual finding had
been arbitrarily arrived at. There is nothing in the records that would put the testimonies of
Edward and Jocelyn under suspicion. We recall that Edward had close contacts with Pepino
at Kilton Motors and at the safe house. He also saw Gomez (a) seated at the front seat of the
getaway Toyota Corolla vehicle; (b) at the safe house in Quezon City; and (c) inside the car
before the kidnappers released him.
Jocelyn, for her part, stated that she was very near Pepino while he was taking away her
husband.
In People v. Pavillare,28 the Court found the testimonies of the private complainant
Sukhjinder Singh and his cousin, Lakhvir Singh, to be credible and convincing, and reasoned
out as follows:
Both witnesses had ample opportunity to observe the kidnappers and to remember their
faces. The complainant had close contact with the kidnappers when he was abducted and
beaten up, and later when the kidnappers haggled on the amount of the ransom money. His
cousin met Pavillare face to face and actually dealt with him when he paid the ransom
money. The two-hour period that the complainant was in close contact with his abductors was
sufficient for him to have a recollection of their physical appearance. Complainant admitted in
court that he would recognize his abductors if he sees them again and upon seeing Pavillare
he immediately recognized him as one of the malefactors as he remembers him as the one
who blocked his way, beat him up, haggled with the complainant's cousin and received the
ransom money. x x x It bears repeating that the finding of the trial court as to the credibility of
witnesses is given utmost respect and as a rule will not be disturbed on appeal because it
had the opportunity to closely observe the demeanor of the witness in court.29
b. Admissibility of Identification
We find no merit in Gomez's claim that Edward's identification of her during trial might have
been preconditioned by the "suggestive identification" made during the police lineup.
In People v. Teehankee, Jr.,30 the Court explained the procedure for out-of-court
identification and the test to determine the admissibility of such identifications in this manner:
Out-of-court identification is conducted by the police in various ways. It is done thru show-ups
where the suspect alone is brought face to face with the witness for identification. It is done Q: Can you look around the courtroom and see if the person you are referring to is here
thru mug shots where photographs are shown to the witness to identify the suspect. It is also today?
done thru lineups where a witness identifies the suspect from a group of persons lined up for
the purpose x x x In resolving the admissibility of and relying on out-of-court identification of A: Yes, sir.
suspects, courts have adopted the totality of circumstances test where they consider the
following factors, viz: (1) the witness' opportunity to view the criminal at the time of the crime; Q: Can you point to him?
(2) the witness' degree of attention at that time; (3) the accuracy of any prior description given
by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) A: (WITNESS POINTED TO A MALE PERSON INSIDE THE COURTROOM WHO WHEN
the length of time between the crime and the identification; and (6) the suggestiveness of the ASKED HIS NAME ANSWERED AS JERRY PEPINO).
identification procedure.31
Q: Ms. Witness, what role did this person whom you identified and gave his name as Jerry
Applying the totality-of-circumstances test, we find Edward's out-of-court identification to be Pepino, what role did he play in the kidnapping of your husband?
reliable and thus admissible. To recall, when the three individuals entered Edward's office,
they initially pretended to be customers,32 and even asked about the products that were for A: Siya po bale 'yang nakayakap sa husband ko tapos nakatutok ng baril.
sale.33 The three had told Edward that they were going to pay, but Pepino "pulled out a gun"
instead.34 After Pepino' s companion had taken the money from the cashier's box, the xxxx
malefactors handcuffed Edward and forced him to go down to the parked car. From this
sequence of events, there was thus ample opportunity for Edward - before and after the gun A TTY. ESTRUCO:
had been pointed at him - to view the faces of the three persons who entered his office. In
addition, Edward stated that Pepino had talked to him "[a]t least once a day"35 during the Q: When Jerry Pepino was at Kilton Motors, he embraced your husband?
four days that he was detained.
JOCELYN SY TAN:
Edward also saw Gomez seated at the front seat of the getaway metallic green Toyota
Corolla vehicle. In addition, the abductors removed the tape from Edward's eyes when they A: Yes, sir. And pointed a gun at my husband.
arrived at the apartment, and among those whom he saw there was Gomez. According to
Edward, he was able to take a good look at the occupants of the car when he was about to Q: And he was not blindfolded at that time?
be released.
A: No, he was not blindfolded, he was only wearing a cap.
On the part of Jocelyn, she was firm and unyielding in her identification of Pepino as the
person who pointed a gun at her husband while going down the stairs, and who brought him Q: You are very sure that he is Jerry Pepino?
outside the premises of Kilton Motors. She maintained that she was very near when Pepino
was taking away her husband; and that she could not forget Pepino's face. For accuracy, we A: Yes, I am very, very sure. I could not forget his face.
quote from the records:
Q: You are very sure?
ATTY. CORONEL:
A: Yes, sir. Kahit sa nightmare ko, kasama siya.
Q: You stated that you were able to see one of the persons who kidnapped your husband, if
you see this person again, would you be able to identify him? xx x x36

JOCELYN SY TAN: We add that no competing event took place to draw Edward's and Jocelyn's attention from
the incident. Nothing in the records shows the presence of any distraction that could have
A: Yes, sir. disrupted the witnesses' attention at the time of the incident.37
Jurisprudence holds that the natural reaction of victims of criminal violence is to strive to see A: The NBI agents told me not to be afraid.
the appearance of their assailants and observe the manner the crime was committed. As the
Court held in People v. Esoy:38 Q: No, my question is, you conferred with the NBI agents?

It is known that the most natural reaction of a witness to a crime is to strive to look at the A: Yes, sir.
appearance of the perpetrator and to observe the manner in which the offense is perpetrated.
Most often the face of the assailant and body movements thereof, create a lasting impression Q: What is the name of the NBI agent?
which cannot be easily erased from a witness's memory. Experience dictates that precisely
because of the unusual acts of violence committed right before their eyes, eyewitnesses can A: I cannot remember, sir.
remember with a high degree of reliability the identity of criminals at any given time.39
Q: And how many were lined up?
While this pronouncement should be applied with great caution, there is no compelling
circumstance in this case that would warrant its non-application. A: Seven, sir.

Contrary to what Gomez claimed, the police lineup conducted at the NBI was not suggestive. Q: And the NBI agent gave the names of each of the seven?
We note that there were seven people in the lineup; Edward was not compelled to focus his
attention on any specific person or persons. While it might have been ideal if there had been A: No, sir.40
more women included in the lineup instead of only two, or if there had been a separate lineup
for Pepino and for Gomez, the fact alone that there were five males and two females in the We also note that Jocelyn's and Edward's out-of-court identifications were made on the same
lineup did not render the procedure irregular. There was no evidence that the police had day. While Jocelyn only identified Pepino, the circumstances surrounding this out-of-court
supplied or even suggested to Edward that the appellants were the suspected perpetrators. identification showed that the whole identification process at the NBI was not suggestive. To
directly quote from the records:
The following exchanges at the trial during Edward's cross-examination prove this point:
ATTY. ESTURCO:
ATTY. ESTURCO:
Q: How about the alleged kidnappers, where were they placed during that time?
Q: When they were lined up at the NBI, where were they placed, in a certain room?
JOCELYN TAN:
EDWARD TAN:
A: They were in front of us.
A: Yes, sir.
Q: Without any cover?
Q: With a glass window? One way?
A: None, sir.
A: No, sir.
Q: Without any glass cover?
Q: You mean to say you were face to face with the alleged kidnappers?
A: See-through glass window.
A: Yes, sir.
Q: One-way mirror?
Q: And before you were asked to pinpoint the persons who allegedly kidnapped you, you
conferred with the NBI agents? A: Not one way, see-through.

Q: And before you were asked to pinpoint the alleged kidnappers, you were already
instructed by the NBI what to do and was told who are the persons to be lined up?
A: No, sir.
xxxx
Q: And between the alleged length of time, you were still very positive that it was Gerry (sic)
Pepino inside the NBI cell?
A: At first, I did not know that he was Jerry Pepino but we know his face.
Q: At first, you did not know that it was Jerry Pepino?
A: Yes, sir.
xxxx
Q: It was the NBI officer who told you that the person is Jerry Pepino, am I correct?
A: They identified that the person we identified was Jerry Pepino. We first pinpointed na heto
ang mukha at saka sinabi na 'yan si Jerry Pepino.
xx x x41
These exchanges show that the lineup had not been attended by any suggestiveness on the
part of the police or the NBI agents; there was no evidence that they had supplied or even
suggested to either Edward or Jocelyn that the appellants were the kidnappers.
We are not unaware that the Court, in several instances, has acquitted an accused when the
out-of-court identification is fatally flawed. In these cases, however, it had been clearly shown
that the identification procedure was suggestive.
In People v. Pineda,42 the Court acquitted Rolando Pineda because the police suggested the
identity of the accused by showing only the photographs of Pineda and his co-accused Celso
Sison to witnesses Canilo Ferrer and Jimmy Ramos. According to the Court, "there was
impermissible suggestion because the photographs were only of appellant and Sison,
focusing attention on the two accused."43
Similarly, the Court in People v. Rodrigo44 acquitted appellant Lee Rodrigo since only a lone
photograph was shown to the witness at the police station. We thus held that the appellant's
in-court identification proceeded from, and was influenced by, impermissible suggestions in
the earlier photographic identification.
The lack of a prior description of the kidnappers in the present case should not lead to a
conclusion that witnesses' identification was erroneous. The lack of a prior description of the
kidnappers was due to the fact that Jocelyn (together with other members of Edward's
family), for reasons not made known in the records, opted to negotiate with the kidnappers,
instead of immediately seeking police assistance. If members of Edward's family had refused
to cooperate with the police, their refusal could have been due to their desire not to
compromise Edward's safety.45 In the same manner, Edward, after he was freed, chose to
report the matter to Teresita Ang See, and not to the police.
Given these circumstances, the lack of prior description of the malefactors in this case should
not in any way taint the identification that Edward and Jocelyn made.
c. The Right to Counsel
The right to counsel is a fundamental right and is intended to preclude the slightest coercion
that would lead the accused to admit something false. The right to counsel attaches upon the
start of the investigation, i.e., when the investigating officer starts to ask questions to elicit
information and/or confessions or admissions from the accused.46
Custodial investigation commences when a person is taken into custody and is singled out as
a suspect in the commission of the crime under investigation.47 As a rule, a police lineup is
not part of the custodial investigation; hence, the right to counsel guaranteed by the
Constitution cannot yet be invoked at this stage. The right to be assisted by counsel attaches
only during custodial investigation and cannot be claimed by the accused during identification
in a police lineup.
Our ruling on this point in People v. Lara48 is instructive:
x x x The guarantees of Sec. 12(1 ), Art. III of the 1987 Constitution, or the so-called Miranda
rights, may be invoked only by a person while he is under custodial investigation. Custodial
investigation starts when the police investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect taken into custody by the
police who starts the inte1Togation and propounds questions to the person to elicit
incriminating statements. Police line-up is not part of the custodial investigation; hence, the
right to counsel guaranteed by the Constitution cannot yet be invoked at this stage.49
Defense witness Reynaldo, however, maintained that Pepino and Gomez were among those
already presented to the media as kidnapping suspects by the DOJ a day before the police
lineup was made. In this sense, the appellants were already the focus of the police and were
thus deemed to be already under custodial investigation when the out-of-court identification
was conducted.
Nonetheless, the defense did not object to the in-court identification for having been tainted
by an irregular out-of-court identification in a police lineup. They focused, instead, on the
legality of the appellants' arrests.
Whether Edward and Jocelyn could have seen Pepino and Gomez in various media fora that
reported the presentation of the kidnapping suspects to the media is not for the Court to
speculate on. The records merely show that when defense counsel, Atty. Caesar Esturco,
asked Jocelyn during cross-examination whether she was aware that there were several
kidnap-for-ransom incidents in Metro Manila, the latter answered that she "can read in the
newspapers."50 At no time did Jocelyn or Edward ever mention that they saw the appellants
from the news reports in print or on television.
At any rate, the appellants' respective convictions in this case were based on an independent
in-court identification made by Edward and Jocelyn, and not on the out-of-court identification
during the police lineup. We reiterate that the RTC and the CA found the court testimonies of
these witnesses to be positive and credible, and that there was no showing that their factual
findings had been arrived at .arbitrarily. The in-court identification thus cured whatever
irregularity might have attended the police lineup.
As the Court ruled in People v. Algarme:51
Even assuming arguendo the appellants' out-of-court identification was defective, their
subsequent identification in court cured any flaw that may have initially attended it. We
emphasize that the "inadmissibility of a police lineup identification x x x should not necessarily
foreclose the admissibility of an independent in-court identification." We also stress that all
the accused-appellants were positively identified by the prosecution eyewitnesses during the
trial.
It is also significant to note that despite the overwhelming evidence adduced by the
prosecution, Pepino and Gomez did not even testify for their respective defenses.1âwphi1
d. The Presence of Conspiracy
Conspiracy exists when two or more persons come to an agreement concerning the
commission of a crime and decide to commit it. It may be proved by direct or circumstantial
evidence consisting of acts, words, or conduct of the alleged conspirators before, during and
after the commission of the felony to achieve a common design or purpose.
Proof of the agreement does not need to rest on direct evidence, as the agreement may be
inferred from the conduct of the parties indicating a common understanding among them with
respect to the commission of the offense. Corollarily, it is not necessary to show that two or
more persons met together and entered into an explicit agreement setting out the details of
an unlawful scheme or the details by which an illegal objective is to be carried out.52
In the present case, the records establish the following facts: Pepino, Gomez, and another
man entered Edward's office, and initially pretended to be customers; the three told Edward
that they were going to pay, but Pepino pulled out a gun. After Pepino' s companion took the
money from the cashier's box, the malefactors handcuffed him and forced him to go down to
the parked car; Gomez sat at the front passenger seat of the car which brought Edward to a
safe house in Quezon City; the abductors removed the tape from Edward's eyes, placed him
in a room, and then chained his legs upon arrival at the safe house; the abductors negotiated
with Edward's family who eventually agreed to a P700,000.00 ransom to be delivered by the
family driver using Edward's own car; and after four days, three men and Gomez blindfolded
Edward, made him board a car, drove around for 30 minutes, and left him inside his own car
at the UP Diliman campus.
The collective, concerted, and synchronized acts of the accused before, during, and after the
kidnapping constitute undoubted proof that Gomez and her co-accused conspired with each
other to attain a common objective, i.e., to kidnap Edward and detain him illegally in order to
demand ransom for his release.
The Proper Penalty:
Article 267 of the Revised Penal Code, as amended, mandates the imposition of the death
penalty when the kidnapping or detention is committed for the purpose of extorting ransom
from the victim or any other person. Ransom, as employed in the Jaw, is so used in its
common or ordinary sense; meaning, a sum of money or other thing of value, price, or
consideration paid or demanded for redemption of a kidnapped or detained person, a
payment that releases one from captivity.53
In the present case, the malefactors not only demanded but received ransom for Edward's
release. The CA thus correctly affirmed the RTC's imposition of the death penalty on Pepino
and Gomez.
With the passage of Republic Act No. 9346, entitled ''An Act Prohibiting the Imposition of
Death Penalty in the Philippines" (signed into law on June 24, 2006), the death penalty may
no longer be imposed. We thus sentence Gomez to the penalty of reclusion perpetua without
eligibility for parole pursuant to A.M. No. 15-08-02-SC.54
The reduced penalty shall likewise apply to the non-appealing party, Pepino, since it is more
favorable to him.
The Awarded Indemnities:
In the case of People v. Gambao55 (also for kidnapping for ransom), the Court set the
minimum indemnity and damages where facts warranted the imposition of the death penalty if
not for prohibition thereof by R.A. No. 9346, as follows: (1) Pl00,000.00 as civil indemnity; (2)
Pl00,000.00 as moral damages which the victim is assumed to have suffered and thus needs
no proof; and (3) Pl00,000.00 as exemplary damages to set an example for the public good.
These amounts shall earn interest at the rate of six percent (6%) per annum from the date of
the finality of the Court's Resolution until fully paid.

We thus reduce the moral damages imposed by the CA from P300,000.00 to Pl00,000.00 to
conform to prevailing jurisprudence on kidnapping cases. This reduced penalty shall apply to
Pepino for being more favorable to him. However, the additional monetary award (i.e.,
P100,000.00 civil indemnity) imposed on Gomez shall not be applied to Pepino.56

We affirm the P700,000.00 imposed by the courts below as restitution of the amount of
ransom demanded and received by the kidnappers. We also affirm the CA's award of
Pl00,000.00 as exemplary damages based on Gambao.

WHEREFORE, in the light of all the foregoing, we AFFIRM the challenged June 16, 2006
decision of the Court of Appeals in CA-G.R. CR-HC No. 02026 with the following
MODIFICATIONS:

(1) the penalty imposed on Gomez and Pepino shall be reduced from death to reclusion
perpetua without eligibility for parole;

(2) they are jointly and severally ordered to pay the reduced amount of PI00,000.00 as moral
damages;

(3) Gomez is further ordered to pay the victim Pl00,000.00 as civil indemnity; and

(4) the awarded amounts shall earn interest at the rate of six percent (6%) per annum from
the date of the finality of the Court's Decision until fully paid.

SO ORDERED
G.R. No. 187536 August 10, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
MICHAEL BOKINGO alias "MICHAEL BOKINGCO" and REYNANTE COL, Accused-
Appellants.
DECISION
PEREZ, J.:
For review is the Amended Decision1 dated 14 November 2008 of the Court of Appeals in
CA-G.R. CR-H.C. No. 00658, finding appellants Michael Bokingco2 (Bokingco) and Reynante
Col (Col) guilty as conspirators beyond reasonable doubt of the crime of Murder and
sentencing them to suffer the penalty of reclusion perpetua.
On 31 July 2000, an Information3 was filed against appellants charging them of the crime of
murder committed as follows:
That on or about the 29th day of February, 2000 in the City of Angeles, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping each other, armed with a claw hammer and with
intent to kill by means of treachery, evident premeditation, abuse of confidence, and
nighttime, did then and there willfully, unlawfully and feloniously attack, assault and maul
NOLI PASION, by hitting and beating his head and other parts of his body with said hammer,
thereby inflicting upon said NOLI PASION fatal wounds on his head and body which caused
his death.4
On arraignment, Bokingco entered a guilty plea while Col pleaded not guilty. During the pre-
trial, Bokingco confessed to the crime charged.5
The victim, Noli Pasion (Pasion) and his wife, Elsa, were residing in a house along Mac
Arthur Highway in Balibago, Angeles City. Pasion owned a pawnshop, which formed part of
his house. He also maintained two (2) rows of apartment units at the back of his house. The
first row had six (6) units, one of which is Apartment No. 5 and was being leased to Dante
Vitalicio (Vitalicio), Pasion’s brother-in-law, while the other row was still under construction at
the time of his death. Appellants, who were staying in Apartment No. 3, were among the 13
construction workers employed by Pasion.6
The prosecution’s evidence show that at around 1:00 a.m. on 29 February 2000, Vitalicio was
spin-drying his clothes inside his apartment when Pasion came from the front door, passed
by him and went out of the back door.7 A few minutes later, he heard a commotion from
Apartment No. 3. He headed to said unit to check. He peeped through a screen door and saw
Bokingco hitting something on the floor. Upon seeing Vitalicio, Bokingco allegedly pushed
open the screen door and attacked him with a hammer in his hand. A struggle ensued and
Vitalicio was hit several times. Vitalicio bit Bokingco’s neck and managed to push him away.
Bokingco tried to chase Vitalicio but was eventually subdued by a co-worker. Vitalicio
proceeded to his house and was told by his wife that Pasion was found dead in the kitchen of
Apartment No. 3. Vitalicio went back to Apartment No. 3 and saw Pasion’s body lying flat on
the kitchen floor. Pasion and Vitalicio were brought to the hospital. Pasion expired a few
hours later while Vitalicio was treated for his injuries.8
Elsa testified that she was in the master’s bedroom on the second floor of the house when
she heard banging sounds and her husband’s moans. She immediately got off the bed and
went down. Before reaching the kitchen, Col blocked her way. Elsa asked him why he was
inside their house but Col suddenly ran towards her, sprayed tear gas on her eyes and poked
a sharp object under her chin. Elsa was wounded when she bowed her head to avoid the tear
gas.9 Col then instructed her to open the vault of the pawnshop but Elsa informed him that
she does not know the combination lock. Elsa tried offering him money but Col dragged her
towards the back door by holding her neck and pulling her backward. Before they reached
the door, Elsa saw Bokingco open the screen door and heard him tell Col: "tara, patay na
siya."10 Col immediately let her go and ran away with Bokingco. Elsa proceeded to
Apartment No. 3. Thereat, she saw her husband lying on the floor, bathed in his own
blood.11
PO3 Quirino Dayrit (PO3 Dayrit) was stationed at Police Station No. 4 in Barangay Salakot,
Balibago, Angeles City. At 1:20 a.m. of 29 February 2000, he received a phone call regarding
the incident. He, together with a certain P/Insp. Maniago, proceeded to Apartment No. 3 and
conducted an investigation. He noticed a pool of blood on the cemented floor of the kitchen.
He also saw a claw hammer with a green lead pipe handle approximately 13 inches long near
the kitchen sink. A lead pipe measuring 40 inches and a chisel were also found in the nearby
construction site. The police went to Angeles University Medical Center afterwards. PO3
Dayrit saw Pasion lying in one of the beds while Vitalicio was still loitering around the
emergency room. He approached Vitalicio and Elsa who both informed him of the incident.12
He prepared a police report on the same day narrating the result of his investigation.13
Evelyn Gan, the stenographic reporter of Prosecutor Lucina Dayaon, jotted down notes
during the preliminary investigation. She attests that Bokingco admitted that he conspired
with Col to kill Pasion and that they planned the killing several days before because they got
"fed up" with Pasion.14
The necropsy report prepared by Dr. Joven G. Esguerra (Dr. Esguerra), contained the
following findings:
1. Marked pallor of lips and nailbeds
2. Body in rigor mortis
3. Contusion with hematoma, right medial infraorbital region extending to the right of the root
of the nose.
4. Contusion with hematoma, left post-auricular region.
5. Contusion with hematoma, right angle of mandible.
6. Contusion with hematoma, right mandibular region.
7. Contusion with hematoma, left occipital region.
8. Contusion with hematoma, right fronto-parietal region.
9. Contusion with hematoma, right supraorbital region.
10. Abrasions, linear, confluent, proximal third, right leg anterior 2 ½ x 6 ½ cm.
11. Contusion with hematoma, left shoulder, level of head of left humerus.
12. Stab wound, anterior chest along the anterior median line, 7 cm above the nipple line,
0.8cm length, 0.5 cm wide and 1 cm deep, hitting and puncturing the manubrium sterni, not
entering the thoracic cavity. Both extremities round.
13. 2 stab wounds, non-penetrating, anterior chest, 13 cm to the left of the anterior median
line, 3 cm below injury (12) 14 cm the right of the anterior median line 4 ½ on below injury
(12). Wound 0.8 cm in length, both extremities round.
14. Lacerated wound, semi-lunar shape, 3 cm length, left shoulder.
15. Lacerated wound, right eyebrow area, C-shaped 2 ½ cm length.
16. Lacerated wound, lateral angle, right eye, 0.8 cm length.
17. Lacerated wound, right supraorbital region, medial aspect, 2 cm length.
18. Lacerated wound, semi-lunar, 5 cm length, occipital region 5 cm length involving all layers
of the scalp with brain tissue seen on the gaping wound.
19. Lacerated wound, 4 cm length, C-shaped 2 ½ cm to the right of injury (18) 1 ½ cm below,
wound involving the whole scalp.
20. Lacerated wound, left post-auricular region, C-shaped 4 cm length, 3 cm length.
21. Lacerated wound left post-auricular region, region of the squamous part of the left
temporal bone, C-shaped (2) 3.5 cm and 4 cm lengths.
22. Lacerated wound, right mandibular region 4 cm length, 1 cm wide.
23. Lacerated wound, stellate, 5.5 x 5 x 5 cm, right fronto-parietal region with brain tissue out
of the gaping wound.
24. Lacerated wound, right submandibular region 0.3 x 3.5 cm.
25. Lacerated wound, right cheek 0.8 cm length.
26. Depressed, complete fracture, occipital bone right with stellate linear extensions, with
gaping, with brain tissue maseration.
27. Skull fracture, right fronto-parietal region, depressed, complete, C-shaped with linear
extensions, with gaping of bone with brain tissue maceration and expulsion.
28. Hemorrhage, massive, subdural and epidural.
29. Brain tissue damage.15
Dr. Esguerra concluded that the injuries sustained by Pasion on his skull proved fatal.16
Appellants testified on their own behalf. Bokingco recalled that he was sleeping in Apartment
No. 3 at around 1:20 a.m. on 29 February 2000 when he was awakened by Pasion who
appeared to be intoxicated. The latter wanted to know why he did not see Bokingco at the
construction site on 28 February 2000. When Bokingco replied that he just stayed at the
apartment the whole day, Pasion suddenly hit him in the head. This prompted Bokingco to
take a hammer and hit Pasion. They both struggled and Bokingco repeatedly hit Pasion.
Bokingco escaped to Manila right after the incident. He was subsequently arrested in
Mindanao on 11 June 2000.17 During the cross-examination, Bokingco admitted that he
harbored ill feelings towards Pasion.18
Col confirmed that he was one of the construction workers employed by Pasion. He however
resigned on 26 February 2000 because of the deductions from his salary. He went home to
Cainta, Rizal, where he was apprehended and brought to Camp Olivas. Upon reaching the
camp, he saw Bokingco who pointed to him as the person who killed Pasion. He insisted that
he doesn’t know Bokingco very well.19
On 16 December 2004, the trial court rendered judgment20 finding appellants guilty beyond
reasonable doubt of murder, viz:
WHEREFORE, the Court finds accused MICHAEL BOKINGO alias MICHAEL BOKINGCO
and REYNANTE COL guilty beyond reasonable doubt of the crime of MURDER, defined and
penalized in Art. 248 of the Revised Penal Code, and there being the two aggravating
circumstances of nighttime and abuse of confidence to be considered against both accused
and the mitigating circumstance of voluntary plea of guilty in favor of accused Bokingo only,
hereby sentences each of them to suffer the penalty of DEATH. Each accused is ordered to
indemnify the heirs of victim Noli Pasion in the amount of Seventy five thousand pesos
(P75,000.00) to pay the heirs of the victim Seventeen thousand six hundred pesos
(P17,600.00) as actual damages, Fifteen thousand pesos (P15,000.00) as attorney’s fees,
Twenty five thousand pesos (P25,000.00) as exemplary damages, and to pay the costs.21
In its Decision dated 24 July 2008, the Court of Appeals affirmed the findings of the trial court
but reduced the penalty to reclusion perpetua in view of Republic Act No. 7659, thus:
WHEREFORE, the assailed Decision is AFFIRMED with MODIFICATION. Accused-appellant
REYNANTE COL is found GUILTY as conspirator beyond reasonable doubt of MURDER as
defined in Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659,
qualified by treachery and evident premeditation and with the attendant aggravating
circumstances of nighttime and abuse of confidence, with no mitigating circumstances. The
proper imposable penalty would have been death. However, pursuant to Republic Act No.
9346, appellant is sentenced to suffer the penalty of Reclusion Perpetua. Accused-appellant
is further ordered to indemnify the heirs of victim Noli Pasion in the amount of Seventy five
thousand pesos (₱75,000.00); Fifty thousand pesos (₱50,000.00) as moral damages; Twenty
five thousand pesos (₱25,000.00) as exemplary damages; Twenty five thousand pesos
(₱25,000.00) as temperate damages; Fifteen thousand pesos (₱15,000.00) as attorney’s
fees; and to pay the costs.22
Appellants filed a Motion for Reconsideration23 and called the appellate court’s attention on
the omission to rule on Bokingco’s fate when it rendered the challenged decision. Appellants
also noted the absence of other evidence, aside from Bokingco’s admission, to prove that
conspiracy existed in the instant case. Appellants maintained that the admission made by
Bokingco cannot be used as evidence against his alleged co-conspirator. Appellants also
took exception to the findings of the lower courts that the aggravating circumstances of
treachery, evident premeditation, nighttime and abuse of confidence attended the
commission of the crime.24
The Court of Appeals merely modified its Decision by including the criminal liability of
Bokingco in its dispositive portion of its Amended Decision, which reads:
WHEREFORE, the assailed Decision is AFFIRMED with MODIFICATION. Accused-
appellants MICHAEL BOKINGCO and REYNANTE COL are found GUILTY as conspirators
beyond reasonable doubt of MURDER as defined in Article 248 of the Revised Penal Code,
as amended by Republic Act No. 7659, qualified by treachery and evident premeditation and
with the attendant aggravating circumstances of nighttime and abuse of confidence, with no
mitigating circumstances. The proper imposable penalty would have been death. However,
pursuant to Republic Act No. 9346, the accused-appellant are sentenced to suffer the penalty
of Reclusion Perpetua without the possibility of parole (in accordance with Section 3 of the
said law). Each of the accused-appellants is further ordered to indemnify the heirs of victim
Noli Pasion in the amount of Seventy five thousand pesos (₱75,000.00); Fifty thousand
pesos (₱50,000.00) as moral damages; Twenty five thousand pesos (₱25,000.00) as
exemplary damages; Twenty five thousand pesos (₱25,000.00) as temperate damages;
Fifteen thousand pesos (₱15,000.00) as attorney’s fees; and to pay the costs.25
Appellants filed a notice of appeal. In its Resolution dated 26 October 2009, this Court
required the parties to submit their Supplemental Briefs within 30 days from notice thereof if
they so desire.26 Appellants manifested that they are no longer filing a Supplemental Brief
and are adopting their arguments in the Appellant’s Brief submitted before the Court of
Appeals.27 The appellee likewise manifested that it is dispensing with the filing of a
Supplemental Brief.28 The instant case was thus submitted for deliberation.
In seeking the reversal of the Court of Appeals’ Amended Decision, two issues were raised:
1) whether the qualifying circumstances were properly appreciated to convict appellant
Bokingco of murder and 2) whether appellant Col is guilty beyond reasonable doubt as a co-
conspirator.
There is no question that Bokingco attacked and killed Pasion. Bokingco made two (2)
separate and dissimilar admissions: first, in his extrajudicial confession taken during the
preliminary investigation where he admitted that he and Col planned the killing of Pasion; and
second, when he testified in open court that he was only provoked in hitting Pasion back
when the latter hit him in the head. On the basis of his extrajudicial confession, Bokingco was
charged for murder qualified by evident premeditation and treachery.
Appellants maintain that they could not be convicted of murder. They question the presence
of treachery in the commission of the crime considering that no one from the prosecution
witnesses testified on how Pasion was attacked by Bokingco. They also submit that evident
premeditation was not proven in the case. They belittle Bokingco’s extrajudicial admission
that he and Col planned the killing. The attendance of the aggravating circumstances of
nighttime and abuse of confidence was likewise assailed by appellants. They aver that
nighttime was not purposely sought but it was merely co-incidental that the crime took place
at that time. Neither has trust and confidence been reposed on appellants by the victim to
aggravate the crime by abuse of confidence. Appellants claim that they were living in an
apartment owned by Pasion, not because the latter trusted them but because they worked in
the construction of the victim’s apartment.
On the other hand, the OSG emphasizes that the prosecution has established that Pasion
was defenseless when fatally attacked by Bokingco and there was no opportunity for him to
defend himself from the unexpected assaults of Bokingco. The OSG agrees as well with the
trial court’s findings that evident premeditation, nighttime, and abuse of confidence attended
the commission of the crime.
We agree with appellants that treachery cannot be appreciated to qualify the crime to murder
in the absence of any proof of the manner in which the aggression was commenced. For
treachery to be appreciated, the prosecution must prove that at the time of the attack, the
victim was not in a position to defend himself, and that the offender consciously adopted the
particular means, method or form of attack employed by him.29 Nobody witnessed the
commencement and the manner of the attack. While the witness Vitalicio managed to see
Bokingco hitting something on the floor, he failed to see the victim at that time.30
Bokingco admitted in open court that he killed Pasion.31 But the admitted manner of killing is
inconsistent with evident premeditation. To warrant a finding of evident premeditation, the
prosecution must establish the confluence of the following requisites: (a) the time when the
offender was determined to commit the crime; (b) an act manifestly indicating that the
offender clung to his determination; and (c) a sufficient interval of time between the
determination and the execution of the crime to allow him to reflect upon the consequences
of his act.32 It is indispensable to show how and when the plan to kill was hatched or how
much time had elapsed before it was carried out. 33 In the instant case, no proof was shown
as to how and when the plan to kill was devised. Bokingco admitted in court that he only
retaliated when Pasion allegedly hit him in the head.34 Despite the fact that Bokingco
admitted that he was treated poorly by Pasion, the prosecution failed to establish that
Bokingco planned the attack.
It was during the preliminary investigation that Bokingco mentioned his and Col’s plan to kill
Pasion.35 Bokingco’s confession was admittedly taken without the assistance of counsel in
violation of Section 12, Article III of the 1987 Constitution, which provides:
Section 12. (1) Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel.
xxxx
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
In People v. Sunga,36 we held that "the right to counsel applies in certain pretrial
proceedings that can be deemed ‘critical stages’ in the criminal process. The preliminary
investigation can be no different from the in-custody interrogations by the police, for a
suspect who takes part in a preliminary investigation will be subjected to no less than the
State's processes, oftentimes intimidating and relentless, of pursuing those who might be
liable for criminal prosecution."37 In said case, Sunga made an uncounselled admission
before the police. He later acknowledged the same admission before the judge in a
preliminary investigation. Sunga was thrust into the preliminary investigation and while he did
have a counsel, for the latter’s lack of vigilance and commitment to Sunga’s rights, he was
virtually denied his right to counsel. Thus, the uncounselled admission was held
inadmissible.38 In the instant case, the extrajudicial confession is inadmissible against
Bokingco because he was not assisted at all by counsel during the time his confession was
taken before a judge.
The finding that nighttime attended the commission of the crime is anchored on the
presumption that there was evident premeditation. Having ruled however that evident
premeditation has not been proved, the aggravating circumstance of nighttime cannot be
properly appreciated. There was no evidence to show that Bokingco purposely sought
nighttime to facilitate the commission of the offense.
Abuse of confidence could not also be appreciated as an aggravating circumstance in this
case. Taking into account that fact that Bokingco works for Pasion, it may be conceded that
he enjoyed the trust and confidence of Pasion. However, there was no showing that he took
advantage of said trust to facilitate the commission of the crime.
A downgrade of conviction from murder to homicide is proper for Bokingco for failure of the
prosecution to prove the presence of the qualifying circumstances.
Under Article 249 of the Revised Penal Code, the applicable penalty for homicide is reclusion
temporal. There being no mitigating or aggravating circumstance alleged and proven in the
instant case, the penalty should be applied in its medium period pursuant to Article 64(1) of
the Revised Penal Code, which ranges from a minimum of 14 years, 8 months and 1 day to a
maximum of 17 years and 4 months. Applying the Indeterminate Sentence Law, the
imposable penalty shall be within the range of prision mayor in any of its periods as minimum
to reclusion temporal in its medium period as the maximum. The range of prision mayor is
from 6 years and 1 day to 12 years, while reclusion temporal in its medium period, ranges
from 14 years, 8 months and 1 day to 17 years and 4 months. Therefore, the indeterminate
penalty of six years and one day of prision mayor as minimum to 14 years, eight months and
one day of reclusion temporal, as maximum is appropriate under the circumstances.39 The
award of exemplary damages should be deleted as no aggravating circumstance was proven.

Col, on the other hand, was charged as a co-conspirator. He contends that to hold him guilty
as co-conspirator, it must be established that he performed an overt act in furtherance of the
conspiracy. Applying Section 30, Rule 130 of the Rules of Court, Col asserts that Bokingco’s
uncounselled testimony that appellants planned to kill Pasion bears no relevance considering
the fact that there was no other evidence which will prove the conspiracy. Col also claims that
Elsa’s statements during trial, such as the presence of Col inside her house and his forcing
her to open the vault of the pawnshop, as well as the alleged statement she heard from
Bokingco "Tara, patay na siya," are not adequate to support the finding of conspiracy.
The Office of the Solicitor General (OSG) justifies Col’s conviction of murder by conspiracy by
mentioning that starting from the declaration of Bokingco, the victim’s wife, Elsa, also
positively declared that Col blocked and attacked her with a knife when she tried to check on
her husband. She was left alone by Col when he was told by Bokingco that the victim was
already dead. For the OSG, appellants’ acts are indicative of conspiracy. The OSG contends
that the prosecution witnesses had no ill-motive to lie and falsely accuse appellants of the
crime of murder.
The lower courts concluded that there was conspiracy between appellants.
We disagree.
This Court is well aware of the policy to accord proper deference to the factual findings of the
trial court, owing to their unique opportunity to observe the witnesses firsthand and note their
demeanor, conduct, and attitude under grueling examination.40 However, this rule admits of
exceptions, namely: 1) when the trial court’s findings of facts and conclusions are not
supported by the evidence on record, or 2) when certain facts of substance and value likely to
change the outcome of the case have been overlooked by the lower court, or 3) when the
assailed decision is based on a misapprehension of facts.41 The second exception obtains in
this case.
Indeed, in order to convict Col as a principal by direct participation in the case before us, it is
necessary that conspiracy between him and Bokingco be proved. Conspiracy exists when
two or more persons come to an agreement to commit an unlawful act. It may be inferred
from the conduct of the accused before, during, and after the commission of the crime.
Conspiracy may be deduced from the mode and manner in which the offense was
perpetrated or inferred from the acts of the accused evincing a joint or common purpose and
design, concerted action, and community of interest.42 Unity of purpose and unity in the
execution of the unlawful objective are essential to establish the existence of conspiracy.43
As a rule, conspiracy must be established with the same quantum of proof as the crime itself
and must be shown as clearly as the commission of the crime.44
The finding of conspiracy was premised on Elsa’s testimony that appellants fled together after
killing her husband and the extrajudicial confession of Bokingco.
Nobody witnessed the commencement of the attack. Col was not seen at the apartment
where Pasion was being attacked by Bokingco. In fact, he was at Elsa’s house and allegedly
ordering her to open the pawnshop vault, thus:
Q: Do you remember any unusual incident that happened on that time and date when you
were in your master’s bedroom?
A: I heard a bumping sound (kalabog) at the back portion of our building where we reside.
xxxx
Q: What did you do when you heard those sounds in the wee hours of the morning on that
day when you were in your master’s bedroom?
A: I wondered why and I immediately went down to the kitchen since the door of the kitchen
was directly leading to the back door or back portion of the building where the apartments
were situated.
Q: Why, on what floor is this master’s bedroom located?
A: Second floor.
Q: Were you actually able to go down and see what was happening?
A: Yes, sir, but I was only able to reach the stairs leading to the kitchen. I was not able to go
out of the kitchen because I was blocked.
Q: You were blocked by whom?
A: By Reynante Col.
Q: Are you referring to the same Reynante Col, the accused in this case?
A: Yes, sir.
xxxx
Q: You said you were blocked by Reynante Col. How did he block you?
A: As soon as I reached the stairs, I was blocked by Reynante Col and he was situated near
the back door of the pawnshop. There is a pawnshop in the front portion of our residence.
Q: When you saw him near the door of your pawnshop, did you confront him?
A: Yes, sir.
Q: How did you confront him?
A: I asked him, Reynante, what are you doing here?
Q: What was the reaction of Reynante Col?
A: He ran towards me and sprayed something into my eyes and he put a sharp object under
my chin. (Witness demonstrating by putting her hand under her chin)
Q: How far was he before he attacked you?
A: Probably, from the witness stand up to the chair of Fiscal Hilario. Maybe two steps away
from him. (Around 3 meters)
Q: Were you able to identify what this spray is and what part of your body was hit?
A: My eyes were sprayed with tear gas.
Q: What did you feel when your eyes was (sic) sprayed with tear gas?
A: It was "mahapdi" (painful).
Q: When you felt pain in your eyes, how were you able to see something or a sharp weapon
under your chin?
A: Before he sprayed the tear gas to my eyes, I was able to see him poke the sharp object
under my chin and I bowed my head a little to avoid the tear gas. I was wounded under my
chin and I felt the sharpness of the object.45
xxxx
Q: What else happened while he was doing that to you?
A: He sprayed tear gas in my eyes and told me to be silent.
Q: What else, if any, did he tell you?
A: To open the combination of the vault.
Q: Did you comply to his order that you open the combination of the vault?
A: No, sir. I do not know the combination.
Q: What vault are you referring to?
A: Vault of the pawnshop.
Q: Where is that pawnshop located with reference to your residence?
A: At the first floor is the pawnshop and at the back is our kitchen.
Q: When you refused to open the vault of the pawnshop, what did Reynante Col do about it?
A: He did not say anything.
Q: How about you, was there anything else you did?
A: I offered him money so he will not kill me.
Q: When you offered him money so he will not kill you, did he agree?
A: No, sir.
Q: What else happened next when he did not agree to your offer of money?
A: He dragged me going towards the back door.46
Based on these acts alone, it cannot be logically inferred that Col conspired with Bokingco in
killing Pasion. At the most, Col’s actuations can be equated to attempted robbery, which was
actually the initial information filed against appellants before it was amended, on motion of
the prosecution, for murder.47
Elsa testified that she heard Bokingco call out to Col that Pasion had been killed and that
they had to leave the place. This does not prove that they acted in concert towards the
consummation of the crime. It only proves, at best, that there were two crimes committed
simultaneously and they were united in their efforts to escape from the crimes they separately
committed.
Their acts did not reveal a unity of purpose that is to kill Pasion. Bokingco had already killed SO ORDERED
Pasion even before he sought Col. Their moves were not coordinated because while
Bokingco was killing Pasion because of his pent-up anger, Col was attempting to rob the
pawnshop.1avvphi1

In as much as Bokingco’s extrajudicial confession is inadmissible against him, it is likewise

inadmissible against Col, specifically where he implicated the latter as a cohort. Under
Section 28, Rule 130 of the Rules of Court, the rights of a party cannot be prejudiced by an
act, declaration or omission of another. Res inter alios acta alteri nocere non debet.
Consequently, an extrajudicial confession is binding only on the confessant, is not admissible
against his or her co-accused, and is considered as hearsay against them.48 An exception to
the res inter alios acta rule is an admission made by a conspirator. Section 30, Rule 130 of
the Rules of Court provides that the act or declaration of the conspirator relating to the
conspiracy and during its existence may be given in evidence against the co-conspirator
provided that the conspiracy is shown by evidence other than by such act or declaration.49 In
order that the admission of a conspirator may be received against his or her co-conspirators,
it is necessary that first, the conspiracy be first proved by evidence other than the admission
itself; second, the admission relates to the common object; and third, it has been made while
the declarant was engaged in carrying out the conspiracy.50 As we have previously
discussed, we did not find any sufficient evidence to establish the existence of conspiracy.
Therefore, the extrajudicial confession has no probative value and is inadmissible in evidence
against Col.

Bokingco’s judicial admission exculpated Col because Bokingco admitted that he only
attacked Pasion after the latter hit him in the head.

All told, an acquittal for Col is in order because no sufficient evidence was adduced to
implicate him.

WHEREFORE, the appeal is GRANTED. The Decision of the Court of Appeals in CA-G.R.
CR-H.C. No. 00658 is REVERSED and SET ASIDE. Appellant Reynante Col is ACQUITTED
on ground of reasonable doubt. The Bureau of Corrections is ordered to cause the immediate
release of accused-appellant, unless he is being lawfully held for another cause, and to
inform this Court of action taken within ten (10) days from notice.

Appellant Michael Bokingco is found GUILTY beyond reasonable doubt of the crime of
Homicide. He is hereby sentenced to suffer the penalty of six years (6) and one (1) day of
prision mayor as minimum to 14 years, eight (8) months and one (1) day of reclusion
temporal, as maximum Appellant is further ordered to indemnify the heirs of Noli Pasion in
the amount of Seventy five thousand pesos (₱75,000.00); Fifty thousand pesos (₱50,000.00)
as moral damages; Twenty five thousand pesos (₱25,000.00) as temperate damages; Fifteen
thousand pesos (₱15,000.00) as attorney’s fees; and to pay the costs.
G.R. No. 81563 December 19, 1989
AMADO C. ARIAS, petitioner,
vs.
THE SANDIGANBAYAN, respondent.
G.R. No. 82512 December 19, 1989
CRESENCIO D. DATA, petitioner,
vs.
THE SANDIGANBAYAN, respondent.
Paredes Law Office for petitioner.
GUTIERREZ, JR., J.:
The facts of this case are stated in the dissenting opinion of Justice Carolina C. Griño-Aquino
which follows this majority opinion. The dissent substantially reiterates the draft report
prepared by Justice Griño-Aquino as a working basis for the Court's deliberations when the
case was being discussed and for the subsequent votes of concurrence or dissent on the
action proposed by the report.
There is no dispute over the events which transpired. The division of the Court is on the
conclusions to be drawn from those events and the facts insofar as the two petitioners are
concerned. The majority is of the view that Messrs. Arias and Data should be acquitted on
grounds of reasonable doubt. The Court feels that the quantum of evidence needed to
convict petitioners Arias and Data beyond reasonable doubt, as co-conspirators in the
conspiracy to cause undue injury to the Government through the irregular disbursement and
expenditure of public funds, has not been satisfied.
In acquitting the petitioners, the Court agrees with the Solicitor-General 1 who, in 80 pages of
his consolidated manifestation and motion, recommended that Messrs. Arias and Data be
acquitted of the crime charged, with costs de oficio. Earlier, Tanodbayan Special Prosecutor
Eleuterio F. Guerrero had also recommended the dropping of Arias from the information
before it was filed.
There is no question about the need to ferret out and convict public officers whose acts have
made the bidding out and construction of public works and highways synonymous with graft
or criminal inefficiency in the public eye. However, the remedy is not to indict and jail every
person who may have ordered the project, who signed a document incident to its
construction, or who had a hand somewhere in its implementation. The careless use of the
conspiracy theory may sweep into jail even innocent persons who may have been made
unwitting tools by the criminal minds who engineered the defraudation.
Under the Sandiganbayan's decision in this case, a department secretary, bureau chief,
commission chairman, agency head, and all chief auditors would be equally culpable for
every crime arising from disbursements which they have approved. The department head or
chief auditor would be guilty of conspiracy simply because he was the last of a long line of
officials and employees who acted upon or affixed their signatures to a transaction. Guilt
must be premised on a more knowing, personal, and deliberate participation of each
individual who is charged with others as part of a conspiracy.
The records show that the six accused persons were convicted in connection with the
overpricing of land purchased by the Bureau of Public Works for the Mangahan Floodway
Project. The project was intended to ease the perennial floods in Marikina and Pasig, Metro
Manila.
The accused were prosecuted because 19,004 square meters of "riceland" in Rosario, Pasig
which had been assessed at P5.00 a square meter in 1973 were sold as residential land" in
1978 for P80.00 a square meter. The land for the floodway was acquired through negotiated
purchase,
We agree with the Solicitor-General that the assessor's tax valuation of P5.00 per square
meter of land in Rosario, Pasig, Metro Manila is completely unrealistic and arbitrary as the
basis for conviction.
Herein lies the first error of the trial court.
It must be stressed that the petitioners are not charged with conspiracy in the falsification of
public documents or preparation of spurious supporting papers. The charge is causing undue
injury to the Government and giving a private party unwarranted benefits through manifest
partiality, evident bad faith, or inexcusable negligence.
The alleged undue injury in a nutshell is the Government purchase of land in Pasig, Rizal for
P80.00 a square meter instead of the P5.00 value per square meter appearing in the tax
declarations and fixed by the municipal assessor, not by the landowner.
The Sandiganbayan, without any clear factual basis for doing so has assumed that the P5.00
per square meter value fixed by the assessor in the tax declarations was the correct market
value of the Mangahan property and if the Government purchased the land for P80.00 a
square meter, it follows that it must have suffered undue injury.
The Solicitor General explains why this conclusion is erroneous:
1. No undue injury was caused to the Government
a. The P80.00 per square rneter acquisition cost is just fair and reasonable.
It bears stress that the Agleham property was acquired through negotiated purchase. It was,
therefor, nothing more than an ordinary contract of sale where the purchase price had to be
arrived at by agreement between the parties and could never be left to the discretion of one
of the contracting parties (Article 1473, New Civil Code). For it is the essence of a contract of
sale that there must be a meeting of the minds between the seller and the buyer upon the
thing which is the object of the contract and upon the price (Article 1475, New Civil Code).
Necessarily, the parties have to negotiate the reasonableness of the price, taking into
consideration such other factors as location, potentials, surroundings and capabilities. After
taking the foregoing premises into consideration, the parties have, thus, arrived at the amount
of P80.00 per square meter as the fair and reasonable price for the Agleham property.
It bears stress that the prosecution failed to adduce evidence to prove that the true and fair
market value in 1978 of the Agleham property was indeed P5.00 per square meter only as
stated by the assessor in the tax declaration (Exhibit W). On the contrary, the prosecution's
principal witness Pedro Ocol, the Assistant Municipal Assessor of Pasig, admitted that the
purchase price of P80.00 per square meter paid for the Agleham property as stated in the
Deed of Sale (Exhibit G) is reasonable (tsn, August 19,1983, p. 20) and fair (Ibid, p. 76); that
'the value of lands within the town of Pasig ranges from P80.00 to P500.00' (Ibid, p. 21); that
the Agleham property is "around 300 meters" from Ortigas Avenue, "adjacent to the existing
Leongson [Liamson] Subdivision ... and near Eastland Garment Building" (Ibid, pp. 12-13);
that said property is surrounded by factories, commercial establishments and residential
subdivisions (Ibid, pp. 73-74); that the P5.00 per square meter assessed valuation of the
Agleham property appearing on the tax declaration (Exhibit W) was based on actual use only
(lbid, pp. 26-27), it being the uniform rate for all ricefields in Pasig irrespective of their
locations (Ibid, pp. 72-74) and did not take into account the existence of many factories and
subdivisions in the area (Ibid., pp. 25-27, 72-74), and that the assessed value is different from
and always lower than the actual market value (Ibid, pp. 22-23). (At pp. 256-259, Rollo)
A negotiated purchase may usually entail a higher buying price than one arrived at in the
course of expropriation proceedings.
In Export Processing Zone Authority v. Dulay (149 SCRA 305, 310 [1987]) we struck down
the martial law decree that pegged just compensation in eminent domain cases to the
assessed value stated by a landowner in his tax declaration or fixed by the municipal
assessor, whichever is lower. Other factors must be considered. These factors must be
determined by a court of justice and not by municipal employees.
In the instant case, the assessor's low evaluation, in the fixing of which the landowner had no
participation, was used for a purpose infinitely more weighty than mere expropriation of land.
It forms the basis for a criminal conviction.
The Court is not prepared to say that P80.00 to P500.00 a square meter for land in Pasig in
1978 would be a fair evaluation. The value must be determined in eminent domain
proceedings by a competent court. We are certain, however, that it cannot be P5.00 a square
meter. Hence, the decision, insofar as it says that the "correct" valuation is P5.00 per square
meter and on that basis convicted that petitioners of causing undue injury, damage, and
prejudice to the Government because of gross overpricing, is grounded on shaky
foundations.
There can be no overpricing for purposes of a criminal conviction where no proof adduced
during orderly proceedings has been presented and accepted.
The Court's decision, however, is based on a more basic reason. Herein lies the principal
error of the respondent court.
We would be setting a bad precedent if a head of office plagued by all too common problems-
dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain
incompetence is suddenly swept into a conspiracy conviction simply because he did not
personally examine every single detail, painstakingly trace every step from inception, and
investigate the motives of every person involved in a transaction before affixing, his signature
as the final approving authority.
There appears to be no question from the records that documents used in the negotiated sale
were falsified. A key tax declaration had a typewritten number instead of being machine-
numbered. The registration stampmark was antedated and the land reclassified as residential
instead of ricefield. But were the petitioners guilty of conspiracy in the falsification and the
subsequent charge of causing undue in injury and damage to the Government?
We can, in retrospect, argue that Arias should have probed records, inspected documents,
received procedures, and questioned persons. It is doubtful if any auditor for a fairly sized
office could personally do all these things in all vouchers presented for his signature. The
Court would be asking for the impossible. All heads of offices have to rely to a reasonable
extent 'on their subordinates and on the good faith of those prepare bids, purchase supplies,
or enter into negotiations. If a department secretary entertains important visitors, the auditor
is not ordinarily expected to call the restaurant about the amount of the bill, question each
guest whether he was present at the luncheon, inquire whether the correct amount of food
was served and otherwise personally look into the reimbursement voucher's accuracy,
propriety, and sufficiency. There has to be some added reason why he should examine each
voucher in such detail. Any executive head of even small government agencies or
commissions can attest to the volume of papers that must be signed. There are hundreds of
document , letters and supporting paper that routinely pass through his hands. The number in
bigger offices or departments is even more appalling.
There should be other grounds than the mere signature or approval appearing on a voucher
to sustain a conspiracy charge and conviction.
Was petitioner Arias part of the planning, preparation, and perpetration of the alleged
conspiracy to defraud the government?
Arias joined the Pasig office on July 19, 1978. The negotiations for the purchase of the
property started in 1977. The deed of sale was executed on April 20, 1978. Title was
transferred to the Republic on June 8, 1978. In other words, the transaction had already been
consummated before his arrival. The pre-audit, incident to payment of the purchase, was
conducted in the first week of October, 1978. Arias points out that apart from his signature
linking him to the signature on the voucher, there is no evidence transaction. On the contrary,
the other co-accused testified they did not know him personally and none approached him to
follow up the payment.
Should the big amount of P1,520,320.00 have caused him to investigate . gate the smallest
detains of the transaction?
Yes, if the land was really worth only P5.00 a square meter. However, if land in Pasig was
already worth P80.00 a square meter at the time, no warning bell of intuition would have
sounded an inner alarm. Land along Ortigas Avenue on the way to Pasig is now worth
P20,000.00 to P30,000.00 a square meter. The falsification of the tax declaration by changing
"riceland" to "residential' was done before Arias was assigned to Pasig besides, there is no
such thing as "riceland" in inner Metro Manila. Some lots in outlying or easily flooded areas
may still be planted to rice or kangkong but this is only until the place is dedicated to its real
purpose which is commercial, industrial, or residential. If the Sandiganbayan is going to send
somebody to jail for six years, the decision should be based on firmer foundation.
The Sandiganbayan asked why Arias kept the documents from October, 1978 to June 23,
1982. Arias explained that the rules of the Commission on Audit require auditors to keep
these d documents and under no circumstance to relinquish custody to other persons. Arias
was auditor of the Bureau of Public Works in Pasig up to September 1, 1981. The seven
months delay in the formal turnover of custody to the new auditor was explained by
prosecution witness Julito Pesayco, who succeeded him as auditor and who took over the
custody of records in that office.
The main reason for the judgment of conviction, for the finding of undue injury and damage to
the Government is the alleged gross overprice for the land purchased for the floodway
project. Assuming that P80.00 is indeed exorbitant, petitioner Arias cites his testimony as
follows:
Q In conducting the pre-audit, did you determine the reasonableness of the price of the
property?
A In this case, the price has been stated, the transaction had been consummated and
the corresponding Transfer Certificate of little had been issued and transferred to the
government of the Philippines. The auditors have no more leeway to return the papers and
then question the purchase price.
Q Is it not a procedure in your office that before payment is given by the government to
private individuals there should be a pre-audit of the papers and the corresponding checks
issued to the vendor?
A Correct, Your Honor, but it depends on the kind of transaction there is.
Q Yes, but in this particular case, the papers were transferred to the government without
paying the price Did you not consider that rather odd or unusual? (TSN, page 17, April
27,1987).
A No, Your Honor.
Q Why not?
A Because in the Deed of Sale as being noted there, there is a condition that no payments
will be made unless the corresponding title in the payment of the Republic is committed is
made.
Q In this case you said that the title is already in the name of the government?
A Yes, Your Honor. The only thing we do is to determine whether there is an appropriation
set aside to cover the said specification. As of the price it is under the sole authority of the
proper officer making the sale.
Q My point is this. Did you not consider it unusual for a piece of property to be bought
by the government; the sale was consummated; the title was issued in favor of the
government without the price being paid first to the seller?
A No, Your Honor. In all cases usually, payments made by the government comes later than
the transfer.
Q That is usual procedure utilized in road right of way transaction?
A Yes, Your Honor. (TSN, p. 18, April 27,1987).

Q And of course as auditor, 'watch-dog' of the government there is also that function
you are also called upon by going over the papers . . . (TSN, page 22, April 27,1987). I ...
vouchers called upon to determine whether there is any irregularity as at all in this particular
transaction, is it not?
A Yes, Ma'am.
Q And that was in fact the reason why you scrutinized also, not only the tax declaration but
also the certification by Mr. Jose and Mr. Cruz?
A As what do you mean of the certification, ma'am?
Q Certification of Mr. Jose and Mr. Cruz in relation to PD No. 296, A They are not
required documents that an auditor must see. (TSN, page 23, April 27,1987).
and continuing:
A ... The questioning of the purchase price is now beyond the authority of the auditor
because it is inasmuch as the amount involved is beyond his counter-signing authority. (TSN,
page 35, April 27, 1987). (At pp. 15-16, Petition. Underlinings supplied by petitioner)
The Solicitor General summarizes the participation of petitioner Data as follows:
As regards petitioner Data's alleged participation, the evidence on record shows that as the
then District Engineer of the Pasig Engineering District he created a committee, headed by
Engr. Priscillo Fernando with Ricardo Asuncion, Alfonso Mendoza, Ladislao Cruz, Pedro
Hucom and Carlos Jose, all employees of the district office, as members, specifically to
handle the Mangahan Floodway Project, gather and verify documents, conduct surveys,
negotiate with the owners for the sale of their lots, process claims and prepare the necessary
documents; he did not take any direct and active part in the acquisition of land for the
Mangahan floodway; it was the committee which determined the authenticity of the
documents presented to them for processing and on the basis thereof prepared the
corresponding deed of sale; thereafter, the committee submitted the deed of sale together
with the supporting documents to petitioner Data for signing; on the basis of the supporting
certified documents which appeared regular and complete on their face, petitioner Data, as
head of the office and the signing authority at that level, merely signed but did not approve
the deed of sale (Exhibit G) as the approval thereof was the prerogative of the Secretary of
Public Works; he thereafter transmitted the signed deed of sale with its supporting documents
to Director Anolin of the Bureau of Public Works who in turn recommended approval thereof
by the Secretary of Public Works; the deed of sale was approved by the Asst. Secretary of
Public Works after a review and re-examination thereof at that level; after the approval of the
deed of sale by the higher authorities the covering voucher for payment thereof was prepared
which petitioner Data signed; petitioner Data did not know Gutierrez and had never met her
during the processing and payment of her claims (tsn, February 26, 1987, pp. 10-14, 16-24,
31-32). (At pp. 267-268, Rollo.)
On the alleged conspiracy, the Solicitor General argues:
It is respectfully submitted that the prosecution likewise has not shown any positive and
convincing evidence of conspiracy between the petitioners and their co-accused. There was
no direct finding of conspiracy. Respondent Court's inference on the alleged existence of
conspiracy merely upon the purported 'pre-assigned roles (of the accused) in the commission
of the (alleged) illegal acts in question is not supported by any evidence on record. Nowhere
in the seventy- eight (78) page Decision was there any specific allusion to some or even one
instance which would link either petitioner Arias or Data to their co-accused in the planning,
preparation and/or perpetration, if any, of the purported fraud and falsifications alleged in the
information That petitioners Data and Arias happened to be officials of the Pasig District
Engineering Office who signed the deed of sale and passed on pre-audit the general voucher
covering the subject sale, respectively, does hot raise any presumption or inference, that they
were part of the alleged plan to defraud the Government, as indeed there was none. It should
be remembered that, as aboveshown, there was no undue injury caused to the Government
as the negotiated purchase of the Agleham property was made at the fair and reasonable
price of P80.00 per square meter.
That there were erasures and superimpositions of the words and figures of the purchase
price in the deed of sale from P1,546,240.00 to P1,520,320.00 does not prove conspiracy. It
may be noted that there was a reduction in the affected area from the estimated 19,328
square meters to 19,004 square meters as approved by the Land Registration Commission,
which resulted in the corresponding reduction in the purchase price from P1,546,240.00 to
Pl,520,320.00. The erasures in the deed of sale were simple corrections that even benefited
the Government.
Moreover, contrary to the respondent Court's suspicion, there was nothing irregular in the use
of the unapproved survey plan/technical description in the deed of sale because the approval
of the survey plan/ technical description was not a prerequisite to the approval of the deed of
sale. What is important is that before any payment is made by the Government under the
deed of sale the title of the seller must have already been cancelled and another one issued
to the Government incorporating therein the technical description as approved by the Land
Registration Commission, as what obtained in the instant case. (At pp. 273-275, Rollo)
We agree with the counsel for the People. There is no adequate evidence to establish the
guilt of the petitioners, Amado C. Arias and Cresencio D. Data, beyond reasonable doubt.
The inadequate evidence on record is not sufficient to sustain a conviction.
WHEREFORE, the questioned decision of the Sandiganbayan insofar as it convicts and
sentences petitioners Amado C. Arias and Cresencio D. Data is hereby SET ASIDE.
Petitioners Arias and Data are acquitted on grounds of reasonable doubt. No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Gancayco, Bidin, Cortes and
Medialdea, JJ., concur.
Separate Opinions
GRIÑO-AQUINO, J., dissenting:
The lone issue in these consolidated petitions for review is whether the Sandiganbayan
committed a reversible error in convicting the petitioners, Amado C. Arias and Cresencio D.
Data, of having violated Section 3, paragraph (e), of the Anti Graft and Corrupt Practices Act,
in connection with the scandalous overpricing of land purchased by the Government as right
of way for its Mangahan Floodway Project in Pasig, Rizal. The pertinent provision of the Anti-
Graft Law reads as follows:
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:
xxxxxxxxx
(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 amended information against them, to which they pleaded not guilty, alleged:
That on or about the period covering April, 1978 to October 1978, in Rosario, Pasig, Metro
Manila, Philippines, and with the jurisdiction of this Honorable Court, accused Cresencio D.
Data, being then the district Engineer of the province of Rizal, Ministry of Public Works, and
as such, headed and supervised the acquisition of private lands for the right-of-way of the
Mangahan Floodway Project of the Government at Sitio Mangahan, Rosario, Pasig, Metro
Manila; accused Priscillo G. Fernando, then the Supervising Engineer of the Office of the
District Engineer of Rizal, Ministry of Public Works who acted as assistant of accused
Cresencio D. Data in the Mangahan Floodway Project; accused Ladislao G. Cruz, then the
Senior Engineer of the Office of the District Engineer of Rizal, Ministry of Public Works, who
was charged with the acquisition of lots needed for the Mangahan Floodway Project; accused
Carlos L. Jose then the Instrumentman of the office of the District Engineer of Rizal, Ministry
of Public Works who acted as the surveyor of the Mangahan Floodway Project; accused
Claudio H. Arcaya, then the Administrative Officer I of the Rizal District Engineer's Office,
Ministry of Public Works who passed upon all papers and documents pertaining to private
lands acquired by the Government for the Mangahan Floodway Project; and accused Amado
C. Arias, then the Auditor of Rizal Engineering District, Pasig, Metro Manila, who passed
upon and approved in audit the acquisition as well as the payment of lands needed for the
Mangahan Floodway Project all taking advantage of their public and official positions, and
conspiring, confederating and confabulating with accused Natividad C. Gutierrez, the
attorney-in-fact of Benjamin Agleham, who is the registered owner of a parcel of land situated
at Rosario, Pasig, Metro Manila and covered by Original Certificate of Title No. 0097, with
accused Ladislao G. Cruz, Carlos L. -Jose and Claudio Arias, acting with evident bad faith,
while accused Cresencio D. Data, Priscillo G. Fernando and Amado C. Arias, acting with
manifest partiality in the discharge of their official public and/or administrative functions, did
then and there wilfully, unlawfully and feloniously cause undue injury, damage and prejudice
to the Government of the Republic of the Philippines by causing, allowing and/or approving
the illegal and irregular disbursement and expenditure of public funds in favor of and in the
name of Benjamin P. Agleham in the amount of P1,520,320.00 under General Voucher No.
8-047, supported by a certification, dated September 14, 1978, which was purportedly issued
by the Municipal Treasurer of Pasig, and certified xerox copies of Tax Declarations Nos.
47895 and A-018-0091 1, both in the name of Benjamin P. Agleham, and an alleged owner's
copy of Tax Declaration No. 49948, in the name of the Republic of the Philippines, said
supporting documents having been falsified by the accused to make it appear that the land
mentioned in the above-stated supporting papers is a residential land with a market value of
P80.00 per square meter and that 19,004 square meters thereof were transferred in the
name of the Government of the Republic of the Philippines under Tax Declaration No. 49948,
when in truth and in fact, the afore-stated land is actually a riceland with a true and actual
market value of P5.00 per square meter only and Tax Declaration No. 49948 was truly and
officially registered in the names of spouses Moises Javillonar and Sofia San Andres, not in
the name of the Government, and refers to a parcel of land at Sagad, Pasig, Metro Manila;
that the foregoing falsities were committed by the accused to conceal the fact that the true
and actual pace of the 19,004 square meters of land of Benjamin P. Agleham, which was
acquired in behalf of the Government by way of negotiated purchase by the accused officials
herein for the right of way of the Mangahan Floodway project at an overprice of
P1,520,320.00 was P92,020.00 only; and finally, upon receipt of the overpriced amount, the
accused misappropriated, converted and misapplied the excess of the true and actual value
of the above-mentioned land, i.e., P1,428,300.00 for their own personal needs, uses and
benefits, to the damage and prejudice of the Government in the amount of P1,428,300.00.
(pp. 2931, Rollo of G.R. No. 81563.)
Priscillo Fernando did not face trial for he has remained at large, his present whereabouts
being unknown (p. 48, Sandiganbayan Decision, p. 75, Rollo of G.R. No. 81563).
In 1975, the Bureau of Public Works initiated the Mangahan Floodway Project to ease the
perennial floods affecting the towns of Marikina and Pasig, Metro Manila. The project would
traverse the northern and southern portions of Ortigas Avenue in Pasig, Metro Manila
(Exhibits A and A-1). An announcement was published in leading newspapers advising
affected property owners to file their applications for payment at the District Engineer's Office
(p. 29, Sandiganbayan Decision, p. 56, Ibid.).
The implementation of the Mangahan Floodway Project was entrusted to the Pasig
Engineering District headed by the District Engineer, Cresencio Data. He formed a committee
composed of Supervising Civil Engineer Priscillo Fernando, as over-all in charge, Alfonso
Mendoza and Pedro Hucom for acquisition of improvements, and Instrumentman Carlos Jose
for surveys (p. 26, Sandiganbayan Decision, p. 53, Ibid.). The team was tasked to notify lot
owners affected by the project of the impending expropriation of their properties and to
receive and process applications for payment.
The reclassification of all lands around the Mangahan Floodway Project was suspended in
1975 by order of the President (p. 45, Sandiganbayan Decision, p. 72, Ibid.). Implementing
that order, a memorandum was sent to Data on August 27,1976, by Public Works Director
Desiderio Anolin, directing that all affected lands covered by the Mangahan Floodway Project
shall be excluded from reevaluation and reassessment (Annex A, Exh. DD, Counter-Affidavit
of Data, p. 70, Sandiganbayan Decision, P. 97, Ibid).
Among the lots affected was a 19,004-square-meter portion of a 30,169-square-meter
riceland in Pasig registered in the name of Benjamin Agleham under Original Certificate of
Title No. 0097 issued on May 5, 1977 (Exh. H). The land was previously owned by Andrea
Arabit and Evaristo Gutierrez, parents of the accused Natividad Gutierrez.
After Agleham acquired the 3-hectare land in 1973 from the Gutierrez spouses, he had it
subdivided into three (3) lots under plan (LRC) Psd-278456 which was approved by the Land
Registration Commission on June 1, 1978 (Entry No. 27399/12071, Exh. H). Lot 1, with an
area of 19,004 square meters, is the portion that Agleham, through Natividad Gutierrez, sold
to the Government in 1978 for the Mangahan Floodway Project.
On December 15, 1973, Agleham's property, classified as a "ricefield" with an area of 3.2
hectares, was declared for taxation under Tax Declaration No. 28246 (Exh-Y). Its assessed
value was P4,800 or P0.15 per square meter (p. 10, Sandiganbayan Decision, p. 37, Ibid.).
On February 27, 1978, another Tax Declaration No. 47895 (Exh. Y-1) was issued for the
same ricefield" with a revised area of 30,169 square meters. The declared market value was
P150,850 (or P5 per square meter), and the assessed value was P60,340.
Ten months later, or on December 15, 1978, Tax Declaration No. 47895 was cancelled and
replaced by Tax Declaration No. A018- 00911 (Exh. Y-2) wherein the market value of the
same "ricefield," jumped to P301,690 (P10 per square meter). Its assessed value was fixed at
P120,680. The description and value of the property, according to Pedro Ocol, the assistant
Municipal Assessor of Pasig, was based on the actual use of the property (riceland) not on its
potential use (p. 13, Sandiganbayan Decision, p. 40, Ibid.). The valuation was based on a
compilation of sales given to the Municipal Assessor's office by the Register of Deeds, from
which transactions the Assessor obtained the average valuation of the properties in the same
vicinity (p. 14, Sandiganbayan Decision, p. 41, Ibid.).
Among those who filed an application for payment (Exhs. FF and FF-1) at the District
Engineer's Office was the accused, Natividad Gutierrez, who was armed with a Special
Power of Attorney allegedly executed on February 24,1978 by Benjamin Agleham in her favor
(Exhs. C and C-1). She submitted a falsified xerox copy of Tax Declaration No. 47895 (Exh.
B) bearing a false date: December 15,1973 (instead of February 27, 1978) and describing
Agleham's 30,169-square-meter property as "residential" (instead of riceland), with a fair
market value of P2,413,520 or P80 per square meter (instead of P150,845 at P5 per square
meter). Its assessed value appeared to be P724,056 (instead of P60,340). Gutierrez
submitted Agleham's Original Certificate of Title No. 0097 (Exh. H-1), the technical
description of the property, and a xerox copy of a "Sworn Statement of the True Current and
Fair Market Value of Real Property" required under P.D. No. 76 (Exh. 1). The xerox copy of
Tax Declaration No. 47895 was supposedly certified by the Municipal Treasurer of Pasig,
Alfredo Prudencio.
The documents supporting Agleham's claim were "examined" by the Administrative Officer,
accused Claudio Arcaya, who, after initiating them, turned them over to accused Ladislao G.
Cruz, A Deed of Absolute Sale for Lot 1 (19,004 square meters valued at P80 per square
meter) was prepared by Cruz who also initialed the supporting documents and transmitted
them to District Engr. Data.
On April 20,1978, the Deed of Absolute Sale (Exhs. G and G-1) was signed by Data and
Gutierrez (as attorney-in-fact of Agleham). Thereafter, Data sent the papers to Director
Desiderio Anolin of the Bureau of Public Works who recommended to the Assistant Secretary
of Public Works the approval of the Deed of Sale (Exh. G-1). Afterwards, the documents were
returned to Data's office for the transfer of title to the Government. On June 8, 1978, the sale
was registered and Transfer Certificate of Title No. T-12071 (Exh. T) was issued in the name
of the Government.
General Voucher (Exh. S) No. 85-2-7809-52 dated "9/29/78" for the amount of P1,520,320
bore fourth certifications of. (1) Cruz as Senior Civil Engineer; (2) Priscillo G. Fernando as
Supervising Civil Engineer II; (3) Cresencio Data as District Engineer II and (4) Cesar V.
Franco as Project Acting Accountant (p. 56, Sandiganbayan Decision, p. 83, Ibid.).

On October 23, 1978, the voucher and its supporting documents were pre-audited and
approved for payment by the accused, Amado C. Arias, as auditor of the Engineering District.
The next day, October 24, 1978, sixteen (16) PNB checks with Serial Nos. 188532 to
188547, inclusive (Exhs. X to X-1 5), for the total sum of Pl,520,320.00 were issued to
Gutierrez as payment for Agleham's 19,004-square-meter lot.
In October, 1979, an investigation was conducted by the Ministry of National Defense on the
gross overpricing of Agleham's property. During the investigation, sworn statements were
taken from Alfredo Prudencio, Municipal Treasurer of Pasig (Exh. AA), Pedro Ocol, Assistant
Municipal Assessor of Pasig (Exh. BB), and the accused Claudio Arcaya (Exh. EE).
Prudencio denied having issued or signed the certification dated September 14,1978 (Exh.
J), attesting that Agleham's property covered by Tax Declaration No. 47895 had a market
value of P2,413,520 and that the taxes had been paid from 1975 to 1978. Prudencio also
impugned the initial (purporting to be that of his subordinate Ruben Gatchalian, Chief of the
Land Tax Division) that was affixed below Prudencio's typewritten name in Exhibit J. Both
Prudencio and Gatchalian disowned the typewritten certification. They declared that such
certifications are usually issued by their office on mimeographed forms (Exh. J-1).
Assistant Municipal Assessor Pedro Ocol produced and Identified the original or genuine Tax
Declaration No. 47895 dated February 27, 1978, and a certified copy thereof (Exh. Y-1).
Therein, Agleham's property of 30,169 square meters was classified as a "ricefield" and
appraised at P5 per square meter, with an assessed value of P60,340 and a market value of
PI 50,850. Ocol testified that the supposed xerox copy of Tax Declaration No. 47895 (Exh.
B), which Gutierrez submitted as one of the supporting documents of the general voucher
(Exh. S), was fake, because of the following tell-tale signs:
(1) the tax declaration number was typewritten, not machine numbered as in the genuine
tax declaration, Exhibit Y;
(2) the stampmark of registration was antedated to December 15, 1973 in the fake,
instead of the correct date February 27, 1978-- in the genuine tax declaration;
(3) the classification of the property was "residential," instead of "ricefield" which is its
classification in the genuine document; and
(4) the lot was over priced at P80 per square meter in the fake tax declaration, instead of
the appraised value of only P5 per square meter appearing in the genuine declaration.
Also found to be fake was Tax Declaration No. 49948 in the name of the Republic of the
Philippines (Exhs. K and K-1). The genuine Tax Declaration No. 49948 (Exhs. U and V-2)
was actually filed on October 18, 1978 in the names of the spouses Moises Javillonar and
Sofia Andres, for their 598-square-meters' residential property with a declared market value
of P51,630.
The Agleham deed of sale was pre-audited by the auditor of the Rizal Engineering District,
Amado Arias, who approved the payment of Pl,520,320 to Gutierrez without questioning the
fact that the amount of the purchase price therein had been altered, i.e., "snow-flaked (sic)
and later superimposed by the amount of P1,520,320 in words and figures" (p. 71,
Sandiganbayan Decision, p. 98, Ibid.), nor checking the veracity of the supporting documents
listed at the back of the General Voucher (Exh. S), numbering fifteen (15) in all, among which
were:
(1) the fake Tax Declaration No. 47895 showing that the value of the land was P80 per
square meter (Exh. B);
(2) fake Tax Declaration No. 49948 In the name of the Republic of the Philippines (Exh.
K)
(3) the forged certification of Municipal Treasurer Prudencio that the fair market value of
'the land was P100 per square meter (Exh. J);
(4) a false certification (Exh. D) dated September 19, 1978 signed by accused Cruz,
Jose, and Fernando, certifying that the Agleham property was upon ocular inspection by
them, found to be "residential;"
(5) a falsely dated certification where the original date was erased and a false date
(February 15, 1978) was superimposed (Exh.E), issued by Engr. Fernando pursuant to
DPWTC Circular No. 557, certifying that he had examined the real estate tax receipts of the
Agleham property for the last three (3) years;
(6) the technical description of the land (Exhs. F and F-1) attached to the deed of sale
dated April 20, 1978 was not an approved technical description for the subdivision survey
executed by Geodetic Engineer Cipriano C. Caro was verified and approved by the Land
Registration Commission on May 28,1978 only. There were "substantial variations" noted by
the Sandiganbayan between the approved technical description and the technical description
of the land in the deed of sale (p. 61, Sandiganbayan Decision, p. 88, Ibid.);
(7) the special power of attorney dated February 24, 1978, supposedly given to Gutierrez
by Agleham (Exhs. C, C-1) bore a fictitious residence certificate Agleham (p. 64,
Sandiganbayan Decision, p. 91, Ibid.); and
(8) the fake Sworn Statement on the Current and Fair Market Value of Real Properties
(Exh. Z) dated October 1, 1973, contained a forged signature of Agleham, presumably made
by Gutierrez herself The Sandiganbayan observed that Agleham's supposed signature
"appears to be identical to accused Gutierrez' signatures in the General Voucher (Exh. S), in
the release and Quitclaim which she signed in favor of Agleham on July 20, 1983 (Exh. CC),
and in her affidavits (Exhs. FF and FF-1)." (pp. 64-65, Sandiganbayan Decision, pp. 91-92,
Ibid.).
After payment of the Agleham claim, all the supporting documents were kept by Arias. Even
after he had been replaced by Julito Pesayco on September 1, 1981, as auditor of the Rizal
Engineering District, he did not turn over the documents to Pesayco. It was only on June 23,
1982, after this case had been filed in the Sandiganbayan and the trial had begun, that Arias
delivered them to Pesayco (Exh. T-1).
After a trial lasting nearly six years, the Sandiganbayan rendered a 78-page decision on
November 16, 1987, whose dispositive portion reads as follows:
WHEREFORE, judgment is hereby rendered finding accused Natividad G. Gutierrez,
Cresencio D. Data, Ladislao G. Cruz, Carlos L. Jose, Claudio H. Arcaya and Amado C. Arias
GUILTY beyond reasonable doubt of the violation of Section 3, paragraph (e) of Republic Act
No. 3019, as ascended, otherwise known as the Anti-Graft and Corrupt Practices Act, and
hereby sentences each of them to suffer the penalty of imprisonment for THREE (3) YEARS,
as minimum to SIX (6) YEARS, as maximum; to further suffer perpetual disqualification from
public office; to indemnify jointly and severally, the Government of the Republic of the
Philippines in the amount of P1,425,300, and to pay their proportional costs of this action. (p.
104, Rollo of G.R. No. 81563.)
Both Arias and Data appealed.
Arias anchors his petition for review of the Sandiganbayan's decision (G.R. No. 81563) on his
contention that the court's findings that he conspired with his co-accused and that he was
grossly negligent are based on misapprehension of facts, speculation, surmise, and
conjecture.
Data's main defense is that the acquisition of the Agleham property was the work of the
committee of Prescillo Fernando iii which he did not take an active part, and that the price
which the government paid for it was reasonable. Hence, it uttered no jury in the transaction.
In his consolidated brief or comment for the State, the Solicitor General recommends the
acquittal of the petitioners because the Agleham property was allegedly not grossly
overpriced.
After deliberating on the petitions in these cases, we find no error in the decision under
review. The Sandiganbayan did not err in finding that the petitioners conspired with their co-
accused to cause injury to the Government and to unduly favor the lot owner, Agleham.
A conspiracy need not be proved by direct evidence of the acts charged, but may and
generally must be proven by a number of indefinite acts, conditions and circumstances
(People vs. Maralit, G.R. No. 71143, Sept. 19,1988; People vs. Roca, G.R. No. 77779, June
27, 1988).
This case presents a conspiracy of silence and inaction where chiefs of office who should
have been vigilant to protect the interest of the Government in the purchase of Agleham's
two-hectare riceland, accepted as gospel truth the certifications of their subordinates, and
approved without question the million-peso purchase which, by the standards prevailing in
1976-78, should have pricked their curiosity and prompted them to make inquiries and to
verify the authenticity of the documents presented to them for approval. The petitioners kept
silent when they should have asked questions they looked the other way when they should
have probed deep into the transaction.
Since it was too much of a coincidence that both petitioners were negligent at the same time
over the same transaction, the Sandiganbayan was justified in concluding that they connived
and conspired to act in that manner to approve the illegal transaction which would favor the
seller of the land and defraud the Government.
We cannot accept Arias' excuse that because the deed of sale had been signed and the
property transferred to the Government which received a title in its name, there was nothing
else for him to do but approve the voucher for payment. The primary function of an auditor is
to prevent irregular, unnecessary, excessive or extravagant expenditures of government
funds.
The auditorial function of an auditor, as a representative of the Commission on Audit,
comprises three aspects: (1) examination; (2) audit: and (3) settlement of the accounts,
funds, financial transactions and resources of the agencies under their respective audit
jurisdiction (Sec. 43, Government Auditing Code of the Phil.). Examination, as applied to
auditing, means "to probe records, or inspect securities or other documents; review
procedures, and question persons, all for the purpose of arriving at an opinion of accuracy,
propriety, sufficiency, and the like." (State Audit Code of the Philippines, Annotated by
Tantuico, 1982 Ed., p. 57.)
Arias admitted that he did not check or verify the papers supporting the general voucher that
was submitted to him for payment of Pl,520,320 to Agleham or his attorney-in-fact, Natividad
Gutierrez. Arias did not question any person for the purpose of determining the accuracy and
integrity of the documents submitted to him and the reasonableness of the price that the
Government was paying for the less than two-hectare riceland. We reject his casuistic
explanation that since his subordinates had passed upon the transaction, he could assume
that it was lawful and regular for, if he would be a mere rubber stamp for his subordinates, his
position as auditor would be useless and unnecessary.
We make the same observation concerning District Engineer Cresencio Data who claims
innocence because he allegedly did not take any direct and active participation in the
acquisition of the Agleham property, throwing the blame on the committee which he created,
composed of Fernando, Asuncion, Mendoza, Cruz, Hucom and Jose that negotiated with the
property owners for the purchase of properties on the path of the Mangahan Floodway
Project. He in effect would hide under the skirt of the committee which he himself selected
and to which he delegated the task that was assigned to his office to identify the lots that
would be traversed by the floodway project, gather and verify documents, make surveys,
negotiate with the owners for the price, prepare the deeds of sale, and process claims for
payment. By appointing the committee, he did not cease to be responsible for the
implementation of the project. Under the principle of command responsibility, he was
responsible for the manner in which the committee performed its tasks for it was he who in
fact signed the deed of sale prepared by the committee. By signing the deed of sale and
certifications prepared for his signature by his committee, he in effect, made their acts his
own. He is, therefore, equally guilty with those members of the committee (Fernando, Cruz
and Jose) who accepted the fake tax declarations and made false certifications regarding the
use and value of the Agleham property.
The Solicitor General has pointed out that Data signed, but did not approve, the deed of sale
of Agleham's property because the approval thereof was the prerogative of the Secretary of
Public Works. It should not be overlooked, however, that Data's signature on the deed of sale
was equivalent to an attestation that the transaction was fair, honest and legal. It was he who
was charged with the task of implementing the Mangahan Floodway Project within his
engineering district.
We find no merit in the Solicitor General's argument that the Agleham riceland was not
overpriced because the price of P80 per square meter fixed in the deed of sale was
reasonable, hence, the petitioners are not guilty of having caused undue injury and prejudice
to the Government, nor of having given unwarranted benefits to the property owner and/or his
attorney-in-fact, Gutierrez. He further argues that the valuation in the owner's genuine tax
declaration may not be used as a standard in determining the fair market value of the
property because PD Nos. 76 and 464 (making it mandatory in expropriation cases to fix the
price at the value of the property as declared by the owner, or as determined by the
assessor, whichever is lower), were declared null and void by this Court in the case of Export
Processing Zone Authority (EPZA) vs. Dulay, 149 SCRA 305, and other related cases.
That argument is not well taken because PD Nos. 76 and 464 (before they were nullified)
applied to the expropriation of property for public use. The acquisition of Agleham's riceland
was not done by expropriation but through a negotiated sale. In the course of the
negotiations, there was absolutely no allegation nor proof that the price of P80 per square
meter was its fair market value in 1978, i.e., eleven (11) years ago. What the accused did
was to prove the value of the land through fake tax declarations (Exhs. B, F, K), false
certifications (Exhs. J, D and E) and a forged sworn statement on the current and fair market
value of the real property (Exh. Z) submitted by the accused in support of the deed of sale.
Because fraudulent documents were used, it may not be said that the State agreed to pay the
price on the basis of its fairness, for the Government was in fact deceived concerning the
reasonable value of the land.
When Ocol testified in 1983 that P80 was a reasonable valuation for the Agleham's land, he
did not clarify that was also its reasonable value in 1975, before real estate values in Pasig
soared as a result of the implementation of the Mangahan Floodway Project. Hence, Ocol's
testimony was insufficient to rebut the valuation in Agleham's genuine 1978 Tax Declaration
No. 47895 that the fair valuation of the riceland then was only P5 per square meter. A Tax
Declaration is a guide or indicator of the reasonable value of the property (EPZA vs. Dulay,
supra).
The petitioner's partiality for Agleham/Gutierrez may be inferred from their having deliberately
closed their eyes to the defects and irregularities of the transaction in his favor and their
seeming neglect, if not deliberate omission, to check, the authenticity of the documents
presented to them for approval. Since partiality is a mental state or predilection, in the
absence of direct evidence, it may be proved by the attendant circumstance instances.
WHEREFORE, I vote to affirm in toto the decision of the Sandiganbayan in SB Crim. Case
No. 2010, with costs against the petitioners, Amado Arias and Cresencio Data.
Feliciano, Padilla, Sarmiento, and Regalado, JJ., concur.
Separate Opinions
GRIÑO-AQUINO, J., dissenting:
The lone issue in these consolidated petitions for review is whether the Sandiganbayan
committed a reversible error in convicting the petitioners, Amado C. Arias and Cresencio D.
Data, of having violated Section 3, paragraph (e), of the Anti Graft and Corrupt Practices Act,
in connection with the scandalous overpricing of land purchased by the Government as right
of way for its Mangahan Floodway Project in Pasig, Rizal. The pertinent provision of the Anti-
Graft Law reads as follows:
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:
xxxxxxxxx
(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 amended information against them, to which they pleaded not guilty, alleged:
That on or about the period covering April, 1978 to October 1978, in Rosario, Pasig, Metro
Manila, Philippines, and with the jurisdiction of this Honorable Court, accused Cresencio D.
Data, being then the district Engineer of the province of Rizal, Ministry of Public Works, and
as such, headed and supervised the acquisition of private lands for the right-of-way of the
Mangahan Floodway Project of the Government at Sitio Mangahan, Rosario, Pasig, Metro
Manila; accused Priscillo G. Fernando, then the Supervising Engineer of the Office of the
District Engineer of Rizal, Ministry of Public Works who acted as assistant of accused
Cresencio D. Data in the Mangahan Floodway Project; accused Ladislao G. Cruz, then the
Senior Engineer of the Office of the District Engineer of Rizal, Ministry of Public Works, who
was charged with the acquisition of lots needed for the Mangahan Floodway Project; accused
Carlos L. Jose then the Instrumentman of the office of the District Engineer of Rizal, Ministry
of Public Works who acted as the surveyor of the Mangahan Floodway Project; accused
Claudio H. Arcaya, then the Administrative Officer I of the Rizal District Engineer's Office,
Ministry of Public Works who passed upon all papers and documents pertaining to private
lands acquired by the Government for the Mangahan Floodway Project; and accused Amado
C. Arias, then the Auditor of Rizal Engineering District, Pasig, Metro Manila, who passed
upon and approved in audit the acquisition as well as the payment of lands needed for the
Mangahan Floodway Project all taking advantage of their public and official positions, and
conspiring, confederating and confabulating with accused Natividad C. Gutierrez, the
attorney-in-fact of Benjamin Agleham, who is the registered owner of a parcel of land situated
at Rosario, Pasig, Metro Manila and covered by Original Certificate of Title No. 0097, with
accused Ladislao G. Cruz, Carlos L. -Jose and Claudio Arias, acting with evident bad faith,
while accused Cresencio D. Data, Priscillo G. Fernando and Amado C. Arias, acting with
manifest partiality in the discharge of their official public and/or administrative functions, did
then and there wilfully, unlawfully and feloniously cause undue injury, damage and prejudice
to the Government of the Republic of the Philippines by causing, allowing and/or approving
the illegal and irregular disbursement and expenditure of public funds in favor of and in the
name of Benjamin P. Agleham in the amount of P1,520,320.00 under General Voucher No.
8-047, supported by a certification, dated September 14, 1978, which was purportedly issued
by the Municipal Treasurer of Pasig, and certified xerox copies of Tax Declarations Nos.
47895 and A-018-0091 1, both in the name of Benjamin P. Agleham, and an alleged owner's
copy of Tax Declaration No. 49948, in the name of the Republic of the Philippines, said
supporting documents having been falsified by the accused to make it appear that the land
mentioned in the above-stated supporting papers is a residential land with a market value of
P80.00 per square meter and that 19,004 square meters thereof were transferred in the
name of the Government of the Republic of the Philippines under Tax Declaration No. 49948,
when in truth and in fact, the afore-stated land is actually a riceland with a true and actual
market value of P5.00 per square meter only and Tax Declaration No. 49948 was truly and
officially registered in the names of spouses Moises Javillonar and Sofia San Andres, not in
the name of the Government, and refers to a parcel of land at Sagad, Pasig, Metro Manila;
that the foregoing falsities were committed by the accused to conceal the fact that the true
and actual pace of the 19,004 square meters of land of Benjamin P. Agleham, which was
acquired in behalf of the Government by way of negotiated purchase by the accused officials
herein for the right of way of the Mangahan Floodway project at an overprice of
P1,520,320.00 was P92,020.00 only; and finally, upon receipt of the overpriced amount, the
accused misappropriated, converted and misapplied the excess of the true and actual value
of the above-mentioned land, i.e., P1,428,300.00 for their own personal needs, uses and
benefits, to the damage and prejudice of the Government in the amount of P1,428,300.00.
(pp. 2931, Rollo of G.R. No. 81563.)
Priscillo Fernando did not face trial for he has remained at large, his present whereabouts
being unknown (p. 48, Sandiganbayan Decision, p. 75, Rollo of G.R. No. 81563).
In 1975, the Bureau of Public Works initiated the Mangahan Floodway Project to ease the
perennial floods affecting the towns of Marikina and Pasig, Metro Manila. The project would
traverse the northern and southern portions of Ortigas Avenue in Pasig, Metro Manila
(Exhibits A and A-1). An announcement was published in leading newspapers advising
affected property owners to file their applications for payment at the District Engineer's Office
(p. 29, Sandiganbayan Decision, p. 56, Ibid.).
The implementation of the Mangahan Floodway Project was entrusted to the Pasig
Engineering District headed by the District Engineer, Cresencio Data. He formed a committee
composed of Supervising Civil Engineer Priscillo Fernando, as over-all in charge, Alfonso
Mendoza and Pedro Hucom for acquisition of improvements, and Instrumentman Carlos Jose
for surveys (p. 26, Sandiganbayan Decision, p. 53, Ibid.). The team was tasked to notify lot
owners affected by the project of the impending expropriation of their properties and to
receive and process applications for payment.
The reclassification of all lands around the Mangahan Floodway Project was suspended in
1975 by order of the President (p. 45, Sandiganbayan Decision, p. 72, Ibid.). Implementing
that order, a memorandum was sent to Data on August 27,1976, by Public Works Director
Desiderio Anolin, directing that all affected lands covered by the Mangahan Floodway Project
shall be excluded from reevaluation and reassessment (Annex A, Exh. DD, Counter-Affidavit
of Data, p. 70, Sandiganbayan Decision, P. 97, Ibid).
Among the lots affected was a 19,004-square-meter portion of a 30,169-square-meter
riceland in Pasig registered in the name of Benjamin Agleham under Original Certificate of
Title No. 0097 issued on May 5, 1977 (Exh. H). The land was previously owned by Andrea
Arabit and Evaristo Gutierrez, parents of the accused Natividad Gutierrez.
After Agleham acquired the 3-hectare land in 1973 from the Gutierrez spouses, he had it
subdivided into three (3) lots under plan (LRC) Psd-278456 which was approved by the Land
Registration Commission on June 1, 1978 (Entry No. 27399/12071, Exh. H). Lot 1, with an
area of 19,004 square meters, is the portion that Agleham, through Natividad Gutierrez, sold
to the Government in 1978 for the Mangahan Floodway Project.
On December 15, 1973, Agleham's property, classified as a "ricefield" with an area of 3.2
hectares, was declared for taxation under Tax Declaration No. 28246 (Exh-Y). Its assessed
value was P4,800 or P0.15 per square meter (p. 10, Sandiganbayan Decision, p. 37, Ibid.).
On February 27, 1978, another Tax Declaration No. 47895 (Exh. Y-1) was issued for the
same ricefield" with a revised area of 30,169 square meters. The declared market value was
P150,850 (or P5 per square meter), and the assessed value was P60,340.
Ten months later, or on December 15, 1978, Tax Declaration No. 47895 was cancelled and
replaced by Tax Declaration No. A018- 00911 (Exh. Y-2) wherein the market value of the
same "ricefield," jumped to P301,690 (P10 per square meter). Its assessed value was fixed at
P120,680. The description and value of the property, according to Pedro Ocol, the assistant
Municipal Assessor of Pasig, was based on the actual use of the property (riceland) not on its
potential use (p. 13, Sandiganbayan Decision, p. 40, Ibid.). The valuation was based on a
compilation of sales given to the Municipal Assessor's office by the Register of Deeds, from
which transactions the Assessor obtained the average valuation of the properties in the same
vicinity (p. 14, Sandiganbayan Decision, p. 41, Ibid.).
Among those who filed an application for payment (Exhs. FF and FF-1) at the District
Engineer's Office was the accused, Natividad Gutierrez, who was armed with a Special
Power of Attorney allegedly executed on February 24,1978 by Benjamin Agleham in her favor
(Exhs. C and C-1). She submitted a falsified xerox copy of Tax Declaration No. 47895 (Exh.
B) bearing a false date: December 15,1973 (instead of February 27, 1978) and describing
Agleham's 30,169-square-meter property as "residential" (instead of riceland), with a fair
market value of P2,413,520 or P80 per square meter (instead of P150,845 at P5 per square
meter). Its assessed value appeared to be P724,056 (instead of P60,340). Gutierrez
submitted Agleham's Original Certificate of Title No. 0097 (Exh. H-1), the technical
description of the property, and a xerox copy of a "Sworn Statement of the True Current and
Fair Market Value of Real Property" required under P.D. No. 76 (Exh. 1). The xerox copy of
Tax Declaration No. 47895 was supposedly certified by the Municipal Treasurer of Pasig,
Alfredo Prudencio.
The documents supporting Agleham's claim were "examined" by the Administrative Officer,
accused Claudio Arcaya, who, after initiating them, turned them over to accused Ladislao G.
Cruz, A Deed of Absolute Sale for Lot 1 (19,004 square meters valued at P80 per square
meter) was prepared by Cruz who also initialed the supporting documents and transmitted
them to District Engr. Data.
On April 20,1978, the Deed of Absolute Sale (Exhs. G and G-1) was signed by Data and
Gutierrez (as attorney-in-fact of Agleham). Thereafter, Data sent the papers to Director
Desiderio Anolin of the Bureau of Public Works who recommended to the Assistant Secretary
of Public Works the approval of the Deed of Sale (Exh. G-1). Afterwards, the documents were
returned to Data's office for the transfer of title to the Government. On June 8, 1978, the sale
was registered and Transfer Certificate of Title No. T-12071 (Exh. T) was issued in the name
of the Government.
General Voucher (Exh. S) No. 85-2-7809-52 dated "9/29/78" for the amount of P1,520,320
bore fourth certifications of. (1) Cruz as Senior Civil Engineer; (2) Priscillo G. Fernando as
Supervising Civil Engineer II; (3) Cresencio Data as District Engineer II and (4) Cesar V.
Franco as Project Acting Accountant (p. 56, Sandiganbayan Decision, p. 83, Ibid.).
On October 23, 1978, the voucher and its supporting documents were pre-audited and
approved for payment by the accused, Amado C. Arias, as auditor of the Engineering District.
The next day, October 24, 1978, sixteen (16) PNB checks with Serial Nos. 188532 to
188547, inclusive (Exhs. X to X-1 5), for the total sum of Pl,520,320.00 were issued to
Gutierrez as payment for Agleham's 19,004-square-meter lot.
In October, 1979, an investigation was conducted by the Ministry of National Defense on the
gross overpricing of Agleham's property. During the investigation, sworn statements were
taken from Alfredo Prudencio, Municipal Treasurer of Pasig (Exh. AA), Pedro Ocol, Assistant
Municipal Assessor of Pasig (Exh. BB), and the accused Claudio Arcaya (Exh. EE).
Prudencio denied having issued or signed the certification dated September 14,1978 (Exh.
J), attesting that Agleham's property covered by Tax Declaration No. 47895 had a market
value of P2,413,520 and that the taxes had been paid from 1975 to 1978. Prudencio also
impugned the initial (purporting to be that of his subordinate Ruben Gatchalian, Chief of the
Land Tax Division) that was affixed below Prudencio's typewritten name in Exhibit J. Both
Prudencio and Gatchalian disowned the typewritten certification. They declared that such
certifications are usually issued by their office on mimeographed forms (Exh. J-1).
Assistant Municipal Assessor Pedro Ocol produced and Identified the original or genuine Tax
Declaration No. 47895 dated February 27, 1978, and a certified copy thereof (Exh. Y-1).
Therein, Agleham's property of 30,169 square meters was classified as a "ricefield" and
appraised at P5 per square meter, with an assessed value of P60,340 and a market value of
PI 50,850. Ocol testified that the supposed xerox copy of Tax Declaration No. 47895 (Exh.
B), which Gutierrez submitted as one of the supporting documents of the general voucher
(Exh. S), was fake, because of the following tell-tale signs:
(1) the tax declaration number was typewritten, not machine numbered as in the genuine
tax declaration, Exhibit Y;
(2) the stampmark of registration was antedated to December 15, 1973 in the fake,
instead of the correct date February 27, 1978-- in the genuine tax declaration;
(3) the classification of the property was "residential," instead of "ricefield" which is its
classification in the genuine document; and
(4) the lot was over priced at P80 per square meter in the fake tax declaration, instead of
the appraised value of only P5 per square meter appearing in the genuine declaration.
Also found to be fake was Tax Declaration No. 49948 in the name of the Republic of the
Philippines (Exhs. K and K-1). The genuine Tax Declaration No. 49948 (Exhs. U and V-2)
was actually filed on October 18, 1978 in the names of the spouses Moises Javillonar and
Sofia Andres, for their 598-square-meters' residential property with a declared market value
of P51,630.
The Agleham deed of sale was pre-audited by the auditor of the Rizal Engineering District,
Amado Arias, who approved the payment of Pl,520,320 to Gutierrez without questioning the
fact that the amount of the purchase price therein had been altered, i.e., "snow-flaked (sic)
and later superimposed by the amount of P1,520,320 in words and figures" (p. 71,
Sandiganbayan Decision, p. 98, Ibid.), nor checking the veracity of the supporting documents
listed at the back of the General Voucher (Exh. S), numbering fifteen (15) in all, among which
were:
(1) the fake Tax Declaration No. 47895 showing that the value of the land was P80 per
square meter (Exh. B);
(2) fake Tax Declaration No. 49948 In the name of the Republic of the Philippines (Exh.
K)
(3) the forged certification of Municipal Treasurer Prudencio that the fair market value of
'the land was P100 per square meter (Exh. J);
(4) a false certification (Exh. D) dated September 19, 1978 signed by accused Cruz,
Jose, and Fernando, certifying that the Agleham property was upon ocular inspection by
them, found to be "residential;"
(5) a falsely dated certification where the original date was erased and a false date
(February 15, 1978) was superimposed (Exh.E), issued by Engr. Fernando pursuant to
DPWTC Circular No. 557, certifying that he had examined the real estate tax receipts of the
Agleham property for the last three (3) years;
(6) the technical description of the land (Exhs. F and F-1) attached to the deed of sale
dated April 20, 1978 was not an approved technical description for the subdivision survey
executed by Geodetic Engineer Cipriano C. Caro was verified and approved by the Land
Registration Commission on May 28,1978 only. There were "substantial variations" noted by
the Sandiganbayan between the approved technical description and the technical description
of the land in the deed of sale (p. 61, Sandiganbayan Decision, p. 88, Ibid.);
(7) the special power of attorney dated February 24, 1978, supposedly given to Gutierrez
by Agleham (Exhs. C, C-1) bore a fictitious residence certificate Agleham (p. 64,
Sandiganbayan Decision, p. 91, Ibid.); and
(8) the fake Sworn Statement on the Current and Fair Market Value of Real Properties
(Exh. Z) dated October 1, 1973, contained a forged signature of Agleham, presumably made
by Gutierrez herself The Sandiganbayan observed that Agleham's supposed signature
"appears to be Identical to accused Gutierrez' signatures in the General Voucher (Exh. S), in
the release and Quitclaim which she signed in favor of Agleham on July 20, 1983 (Exh. CC),
and in her affidavits (Exhs. FF and FF-1)." (pp. 64-65, Sandiganbayan Decision, pp. 91-92,
Ibid.).
After payment of the Agleham claim, all the supporting documents were kept by Arias. Even
after he had been replaced by Julito Pesayco on September 1, 1981, as auditor of the Rizal
Engineering District, he did not turn over the documents to Pesayco. It was only on June 23,
1982, after this case had been filed in the Sandiganbayan and the trial had begun, that Arias
delivered them to Pesayco (Exh. T-1).
After a trial lasting nearly six years, the Sandiganbayan rendered a 78-page decision on
November 16, 1987, whose dispositive portion reads as follows:
WHEREFORE, judgment is hereby rendered finding accused Natividad G. Gutierrez,
Cresencio D. Data, Ladislao G. Cruz, Carlos L. Jose, Claudio H. Arcaya and Amado C. Arias
GUILTY beyond reasonable doubt of the violation of Section 3, paragraph (e) of Republic Act
No. 3019, as ascended, otherwise known as the Anti-Graft and Corrupt Practices Act, and
hereby sentences each of them to suffer the penalty of imprisonment for THREE (3) YEARS,
as minimum to SIX (6) YEARS, as maximum; to further suffer perpetual disqualification from
public office; to indemnify jointly and severally, the Government of the Republic of the
Philippines in the amount of P1,425,300, and to pay their proportional costs of this action. (p.
104, Rollo of G.R. No. 81563.)
Both Arias and Data appealed.
Arias anchors his petition for review of the Sandiganbayan's decision (G.R. No. 81563) on his
contention that the court's findings that he conspired with his co-accused and that he was
grossly negligent are based on misapprehension of facts, speculation, surmise, and
conjecture.
Data's main defense is that the acquisition of the Agleham property was the work of the
committee of Prescillo Fernando iii which he did not take an active part, and that the price
which the government paid for it was reasonable. Hence, it uttered no jury in the transaction.
In his consolidated brief or comment for the State, the Solicitor General recommends the
acquittal of the petitioners because the Agleham property was allegedly not grossly
overpriced.
After deliberating on the petitions in these cases, we find no error in the decision under
review. The Sandiganbayan did not err in finding that the petitioners conspired with their co-
accused to cause injury to the Government and to unduly favor the lot owner, Agleham.
A conspiracy need not be proved by direct evidence of the acts charged, but may and
generally must be proven by a number of indefinite acts, conditions and circumstances
(People vs. Maralit, G.R. No. 71143, Sept. 19,1988; People vs. Roca, G.R. No. 77779, June
27, 1988).
This case presents a conspiracy of silence and inaction where chiefs of office who should
have been vigilant to protect the interest of the Government in the purchase of Agleham's
two-hectare riceland, accepted as gospel truth the certifications of their subordinates, and
approved without question the million-peso purchase which, by the standards prevailing in
1976-78, should have pricked their curiosity and prompted them to make inquiries and to
verify the authenticity of the documents presented to them for approval. The petitioners kept
silent when they should have asked questions they looked the other way when they should
have probed deep into the transaction.
Since it was too much of a coincidence that both petitioners were negligent at the same time
over the same transaction, the Sandiganbayan was justified in concluding that they connived
and conspired to act in that manner to approve the illegal transaction which would favor the
seller of the land and defraud the Government.
We cannot accept Arias' excuse that because the deed of sale had been signed and the
property transferred to the Government which received a title in its name, there was nothing
else for him to do but approve the voucher for payment. The primary function of an auditor is
to prevent irregular, unnecessary, excessive or extravagant expenditures of government
funds.
The auditorial function of an auditor, as a representative of the Commission on Audit,
comprises three aspects: (1) examination; (2) audit: and (3) settlement of the accounts,
funds, financial transactions and resources of the agencies under their respective audit
jurisdiction (Sec. 43, Government Auditing Code of the Phil.). Examination, as applied to
auditing, means "to probe records, or inspect securities or other documents; review
procedures, and question persons, all for the purpose of arriving at an opinion of accuracy,
propriety, sufficiency, and the like." (State Audit Code of the Philippines, Annotated by
Tantuico, 1982 Ed., p. 57.)
Arias admitted that he did not check or verify the papers supporting the general voucher that
was submitted to him for payment of Pl,520,320 to Agleham or his attorney-in-fact, Natividad
Gutierrez. Arias did not question any person for the purpose of determining the accuracy and
integrity of the documents submitted to him and the reasonableness of the price that the
Government was paying for the less than two-hectare riceland. We reject his casuistic
explanation that since his subordinates had passed upon the transaction, he could assume
that it was lawful and regular for, if he would be a mere rubber stamp for his subordinates, his
position as auditor would be useless and unnecessary.
We make the same observation concerning District Engineer Cresencio Data who claims
innocence because he allegedly did not take any direct and active participation in the
acquisition of the Agleham property, throwing the blame on the committee which he created,
composed of Fernando, Asuncion, Mendoza, Cruz, Hucom and Jose that negotiated with the
property owners for the purchase of properties on the path of the Mangahan Floodway
Project. He in effect would hide under the skirt of the committee which he himself selected
and to which he delegated the task that was assigned to his office to Identify the lots that
would be traversed by the floodway project, gather and verify documents, make surveys,
negotiate with the owners for the price, prepare the deeds of sale, and process claims for
payment. By appointing the committee, he did not cease to be responsible for the
implementation of the project. Under the principle of command responsibility, he was
responsible for the manner in which the committee performed its tasks for it was he who in
fact signed the deed of sale prepared by the committee. By signing the deed of sale and
certifications prepared for his signature by his committee, he in effect, made their acts his
own. He is, therefore, equally guilty with those members of the committee (Fernando, Cruz
and Jose) who accepted the fake tax declarations and made false certifications regarding the
use and value of the Agleham property.
The Solicitor General has pointed out that Data signed, but did not approve, the deed of sale
of Agleham's property because the approval thereof was the prerogative of the Secretary of
Public Works. It should not be overlooked, however, that Data's signature on the deed of sale
was equivalent to an attestation that the transaction was fair, honest and legal. It was he who
was charged with the task of implementing the Mangahan Floodway Project within his
engineering district.
We find no merit in the Solicitor General's argument that the Agleham riceland was not
overpriced because the price of P80 per square meter fixed in the deed of sale was
reasonable, hence, the petitioners are not guilty of having caused undue injury and prejudice
to the Government, nor of having given unwarranted benefits to the property owner and/or his
attorney-in-fact, Gutierrez. He further argues that the valuation in the owner's genuine tax
declaration may not be used as a standard in determining the fair market value of the
property because PD Nos. 76 and 464 (making it mandatory in expropriation cases to fix the
price at the value of the property as declared by the owner, or as determined by the
assessor, whichever is lower), were declared null and void by this Court in the case of Export
Processing Zone Authority (EPZA) vs. Dulay, 149 SCRA 305, and other related cases.

That argument is not well taken because PD Nos. 76 and 464 (before they were nullified)
applied to the expropriation of property for public use. The acquisition of Agleham's riceland
was not done by expropriation but through a negotiated sale. In the course of the
negotiations, there was absolutely no allegation nor proof that the price of P80 per square
meter was its fair market value in 1978, i.e., eleven (11) years ago. What the accused did
was to prove the value of the land through fake tax declarations (Exhs. B, F, K), false
certifications (Exhs. J, D and E) and a forged sworn statement on the current and fair market
value of the real property (Exh. Z) submitted by the accused in support of the deed of sale.
Because fraudulent documents were used, it may not be said that the State agreed to pay the
price on the basis of its fairness, for the Government was in fact deceived concerning the
reasonable value of the land.

When Ocol testified in 1983 that P80 was a reasonable valuation for the Agleham's land, he
did not clarify that was also its reasonable value in 1975, before real estate values in Pasig
soared as a result of the implementation of the Mangahan Floodway Project. Hence, Ocol's
testimony was insufficient to rebut the valuation in Agleham's genuine 1978 Tax Declaration
No. 47895 that the fair valuation of the riceland then was only P5 per square meter. A Tax
Declaration is a guide or indicator of the reasonable value of the property (EPZA vs. Dulay,
supra).

The petitioner's partiality for Agleham/Gutierrez may be inferred from their having deliberately
closed their eyes to the defects and irregularities of the transaction in his favor and their
seeming neglect, if not deliberate omission, to check, the authenticity of the documents
presented to them for approval. Since partiality is a mental state or predilection, in the
absence of direct evidence, it may be proved by the attendant circumstance instances.

WHEREFORE, I vote to affirm in toto the decision of the Sandiganbayan in SB Crim. Case
No. 2010, with costs against the petitioners, Amado Arias and Cresencio Data