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Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 149152 February 2, 2007

RUFINO S. MAMANGUN, Petitioner,vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

GARCIA, J. :

In this petition for review under Rule 45 of the Rules of Court, petitioner RufinoMamangun y Silverio seeks the reversal of the Decis ion

1dated January 19, 2001

(promulgated on February 13, 2001) of the Sandiganbayan in its Criminal CaseNo. 21131, convicting him of the crime of Homicide.

The factual backdrop:

On September 12, 1994, herein petitioner, then a police officer, was chargedbefore the Sandiganbayan with the cr ime of Murder, allegedly committed, per theindicting Information,

2docketed as Criminal Case No. 21131, as follows:

That on or about the 31st day of July 1992, in the Municipality of Meycauyan,(sic) Province of Bulacan, Philippines, and within the jurisdiction of thisHonorable Court, the said accused Rufino S. Mamangun, a public officer, beingthen a Police Officer (PO2), duly appointed as such and acting in relation to his

office, armed with a gun, with intent to kill, did then and there willfully, unlawfullyand feloniously, with treachery, evident premeditation and abuse of superiorstrength, attack, assault and shoot one Gener M. Contreras with the said gun,hitting the latter on his body, thereby inflicting (sic) him serious physical injurieswhich directly cause (sic) his death.

CONTRARY TO LAW.

On arraignment, petitioner, as accused below, duly assisted by a counsel deoficio, entered a plea of "Not Guilty."

In the ensuing trial, the prosecution presented in evidence the testimonies ofCrisanto Ayson (Ayson), an alleged eyewitness, and Dr. Benito Caballero, thenthe designated Medico-Legal Officer of Bulacan who performed an autopsy onthe cadaver of the victim.

For its part, the defense adduced in evidence the testimonies of the accused

himself, Rufino Mamangun, his co-policemen at the Philippine National Police(PNP), namely, PO2 Carlito Cruz, PO4 Hobert O. Diaz and Police InvestigatorSPO-1 Hernando B. Banez, all assigned at the Meycauayan Police Station; andthose of Lorenzo S. Abacan and Rogelio Ingco, son and son-in-law, respectively,of Antonio Abacan, owner of the house on which rooftop the shooting of thevictim took place.

It is not disputed that on July 31, 1992, at about 8:00 in the evening, in Brgy.Calvario, Meycauayan, Bulacan a certain Liberty Contreras was heard shouting,"MagnanakawMagnanakaw." Several residents responded and thereuponchased the suspect who entered the yard of Antonio Abacan and proceeded tothe rooftop of Abacans house.

At about 9:00 oclock that same evening, the desk officer of the MeycauayanPNP Police Station, upon receiving a telephone call that a robbery-holdup was inprogress in Brgy. Calvario, immediately contacted and dispatched to the scenethe crew of Patrol Car No. 601 composed of Team Leader SPO1 AndresLegaspi, with PO2 Eugenio Aminas and herein petitioner PO2 Rufino S.Mamangun; and Patrol Car No. 602 composed of Team Leader PO3 SandiegoSan Gabriel, with PO2 Carlito Cruz and PO2 Hobert Diaz. With the permission of

Abacan, petitioner Mamangun, PO2 Diaz and PO2 Cruz went to the rooftop ofthe house whereat the suspect was allegedly taking refuge.

The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a drawnhandgun, searched the rooftop. There, they saw a man whom they thought wasthe robbery suspect. At that instance, petitioner Mamangun, who was walkingahead of the group, fired his handgun once, hitting the man. The man turned out

to be Gener Contreras (Contreras) who was not the robbery suspect.

Contreras died from the gunshot wound. The autopsy conducted by Dr. Benito B.Caballero yielded the following findings:

The cause of death was "Shock due to massive external and internalhemorrhage due to multiple gunshot wounds in the left arm side of the thorax,penetrating the left lung and vertebral column." There were several woundscaused by one (1) bullet.
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As shown on the sketch of human body attached to the Certificate of Death, andas testified on by Dr. Caballero, the bullet entered through the "lower third of theleft arm, left side of the thorax and it penetrated the left lung and vertebralcolumn and that is where the slug was found." From a laymans appreciation ofthe sketch, the bullet entered the outer, upper left arm of the victim, exitedthrough the inner side of the said upper left arm, a little lower than the left armpit

and the slug lodging on the victims back where it was recovered at the vertebralcolumn.3

From the foregoing admitted or undisputed facts, the prosecution and thedefense presented conflicting versions as to how the fatal shooting of Contrerasby petitioner Mamangun actually happened.

According to Ayson, the lone eyewitness for the prosecution, he accompaniedthe three policemen (Mamangun, Diaz and Cruz) to the rooftop of Abacanshouse. He was following petitioner Mamangun who was ahead of the group.They passed through the second-floor door of the house to the rooftop. The roofwas lighted by an incandescent bulb from an adjacent house. He was besideMamangun when they saw, some four to five arms-length away, a man whom he(witness) recognized as Gener Contreras. Mamangun pointed his .45 cal. pistol

at the man, who instantly exclaimed, "Hindi ako, hindi ako!," to which Mamangunreplied, "Anong hindi ako?" Before he (Ayson) could say anything, Mamangunfired his gun, hitting the man who turned out to be Contreras. He (witness)approached the victim who was then lying on his left side unconscious. Hebrought down the victim and they rushed him to the hospital where he died atabout 10:00 oclock that same evening.

The defense has its own account of what purportedly actuallytranspired.1awphi1.net

PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence ofAyson at the rooftop during the shooting incident. Corroborating one another, thethree testified that they were the only ones at the scene of the shooting, and that

it was dark. They claimed that each of them, with Mamangun on the lead, wenton separate directions around a water tank. As they met each other at the otherside of the tank, PO2 Cruz pointed to a person crouching at the edge of the roofof the garage. Thinking that the person was the suspect they were looking for,Mamangun chased said person. They announced that they were police officersbut the person continued to run in a crouching position until Mamangun caughtup with him and shouted, "Pulis. Tigil," whereupon the person suddenly stopped,turned around, faced Mamangun, and raised a stainless steel pipe towards thelatters head but Mamangun was able to evade the attack. This promptedMamangun to shoot the person on the left arm. All three claimed that it was onlyat this point that PO2 Cruz and Diaz approached Contreras who told them, "Hindiako. Hindi ako." Mamangun went near Contreras and asked, "Why did you go tothe rooftop? You know there are policemen here." Contreras was thereafter

brought to the hospital where he died. After the shooting incident, Mamangunreported the same to the desk officer, POI Filomeno de Luna, who advised him toremain in the police station. De Luna directed Police Investigator HernandoBanez to investigate the incident. That same evening, Investigator Banez went tothe place where the shooting happened. Banez allegedly found a steel pipeabout three (3) feet long on the depressed portion of the roof.

On January 19, 2001, after due proceedings, the Sandiganbayan came out withits decision

4finding the petitioner guilty beyond reasonable doubt of only the

crime of Homicide. In so finding, the Sandiganbayan did not appreciate thepresence of the aggravating circumstances of treachery, evident premeditationand abuse of superior strength to qualify the killing to Murder. But even as thesaid court rejected the petitioners claim that the shooting was justified by self-defense, it nonetheless ruled that the crime of Homicide was attended by anincomplete justifying circumstance of the petitioner having acted in theperformance of his duty as a policeman, and also appreciated in his favor thegeneric mitigating circumstance of voluntary surrender. Dispositively, thedecision reads:

WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby found GUILTY

beyond reasonable doubt of the crime of Homicide, defined and penalized underArticle 249, Revised Penal Code, and taking into account the a ttendance of one(1) privileged mitigation (sic) circumstance, one generic circumstance and noaggravating circumstance, he is hereby sentenced under the IndeterminateSentence Law, to suffer the penalty of imprisonment of from Three (3) Years andThree (3) Months of prision correctional as minimum, to Seven (7) years ofprision mayor, as maximum, to indemnify the heirs (parents) of Gener Contrerasin the total amount of P352,025.00, and to past the costs.

SO ORDERED.

Unable to accept the judgment of conviction, petitioner is now with this Court viathe present recourse alleging that the Sandiganbayan committed reversible error

in failing to apply paragraph 5, Article 11, of the Revised Penal Code, whichwould have absolved him from criminal liability on the basis of his submissionthat the shooting in question was done in the performance of a duty or in thelawful exercise of a right or office.

First off, petitioner insists that the shooting, which ultimately caused the demiseof Contreras, was justified because he was repelling Contreras unlawful attackon his person, as Contreras was then about to strike him on the head with a steelpipe.

We are not persuaded.
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Well-settled is the rule that factual findings of the Sandiganbayan are conclusiveupon the Court except where: (1) the conclusion is a finding grounded entirely onspeculations, surmises and conjectures; (2) the inference made is manifestlymistaken; (3) there is grave abuse of discretion; (4) the judgment is based onmisapprehension of facts and the findings of fact are premised on the absence ofevidence and are contradicted by the evidence on record.

5None of these

exceptions obtains in this case.

Having admitted6the fatal shooting of Contreras on the night of July 31, 1992,

petitioner is charged with the burden of adducing convincing evidence to showthat the killing was done in the fulfillment of his duty as a policeman.

The justifying circumstance of fulfillment of duty under paragraph 5, Article II, ofthe Revised Penal Code may be invoked only after the defense successfullyproves that: (1) the accused acted in the performance of a duty; and (2) the injuryinflicted or offense committed is the necessary consequence of the dueperformance or lawful exercise of such duty.

7

Concededly, the first requisite is present in this case. Petitioner, a police officer,

was responding to a robbery-holdup incident. His presence at the situs of thecrime was in accordance with the performance of his duty. However, proof thatthe shooting and ultimate death of Contreras was a necessary consequence ofthe due performance of his duty as a policeman is essential to exempt him fromcriminal liability.

As we see it, petitioners posturing that he shot Contreras because the latter triedto strike him with a steel pipe was a mere afterthought to exempt him fromcriminal liability.

We see no plausible basis to depart from the Sandiganbayans findings that therewas no reason for the petitioner to shoot Contreras. The latter was unarmed andhad already uttered, "Hindi po ako, Hindi po ako" before the petitioner fatally shothim on the left arm. Prosecution witness Ayson, who was then behind thepetitioner when the latter shot Contreras, testified that to the victims utterances,the petitioner even responded, "Anong hindi ako," and immediately shotContreras.

8As correctly observed by the Sandiganbayan:

Besides being self-serving (with respect to the accused) and biased (with respectto his co-policemen-witnesses), We find (1) the claim of the accused and his co-policemen-witnesses that the victim (Contreras) attacked the said accused and(2) their seemingly "positive" identification of the stainless steel pipe (more of arod) as his weapon, to be of doubtful credibility, for the following reasons:

(1) We have no doubt that, as claimed by PO2 Carlito Cruz and PO2Hobert Diaz, the three policemen appropriately identified themselves aspolice officers as they started chasing the man they saw "crouching,"and, as claimed by accused PO2 Rufino Mamangun, that, as he wasabout to catch up with said man, he shouted, "Pulis! Tigil!" With allthese introductions and forewarnings, it is utterly incredible and

contrary to human experience that, that man, later identified to beGener Contreras and admittedly not the person they were looking for,purportedly armed only with a stainless steel "lead" pipe (more of a rod)would suddenly stop, turn around and attack one of the three policemenwho were chasing him, one after the other, with drawn guns.

(2) When the victim (Gener Contreras) fell down after being shot byaccused PO2 Mamangun, and as the latter went near the fallen victim,said accused asked, "Why did you go to the rooftop. You know thereare policemen here." He admits that he did not ask the victim, "Why didyou try to hit me, if you are not the one?" This admission clearly beliesthe claim of the police-witnesses that Gener Contreras attacked theaccused policeman with an iron pipe when he was shot, for theaccused should have asked the latter question.

(3) The location of the entry of the bullet fired by accused Mamangunwhich is at the outer left arm at about the bicep of the victim and itstrajectory as it penetrated his body hitting his vital organs along the waybelies the claim of the accused that the victim was facing him and had

just missed his head with an iron pipe, as instead the victim must haveinstinctively shielded his body with his left arm.

Moreover, petitioners pretense that Contreras struck him with a steel pipe isintriguing. As it is, petitioner did not report the same to Police Investigator Banezwhen he reported back to the police station after the shooting incident. It wasonly when a lead pipe was recovered from the scene and brought to the policestation that petitioner conveniently remembered Contreras trying to hit him with apipe. Such a vital information could not have escaped the petitioners mind. Weare thus inclined to believe that the alleged actuation of Contreras, which couldhave justified petitioners shooting him, was nothing but a concocted story toevade criminal liability. Indeed, knowing that he shot Contreras, the least that thepetitioner should have done was to bring with him to the police station the verypipe with which Contreras tried to attack him. As borne by the evidence,however, it was only after a police investigator referred to the scene that the leadpipe surfaced.

Petitioner would likewise argue that the testimony of prosecution witness Aysonwas incredible and riddled with inconsistencies.
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The alleged contradictions cited by the petitioner, i.e. where the victim was shot,where he died, and as to whether Ayson left his house after the shootingincident, are but minor details which do not affect Aysons credibility. We haveheld time and again that few discrepancies and inconsistencies in the testimonyof a witness referring to minor details and not in actuality touching upon thecentral fact of the crime, do not impair his credibility. Quite the contrary, such

minor inconsistencies even tend to strengthen credibility because they discountthe possibility that the testimony was rehearsed.9

For sure, the record reveals that Aysons answers to the questions propoundedby the defense counsel are clear and categorical. As to where the victim died,

Ayson clarified that the victim was already at the rooftop even before the arrivalof the police officers. As to why he was not able to warn Mamangun that thevictim was his relative, Ayson explained that he was not able to utter any wordbecause when Contreras said "Hindi ako. Hindi ako," petitioner suddenly fired atthe latter.

10As to the claim that Ayson was also on the roof, record shows that

the robbery-holdup happened at around 8:00 in the evening. Before thepolicemen arrived, Ayson and Contreras were already pursuing therobber.

11Ayson also testified that when the victim was shot by the petitioner, the

former fell on his left side unconscious; that he did not leave his house after the

incident because he was afraid that the policemen would detain him.12

Self-defense, whether complete or incomplete, cannot be appreciated as a validjustifying circumstance in this case. For, from the above admitted, uncontrovertedor established facts, the most important element of unlawful aggression on thepart of the victim to justify a claim of self defense was absent. Lacking thisessential and primary element of unlawful aggression, petitioners plea of self-defense, complete or incomplete, must have to fail.

To be sure, acts in the fulfillment of a duty, without more, do not completelyjustify the petitioners firing the fatal gunshot at the victim. True, petitioner, as oneof the policemen responding to a reported robbery then in progress, wasperforming his duty as a police officer as well as when he was trying to effect thearrest of the suspected robber and in the process, fatally shoot said suspect,albeit the wrong man. However, in the absence of the equally necessary

justifying circumstance that the injury or offense committed be the necessaryconsequence of the due performance of such duty, there can only be incomplete

justification, a privileged mitigating circumstance under Articles 13 and 69 of theRevised Penal Code.

There can be no quibbling that there was no rational necessity for the killing ofContreras. Petitioner could have first fired a warning shot before pulling thetrigger against Contreras who was one of the residents chasing the suspectedrobber.

All told, we find no reversible error committed by the Sandiganbayan inconvicting the petitioner of the crime of Homicide attended by the privilegedmitigating circumstance of incomplete justifying circumstance of having acted inthe performance of his duty as a policeman and the generic mitigatingcircumstance of voluntary surrender.

IN VIEW WHEREOF, the instant petition is DENIED and the assailed decision ofthe Sandiganbayan is AFFIRMED in all respects.

No pronouncement as to costs.

SO ORDERED.

ANCIO C. GARCIAAssociate Justice
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Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 153875 August 16, 2006

PEOPLE OF THE PHILIPPINES,Plaintiff-Appellee,vs.ROLANDO DAGANI y REYES and OTELLO SANTIANO YLEONIDA,Accused-Appellants.

D E C I S I O N

AUSTRIA-MARTINEZ, J .:

For review before the Court is the Decision dated June 20, 20021of the

Court of Appeals (CA) which affirmed the Decision of the Regional TrialCourt of the City of Manila, Branch 12 (RTC), dated February 18, 1993, inCriminal Case No. 89-77467, finding the accused-appellants Otello Santianoy Leonida (Santiano) and Rolando Dagani y Reyes (Dagani) guilty of thecrime of Murder.

The accusatory portion of the Information reads:

That on or about September 11, 1989, in the City of Manila, Philippines, thesaid accused conspiring and confederating together and mutually helpingeach other did then and there, willfully, unlawfully and feloniously, with intentto kill, evident premeditation and treachery, attack, assault and use ofpersonal violence upon one ERNESTO JAVIER Y FELIX by then and thereshooting him with a .38 caliber revolver, thereby inflicting upon the saidERNESTO JAVIER Y FELIX mortal gunshot wounds which were the directand immediate cause of his death thereafter.

CONTRARY TO LAW.2

Upon arraignment, the appellants pleaded not guilty. Trial ensued where theprosecution adduced evidence to establish the following:

At about 4:45 in the afternoon of September 11, 1989, a group composed ofErnesto Javier (Javier), Lincoln Miran (Miran), and two other individuals hadbeen drinking at the canteen located inside the compound of the PhilippineNational Railways (PNR) along C.M. Recto Avenue, Tondo, Manila. All of asudden, appellants, who were security officers of the PNR and covered bythe Civil Service Rules and Regulations, entered the canteen and

approached the group. Appellant Dagani shoved Miran, causing the latter tofall from his chair. Dagani then held Javier while Santiano shot Javier twiceat his left side, killing the latter.

The defense proceeded to prove their version of the facts:

Appellants testified that they were ordered by their desk officer to investigatea commotion at the canteen. Upon reaching the place, Santiano ordered hisco-accused, Dagani, to enter, while the former waited outside.

Dagani approached Javier who had been striking a bottle of beer on thetable. Javier then pulled out a .22 caliber revolver and attempted to fire at

Dagani, but the gun failed to go off. Then suddenly, while outside thecanteen, Santiano heard gunfire and, from his vantage point, he saw Javierand Dagani grappling for a .22 caliber gun which belonged to Javier. Duringthe course of the struggle, the gun went off, forcing Santiano to fire awarning shot. He heard Javiers gun fire again, so he decided to rush intothe canteen. Santiano then shot Javier from a distance of less than fourmeters.

Appellants invoked the justifying circumstances of self-defense and lawfulperformance of official duty as PNR security officers. They also argued thatthe prosecution failed to establish treachery and conspiracy.

The RTC rendered its Decision, the dispositive portion of which reads:

WHEREFORE, finding both accused Otello Santiano y Leonida and RolandoDagani y Reyes guilty beyond reasonable doubt of the crime of Murderdefined and punished under Art. 248, RPC, with the presence of themitigating circumstance of voluntary surrender and granting them the benefitof [the] Indeterminate Sentence Law, both accused are hereby sentenced toeach suffer an Indeterminate prison term of TEN (10) YEARS and ONE (1)DAY of prision mayor as minimum, to EIGHTEEN (18) YEARS and ONE (1)DAY of reclusion temporal x x x.
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Both accused are hereby ordered to indemnify the heirs of the victim thesum of P50,000.00 as death indemnity, the sum of P31,845.00 as funeraland burial expenses, the sum of

P30,000.00 as and for [sic] attorneys fees and the further sum of P1,000.00per appearance of counsel.

Both accused shall be credited with the full extent of their preventiveimprisonment. Both accused are hereby committed to the Director, NationalPenitentiary, Muntinlupa, Metro Manila for service of Sentence.

SO ORDERED.3

In brief, the RTC held that appellants failed to prove that Javier attempted tosqueeze the trigger of the .22 caliber gun when he pointed it at Dagani; thatduring the course of the struggle for the possession of the .22 caliber gun,the danger to the life of the accused ceased to be imminent; that in grapplingfor the weapon, Dagani "controlled" the hands of Javier and pushed them

away from his body; that the appellants failed to produce the two emptyshells as physical evidence of the gunfire allegedly caused by Javier; that nopoints of entry or bullet markings on the walls of the canteen were shown;that, in light of these findings, no unlawful aggression was present on thepart of the victim; that the appellants failed to prove that they were on officialduty at the time of the incidence; that, since it was not established that Javieractually fired his gun, the injury inflicted upon him cannot be regarded as anecessary consequence of the due performance of an official duty; that theappellants were acting in conspiracy; that the qualifying circumstance oftreachery attended the killing, considering that Javier had been shot whilehis hands were being held by Dagani and as his body was out of balanceand about to fall; and that the mitigating circumstance of voluntary surrendershould be appreciated in favor of the appellants.

The appellants appealed to the CA and assigned the following errors:

I

THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING SELFDEFENSE ON THE PART OF THE ACCUSED.

II

THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER THEFACT THAT THE ACCUSED-APPELLANTS WERE IN LAWFULPERFORMANCE OF AN OFFICIAL DUTY.

III

THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN RULINGTHAT THERE WAS CONSPIRACY.

IV

THE LOWER COURT GRAVELY ERRED IN FINDING THAT THEPROSECUTION WAS ABLE TO ESTABLISH BEYOND REASONABLEDOUBT THAT THE ACCUSED ARE GUILTY OF MURDER.

4

The CA rendered its Decision, the dispositive portion of which states:

WHEREFORE, the appealed judgment of conviction is MODIFIED.Appellants are hereby sentenced to reclusion perpetua. The award forattorneys fees and appearance fees for counsel are hereby deleted. In allthe other aspects, the appealed decision is maintained.

Let the entire records of the case be elevated to the Supreme Court for themandated review.

SO ORDERED.5

The CA affirmed the findings of fact as well as the salient portions of theRTC Decision, but deleted the award of attorneys fees and the perappearance fees of counsel since, the

CA reasoned, the instant case is criminal in nature which is under the controlof the public prosecutor, and, additionally, the RTC failed to justify this awardin the body of its Decision. And last, the CA found that the RTC erroneouslyapplied the Indeterminate Sentence Law since the penalty for Murder, at thetime of the incident, was reclusion perpetua which is an indivisible penalty tobe imposed in its entirety, regardless of the attending mitigatingcircumstance of voluntary surrender.
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Appellants are now before this Court submitting for resolution the samematters argued before the CA. Through their Manifestation dated February11, 2003,

6appellants prayed to dispense with the filing of additional briefs.

As of date, the records show that despite the efforts exerted by the suretyand the responsible law officers to locate the appellants, the latter could notbe found and have jumped bail.7

The appeal is partly meritorious.

Appellants argue that the courts a quo misappreciated the facts and erred infinding that there was no unlawful aggression on the part of the victim. Theyinsist that the victim, Javier, had been armed with a revolver at the time hewas struggling with appellant Dagani; that the former "could have easilykilled the latter;" that, given the fact that Javier had been drinking, "it is quiteprobable for Javier to act harshly and aggressively towards

peace officers such as the accused;"8and that Javier actually fired three

shots from his .22 caliber gun.9

We are not convinced.

When self-defense is invoked, the burden of evidence shifts to the accusedto show that the killing was legally justified. Having owned the killing of thevictim, the accused should be able to prove to the satisfaction of the Courtthe elements of self-defense in order to avail of this extenuatingcircumstance. He must discharge this burden by clear and convincingevidence. When successful, an otherwise felonious deed would be excused,mainly predicated on the lack of criminal intent of the accused. Self-defenserequires that there be (1) an unlawful aggression by the person injured orkilled by the offender, (2) reasonable necessity of the means employed to

prevent or repel that unlawful aggression, and (3) lack of sufficientprovocation on the part of the person defending himself. All these conditionsmust concur.

10

Unlawful aggression, a primordial element of self-defense, wouldpresuppose an actual, sudden and unexpected attack or imminent dangeron the life and limb of a person not a mere threatening or intimidatingattitude

11 but most importantly, at the time the defensive action was taken

against the aggressor.12

To invoke self-defense successfully, there musthave been an

unlawful and unprovoked attack that endangered the life of the accused,who was then forced to inflict severe wounds upon the assailant byemploying reasonable means to resist the attack.

13

In the instant case, the assertions that it was "quite probable" that Javier,during the course of the struggle for the firearm, "could have easily killed"the appellants are uncertain and speculative. There is aggression incontemplation of the law only when the one attacked faces real andimmediate threat to ones life. The peril sought to be avoided must beimminent and actual, not just speculative.

14

To sum up the matter, we quote the findings of the CA:

The defense was unable to prove that there was unlawful aggression on thepart of Javier. They were unable to present evidence that the victim actuallyfired his gun. No spent shells from the .22 caliber pistol were found and nobullets were recovered from the scene of the incident. Javier also testednegative for gunpowder residue. Moreover, the trial court found appellant

Daganis account of the incident to be incredible and self-serving. In sum,the defense presented a bare claim of self-defense without any proof of theexistence of its requisites.

15

Even if it were established that Javier fired his gun as the appellants soinsist, the imminence of the danger to their lives had already ceased themoment Dagani held down the victim and grappled for the gun with thelatter. After the victim had been thrown off-balance, there was no longer anyunlawful aggression

that would have necessitated the act of killing.16

When an unlawfulaggression that has begun no longer exists, the one who resorts to self-defense has no right to kill or even to wound the former aggressor.

17When

Javier had been caught in the struggle for the possession of the gun withappellant Dagani, the grave peril envisaged by appellant Santiano, whichimpelled him to fire at the victim, had then ceased to a reasonableextent,

18and undoubtedly, Santiano went beyond the call of self-

preservation when he proceeded to inflict the excessive and fatal injuries onJavier, even when the alleged unlawful aggression had already ceased.

19

The second element of self-defense demands that the means employed toneutralize the unlawful aggression are reasonable and necessary. It issettled that reasonable necessity of the means employed does not implymaterial commensurability between the means of attack and defense. Whatthe law requires is rational equivalence.

20The circumstances in their entirety
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which surround the grappling of the firearm by Dagani and Javier, such asthe nature and number of gunshot wounds sustained by the victim

21which

amounted to two fatal wounds,22

that Dagani was able to restrain the handsof Javier and push

them away from his body,23

that Dagani was larger than Javier and had

finished Special Weapons and Tactics (SWAT) hand-to-

hand combat training,24

and Javier, as admitted by the appellants, wasinebriated at the time of the incident,

25do not justify appellant Santianos act

of fatally shooting the victim twice.26

All things considered, the appellants plea of self-defense is not corroboratedby competent evidence. The plea of self-defense cannot be justifiablyentertained where it is not only uncorroborated by any separate competentevidence but is in itself extremely doubtful.

27Whether the accused acted in

self-defense is a question of fact. Like alibi, the affirmative defense of self-defense is inherently weak because, as experience has demonstrated, it is

easy to fabricate and difficult to disprove.

28

This Court, therefore, finds noreversible error on the part of the courts a quo in rejecting the claim of self-defense.

Appellants set up the defense that they were in the lawful performance oftheir official duties. They specifically aver that they had been ordered by theirdesk officer to proceed to the canteen in response to a telephone call statingthat there was a group "creating trouble;" that they were in the call of dutyand exercising their functions and responsibilities as members of the PNRCivil Security Office to preserve peace and order and

protect the lives and property in the PNR Compound;29

and that, invokingjurisprudence, as security officers in the performance of duty, like the police,

they must stand their ground and overcome the opponent, and the force thatmay be exerted must differ from that which ordinarily may be offered in self-defense.

30

Article 11 of the Revised Penal Code provides that a person who acts in thefulfillment of a duty or in the lawful exercise of a right or office does not incurany criminal liability. Two requisites must concur before this defense canprosper: 1) the accused must have acted in the performance of a duty or inthe lawful exercise of a right or office; and 2) the injury caused or the offensecommitted should have been the necessary consequence of such lawfulexercise.

31These requisites are absent in the instant case.

As found by the CA:

The defense failed to prove that the security officers were in fact on duty atthe time they were at the canteen. The trial court gave weight to the fact thatthe appellants were unable to submit their daily time records to show thatthey were on duty at the time. Appellants assertion that they were ordered

to go on 24-hour duty was belied by PNR Security Investigator RolandoMarinays testimony that PNR security officers work in two 12 -hour shifts,from 7:00 a.m. to 7:00 p.m. and from 7:00 p.m. to 7:00 a.m.

Moreover, since it was not established that Javier fired his gun, the injuryinflicted upon him cannot be regarded as a necessary consequence ofappellants due performance of an official duty.

32

As stated, considering that the imminent or actual danger to the life of theappellants had been neutralized when Dagani grappled with Javier andrestrained his hands; that Javier had been thrown off-balance; that Daganihad been specially trained for these purposes; and that Javier had been

drinking immediately prior to the scuffle, this Court holds that the fatalinjuries that appellant Santiano inflicted on the victim cannot be deemed tobe necessary consequences of the performance of his duty as a PNRsecurity officer.

33While it is recognized that police officers if indeed the

appellants can be likened to them must stand their ground and overwhelmtheir opponents, in People v. Ulep,

34this Court counseled:

The right to kill an offender is not absolute, and may be used only as a lastresort, and under circumstances indicating that the offender cannototherwise be taken without bloodshed. The law does not clothe policeofficers with authority to arbitrarily judge the necessity to kill. It may be truethat police officers sometimes find themselves in a dilemma when pressuredby a situation where an immediate and decisive, but legal, action is needed.However, it must be stressed that the judgment and discretion of policeofficers in the performance of their duties must be exercised neithercapriciously nor oppressively, but within reasonable limits. In the absence ofa clear and legal provision to the contrary, they must act in conformity withthe dictates of a sound discretion, and within the spirit and purpose of thelaw. We cannot countenance trigger-happy law enforcement officers whoindiscriminately employ force and violence upon the persons they areapprehending. They must always bear in mind that although they are dealingwith criminal elements against whom society must be protected, thesecriminals are also human beings with human rights.

35
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But this Court cannot agree with the findings of the courts a quo that theappellants were in conspiracy.

The RTC simply held:

The Information cited conspiracy of the accused. Since it can also becommitted thru simultaneous/concerted action and considering that Javierwas shot by Santiano while being held by Dagani, under jurisprudence,conspiracy is present.

36

The tenor of the factual findings of the CA is equally unsatisfactory:

Moreover, the facts show that Javier was shot by appellant Santiano as hewas being subdued by appellant Dagani. The trial court held that the mannerof the attack was indicative of a joint purpose and design by the appellants.

37

Courts must judge the guilt or innocence of the accused based on facts andnot on mere conjectures, presumptions, or suspicions.

38Other than the plain

fact that the victim had been shot by one of the accused while being held bya co-accused, there is no other evidence that the appellants were animatedby the same purpose or were moved by a previous common accord. Itfollows that the liability of the accused must be determined on an individualbasis. While no formal agreement is necessary to establish conspiracybecause conspiracy may be inferred from the circumstances attending thecommission of the crime, yet, conspiracy must be established by clear andconvincing evidence.

39

This Court has held that even if all the malefactors joined in the killing, suchcircumstance alone does not satisfy the requirement of conspiracy becausethe rule is that

neither joint nor simultaneous action is perse sufficient proof of conspiracy.Conspiracy must be shown to exist

as clearly and convincingly as the commission of the offense itself.40

Thus,even assuming that Javier was simultaneously attacked, this does not proveconspiracy. No evidence was presented to show that the appellants plannedto kill Javier or that Daganis overt acts facilitated that alleged plan. Theprosecution did not establish that the act of Dagani in trying to wrestle thegun from Javier and in the process, held the latters hands, was for thepurpose of enabling Santiano to shoot at Javier. The prosecution had theburden to show Daganis intentional participation to the furtherance of a

common design and purpose41

or that his action was all part of a scheme tokill Javier. That Dagani did not expect Santiano to shoot the victim isestablished when Santiano testified that Dagani "seem[ed] to be shocked, hewas standing and looking at the victim" as Javier gradually fell to theground.

42And since Daganis conviction can only be sustained if the crime

had been carried out through a conspiracy duly proven, in view of the failure

of the prosecution to discharge that burden, this Court is constrained toacquit him.

And this Court cannot say that treachery attended the attack. The RTCdeclared:

[T]he Court believes that Javier was shot while his body was out-balancedand about to fall to the right side and while his hands were being held byDagani. Javier, therefore, was shot at when he has no means to defendhimself, hence, the killing was attended by the qualifying circumstance oftreachery.

43

which the CA affirmed as follows:

The findings of the court a quo clearly showed that Javier was being helddown and could not effectively use his weapon. As such, the trial court heldthat Javier could not be considered to be an armed man as he was beingheld down and was virtually helpless.

It has been held that when an assault is made with a deadly weapon uponan unarmed and unsuspecting victim who [was] given no immediateprovocation for the attack and under conditions which made it impossible forhim to evade the attack, flee or make [a] defense, the act is properlyqualified as treachery, and the homicide resulting therefrom is classified asmurder.

44x x x

Treachery under par.16 of Article 14 of the Revised Penal Code is definedas the deliberate employment of means, methods or forms in the executionof a crime against persons which tend directly and specially to insure itsexecution, without risk to the offender arising from the defense which theintended victim might raise. Treachery is present when two conditionsconcur, namely: (1) that the means, methods and forms of executionemployed gave the person attacked no opportunity to defend himself or toretaliate; and (2) that such means, methods and forms of execution weredeliberately and consciously adopted by the accused without danger to hisperson.

45
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This Court has held that the suddenness of the attack, the infliction of thewound from behind the victim, the vulnerable position of the victim at thetime the attack was made, or the fact that the victim was unarmed, do not bythemselves render the

attack as treacherous.46

This is of particular significance in a case of an

instantaneous attack made by the accused whereby he gained anadvantageous position over the victim when the latter accidentally fell andwas rendered defenseless.

47The means employed for the commission of

the crime or the mode of attack must be shown to have been consciously ordeliberately adopted by the accused to insure the consummation of thecrime and at the same time eliminate or reduce the risk of retaliation fromthe intended victim.

48For the rules on treachery to apply, the sudden attack

must have been preconceived by the accused, unexpected by the victim,and without provocation on the part of the latter.

49Treachery is never

presumed. Like the rules on conspiracy, it is required that the manner ofattack must be shown to have been attended by treachery as conclusivelyas the crime itself.

50

The prosecution failed to convincingly prove that the assault by theappellants had been deliberately adopted as a mode of attack intended toinsure the killing of Javier and without the latter having the opportunity todefend himself. Other than the bare fact that Santiano shot Javier while thelatter had been struggling with Dagani over the possession of the .22 calibergun, no other fact had been adduced to show that the appellants consciouslyplanned or predetermined the methods to insure the commission of thecrime, nor had the risk of the victim to

retaliate been eliminated during the course of the struggle over the weapon,as the latter, though struggling, had not been

completely subdued. As already stated, this Court must emphasize that themere suddenness of the attack, or the vulnerable position of the victim at thetime of the attack, or yet even the fact that the victim was unarmed, do notby themselves make the attack treacherous.

51It must be shown beyond

reasonable doubt that the means employed gave the victim no opportunity todefend himself or retaliate, and that such means had been deliberately orconsciously adopted without danger to the life of the accused.

52

For these reasons, the Court is inclined to look upon the helpless position ofJavier as merely incidental to the attack, and that the decision to shootJavier was made in an instant.

53

Considering the rule that treachery cannot be inferred but must be proved asfully and convincingly as the crime itself, any doubt as to its existence mustbe resolved in favor of Santiano. Accordingly, for failure of the prosecution toprove treachery to qualify the killing to Murder, appellant Santiano may onlybe convicted of Homicide.

54The penalty, therefore, under Article 249 of the

Revised Penal Code, as amended, is reclusion temporal.

The Office of the Solicitor General is correct in that the courts a quo failed toconsider the aggravating circumstance of

taking advantage of official position under Article 14 (1) of the Revised PenalCode, since the accused, a PNR security officer

covered by the Civil Service, committed the crime with the aid of a gun hehad been authorized to carry as such.

55Considering that the mitigating

circumstance of voluntary surrender, as duly appreciated by the courts aquo, shall be offset against the aggravating circumstance of takingadvantage of official position, the penalty should be imposed in its mediumperiod, pursuant to Article 64 (4) of the aforesaid Code.

Applying the Indeterminate Sentence Law, the sentence of appellantSantiano will consist of a minimum that is anywhere within the full range ofprision mayor, and a maximum which is anywhere within reclusion temporalin its medium period. This Court hereby fixes it to be from eight (8) years andone (1) day of prision mayor as minimum, to fourteen (14) years, eight (8)months, and one (1) day of reclusion temporal, as maximum.

As to the award of damages, prevailing jurisprudence entitles the heirs of thedeceased to the amount ofP50,000.00 as civil indemnity for the death of thevictim without need of any evidence or proof of damages.

56

The CA erred in deleting the attorneys fees and per appearance fees forlack of factual basis. Although the CA is correct in noting that the RTC failedto justify these awards in the body of its Decision, this appeal opens theentire case for review and, accordingly, the records show that the foregoing

amounts had been stipulated by the parties,57

thereby dispensing with theneed to prove the same.

58

As to moral damages, however, the widow of the victim, Erlinda Javier, is notentitled to the same. She did not testify on any mental anguish or emotional
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EN BANC

[G.R. No. 103501-03. February 17, 1997]

LUIS A. TABUENA, petit ioner, vs. HONORABLE SANDIGANBAYAN,and THE PEOPLE OF THE PHILIPPINES, respondents.

[G.R. No. 103507. February 17, 1997]

ADOLFO M. PERALTA, petit ioner, vs. HON. SANDIGANBAYAN (FirstDivision), and THE PEOPLE OF THE PHILIPPINES, representedby the OFFICE OF THE SPECIAL PROSECUTOR, respondents.

D E C I S I O N

FRANCISCO, J .:

Through their separate petitions for review,[1]

Luis A. Tabuena andAdolfo M. Peralta (Tabuena and Peralta, for short) appeal theSandiganbayan decision dated October 12, 1990,

[2]as well as the

Resolution dated December 20, 1991[3]

denying reconsideration, convictingthem of malversation under Article 217 of the Revised PenalCode. Tabuena and Peralta were found guilty beyond reasonable doubt ofhaving malversed the total amount of P55 Million of the Manila InternationalAirport Authority (MIAA) funds during their incumbency as General Managerand Acting Finance Services Manager, respectively, of MIAA, and were thusmeted the following sentence:

(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentencedto suffer the penalty of imprisonment of seventeen (17) years and one (1)day ofreclusion temporalas minimum to twenty (20) years ofreclusiontemporalas maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS(P25,000,000.00), the amount malversed. He shall also reimburse the

Manila International Airport Authority the sum of TWENTY-FIVE MILLIONPESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualificationfrom public office.

(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentencedto suffer the penalty of imprisonment of seventeen (17) years and one (1)day ofreclusion temporalas minimum, and twenty (20) years of reclusiontemporalas maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS(P25,000,000.00), the amount malversed. He shall also reimburse theManila International Airport Authority the sum of TWENTY-FIVE MILLIONPESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualificationfrom public office.

(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M.

Peralta are each sentenced to suffer the penalty of imprisonment ofseventeen (17) years and one (1) day of reclusion temporalas minimum andtwenty (20) years ofreclusion temporalas maximum and for each of them topay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amountmalversed. They shall also reimburse jointly and severally the ManilaInternational Airport Authority the sum of FIVE MILLION PESOS(P5,000,000.00).

In addition, they shall both suffer the penalty of perpetual specialdisqualification from public office.

A co-accused of Tabuena and Peralta was Gerardo G. Dabao, thenAssistant General Manager of MIAA, has remained at large.

There were three (3) criminal cases filed (nos. 11758, 11759 and11760) since the total amount of P55 Million was taken on three (3) separatedates of January, 1986. Tabuena appears as the principal accused - hebeing charged in all three (3) cases. The amended informations in criminalcase nos. 11758, 11759 and 11760 respectively read:

That on or about the 10th day of January, 1986, and for sometimesubsequent thereto, in the City of Pasay, Philippines, and within thejurisdiction of this Honorable Court, accused Luis A. Tabuena and GerardoG. Dabao, both public officers, being then the General Manager andAssistant General Manager, respectively, of the Manila International Airport
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Authority (MIAA), and accountable for public funds belonging to the MIAA,they being the only ones authorized to make withdrawals against the cashaccounts of MIAA pursuant to its board resolutions, conspiring,confederating and confabulating with each other, did then and there wilfully,unlawfully, feloniously, and with intent to defraud the government, take andmisappropriate the amount of TWENTY FIVE MILLION PESOS

(P25,000,000.00) from MIAA funds by applying for the issuance of amanagers check for said amount in the name of accused Luis A. Tabuenachargeable against MIAAs Savings Account No. 274-500-354-3 in the PNBExtension Office at the Manila International Airport in Pasay City, purportedlyas partial payment to the Philippine National Construction Corporation(PNCC), the mechanics of which said accused Tabuena would personallytake care of, when both accused well knew that there was no outstandingobligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the sameand thereafter both accused misappropriated and converted the proceedsthereof to their personal use and benefit, to the damage and prejudice of thegovernment in the aforesaid amount.

CONTRARY TO LAW.

x x x

That on or about the 16th day of January, 1986, and for sometimesubsequent thereto, in the City of Pasay, Philippines and within thejurisdiction of this Honorable Court, accused Luis A. Tabuena and GerardoG. Dabao, both public officers, being then the General Manager andAssistant General Manager, respectively, of the Manila International AirportAuthority (MIAA), and accountable for public funds belonging to the MIAA,they being the only ones authorized to make withdrawals against the cashaccounts of MIAA pursuant to its board resolutions, conspiring,confederating and confabulating with each other, did then and there wilfully,

unlawfully, feloniously, and with intent to defraud the government, take andmisappropriate the amount of TWENTY FIVE MILLION PESOS(P25,000,000.00) from MIAA funds by applying for the issuance of amanagers check for said amount in the name of accused Luis A. Tabuenachargeable against MIAAs Savings Account No. 274-500-354-3 in the PNBExtension Office at the Manila International Airport in Pasay City, purportedlyas partial payment to the Philippine National Construction Corporation(PNCC), the mechanics of which said accused Tabuena would personallytake care of, when both accused well knew that there was no outstandingobligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the sameand thereafter both accused misappropriated and converted the proceeds

thereof to their personal use and benefit, to the damage and prejudice of thegovernment in the aforesaid amount.

CONTRARY TO LAW.

x x x

That on or about the 29th day of January, 1986, and for sometimesubsequent thereto, in the City of Pasay, Philippines, and within thejurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M.Peralta, both public officers, being then the General Manager and ActingManager, Financial Services Department, respectively, of the ManilaInternational Airport Authority (MIAA), and accountable for public fundsbelonging to the MIAA, they being the only ones authorized to makewithdrawals against the cash accounts of MIAA pursuant to its boardresolutions, conspiring, confederating and confabulating with each other, didthen and there wilfully, unlawfully, feloniously, and with intent to defraud thegovernment, take and misappropriate the amount of FIVE MILLION PESOS(P5,000,000.00) from MIAA funds by applying for the issuance of amanagers check for said amount in the name of accused Luis A. Tabuenachargeable against MIAAs Savings Account No. 274 -500-354-3 in the PNBExtension Office at the Manila International Airport in Pasay City, purportedlyas partial payment to the Philippine National Construction Corporation(PNCC), the mechanics of which said accused Tabuena would personallytake care of, when both accused well knew that there was no outstandingobligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the sameand thereafter both accused misappropriated and converted the proceedsthereof to their personal use and benefit, to the damage and prejudice of thegovernment in the aforesaid amount.

CONTRARY TO LAW.

Gathered from the documentary and testimonial evidence are thefollowing essential antecedents:

Then President Marcos instructed Tabuena over the phone to pay directly tothe presidents office and in cash what the MIAA owes the PhilippineNational Construction Corporation (PNCC), to which Tabuena replied, Yes,sir, I will do it. About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a Presidential Memorandumdated January 8, 1986 (hereinafter referred to as MARCOS Memorandum)reiterating in black and white such verbal instruction, to wit:


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Office of the President

of the Philippines

Malacaang

January 8, 1986

MEMO TO: The General Manager

Manila International Airport Authority

You are hereby directed to pay immediately the Philippine NationalConstruction Corporation, thru this Office, the sum of FIFTY FIVE MILLION(P55,000,000.00) PESOS in cash as partial payment of MIAAs account withsaid Company mentioned in a Memorandum of Minister Roberto Ongpin tothis Office dated January 7, 1985 and duly approved by this Office onFebruary 4, 1985.

Your immediate compliance is appreciated.

(Sgd.) FERDINANDMARCOS.

[4]

The January 7, 1985 memorandum of then Minister of Trade andIndustry Roberto Ongpin referred to in the MARCOS Memorandum, reads infull:

MEMORANDUM

F o r : The President

F r o m : Minister Roberto V. Ongpin

D a t e : 7 January 1985

Subject : Approval of Supplemental Contracts and

Request for Partial Deferment of Repayment of PNCCs Advances for MIADevelopment Project

May I request your approval of the attached recommendations of MinisterJesus S. Hipolito for eight (8) supplemental contracts pertaining to the MIADevelopment Project (MIADP) between the Bureau of Air Transport (BAT)

and Philippine National Construction Corporation (PNCC), formerly CDCP,as follows:

1. Supplemental Contract No. 12

Package Contract No. 2 P11,106,600.95

2. Supplemental Contract No. 13 5,758,961.52


Package Contract No. 2 4,586,610.80

4. Supplemental Contract No. 15 1,699,862.69


Package Contract No. 2 233,561.22






Package Contract No. II 16,617,655.49

(xerox copies only; original memo was submitted to the Office of thePresident on May 28, 1984)

In this connection, please be informed that Philippine National ConstructionCorporation (PNCC), formerly CDCP, has accomplishment billings on theMIA Development Project aggregating P98.4 million, inclusive ofaccomplishments for the aforecited contracts. In accordance with contractprovisions, outstanding advances totalling P93.9 million are to be deducted
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The disbursement of the P55 Million was, as described by Tabuenaand Peralta themselves, out of the ordinary and not based on the normalprocedure. Not only were there no vouchers prepared to support thedisbursement, the P55 Million was paid in cold cash. Also, no PNCC receiptfor the P55 Million was presented. Defense witness Francis Monera, thenSenior Assistant Vice President and Corporate Comptroller of PNCC, even

affirmed in court that there were no payments made to PNCC by MIAA forthe months of January to June of 1986.

The position of the prosecution was that there were no outstandingobligations in favor of PNCC at the time of the disbursement of the P55Million. On the other hand, the defense of Tabuena and Peralta, in short,was that they acted in good faith. Tabuena claimed that he was merelycomplying with the MARCOS Memorandum which ordered him to forwardimmediately to the Office of the President P55 Million in cash as partialpayment of MIAAs obligations to PNCC, and that he (Tabuena) was of thebelief that MIAA indeed had liabilities to PNCC. Peralta for his part sharedthe same belief and so he heeded the request of Tabuena, his superior, forhim (Peralta) to help in the release of P5 Million.

With the rejection by the Sandiganbayan of their claim of good faithwhich ultimately led to their conviction, Tabuena and Peralta now set forth atotal of ten (10) errors

[6]committed by the Sandiganbayan for this Courts

consideration. It appears, however, that at the core of their plea that weacquit them are the following:

1) the Sandiganbayan convicted them of a crime not charged in theamended informations, and

2) they acted in good faith.

Anent the first proposition, Tabuena and Peralta stress that they werebeing charged with intentional malversation, as the amended informationscommonly allege that:

x x x accused x x x conspiring, confederating and confabulating with eachother, did then and there wilfully, unlawfully, feloniously, and with intent todefraud the government, take and misappropriated the amount ofx x x.

But it would appear that they were convicted of malversation bynegligence. In this connection, the Courts attention is directed to p. 17 ofthe December 20, 1991 Resolution (denying Tabuenas and Peraltas motionfor reconsideration) wherein the Sandiganbayan said:

x x x x x x x x x

On the contrary, what the evidence shows is that accused Tabuenadelivered the P55 Million to people who were not entitled thereto, either asrepresentatives of MIAA or of the PNCC.Sclaw

It proves that Tabuena had deliberately consented or permittedthrough negligence or abandonment, some other person to take such publicfunds. Having done so, Tabuena, by his own narration, has categoricallydemonstrated that he is guilty of the misappropriation or malversation of P55Million of public funds. (Underscoring supplied.)

To support their theory that such variance is a reversible flaw, Tabuena andPeralta argue that:

1) While malversation may be committed intentionally or by negligence,both modes cannot be committed at the same time.

2) The Sandiganbayan was without jurisdiction to convict them ofmalversation of negligence where the amended informations charged themwith intentional malversation.

[7]

3) Their conviction of a crime different from that charged violated theirconstitutional right to be informed of the accusation.

[8]

We do not agree with Tabuena and Peralta on this point. Illuminativeand controlling is Cabello v. Sandiganbayan

[9]where the Court passed

upon similar protestations raised by therein accused-petitioner Cabellowhose conviction for the same crime of malversation was affirmed, in thiswise:

x x x even on the putative assumption that the evidence against petitioneryielded a case of malversation by negligence but the information was forintentional malversation, under the circumstances of this case his convictionunder the first mode of misappropriation would still be in order. Malversationis committed either intentionally or by negligence. The dolo orthe culpa present in the offense is only a modality in the perpetration of thefelony. Even if the mode charged differs from the mode proved, the sameoffense of malversation is involved and conviction thereof is proper. x x x.
http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn6http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn6http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn6http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn7http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn7http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn7http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn8http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn8http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn8http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn9http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn9http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn9http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn9http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn8http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn7http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/103501_03.htm#_edn6


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18 | P a g e

In Samson vs. Court of Appeals, et. al., we held that an accused chargedwith willful or intentional falsification can validly be convicted of falsificationthrough negligence, thus:

While a criminal negligent act is not a simple modality of a willful crime, aswe held in Quizon vs. Justice of the Peace of Bacolor, G.R. No. L -6641, July

28, 1995, but a distinct crime in our Penal Code, designated as a quasioffense in our Penal Code, it may however be said that a conviction for theformer can be had under an information exclusively charging thecommission of a willful offense, upon the theory that the greater includes thelesser offense. This is the situation that obtains in the presentcase. Appellant was charged with willful falsification but from the evidencesubmitted by the parties, the Court of Appeals found that in effecting thefalsification which made possible the cashing of the checks in question,appellant did not act with criminal intent but merely failed to take proper andadequate means to assure himself of the identity of the real claimants as anordinary prudent man would do. In other words, the information alleges actswhich charge willful falsification but which turned out to be not willful butnegligent. This is a case covered by the rule when there is a variance

between the allegation and proof, and is similar to some of the casesdecided by this Tribunal.

x x x

Moreover, Section 5, Rule 116, of the Rules of Court does not require thatall the essential elements of the offense charged in the information beproved, it being sufficient that some of said essential elements or ingredientsthereof be established to constitute the crime proved. x x x.

The fact that the information does not allege that the falsification wascommitted with imprudence is of no moment for here this deficiency appearssupplied by the evidence submitted by appellant himself and theresult has proven beneficial to him. Certainly, having alleged that thefalsification has been willful, it would be incongruous to allege at the sametime that it was committed with imprudence for a charge of criminal intent isincompatible with the concept of negligence.

Subsequently, we ruled in People vs. Consigna, et. al., that the aforestatedrationale and arguments also apply to the felony of malversation, that is, thatan accused charged with willful malversation, in an information containingallegations similar to those involved in the present case, can be validlyconvicted of the same offense of malversation through negligence where theevidence sustains the latter mode of perpetrating the offense.

Going now to the defense of good faith, it is settled that this is a validdefense in a prosecution for malversation for it would negate criminal intenton the part of the accused. Thus, in the two (2) vintage, but significantmalversation cases of US v. Catolico

[10]and US v. Elvia,

[11]the Court

stressed that:

To constitute a crime, the act must, except in certain crimes made such bystatute, be accompanied by a criminal intent, or by such negligence orindifference to duty or to consequences as, in law, is equivalent to criminalintent. The maxim is actus non facit reum, nisi mens sit rea- a crime is notcommitted if the mind of the person performing the act complained of isinnocent.

The rule was reiterated in People v. Pacana,[12]

although this caseinvolved falsification of public documents and estafa:

Ordinarily, evil intent must unite with an unlawful act for there to be acrime. Actus non facit reum, nisi mens sit rea. There can be no crime whenthe criminal mind is wanting.

American jurisprudence echoes the same principle. It adheres to theview that criminal intent in embezzlement is not based on technical mistakesas to the legal effect of a transaction honestly entered into, and there can beno embezzlement if the mind of the person doing the act is innocent or ifthere is no wrongful purpose.

[13]The accused may thus always introduce

evidence to show he acted in good faith and that he had no intention toconvert.

[14]And this, to our mind, Tabuena and Peralta had meritoriously

shown.

In so far as Tabuena is concerned, with the due presentation inevidence of the MARCOS Memorandum, we are swayed to give credit to hisclaim of having caused the disbu

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4th Set CRIM