Crim Pro 5th Batch

Republic of the PhilippinesSUPREME COURT Manila SECOND DIVISION G.R. No. 186001 October 2, 2009 ANTONIO CABADOR, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION ABAD, J.: Before the Court is a petition for review on certiorari, assailing the Court of Appeals’ (CA) Decision of August 4, 20081 and Resolution of October 28, 20082 in CA-G.R. SP 100431 that affirmed the August 31, 2006 Order3 of the Regional Trial Court (RTC) of Quezon City. The facts are not disputed. On June 23, 2000 the public prosecutor accused petitioner Antonio Cabador before the RTC of Quezon City in Criminal Case Q-00-93291 of murdering, in conspiracy with others, Atty. Jun N. Valerio.4 On February 13, 2006, after presenting only five witnesses over five years of intermittent trial, the RTC declared at an end the prosecution’s presentation of evidence and required the prosecution to make a written or formal offer of its documentary evidence within 15 days from notice.5 But the public prosecutor asked for three extensions of time, the last of which was to end on July 28, 2006. Still, the prosecution did not make the required written offer. On August 1, 2006 petitioner Cabador filed a motion to dismiss the case,6 complaining of a turtle-paced proceeding in the case since his arrest and detention in 2001 and invoking his right to a speedy trial. Further, he claimed that in the circumstances, the trial court could not consider any evidence against him that had not been formally offered. He also pointed out that the prosecution witnesses did not have knowledge of his alleged part in the crime charged. Unknown to petitioner Cabador, however, four days earlier or on July 28, 2006 the prosecution asked the RTC for another extension of the period for its formal offer, which offer it eventually made on August 1, 2006, the day Cabador filed his motion to dismiss.7 On August 31, 2006 the RTC issued an Order treating petitioner Cabador’s August 1, 2006 motion to dismiss as a demurrer to evidence. And, since he filed his motion without leave of court, the RTC declared him to have waived his right to present evidence in his defense. The trial court deemed the case submitted for decision insofar as he was concerned. Cabador filed a motion for reconsideration of this Order but the RTC denied it on February 19, 2007.8 Cabador questioned the RTC’s actions before the CA but on August 4, 2008 the latter denied his petition and affirmed the lower court’s actions.9 With the CA’s denial of his motion for reconsideration, on October 28, 2008 petitioner came to this Court via a petition for review on certiorari. The issue in this case is whether or not petitioner Cabador’s motion to dismiss before the trial court was in fact a demurrer to evidence filed without leave of court, with the result that he effectively waived his right to present evidence in his defense and submitted the case for decision insofar as he was concerned. The trial proper in a criminal case usually has two stages: first, the prosecution’s presentation of evidence against the accused and, second, the accused’s presentation of evidence in his defense. If, after the prosecution has presented its evidence, the same appears insufficient to support a conviction, the trial court may at its own initiative or on motion of the accused dispense with the second stage and dismiss the criminal action.10 There is no point for the trial court to hear the evidence of the accused in such a case since the prosecution bears the burden of proving his guilt beyond reasonable doubt. The order of dismissal amounts to an acquittal. But because some have in the past used the demurrer in order to delay the proceedings in the case, the remedy now carries a caveat. When the accused files a demurrer without leave of court, he shall be deemed to have waived the right to present evidence and the case shall be considered submitted for judgment.11 On occasions, this presents a problem such as when, like the situation in this case, the accused files a motion to dismiss that, to the RTC, had the appearance of a demurrer to evidence. Cabador insists that it is not one but the CA, like the lower court, ruled that it is. This Court held in Enojas, Jr. v. Commission on Elections12 that, to determine whether the pleading filed is a demurer to evidence or a motion to dismiss, the Court must consider (1) the allegations in it made in good faith; (2) the stage of the proceeding at which it is filed; and (3) the primary objective of the party filing it. Here, the pertinent portions of petitioner Cabador’s motion to dismiss read as follows: 1 2. On November 9, 2001, the accused was arrested and subsequently brought to the Quezon City jail through a commitment order dated November 21, 2001 where he had been detained during the course of this case. 3. The accused was arraigned on January 8, 2002 and trial began soon after. 4. UP-OLA entered its appearance as counsel for the accused on January 20, 2005. 5. On February 10, 2006, the Honorable Court terminated the presentation of evidence for the prosecution considering that the case has been going on for 5 years already and during that period the prosecution has only presented 5 witnesses. Moreover, xxx there had been numerous postponements due to failure of the prosecution to ensure the presence of its witnesses. 6. In an order dated March 31, 2006, the Honorable court required the public prosecutor to submit its formal offer of evidence within fifteen (15) days from receipt of such order. 7. On April 17, 2006, the public prosecutor was again absent so the presentation of evidence for the accused was reset to June 6, 2006. 8. During the same hearing, the Prosecution was again granted an additional fifteen (15) days within which to file their formal offer of evidence. 9. On June 6, 2006, the public prosecutor again failed to appear and to file their formal offer of evidence. In an order, the Honorable Court again extended to the prosecution an additional fifteen (15) days from receipt of the order within which to file their formal offer of evidence. 10. On June 28, 2006, the Honorable Court issued an order granting the prosecution a thirty-day extension, or until July 28, 2006 within which to file their formal offer of evidence since the public prosecutor was on leave. 11. Upon the expiration of the extension granted by the Honorable Court, the prosecution failed to file their formal offer of evidence. 10. (Sic) Despite three (3) extensions, the prosecution failed to file formal offer of evidence. 11. (Sic) Sec. 34, Rule 132 of the Rules of Court provides that "the court shall consider no evidence which has not been formally offered." A formal offer is necessary, since judges are required to base their findings of fact and their judgment solely and strictly upon the evidence offered by the parties at the trial (Ong vs. CA, GR No. 117103). Hence, without any formal offer of evidence, this Honorable Court has no evidence to consider. 12. The charge against the accused has no leg to stand on. The witnesses that had been presented by the prosecution testified mainly on the occurrences on the night of the incident and had no knowledge of any connection with or any participation by the accused in the incident. 13. The hearings of the case have been delayed since 2001 through no fault of the defense to the prejudice of the rights of the accused to a speedy trial, mandated by no less than Art. III, Sec. 16 of the Constitution. 14. Since UP-OLA had entered its appearance in 2005, the case had been reset for twelve (12) times, most of which are due to the fault or absence of the prosecution. For the five year duration of the case, the prosecution still has not presented any evidence to prove the guilt of the accused beyond reasonable doubt. Meanwhile, the accused has been unduly stripped of this liberty for more than five (5) years upon an unsubstantiated charge. 15. The accused was injured and debilitated in the course of his arrest which resulted in the amputation of his left leg. His movement is severely hampered and his living conditions are less adequate. To subject him to further delays when there is no substance to the charge against him would tantamount to injustice.13 It can be seen from the above that petitioner Cabador took pains to point out in paragraphs 2, 3, 5, 6, 7, 8, 9, 10, 11, "10 (sic)," 13, 14, and 15 above how trial in the case had painfully dragged on for years. The gaps between proceedings were long, with hearings often postponed because of the prosecutor’s absence. This was further compounded, Cabador said, by the prosecution’s repeated motions for extension of time to file its formal offer and its failure to file it within such time. Cabador then invoked in paragraph 13 above his right to speedy trial. But the RTC and the CA simply chose to ignore these extensive averments and altogether treated Cabador’s motion as a demurrer to evidence because of a few observations he made in paragraphs "11 (sic)" and 12 regarding the inadequacy of the evidence against him. In criminal cases, a motion to dismiss may be filed on the ground of denial of the accused’s right to speedy trial.14 This denial is characterized by unreasonable, vexatious, and oppressive delays without fault of the accused, or by unjustified postponements that unreasonably prolonged the trial.15 This was the main thrust of Cabador’s motion to dismiss and he had the right to bring this up for a ruling by the trial court. Cabador of course dropped a few lines in his motion to dismiss in paragraphs "11 (sic)" and 12, saying that the trial court "has no evidence to consider," "the charge has no leg to stand on," and that "the witnesses x x x had no 2 knowledge of any connection with or any participation by the accused in the incident." But these were mere conclusions, highlighting what five years of trial had accomplished. The fact is that Cabador did not even bother to do what is so fundamental in any demurrer. He did not state what evidence the prosecution had presented against him to show in what respects such evidence failed to meet the elements of the crime charged. His so-called "demurrer" did not touch on any particular testimony of even one witness. He cited no documentary exhibit. Indeed, he could not because, he did not know that the prosecution finally made its formal offer of exhibits on the same date he filed his motion to dismiss.16 To say that Cabador filed a demurrer to evidence is equivalent to the proverbial blind man, touching the side of an elephant, and exclaiming that he had touched a wall. Besides, a demurrer to evidence assumes that the prosecution has already rested its case. Section 23, Rule 119 of the Revised Rules of Criminal Procedure, reads: Demurrer to evidence. – After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to the evidence filed by the accused with or without leave of court. (Emphasis supplied)1awphi1 Here, after the prosecution filed its formal offer of exhibits on August 1, 2006, the same day Cabador filed his motion to dismiss, the trial court still needed to give him an opportunity to object to the admission of those exhibits. It also needed to rule on the formal offer. And only after such a ruling could the prosecution be deemed to have rested its case. Since Cabador filed his motion to dismiss before he could object to the prosecution’s formal offer, before the trial court could act on the offer, and before the prosecution could rest its case, it could not be said that he had intended his motion to dismiss to serve as a demurrer to evidence. In sum, tested against the criteria laid down in Enojas, the Court finds that petitioner Cabador filed a motion to dismiss on the ground of violation of his right to speedy trial, not a demurrer to evidence. He cannot be declared to have waived his right to present evidence in his defense. On a final note, a demurrer to evidence shortens the proceedings in criminal cases. Caution must, however, be exercised17 in view of its pernicious consequence on the right of the accused to present evidence in his defense, the seriousness of the crime charged, and the gravity of the penalty involved. WHEREFORE, the petition is GRANTED, the August 4, 2008 Decision and the October 28, 2008 Resolution of the Court of Appeals in CA-G.R. SP 100431 are REVERSED and SET ASIDE, and the August 31, 2006 Order of the Regional Trial Court of Quezon City, Branch 81 is NULLIFIED. The latter court is DIRECTED to resolve petitioner Antonio Cabador’s motion to dismiss EN BANC [G.R. Nos. 115439-41. July 16, 1997] PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE SANDIGANBAYAN, MANSUETO V. HONRADA, CEFERINO S. PAREDES, JR. and GENEROSO S. SANSAET, respondents. DECISION REGALADO, J.: Through the special civil action for certiorari at bar, petitioner seeks the annulment of the resolution of respondent Sandiganbayan, promulgated on December 22, 1993, which denied petitioners motion for the discharge of respondent Generoso S. Sansaet to be utilized as a state witness, and its resolution of March 7, 1994 denying the motion for reconsideration of its preceding disposition.[1] The records show that during the dates material to this case, respondent Honrada was the Clerk of Court and Acting Stenographer of the First Municipal Circuit Trial Court, San Francisco-Bunawan-Rosario in Agusan del Sur. Respondent Paredes was successively the Provincial Attorney of Agusan del Sur, then Governor of the same province, and is at present a Congressman. Respondent Sansaet was a practicing attorney who served as counsel for Paredes in several instances pertinent to the criminal charges involved in the present recourse. The same records also represent that sometime in 1976, respondent Paredes applied for a free patent over Lot No. 3097-A, Pls-67 of the Rosario Public Land Subdivision Survey. His application was approved and, pursuant to a free patent granted to him, an original certificate of title was issued in his favor for that lot which is situated in the poblacion of San Francisco, Agusan del Sur. However, in 1985, the Director of Lands filed an action[2] for the cancellation of respondent Paredes patent and certificate of title since the land had been designated and reserved as a school site in the aforementioned subdivision survey. The trial court rendered judgment[3] nullifying said patent and title after finding that respondent Paredes had obtained the same through fraudulent misrepresentations in his application. Pertinently, respondent Sansaet served as counsel of Paredes in that civil case.[4] Consequent to the foregoing judgment of the trial court, upon the subsequent complaint of the Sangguniang Bayan and the preliminary investigation conducted thereon, an information for perjury[5] was filed against respondent Paredes in the Municipal Circuit Trial Court.[6] On November 27, 1985, the 3 Provincial Fiscal was, however, directed by the Deputy Minister of Justice to move for the dismissal of the case on the ground inter alia of prescription, hence the proceedings were terminated.[7] In this criminal case, respondent Paredes was likewise represented by respondent Sansaet as counsel. Nonetheless, respondent* Paredes was thereafter haled before the Tanodbayan for preliminary investigation on the charge that, by using his former position as Provincial Attorney to influence and induce the Bureau of Lands officials to favorably act on his application for free patent, he had violated Section 3(a) of Republic Act No. 3019, as amended. For the third time, respondent Sansaet was Paredes counsel of record therein. On August 29, 1988, the Tanodbayan, issued a resolution[8] recommending the criminal prosecution of respondent Paredes. Atty. Sansaet, as counsel for his aforenamed co-respondent, moved for reconsideration and, because of its legal significance in this case, we quote some of his allegations in that motion: x x x respondent had been charged already by the complainants before the Municipal Circuit Court of San Francisco, Agusan del Sur, went to jail on detention in 1984 under the same set of facts and the same evidence x x x but said case after arraignment, was ordered dismissed by the court upon recommendation of the Department of Justice. Copy of the dismissal order, certificate of arraignment and the recommendation of the Department of Justice are hereto attached for ready reference; thus the filing of this case will be a case of double jeopardy for respondent herein x x x.[9] (Italics supplied.) A criminal case was subsequently filed with the Sandiganbayan[10] charging respondent Paredes with a violation of Section 3(a) of Republic Act No. 3019, as amended. However, a motion to quash filed by the defense was later granted in respondent courts resolution of August 1, 1991[11] and the case was dismissed on the ground of prescription. On January 23, 1990, one Teofilo Gelacio, a taxpayer who had initiated the perjury and graft charges against respondent Paredes, sent a letter to the Ombudsman seeking the investigation of the three respondents herein for falsification of public documents.[12] He claimed that respondent Honrada, in conspiracy with his herein co-respondents, simulated and certified as true copies certain documents purporting to be a notice of arraignment, dated July 1, 1985, and transcripts of stenographic notes supposedly taken during the arraignment of Paredes on the perjury charge.[13] These falsified documents were annexed to respondent Paredes motion for reconsideration of the Tanodbayan resolution for the filing of a graft charge against him, in order to support his contention that the same would constitute double jeopardy. In support of his claim, Gelacio attached to his letter a certification that no notice of arraignment was ever received by the Office of the Provincial Fiscal of Agusan del Sur in connection with that perjury case; and a certification of Presiding Judge Ciriaco Ario that said perjury case in his court did not reach the arraignment stage since action thereon was suspended pending the review of the case by the Department of Justice.[14] Respondents filed their respective counter-affidavits, but Sansaet subsequently discarded and repudiated the submissions he had made in his counter-affidavit. In a so-called Affidavit of Explanations and Rectifications, [15] respondent Sansaet revealed that Paredes contrived to have the graft case under preliminary investigation dismissed on the ground of double jeopardy by making it that the perjury case had been dismissed by the trial court after he had been arraigned therein. For that purpose, the documents which were later filed by respondent Sansaet in the preliminary investigation were prepared and falsified by his co-respondents in this case in the house of respondent Paredes. To evade responsibility for his own participation in the scheme, he claimed that he did so upon the instigation and inducement of respondent Paredes. This was intended to pave the way for his discharge as a government witness in the consolidated cases, as in fact a motion therefor was filed by the prosecution pursuant to their agreement. Withal, in a resolution[16] dated February 24, 1992, the Ombudsman approved the filing of falsification charges against all the herein private respondents. The proposal for the discharge of respondent Sansaet as a state witness was rejected by the Ombudsman on this evaluative legal position: x x x Taking his explanation, it is difficult to believe that a lawyer of his stature, in the absence of deliberate intent to conspire, would be unwittingly induced by another to commit a crime. As counsel for the accused in those criminal cases, Atty. Sansaet had control over the case theory and the evidence which the defense was going to present. Moreover, the testimony or confession of Atty. Sansaet falls under the mantle of privileged communication between the lawyer and his client which may be objected to, if presented in the trial. The Ombudsman refused to reconsider that resolution[17] and, ostensibly to forestall any further controversy, he decided to file separate informations for falsification of public documents against each of the herein respondents. Thus, three criminal cases,[18] each of which named one of the three private respondents here as the accused therein, were filed in the graft court. However, the same were consolidated for joint trial in the Second Division of the Sandiganbayan. As stated at the outset, a motion was filed by the People on July 27, 1993 for the discharge of respondent Sansaet as a state witness. It was submitted that all the requisites therefor, as provided in Section 9, Rule 119 of the Rules of Court, were satisfied insofar as respondent Sansaet was concerned. The basic postulate was that, except for the eyewitness testimony of respondent Sansaet, there was no other direct evidence to prove the confabulated falsification of documents by respondents Honrada and Paredes. 4 Unfortunately for the prosecution, respondent Sandiganbayan, hewing to the theory of the attorney-client privilege adverted to by the Ombudsman and invoked by the two other private respondents in their opposition to the prosecutions motion, resolved to deny the desired discharge on this ratiocination: From the evidence adduced, the opposition was able to establish that client and lawyer relationship existed between Atty. Sansaet and Ceferino Paredes, Jr., before, during and after the period alleged in the information. In view of such relationship, the facts surrounding the case, and other confidential matter must have been disclosed by accused Paredes, as client, to accused Sansaet, as his lawyer in his professional capacity. Therefore, the testimony of Atty. Sansaet on the facts surrounding the offense charged in the information is privileged.[19] Reconsideration of said resolution having been likewise denied,[20] the controversy was elevated to this Court by the prosecution in an original action for the issuance of the extraordinary writ of certiorari against respondent Sandiganbayan. The principal issues on which the resolution of the petition at bar actually turns are therefore (1) whether or not the projected testimony of respondent Sansaet, as proposed state witness, is barred by the attorney-client privilege; and (2) whether or not, as a consequence thereof, he is eligible for discharge to testify as a particeps criminis. I As already stated, respondent Sandiganbayan ruled that due to the lawyerclient relationship which existed between herein respondents Paredes and Sansaet during the relevant periods, the facts surrounding the case and other confidential matters must have been disclosed by respondent Paredes, as client, to respondent Sansaet, as his lawyer. Accordingly, it found no reason to discuss it further since Atty. Sansaet cannot be presented as a witness against accused Ceferino S. Paredes, Jr. without the latters consent. [21] The Court is of a contrary persuasion. The attorney-client privilege cannot apply in these cases, as the facts thereof and the actuations of both respondents therein constitute an exception to the rule. For a clearer understanding of that evidential rule, we will first sweep aside some distracting mental cobwebs in these cases. 1. It may correctly be assumed that there was a confidential communication made by Paredes to Sansaet in connection with Criminal Cases Nos. 1779193 for falsification before respondent court, and this may reasonably be expected since Paredes was the accused and Sansaet his counsel therein. Indeed, the fact that Sansaet was called to witness the preparation of the falsified documents by Paredes and Honrada was as eloquent a communication, if not more, than verbal statements being made to him by Paredes as to the fact and purpose of such falsification. It is significant that the evidentiary rule on this point has always referred to any communication, without distinction or qualification.[22] In the American jurisdiction from which our present evidential rule was taken, there is no particular mode by which a confidential communication shall be made by a client to his attorney. The privilege is not confined to verbal or written communications made by the client to his attorney but extends as well to information communicated by the client to the attorney by other means. [23] Nor can it be pretended that during the entire process, considering their past and existing relations as counsel and client and, further, in view of the purpose for which such falsified documents were prepared, no word at all passed between Paredes and Sansaet on the subject matter of that criminal act. The clincher for this conclusion is the undisputed fact that said documents were thereafter filed by Sansaet in behalf of Paredes as annexes to the motion for reconsideration in the preliminary investigation of the graft case before the Tanodbayan.[24] Also, the acts and words of the parties during the period when the documents were being falsified were necessarily confidential since Paredes would not have invited Sansaet to his house and allowed him to witness the same except under conditions of secrecy and confidence. 2. It is postulated that despite such complicity of Sansaet at the instance of Paredes in the criminal act for which the latter stands charged, a distinction must be made between confidential communications relating to past crimes already committed, and future crimes intended to be committed, by the client. Corollarily, it is admitted that the announced intention of a client to commit a crime is not included within the confidences which his attorney is bound to respect. Respondent court appears, however, to believe that in the instant case it is dealing with a past crime, and that respondent Sansaet is set to testify on alleged criminal acts of respondents Paredes and Honrada that have already been committed and consummated. The Court reprobates the last assumption which is flawed by a somewhat inaccurate basis. It is true that by now, insofar as the falsifications to be testified to in respondent court are concerned, those crimes were necessarily committed in the past. But for the application of the attorney-client privilege, however, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. In other words, if the client seeks his lawyers advice with respect to a crime that the former has theretofore committed, he is given the protection of a virtual confessional seal which the attorney-client privilege declares cannot be broken by the attorney without the clients consent. The same privileged confidentiality, however, does not attach with regard to a crime which a client intends to commit thereafter or in the future and for purposes of which he seeks the lawyers advice. Statements and communications regarding the commission of a crime already committed, made by a party who committed it, to an attorney, 5 consulted as such, are privileged communications. Contrarily, the unbroken stream of judicial dicta is to the effect that communications between attorney and client having to do with the clients contemplated criminal acts, or in aid or furtherance thereof, are not covered by the cloak of privileges ordinarily existing in reference to communications between attorney and client.[25] (Emphases supplied.) 3. In the present cases, the testimony sought to be elicited from Sansaet as state witness are the communications made to him by physical acts and/or accompanying words of Paredes at the time he and Honrada, either with the active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents which were later filed in the Tanodbayan by Sansaet and culminated in the criminal charges now pending in respondent Sandiganbayan. Clearly, therefore, the confidential communications thus made by Paredes to Sansaet were for purposes of and in reference to the crime of falsification which had not yet been committed in the past by Paredes but which he, in confederacy with his present corespondents, later committed. Having been made for purposes of a future offense, those communications are outside the pale of the attorney-client privilege. 4. Furthermore, Sansaet was himself a conspirator in the commission of that crime of falsification which he, Paredes and Honrada concocted and foisted upon the authorities. It is well settled that in order that a communication between a lawyer and his client may be privileged, it must be for a lawful purpose or in furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege from attaching.[26] In fact, it has also been pointed out to the Court that the prosecution of the honorable relation of attorney and client will not be permitted under the guise of privilege, and every communication made to an attorney by a client for a criminal purpose is a conspiracy or attempt at a conspiracy which is not only lawful to divulge, but which the attorney under certain circumstances may be bound to disclose at once in the interest of justice.[27] It is evident, therefore, that it was error for respondent Sandiganbayan to insist that such unlawful communications intended for an illegal purpose contrived by conspirators are nonetheless covered by the so-called mantle of privilege. To prevent a conniving counsel from revealing the genesis of a crime which was later committed pursuant to a conspiracy, because of the objection thereto of his conspiring client, would be one of the worst travesties in the rules of evidence and practice in the noble profession of law. II On the foregoing premises, we now proceed to the consequential inquiry as to whether respondent Sansaet qualifies, as a particeps criminis, for discharge from the criminal prosecution in order to testify for the State. Parenthetically, respondent court, having arrived at a contrary conclusion on the preceding issue, did not pass upon this second aspect and the relief sought by the prosecution which are now submitted for our resolution in the petition at bar. We shall, however, first dispose likewise of some ancillary questions requiring preludial clarification. 1. The fact that respondent Sandiganbayan did not fully pass upon the query as to whether or not respondent Sansaet was qualified to be a state witness need not prevent this Court from resolving that issue as prayed for by petitioner. Where the determinative facts and evidence have been submitted to this Court such that it is in a position to finally resolve the dispute, it will be in the pursuance of the ends of justice and the expeditious administration thereof to resolve the case on the merits, instead of remanding it to the trial court.[28] 2. A reservation is raised over the fact that the three private respondents here stand charged in three separate informations. It will be recalled that in its resolution of February 24, 1992, the Ombudsman recommended the filing of criminal charges for falsification of public documents against all the respondents herein. That resolution was affirmed but, reportedly in order to obviate further controversy, one information was filed against each of the three respondents here, resulting in three informations for the same acts of falsification. This technicality was, however, sufficiently explained away during the deliberations in this case by the following discussion thereof by Mr. Justice Davide, to wit: Assuming no substantive impediment exists to block Sansaets discharge as state witness, he can, nevertheless, be discharged even if indicted under a separate information. I suppose the three cases were consolidated for joint trial since they were all raffled to the Second Division of the Sandiganbayan. Section 2, Rule XV of the Revised Rules of the Sandiganbayan allows consolidation in only one Division of cases arising from the same incident or series of incidents, or involving common questions of law and fact. Accordingly, for all legal intents and purposes, Sansaet stood as co-accused and he could be discharged as state witness. It is of no moment that he was charged separately from his co-accused. While Section 9 of Rule 119 of the 1985 Rules of Criminal Procedure uses the word jointly, which was absent in the old provision, the consolidated and joint trial has the effect of making the three accused co-accused or joint defendants, especially considering that they are charged for the same offense. In criminal law, persons indicted for the same offense and tried together are called joint defendants. As likewise submitted therefor by Mr. Justice Francisco along the same vein, there having been a consolidation of the three cases, the several actions lost their separate identities and became a single action in which a single judgment is rendered, the same as if the different causes of action involved had originally been joined in a single action.[29] Indeed, the former provision of the Rules referring to the situation (w)hen two or more persons are charged with the commission of a certain offense was too broad and indefinite; hence the word joint was added to indicate the identity of the charge and the fact that the accused are all together charged 6 therewith substantially in the same manner in point of commission and time. The word joint means common to two or more, as involving the united activity of two or more, or done or produced by two or more working together, or shared by or affecting two or more.[30] Had it been intended that all the accused should always be indicted in one and the same information, the Rules could have said so with facility, but it did not so require in consideration of the circumstances obtaining in the present case and the problems that may arise from amending the information. After all, the purpose of the Rule can be achieved by consolidation of the cases as an alternative mode. 2. We have earlier held that Sansaet was a conspirator in the crime of falsification, and the rule is that since in a conspiracy the act of one is the act of all, the same penalty shall be imposed on all members of the conspiracy. Now, one of the requirements for a state witness is that he does not appear to be the most guilty.[31] not that he must be the least guilty[32] as is so often erroneously framed or submitted. The query would then be whether an accused who was held guilty by reason of membership in a conspiracy is eligible to be a state witness. To be sure, in People vs. Ramirez, et al.[33] we find this obiter: It appears that Apolonio Bagispas was the real mastermind. It is believable that he persuaded the others to rob Paterno, not to kill him for a promised fee. Although he did not actually commit any of the stabbings, it was a mistake to discharge Bagispas as a state witness. All the perpetrators of the offense, including him, were bound in a conspiracy that made them equally guilty. However, prior thereto, in People vs. Roxas, et al.,[34] two conspirators charged with five others in three separate informations for multiple murder were discharged and used as state witnesses against their confederates. Subsequent thereto, in Lugtu, et al. vs. Court of Appeals, et al.,[35] one of the co-conspirators was discharged from the information charging him and two others with the crime of estafa. The trial court found that he was not the most guilty as, being a poor and ignorant man, he was easily convinced by his two co-accused to open the account with the bank and which led to the commission of the crime. On appeal, this Court held that the finding of respondent appellate court that Lugtu was just as guilty as his co-accused, and should not be discharged as he did not appear to be not the most guilty, is untenable. In other words, the Court took into account the gravity or nature of the acts committed by the accused to be discharged compared to those of his co-accused, and not merely the fact that in law the same or equal penalty is imposable on all of them. Eventually, what was just somehow assumed but not explicitly articulated found expression in People vs. Ocimar, et al.,[36] which we quote in extenso: Ocimar contends that in the case at bar Bermudez does not satisfy the conditions for the discharge of a co-accused to become a state witness. He argues that no accused in a conspiracy can lawfully be discharged and utilized as a state witness, for not one of them could satisfy the requisite of appearing not to be the most guilty. Appellant asserts that since accused Bermudez was part of the conspiracy, he is equally guilty as the others. We do not agree. First, there is absolute necessity for the testimony of Bermudez. For, despite the presentation of four (4) other witnesses, none of them could positively identify the accused except Bermudez who was one of those who pulled the highway heist which resulted not only in the loss of cash, jewelry and other valuables, but even the life of Capt. Caeba, Jr. It was in fact the testimony of Bermudez that clinched the case for the prosecution. Second, without his testimony, no other direct evidence was available for the prosecution to prove the elements of the crime. Third, his testimony could be, as indeed it was, substantially corroborated in its material points as indicated by the trial court in its well-reasoned decision. Fourth, he does not appear to be the most guilty. As the evidence reveals, he was only invited to a drinking party without having any prior knowledge of the plot to stage a highway robbery. But even assuming that he later became part of the conspiracy, he does not appear to be the most guilty. What the law prohibits is that the most guilty will be set free while his co-accused who are less guilty will be sent to jail. And by most guilty we mean the highest degree of culpability in terms of participation in the commission of the offense and not necessarily the severity of the penalty imposed. While all the accused may be given the same penalty by reason of conspiracy, yet one may be considered least guilty if We take into account his degree of participation in the perpetration of the offense. Fifth, there is no evidence that he has at any time been convicted of any offense involving moral turpitude. xxx Thus, We agree with the observations of the Solicitor General that the rule on the discharge of an accused to be utilized as state witness clearly looks at his actual and individual participation in the commission of the crime, which may or may not have been perpetrated in conspiracy with the other accused. Since Bermudez was not individually responsible for the killing committed on the occasion of the robbery except by reason of conspiracy, it cannot be said then that Bermudez appears to be the most guilty. Hence, his discharge to be a witness for the government is clearly warranted. (Italics ours.) The rule of equality in the penalty to be imposed upon conspirators found guilty of a criminal offense is based on the concurrence of criminal intent in their minds and translated into concerted physical action although of varying acts or degrees of depravity. Since the Revised Penal Code is based on the classical school of thought, it is the identity of the mens rea which is considered the predominant consideration and, therefore, warrants the imposition of the same penalty on the consequential theory that the act of one is thereby the act of all. 7 Also, this is an affair of substantive law which should not be equated with the procedural rule on the discharge of particeps criminis. This adjective device is based on other considerations, such as the need for giving immunity to one of them in order that not all shall escape, and the judicial experience that the candid admission of an accused regarding his participation is a guaranty that he will testify truthfully. For those reasons, the Rules provide for certain qualifying criteria which, again, are based on judicial experience distilled into a judgmental policy. III The Court is reasonably convinced, and so holds, that the other requisites for the discharge of respondent Sansaet as a state witness are present and should have been favorably appreciated by the Sandiganbayan. Respondent Sansaet is the only cooperative eyewitness to the actual commission of the falsification charged in the criminal cases pending before respondent court, and the prosecution is faced with the formidable task of establishing the guilt of the two other co-respondents who steadfastly deny the charge and stoutly protest their innocence. There is thus no other direct evidence available for the prosecution of the case, hence there is absolute necessity for the testimony of Sansaet whose discharge is sought precisely for that purpose. Said respondent has indicated his conformity thereto and has, for the purposes required by the Rules, detailed the substance of his projected testimony in his Affidavit of Explanations and Rectifications. His testimony can be substantially corroborated on its material points by reputable witnesses, identified in the basic petition with a digest of their prospective testimonies, as follows: Judge Ciriaco C. Ario, Municipal Circuit Trial Court in San Francisco, Agusan del Sur; Provincial Prosecutor and Deputized Ombudsman Prosecutor Claudio A. Nistal; Teofilo Gelacio, private complainant who initiated the criminal cases through his letter-complaint; Alberto Juvilan of the Sangguniang Bayan of San Fernando, Agusan del Sur, who participated in the resolution asking their Provincial Governor to file the appropriate case against respondent Paredes, and Francisco Macalit, who obtained the certification of non-arraignment from Judge Ario. On the final requirement of the Rules, it does not appear that respondent Sansaet has at any time been convicted of any offense involving moral turpitude. Thus, with the confluence of all the requirements for the discharge of this respondent, both the Special Prosecutor and the Solicitor General strongly urge and propose that he be allowed to testify as a state witness. This Court is not unaware of the doctrinal rule that, on this procedural aspect, the prosecution may propose but it is for the trial court, in the exercise of its sound discretion, to determine the merits of the proposal and make the corresponding disposition. It must be emphasized, however, that such discretion should have been exercised, and the disposition taken on a holistic view of all the facts and issues herein discussed, and not merely on the sole issue of the applicability of the attorney-client privilege. This change of heart and direction respondent Sandiganbayan eventually assumed, after the retirement of two members of its Second Division [37]and the reconstitution thereof. In an inversely anticlimactic Manifestation and Comment [38] dated June 14, 1995, as required by this Court in its resolution on December 5, 1994, the chairman and new members thereof [39] declared: 4) That the questioned Resolutions of December 22, 1993 and March 7, 1994 upon which the Petition for Certiorari filed by the prosecution are based, was penned by Associate Justice Narciso T. Atienza and concurred in by the undersigned and Associate Justice Augusto M. Amores; 5) That while the legal issues involved had been already discussed and passed upon by the Second Division in the aforesaid Resolution, however, after going over the arguments submitted by the Solicitor-General and reassessing Our position on the matter, We respectfully beg leave of the Honorable Supreme Court to manifest that We are amenable to setting aside the questioned Resolutions and to grant the prosecutions motion to discharge accused Generoso Sansaet as state witness, upon authority of the Honorable Supreme Court for the issuance of the proper Resolution to that effect within fifteen (15) days from notice thereof. WHEREFORE, the writ of certiorari prayed for is hereby granted SETTING ASIDE the impugned resolutions and ORDERING that the present reliefs sought in these cases by petitioner be allowed and given due course by respondent Sandiganbayan. SO ORDERED FIRST DIVISION RODOLFO G. VALENCIA, G.R. No. 165996 Petitioner, Present: Davide, Jr., C.J. (Chairman), - versus - Quisumbing, 8 Ynares-Santiago, Carpio, and Azcuna, JJ. THE SANDIGANBAYAN, Respondent. Promulgated: October 17, 2005 x ---------------------------------------------------------------------------------------- x DECISION 1. Mr. Rodolfo G. Valencia, had been the Governor of the Province of Oriental Mindoro, for having won in the gobernatorial race in the May 1992 local and provincial election; 2. During the 1992 election, Mr. Cresente Umbao of Pola, Oriental, Mindoro also ran for the position of councilor in the Municipality of Pola, Oriental Mindoro but he lost; 3. On October 17, 1992, Councilor Antonio Mercene, Jr. of Pola, Oriental, Mindoro died thus creating a permanent vacancy in the membership position of Sanguniang Bayan of Pola, Oriental Mindoro. YNARES-SANTIAGO, J.: This petition for certiorari under Rule 65 of the Rules of Court assails the June 14, 2004 Order[1] of respondent Sandiganbayan in Criminal Case No. 25160, which denied petitioners motion for leave to file demurrer to evidence and set the case for presentation of evidence for the prosecution; as well as its July 28, 2004 Resolution[2] denying petitioners motion for reconsideration. The undisputed facts show that on February 10, 1999, petitioner Rodolfo G. Valencia, then governor of Oriental Mindoro was charged before the Sandiganbayan with violation of Section 3(e) of Republic Act (RA) No. 3019, the Anti-graft and Corrupt Practices Act. The information filed against petitioner reads: That on or about December 1, 1992, or sometime prior or subsequent thereto in the Province of Oriental Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the Governor of the Province of Oriental Mindoro, while in the performance of his official functions, committing the offense in relation to his office, and taking advantage of his official position, acting with manifest partiality, evident bad faith or gross inexcusable negligence, did then and there wilfully, unlawfully and criminally cause undue injury to the Province of Oriental Mindoro, and at the same time give unwarranted benefits, advantage or preference to one CRESENTE UMBAO, a candidate who ran and lost in the 1992 election, by then and there appointing said Cresente Umbao as Sangguniang Bayan member of Pola, Oriental Mindoro, within the prohibitive period of one (1) year after an election, in flagrant violation of Sec. 6, Art IX B of the Constitution, to the damage and prejudice of the Province of Oriental Mindoro and to the government as a whole.[3] Upon arraignment on April 13, 1999, petitioner pleaded not guilty.[4] On March 24, 2003, the parties submitted a Joint Stipulation of Facts, to wit: 4. On December 1, 1992 then Governor Rodolfo G. Valencia of Oriental, Mindoro, appointed Cresente Umbao to the position of a councilor in the Municipal Council of Pola, Oriental Mindoro on the vacancy left by the death of Councilor Mercene. CONTENTION/ISSUES The Prosecution contends that this appointment is in violation of Sec. 3(e) of R.A. 3019 as it gives among other, unwarranted benefit to Mr. Cresente Umbao who is disqualified to be appointed within a period of one year after having lost in May 1992 local election for councilor, while the accused, then Governor Rodolfo Valencia, maintains that the appointment of Lumbao was in the performance of his duty and that it was made in good faith pursuant to Sec. 45, Chapter 2, Title 2, of the Local Government Code (R.A. 7160). The Parties reserve their rights to present documentary evidences as the need arise during the trial. WHEREFORE, premises considered, the parties respectfully prays that this stipulation of facts be well taken by the Honorable Sandiganbayan for pretrial purposes.[5] On March 26, 2003, the Sandiganbayan directed the parties to sign the Joint Stipulation of Facts, thus The Court orders both counsels and the accused to sign each and every page of the Joint Stipulation of Facts. Thereafter, let a pre-trial order be issued on the bases of the agreement of both parties as embodied in this Joint Stipulation of Facts.[6] The Joint Stipulation of Facts however remained unsigned by petitioner. Only the signature of the Special Prosecutor and petitioners counsel appear on the last page thereof. 9 On January 12, 2004, Prosecutor Danilo F. Salindong rested the case based on the Joint Stipulation of Facts and waived the presentation of testimonial or documentary evidence for the prosecution.[7] Thereafter, petitioner filed on January 19, 2004 a Motion for Leave to File Demurrer to Evidence because the prosecution failed to present, mark or offer evidence that would substantiate the charge against him. Petitioner asserted that the Joint Stipulation of Facts is inadmissible because it lacks his signature. Even if the same be admitted, the information is dismissable for failure of the prosecution to submit evidence to establish the injury caused to the government and the presence of manifest partiality, evident bad faith or gross inexcusable negligence in the appointment of Cresente Umbao, which are among the essential elements of the crime of violation of Section 3(e) of RA No. 3019.[8] The prosecution, now represented by Prosecutor Agnes B. Autencio-Daquis, filed an Opposition/Comment alleging that petitioners Motion for Leave to File Demurrer to Evidence is premature because the prosecution has yet to formally offer the Joint Stipulation of Facts.[9] On February 20, 2004, the Sandiganbayan reiterated its March 26, 2003 Resolution directing petitioner and counsels to sign the Joint Stipulation of Facts.[10] Petitioner filed a Manifestation with Motion for Reconsideration[11] claiming that his former counsel was not authorized to enter into any agreement and that he came to know of the existence of said stipulations only on January 12, 2004. On March 11, 2004, the Sandiganbayan issued a Pre-trial Order[12] embodying the Joint Stipulation of Facts. Considering petitioners refusal to acknowledge the Joint Stipulation of Facts or to sign the Pre-trial Order, the Sandiganbayan issued the assailed June 14, 2004 Order recalling the Pre-trial Order; denying the motion for leave to file demurrer; and setting the case for presentation of the prosecutions evidence, thus This afternoon is supposed to be the initial presentation of the defense evidence. Prosecutor Danilo F. Salindong, former handling prosecutor of this case, rested his case on the basis of the Pre-Trial Order issued by this Court. However, accused Rodolfo Valencia refused to sign the pre-trial order as per his motion for reconsideration, to which Prosecutor Agnes Autencio Daquis commented that since the accused refused to sign the pre-trial order, that the same be abrogated and that trial on the merits ensued. Consequently, the Pre-Trial Order issued by this Court on March 11, 2004 is hereby recalled and set aside. In view of the refusal of the accused to enter into any stipulation of facts, let this case be scheduled for trial on the merits. The presentation of prosecutions evidence is hereby scheduled on August 31 and September 1, 2004 at 2:00 oclock in the afternoon. The demurrer to evidence filed by the accused is therefore considered premature and is hereby stricken out of the records.[13] Petitioners motion for reconsideration was denied on July 28, 2004, as follows: The Motion for Reconsideration (of June 14, 2004 Order) dated June 29, 2004 filed by accused, thru counsels which met vigorous opposition from the prosecutions Comment/Opposition dated July 16, 2004 is denied for lack of merit. As clearly stated in the Order of June 14, 2004, the case for the prosecution was re-opened because of the refusal of accused to sign the pre-trial order on the basis of which the prosecution rested its case. Justice and fairness demand the re-opening of the evidence for the prosecution because of the unwarranted act of the accused in refusing to sign the pretrial order.[14] Hence, the instant petition contending that the Sandiganbayan gravely abused its discretion in issuing the assailed June 14, 2004 Order and July 28, 2004 Resolution. Meanwhile, there being no temporary restraining order nor preliminary injunction issued by this Court, the prosecution proceeded with the presentation of its evidence.[15] The issues for resolution are (1) was petitioners Motion for Leave to File Demurrer to Evidence premature? (2) may the prosecution be allowed to present evidence after it orally manifested its intention to rest its case? (3) was petitioner denied his right to speedy trial? Section 23, Rule 119 of the Rules of Court, provides: SEC. 23. Demurrer to evidence. After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court. Corollarily, Section 34, Rule 132 of the Rules of Court states: SEC. 34. Offer of evidence. The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. 10 A demurrer to evidence tests the sufficiency or insufficiency of the prosecutions evidence. As such, a demurrer to evidence or a motion for leave to file the same must be filed after the prosecution rests its case. But before an evidence may be admitted, the rules require that the same be formally offered, otherwise, it cannot be considered by the court. A prior formal offer of evidence concludes the case for the prosecution and determines the timeliness of the filing of a demurrer to evidence. As held in Aquino v. Sison,[16] the motion to dismiss for insufficiency of evidence filed by the accused after the conclusion of the cross-examination of the witness for the prosecution, is premature because the latter is still in the process of presenting evidence. The chemistry report relied upon by the court in granting the motion to dismiss was disregarded because it was not properly identified or formally offered as evidence. Verily, until such time that the prosecution closed its evidence, the defense cannot be considered to have seasonably filed a demurrer to evidence or a motion for leave to file the same. In the present case, petitioners motion for leave to file demurrer to evidence is premature because the prosecution had yet to formally rest its case. When the motion was filed on January 19, 2004, the latter had not yet marked nor formally offered the Joint Stipulation of Facts as evidence. It is inconsequential that petitioner received by mail on January 27, 2004, a motion and formal offer of evidence dated January 20, 2004 from Prosecutor Salindong,[17] because, as aptly observed by the Office of the Ombudsman, the records of the Sandiganbayan bear no such motion or formal offer of evidence filed by the prosecution. The motion and formal offer found in the records are those attached as Annex B[18] to petitioners Manifestation with Motion for Reconsideration[19] and not copies filed by the prosecution. Under Section 12, Rule 13 of the Rules of Court, the filing of a pleading or paper shall be proved by its existence in the case records. The absence of the motion to rest the case in the records of the Sandiganbayan and the failure to offer the Joint Stipulation of Facts prove that the prosecution did not formally rest or conclude the presentation of its evidence, rendering petitioners motion for leave to file demurrer to evidence, premature. At any rate, had the prosecution actually filed said motion and formally offered the evidence before the Sandiganbayan, the motion for leave to file demurrer to evidence still suffers prematurity because it was filed on January 19, 2004, or one day before the date of the motion and offer, i.e., January 20, 2004. In fact, even petitioner admitted in his motion for leave to file demurrer to evidence that the prosecution failed to mark and offer any evidence against him.[20] Anent the second issue, we find that the trial court did not abuse its discretion in granting the prosecutions request to present additional evidence. Admission of additional evidence is addressed to the sound discretion of the trial court. Considerable latitude is allowed and such discretion will not be disturbed absent a finding that the accused was denied due process of law. As early as the 1907 case of United States v. Cinco,[21] the Court has consistently upheld such prerogative of the trial court, thus ... The judges of the Courts of First Instance are judges of both fact and law, and after hearing all the evidence adduced by the attorneys, if the court is not satisfied, we see no reason why he should not be permitted to call additional witnesses for the purpose of satisfying his mind upon any questions presented during the trial of the case. Indeed, in the furtherance of justice, the court may grant the parties the opportunity to adduce additional evidence bearing upon the main issue in question.[22] Thus, in Hon. Vega, etc., et al. v. Hon. Panis, etc., et al.,[23] the Court sustained the order of the trial court allowing the prosecution to present additional evidence after it had offered its evidence and rested its case and after the defense filed a motion to dismiss. It was stressed therein that while the prosecution had rested, the trial was not yet terminated and the case was still under the control and jurisdiction of the court. Hence, in the exercise of its discretion, the trial court may receive additional evidence. We also held in People v. Januario,[24] that strict observance of the order of trial or trial procedure outlined in Rule 119 of the Rules of Court depends upon the circumstance obtaining in each case at the discretion of the trial judge. Citing United States v. Alviar,[25] the Court explained The orderly course of proceedings requires, however, that the prosecution shall go forward and should present all of its proof in the first instance; but it is competent for the judge, according to the nature of the case, to allow a party who had closed his case to introduce further evidence in rebuttal. This rule, however, depends upon the particular circumstances of each particular case and falls within the sound discretion of the judge, to be exercised or not as he may think proper. Hence, the court may allow the prosecutor, even after he has rested his case or after the defense moved for dismissal, to present involuntarily omitted evidence.[26] It must be emphasized that the primary consideration in allowing the reopening of a case is for the accused to have his day in court and the opportunity to present counter evidence. Thus 11 As a rule, the matter of reopening of a case for reception of further evidence after either prosecution or defense has rested its case is within the discretion of the trial court. However, a concession to a reopening must not prejudice the accused or deny him the opportunity to introduce counter evidence. responsibilities. He gravely abused his discretion by resting the case without adducing evidence for the State and without ensuring that petitioner had signed the Joint Stipulation of Facts before it was submitted to the Sandiganbayan. As a result, the prosecution was denied due process. In U.S. vs. Base, we held that a trial court is not in error, if it opts to reopen the proceedings of a case, even after both sides had rested and the case submitted for decision, by the calling of additional witnesses or recalling of witnesses so as to satisfy the judges mind with reference to particular facts involved in the case. A judge cannot be faulted should he require a material witness to complete his testimony, which is what happened in this case. It is but proper that the judges mind be satisfied on any and all questions presented during the trial, in order to serve the cause of justice. In light of the foregoing, the Sandiganbayan was therefore correct in allowing the State to adduce additional evidence. The State should not be prejudiced and deprived of its right to prosecute cases simply because of the ineptitude or nonchalance of the Special Prosecutor.[31] A contrary ruling would result in a void proceedings. Appellants claim that the trial courts concession to reopen the case unduly prejudiced him is not well taken. We note that appellant had every opportunity to present his evidence to support his case or to refute the prosecutions evidence point-by-point, after the prosecution had rested its case. In short, appellant was never deprived of his day in court. A day in court is the touchstone of the right to due process in criminal justice. Thus, we are unable to hold that a grave abuse of discretion was committed by the trial court when it ordered the so-called reopening in order to complete the testimony of a prosecution witness.[27] In the case at bar, petitioner cannot claim denial of due process because he will have the opportunity to contest the evidence adduced against him and to prove his defenses after the prosecution concludes the presentation of its evidence. Moreover, the order of the trial court granting the reception of additional evidence for the prosecution is not technically a reopening of the case inasmuch as the latter had yet to formally rest its case. A motion to reopen presupposes that either or both parties have formally offered and closed their evidence.[28] If the Court sanctions the admission of additional evidence after the case had been submitted for resolution but before judgment, with more reason therefore that we should sustain the introduction of additional evidence in the present case because the prosecution had not yet concluded the presentation of its evidence. The State is also entitled to due process in criminal cases, that is, a fair opportunity to prosecute and convict. The Court has always accorded this right to the prosecution, and where the right had been denied, had promptly annulled the offending court action.[29] Furthermore, the haphazard manner by which Prosecutor Salindong handled the case for the State will not pass unnoticed by the Court. It is the duty of the public prosecutor to bring the criminal proceedings for the punishment of the guilty. Concomitant with this is the duty to pursue the prosecution of a criminal action and to represent the public interest.[30] With these standards, we thus find Prosecutor Salindong remiss in the performance of his In Merciales v. Court of Appeals,[32] the Court annulled the acquittal of the accused based on the demurrer to evidence filed by the defense. It was held that the prosecutors failure to present sufficient evidence to convict the accused and the indifference displayed by the trial court in not requiring the prosecutor to present additional evidence resulted in the denial of the States right to due process warranting the reversal of the judgment of acquittal on the ground of absence of jurisdiction. Thus ... [T]he public prosecutor knew that he had not presented sufficient evidence to convict the accused.... he deliberately failed to present an available witness and thereby allowed the court to declare that the prosecution has rested its case.... he was remiss in his duty to protect the interest of the offended parties.... [and] was guilty of blatant error and abuse of discretion, thereby causing prejudice to the offended party . By refusing to comply with the trial courts order to present evidence, the public prosecutor grossly violated the above-quoted rule. Moreover, the public prosecutor violated his bounden duty to protect the interest of the offended party.... After the trial court denied his motion to discharge Nuada as a state witness, he should have proceeded to complete the evidence of the prosecution by other means. Instead, he willfully and deliberately refused to present an available witness, i.e., the NBI Agent who was present in court on that date and time. The public prosecutor was duty-bound to exhaust all available proofs to establish the guilt of the accused and bring them to justice for their offense against the injured party. Likewise guilty for serious nonfeasance was the trial court. Notwithstanding its knowledge that the evidence for the prosecution was insufficient to convict, especially after the public prosecutor tenaciously insisted on utilizing Nuada as state witness, the trial court passively watched as the public prosecutor bungled the case. The trial court was well aware of the nature of the testimonies of the seven prosecution witnesses that have so far been presented. Given this circumstance, the trial court, motu proprio, should have 12 called additional witnesses for the purpose of questioning them himself in order to satisfy his mind with reference to particular facts or issues involved in the case. Based on the foregoing, it is evident that petitioner was deprived of her day in court. Indeed, it is not only the State, but more so the offended party, that is entitled to due process in criminal cases. Inasmuch as the acquittal of the accused by the court a quo was done without regard to due process of law, the same is null and void. It is as if there was no acquittal at all, and the same cannot constitute a claim for double jeopardy. In the same vein, the right to speedy trial cannot be successfully invoked where to sustain the same would result in a clear denial of due process to the prosecution. While justice is administered with dispatch, the essential ingredient is orderly, expeditious and not mere speed. It cannot be definitely said how long is too long in a system where justice is supposed to be swift, but deliberate. It is consistent with delays and depends upon circumstances. It secures rights to the accused, but it does not preclude the rights of public justice. Also, it must be borne in mind that the rights given to the accused by the Constitution and the Rules of Court are shields, not weapons; hence, courts are to give meaning to that intent.[33] As significant as the right of an accused to a speedy trial is the right of the State to prosecute people who violate its penal laws.[34] The right to a speedy trial is deemed violated only when the proceeding is attended by vexatious, capricious and oppressive delays.[35] In the instant case, allowing the prosecution to present additional evidence, is a lawful exercise of due process and is certainly not intended to vex or oppress the petitioner. In the balancing test used to determine whether an accused had been denied speedy disposition of cases, the scales tilt in favor of allowing the prosecution to adduce further evidence. Slowly but surely, justice and due process would be afforded to the prosecution and to petitioner as well who would have the chance to present counter evidence. On the other hand, to erroneously put premium on the right to speedy trial in the instant case and deny the prosecutions prayer to adduce additional evidence would logically result in the dismissal of the case for the State. There is no difference between an order outrightly dismissing the case and an order allowing the eventual dismissal thereof. Both would set a dangerous precedent which enables the accused, who may be guilty, to go free without having been validly tried, thereby infringing the interest of the society. Neither can petitioner capitalize on the pendency of his case since 1998. Note that the 1994 anonymous complaint[36] against petitioner was indorsed for investigation by the Office of the Ombudsman to the National Bureau of Investigation which submitted its findings in 1995. On March 15, 1996, the Ombudsman for Luzon recommended the filing of a complaint for violation of Section 3(e) of RA No. 3019,[37] followed by another recommendation from the Graft Investigation Officer on July 14, 1998 for the institution of an Information against petitioner.[38] After Ombudsman Aniano Desiertos approval of said resolution on February 5, 1999,[39] the Special Prosecutor filed the Information on February 10, 1999. The arraignment on April 13, 1999, was followed by seven (7) requests of petitioner to travel abroad, all of which were granted by the Sandiganbayan.[40] On June 28, 2002, the latter directed the counsels to submit a Joint Stipulation of Facts, which was presented on March 24, 2003.[41] Considering the difficulty of obtaining a quorum in the Sandiganbayan due to the retirement of the Justices, the presentation of the prosecutions evidence scheduled on May 19 & 20 and July 8 & 9, 2003, were moved to September 8 & 9[42] and November 10 & 11, 2003. On the latter dates, however, the prosecution witnesses failed to appear, prompting the Special Prosecutor to manifest his intention to rest the case on January 12, 2004. All this time, however, petitioner never invoked his right to speedy trial. In Guerrero v. CA,[43] it was held that failure to seasonably raise the right to speedy trial precludes the accused from relying thereon as a ground to dismiss the case. He is deemed to have slept on his rights by not asserting the right to speedy disposition at the earliest possible opportunity. The Court explained its ruling in this wise: In the case before us, the petitioner merely sat and waited after the case was submitted for resolution in 1979. It was only in 1989 when the case below was re-raffled from the RTC of Caloocan City to the RTC of NavotasMalabon and only after respondent trial judge of the latter court ordered on March 14, 1990 the parties to follow-up and complete the transcript of stenographic notes that matters started to get moving towards a resolution of the case. More importantly, it was only after the new trial judge reset the retaking of the testimonies to November 9, 1990 because of petitioners absence during the original setting on October 24, 1990 that the accused suddenly became zealous of safeguarding his right to speedy trial and disposition. . It is fair to assume that he would have just continued to sleep on his right a situation amounting to laches had the respondent judge not taken the initiative of determining the non-completion of the records and of ordering the remedy precisely so he could dispose of the case. The matter could have taken a different dimension if during all those ten years between 1979 when accused filed his memorandum and 1989 when the case was re-raffled, the accused showed signs of asserting his right which was granted him in 1987 when the new constitution took effect, or at least made some overt act (like a motion for early disposition or a motion to compel the stenographer to 13 transcribe notes) that he was not waiving it. As it is, his silence would have to be interpreted as a waiver of such right. In Dela Pea v. Sandiganbayan,[44] the Court denied a petition seeking to quash the Information holding that the silence of the accused amounted to laches. In the said case, the investigatory process was set in motion on August 14, 1992 and the Information was filed on May 6, 1997. After the arraignment was set sometime in December 1999, the accused filed a motion to quash on December 21, 1999, based on the violation of his right to due process and prompt disposition of cases. In sustaining the Sandiganbayans denial of the motion to quash, the Court ratiocinated that: Moreover, it is worthy to note that it was only on 21 December 1999, after the case was set for arraignment, that petitioners raised the issue of the delay in the conduct of the preliminary investigation. As stated by them in their Motion to Quash/Dismiss, [o]ther than the counter-affidavits, [they] did nothing. Also, in their petition, they averred: Aside from the motion for extension of time to file counter-affidavits, petitioners in the present case did not file nor send any letter-queries addressed to the Office of the Ombudsman for Mindanao which conducted the preliminary investigation. They slept on their right a situation amounting to laches. The matter could have taken a different dimension if during all those four years, they showed signs of asserting their right to a speedy disposition of their cases or at least made some overt acts, like filing a motion for early resolution, to show that they were not waiving that right. Their silence may, therefore be interpreted as a waiver of such right. As aptly stated in Alvizo, the petitioner therein was insensitive to the implications and contingencies of the projected criminal prosecution posed against him by not taking any step whatsoever to accelerate the disposition of the matter, which inaction conduces to the perception that the supervening delay seems to have been without his objection, [and] hence impliedly with his acquiescence. The foregoing doctrines were reiterated in Bernat v. Sandiganbayan,[45] where the claim of denial of the right to a speedy disposition of his criminal case was brushed aside by the Court considering that the accused waited eight years before complaining of the delay in the disposal of his case. The rule as consistently applied in this jurisdiction is that objections to the sluggish disposition of the case must be positively invoked by the accused and a demand therefor must be openly made. The Court ruled in Corpuz v. Sandiganbayan,[46] that dismissal of a case is not justified simply because the prosecutor had gone to sleep at the switch while the defendant and his counsel rested in silence. The accused must not be rewarded by the dismissal of the case and the State and society punished by the neglect of the prosecutor unless the accused himself calls the attention of the court on the matter. We see no reason to deviate from the jurisprudential holdings and treat the instant case differently. Petitioner never contested the prosecutorial proceedings nor timely challenged the pendency of the case after arraignment. It was only in the Motion for Reconsideration of the June 14, 2004 order denying the demurrer to evidence and setting the case for reception of additional evidence for the prosecution, that petitioner insisted on his right to speedy trial. Under Section 9, Rule 119 of the Rules of Court, failure of the accused to move for dismissal prior to trial constitutes a waiver of his right to speedy trial. His failure therefore to timely question the delay in the disposition of the case amounted to an implied acceptance of such delay and a waiver of the right to question the same. Like any other right conferred by the Constitution or statute, except when otherwise expressly so provided, the speedy trial right may be waived when not positively asserted. Thus, if there was a delay in the disposition of the case, petitioner is not entirely without blame.[47] Then too, while petitioner is free to acknowledge or reject the Joint Stipulation of Facts, the trial court cannot be said to have abused its discretion in ordering petitioner to sign the same considering that said stipulation was not yet formally offered by the prosecution. At that stage, said document cannot yet be considered officially an evidence for the prosecution. The refusal therefore of petitioner to affix his signature in the said stipulation or in the Pre-trial Order embodying the same is sufficient justification for the trial court to recall the latter and in the exercise of its sound discretion, set the case for presentation of the prosecutions evidence. Finally, if petitioner disagrees with the denial of his motion for leave to file demurrer to evidence, his remedy is not to file a petition for certiorari but to proceed with the presentation of his evidence and to appeal any adverse decision that may be rendered by the trial court. The last sentence of Section 23, Rule 119 of the Rules of Court, provides that the order denying a motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or certiorari before judgment. WHEREFORE, the petition is DISMISSED. The June 14, 2004 Order of respondent Sandiganbayan in Criminal Case No. 25160 which denied petitioners motion for leave to file demurrer to evidence and set the case for presentation of evidence for the prosecution; as well its July 28, 2004 Resolution denying petitioners motion for reconsideration are AFFIRMED. The instant case is REMANDED to the Sandiganbayan for further proceedings. SO ORDERED. SECOND DIVISION [G.R. No. 151931. September 23, 2003] 14 ANAMER SALAZAR, petitioner, vs. THE PEOPLE OF THE PHILIPPINES and J.Y. BROTHERS MARKETING CORPORATION, respondents. DECISION CALLEJO, SR., J.: This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Criminal Procedure of the Order[1] of the Regional Trial Court, 5th Judicial Region, Legazpi City, Branch 5,[2] dated November 19, 2001, and its Order[3] dated January 14, 2002 denying the motion for reconsideration of the decision of the said court on the civil aspect thereof and to allow her to present evidence thereon. On June 11, 1997, an Information for estafa was filed against herein petitioner Anamer D. Salazar and co-accused Nena Jaucian Timario with the Regional Trial Court of Legazpi City, docketed as Criminal Case No. 7474 which reads as follows: That sometime in the month of October, 1996, in the City of Legazpi, Philippines, and within the jurisdiction of this Honorable Court, the above named-accused, conspiring and confederating with each other, with intent to defraud by means of false pretenses or fraudulent acts executed simultaneously with the commission of the fraud, did then and there wilfully, unlawfully and feloniously, on the part of accused NENA JAUCIAN TIMARIO, drew and issue[d] PRUDENTIAL BANK, LEGASPI CITY BRANCH CHECK NO. 067481, dated October 15, 1996, in the amount of P214,000.00 in favor of J.Y. BROTHERS MARKETING CORPORATION, represented by its Branch Manager, JERSON O. YAO, and accused ANAMER D. SALAZAR endorsed and negotiated said check as payment of 300 cavans of rice obtained from J.Y. BROTHERS MARKETING CORPORATION, knowing fully well that at that time said check was issued and endorsed, Nena Jaucian Timario did not have sufficient funds in or credit with the drawee bank to cover the amount called for therein and without informing the payee of such circumstance; that when said check was presented to the drawee bank for payment, the same was consequently dishonored and refused payment for the reason of ACCOUNT CLOSED; that despite demands, accused failed and refused and still fail and refuse to pay and/or make arrangement for the payment of the said check, to the damage and prejudice of said J.Y. BROTHERS MARKETING CORPORATION. CONTRARY TO LAW.[4] Upon arraignment, the petitioner, assisted by counsel, entered a plea of not guilty. Trial thereafter ensued. The Evidence of the Prosecution payment for these cavans of rice, the petitioner gave the private complainant Check No. 067481 drawn against the Prudential Bank, Legazpi City Branch, dated October 15, 1996, by one Nena Jaucian Timario in the amount of P214,000. Jerson Yao accepted the check upon the petitioners assurance that it was a good check. The cavans of rice were picked up the next day by the petitioner. Upon presentment, the check was dishonored because it was drawn under a closed account (Account Closed). The petitioner was informed of such dishonor. She replaced the Prudential Bank check with Check No. 365704 drawn against the Solid Bank, Legazpi Branch, which, however, was returned with the word DAUD (Drawn Against Uncollected Deposit). After the prosecution rested its case, the petitioner filed a Demurrer to Evidence with Leave of Court[5] alleging that she could not be guilty of the crime as charged for the following reasons: (a) she was merely an indorser of the check issued by Nena Timario, and Article 315, paragraph 2(d) on estafa penalizes only the issuer of the check and not the indorser thereof; (b) there is no sufficient evidence to prove that the petitioner conspired with the issuer of the check, Nena Jaucian Timario, in order to defraud the private complainant; (c) after the first check was dishonored, the petitioner replaced it with a second one. The first transaction had therefore been effectively novated by the issuance of the second check. Unfortunately, her personal check was dishonored not for insufficiency of funds, but for DAUD, which in banking parlance means drawn against uncollected deposit. According to the petitioner, this means that the account had sufficient funds but was still restricted because the deposit, usually a check, had not yet been cleared. The prosecution filed its comment/opposition to the petitioners demurrer to evidence. On November 19, 2001, the trial court rendered judgment acquitting the petitioner of the crime charged but ordering her to remit to the private complainant the amount of the check as payment for her purchase. The trial court ruled that the evidence for the prosecution did not establish the existence of conspiracy beyond reasonable doubt between the petitioner and the issuer of the check, her co-accused Nena Jaucian Timario, for the purpose of defrauding the private complainant. In fact, the private complainant, Jerson Yao, admitted that he had never met Nena Jaucian Timario who remained at large. As a mere indorser of the check, the petitioners breach of the warranty that the check was a good one is not synonymous with the fraudulent act of falsely pretending to possess credit under Article 315(2)(d). The decretal portion of the trial courts judgment reads as follows: WHEREFORE, premises considered, the accused Anamer D. Salazar is hereby ACQUITTED of the crime charged but is hereby held liable for the value of the 300 bags of rice. Accused Anamer D. Salazar is therefore ordered to pay J.Y. Brothers Marketing Corporation the sum of P214,000.00. Costs against the accused.[6] On October 15, 1996, petitioner Anamer Salazar purchased 300 cavans of rice from J.Y. Brothers Marketing Corporation, through Mr. Jerson Yao. As 15 Within the reglementary period therefor, the petitioner filed a motion for reconsideration on the civil aspect of the decision with a plea that he be allowed to present evidence pursuant to Rule 33 of the Rules of Court. On January 14, 2002, the court issued an order denying the motion. In her petition at bar, the petitioner assails the orders of the trial court claiming that after her demurrer to evidence was granted by the trial court, she was denied due process as she was not given the opportunity to adduce evidence to prove that she was not civilly liable to the private respondent. The petitioner invokes the applicability of Rule 33 of the Rules of Civil Procedure in this case, contending that before being adjudged liable to the private offended party, she should have been first accorded the procedural relief granted in Rule 33. The Petition Is Meritorious According to Section 1, Rule 111 of the Revised Rules of Criminal Procedure SECTION 1. Institution of criminal and civil actions. (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees therefor shall constitute a first lien on the judgment awarding such damages. Where the amount of damages, other than actual, is specified in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. Except as otherwise provided in these Rules, no filing fees shall be required for actual damages. No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. (b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed. Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment. Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions. The last paragraph of Section 2 of the said rule provides that the extinction of the penal action does not carry with it the extinction of the civil action. Moreover, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist.[7] The criminal action has a dual purpose, namely, the punishment of the offender and indemnity to the offended party. The dominant and primordial objective of the criminal action is the punishment of the offender. The civil action is merely incidental to and consequent to the conviction of the accused. The reason for this is that criminal actions are primarily intended to vindicate an outrage against the sovereignty of the state and to impose the appropriate penalty for the vindication of the disturbance to the social order caused by the offender. On the other hand, the action between the private complainant and the accused is intended solely to indemnify the former.[8] Unless the offended party waives the civil action or reserves the right to institute it separately or institutes the civil action prior to the criminal action, there are two actions involved in a criminal case. The first is the criminal action for the punishment of the offender. The parties are the People of the Philippines as the plaintiff and the accused. In a criminal action, the private complainant is merely a witness for the State on the criminal aspect of the action. The second is the civil action arising from the delict. The private complainant is the plaintiff and the accused is the defendant. There is a merger of the trial of the two cases to avoid multiplicity of suits. The quantum of evidence on the criminal aspect of the case is proof beyond reasonable doubt, while in the civil aspect of the action, the quantum of evidence is preponderance of evidence.[9] Under Section 3, Rule 1 of the 1997 Rules of Criminal Procedure, the said rules shall govern the procedure to be observed in action, civil or criminal. The prosecution presents its evidence not only to prove the guilt of the accused beyond reasonable doubt but also to prove the civil liability of the 16 accused to the offended party. After the prosecution has rested its case, the accused shall adduce its evidence not only on the criminal but also on the civil aspect of the case. At the conclusion of the trial, the court should render judgment not only on the criminal aspect of the case but also on the civil aspect thereof: SEC. 2. Contents of the judgment. If the judgment is of conviction, it shall state (1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived. If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives his right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist.[10] The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before the judgment. The acquittal of the accused does not prevent a judgment against him on the civil aspect of the case where (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) where the court declared that the liability of the accused is only civil; (c) where the civil liability of the accused does not arise from or is not based upon the crime of which the accused was acquitted. Moreover, the civil action based on the delict is extinguished if there is a finding in the final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist or where the accused did not commit the acts or omission imputed to him. If the accused is acquitted on reasonable doubt but the court renders judgment on the civil aspect of the criminal case, the prosecution cannot appeal from the judgment of acquittal as it would place the accused in double jeopardy. However, the aggrieved party, the offended party or the accused or both may appeal from the judgment on the civil aspect of the case within the period therefor. After the prosecution has rested its case, the accused has the option either to (a) file a demurrer to evidence with or without leave of court under Section 23, Rule 119 of the Revised Rules of Criminal Procedure, or to (b) adduce his evidence unless he waives the same. The aforecited rule reads: Sec. 23. Demurrer to evidence. After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court. The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt. If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt. In criminal cases, the demurrer to evidence partakes of the nature of a motion to dismiss the case for failure of the prosecution to prove his guilt beyond reasonable doubt. In a case where the accused files a demurrer to evidence without leave of court, he thereby waives his right to present evidence and submits the case for decision on the basis of the evidence of the prosecution. On the other hand, if the accused is granted leave to file a demurrer to evidence, he has the right to adduce evidence not only on the criminal aspect but also on the civil aspect of the case if his demurrer is denied by the court. If demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the civil aspect of the case unless the court also declares that the act or omission from which the civil liability may arise did not exist. If the trial court issues an order or renders judgment not only granting the demurrer to evidence of the accused and acquitting him but also on the civil liability of the accused to the private offended party, said judgment on the civil aspect of the case would be a nullity for the reason that the constitutional right of the accused to due process is thereby violated. As we held in Alonte v. Savellano, Jr.:[11] Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides the fundamentals. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against 17 him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. Jurisprudence acknowledges that due process in criminal proceedings, in particular, require (a) that the court or tribunal trying the case is properly clothed with judicial power to hear and determine the matter before it; (b) that jurisdiction is lawfully acquired by it over the person of the accused; (c) that the accused is given an opportunity to be heard; and (d) that judgment is rendered only upon lawful hearing. The above constitutional and jurisprudentially postulates, by now elementary and deeply imbedded in our own criminal justice system, are mandatory and indispensable. The principles find universal acceptance and are tersely expressed in the oft-quoted statement that procedural due process cannot possibly be met without a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.[12] This is so because when the accused files a demurrer to evidence, the accused has not yet adduced evidence both on the criminal and civil aspects of the case. The only evidence on record is the evidence for the prosecution. What the trial court should do is to issue an order or partial judgment granting the demurrer to evidence and acquitting the accused; and set the case for continuation of trial for the petitioner to adduce evidence on the civil aspect of the case, and for the private complainant to adduce evidence by way of rebuttal after which the parties may adduce their sur-rebuttal evidence as provided for in Section 11, Rule 119 of the Revised Rules of Criminal Procedure: Sec. 11. Order of trial. The trial shall proceed in the following order: (a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. (b) The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case. (c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. (d) Upon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda. (e) When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified. Thereafter, the court shall render judgment on the civil aspect of the case on the basis of the evidence of the prosecution and the accused. In this case, the petitioner was charged with estafa under Article 315, paragraph 2(d) of the Revised Penal Code. The civil action arising from the delict was impliedly instituted since there was no waiver by the private offended party of the civil liability nor a reservation of the civil action. Neither did he file a civil action before the institution of the criminal action. The petitioner was granted leave of court to file a demurrer to evidence. The court issued an order granting the demurrer on its finding that the liability of the petitioner was not criminal but only civil. However, the court rendered judgment on the civil aspect of the case and ordered the petitioner to pay for her purchases from the private complainant even before the petitioner could adduce evidence thereon. Patently, therefore, the petitioner was denied her right to due process. IN LIGHT OF ALL THE FOREGOING, the Petition is GRANTED. The Orders dated November 19, 2001 and January 14, 2002 are SET ASIDE AND NULLIFIED. The Regional Trial Court of Legazpi City, Branch 5, is hereby DIRECTED to set Criminal Case No. 7474 for the continuation of trial for the reception of the evidence-in-chief of the petitioner on the civil aspect of the case and for the rebuttal evidence of the private complainant and the surrebuttal evidence of the parties if they opt to adduce any. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur. THIRD DIVISION [G.R. No. 132324. September 28, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NORLITO TAN @ NORLY and JOSE TAN, accused-appellants. DECISION PANGANIBAN, J.: When an accused invokes self-defense, the burden of proof to show that the killing was justified shifts to him. Even if the prosecution evidence may be weak, it could not be disbelieved after his open admission owing authorship of the killing. However, to implicate a co-accused as a co-principal, conspiracy must be proven beyond reasonable doubt. In the absence of conspiracy, the responsibility of the two accused is individual, not collective. The Case 18 The Facts Before us is an appeal of the Decision[1] of the Regional Trial Court of Pili, Camarines Sur, in Criminal Case No. P-2297, which convicted Norlito Tan of murder, and Jose Tan of being an accomplice in such crime. On January 3, 1994, an Information[2] was filed against the appellants, the accusatory portion of which reads as follows: That on or about the 6th day of September, 1993, in Barangay Gatbo, Municipality of Ocampo, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, conspiring, confederating together and mutually helping one another, did then and there, wilfully, unlawfully and feloniously attack, assault, stone and stab with a deadly weapon one Magdaleno Rudy Olos alias Modesto Olos, thereby inflicting upon the latter mortal wounds on the different parts of his body which caused his death, to the damage and prejudice of the heirs of the offended party in such amount as may be proven in court.[3] On December 14, 1995, Jose Tan was arrested in Ocampo, Camarines Sur. Upon his arraignment on January 3, 1996, he entered a plea of not guilty.[4] Subsequently, Norlito Tan was arrested on April 1, 1996. When arraigned on May 23, 1996, he likewise pleaded not guilty.[5] Trial on the merits ensued. On July 2, 1997, the trial court rendered its assailed Decision, the decretal portion of which reads: WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused NORLY alias NORLITO TAN guilty beyond reasonable doubt of the offense of MURDER and is hereby imposed the penalty of RECLUSION PERPETUA ranging from twenty (20) years and one (1) day to forty (40) years while the other accused JOSE TAN is also adjudged guilty as an accomplice to the offense of MURDER and is hereby imposed an indeterminate penalty of PRISION MAYOR in its medium period ranging from eight (8) years and one (1) day as minimum to ten years (10) as maximum, together with its accessory penalties. As civil liability, both accused are hereby ordered to pay the heirs of MODESTO OLOS, represented by his widow, Ofelia Nueca Olos, the sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine currency with costs against them. The accused Norly Tan and Jose Tan are credited with the full period of their preventive imprisonment if they agreed in writing to abide with all the terms and conditions of their provisional detention, otherwise, to only 4/5 thereof.[6] The appellants lodged their appeal with the Court of Appeals which, in view of the penalty imposed, forwarded it to this Court.[7] Version of the Prosecution In the Peoples Brief,[8] the Office of the Solicitor General presents the facts as viewed by the prosecution in this wise: On September 6, 1993, at about 6:00 p.m., Ramon Nueca was weeding his ricefield located at Gatbo, Ocampo, Camarines Sur. At that time, there was still sunlight. (pp. 7-8, TSN, July 3, 1996). At a distance of about twenty (20) meters, Ramon Nueca saw Magalino Olos, (who was also his brother-in-law), walking along the road going to Gatbo. At that time, appellant Jose Tan who was then sixteen (16) years old, was also walking infront of Olos. Appellant Norlito Tan, (brother of appellant Jose Tan), who was holding an eight-inch knife known as gatab, suddenly emerged from the grassy portion at the right side of the road where the grasses [were] higher than a person. Appellant Norlito Tan stabbed Olos three (3) times. Olos was hit twice at the upper portion of his back and once at his abdomen. Thereafter, appellant Jose Tan threw a stone at Olos, hitting him at his neck (pp. 9-16, 35-37, TSN, July 3, 1996). Ramon Nueca decided to go to the place of the incident to pacify appellants. However, when appellants saw Ramon Nueca coming, they fled. Ramon Nueca and his brother, Simplicio, brought Olos to the Municipal Hall of Ocampo. From there, Olos was brought by an ambulance to the Bicol Regional Hospital in Naga City where he later died. (pp. 18-20, TSN, July 3, 1996). Olos was examined and treated at the Bicol Regional Hospital by a certain Dr. Jullie Sy. However, at the time of the trial of this case, he was no longer connected with [the]Bicol Regional Hospital, hence, was not available to testify in this case. His findings as reflected in the medical certificate (Exhibit B) which he issued were interpreted by Dr. Thomas Gonzales, the incumbent Municipal Health Officer of Pili, Camarines Sur (p. 3, Annex A, Appellants Brief). Dr. Gonzales testified that the first finding in the medical certificate (Exhibit B) consists of a 1.4 centimeter-wound found at the left portion of the back side of the victim which would have been inflicted by a sharp-bladed instrument (pp. 11-12, TSN, August 14, 1996); the second finding consists of a 1.6 centimeter wound located on the level of the 4th introspect asterior left side of the body of the victim below the level of the nipple or left front side of his body below the nipple (p. 13, ibid.); the third finding consists of a fatal injury located at the umbilical area left side of the liver of the victim with the intestine coming out. (pp. 13-15 ibid). 19 xxx xxx xxx[9] Version of the Defense In their Brief,[10] Appellants Norlito Tan and Jose Tan claim self-defense and denial, respectively, alleging as follows: The lower court held that treachery and evident premeditation accompanied the killing and, thus, the crime committed was murder. However, the court a quo dismissed the prosecutions claim of conspiracy and adjudged Jose Tan guilty merely as an accomplice. The Assigned Errors Appellants fault the trial court with the following errors: B. Evidence for the Defense: On September 6, 1993 in Bgy. Gatbo, Ocampo, Camarines Sur, at about 4:00 oclock in the afternoon, Jose Tan was then watching a basketball game while his brother Norlito Tan was playing basketball. At about 5:30 oclock PM, they left together to go home but on their way home, they passed the road and dropped by at the house of Wilfredo Bale to chew betel and betelnut. While they were in yard of Wilfredo Bale, the latter told accused Norlito Tan to go home as Modesto Olos might chase him again. Heeding the advice of Wifredo, Norlito left to go home, while Jose remained on the yard of Wilfredo. While Norlito was on his was home, Modesto Olos who was then in the ricefield walked fast towards the road and met the former who evaded the latter by proceeding to the other side of the road as Modesto had been blocking his way and telling him that Norlito would be buried alive. Then Modesto drew a knife and stabbed Norlito who was able to parry the thrust and holds the formers hand holding the knife. Norly Tan immediately drew his knife from his boot and retaliated by stabbing Modesto who was hit and fell to the ground. Then Ramon Nueca arrived and embraced Norlito, and at this moment, Angel Paular who was holding a stone ran towards him but Norlito was able to extricate himself from the hold of Ramon and ran away. When Modesto and Norlito were then fighting, Jose Tan was in front of the house of Wilfredo Bele. Then, when Norlito was fleeing and passing by the house of Wilfredo, Jose Tan also ran away. 1. The court a quo seriously erred in finding that accused Norlito Tan treacherously killed Modesto Olos and that accused Jose Tan helped his brother in the fatal stabbing of the victim. 2. The court a quo gravely erred in relying solely [on] and giving full credence [to] the testimonies of Ramon Nueca and Ofelia Olos and in disregarding the testimonies of both accused and their witnesses. 3. The court a quo seriously erred in finding that both accused eluded the apprehending authorities indicating that they are guilty of the crime charged. 4. The court a quo imposed an excessive penalty upon both accused granting but not admitting that accused Norlito Tan is guilty of the crime charged and accused Jose Tan being a minor below 16 years old is guilty as an accomplice; 5. The court a quo seriously erred in convicting accused Norlito Tan of the crime of murder and accused Jose Tan as an accomplice.[11] To resolve the case, the Court believes that the following points should be discussed: (1) credibility of witnesses; (2) self-defense and burden of proof; and (3) characterization of the crime and the applicable penalty. The Courts Ruling At the time of said incident, Jose Tan was then below sixteen (16) years old as he was born on September 18, 1977 as per birth certificate submitted to the trial court. The trial court correctly convicted the appellants, but erred in imposing the proper penalty. The Trial Courts Ruling First Issue: In convicting Appellant Norlito Tan of murder, the trial court ruled that his claim of self-defense was negated by the evidence on record. It added that when an accused pleads self-defense, the burden of proof shifts on him, a burden Norlito Tan failed to discharge. Jose Tans denial was equally unavailing in view of the credible prosecution witnesses identification of him. Credibility of Witnesses Well-rooted is the rule that factual findings of the trial judge who tried the case and heard the witnesses are not to be disturbed on appeal, unless there are circumstances of weight and substance which have been overlooked and which, if properly considered, might affect the result of the case.[12] Because the trial court is in a better position to examine the demeanor and conduct of 20 the witnesses while testifying on the stand, its conclusions and findings on their credibility are entitled to great weight on appeal and should not be changed except for strong and valid reasons.[13] Alleged Irregularities Appellants contend that the trial court erred in giving credence to the testimonies of Prosecution Witnesses Ramon Nueca and Ofelia Olos, considering that the defense was not able to cross-examine Nueca thoroughly. With regard to Olos, appellants claim that her presentation as a rebuttal witness was irregular and, as such, should not have been allowed by the court a quo. 2. The reason why both accused killed his brother-in-law was that they were apprehended by the victim in the house of Flores per information given to him by said victim (p. 21, tsn, 7-3-96), while in his sworn statement marked Exh. 1, he stated that he [did] not know of any motive why accused Norlito stabbed and Jose stoned him. 3. Norlito hid and emerged from the talahib grass and immediately stabbed his brother-in-law (pp. 13, 15 & 40, tsn, 7-3-96), while in exhibit 1, he stated that while he was walking on the road going to Gatbo, he was approached by Norlito and Jose, and then Modesto was stabbed by Norlito. xxx xxx xxx There is no merit to appellants assertion of procedural prejudice. True, Ramon Nueca did not return to court to finish his cross-examination; however, this does not mean that his testimony should be expunged, as appellants insists. It must be noted that his failure to appear before the court was not the fault of prosecution. More important, the defense had the opportunity to cross-examine him, as in fact he was actually subjected to cross-examination by the appellants counsel, Atty. Crispo Q. Borja Jr.[14] The cross-examination touched on the material points elicited from Nueca during his direct examination his eyewitness description of Norly and Jose Tans participation in the killing. Neither can the presentation of Ofelia Olos as a rebuttal witness be deemed irregular. Considering that the appellants claimed self-defense only after the prosecution had rested its case, the latter, after being allowed by the trial court, exercised its prerogative to present Olos, so that she could testify that the attack on her husband was sudden and unexpected. Furthermore, it is within the sound discretion of a trial judge to allow a party that has rested its case to introduce rebuttal evidence.[15] Alleged Inconsistencies Appellants insist that the testimonies of Nueca and Olos were tainted with contradictions and inconsistencies, viz.: The vital and material points of the testimony of Ramon Nueca which require careful considerations are as follows, to wit: 1. He saw [his] brother-in-law Modesto Olos stabbed thrice by Norlito Tan, hitting him twice at the back and once in front of the body, (pp. 12 & 14, tsn, 7-3-96), contrary to the testimony of Dr. Gonzales who testified that the victim suffered injuries at the left portion of the backside body (intercostal post line), at the left front side below the nipple, and on his abdomen. (pp. 11, 12 & 14, tsn, 8-14-96). With respect to the vital and material; points/parts of the testimony of Ofelia Olos which likewise require careful consideration are as follows: 1. That before the stabbing incident, she saw Norlito suddenly emerged from the talahib grass and immediately stabbed her husband -- this is contrary to her statement given during the preliminary inquiry conducted by the presiding judge of MTC, Ocampo, Camarines Sur, which statement is part of the record of this case. In said statement, she said that when she was out of her house after cooking, she saw her husband being stabbed by Norlito and before her husband was stabbed, he was standing on the road and about to pick up a stone when attacked by both accused. She did not mention any talahib grass in said statement. 2. That while Norlito was stabbing her husband, Jose shouted at his brother to stop; - These allegations of Ofelia are contrary to human experience for the simple reason that if accused Jose really shouted at his brother to stop stabbing Modesto Olos, he would not throw stones at the latter. 3. That her house is six (6) meters away from the road and in between her house and the road, there are irrigation canal, ricefield, and a vacant lot (Pp. 16-17, tsn 3-10-97); This is contrary to the testimony of her brother-in-law as according to him, the house of Ofelia is thirty (30) meters away from the road, and between the road and the house of Olos, there are two (2) irrigation canals and a ricefield in between said canals (P.30, tsn 7-3-96). Thus, it is improbable that the house of Ofelia is only 6 meters away from the road, and she could not see the person on the other side of the talahib grass from her house as the grass is higher than the height of a person and the distance from the house is 30 meters to the road as testified by Ramon Nueca (Pp. 34-36, tsn 7-3-96). 21 4. That her husband was twice stabbed at the back on the left side back shoulder (P. 24. Tsn 3-10-97). This is [contrary] to the testimony of Dr. Tomas Gonzales as already mention in the foregoing. Considering the foregoing testimony of Ofelia Olos, it is indubitable that she was telling lies when she testified in court and was not an eye-witness to the incident. Taking into consideration both testimonies of Ramon Nueca whose testimony on cross-examination was not finished for his failure to return to court and of Ofelia Olos on rebuttal stage whose testimony is improper for consideration for reason already aforestated, we contend that the trial court gravely erred in relying solely and giving full credence to the testimonies of said prosecution witnesses and in finding that accused Norlito Tan treacherously killed Modesto Olos and finding also that Jose [T]an helped his brother in the fatal stabbing of the victim. These arguments do not persuade. The prosecution witnesses clearly placed the appellants at the scene of the crime and established that Norly Tan stabbed Olos. These facts were admitted by Norly Tan, who claimed selfdefense. True, there are some apparent minor inconsistencies in the testimonies of Nueca and Olos, but they do not detract from the clarity, the cohesiveness or the consistency of their testimonies on how Norly Tan killed the victim. Nueca testified thus: Q Now, were you able to see the persons responsible for the stabbing of Rudy Olos? xxx xxx xxx A Yes, sir, there were two (2) persons. Q Were you able to recognize them? A Yes, sir. Q Can you tell the Honorable Court their names? A Yes, sir, Norly Tan and Jose Tan. Q How is this Norly Tan related to the Norlito Tan impleaded in this case who stabbed Magdalino Rudy Olos? A The same person, sir. Q And please tell the Honorable Courtwhat did Norly Tan do? A Norlito Tan stabbed Magdalino Rudy Olos. Q Were you able to see the instrument which was used by Norly Tan in stabbing Magdalino Rudy Olos? A Yes, sir, a kind of knife which is known in our dialect as tabak, or gatab. Q Will you please describe to the Honorable Court the weapon otherwise called as gatab in your locality? A Somewhat small knife which is about eight (8) inches long. Q Was that eight inches long including the handle? A Yes, sir. Q Now, was Magdalino Rudy Olos hit by the thrusts of Norly Tan? A Yes, sir. Q In what part of the body of Magdalino rudy Olos was hit by Norly tan? A At the back, sir. COURT Q Which part of the back? A Upper portion of his back, Your Honor. At this juncture, witness is pointing the upper right portion of his back. xxx xxx xxx FISCAL RAMOS Q By the way, what was Magdalino Rudy Olos doing in the road when he was actually assaulted by Norly Tan? A He was on his way home, sir. Q Now, in relation to the victim Magdalino Rudy Olos, where was Norly Tan when he stabbed Olos? A He was on the left side of Magdalino Olos, sir. Q And where did Norly Tan emerge or where did he come from before he stabbed Magdalino Olos? A He came from the talahib. COURT Q How many times did he stab the victim? A Three (3) times your honor. xxx xxx xxx FISCAL RAMOS Q And what injury sustained by victim Magdalino Rudy Olos at his back [--] was that the injury resulting from his death or which of the stabbing blows made by Norly Tan xxx [h]it him? A They all hit him, sir. Q How about the stabbing blow for the second time? A Still at the back, sir. Q How about the third time? A He was hit on the abdomen. Q Now, you mentioned earlier that Norly Tan emerged from the grassy portion, will you please tell the Honorable Court how tall [was the] grassy portion where Norly Tan emerged? A It is higher than a person, sir. Q How far is that grassy portion where Magdalino Olos came from? A Just beside the road, sir. Q Will you please tell the Honorable Court of your own knowledge or observation, was Olos able to see Norly Tan before the latter emerged from the grassy portion? A He could not have seen Norly Tan because Magdalino Olos already passed when Norlito Tan emerged from the grassy portion of the field. Q Now, for how long had time elapsed when Norly Tan emerged from the grassy portion of the field and stabbed Olos? A Around one (1) second, sir. Q When the victim Olos was stabbed by Norly Tan for the first time at his back, what did Olos do, if any? 22 A When he faced Norly tan, Norly Tan stabbed him in his abdomen? COURT Q So the second stab was also in the abdomen of the victim? A No, your honor, the two (2) stabs hit his back and the third stab hit his abdomen. xxx xxx xxx FISCAL RAMOS Q Now, how about Jose Tan, do you know where he was at the time his brother Norly Tan emerged from the talahib? A Yes, sir. Q Where was he? A He was at the middle of the road. Q Now, in relation to where Magdalino Rudy Olos was walking at the middle of the road where was Jose Tan at that time? A In front of Olos. Q How far was Jose Tan at that time? A About five (5) meters. COURT Q So they saw each other? A yes, your Honor. xxx xxx xxx FISCAL RAMOS Q What if any, did Jose Tan do? A He stoned Olos. Q At what moment did Jose Tan throw [stones at] Magdalino Rudy Olos[?] A After his brother Norly Tan stabbed Olos, sir. Q And was Olos hit by the stone of Jose Tan? A Yes, sir. Q In what part of his body was he hit was Jose Tan? A In his neck. Q How many times did he stone Magdalino Rudy Olos? A Only one (1) sir. Q How about you, what did you do while Norly Tan was stabbing the victim, Magdalino Olos? A I was about to run away to them in order to pacify them, but when the two (2) brothers saw me, they fled. Q Towards what direction [did] they [flee?]. A Towards the direction of their uncles house.[16] The above-quoted testimony jibes with that of Ofelia Olos as to how the incident happened,[17] and with that of Dr. Gonzales as to the number of wounds sustained by the victim. The inconsistencies pointed out by the appellants refer to their alleged motive for killing the victim, the distance of the witnesses from the locus criminis and the location of the wounds inflicted. However, motive is not important when there is no doubt about the identity of the perpetrator of the crime,[18] as in the present case. True, there was variance in the witnesses testimonies as to their distance from stabbing incident. However, the sketch presented in court showed that they had a clear view of the scene.[19] And although they could not pinpoint precise locations, they were able to give the correct number of wounds sustained by the victim. their perception as to where the victim was struck was likewise correct. In any case, the inconsistencies cited by the appellants are not substantial enough to impair the credibility of these witnesses. Rather, such minor lapses manifest truthfulness and candor and erase suspicion of a rehearsed testimony.[20] In all, we cannot fault the trial court for upholding the relevant portions of the prosecution witnesses testimonies. Second Issue: Self-Defense When the accused invoke self-defense, the burden of proof is shifted to them to prove that the killing was justified and that they incurred no criminal liability therefor. They must rely on the strength of their own evidence and not on the weakness of that of the prosecution, for even if the latter is weak, it could not be disbelieved after their open admission of responsibility for the killing.[21] In the present case, it is incumbent upon Appellant Norly Tan to prove selfdefense. Thus, he must prove that there was unlawful aggression on the part of the victim, that the means employed to prevent it were reasonable, and that there was lack of sufficient provocation o his part. However, he failed to discharge this burden. True, he alleges that it was the victim, Magdalino Olos, who was the aggressor who had started the fracas: Q When Modesto Olos met you on the left side of the road, what else did he do? A When we were on the left side of the road, Modesto Olos asked me why I was there and then I told him that I was a resident and then he told me that he will bury me alive and at the same time he thrust his bladed weapon and stabbed me. COURT Q Did he hit you? A I was able to parry the thrust and [hold] his arm with the weapon. When I was able to hold his hand with the bolo, I was also able to draw my own bladed weapon and I was able to stab him. 23 Q From where did you draw that weapon which you used in stabbing Modesto Olos? A I drew it from inside my boot. xxx xxx xxx[22] The above-quoted testimony, however, shows some inherent contradictions. If it was the victim who had attacked Norly Tan, then why did the former suffer three stab wounds and the latter none? Likewise, the Court finds it hard to believe that Norly Tan was able to subdue the victim with one hand and at the same time get his weapon from his boot. Clearly then, his selfserving allegation would not suffice. It pales in comparison with the positive and categorical declaration of the prosecution witnesses that the attack on the victim was sudden an unprovoked. Third Issue: Crime and Its Punishment The trial court correctly ruled that the killing was attended by treachery; hence, the crime was murder. The essence of treachery is the sudden and unexpected attack, without the slightest provocation on the part of the person attacked.[23] Treachery is present when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof, which tend directly and especially to insure its execution, without risk arising from the defense which the offended party might make.[24] In the case at bar, the attack on Magdalino Olos was treacherous, because he was caught off guard and was therefore unable to defend himself, as testified to by the prosecution witnesses and as indicated by the wounds inflicted on him. Culpability of Jose Tan We agree with the court a quo that the prosecution was not able to establish conspiracy in the killing of the victim; thus, Appellant Jose Tan is guilty only as an accomplice. Worth quoting is the trial courts disquisition on the matter: when doubt exists whether an accused acted as principal or accomplice, the court should favor the lesser or milder identity (People vs. Irenea, G.R. No. 44410, August 5, 1988).[25] The above-quoted ruling follows legal and jurisprudential precepts. The Revised Penal Code defines accomplices as those persons who, not being included in article 17,[26] cooperate in the execution of the offense by previous or simultaneous acts.[27] In the present case, the prosecution was not able to prove that Jose Tan conspired with his brother to commit the murder. Neither was it shown that he had prior knowledge of the latters criminal intent. Absent a conspiracy, the responsibility of the accused is individual, not collective, and each is to be punished only for his separate acts. The penalty of Appellant Jose Tan as an accomplice is one degree lower than that of the principal, which in murder cases is reclusion temporal, in its maximum period, to death. Considering that he is entitled to the privileged mitigating circumstance of minority,[28] because he was only sixteen years old when the crime was committed,[29] the trial court should have lowered his penalty by two degrees, i.e. prision correccional maximum to prision mayor medium. Likewise, he is entitled to the benefits of the Indeterminate Sentence Law. Since no aggravating or mitigating circumstance was proven, the imposable penalty on Norlito Tan is reclusion perpetua. WHEREFORE, the assailed Decision is AFFIRMED, with the MODIFICATION that Appellant Norlito Tan, as principal, is sentenced to reclusion perpetua; while Appellant Jose Tan, as an accomplice and a minor, is sentenced to an indeterminate prison term of one (1) year and five (5) months of prision correccional as minimum, to seven (7) years of prision mayor as maximum. SO ORDERED. However, the evidence of the prosecution regarding the participation of the other accused, Jose Tan is not so satisfactory specially regarding its theory of conspiracy. In fact, according to the widow Ofelio Olos, she even heard Jose Tan telling and pleading with his brother to stop his attack and stabbing of the victim. the most therefore that said accused could be liable for is merely that of an accomplice, who, not being a principal cooperated in the execution of the offense by previous and simultaneous acts, that in this case, by his stoning the victim Modesto Olos and hitting him on the neck. However, the accused Jose Tans act of stoning was not a direct participation nor indispensable to the killing of the victim. also, as held by the Supreme court, 24 EN BANC [G.R. No. 103501-03. February 17, 1997] LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. 103507. February 17, 1997] ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents. DECISION FRANCISCO, J.: Through their separate petitions for review,[1] Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990,[2] as well as the Resolution dated December 20, 1991[3] denying reconsideration, convicting them of malversation under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubt of having malversed the total amount of P55 Million of the Manila International Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following sentence: (1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum to twenty (20) years of reclusion temporal as 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 MILLION PESOS (P25,000,000.00). In addition, he shall suffer the penalty of perpetual special disqualification from public office. (2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum, and twenty (20) years of reclusion temporal as 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 MILLION PESOS (P25,000,000.00). In addition, he shall suffer the penalty of perpetual special disqualification from 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 of seventeen (17) years and one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion temporal as maximum and for each of them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall also reimburse jointly and severally the Manila International Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00). In addition, they shall both suffer the penalty of perpetual special disqualification from public office. A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has remained at large. There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal accused - he being charged in all three (3) cases. The amended informations in criminal case nos. 11758, 11759 and 11760 respectively read: That on or about the 10th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts 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 and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the name of accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the abovementioned managers check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. xxx 25 That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts 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 and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the name of accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the abovementioned managers check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. Gathered from the documentary and testimonial evidence are the following essential antecedents: Then President Marcos instructed Tabuena over the phone to pay directly to the presidents office and in cash what the MIAA owes the Philippine National 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 Memorandum dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit: Office of the President of the Philippines Malacaang CONTRARY TO LAW. January 8, 1986 xxx MEMO TO: The General Manager That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the General Manager and Acting Manager, Financial Services Department, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts 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 and misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a managers check for said amount in the name of accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, Manila International Airport Authority You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAAs account with said Company mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly approved by this Office on February 4, 1985. Your immediate compliance is appreciated. (Sgd.) FERDINAND MARCOS.[4] The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in the MARCOS Memorandum, reads in full: MEMORANDUM 26 F o r : The President 233,561.22 F r o m : Minister Roberto V. Ongpin 6. Supplemental Contract No. 17 D a t e : 7 January 1985 Package Contract No. 2 Subject : Approval of Supplemental Contracts and Request for Partial Deferment of Repayment of PNCCs Advances for MIA Development Project 8,821,731.08 May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, as follows: 7. Supplemental Contract No. 18 1. Supplemental Contract No. 12 6,110,115.75 Package Contract No. 2 8. Supplemental Contract No. 3 Package Contract No. 2 Package Contract No. II P11,106,600.95 2. Supplemental Contract No. 13 16,617,655.49 5,758,961.52 (xerox copies only; original memo was submitted to the Office of the President on May 28, 1984) 3. Supplemental Contract No. 14 Package Contract No. 2 4,586,610.80 In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million. 4. Supplemental Contract No. 15 1,699,862.69 At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of approval/evaluation: 5. Supplemental Contract No. 16 Approved by Price Escalation Committee (PEC) but pended for lack of funds Package Contract No. 2 P 1.9 million Endorsed by project consultants and currently being evaluated by PEC 27 30.7 million Submitted by PNCC directly to PEC and currently under evaluation 66.5 million Total P99.1 million There has been no funding allocation for any of the above escalation claims due to budgetary constraints. The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for this contract. day to the office of Mrs. Gimenez located at Aguado Street fronting Malacaang. Mrs. Gimenez did not issue any receipt for the money received. Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on January 16, 1986. The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuenas co-signatory to the letter- request for a managers check for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million. After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuenas car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez office at Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads: Malacaang Manila January 30, 1986 To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellencys approval for a deferment of the repayment of PNCCs advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding.Korte RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the following dates: Jan. 10 - P25,000,000.00 Jan. 16 - 25,000,000.00 Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million. (Sgd.) ROBERTO V. ONGPIN Minister[5] In obedience to President Marcos verbal instruction and memorandum, Tabuena, with the help of Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals. The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by Tabuena and Dabao requesting the PNB extension office at the MIAA - the depository branch of MIAA funds, to issue a managers check for said amount payable to Tabuena. The check was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the same Jan. 30 - 5,000,000.00 (Sgd.) Fe Roa-Gimenez The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, out of the ordinary and not based on the normal procedure. Not only were there no vouchers prepared to support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55 Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by MIAA for the months of January to June of 1986. The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying with the MARCOS Memorandum which ordered him to forward immediately to the Office of the President P55 Million in cash as partial payment of MIAAs obligations to PNCC, and that he (Tabuena) was of the belief that MIAA 28 indeed had liabilities to PNCC. Peralta for his part shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million. With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction, Tabuena and Peralta now set forth a total of ten (10) errors[6] committed by the Sandiganbayan for this Courts consideration. It appears, however, that at the core of their plea that we acquit them are the following: 1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and 2) they acted in good faith. Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional malversation, as the amended informations commonly allege that: x x x accused x x x conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriated the amount of x x x. But it would appear that they were convicted of malversation by negligence. In this connection, the Courts attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuenas and Peraltas motion for reconsideration) wherein the Sandiganbayan said: xxxxxxxxx On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people who were not entitled thereto, either as representatives of MIAA or of the PNCC.Sclaw It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated that he is guilty of the misappropriation or malversation of P55 Million of public funds. (Underscoring supplied.) To support their theory that such variance is a reversible flaw, Tabuena and Peralta 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 of malversation of negligence where the amended informations charged them with intentional malversation.[7] 3) Their conviction of a crime different from that charged violated their constitutional right to be informed of the accusation.[8] We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is Cabello v. Sandiganbayan[9] where the Court passed upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise: x x x even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper. x x x. In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional falsification can validly be convicted of falsification through negligence, thus: While a criminal negligent act is not a simple modality of a willful crime, as we 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 quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. 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 cases decided by this Tribunal. xxx Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof be established to constitute the crime proved. x x x. The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears 29 supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence. Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments also apply to the felony of malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to those involved in the present case, can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense. Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2) vintage, but significant malversation 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 by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit reum, nisi mens sit rea - a crime is not committed if the mind of the person performing the act complained of is innocent. The rule was reiterated in People v. Pacana,[12] although this case involved falsification of public documents and estafa: Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there 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 to convert.[14] And this, to our mind, Tabuena and Peralta had meritoriously shown. In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum, we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum. From this premise flows the following reasons and/or considerations that would buttress his innocence of the crime of malversation. First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably Tabuenas superior the former being then the President of the Republic who unquestionably exercised control over government agencies such as the MIAA and PNCC.[15] In other words, Marcos had a say in matters involving inter-government agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuenas compliance, without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of Any person who acts in obedience to an order issued by a superior for some lawful purpose.[16] The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5 Million. The Sandiganbayan in this connection said: Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January 7, 1985) were mainly: a.) for the approval of eight Supplemental Contracts; and b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development Project, while at the same time recognizing some of the PNCCs escalation billings which would result in making payable to PNCC the amount of P34.5 million out of existing MIAA Project funds. Thus: xxx To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellencys approval for a deferment of repayment of PNCCs advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding. Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million. 30 While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and approval, with only P32.6 million having been officially recognized by the MIADP consultants. This is easy to see. x x x x x x x x x.[20] ATTY ANDRES Q When you said these are accounts receivable, do I understand from you that these are due and demandable? A Yes, sir.[21] Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith.[22] Such is the ruling in Nassif v. People[23] the facts of which, in brief, are as follows: Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he inserted in the commercial document alleged to have been falsified the word sold by order of his principal. Had he known or suspected that his principal was committing an improper act of falsification, he would be liable either as a co-principal or as an accomplice. However, there being no malice on his part, he was exempted from criminal liability as he was a mere employee following the orders of his principal.[24] Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, 2-a); Exhibit 1, however, speaks of P55 million to be paid to the PNCC while Exhibit 2 authorized only P34.5 million. The order to withdraw the amount of P55 million exceeded the approved payment of P34.5 million by P20.5 million. Min. Ongpins Memo of January 7, 1985 could not therefore serve as a basis for the Presidents order to withdraw P55 million.[18] Second. There is no denying that the disbursement, which Tabuena admitted as out of the ordinary, did not comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan, to wit: a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA) Granting this to be true, it will not nevertheless affect Tabuenas good faith so as to make him criminally liable. What is more significant to consider is that the MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC. This belief is supported by defense witness Francis Monera who, on direct examination, testified that: ATTY ANDRES Q Can you please show us in this Exhibit 7 and 7-a where it is indicated the receivables from MIA as of December 31, 1985? A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit 7-a, sir, P102,475,392.35. x x x x x x x x x.[19] ATTY. ANDRES Q Can you tell us, Mr. Witness, what these obligations represent? WITNESS A These obligations represent receivables on the basis of our billings to MIA as contract-owner of the project that the Philippine National Construction Corporation constructed. These are billings for escalation mostly, sir. Q What do you mean by escalation? A Escalation is the component of our revenue billings to the contract-owner that are supposed to take care of price increases, sir. b) payment of all claims against the government had to be supported with complete documentation (Sec. 4, P.D. 1445, State Auditing Code of the Philippines). In this connection, the Sandiganbayan observed that: If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos Memo was based) they would only be for a sum of up to P34.5 million.[17] xxxxxxxxx V. Pres. Marcos order to Tabuena dated January 8, 1986 baseless. Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55 million irrelevant, but it was actually baseless. There were no vouchers to authorize the disbursements in question. There were no bills to support the disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million. [25] c) failure to protest (Sec. 106, P.D. 1445) But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditing procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his immediate compliance with the directive that he forward to the Presidents Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such omission. But since he was acting in good faith, his liability should only be administrative or civil in nature, and not criminal. This follows the decision in Villacorta v. People[26] where the Court, in acquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation after finding that he incurred a shortage in his cash 31 accountability by reason of his payment in good faith to certain government personnel of their legitimate wages, leave allowances, etc., held that: Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong payments, they were in good faith mainly to government personnel, some of them working at the provincial auditors and the provincial treasurers offices. And if those payments ran counter to auditing rules and regulations, they did not amount to a criminal offense and he should only be held administratively or civilly liable. The words convert and misappropriate connote an act of using or disposing of anothers property as if it were ones own. They presuppose that the thing has been devoted to a purpose or use different from that agreed upon. To appropriate to ones own use includes not only conversion to ones personal advantage but every attempt to dispose of the property of another without right. People vs. Webber, 57 O.G. Likewise controlling is US v. Elvia[27] where it was held that payments in good faith do not amount to criminal appropriation, although they were made with insufficient vouchers or improper evidence. In fact, the Dissenting Opinions reference to certain provisions in the revised Manual on Certificate of Settlement and Balances - apparently made to underscore Tabuenas personal accountability, as agency head, for MIAA funds - would all the more support the view that Tabuena is vulnerable to civil sanctions only. Sections 29.2 and 29.5 expressly and solely speak of civilly liable to describe the kind of sanction imposable on a superior officer who performs his duties with bad faith, malice or gross negligence and on a subordinate officer or employee who commits willful or negligent acts x x x which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors. Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the following definitions/concepts of conversion: Conversion, as necessary element of offense of embezzlement, being the fraudulent appropriation to ones own use of anothers property which does not necessarily mean to ones personal advantage but every attempt by one person to dispose of the goods of another without right as if they were his own is conversion to his own use. (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906, 179 Okl. 106) - At p. 207, Words and Phrases, p. 2933, 2937 By placing them at the disposal of private persons without due authorization or legal justification, he became as guilty of malversation as if he had personally taken them and converted them to his own use. People vs. Luntao, 50 O.G. p. 1182, 1183[28] We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena to pay immediately the Philippine National Construction Corporation, thru this office, the sum of FIFTY FIVE MILLION...., and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos secretary then. Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good faith of Tabuena in having delivered the money to the Presidents office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received the money. Thus, it has been said that: Good faith in the payment of public funds relieves a public officer from the crime of malversation. Permanent Edition 9A. xxxxxxxxx Conversion is any interference subversive of the right of the owner of personal property to enjoy and control it. The gist of conversion is the usurpation of the owners right of property, and not the actual damages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141) - At page 168, id. Not every unauthorized payment of public funds is malversation. There is malversation only if the public officer who has custody of public funds should appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds. Where the payment of public funds has been made in good faith, and there is reasonable ground to believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to have xxxxxxxxx 32 acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized, renders him only civilly but not criminally liable.[29] Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the P55 Million. In the cases of US v. Acebedo[30] and Ang v. Sandiganbayan,[31] both also involving the crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding of non-proof of conspiracy. In Acebedo, therein accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation after being unable to turn over certain amounts to the then justice of the peace. It appeared, however, that said amounts were actually collected by his secretary Crisanto Urbina. The Court reversed Acebedos conviction after finding that the sums were converted by his secretary Urbina without the knowledge and participation of Acebedo. The Court said, which we herein adopt: No conspiracy between the appellant and his secretary has been shown in this case, nor did such conspiracy appear in the case against Urbina. No guilty knowledge of the theft committed by the secretary was shown on the part of the appellant in this case, nor does it appear that he in any way participated in the fruits of the crime. If the secretary stole the money in question without the knowledge or consent of the appellant and without negligence on his part, then certainly the latter can not be convicted of embezzling the same money or any part thereof.[32] In Ang, accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were subsequently dishonored. Ang was acquitted by this Court after giving credence to his assertion that the conversion of his collections into checks were thru the machinations of one Lazaro Guinto, another MWSS collector more senior to him. And we also adopt the Courts observation therein, that: The petitioners alleged negligence in allowing the senior collector to convert cash collections into checks may be proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but there must be stronger evidence to show fraud, malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The prosecution failed to show that the petitioner was privy to the conspirational scheme. Much less is there any proof that he profited from the questioned acts. Any suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into evidence before conviction beyond reasonable doubt may be imposed. [33] The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA funds. This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order. Indeed, compliance to a patently lawful order is rectitude far better than contumacious disobedience. In the case at bench, the order emanated from the Office of the President and bears the signature of the President himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And on its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. Besides, the case could not be detached from the realities then prevailing. As aptly observed by Mr. Justice Cruz in his dissenting opinion: We reject history in arbitrarily assuming that the people were free during the era and that the judiciary was independent and fearless. We know it was not; even the Supreme Court at that time was not free. This is an undeniable fact that we can not just blink away. Insisting on the contrary would only make our sincerity suspect and even provoke scorn for what can only be described as our incredible credulity.[34] But what appears to be a more compelling reason for their acquittal is the violation of the accuseds basic constitutional right to due process. Respect for the Constitution, to borrow once again Mr. Justice Cruzs words, is more important than securing a conviction based on a violation of the rights of the accused.[35] While going over the records, we were struck by the way the Sandiganbayan actively took part in the questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised this as an error, there is nevertheless no impediment for us to consider such matter as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not.[36] Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6) questions on cross-examination in the course of which the court interjected a total of twenty-seven (27) questions (more than four times Prosecutor Viernes questions and even more than the combined total of direct and cross-examination questions asked by the counsels). After the defense opted not to conduct any re-direct examination, the court further asked a total of ten 33 (10) questions.[37] The trend intensified during Tabuenas turn on the witness stand. Questions from the court after Tabuenas cross-examination totalled sixty-seven (67).[38] This is more than five times Prosecutor Viernes questions on cross-examination (14), and more than double the total of direct examination and cross-examination questions which is thirty-one (31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peraltas case, the Justices, after his cross-examination, propounded a total of forty-one (41) questions.[39] But more importantly, we note that the questions of the court were in the nature of cross examinations characteristic of confrontation, probing and insinuation.[40] (The insinuating type was best exemplified in one question addressed to Peralta, which will be underscored.) Thus we beg to quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked with asterisks and italicized for emphasis.) (MONERA) (As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation, they were nonetheless all due and demandable. What follows are the cross-examination of Prosecutor Viernes and the court questions). CROSS-EXAMINATION BY PROS. VIERNES Q You admit that as shown by these Exhibits 7 and 7-a, the items here represent mostly escalation billings. Were those escalation billings properly transmitted to MIA authorities? A I dont have the documents right now to show that they were transmitted, but I have a letter by our President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables from MIA, sir. *AJ AMORES *Q This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the determination as to the correct amount? A I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables. And, in fact, we have been following up for payment. *Q This determination of the escalation costs was it accepted as the correct figure by MIA? A I dont have any document as to the acceptance by MIA, your Honor, but our company was able to get a document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note or approval by former President Marcos. *PJ GARCHITORENA *Q Basically, the letter of Mr. Ongpin is to what effect? A The subject matter is approval of the supplementary contract and request for partial deferment of payment for MIA Development Project, your Honor. *Q It has nothing to do with the implementation of the escalation costs? A The details show that most of the accounts refer to our escalations, your Honor. *Q Does that indicate the computation for escalations were already billed or you do not have any proof of that? A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have confirmed our billings to MIA, your Honor. *AJ AMORES *Q Were there partial payments made by MIA on these escalation billings? A Based on records available as of today, the P102 million was reduced to about P56.7 million, if my recollection is correct, your Honor. *PJ GARCHITORENA *Q Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your company? WITNESS A The payments were made after December 31, 1985 but I think the payments were made before the entry of our President, your Honor. Actually, the payment was in the form of: assignments to State Investment of about P23 million; and then there was P17.8 million application against advances made or formerly given; and there were payments to PNCC of about P2.6 million and there was a payment for application on withholding and contractual stock of about P1 million; that summed up to P44.4 million all in all. And you deduct that from the P102 million, the remaining balance would be about P57 million. *PJ GARCHITORENA *Q What you are saying is that, for all the payments made on this P102 million, only P2 million had been payments in cash? A Yes, your Honor. *Q The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts? A Yes, your Honor. *Q This is as of December 31, 1985? A The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987. *Q We are talking now about the P44 million, more or less, by which the basic account has been reduced. These reductions, whether by adjustment or assignment or actual delivery of cash, were made after December 31, 1985? WITNESS A Yes, your Honor. *Q And your records indicate when these adjustments and payments were made? A Yes, your Honor. *AJ AMORES 34 *Q You said there were partial payments before of these escalation billings. Do we get it from you that there was an admission of these escalation costs as computed by you by MIA, since there was already partial payments? A Yes, your Honor. *Q How were these payments made before February 1986, in case or check, if there were payments made? A The P44 million payments was in the form of assignments, your Honor. *PJ GARCHITORENA *Q The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against these escalation billings? A I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were collections on page 2 of the Exhibit earlier presented. It will indicate that there were collections shown by credits indicated on the credit side of the ledger. *AJ AMORES *Q Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation billings. Was the payment in cash or just credit of some sort before December 31, 1985? A Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were payments in cash, your Honor. *Q Do you know how the manner of this payment in cash was made by MIA? A I do not know, your Honor. *PJ GARCHITORENA *Q But your records will indicate that? A The records will indicate that, your Honor. *Q Except that you were not asked to bring them? A Yes, your Honor. *Q At all events, we are talking of settlement or partial liquidation prior to December 31, 1985? A Yes, your Honor. *PJ GARCHITORENA *Q Subsequent thereto, we are talking merely of about P44 million? A Yes, your Honor, as subsequent settlements. *Q After December 31, 1985? A Yes, your Honor. *Q And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets and by P2 million of cash payment? A Yes, your Honor. *AJ AMORES *Q Your standard operating procedure before December 31, 1985 in connection with or in case of cash payment, was the payment in cash or check? A I would venture to say it was by check, your Honor. *Q Which is the safest way to do it? A Yes, your Honor. *PJ GARCHITORENA *Q And the business way? A Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did you say that that letter concurs with the escalation billings reflected in Exhibits 7 and 7-a? WITNESS A The Company or the management is of the opinion that this letter, a copy of which we were able to get, is a confirmation of the acceptance of our billings, sir. Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as appearing in Exhibit 7 are dated June 30, 1985, would you still insist that the letter of January 1985 confirms the escalation billings as of June 1985? A The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million after payments were made as shown on the credit side of the ledger. I suppose hat the earlier amount, before the payment was made, was bigger and therefore I would venture to say that the letter of January 7, 1985 contains an amount that is part of the original contract account. What are indicated in the ledger are escalation billings. *PJ GARCHITORENA *Q We are talking about the letter of Minister Ongpin? A The letter of Minister Ongpin refers to escalation billings, sir. *Q As of what date? A The letter is dated January 7, 1985, your Honor. PJ GARCHITORENA Continue. PROS. VIERNES Q In accordance with this letter marked Exhibit 7 and 7-a, there were credits made in favor of MIA in July and November until December 1985. These were properly credited to the account of MIA? WITNESS A Yes, sir. Q In 1986, from your records as appearing in Exhibit 7-a, there were no payments made to PNCC by MIA for the months of January to June 1986? A Yes, sir. Q And neither was the amount of P22 million remitted to PNCC by MIA? A Yes, sir. PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY ANDRES No redirect, your Honor. 35 *PJ GARCHITORENA Questions from the Court. *AJ AMORES *Q From your records, for the month of January 1986, there was no payment of this escalation account by MIA? WITNESS A Yes, your Honor. But on page 2 of Exhibit 7 there appears an assignment of P23 million, that was on September 25, 1986. *Q But that is already under the present administration? A After February 1986, your Honor. *Q But before February, in January 1986, there was no payment whatsoever by MIA to PNCC? A Per record there is none appearing, your Honor. *PJ GARCHITORENA *Q The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by assignment, or by offsets, when did these payments begin? A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor. *Q After December 31, 1985? A There appears also P23 million as credit, that is a form of settlement, your Honor. *Q This is as of September 25? A Yes, your Honor. There were subsequent settlements. P23 million is just part of the P44 million. *Q And what you are saying is that, PNCC passed the account to State Investment. In other words, State Investment bought the credit of MIA? A Yes, your Honor. *Q And the amount of credit or receivables sold by PNCC to State Investment is P23 million? A Yes, your Honor. *Q Is there a payback agreement? A I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor. *AJ AMORES *Q As of now, is this obligation of MIA, now NAIA, paid to PNCC? A There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated July 6, 1988, your Honor. The amount indicated in the letter is P55 million. PJ GARCHITORENA Any clarifications you would like to make Mr. Estebal? ATTY ESTEBAL None, your Honor. PJ GARCHITORENA Mr. Viernes? PROS VIERNES No more, your Honor. PJ GARCHITORENA The witness is excused. Thank you very much Mr. Monera. x x x.[41] (TABUENA) (In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three (3) dates as alleged in the information to Marcos private secretary Mrs. Jimenez at her office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the money for his own personal use.) CROSS-EXAMINATION BY PROS. VIERNES Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many occasions? A Three times, sir. Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez? A Yes, sir. Q It was only on January 30, 1986 that this receipt Exhibit 3 was issued by Mrs. Gimenez? A Yes, sir. *PJ GARCHITORENA *Q So January 30 is the date of the last delivery? A I remember it was on the 31st of January, your Honor. What happened is that, I did not notice the date placed by Mrs. Gimenez. *Q Are you telling us that this Exhibit 3 was incorrectly dated? A Yes, your Honor. *Q Because the third delivery was on January 31st and yet the receipt was dated January 30? A Yes, your Honor. *Q When was Exhibit 3 delivered actually by Mrs. Gimenez? A January 31st, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q You did not go to Malacaang on January 30, 1986? A Yes, sir, I did not. Q Do you know at whose instance this Exhibit 3 was prepared? A I asked for it, sir. Q You asked for it on January 31, 1986 when you made the last delivery? A Yes, sir. Q Did you see this Exhibit 3 prepared in the Office of Mrs. Gimenez? A Yes, sir. Q This receipt was typewritten in Malacaang stationery. Did you see who typed this receipt? 36 A No, sir. What happened is that, she went to her room and when she came out she gave me that receipt. *PJ GARCHITORENA *Q What you are saying is, you do not know who typed that receipt? WITNESS A Yes, your Honor. *Q Are you making an assumption that she typed that receipt? A Yes, your Honor, because she knows how to type. *Q Your assumption is that she typed it herself? A Yes, your Honor. PJ GARCHITORENA Proceed. PROS. VIERNES Q This receipt was prepared on January 31, although it is dated January 30? A Yes, sir, because I was there on January 31st. Q In what particular place did Mrs. Gimenez sign this Exhibit 3? A In her office at Aguado, sir. Q Did you actually see Mrs. Gimenez signing this receipt Exhibit 3? A No, sir, I did not. She was inside her room. Q So, she was in her room and when she came out of the room, she handed this receipt to you already typed and signed? A Yes, sir. *AJ HERMOSISIMA *Q So, how did you know this was the signature of Mrs. Gimenez? WITNESS A Because I know her signature, your Honor. I have been receiving letters from her also and when she requests for something from me. Her writing is familiar to me. *Q So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful? A What I mean is, I did not see her sign because she went to her room and when she came out, she gave me that receipt, your Honor. PJ GARCHITORENA That is why you have to wait for the question to be finished and listen to it carefully. Because when I asked you, you said you saw her signed it. Be careful Mr. Tabuena. WITNESS Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit 3? A Nobody, sir. Q I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do we understand from you that this date January 30 is erroneous? A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st, sir. PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY. ANDRES No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. *AJ HERMOSISIMA *Q Why did you not ask for a receipt on the first and second deliveries? A Because I know that the delivery was not complete yet, your Honor. *PJ GARCHITORENA *Q So you know that the total amount to be delivered was P55 million? A Yes, your Honor. PJ GARCHITORENA Response by Mr. Peralta to the testimony of Mr. Tabuena. ATTY. ESTEBAL We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor. *AJ DEL ROSARIO *Q From whom did you receive the Presidents memorandum marked Exhibit 1? Or more precisely, who handed you this memorandum? A Mrs. Fe Roa Gimenez, your Honor. *Q Did you ask Mrs. Fe Gimenez for what purpose the money was being asked? A The money was in payment for the debt of the MIA Authority to PNCC, your Honor. *Q If it was for the payment of such obligation why was there no voucher prepared to cover such payment? In other words, why was the delivery of the money not covered by any voucher?Calrky A The instruction to me was to give it to the Office of the President, your Honor. *PJ GARCHITORENA *Q Be that as it may, why was there no voucher to cover this particular disbursement? A I was just told to bring it to the Office of the President, your Honor. *AJ DEL ROSARIO *Q Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA in payment of its obligation to another entity? WITNESS 37 A No, your Honor, I was just following the Order to me of the President. *PJ GARCHITORENA *Q So the Order was out of the ordinary? A Yes, your Honor. *AJ DEL ROSARIO *Q Did you file any written protest with the manner with which such payment was being ordered? A No, your Honor. *Q Why not? A Because with that instruction of the President to me, I followed, your Honor. *Q Before receiving this memorandum Exhibit 1, did the former President Marcos discuss this matter with you? A Yes, your Honor. *Q When was that? A He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his office in cash, your Honor. *PJ GARCHITORENA *Q By I OWE, you mean the MIAA? WITNESS A Yes, your Honor. *AJ DEL ROSARIO *Q And what did you say in this discussion you had with him? A I just said, Yes, sir, I will do it/ *Q Were you the one who asked for a memorandum to be signed by him? A No, your Honor. *Q After receiving that verbal instruction for you to pay MIAAs obligation with PNCC, did you not on your own accord already prepare the necessary papers and documents for the payment of that obligation? A He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming, your Honor. I will receive it. *Q Is this the first time you received such a memorandum from the President? A Yes, your Honor. *Q And was that the last time also that you received such a memorandum? A Yes, your Honor. *Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be followed instead of the regular procedure? A: No, sir. *AJ DEL ROSARIO *Q Why did you not ask? A I was just ordered to do this thing, your Honor. *AJ HERMOSISIMA *Q You said there was an I OWE YOU? A Yes, your Honor. *Q Where is that I OWE YOU now? A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that amount. *Q Was this payment covered by receipt from the PNCC? A It was not covered, your Honor. *Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment? A Based on the order to me by the former President Marcos ordering me to pay that amount to his office and then the mechanics will come after, your Honor. *Q Is the PNCC a private corporation or government entity? A I think it is partly government, your Honor. *PJ GARCHITORENA *Q That is the former CDCP? A Yes, your Honor. *AJ HERMOSISIMA *Q Why were you not made to pay directly to the PNCC considering that you are the Manager of MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacaang? WITNESS A I was just basing it from the Order of Malacaang to pay PNCC through the Office of the President, your Honor. *Q Do you know the President or Chairman of the Board of PNCC? A Yes, your Honor. *Q How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the Board? A PNCC was the one that constructed the MIA, your Honor. *Q Was the obligation incurred through the President or Chairman of the Board or President of the PNCC? In other words, who signed the contract between PNCC and MIAA? A Actually, we inherited this obligation, your Honor. The one who signed for this was the former Director of BAT which is General Singzon. Then when the MIA Authority was formed, all the obligations of BAT were transferred to MIAA. So the accountabilities of BAT were transferred to MIAA and we are the ones that are going to pay, your Honor. *Q Why did you agree to pay to Malacaang when your obligation was with the PNCC? A I was ordered by the President to do that, your Honor. *Q You agreed to the order of the President notwithstanding the fact that this was not the regular course or Malacaang was not the creditor? A I saw nothing wrong with that because that is coming from the President, your Honor. *Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount through a mere receipt from the private secretary? A I was ordered by the President, your Honor. *PJ GARCHITORENA 38 *Q There is no question and it can be a matter of judicial knowledge that you have been with the MIA for sometime? A Yes, your Honor. *Q Prior to 1986? A Yes, your Honor. *Q Can you tell us when you became the Manager of MIA? A I became Manager of MIA way back, late 1968, your Honor. *Q Long before the MIA was constituted as an independent authority? A Yes, your Honor. *PJ GARCHITORENA *Q And by 1986, you have been running the MIA for 18 years? WITNESS A Yes, your Honor. *Q And prior to your joining the MIA, did you ever work for the government? A No, your Honor. *Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first employment with the government? A Yes, your Honor. *Q While you were Manager of MIA, did you have other subsequent concurrent positions in the government also? A I was also the Chairman of the Games and Amusement Board, your Honor. *Q But you were not the executive or operating officer of the Games and Amusement Board? A I was, your Honor. *Q As Chairman you were running the Games and Amusement Board? A Yes, your Honor. *Q What else, what other government positions did you occupy that time? A I was also Commissioner of the Game Fowl Commission, your Honor. *PJ GARCHITORENA *Q That is the cockfighting? WITNESS A Yes, your Honor. *Q Here, you were just a member of the Board? A Yes, your Honor. *Q So you were not running the commission? A Yes, your Honor. *Q Any other entity? A No more, your Honor. *Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18 years, you also ran the Games and Amusement Board as its executive officer? A Yes, your Honor. *Q And you were a commissioner only of the Game Fowl Commission? A Yes, your Honor. *Q Who was running the commission at that time? A I forgot his name, but he retired already, your Honor. *Q All of us who joined the government, sooner or later, meet with our Resident COA representative? A Yes, your Honor. *PJ GARCHITORENA *Q And one of our unfortunate experience (sic) is when the COA Representative comes to us and says: Chairman or Manager, this cannot be. And we learn later on that COA has reasons for its procedure and we learn to adopt to them? WITNESS A Yes, your Honor. *Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know there is reason in this apparent madness of the COA and so we comply? A Yes, your Honor. *Q And more than anything else the COA is ever anxious for proper documentation and proper supporting papers? A Yes, your Honor. *Q Sometimes, regardless of the amount? A Yes, your Honor. *Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal secretary. After almost 18 years in the government service and having had that much time in dealing with COA people, did it not occur to you to call a COA representative and say, What will I do here? A I did not, your Honor. *PJ GARCHITORENA *Q Did you not think that at least out of prudence, you should have asked the COA for some guidance on this matter so that you will do it properly? WITNESS A What I was going to do is, after those things I was going to tell that delivery ordered by the President to the COA, your Honor. *Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests for issuance of Managers checks and you were accommodated by the PNB Office at Nichols without any internal documentation to justify your request for Managers checks? A Yes, your Honor. *Q Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the Daily Express, which was considered to be a newspaper friendly to the Marcoses at that time, would occasionally come with so-called expose, is that not so? A Yes, your Honor. *Q And worst, you had the so-called mosquito press that would always come out with the real or imagined scandal in the government and place it in the headline, do you recall that? A Yes, your Honor. 39 *PJ GARCHITORENA *Q Under these circumstances, did you not entertain some apprehension that some disloyal employees might leak you out and banner headline it in some mosquito publications like the Malaya at that time? WITNESS A No, your Honor. *PJ GARCHITORENA I bring this up because we are trying to find out different areas of fear. We are in the government and we in the government fear the COA and we also fear the press. We might get dragged into press releases on the most innocent thing. You believe that? A Yes, your Honor. *Q And usually our best defense is that these activities are properly documented? A Yes, your Honor. *Q In this particular instance, your witnesses have told us about three (3) different trips from Nichols to Aguado usually late in the day almost in movie style fashion. I mean, the money being loaded in the trunk of your official car and then you had a back-up truck following your car? A Yes, your Honor. *Q Is that not quite a fearful experience to you? A I did not think of that at that time, your Honor. *PJ GARCHITORENA *Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of your car? WITNESS A We have security at that time your Honor. ATTY. ANDRES Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car. *PJ GARCHITORENA Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of your car, was that not a nervous experience? A As I have said, your Honor, I never thought of that. PJ GARCHITORENA Thank you very much, Mr. Tabuena. You are excused. x x x.[42] (PERALTA) (He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of the Managers Check for P5 Million upon order of Tabuena and that he [Peralta] was aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having misappropriated for his own benefit said amount or any portion thereof.) CROSS-EXAMINATION BY PROS VIERNES Q Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr. Tabuena the request for issuance of Managers check in the amount of P5 million? A At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should have my signature because I was one of the signatories at that time. Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests for the issuance of Managers checks by the PNB? A That is the only occasion I signed, sir. Q Did you say you were ordered by Mr. Tabuena to sign the request? A Yes, sir, and I think the order is part of the exhibits. And based on that order, I co-signed in the request for the issuance of Managers check in favor of Mr. Luis Tabuena. PROS VIERNES Q Was there a separate written order for you to co-sign with Mr. Tabuena? WITNESS A Yes, sir, an order was given to me by Mr. Tabuena. *PJ GARCHITORENA Was that marked in evidence? WITNESS Yes, your Honor. *PJ GARCHITORENA What exhibit? WITNESS I have here a copy, your Honor. This was the order and it was marked as exhibit N. PROS VIERNES It was marked as Exhibit M, your Honor. Q How did you know there was an existing liability of MIAA in favor of PNCC at that time? A Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of December 31, 1985 and it came to my attention that there was an existing liability of around P27,999,000.00, your Honor. Q When was that Financial Statement prepared? A I prepared it around January 22 or 24, something like that, of 1986, sir. Q Is it your usual practice to prepare the Financial Statement after the end of the year within three (3) weeks after the end of the year? A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th Friday of the month because there will be a Board of Directors Meeting and the Financial Statement of the prior month will be presented and discussed during the meeting. *PJ GARCHITORENA 40 *Q This matter of preparing Financial Statement was not an annual activity but a monthly activity? A Yes, your Honor. *Q This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the end of the year? A Yes, your Honor. PJ GARCHITORENA Continue. PROS VIERNES Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally see that request? A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file because I just read it. Q It was Mr. Tabuena who showed you the letter of Minister Ongpin? A Yes, sir. *PJ GARCHITORENA And that will be Exhibit? ATTY. ANDRES Exhibit 2 and 2-A, your Honor. PROS VIERNES Q You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the PNB Extension Office at Villamor? A Yes, sir. Q Why was it necessary for you to go with him on that occasion? A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5 million and it was placed in two (2) peerless boxes. Q Did you actually participate in the counting of the money by bundles? A Yes, sir. Q Bundles of how much per bundle? A If I remember right, the bundles consisted of P100s and P50s, sir. Q No P20s and P10s? A Yes, sir, I think it was only P100s and P50s. *PJ GARCHITORENA *Q If there were other denominations, you can not recall? A Yes, your Honor. PROS VIERNES Q In how many boxes were those bills placed? A The P5 million were placed in two (2) peerless boxes, sir. Q And you also went with Mr. Tabuena to Aguado? A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was left behind and I went back to my office at MIA. Q But the fact is that, this P5 million was withdrawn at passed 5:00 oclock in the afternoon? A I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around 4:00 oclock and we started counting at around 4:30 p.m. because they have to place it in a room, which is the office of the Manager at that time. Q And Mr. Tabuena left for Malacaang after 5:00 oclock in the afternoon of that date? A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for Malacaang. PROS VIERNES Q And you yourself, returned to your office at MIA? WITNESS A Yes, sir. Q Until what time do you hold office at the MIA? A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir. Q So, even if it was already after 5:00 oclock in the afternoon, you still went back to your office at MIA? A Yes, sir. PROS VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY. ESTEBAL No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. *AJ DEL ROSARIO *Q Did you not consider it as odd that your obligation with the PNCC had to be paid in cash? WITNESS A Based on the order of President Marcos that we should pay in cash, it was not based on the normal procedure, your Honor. *Q And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by vouchers? A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did was to prepare a request to the PNB, then this can be covered by Journal Voucher also. *Q Was such payment of P5 million covered by a Journal Voucher? A Yes, your Honor. *Q Did you present that Journal Voucher here in Court? A We have a copy, your Honor. *Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment? A We have a copy of the Journal Voucher, your Honor. *Q Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA? A The payment of P5 million was recorded in a Journal Voucher, your Honor. *PJ GARCHITORENA 41 *Q In other words, the recording was made directly to the Journal? WITNESS A Yes, your Honor. *Q There are no other separate documents as part of the application for Managers Check? A Yes, your Honor, there was none. *AJ DEL ROSARIO *Q After the payment was made, did your office receive any receipt from PNCC? A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch as the payment should be made through the Office of the president, I accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena. *Q After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use that receipt as a supporting document to the voucher? A Your Honor, a Journal Voucher was prepared for that. *Q How about a disbursement voucher? A Inasmuch as this was a request for Managers check, no disbursement voucher was prepared, your Honor. *AJ DEL ROSARIO *Q Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purpose? ATTY. ESTEBAL With due respect to the Honorable Justice, we are objecting to the question on the ground that it is improper. *AJ DEL ROSARIO I will withdraw the question. *PJ GARCHITORENA What is the ground for impropriety? ATTY. ESTEBAL This is not covered in the direct examination, and secondly, I dont think there was any basis, your Honor. *PJ GARCHITORENA Considering the withdrawal of the question, just make the objection on record. *AJ HERMOSISIMA *Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper that a check be issued only after it is covered by a disbursement voucher duly approved by the proper authorities? A Your Honor, what we did was to send a request for a Managers check to the PNB based on the request of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos. *PJ GARCHITORENA *Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this transaction covered by a disbursement voucher? WITNESS A Based on my experience, payments out of cash can be made through cash vouchers, or even though Journal Vouchers, or even through credit memo, your Honor. *AJ HERMOSISIMA *Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of check in favor of Mr. Luis Tabuena, your own manager? A We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to pay PNCC through the Office of the President and it should be paid in cash, your Honor. *Q You are supposed to pay only on legal orders. Did you consider that legal? ATTY. ESTEBAL With due respect to the Honorable Justice, the question calls for a conclusion of the witness. *PJ GARCHITORENA Considering that the witness is an expert, witness may answer. WITNESS A The order of president Marcos was legal at that time because the order was to pay PNCC the amount of P5 million through the Office of the President and it should be paid in cash, your Honor. And at that time, I know for a fact also that there was an existing P.D. wherein the President of the Republic of the Philippines can transfer funds from one office to another and the PNCC is a quasi government entity at that time. *AJ HERMOSISIMA *Q Are you saying that this transaction was made on the basis of that P.D. which you referred to? A I am not aware of the motive of the President, but then since he is the President of the Philippines, his order was to pay the PNCC through the Office of the President, your Honor. *Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of MIAA is supposed to be paid in check? A I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and also he received an order coming from the President of the Philippines at that time, your Honor. *PJ GARCHITORENA *Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal? In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded. WITNESS A Yes, your Honor. 42 *Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions? A Yes, your Honor. *Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented? ATTY. ESTEBAL With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is... *PJ GARCHITORENA Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him. ATTY. ESTEBAL No, your Honor. I am also an accountant that is why I could say that... *PJ GARCHITORENA Please be simple in your objection. ATTY. ESTEBAL The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor. *PJ GARCHITORENA Overruled, may answer. WITNESS A The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor. *Q Are you saying the Order of the General Manager is an adequate basis for the movement of money? A Yes, your Honor, because at that time we have also a recorded liability of P27 million. *Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds? A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00, inasmuch as we have that liability and I was shown the order of President Marcos to pay P5 million through the Office of the President, I considered the order of Mr. Luis Tabuena, the order of President Marcos and also the existing liability of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is also an escalation clause of P99.1 million, the payment of P5 million is fully covered by those existing documents. *PJ GARCHITORENA You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds? WITNESS When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact that there was this existing liability. *PJ GARCHITORENA When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda. *Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate? WITNESS A As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of President Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order of President Marcos, and also the memorandum of Minister Ongpin are sufficient to cause the payment of P5 million. *PJ GARCHITORENA *Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned? WITNESS A Because at that time, your Honor, I have knowledge that the President is authorized through a Presidential Decree to transfer government funds from one office to another. *PJ GARCHITORENA *Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act? A I think the liability was duly recorded and appropriations to pay the amount is..... (interrupted) *PJ GARCHITORENA *Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is? A No, your Honor. *Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree? A I was aware of that Decree, your Honor. *PJ GARCHITORENA Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds? ATTY. ESTEBAL Yes, your Honor. *PJ GARCHITORENA *Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he? 43 A No, your Honor. *Q In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not? A Yes, your Honor. *Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him? A Yes, your Honor. *Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes? A Yes, your Honor. *Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose? A Yes, your Honor. *PJ GARCHITORENA *Q In other words, the co-signatories counter check each other? WITNESS A Yes, your Honor. *Q In your case, you would be the counter check for Mr. Tabuena? A Yes, your Honor. *Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it., if in your opinion the disbursement is not proper? A Yes, your Honor. *Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction? A Yes, your Honor. *Q And this is something you know by the nature of your position and because you are a Certified Public Accountant? A Yes, your Honor. *AJ DEL ROSARIO *Q You admit that the payment of P5 million and P50 million were unusual in the manner with which they were disposed? A Yes, your Honor. *Q Did you submit a written protest to the manner in which such amount was being disposed of? A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this payment was upon the order of President Marcos, then I think as President he can do things which are not ordinary. *Q If you did not prepare a written protest, did you at least prepare a memorandum for the record that this was an extra-ordinary transaction? A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your Honor. PJ GARCHITORENA Thank you very much Mr. Peralta, you are excused. x x x.[43] This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides.[44] But not only should his examination be limited to asking clarificatory questions,[45] the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of the trial.[46] Here, these limitations were not observed. Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross-examinations supplementing those made by Prosecutor Viernes and far exceeding the latters questions in length. The cold neutrality of an impartial judge requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion to the effect that the majority of this Court was unduly disturbed with the number of court questions alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the majority opinion not to focus on numbers alone, but more importantly to show that the court questions were in the interest of the prosecution and which thus depart from that common standard of fairness and impartiality. In fact, it is very difficult to be, upon review of the records, confronted with numbers without necessarily realizing the partiality of the Court. In US v. De Sisto (2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this case, indulged in extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on numbers to bolster this. It was pointed out in the De Sisto case that the judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judges questions to the defendant De Sisto totalled 306, the prosecutors 347, and the defense counsels, 201. After referring to these figures, the court stated: . . . It is indeed an impressive proportion, but no such mathematical computation is of itself determinative. However, taking all this in conjunction with the long and vigorous examination of the defendant himself by the judge, and the repeated belittling by the judge of defendants efforts to establish the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here conveyed to the jury too strong an impression of the courts belief in the defendants probable guilt to permit the jury freely to perform its own function of independent determination of the facts. x x x The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it cannot be justified under the norm applied to a jury trial, or even under the standard employed in a non-jury trial where the judge is admittedly given more leeway in propounding questions to clarify points and to elicit additional relevant evidence. At the risk of being 44 repetitious, we will amplify on this via some specific examples. Based on the evidence on record, and on the admission of Tabuena himself, the P55 million was delivered to the Presidents Office thru Mrs. Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta: AJ DEL ROSARIO Q: Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purposes? ATTY. ESTEBAL With due respect to the Honorable Justice, We are objecting to the question on the ground that it is improper. AJ DEL ROSARIO I will withdraw the question. PJ GARCHITORENA What is the ground for impropriety? ATTY. ESTEBAL This is not covered in the direct examination, and secondly, I dont think there was any basis, Your Honor. PJ GARCHITORENA Considering the withdrawal of the question, just make the objection on record. Nothing from the preceding questions of counsels or of the court would serve as basis for this question. How then, can this be considered even relevant? What is the connection between the payment made to the Presidents office and the then forthcoming presidential snap election? In another instance, consider the following questions of Presiding Justice Garchitorena: *PJ GARCHITORENA *Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal? xxx *Q In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded. xxx *Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions? xxx *Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented? ATTY. ESTEBAL With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is... *PJ GARCHITORENA Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him. ATTY. ESTEBAL No, your Honor. I am also an accountant that is why I could say that... *PJ GARCHITORENA Please be simple in your objection. ATTY. ESTEBAL The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor. *PJ GARCHITORENA Overruled, may answer. WITNESS A The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor. *Q Are you saying the Order of the General Manager is an adequate basis for the movement of money? *Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds? *PJ GARCHITORENA You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds? *PJ GARCHITORENA When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda. *Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate? *PJ GARCHITORENA *Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned? *PJ GARCHITORENA *Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act? *PJ GARCHITORENA *Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is? xxx 45 *Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree? *PJ GARCHITORENA Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds? ATTY. ESTEBAL Yes, your Honor. *PJ GARCHITORENA *Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he? *Q In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not? *Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him? *Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes? *Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose? *PJ GARCHITORENA *Q In other words, the co-signatories counter check each other? *Q In your case, you would be the counter check for Mr. Tabuena? *Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it., if in your opinion the disbursement is not proper? *Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction? *Q And this is something you know by the nature of your position and because you are a Certified Public Accountant?[47] How can these questions be considered clarificatory when they clearly border more on cross-examination questions? Thus, the Dissenting Opinions focus on the distinction between the two kinds of trial to justify the Sandiganbayans active participation in the examination of petitioners Tabuena and Peralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be emphasized anew that: A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the prosecution.[48] We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge may be for the enforcement of the law, he should always remember that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the interests of society.[49] Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances may be such in a given case as to justify the court in so doing....This court, however, has more than once said that the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an extensive examination. It is always embarrassing for counsel to object to what he may deem improper questions by the court. Then, in conducting a lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to be determined by the circumstances of each particular case, but in so doing he must not forget the function of the judge and assume that of an advocate....[50] While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it must be understood that we have not adopted in this country the practice of making the presiding judge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial procedure, even at the expense of occasional delays....The judge is an important figure in the trial of a cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail, we can conceive of no other reason, for him to take the trial of the cause out of the hands of counsel.[51] The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare and the conditions exceptional in a high degree which will justify the presiding judge in entering upon and conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem such action necessary or advisable.[52] He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.[53] 46 The impartiality of the judge his avoidance of the appearance of becoming the advocate of either one side or the other of the pending controversy is a fundamental and essential rule of special importance in criminal cases....[54] FIRST DIVISION Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and to dispose of these cases speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain from showing any semblance of one-sided or more or less partial attitude in order not to create any false impression in the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the preservation of the peoples faith in our courts.[55] Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process.[56] We are well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching themselves at the expense of the public would be able to escape criminal liability by the mere expedient of invoking good faith. It must never be forgotten, however, that we render justice on a case to case basis, always in consideration of the evidence that is presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise of conscience to grant the same. On the other hand, it does not follow that all those similarly accused will necessarily be acquitted upon reliance on this case as a precedent. For the decision in this case to be a precedent, the peculiar circumstances and the evidence that led to the petitioners acquittal must also be present in subsequent cases. Furthermore, as between a mere apprehension of a dangerous precedent and an actual violation of constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent. WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated December 20, 1991 are REVERSED and SET ASIDE. SO ORDERED. RIMBERTO T. SALVANERA, Petitioner, - versus PEOPLE OF THE PHILIPPINES and LUCITA PARANE, Respondents. G.R. No. 143093 Present: PUNO, C.J., Chairperson, SANDOVAL-GUTIERREZ, CORONA, AZCUNA, and GARCIA, JJ. Promulgated: May 21, 2007 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -----x DECISION PUNO, C.J.: On appeal are the Decision dated April 30, 1999 and the two Resolutions of the Court of Appeals, dated September 22, 1999 and May 11, 2000, in CAG.R. SP No. 46945. The Court of Appeals discharged accused Feliciano Abutin and Domingo Tampelix from the Information in Criminal Case No. TM1730 for Murder, pending before the Regional Trial Court of Trece Martires City, to become state witnesses. The appellate court likewise cancelled the bail bond of petitioner Rimberto Salvanera. First, the facts: In an Information[1] dated November 30, 1996, petitioner Rimberto Salvanera, together with Feliciano Abutin, Edgardo Lungcay and Domingo Tampelix, is charged with the murder of Ruben Parane, committed as follows: That on or about October 23, 1995, in the Municipality of Gen. Trias, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping each other, with treachery and evident premeditation, then armed with a firearm, did, then and there, wilfully, unlawfully and feloniously assault, 47 attack and shoot one RUBEN PARANE Y MAGSAMBOL, inflicting gunshot wound on his body, resulting to his instantaneous death, to the damage and prejudice of the heirs of the said victim. CONTRARY TO LAW. As per theory of the prosecution, petitioner was the alleged mastermind; Lungcay, the hired hitman; Abutin, the driver of the motorcycle which carried Lungcay to the place of the commission of the crime; while Tampelix delivered the blood money to the latter. All the accused have been arrested and detained, except Edgardo Lungcay who remained at-large. Respondent Lucita Parane is the spouse of victim Ruben Parane. On January 22, 1997, petitioner applied for bail. The prosecution, on March 4, 1997, moved for the discharge of accused Feliciano Abutin and Domingo Tampelix, to serve as state witnesses. In an Omnibus Order[2] dated September 5, 1997, the trial court granted petitioners application for bail and denied the prosecutions motion for the discharge of accused Abutin and Tampelix. The prosecution moved for reconsideration but the motion was denied. The prosecution then appealed to the Court of Appeals. It contended that the trial court committed grave abuse of discretion when it denied the motion to discharge accused Abutin and Tampelix to be state witnesses. It alleged that the testimonies of the two accused are absolutely necessary to establish that petitioner masterminded the murder of Ruben Parane. The prosecution likewise claimed that it was premature and baseless for the trial court to grant petitioners application for bail because the prosecution had not yet rested its case in the hearing for the discharge of the two accused. The Court of Appeals sustained the prosecution. It discharged accused Feliciano Abutin and Domingo Tampelix from the Information to become state witnesses, and cancelled the bail bond of petitioner Salvanera. In its Resolution dated September 22, 1999, it denied petitioner's Motion for Reconsideration. Petitioner then filed his Motion for Clarification with Leave of Court. The same was also denied in a Resolution dated May 11, 2000. Hence, this appeal. Petitioner enumerates the grounds for his appeal, as follows: I. RESPONDENT COURT OF APPEALS COMMITTED SERIOUS ERROR IN RENDERING THE FIRST, SECOND AND THIRD ASSAILED ORDERS DEFYING LAW AND JURISPRUDENCE THEREON WHEN IT RULED THAT THE SUBSTANTIAL CORROBORATION REQUIREMENT UNDER SECTION 9, RULE 119 OF THE REVISED RULES OF COURT WAS SATISFIED BY THE PROSECUTION DESPITE THE FACT THAT A. THE SUBSTANTIAL CORROBORATION REQUIREMENT MUST BE SATISFIED THROUGH THE TESTIMONY OF THE OTHER PROSECUTION WITNESSES WHO ARE NOT AN (sic) ACCUSED SOUGHT TO BE DISCHARGED AS STATE WITNESS, NOT BY ANOTHER ACCUSED LIKEWISE SOUGHT TO BE DISCHARGED. B. THE SWORN STATEMENT OF AN ACCUSED SOUGHT TO BE DISCHARGED CANNOT BE USED AS EVIDENCE FOR PURPOSES OTHER THAN HIS OWN DISCHARGE PRIOR TO THE ISSUANCE BY A COMPETENT COURT OF THE ORDER OF HIS DISCHARGE. C. THE TESTIMONIES OF ABUTIN AND TAMPELIX CANNOT BE SUBSTANTIALLY CORROBORATED IN ITS MATERIAL POINTS BY THE OTHER PROSECUTION WITNESSES. D. THE TESTIMONY GIVEN BY AN ACCUSED SOUGHT TO BE DISCHARGED AS STATE WITNESS CANNOT BE USED TO CORROBORATE THE TESTIMONY GIVEN BY ANOTHER ACCUSED LIKEWISE SOUGHT TO BE DISCHARGED AS STATE WITNESS. II. RESPONDENT COURT OF APPEALS COMMITTED SERIOUS ERROR IN RENDERING THE FIRST, SECOND AND THIRD ASSAILED ORDERS, DEFYING LAW AND JURISPRUDENCE ON THE MATTER, WHEN IT CANCELLED PETITIONER'S BAIL BOND DESPITE THE FACT THAT THE TRIAL COURT JUDGE ALREADY RULED THAT THE EVIDENCE OF HIS GUILT IS NOT STRONG.[3] We uphold the ruling of the Court of Appeals. In the discharge of an accused in order that he may be a state witness, the following conditions must be present, namely: (1) Two or more accused are jointly charged with the commission of an offense; (2) The motion for discharge is filed by the prosecution before it rests its case; (3) The prosecution is required to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge; (4) The accused gives his consent to be a state witness; and (5) The trial court is satisfied that: a) There is absolute necessity for the testimony of the accused whose discharge is requested; b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; c) The testimony of said accused can be substantially corroborated in its material points; d) Said accused does not appear to be the most guilty; and, e) Said accused has not at any time been convicted of any offense involving moral turpitude.[4] According to petitioner, the testimony of an accused sought to be discharged to become a state witness must be substantially corroborated, not by a coaccused likewise sought to be discharged, but by other prosecution witnesses who are not the accused in the same criminal case. Petitioner justifies this theory on the general principles of justice and sound logic. He contends that it is a notorious fact in human nature that a culprit, confessing a crime, is likely to put the blame on others, if by doing so, he will be freed from any criminal responsibility. Thus, in the instant case, petitioner supposes that both Abutin and Tampelix will naturally seize the opportunity to be absolved of any liability by putting the blame on one of their co-accused. 48 Petitioner argues that prosecution witnesses Parane and Salazar, who are not accused, do not have personal knowledge of the circumstances surrounding the alleged conspiracy. Thus, they could not testify to corroborate the statement of Abutin and Tampelix that petitioner is the mastermind or the principal by induction. We agree with the Court of Appeals in dismissing this reasoning as specious. To require the two witnesses Parane and Salazar to corroborate the testimony of Abutin and Tampelix on the exact same points is to render nugatory the other requisite that there must be no other direct evidence available for the proper prosecution of the offense committed, except the testimony of the state witness.[5] The corroborative evidence required by the Rules does not have to consist of the very same evidence as will be testified on by the proposed state witnesses. We have ruled that a conspiracy is more readily proved by the acts of a fellow criminal than by any other method. If it is shown that the statements of the conspirator are corroborated by other evidence, then we have convincing proof of veracity. Even if the confirmatory testimony only applies to some particulars, we can properly infer that the witness has told the truth in other respects.[6] It is enough that the testimony of a co-conspirator is corroborated by some other witness or evidence. In the case at bar, we are satisfied from a reading of the records that the testimonies of Abutin and Tampelix are corroborated on important points by each others testimonies and the circumstances disclosed through the testimonies of the other prosecution witnesses, and to such extent that their trustworthiness becomes manifest.[7] As part of the conspiracy, Abutin and Tampelix can testify on the criminal plan of the conspirators. Where a crime is contrived in secret, the discharge of one of the conspirators is essential because only they have knowledge of the crime.[8] The other prosecution witnesses are not eyewitnesses to the crime, as, in fact, there is none. No one except the conspirators knew and witnessed the murder. The testimonies of the accused and proposed state witnesses Abutin and Tampelix can directly link petitioner to the commission of the crime. In Chua v. Court of Appeals,[9] we ruled that the trial court has to rely on the information offered by the public prosecutor as to who would best qualify as a state witness. The prosecutor knows the evidence in his possession and the witnesses he needs to establish his case. In Mapa v. Sandiganbayan,[10] we held: The decision to grant immunity from prosecution forms a constituent part of the prosecution process. It is essentially a tactical decision to forego prosecution of a person for government to achieve a higher objective. It is a deliberate renunciation of the right of the State to prosecute all who appear to be guilty of having committed a crime. Its justification lies in the particular need of the State to obtain the conviction of the more guilty criminals who, otherwise, will probably elude the long arm of the law. Whether or not the delicate power should be exercised, who should be extended the privilege, the timing of its grant, are questions addressed solely to the sound judgment of the prosecution. The power to prosecute includes the right to determine who shall be prosecuted and the corollary right to decide whom not to prosecute. We further ruled: In reviewing the exercise of prosecutorial discretion in these areas, the jurisdiction of the respondent court is limited. For the business of a court of justice is to be an impartial tribunal, and not to get involved with the success or failure of the prosecution to prosecute. Every now and then, the prosecution may err in the selection of its strategies, but such errors are not for neutral courts to rectify, any more than courts should correct the blunders of the defense. For fairness demands that courts keep the scales of justice at equipoise between and among all litigants. Due process demands that courts should strive to maintain the legal playing field perfectly even and perpetually level. Lastly, we affirm the ruling of the appellate court in cancelling the bail bond of petitioner. The grant of petitioners application for bail is premature. It has to await the testimony of state witnesses Abutin and Tampelix. Their testimonies must be given their proper weight in determining whether the petitioner is entitled to bail. IN VIEW WHEREOF, the petition is DENIED and the Decision and Resolutions of the Court of Appeals in CA-G.R. SP No. 46945, dated April 30, 1999, September 22, 1999 and May 11, 2000, respectively, are AFFIRMED in toto. SO ORDERED. 49