G.R. No. L-67422-24 October 31, 1984 FERNANDO VALDEZ alias WILSON VALDEZ, petitioner, vs.

HONORABLE JUDGE GREGORIO U. AQUILIZAN, Presiding Judge of the Regional Trial Court, 12th Judicial Region, Branch XVI, Kabacan, North Cotabato, respondents. ABAD SANTOS, J.:+.wph!1 This is a petition for certiorari which was posted on March 22, 1984, in Cotabato City by speed airmail but was received only on April 26, 1984. The petitioner is accused of rape in three cases Criminal Case Nos. 13, 14 and 15 filed in the court presided by the respondent judge. The private complainant is the same in all the three cases but the rapes were alleged to have been committed on different dates, namely: February 10, 1982, March 17, 1982 and April 10, 1982. The petition seeks to annul the proceedings which were conducted by the respondent judge and to disqualify him from the case. Because the verified petition imputed serious irregularities to the respondent judge, this Court issued a temporary restraining order on May 21, 1984, restraining him from further proceeding with Criminal Case Nos. 13, 14 and 15. In the comment which the respondent judge was required to submit, he said that he had already decided the three cases. (Petitioner Wilson Valdez was convicted of rape in each of the three cases and was sentenced to threereclusion perpetua plus indemnity.) The decision is dated April 2, 1984, but the petitioner claims that it was promulgated on May 3, 1984, without the presence of his counsel and even of the Fiscal; that no notice was issued in respect of the promulgation; and that no copy of the decision was given to the defense counsel of record. The case was set for hearing on August 6, 1984, and thereafter the Court issued a resolution which reads: t.hqw At the hearing this morning the following appeared: Attys. Jose V. Juan and Antonio T. Nicolas of the Special Appealed Cases Division, Citizens' Legal Assistance Office, Ministry of Justice, Padre Faura, Manila, for the petitioner; respondent Judge Gregorio U. Aquilizan on his own behalf; and North Cotabato Provincial Fiscal Aquiles Narajos who brought the record of Criminal Case Nos. 13, 14 and 15 in the sala of the respondent judge. Counsels for the petitioner mentioned several irregularities said to have been committed by the respondent judge in the handling of the case abovementioned. Resort to the record proved to be fruitless because it was grossly deficient. Counsels for the petitioner are hereby given ten (10) days from notice hereof to submit a memorandum specifying the irregularities said to have been committed by the respondent judge with supporting evidence. A copy of the memorandum shall be furnished to the respondent judge who is required to answer the same point by point within ten (10) days from receipt. (Rollo, p. 127.) The memoranda are now before this Court and the immediate reaction is that the petition is highly impressed with merit. In the hearing of the three criminal cases on May 26, 1983, the private complainant was to be crossexamined inasmuch as her direct examination had been finished at the previous hearing on April 7, 1983. On May 26, the private prosecutor, Atty. Norberto Ela, was absent. Thereafter, the respondent judge stated: "It appears in the records that the complaining witness is still under cross. It is the Honorable Judge who is examining her ... (Addressing the witness) During the last hearing of this case, the Honorable Court reserved its right to cross examine you on your testimony." And the respondent judge examined the witness but the examination is better described as direct rather than cross. Witness the following: t.hqw COURT: ... After going over the records of the cases and the supposed exhibits, you mentioned about a pair of scissors used to intimidate you, coerced and forced by the accused, by pressing the same at your left side? A. Yes, your Honor. COURT: Proceed Fiscal. FISCAL FULVADORA: Q You mentioned about a pair of scissors used by the accused. Showing to you this scissors, what relation is this scissors which was used by the accused in threatening you on February 10, 1982? A Yes, sir, this is the one being used by him.

COURT: Q Is this the very scissors that you saw when he pressed it? A Yes, your Honor. Q When was this used by the accused Wilson Valdez? A On February 10, 1982, your Honor. FISCAL FULVADORA: May we request that this scissors Identified by the witness be marked as Exh. "F", your Honor. COURT: t.hqw Mark it. Q Please demonstrate to the Court how this Exh. "F" was used by the accused in intimidating you? A (Witness demonstrating to the Court) The witness demonstrating to the supposed victim the pressing of the pointed scissors at the left side abdomen. Q Did he also use that during the accord rape he committed A Yes your Honor. Q About the third time, he use also? A Yes your Honor. (TSN, May 26, 1983.) To be sure a trial judge has the right, nay even the duty, to address questions to witnesses. But the questions should be clarificatory; they should not build the case for any of the adversaries. On June 23, 1983, a hearing was scheduled. The transcript for that day shows that Fiscal Camilo Fulvadora appeared for the prosecution but private prosecutor Ela, was absent. Also absent was Atty. Jorge Zerrudo, counsel for the accused. The transcript does not show whether or not the accused was brought to court. Notwithstanding the absence of counsel for the accused and probably the accused himself, the respondent judge continued his "cross-examination" of the private complainant. The respondent judge explained his behaviour thus:t.hqw WHEREFORE, premises considered, in view of the absence of Atty. Zerrudo who in spite of due notice in open court, during the last hearing of this case and without justifiable reason failed to appear, however, for the sake of justice in order not to prejudice the right of the accused as the complaining witness was on cross- examination, stated the witness is being cross examined by the court in order to get an illustration of certain facts needed by all defense here or the prosecution of the accused Wilson Valdez alias Willy. (TSN, June 23, 1983.) In his memorandum the respondent judge claims that he "did not proceed with the trial but merely sought clarifications on vital aspects taken up in the hearing of April 7, 1983." The explanation of the respondent judge is belied by the transcript which shows that he asked the private complainant searching questions and this is reflected on pages 4 to 12 of the transcript. The statement of the respondent judge that he wanted to protect the right of the accused to a speedy trial is not appreciated. He "protected" the rights of the accused by holding a trial in the absence of the latter's counsel. If an accused has a "protector" like the respondent judge, there is no need for a fiscal or a private prosecutor. It may not be amiss to state in this connection that the accused did not complain of delay in the trial of his case probably because he was not there. At any rate if the respondent judge had wanted to expedite the trial he should have appointed a temporary counsel for the accused. The hearing on the three cases was resumed on August 18, 1983. In the meantime, Atty. Zerrudo was replaced by Atty. Julian Ruiz as counsel for the accused because he wanted an Ilocano lawyer to represent him for better communication. On that day. the private complainant was still on crossexamination. Without any request from the parties, the respondent judge decided to hold the hearing in his chamber "due to delicadeza." Present in the chamber were counsel for the accused, the fiscal and the stenographer only; the accused was not allowed to go inside. t.hqw The respondent judge claims, however, "that the accused together with his guard were at the door of a make-shift room, so-called judge's chamber." This might well have been the case but the accused was entitled as of right to be inside the room because it was his liberty and honor which were at stake. On August 31, 1983, the respondent judge announced, "We will hear this in chamber." And then the following took place: t.hqw ATTY. RUIZ: Now, last time this case was presented and was scheduled for hearing inside the chamber. Counsel for the accused requested that the accused be given chance to confront the

complaining witness but this, your honor was denied so at this instance it is reiterated that the accused be given again a chance to be present during the investigation (sic). COURT:t.hqw Fiscal. FISCAL CAMILO FULVADORA: t.hqw With the sound discretion of the Honorable Court. COURT: t.hqw Denied. (TSN, August 31,1983.) On February 7, 1984, the following took place: ATTY. RUIZ: Your honor, we are still in the process of direct examination for the accused. We are recalling the accused in the witness stand. I understand your honor last time, due to lack of material time, we requested for a resetting of these three cases inasmuch as the matter whether to give the accused for the meantime your honor, I am petitioning that he must be recalled and placed in the witness stand. COURT: t.hqw It is discretionary on the part of the Judge. What can you say Fiscal? FISCAL FULVADORA: I remembered right that it is the purpose for the trial, that the manifestation of the defense counsel that he is through with the testimony of the witness, he requested that the prosecution will be continued in some other time. ATTY. RUIZ: We concur with the Provincial Fiscal but prior, we are petitioning the Honorable Court to recall the witness for further direct examination and I am requesting that will have to continue the proceeding. We are convinced with the observation of the Court that it is discretionary of the Honorable Court but this representation however, we would like to request and reiterate and manifest for the petition that he be recalled. It is not the intention of the defense counsel, your honor, to delay the speedy termination of these cases. As a counsel for the accused, I would like to reiterate that the accused be recalled to the witness stand. FISCAL FULVADORA: The Honorable Court will decide on that part of presentation of the accused, whether to grant it or not the manifestation. COURT: t.hqw How many questions are you asking? ATTY. RUIZ: Due to lack of material time, the three cases, I forgot to ask few questions regarding the evidences or exhibits which are the panty, knife, and scissors, in the direct examination in that, it was overlooked in the part of this representation that the three after presented some of the exhibits per prosecution, were not questioned. FISCAL FULVADORA: It is not the matter of forgotting the exhibits of the counsel, there are time given to present this trial. I remembered that he propounded few questions for the defense and he manifested that he is through in his direct examination and it is my time to cross the testimony of the accused. ATTY. RUIZ: I forgot, before the Honorable Court that this representation have reasons of overlooking why I was not able to question

to all the matters considering of the lack of material time and that there are other cases waiting which are ready for the hearing. It is the discretionary on the part of the Honorable Court specially that the criminal penalty is death and while the Provincial Fiscal having further presentation of exhibits at the beginning of the case, where the questioning we were already finished, yet the Provincial Fiscal continued separately to the presentation of other cases. COURT': t.hqw Denied. Under cross. (TSN Feb. 7, 1984.) It is obvious from the foregoing that the respondent judge did not manifest the requisite cold impartiality which the petitioner deserved. The petition which questions the actuations of the respondent judge and seeks his disqualification was received by him on March 29, 1984. Prudence dictated that he refrain from deciding the cases or at the very least to hold in abeyance the promulgation of his decision pending action by this Court. But prudence gave way to imprudence; the respondent judge acted precipitately by deciding the cases on April 2, 1984, and promulgating his decision on May 3 of the same year. All of the acts of the respondent judge manifest grave abuse of discretion on his part amounting to lack of jurisdiction which substantively prejudiced the petitioner. WHEREFORE, the petition is hereby granted. The decision in Criminal Case Nos. 13, 14 and 15 of the respondent judge is set aside; the aforesaid cases shall be transferred to Branch XVII of the Regional Trial Court in Kidapawan for trial de novo which shall also resolve the petitioner's motion for release on recognizance under Sec. 191 of P.D. No. 603. No costs. SO ORDERED.1wph1.t Makasiar (Chairman), Concepcion, Jr., Guerrero, Escolin and Cuevas, JJ., concur. Aquino, J., took no part.

G.R. No. 137666 May 20, 2004 PEOPLE OF THE PHILIPPINES, appellee, vs. MARLON ORTILLAS y GAMLANGA, appellant. DECISION AUSTRIA-MARTINEZ, J.: 1 On January 6, 1995, an Information was filed against Marlon Ortillas with the Makati Regional Trial Court, and assigned by raffle to Branch 255 (Las Pias), then presided 2 over by Judge Florentino M. Alumbres. The Information reads: The undersigned 3rd Assistant Prosecutor accuses MARLON ORTILLAS Y GAMLANGA of the crime of Murder, committed as follows: That on or about the 21st day of December, 1994, in the Municipality of Las Pias, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with one Jacob Relox whose true identity and present whereabout is still unknown and both of them mutually helping and aiding one another, with intent to kill and without justifiable motive and evident premeditation and by means of treachery and use of explosive (pillbox), did, then and there willfully, unlawfully and feloniously attack, assault and throw a Pillbox to one Jose Mesqueriola y Labarosa, thereby inflicting upon the latter serious and mortal wounds, which directly caused his death. CONTRARY TO LAW. Las Pias, Metro Manila December 28, 1994. (signed) APOLINAR C. QUETULIO, JR. 3 3rd Assistant Prosecutor Despite the fact that it is stated in the title of the Information that appellant was a minor, detained at the Municipal Jail, Las Pias, Metro Manila, Presiding Judge Alumbres failed to ascertain and verify the alleged minority of appellant and determine if the provisions of P.D. No. 603, otherwise known as The Child and Youth Welfare Code should be applied to Ortillas. After arraignment of appellant who pleaded not guilty to the offense with which he is charged, the trial court dispensed with the pre-trial and proceeded to trial on the merits. 4 On June 8, 1995, the prosecution presented Russel Guiraldo, an alleged eyewitness. After Russels direct examination, Atty. Jose G. de Leon, the then counsel for Ortillas moved for postponement as he had a very important appointment to keep which Judge Alumbres granted. Subsequently, Atty. de Leon had to withdraw as counsel because of eye ailment which the trial court approved. The only other hearing that took place after the testimony of Russel on June 8, 1995, was on September 5, 1995 when NBI MedicoLegal Officer Roberto Garcia testified for the prosecution. All in all, the continuation of the hearing was postponed thirteen times from June 8, 1995 until May 8, 1996 when the 5 prosecution finally rested its case with the submission of its documentary 6 evidence. Witness Russel was never presented for cross-examination. The last time he 7 was subpoenaed was for the hearing set on November 6, 1995, but records do not show that he appeared on said date. Although several hearings were scheduled thereafter, Russel was not subpoenaed anymore. On the basis of the testimonies of Russel and Dr. Garcia, Judge Alumbres rendered a 8 decision dated September 21, 1998 with the following findings: Roselle Guiraldo positively identified and pointed to the accused as the one who threw the pillbox to his companion Jose Mesqueriola in the morning of December 21, 1994. He even specified the exact location where the accused was at the time he threw the pillbox. According to him, the accused was

standing in front of a gate of a house along Calle Real, near Plaza Quezon, Las Pias, Metro Manila. He could not be mistaken of the identity of the accused because they were former classmates at the Las Pias Municipal High School and members of rival fraternities. As could be deduced from the facts, the pillbox was intended for Roselle Guiraldo because the accused has the strongest motive of killing him. It will be recalled that three (3) days after the opening of classes at the Las Pias Municipal High School, Roselle Guiraldo and the accused could not see eye to eye already because Roselle Guiraldo was stoned and the stone came from the direction of the accused while seated inside the classroom. Roselle Guiraldo tried to get even with the accused by waiting for him outside of the school premises every after classes. Afraid that a personal encounter may happen and he will be in big trouble, the accused sought transfer to the Las Pias Municipal High School North, which is located at the Vergonville Subdivision in Barangay Pulanglupa II. This is now very far from his residence at San Francisco St. in Barangay Aldana. While if he was not transferred, his school (Las Pias Municipal High School) is only walking distance from his residence at San Francisco St. His ill-feelings against Roselle Guiraldo became intense because of the increasing problem he has to face or handle. He has his work and a common-law wife to support and who was now getting pregnant. But all the while, he has not severed his relationship with his gangmates, although according to him, he already quit from being an active member of Crime buster fraternity after he became a working student in July 9 1993. ... The defense put up by the accused is alibi, a very weak defense because it is easy to fabricate. Just like in the present case, he was still able to tell the authorities that he was in his house when his friend Jose Mesqueriola was killed. If there was truth that he was in his house when Jose Mesqueriola was killed, how come not one occupant in his house came forward to testify for him during the trial. Alibi is considered the weakest defense because it can easily be fabricated and cannot stand in the light of clear, positive and precise evidence of the prosecution establishing the identity of the accused (People vs. Magallanes, 218 SCRA 109; People vs. Santos, 221 SCRA 715; People vs. Bescana, 220 SCRA 93; People vs. dela Cruz, 217 SCRA 283). It is a fundamental dictum that the defense of alibi cannot prevail over the positive identification of the accused (People vs. Tanco, 218 SCRA 494). The charge against the accused is murder, defined and penalized under Article 248 of the Revised Penal Code, as amended by RA 7659. The commission of the crime in the present case was attended by the circumstance of explosion (the use and exploding of the pillbox). In the Certificate of Post-Mortem Examination (Exh. "C") which Dr. Garcia issued, he placed that the cause of death which is "Traumatic-head injury" was the result of an alleged explosion. On whether there was the circumstance of evident premeditation, the evidence does not clearly show. There is present in the circumstancial evidence of flight. As earlier established, the accused was one of those who escaped from detention in the jail of Las Pias City on April 17, 1997. It is well-settled rule that flight is indicative of guilt of the accused. Flight is a silent admission of guilt, and is an indication of his guilt or of a guilty mind (People vs. Martinado, 214 SCRA 712; People vs. Cruz, 213 SCRA 601; People vs. Alabaso, 204 10 SCRA 458; People vs. Babac, 204 SCRA 968; People vs. Lorenzo, 204 SCRA 361). The dispositve portion of the assailed decision reads: WHEREFORE, the Court finds the accused Marlon Ortillas y Gamlanga guilty beyond reasonable doubt of the charge against him in the information, and he is hereby sentenced to suffer the penalty of reclusionperpetua; to suffer the accessory penalties provided for by law; to indemnify the heirs of the victim Jose Mesqueriola in the sum of P100,000.00; and to pay the costs.

SO ORDERED. Hence, the present petition for review on certiorari with the following Assignment of Errors: I THE TRIAL COURT ERRED IN NOT COMMITTING THE ACCUSEDAPPELLANT TO THE CARE OF THE DEPARTMENT OF SOCIAL WELFARE WHICH SHALL BE RESPONSIBLE FOR HIS APPEARANCE IN COURT WHENEVER REQUIRED. II THE TRIAL COURT ERRED IN DENYING THE REQUEST OF ATTY. TERESITA CARANDANG-PANTUA OF THE PUBLIC ATTORNEYS OFFICE TO CROSS-EXAMINE THE WITNESS PRESENTED BY THE PROSECUTION DURING THE HEARING ON JUNE 8, 1995. III THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESS ROSELLE GUIRALDO AND IN 12 DISREGARDING THE TESTIMONY OF ACCUSED-APPELLANT. Anent the first assigned error: In his Brief, appellant points out that the first counsel of appellant, Atty. Jose de Leon, raised the minority of appellant and invoked the provisions of P.D. No. 603 during the initial hearing conducted on June 8, 1995 but Judge Alumbres outrightly denied his request. Atty. de Leon submitted to the ruling and prosecution witness Russel was called to the witness stand. There is merit to the complaint of appellant. Judge Alumbres was remiss of his duty to ascertain the minority of appellant at the onset of the proceedings. The records further disclose that he likewise ignored the letter of Director Milda S. Alvior of the Department of Social Welfare and Development (DSWD) filed with his court on January 31, 1996 informing him that appellant at that time was sixteen years old and alleging that his prolonged stay in the Las Pias Jail for one year and one month at the time, mixed with hundred criminals affected him physically, 13 intellectually, emotionally and socially. The Presiding Judge should be sanctioned for his negligence in the performance of his duties with respect to accused minor - but these particular omissions are not sufficient grounds to merit the reversal of the assailed decision. As to the second assigned error: The Court finds merit to appellants claim that the judgment of the trial court has unduly deprived him of his constitutional right to meet the witness face to 14 face which includes the right to cross-examine the witness. Section 1(f), Rule 115 of the then prevailing Rules of Criminal Procedure provides: SECTION 1. Rights of the accused at the trial. In all criminal prosecutions, the accused shall be entitled to the following rights: ... (f) To confront and cross-examine the witnesses against him at the trial. . . . Section 6, Rule 132 of the then prevailing Rules on Evidence provides: SEC. 6. Cross-examination; its purpose and extent. Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. As the Court held in People vs. Rivera, to wit: The right of a party to cross-examine a witness is embodied in Art. III, 14(2) of the Constitution which provides that the accused shall have the right to meet the witnesses face to face and in Rule 115, 1(f) of the Revised Rules of Criminal Procedure which states that, in all criminal prosecutions, the

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accused shall have the right to confront and cross-examine the witness against him. The cross-examination of a witness is essential to test his or her credibility, expose falsehoods or half-truths, uncover the truth which rehearsed direct examination testimonies may successfully suppress, and demonstrate inconsistencies in substantial matters which create reasonable doubt as to the guilt of the accused and thus give substance to the constitutional right of the 15 accused to confront the witnesses against him. Records disclose that there was never a valid waiver on the part of appellant or his counsel to cross-examine the prosecution witness Russel. The first counsel, Atty. de Leon, in the hearing of June 8, 1995 requested for postponement of the crossexamination of Russel in view of his "professional engagement", without objection on the 16 part of the prosecution. The next hearing was also postponed in view of the eye 17 problem of Atty. de Leon. And on August 3, 1995, the hearing was again postponed due 18 to the withdrawal of appearance of Atty. de Leon on ground of eye-ailment. Subsequent 19 dates of hearing were postponed because the Presiding Judge went on leave. It is only on September 25, 1995 that Atty. Leopoldo Macinas appeared as new counsel for 20 appellant. However, although it appears in the Minutes of the hearing scheduled on said 21 date that the same is for cross-examination of Russel, there is no showing that Russel was present during that day. In fact, the Minutes show that Russel had to be notified for 22 the next hearing set on November 6, 1995. But on November 6, the hearing was again postponed to November 11, 1995 due to typhoon Rosing. The Minutes again does not show that on November 6, Russel appeared in court as only complaining witness Grace 23 Mesqueriola signed thereon. Thereafter, Russel was never notified of the hearings set on December 11, 1995, January 17, 1996, January 22, 1996, January 31, 1996, February 26, 1996, March 25, 1996 and May 8, 1996. Judge Alumbres refusal to give opportunity for Atty. Teresita Carandang-Pantua of the Public Attorneys Office (PAO), the new counsel for appellant, to cross-examine prosecution witness Russel on the ground that prosecution had already rested its case, is patently a grave abuse of discretion on his part. Although Atty. Pantua had adequately explained appellants predicament, on the first scheduled date of hearing for the presentation of defense evidence, Judge Alumbres, upon the perfunctory objection of the prosecution, unreasonably refused to heed Atty. Pantuas request. It was well within the trial courts discretion to allow the recall of witness Russel under the then prevailing Section 9, Rule 132 of the Rules on Evidence, to wit: SEC. 9. Recalling witness. After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The Court will grant or withhold leave in its discretion, as the interests of justice may require. Certainly, under the foregoing circumstances, Judge Alumbres should have known that the interest of justice required that appellant should have been given the opportunity to cross-examine Russel, as it was not his fault that Russel had not been cross-examined. While a petition for certiorari could have been duly availed of by counsel for appellant to rectify the judges grave abuse of discretion, appellant should not be made to suffer for the failure of his counsel to do so; as a layman, he could not have known better as to what must be done under the circumstances. On this matter, the PAO, as de oficio counsel for appellant was remiss of its duty to protect the interest of its client. Under the peculiar facts and circumstances of the case, it is evident that appellant had not been given the opportunity to cross-examine the lone prosecution witness. In the absence of cross-examination, which is prescribed by statutory norm and jurisprudential 24 precept, the direct examination of the witness should have been expunged from the records, in which case, the trial court would have had no valid basis to deny the demurrer to evidence.

Nevertheless, the Court will resolve the third issue so as to put an end to the question whether or not the trial court erred in giving weight and credence to the testimony of prosecution witness Russel and in disregarding the testimony of appellant. The trial court declared that "the issue in this case hinges mainly on credibility of the 25 witnesses, both of the prosecution and the defense". The prosecution evidence is principally based on the testimony of Russel which is narrated by the trial court, as follows: . . . He testified that at around 6:00 oclock in the morning of December 21, 1994, he was with one Jose Mesqueriola, alias Joey, hearing Misa de Gallo at the Bamboo Organ Church in Las Pias, Metro Manila. After the mass, he and Jose Mesqueriola were walking side by side at the side of the road leading to the direction of Quezon Plaza. Upon reaching a point at the side of the road near Plaza Quezon, and at a distance of about fifteen (15) meters, he saw the accused in front of a gate of a house threw (sic) a pillbox towards their direction and the pillbox exploded on the head of his companion Jose Mesqueriola. He was also hit at a portion of his right face. After the bomb exploded on the head of Jose Mesqueriola, the latter fell down so he helped him by bringing him to the Las Pias Emergency Hospital which is just nearby. However, the next day, he died. After the accused threw the bomb, he ran away and hid. He came to know of the accused since June 1994 (they being classmates in the Municipal High 26 School, according to the accused). . . On the other hand, the defense evidence consist only of the testimony of appellant which is aptly narrated by the trial court, as follows: . . . he testified that on December 21, 1994, at around 6:00 oclock in the morning, he was in his house at his given address when he heard an explosion. He then ran towards the direction where the explosion was to find out what was it all about. Reaching the place, he found some people around and he saw a person lying prostrate on the street and blooded. He was being assisted and brought to the hospital by his classmate Roselle Guiraldo. After the wounded person was brought to the hospital, he learned from his neighbors that the person lying on the street was a victim of pillbox explosion and he came to know that his name was Joey and his friend. When he ran out of his house, he saw his classmate Jacob Relox was running away from the scene of the explosion, together with companions, and he was also told by Aling Itang, one of his neighbors, that the one who threw the pillbox to Joey was Jacob Relox. He learned also from his neighbor, Aling Itang, that the reason why Jacob Relox threw pillbox at Joey is because on December 20, 1994, Jacob was mauled by Joey Mesqueriola and his companions. The accused revealed during the trial that he was a working student enrolled at the Las Pias Municipal High School near Saint Joseph Church in Las Pias Poblacion. In their school, there were two rival fraternities, the Crimebuster and the Taugamma. He was a member of the Crimebuster together with Roselle Guiraldo and Jose Mesqueriola, his classmates. He left the Crimebuster because he did not like the rules and he joined the Taugamma. After one (1) week of attending classes at the Las Pias Municipal High School, he asked for transfer to Las Pias North Municipal High School because in the Las Pias Municipal High School, every after classes, his classmate Roselle Guiraldo always waited for him outside (inaabangan) and look (sic) for trouble, and this Roselle Guiraldo has a bad blood or grudge against him. It started when there was stone throwing inside their classroom on the third day of their classes. Roselle Guiraldo was hit and he thought that he (accused) was the one who threw the stone because it came from the direction where he was sitting, not knowing that it was his sitmate (sic) who threw the stone. So that even if he was not the one who threw the pillbox in the early morning of December 21,

1994 which cause the death of Jose Mesqueriola, he was the one pointed to by Roselle Guiraldo because of this grudge against him. He also testified that Jacob Relox has the motive for killing Jose Mesqueriola because on December 20, 1994, Jacob Relox was mauled by Jose Mesqueriola and the other members of the Crimebuster fraternity. Jacob Relox then was a 27 member of the rival fraternity, the Taugamma. Considering that appellant was unlawfully deprived of the opportunity to cross-examine prosecution witness Russel, his testimony should have been strictly scrutinized and analyzed with utmost care and any doubt thereon should have been interpreted by the trial court in favor of appellant. We reproduce hereunder the testimony of Russel on direct examination: FISCAL QUETULIO Q How long have you been rather how long have you know (sic) this Marlon Ortillas? WITNESS A June, 1994, Sir. FISCAL QUETULIO Q Now, will you please tell us, at around 6:00 oclock in the morning of December 21, 1994, where were you? WITNESS A I was in the church, Sir. FISCAL QUETULIO Q Where is that church located, Mr. Witness? WITNESS A Las Pias, Sir. ... FISCAL QUETULIO Q Now, at around that time also, who were your companions, if any in going to church? WITNESS A Joey, Sir. His name, true name is Jose Miscariola, Sir. FISCAL QUETULIO Q Now, where is this Jose Miscariola now, Mr. Witness? WITNESS A He died already, Sir. FISCAL QUETULIO Q When did he die? WITNESS A December 22, 1994, Sir. FISCAL QUETULIO Q Now, when you and Jose Miscariola were in the church, was there, at around 7:00 rather 6:00 oclock in the morning of December 21, 1994, was there any unusual incident that happened? WITNESS A Yes, there was, Sir. FISCAL QUETULIO Q What was that incident, if any, Mr. Witness? WITNESS A When we were about to leave the church, Joey or Jose Miscariola was hit with the pillbox that was thrown by the accused, Marlon Ortillas. FISCAL QUETULIO Q Now, when this incident happened, how far were you then from the church, Mr. Witness? WITNESS

A We were already far from the church because the incident happened in the plaza, Sir. FISCAL QUETULIO Q Now, what happened at the plaza, Mr. Witness? WITNESS A The incident was about the throwing of pillbox by Marlon Ortillas, Sir, to Jose Miscariola. FISCAL QUETULIO Q Now, this pillbox that was allegedly thrown to Joey, what happened to him, if any? WITNESS A It exploded in his head, Sir, or in the head of Jose Miscariola, Sir. FISCAL QUETULIO Q And what happened to Joey Miscariola after the pillbox thrown by Marlon Ortillas exploded in his head? WITNESS A He fell down, Sir. FISCAL QUETULIO Q And how about you, what did you do when you saw Joey Miscariola fell down? WITNESS A I helped him, Sir. FISCAL QUETULIO Q Now, this Joey Miscariola, when he was hit with the pillbox that exploded in his head, how far were you then, Mr. Witness? WITNESS A I was beside him, Sir. FISCAL QUETULIO Q Were you not also hit by the pillbox, Mr. Witness? WITNESS A I was also hit, Sir. FISCAL QUETULIO Q Where were you hit, Mr. Witness? WITNESS A In my face, Sir. INTERPRETER Witness pointing to the right portion of his face. FISCAL QUETULIO Q Now, Now, where was Marlon Ortillas at that time when you saw him threw (sic) the pillbox to your direction? WITNESS A At the gate located at the opposite side of the street. FISCAL QUETULIO Q What is this gate, gate of a house or gate of the plaza? WITNESS A Gate of house, Sir. FISCAL QUETULIO Q Now, how far was Marlon Ortillas from both of you and Joey when you saw Marlon throwing the pillbox towards you? WITNESS A It is just near, Sir. INTERPRETER

Witness pointing to a distance from the chair where he is sitting to the door of the courtroom which was estimated by the prosecution and counsel for the accused to be about fifteen (15) meters, more or less. COURT Q Do you agree that the distance is about fifteen (15) meters more or less, Fiscal? FISCAL QUETULIO A Yes, Your Honor. ATTY. DE LEON No objection, Your Honor. FISCAL QUETULIO Q Now, you said that you helped Joey when he fell down, what help did you do, Mr. Witness? WITNESS A I brought him to the Las Pias Emergency Hospital which was located nearby, Sir. FISCAL QUETULIO Q What about Marlon Ortillas, after throwing the pillbox or after it exploded, did you notice what happened to him? WITNESS A He hid, Sir. FISCAL QUETULIO Q Where did he hide, Mr. Witness? WITNESS A In their house, Sir. FISCAL QUETULIO Q Where is this house of Marlon located, Mr. Witness? WITNESS A It was just located nearby, Sir. FISCAL QUETULIO Q How far from the gate where Marlon was standing from where Marlon threw the pillbox up to his house, how far is that, if you know? WITNESS A From here up to that distance, Sir. INTERPRETER Witness is pointing to a distance of more or less six (6) meters from the place where he is sitting. FISCAL QUETULIO Q More or less six meters, is that agreed, Counsel? ATTY. DE LEON 28 A Yes, Your Honor. It is doctrinal that the Court will not interfere with the judgment of the trial court in passing upon the credibility of witnesses, unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of 29 which has been misapprehended or misinterpreted. The trial courts assessment of Russels testimony is not only perfunctorily done but its decision is also partly based on the evidence presented by the defense, in stark violation of the well-settled rule that the conviction of appellant must not act on the weakness of 30 the defense but on the strength of the prosecution. First, it cannot be ove-emphasized that there is no direct, positive testimony that Russel actually saw appellant throw the pillbox. He only testified that when he and victim Joey or 31 Jose Miscariola were about to leave the church, Joey "was hit with the pillbox that was thrown by the accused, Marlon Ortillas". This statement is a conclusion of fact rather than a declaration of what he actually saw. He did not testify that he actually saw

appellant in the act of throwing the pillbox at them. It was only the Fiscal who expressed in his question or who presumed that Russel saw appellant throw the pillbox to the place where they were, which although not objected to by counsel for appellant, should not have been a basis for appellants conviction. The purported eyewitness should at least have declared, positively and explicitly, having seen appellant throw the pillbox or an unidentified object. There is not even a testimony that Russel saw appellant holding the pillbox before he threw it. Second, it is difficult to reconcile the contradiction in the declaration of Russel that it is when they were about to leave the church that Joey was hit with the pillbox thrown by appellant as against his succeeding answer to the next question of the Fiscal as to how far were they from the church when the incident happened and he replied that they were already far from the church because the incident happened in the plaza. Where did the throwing of the pillbox actually take place, when he was about to leave the church or in the plaza? Why the discrepancy? Did he really see the actual throwing of the pillbox? These are questions, the answers to which are not found in the testimony of Russel. Third, Russel testified that appellant was fifteen meters away from them at the opposite side of the street. To be able to testify that he saw appellant throw a pillbox, Russel should have seen the actual throwing by appellant before the pillbox left the hand of appellant; otherwise, how could Russel say for certain that it was appellant who threw the pillbox? And if Russel did see the actual throwing of an object thrown at their direction, how could he not have at least attempted to avoid the same when the distance between them and appellant is fifteen meters. At the normal speed of a hand thrown object as big as a pillbox, if Russel had actually seen appellant in the act of throwing the pillbox from that distance, instinct would have naturally spurred him, at least, to attempt to dodge the same, even if he would not have succeeded in doing so. As it is, Russel did not testify that upon seeing the pillbox or the object being thrown by appellant at their direction, he tried to evade the same. Neither is there any testimony on the part of Russel that when he saw the pillbox being thrown at him and Joey, there was no time to evade the same. Fourth, the testimony of Russel that he helped Joey when the latter was hit and fell down, but, at the same time, he saw appellant run and hide in his (appellants) house that was six meters away from the place where appellant threw the pillbox, is not credible. It goes beyond human experience for Russel to be able to follow the movements of a culprit right after Joey, his companion, had been hit at the same time that he was helping Joey when the latter fell to the ground, not to mention the fact that he was also hit on the right side of his face. Does it mean that Russel just stood by watching appellants movements while the latter threw the pillbox at them and hit him and Joey? The failure of the prosecution to explain this incredible feat is fatal to its cause. No better test has been found to measure the value of a witness testimony than its conformity to the knowledge and common 32 experience of mankind. Fifth, the motive attributed by the trial court to appellant in throwing a pillbox at Russel is based not on the testimony of prosecution witness Russel but on the testimony of appellant. It is a hornbook doctrine that the prosecution must rely on its own evidence to 33 prove the guilt of appellant beyond reasonable doubt and therefore, the trial court should not depend on the evidence of the defense to support the conviction of appellant. However, considering that the presiding judge had given probative weight or credibility to the testimony of appellant by using his testimony to establish motive on his part to commit the crime, the same testimony may be used likewise to prove that witness Russel had an ill-motive to testify against appellant. And when the evidence admits of two 34 interpretations, that which is favorable to appellant should prevail. 35 Sixth, while indeed, it is true that flight evidences guilt and a guilty conscience, the escape of appellant from jail pending trial of his case, cannot, under the attendant circumstances, be considered as evidence of his guilt in the commission of the offense, or as basis of his conviction in this case. Appellant had sufficiently explained that he escaped from detention because he got bored in jail, he wanted to see his first new born

child and to look for his own father. It is quite surprising why the trial judge in his decision only mentioned and denigrated the explanation of appellant that he wanted to look for his father and not mention at all the other reasons of appellant for bolting out of jail. At any rate, it is not refuted that appellant subsequently surrendered to a member of 37 the Office of the Assistant Regional Director, BJMP, because of fear for his life. On the other hand, in denying that he threw the pillbox, no other witness was presented by appellant to corroborate his testimony. Nonetheless, the testimony of appellant fully explains why Russel testified against him. Russel was of the belief that appellant was the one who earlier threw a stone at him in the classroom. Unfortunately, the trial court misapprehended the import of his testimony and interpreted it against him to explain the latters purported motive in throwing the pillbox at Russel and Joey. Although denial, like alibi, can be fabricated, it is not always false and without merit, and when coupled with the improbabilities and uncertainties of the prosecution evidence, the 38 defense of alibi deserves merit. Settled is the rule that conviction should rest on the 39 strength of evidence of the prosecution and not on the weakness of the defense. The 40 weakness of the defense does not relieve it of this responsibility. And when the prosecution fails to discharge its burden of establishing the guilt of an accused, an 41 accused need not even offer evidence in his behalf. A judgment of conviction must rest 42 on nothing less than moral certainty. It is thus required that every circumstance favoring his innocence must be duly taken into account. The proof against him must survive the test of reason and the strongest suspicion must not be permitted to sway 43 judgment. There must be moral certainty in an unprejudiced mind that it was accusedappellant who committed the crime. Absent this required quantum of evidence would 44 mean exoneration for accused-appellant. As the Court declared in People vs. Tajada: While we strongly condemn the senseless and gruesome crime and sincerely commiserate with the suffering and emotional stress suffered by the bereaved family of the victim, nevertheless, we find the pieces of circumstantial evidence insufficient to prove the guilt of accused-appellant beyond reasonable doubt. They do not pass the requisite moral certainty, as they admit of the alternative inference that other persons, not necessarily the accused-appellant, may have perpetrated the crime. Where the evidence admits of two interpretations, one which is consistent with guilt and the other with innocence, the accused must be acquitted. Indeed, it would be better to set free ten men who might be probably guilty of the crime charged than to convict one innocent man for a crime he did 45 not commit. Thus, the Court is constrained to set aside the conviction of appellant. Had not Judge Alumbres been compulsorily retired in 2001, he together with the Public Attorneys Office would have been admonished to be more circumspect in the performance of their respective duties so as to prevent miscarriage of justice. WHEREFORE, the appealed judgment is REVERSED AND SET ASIDE. Another judgment is entered ACQUITTING appellant MARLON ORTILLAS y GAMLANGA for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered IMMEDIATELY RELEASED from prison, unless he is being held for some other lawful cause. The Director of Prisons is DIRECTED to inform this Court of the action taken hereon within five (5) days from receipt of copy of herein Decision. The Public Attorneys Office is admonished to be more circumspect in the performance of its duties so as to prevent miscarriage of justice. Let copy of herein decision be furnished the Chief Public Attorney of the Public Attorneys Office so that appropriate steps may be taken to ensure the improvement of the service of that office. SO ORDERED. * Puno , Quisumbing, Callejo, Sr., and Tinga, JJ., concur.

36

G.R. No. 136051 June 8, 2006 ALFREDO P. ROSETE, OSCAR P. MAPALO and CHITO P. ROSETE, Petitioners, vs. JULIANO LIM and LILIA LIM, Respondents. DECISION CHICO-NAZARIO, J.: Before Us is a petition for review on certiorari which seeks to set aside the Decision 1 of the Court of Appeals in CA-G.R. SP No. 45400 dated 24 August 1998 which upheld the Orders of Branch 77 of the Regional Trial Court (RTC) of Quezon City in Civil Case No. Q-95-25803 dated 22 July 19972 and 27 August 1997,3 allowing the taking of deposition upon oral examination of petitioners Oscar P. Mapalo and Chito P. Rosete, and its Resolution4 dated 19 October 1998 denying petitioners Motion for Reconsideration. Relevant to the petition are the following antecedents: On 5 December 1995, respondents Juliano Lim and Lilia Lim filed before Branch 77 of the RTC of Quezon City a Complaint for Annulment, Specific Performance with Damages against AFP Retirement and Separation Benefits System (AFP-RSBS), Espreme Realty and Development Corporation (Espreme Realty), Alfredo P. Rosete, Maj. Oscar Mapalo, Chito P. Rosete, Bank of the Philippine Islands (BPI), and Register of Deeds of the Province of Mindoro Occidental, docketed as Civil Case No. Q-95-25803.5 It asked, among other things, that the Deed of Sale executed by AFPRSBS covering certain parcels of lands in favor of Espreme Realty and the titles thereof under the name of the latter be annulled; and that the AFP-RSBS and Espreme Realty be ordered to execute the necessary documents to restore ownership and title of said lands to respondents, and that the Register of Deeds be ordered to cancel the titles of said land under the name of Espreme Realty and to transfer the same in the names of respondents. On 18 January 1996, petitioners filed a Motion to Dismiss on the grounds that the court has no jurisdiction over the subject matter of the action or suit and that venue has been improperly laid. 6 A Supplemental Motion to Dismiss was filed by petitioner Alfredo P. Rosete on 23 January 1996.7 Respondents opposed the Motion to Dismiss filed by petitioners8 to which petitioners filed their Reply.9 Respondents filed a Comment on the Reply.10AFP-RSBS,11 Espreme Realty,12 and, BPI13 filed their respective Motions to Dismiss which respondents opposed. In an Order dated 12 March 1996, the Motions to Dismiss filed by all the defendants were denied.14 The Motions for Reconsideration filed by petitioners15 and BPI,16 which respondents opposed,17 were also denied in an Order dated 24 May 1996.18 On 6 June 1996, BPI filed its Answer with Compulsory Counterclaim and Cross-claim19 to which respondents filed their Reply and Answer to Counterclaim. 20 Respondents also filed a Motion21 to Serve Supplemental Allegation against BPI and petitioner Chito Rosete which the trial court granted in an order dated 28 July 1996.22 On 7 June 1996, petitioners manifested that on 5 June 1996, they filed a Petition 23 for Certiorari and Prohibition in the Court of Appeals, docketed as CA-G.R. SP No. 40837, challenging the trial courts Orders dated 12 March 1996 and 24 May 1996 that denied their Motions to Dismiss and Reconsideration, respectively.24 They likewise informed the trial court that on 6 June 1996, they filed an Ex-Parte Motion25 to Admit Answers Ex Abudanti Cautela.26lavvphi1.net On 7 August 1996, petitioner Chito Rosete filed a motion asking that the order granting the Motion to Serve Supplemental Allegation against BPI and him be reconsidered and set aside, and that respondents be ordered to reduce their supplemental allegations in the form and manner required by the Rules of Court.27 Same was denied in an order dated 12 August 1996. 28 This denial was appealed to the Court of Appeals on 26 August 1996, which was docketed as CA-G.R. SP No. 41821.29 Petitioner Chito Rosete filed his Supplemental Answer (Ex Abudanti Cautela) on 9 September 1996.30 On 28 May 1997, respondents filed a Notice to Take Deposition Upon Oral Examination giving notice that on June 18 and 20, 1997 at 9:00 a.m., they will cause the deposition of petitioners Oscar Mapalo and Chito Rosete.31 On 13 June 1997, petitioners filed an Urgent Ex-Parte Motion and Objection to Take Deposition Upon Oral Examination.32 They argued that the deposition may not be taken without leave of court as no answer has yet been served and the issues have not yet been joined since their Answer was filed ex abudanti cautela, pending resolution of the Petition for Certiorari challenging the orders dated 12 March 1996 and 24 May 1996 that denied their Motions to Dismiss and for Reconsideration, respectively. This is in addition to the fact that they challenged via a Petition for Certiorari before the Court of Appeals the lower courts Orders dated 23 July 1996 and 12 August 1996 which, respectively, granted respondents Motion to Serve Supplemental Allegation Against

Defendants BPI and Chito Rosete, and for the latter to plead thereto, and denied Chito Rosetes Motion for Reconsideration of the order dated 23 July 1996. Moreover, they contend that since there are two criminal cases pending before the City Prosecutors of Mandaluyong City and Pasig City involving the same set of facts as in the present case wherein respondent Juliano Lim is the private complainant and petitioners are the respondents, to permit the taking of the deposition would be violative of their right against self-incrimination because by means of the oral deposition, respondents would seek to establish the allegations of fact in the complaint which are also the allegations of fact in the complaint-affidavits in the said criminal cases. Respondents filed their Comment on the Objection to Deposition Taking33 to which petitioners filed their Reply.34 In an Order dated 22 July 1997, the lower court denied petitioners motion and objection to take deposition upon oral examination, and scheduled the taking thereof.35 On 7 August 1997, petitioners filed a Motion for Reconsideration.36 They filed a Supplemental Motion for Reconsideration on 11 August 1997.37 On 13 August 1997, petitioners filed an Urgent Ex-parte Motion to Cancel or Suspend the Taking of the Deposition Upon Oral Examination.38 In an Order dated 27 August 1997, the lower court denied petitioners Motion for Reconsideration and Supplemental Motion for Reconsideration, and scheduled the taking of the Deposition Upon Oral Examination.39 On 22 September1997, respondents filed an Omnibus Motion: (1) To Strike Out Answer of Defendants Mapalo and Chito Rosete; (2) to Declare Defendants Mapalo and Chito Rosete In Default; and (3) For Reception of Plaintiffs Evidence Ex-parte,40 which petitioners opposed.41 On 29 September 1997, petitioners filed with the Court of Appeals a Petition for Certiorari and Prohibition (CA-G.R. SP No. 45400) assailing the Orders of the lower court dated 22 July 1997 and 27 August 1997.42 In an Order dated 29 October 1997, the lower court: (1) ordered the striking out from the record of the Answer ex abudanti cautela filed by petitioners Mapalo and Chito Rosete for their continued unjustified refusal to be sworn pursuant to Rule 29 of the 1997 Rules of Civil Procedure; (2) declared defendants Mapalo and Chito Rosete in default; and I allowed plaintiffs to present their evidence exparte as regards the latter.43 On 25 November 1997, petitioners filed an Urgent Ex-parte Omnibus Motion (1) For Reconsideration; (2) To Lift Order of Default; and (3) To Hold In Abeyance Presentation of Plaintiffs Evidence Ex-parte.44 The day after, petitioners filed an Amended Omnibus Motion.45 On 28 November 1997, respondents filed a Motion to Set Case for Ex-parte Presentation of Evidence46 which the lower court set for 11 December 1997.47 In an Order dated 11 December 1997, the lower court denied petitioners urgent ex-parte omnibus motion.48 On even date, the ex-parte presentation of evidence against petitioners Mapalo and Chito Rosete was terminated.49 On 10 February 1998, petitioners filed a Petition50 for Certiorari and Prohibition before the Court of Appeals (CA-G.R. SP No. 46774) questioning the lower courts Orders dated 29 October 1997 and 11 December 1997.51 On 24 August 1998, the Court of Appeals dismissed the Petition for Certiorari and Prohibition, and upheld the Orders of the lower court dated 22 July 1997 and 27 August 1997 (CA-G.R. SP No. 45400).52 The Motion for Reconsideration53 which was opposed54 by respondents was denied on 19 October 1998.55 Petitioners assail the ruling of the Court of Appeals via a Petition for Review on Certiorari. They anchor their petition on the following grounds: I. THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION IN DECLARING IN ITS ORDER DATED AUGUST 27, 1997 THAT THE CONSTITUTIONAL RIGHT AGAINST SELF INCRIMINATION OF OSCAR MAPALO AND CHITO ROSETE WOULD NOT BE VIOLATED BY THE TAKING OF THEIR DEPOSITION IN THE CIVIL CASE FILED IN THE LOWER COURT ALTHOUGH THEY ARE ALSO RESPONDENTS OR DEFENDANTS IN THE AFOREMENTIONED CRIMINAL CASES FILED BY HEREIN PRIVATE RESPONDENT JULIANO LIM INVOLVING THE SAME OR IDENTICAL SET OF FACTS; AND II. THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION IN DECLARING IN ITS ORDER DATED JULY 22, 1997 THAT (A) THE NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION NEED NOT BE WITH LEAVE OF COURT BECAUSE AN ANSWER EX ABUDANTE CAUTELA HAS BEEN FILED;

AND (B) JOINDER OF ISSUES IS NOT REQUIRED IN ORDER THAT THE SECTION 1, RULE 2356 OF THE RULES OF CIVIL PROCEDURE MAY BE AVAILED OF. Petitioners argue that the Court of Appeals gravely erred when it found that the trial court did not abuse its discretion when it refused to recognize petitioners Oscar Mapalo and Chito Rosetes constitutional right against self-incrimination when, through its Orders dated 22 July 1997 and 27 August 1997, it allowed and scheduled the taking of their depositions by way of oral examination. They explain they refuse to give their depositions due to the pendency of two criminal cases against them, namely, Batasan Pambansa Blg. 22 and Estafa, because their answers would expose them to criminal action or liability since they would be furnishing evidence against themselves in said criminal cases. They allege there can be no doubt that the questions to be asked during the taking of the deposition would revolve around the allegations in the complaint in the civil case which are identical to the allegations in the complaint-affidavits in the two criminal cases, thus, there is a tendency to incriminate both Oscar Mapalo and Chito Rosete. Moreover, they explain that while an ordinary witness may be compelled to take the witness stand and claim the privilege against self-incrimination as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to answer any and all questions because the right against self-incrimination includes the right to refuse to testify. In short, petitioners Mapalo and Chito Rosete refuse to have their depositions taken in the civil case because they allegedly would be incriminating themselves in the criminal cases because the testimony that would be elicited from them may be used in the criminal cases. As defendants in the civil case, it is their claim that to allow their depositions to be taken would violate their constitutional right against self-incrimination because said right includes the right to refuse to take the witness stand. In order to resolve this issue, we must determine the extent of a persons right against selfincrimination. A persons right against self-incrimination is enshrined in Section 17, Article III of the 1987 Constitution which reads: "No person shall be compelled to be a witness against himself." The right against self-incrimination is accorded to every person who gives evidence, whether voluntary or under compulsion of subpoena, in any civil, criminal or administrative proceeding. The right is not to be compelled to be a witness against himself. It secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to which may incriminate himself for some offense that he may refuse to answer on the strength of the constitutional guaranty. 57 As to an accused in a criminal case, it is settled that he can refuse outright to take the stand as a witness. In People v. Ayson,58 this Court clarified the rights of an accused in the matter of giving testimony or refusing to do so. We said: An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others 1) to be exempt from being a witness against himself, and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. The right of the defendant in a criminal case "to be exempt from being a witness against himself" signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. In other words unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. X x x (Underscoring supplied.) It is clear, therefore, that only an accused in a criminal case can refuse to take the witness stand. The right to refuse to take the stand does not generally apply to parties in administrative cases or proceedings. The parties thereto can only refuse to answer if incriminating questions are propounded. This Court applied the exception a party who is not an accused in a criminal case is allowed not to take the witness stand in administrative cases/proceedings that partook of the nature of a criminal proceeding or analogous to a criminal proceeding. 59 It is likewise the opinion of

the Court that said exception applies to parties in civil actions which are criminal in nature. As long as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that controls. 60 In the Ayson case, it is evident that the Court treats a party in a civil case as an ordinary witness, who can invoke the right against self-incrimination only when the incriminating question is propounded. Thus, for a party in a civil case to possess the right to refuse to take the witness stand, the civil case must also partake of the nature of a criminal proceeding. In the present controversy, the case is civil it being a suit for Annulment, Specific Performance with Damages. In order for petitioners to exercise the right to refuse to take the witness stand and to give their depositions, the case must partake of the nature of a criminal proceeding. The case on hand certainly cannot be categorized as such. The fact that there are two criminal cases pending which are allegedly based on the same set of facts as that of the civil case will not give them the right to refuse to take the witness stand and to give their depositions. They are not facing criminal charges in the civil case. Like an ordinary witness, they can invoke the right against self-incrimination only when the incriminating question is actually asked of them. Only if and when incriminating questions are thrown their way can they refuse to answer on the ground of their right against self-incrimination. On the second assigned error, petitioners contend that the taking of their oral depositions should not be allowed without leave of court as no answer has yet been served and the issues have not yet been joined because their answers were filed ex abudanti cautela pending final resolution of the petition for certiorari challenging the trial courts Orders dated 12 March 1996 and 24 May 1996 that denied their motions to dismiss and for reconsideration, respectively. Section 1 of Rule 2461 of the Revised Rules of Court reads: Section 1. Depositions pending action, when may be taken. By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 23. Depositions shall be taken only in accordance with these rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. From the quoted section, it is evident that once an answer has been served, the testimony of a person, whether a party or not, may be taken by deposition upon oral examination or written interrogatories. In the case before us, petitioners contend they have not yet served an answer to respondents because the answers that they have filed with the trial court were made ex abudanti cautela. In other words, they do not consider the answers they filed in court and served on respondents as answers contemplated by the Rules of Court on the ground that same were filed ex abudanti cautela. We find petitioners contention to be untenable. Ex abudanti cautela means "out of abundant caution" or "to be on the safe side."62 An answer ex abudanti cautela does not make their answer less of an answer. A cursory look at the answers filed by petitioners shows that they contain their respective defenses. An answer is a pleading in which a defending party sets forth his defenses63 and the failure to file one within the time allowed herefore may cause a defending party to be declared in default.64 Thus, petitioners, knowing fully well the effect of the non-filing of an answer, filed their answers despite the pendency of their appeal with the Court of Appeals on the denial of their motion to dismiss. Petitioners argument that the issues of the case have not yet been joined must necessarily fail in light of our ruling that petitioners have filed their answers although the same were made ex abudanti cautela. Issues are joined when all the parties have pleaded their respective theories and the terms of the dispute are plain before the court. 65 In the present case, the issues have, indeed, been joined when petitioners, as well as the other defendants, filed their answers. The respective claims and defenses of the parties have been defined and the issues to be decided by the trial court have been laid down. We cannot also sustain petitioners contention that the lower court erred when it said that the joinder of issues is not required in order that Section 1, Rule 23 of the 1997 Rules of Civil Procedure may be availed of. Under said section, a deposition pending action may be availed of: (1) with leave of court when an answer has not yet been filed but after jurisdiction has been obtained over any defendant or property subject of the action, or (2) without leave of court after an answer to the complaint has been served. In the instant case, the taking of the deposition may be availed of even without leave of court because petitioners have already served their answers to the complaint. WHEREFORE, all the foregoing considered, the instant petition is dismissed for lack of merit. SO ORDERED.

G.R. No. L-39115 May 26, 1975 In the Matter of the Petition for Habeas Corpus. SEGIFREDO L. ACLARACION, petitioner, vs. HON. MAGNO S. GATMAITAN, HON. HOSE N. LEUTERIO, COLONEL RUPERTO B. ACLE, Chief of Police, and Lieutenant FRANCISCO CRUZ, Warden, Makati, Rizal, respondents. AQUINO, J.:+.wph!1 Segifredo L. Aclaracion functioned as a temporary stenographer in the Gapan branch of the Court of First Instance of Nueva Ecija from October 1, 1969 to November 21, 1971. His appointment expired on November 21, 1972 while he was working as a temporary stenographer in the Court of First Instance of Manila. Thereafter, he was employed as a stenographer in the Public Assistance and Claims Adjudication Division of the Insurance Commission, where he is now working. After Aclaracion had ceased to be a court stenographer, the Court of Appeals required him to transcribe his stenographic notes in two cases decided by the Gapan court which had been appealed: Muncal vs. Eugenio, CA-G. R. No. 49711-R and Paderes vs. Domingo, CA-G. R. No. 52367-R. He failed to comply with the resolutions of the Court of Appeals. He was declared in contempt of court. On May 29 and July 29, 1974 Justice Magno S. Gatmaitan and Justice Jose N. Leuterio, Chairmen of the Third and Seventh Divisions of the Court of Appeals, respectively, ordered the Chief of Police of Makati, Rizal, to arrest Aclaracion, a resident of that municipality, and to confine him in jail until he submits a complete transcript of his notes in the said cases. Aclaracion was arrested on June 21, 1974 and incarcerated in the municipal jail. In a petition dated July 12, 1974 he asked the Court of Appeals that he be not required to transcribe his notes in all the cases tried in the Gapan court. He suggested that the testimonies in the said cases be retaken. The Third Division of the Court of Appeals in its resolution of August 7, 1974 ordered the release of Aclaracion. Later, he transcribed his notes in the Muncal case. However, the warden did not release him because of the order of arrest issued by the Seventh Division. On August 9, 1974 Aclaracion filed in this Court a petition for habeas corpus. He advanced the novel contention that to compel him to transcribe his stenographic notes, after he ceased to be a stenographer, would be a transgression of the rule that "no involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted" (Sec. 14, Art. IV, Bill of Rights, 1972 Constitution). He was averse to being subjected "to involuntary servitude sans compensation". He desired to be released from the obligation of transcribing his notes. (He filed his petition in forma pauperis). The petition was heard on August 20, 1974. It was already moot because, as already noted, the Third Division of the Court of Appeals had ordered his release on August 7th. Another hearing was held on September 3, 1974 in connection with the detention of Aclaracion at the instance of Justice Leuterio. At that hearing, this Court resolved to order Aclaracion's provisional release on condition that within twenty days thereafter he would complete the transcription of his notes in the Paderes case in his office at the Insurance Commission, Manila. So, he was provisionally released without prejudice to the final ruling on his contention that he could not be compelled to transcribe his notes in the other cases because he was no longer connected with the judiciary and because his stenotype machine notes were standard notes which could be transcribed by stenographers trained in stenotype machine shorthand. On September 4, 1974 Aclaracion was released from the Makati jail. Upon representations made by the Clerk of Court of this Court with the Insurance Commissioner, the latter interposed no objection to Aclaracion's transcription of his stenographic notes either in this Court or in his office in the Insurance Commission. On November 19, 1974 Aclaracion manifested that he had transcribed his notes in the Paderes case in his office at the Insurance Commission after he was provided by the Clerk of Court of this Court with the requisite supplies. We have given Aclaracion's petition the attention and study which it deserves. The habeas corpus aspect of his petition has become moot in view of his release from jail during the pendency of his case. After much reflection, we have come to the conclusion that his request that he be relieved from transcribing his notes in the other cases cannot be granted. We hold that an Appellate Court may compel a former court stenographer to transcribe his stenographic notes. That prerogative is ancillary or incidental to its appellate jurisdiction and is a part of its inherent powers which are necessary to the ordinary and efficient exercise of its jurisdiction and essential to the due administration of justice (See State vs. Superior Court of Maricopa County, 5 Pac. 2d 192, 39 Ariz. 242, Note 74, 21 C. J. S. 41; 20 Am. Jur. 2d 440; Fuller vs. State, 57 So. 806, 100 Miss. 811).

The provision of section 12, Rule 41 of the Rules of Court that "upon the approval of the record on appeal the clerk shall direct the stenographer or stenographers concerned to attach to the record of the case five (5) copies of the transcript of the oral evidence referred to in the record on appeal" includes stenographers who are no longer in the judiciary. (See sec. 7, Rule 122 and sec. 7, R. A. No. 3749). The traditional mode of exercising the court's coercive power is to hold the recalcitrant or negligent stenographer in contempt of court if he does not comply with the order for the transcription of his notes and imprison him until he obeys the order (Sec. 7, Rule 71, Rules of Court). Another sanction to compel the transcription is to hold in abeyance the transfer, promotion, resignation or clearance of a stenographer until he completes the transcription of his notes. This is provided for in Circular No. 63 of the Secretary of Justice. In the instant case, Aclaracion transcribed his notes in the Muncal and Paderes cases while he was an employee of the Insurance Commission. During the time that he made the transcription, he received his salary as such employee. We hold that he could be required to transcribe his notes in other cases, particularly in the case of Heirs of theLate Pacita Sicioco Cruz, etc. vs. La Mallorca Pambusco, et al, CA-G. R. No. 49687-R. The Court of Appeals, in its resolution of November 24, 1972, required him to transcribe his notes in that case. The same Court in its resolution of February 20, 1975 in Paterno vs. Tumibay, CA-G. R. No. 51330R imposed on Aclaracion a fine of one hundred fifty pesos for his failure to transcribe his notes in the said case and warned him that he would be arrested if he failed to submit his transcript within ten days from notice. The same arrangement should be made by the Clerk of Court of this Court with the Insurance Commissioner that Aclaracion should be allowed to receive his salary while making the transcription. Aclaracion's contention that to compel him to transcribe his stenographic notes would constitute involuntary servitude is not tenable. Involuntary servitude denotes a condition of enforced, compulsory service of one to another (Hodges vs. U.S., 203 U.S. 1; Rubi vs. Provincial Board of Mindoro, 39 Phil. 660, 708) or the condition of one who is compelled by force, coercion, or imprisonment, and against his will, to labor for another, whether he is paid or not (Black's Law Dictionary, 4th Ed., p. 961). That situation does not obtain in this case. Also untenable is Aclaracion's argument that the imprisonment of a stenographer who had defied the court's resolution for the transcription of the notes constitutes illegal detention. The incarceration of the contemning stenographer is lawful because it is the direct consequence of his disobedience of a court order. * However, in view of the fact that Aclaracion might have acted in good faith in not complying with the resolution of the Court of appeals in the Paterno case, due to the pendency of the instant habeas corpus case (a fact which is inferable from his letter to this Court dated March 11, 1975), the fine of one hundred fifty pesos imposed on him is hereby remitted. WHEREFORE, the petition for habeas corpus is dismissed. No Costs. SO ORDERED. Makalintal. C.J, Makasiar, Antonio, Esguerra, Muoz Palma, Concepcion, Jr. and Martin, JJ., concur.1wph1.t Castro, J., concurs in the result.

ZENON R. PEREZ, Petitioner,

G.R. No. 164763 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CORONA,* NACHURA, and REYES, JJ. Promulgated: February 12, 2008

On January 16, 1989, petitioner remitted to the Office of the Provincial Treasurer of Bohol the amounts of P10,000.00 and P15,000.00, respectively. On February 14, 1989, petitioner again remitted to the Provincial Treasurer an additional amount of P35,000.00, followed by remittances made on February 16, 1989 in the amounts of P2,000.00 andP2,784.00. An administrative case was filed against petitioner on February 13, 1989. He filed an Answer[11] dated February 22, 1989 reiterating his earlier verbal admission before the audit team. On April 17, 1989, petitioner again remitted the amount of P8,000.00 to the Provincial Treasurer of Bohol. Petitioner had then fully restituted his shortage in the amount ofP72,784.57. The full restitution of the missing money was confirmed and shown by the following receipts:[12] Official Receipt No. 8266659 8266660 8266662 8266667 8266668 Date Issued and Received January 16, 1989 January 16, 1989 February 14, 1989 February 16, 1989 February 16, 1989 Amount P10,000.00 P15,000.00 P35,000.00 P 2,000.00 P 2,784.00

- versus -

PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, Respondents.

x--------------------------------------------------x DECISION

REYES, R.T., J.: 8266675 PETITIONER Zenon R. Perez seeks a review[1] of his conviction by the Sandiganbayan[2] for malversation of public funds[3] under Article 217 of the Revised Penal Code. This is not a big case but its implications are wide-ranging and the issues We resolve include the rights to speedy trial and speedy disposition of a criminal case, the balancing test, due process, and cruel and unusual punishment. The Facts On December 28, 1988, an audit team headed by Auditor I Arlene R. Mandin, Provincial Auditors Office, Bohol,[4] conducted a cash examination on the account of petitioner, who was then the acting municipal treasurer of Tubigon, Bohol. Petitioner was absent on the first scheduled audit at his office on December 28, 1988. A radio message was sent to Loon, the town where he resided, to apprise him of the on-going audit. The following day, the audit team counted the cash contained in the safe of petitioner in his presence. In the course of the audit, the amount of P21,331.79 was found in the safe of petitioner. The audit team embodied their findings in the Report of Cash Examination, [5] which also contained an inventory of cash items. Based on the said audit, petitioner was supposed to have on hand the total amount of P94,116.36, instead of the P21,331.79, incurring a shortage of P72,784.57.[6] The report also contained the Cash Production Notice[7] dated January 4, 1989, where petitioner was informed and required to produce the amount of P72,784.57, and the cash count sheet signed and acknowledged by petitioner indicating the correctness of the amount of P21,331.79 found in his safe and counted in his presence. A separate demand letter[8] dated January 4, 1989 requiring the production of the missing funds was sent and received by petitioner on January 5, 1989. When asked by the auditing team as to the location of the missing funds, petitioner verbally explained that part of the money was used to pay for the loan of his late brother, another portion was spent for the food of his family, and the rest for his medicine. [9] As a result of the audit, Arlene R. Mandin prepared a memorandum [10] dated January 13, 1989 addressed to the Provincial Auditor of Bohol recommending the filing of the appropriate criminal case against petitioner. April 17, 1989 P 8,000.00 TOTAL - P72,784.57

Later, petitioner was charged before the Sandiganbayan with malversation of public funds, defined and penalized by Article 217 of the Revised Penal Code in an Information that read: That on or about the period covering from December 28, 1988 to January 5, 1989, and for sometime prior thereto, in the Municipality of Tubigon, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused Zenon R. Perez, a public officer being then Acting Municipal Treasury of the said Municipality, by reason of the duties of his official position was accountable for the public funds collected and received by him, with grave abuse of confidence did then and there willfully, unlawfully and feloniously misappropriate, misapply, embezzle and take away from the said funds the total amount of SEVENTY-TWO THOUSAND SEVEN HUNDRED EIGHTY-FOUR PESOS and 57/100 (P72,784.57), which said fund was appropriated and converted by the said accused to his own personal use and benefit to the damage and prejudice of the government in the aforementioned amount. CONTRARY TO LAW.[13] (Underscoring supplied) guilty.[14] On March 1, 1990, petitioner, duly assisted by counsel de parte, entered a plea of not

Pre-trial was initially set on June 4-5, 1990 but petitioners counsel moved for postponement. The Sandiganbayan, however, proceeded to hear the case on June 5, 1990, as previously scheduled, due to the presence of prosecution witness Arlene R. Mandin, who came all the way from Bohol. On said date, the Sandiganbayan dispensed with pre-trial and allowed the prosecution to present its witness. Arlene R. Mandin testified as narrated above. The defense presented evidence through petitioner Zenon R. Perez himself. He denied the contents of his first Answer[15] to the administrative case filed against him by the audit team. He claimed it was prepared without the assistance of counsel and that at the time of its preparation and submission, he was not in peak mental and physical condition, having been stricken with diabetes mellitus.[16]

He then revoked his Answer dated February 22, 1989 and filed his second Answer dated March 2, 1989.[17] In the latter, he vehemently denied that he incurred a cash shortage P72,784.57. According to petitioner, the alleged shortage was in the possession and custody of his accountable personnel at the time of the audit examination. Several amounts totallingP64,784.00 were remitted to him on separate dates by his accountable officer, starting January 16, 1989 to February 16, 1989. The same were turned over by him to the Office of the Provincial Treasurer, leaving an unremitted sum of P8,000.00 as of February 16, 1989.[18] He remitted the P8,000.00 on April 17, 1989 to the Provincial Treasurer of Bohol, fully restoring the cash shortage. Petitioner further testified that on July 30, 1989, he submitted his Position Paper[19] before the Office of the Ombudsman, Cebu City and maintained that the alleged cash shortage was only due to oversight. Petitioner argued that the government did not suffer any damage or prejudice since the alleged cash shortage was actually deposited with the Office of the Provincial Treasurer as evidenced by official receipts.[20] Petitioner completed his testimony on September 20, 1990. He rested his case on October 20, 1990.[21] Sandiganbayan Disposition On September 24, 2003, the Sandiganbayan rendered a judgment of conviction with a fallo reading: WHEREFORE, judgment is hereby rendered finding the accused ZENON R. PEREZ, GUILTY beyond reasonable doubt of the crime of Malversation of Public Funds as defined in and penalized by Article 217 of the Revised Penal Code and, there being one mitigating circumstance without any aggravating circumstance to offset the same, is hereby sentenced to suffer an indeterminate penalty of fromTEN (10) YEARS and ONE (1) DAY of prision mayor as the minimum to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of reclusion temporal as the maximum and to suffer perpetual special disqualification. The accused Zenon R. Perez is likewise ordered to pay a FINE equal to the total amount of the funds malversed, which is Seventy-Two Thousand Seven Hundred Eighty-Four Pesos and Fifty-Seven Centavos (P72, 784.57). SO ORDERED.[22] (Emphasis in the original) On January 13, 2004, petitioner filed a motion for reconsideration[23] which the prosecution opposed on January 28, 2004.[24] Petitioner replied[25] to the opposition. OnAugust 6, 2004, petitioners motion was denied with finality. On September 23, 2004, petitioner resorted to the instant appeal issues, to wit: I.
[26]

Before addressing petitioners twin assignment of errors, We first tackle the propriety of petitioners conviction for malversation of public funds. I. Petitioner was correctly convicted of malversation. Malversation is defined and penalized under Article 217 of the Revised Penal Code. The acts punished as malversation are: (1) appropriating public funds or property, (2) taking or misappropriating the same, (3) consenting, or through abandonment or negligence, permitting any other person to take such public funds or property, and (4) being otherwise guilty of the misappropriation or malversation of such funds or property.[28] There are four elements that must concur in order that one may be found guilty of the crime. They are: (a) That the offender be a public officer; (b) That he had the custody or control of funds or property by reason of the duties of his office; (c) That those funds or property involved were public funds or property for which he is accountable; and (d) That he has appropriated, took or misappropriated or consented or, through abandonment or negligence, permitted another person to take them. [29] Evidently, the first three elements are present in the case at bar. At the time of the commission of the crime charged, petitioner was a public officer, being then the acting municipal treasurer of Tubigon, Bohol. By reason of his public office, he was accountable for the public funds under his custody or control. The question then is whether or not petitioner has appropriated, took or misappropriated, or consented or through abandonment or negligence, permitted another person to take such funds. We rule in the affirmative. In malversation, all that is necessary to prove is that the defendant received in his possession public funds; that he could not account for them and did not have them in his possession; and that he could not give a reasonable excuse for its disappearance. An accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is shortage in his accounts which he has not been able to explain satisfactorily.[30] Verily, an accountable public officer may be found guilty of malversation even if there is no direct evidence of malversation because the law establishes a presumption that mere failure of an accountable officer to produce public funds which have come into his hands on demand by an officer duly authorized to examine his accounts is prima faciecase of conversion.[31] Because of the prima facie presumption in Article 217, the burden of evidence is shifted to the accused to adequately explain the location of the funds or property under his custody or control in order to rebut the presumption that he has appropriated or misappropriated for himself the missing funds. Failing to do so, the accused may be convicted under the said provision. However, the presumption is merely prima facie and a rebuttable one. The accountable officer may overcome the presumption by proof to the contrary. If he adduces evidence showing that, in fact, he has not put said funds or property to personal use, then that presumption is at end and the prima facie case is destroyed.[32] In the case at bar, petitioner was not able to present any credible evidence to rebut the presumption that he malversed the missing funds in his custody or control. What is extant in the

raising the following

THE HON. SANDIGANBAYAN BY UNDULY AND UNREASONABLY DELAYING THE DECISION OF THE CASE FOR OVER THIRTEEN (13) YEARS VIOLATED THE PETITIONERS RIGHT TO SPEEDY DISPOSITION OF HIS CASE AND DUE PROCESS. THE LAW RELIED UPON IN CONVICTING THE PETITIONER AND THE SENTENCE IMPOSED IS CRUEL AND THEREFORE VIOLATES SECTION 19 OF ARTICLE III (BILL OF RIGHTS) OF THE CONSTITUTION.[27] (Underscoring supplied) Our Ruling

II.

records is that the prosecution, through witness Arlene R. Mandin, was able to prove that petitioner malversed the funds under his custody and control. As testified by Mandin: Atty. Caballero: Q: Was Mr. Zenon Perez actually and physically present during the time of your cash examination? Witness: A. Yes, Sir. Q: A: Q: From December 28, to January 5, 1989? He was present on December 28, 1988 and January 4 and 5, 1989, Sir. Did he not make any verbal explanation as the reason why he was short of about P72,000.00, after you conducted the cash count on January 5, 1989? Yes, Sir, he did. What did he tell you? He told us that he used some of the money to pay for the loan of his brother and the other portion was spent for food of his family; and the rest for his medicine.[33] (Emphasis supplied)

True it is that petitioner filed another Answer on March 2, 1989 with the Office of the Provincial Treasurer of Bohol, substantially changing the contents of his earlier answer of February 22, 1989. His second Answer averred: 3. That the truth of the matter is that the alleged total cash shortage of P72,784.57 were still in the possession and custody of his accountable personnel at the time of the examination held by the auditor of the Commission on Audit;

4. That out of the alleged cash shortage of P72,784.57, almost all of said amount were already remitted to him by his accountable personnel after January 5, 1989, and only the remaining amount of P8,000.00 remains to be remitted to him by his accountable personnel.[35] The sudden turnaround of petitioner fails to convince Us. To Our mind, petitioner only changed his story to exonerate himself, after realizing that his first Answer put him in a hole, so to speak. It is contended that petitioners first Answer of February 22, 1989 should not have been given probative weight because it was executed without the assistance of counsel. [36] There is no law, jurisprudence or rule which mandates that an employee should be assisted by counsel in an administrative case. On the contrary, jurisprudence is in unison in saying that assistance of counsel is not indispensable in administrative proceedings. Walang batas, hurisprudensiya, o tuntunin na nagsasabi na ang isang kawani ay dapat may tulong ng abogado sa isang kasong administratibo. Sa katunayan, ang hurisprudensiya ay iisa ang sinasabi na ang pagtulong ng isang abogado ay hindi kailangang-kailangan sa kasong administratibo. The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of counsel, is a right afforded a suspect or accused during custodial investigation. It is not an absolute right and may be invoked or rejected in a criminal proceeding and, with more reason, in an administrative inquiry.[37] Ang karapatang magkaroon ng abogado, na hindi maaaring talikdan malibang ang waiver ay nakasulat at sa harap ng abogado, ay karapatang ibinibigay sasuspek o nasasakdal sa isang custodial investigation. Ito ay hindi lubos na karapatan at maaring hingin o tanggihan sa isang prosesong kriminal, at lalo na sa isang administratibong pagsisiyasat. While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of respondents capacity to represent himself, and no duty rests on such body to furnish the person being investigated with counsel.[38] Thus, the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service.[39] Kung gayon, ang karapatang magkaroon ng abogado ay hindi sapilitan sa isang administratibong imbestigasyon sapagkat ito ay ginagawa lamang upang malaman kung may sapat na batayan na patawan ng disiplina ang nagkasalang opisyal o empleyado, para mapanatili ang dignidad ng paglilingkod sa pamahalaan. There is nothing in the Constitution that says that a party in a non-litigation proceeding is entitled to be represented by counsel and that, without such representation, he shall not be bound by

A: Q: A:

Petitioner gave himself away with his first Answer filed at the Office of the Provincial Treasurer of Bohol in the administrative case filed against him. In that Answer, petitioner narrated how he disposed of the missing funds under his custody and control, to wit: (1) about P30,000.00 was used to pay the commercial loan of his late brother; (2) he spent P10,000.00 for the treatment of his toxic goiter; and (3) about P32,000.00 was spent for food and clothing of his family, and the education of his children. He there stated: 1. That the circumstances surrounding the cash shortage in the total amount of P72,784.57 during the examination of the respondents cash accounts by the Commission on Audit on December 28-29, 1988 and January 4-5, 1989 are as follows, to wit: (a) That respondent paid the amount of about P30,000.00 to the Philippine National Bank, Tagbilaran Branch as interests of the commercial loan of his late brother Carino R. Perez using respondents house and lot as collateral thereof. If the interests would not be paid, the loan would be foreclosed to respondents great prejudice and disadvantage considering that he and his family are residing in said house used as collateral; (b) That respondent spent the amount of P10,000.00 in connection with the treatment of his toxic goiter; (c) That the rest of the amount amounting to about P32,000.00 was spent by him for his familys foods, clothings (sic), and education of his children because his monthly salary is not enough for the needs of his family.[34] By the explicit admission of petitioner, coupled with the testimony of Arlene R. Mandin, the fourth element of the crime of malversation was duly established. His conviction thus stands in terra firma.

such proceedings. The assistance of lawyers, while desirable, is not indispensable. The legal profession was not engrafted in the due process clause such that without the participation of its members, the safeguard is deemed ignored or violated. The ordinary citizen is not that helpless that he cannot validly act at all except only with a lawyer at his side.[40] More than that, petitioners first Answer may be taken against him, as he executed it in the course of the administrative proceedings below. This is pursuant to Rule 130, Section 26 of the Rules of Court which provides that the act, declaration or omission of a party as to a relevant fact may be given against him. In People v. Lising,[41] the Court held: Extrajudicial statements are as a rule, admissible as against their respective declarants, pursuant to the rule that the act, declaration or omission of a party as to a relevant fact may be given against him. This is based upon the presumption that no man would declare anything against himself, unless such declarations were true. A mans act, conduct and declarations wherever made, provided they be voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth and it is his fault if they are not. There is also no merit in the contention that petitioners sickness affected the preparation of his first Answer. He presented no convincing evidence that his disease at the time he formulated that answer diminished his capacity to formulate a true, clear and coherent response to any query. In fact, its contents merely reiterated his verbal explanation to the auditing team on January 5, 1989 on how he disposed of the missing funds. II. There is no violation of the rights to a speedy disposition of the case and to due process of law. We now discuss the right to a speedy trial and disposition, the balancing test, due process, and cruel and unusual punishment. Petitioner asserts that his right to due process of law and to speedy disposition of his case was violated because the decision of the Sandiganbayan was handed down after the lapse of more than twelve years. The years that he had to wait for the outcome of his case were allegedly spent in limbo, pain and agony.[42] We are not persuaded. Due process of law as applied to judicial proceedings has been interpreted to mean a law which hears before it condemns, which proceeds on inquiry, and renders judgment only after [43] trial. Petitioner cannot complain that his right to due process has been violated. He was given all the chances in the world to present his case, and the Sandiganbayan rendered its decision only after considering all the pieces of evidence presented before it. Petitioners claim of violation of his right to a speedy disposition of his case must also fail. The 1987 Constitution[44] guarantees the right of an accused to speedy trial. Both the 1973 Constitution in Section 16 of Article IV and the 1987 Constitution in Section 16 of Article III, Bill of Rights, are also explicit in granting to the accused the right to speedy disposition of his case.[45] In Barker v. Wingo,[46] the United States Supreme Court was confronted for the first time with two rigid approaches on speedy trial as ways of eliminating some of the uncertainty which courts experience protecting the right.[47] The first approach is the fixed-time period which holds the view that the Constitution requires a criminal defendant to be offered a trial within a specified time period. [48] The second approach is the demand-waiver rule which provides that a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded trial. Under this rigid approach, a prior demand is a necessary condition to the consideration of the speedy trial right.[49]

The fixed-time period was rejected because there is no constitutional basis for holding that the speedy trial can be quantified into a specific number of days or months.[50] The demandwaiver rule was likewise rejected because aside from the fact that it is inconsistent with this Courts pronouncements on waiver of constitutional rights,[51] it is insensitive to a right which we have deemed fundamental.[52] The Court went on to adopt a middle ground: the balancing test, in which the conduct of both the prosecution and defendant are weighed.[53] Mr. Justice Powell,ponente, explained the concept, thus: A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendants assertion of his right, and prejudice to the defendant. The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge. Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. We have already discussed the third factor, the defendants responsibility to assert his right. Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendants assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.[54] (Emphasis supplied)

Philippine jurisprudence has, on several occasions, adopted the balancing test. In 1991, in Gonzales v. Sandiganbayan,[55] this Court ruled: It must be here emphasized that the right to a speedy disposition of a case, like the right to speedy trial, is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. Equally applicable is the balancing test used to determine whether a defendant has been denied his right to a speedy trial, or a speedy disposition of a case for that matter, in which the conduct of both the prosecution and the defendant are weighed, and such factors as length of the delay, reason for the delay, the defendants assertion or non-assertion of his right, and prejudice to the defendant resulting from the delay, are considered. (Underscoring supplied) Subsequently, in Dela Pea v. Sandiganbayan,[56] this Court again enumerated the factors that should be considered and balanced, namely: (1) length of delay; (2) reasons for the delay; (3) assertion or failure to assert such right by the accused; and (4) prejudice caused by the delay. [57] Once more, in Mendoza-Ong v. Sandiganbayan,[58] this Court reiterated that the right to speedy disposition of cases, like the right to speedy trial, is violated only when the proceedings are attended by vexatious, capricious and oppressive delays.[59] In the determination of whether said right has been violated, particular regard must be taken of the facts and circumstances peculiar to each case.[60] The conduct of both the prosecution and defendant, the length of the delay, the reasons for such delay, the assertion or failure to assert such right by accused, and the prejudice caused by the delay are the factors to consider and balance.[61] Moreover, the determination of whether the delays are of said nature is relative and cannot be based on a mere mathematical reckoning of time.[62] Measured by the foregoing yardstick, We rule that petitioner was not deprived of his right to a speedy disposition of his case.

This case is analogous to Guerrero v. Court of Appeals.[65] There, the Court ruled that there was no violation of petitioners right to speedy trial and disposition of his case inasmuch as he failed seasonably to assert his rights: In the present case, there is no question that petitioner raised the violation against his own right to speedy disposition only when the respondent trial judge reset the case for rehearing. 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 transcribe stenographic notes) that he was not waiving it. As it is, his silence would have to be interpreted as a waiver of such right. While this Court recognizes the right to speedy disposition quite distinctly from the right to a speedy trial, and although this Court has always zealously espoused protection from oppressive and vexatious delays not attributable to the party involved, at the same time, we hold that a partys individual rights should not work against and preclude the peoples equally important right to public justice. In the instant case, three people died as a result of the crash of the airplane that the accused was flying. It appears to us that the delay in the disposition of the case prejudiced not just the accused but the people as well. Since the accused has completely failed to assert his right seasonably and inasmuch as the respondent judge was not in a position to dispose of the case on the merits due to the absence of factual basis, we hold it proper and equitable to give the parties fair opportunity to obtain (and the court to dispense) substantial justice in the premises. III. The law relied upon in convicting petitioner is not cruel and unusual. It does not violate Section 19, Article III of the Bill of Rights. What constitutes cruel and unusual punishment has not been exactly defined. [66] The Eighth Amendment of the United States Constitution,[67] the source of Section 19, Article III of the Bill of Rights[68] of our own Constitution, has yet to be put to the test to finally determine what constitutes cruel and inhuman punishment.[69] Cases that have been decided described, rather than defined, what is meant by cruel and unusual punishment. This is explained by the pronouncement of the United States Supreme Court that [t]he clause of the Constitution, in the opinion of the learned commentators, may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.[70] In Wilkerson v. Utah,[71] Mr. Justice Clifford of the United States Supreme Court opined that [d]ifficulty would attend the effort to define with exactness the extent of theconstitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, x x x and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the constitution.[72] In In Re: Kemmler,[73] Mr. Chief Justice Fuller of that same Court stated that [p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies x x x something more inhuman and barbarous, something more than the mere extinguishment of life.[74]

More important than the absence of serious prejudice, petitioner himself did not want a speedy disposition of his case.[63] Petitioner was duly represented by counsel de parte in all stages of the proceedings before the Sandiganbayan. From the moment his case was deemed submitted for decision up to the time he was found guilty by the Sandiganbayan, however, petitioner has not filed a single motion or manifestation which could be construed even remotely as an indication that he wanted his case to be dispatched without delay. Petitioner has clearly slept on his right. The matter could have taken a different dimension if during all those twelve years, petitioner had shown signs of asserting his right to a speedy disposition of his case or at least made some overt acts, like filing a motion for early resolution, to show that he was not waiving that right.[64] Currit tempus contra decides et sui juris contempores: Time runs against the slothful and those who neglect their rights. Ang panahon ay hindi panig sa mga tamad at pabaya sa kanilang karapatan. Vigilantis sed non dormientibus jura in re subveniunt. The law aids the vigilant and not those who slumber in their rights. Ang batas ay tumutulong sa mga mapagbantay at hindi sa mga humihimbing sa kanilang karapatan. Pending his conviction by the Sandiganbayan, petitioner may have truly lived in suspicion and anxiety for over twelve years. However, any prejudice that may have been caused to him in all those years was only minimal. The supposed gravity of agony experienced by petitioner is more imagined than real.

Again, in Weems v. U.S.,[75] Mr. Justice McKenna held for the Court that cadena temporal and its accessory penalties has no fellow in American legislation. Let us remember that it has come to us from a government of a different form and genus from ours. It is cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is unusual in character. Its punishments come under the condemnation of the Bill of Rights, both on account of their degree and kind. And they would have those bad attributes even if they were found in a Federal enactment, and not taken from an alien source. In Echegaray v. Executive Secretary,[76] this Court in a per curiam Decision held that Republic Act No. 8177,[77] even if it does not provide in particular the details involved in the execution by lethal injection, is not cruel, degrading or inhuman, and is thus constitutional. Any infliction of pain in lethal injection is merely incidental in carrying out the execution of the death penalty and does not fall within the constitutional proscription against cruel, degrading or inhuman punishment.[78] The Court adopted the American view that what is cruel and unusual is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by humane justice and must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.[79] In his last ditch effort to exculpate himself, petitioner argues that the penalty meted for the crime of malversation of public funds that ha[ve] been replenished, remitted and/or returned to the government is cruel and therefore unconstitutional, as government has not suffered any damage.[80] The argument is specious on two grounds. First. What is punished by the crime of malversation is the act of a public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take and misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property. [81] Payment or reimbursement is not a defense for exoneration in malversation; it may only be considered as a mitigating circumstance. This is because damage is not an element of malversation. Second. There is strong presumption of constitutionality accorded to statutes. It is established doctrine that a statute should be construed whenever possible in harmony with, rather than in violation of, the Constitution. [82] The presumption is that the legislature intended to enact a valid, sensible and just law and one which operates no further than may be necessary to effectuate the specific purpose of the law.[83] It is presumed that the legislature has acted within its constitutional powers. So, it is the generally accepted rule that every statute, or regularly accepted act, is, or will be, or should be, presumed to be valid and constitutional. [84] He who attacks the constitutionality of a law has the onus probandi to show why such law is repugnant to the Constitution. Failing to overcome its presumption of constitutionality, a claim that a law is cruel, unusual, or inhuman, like the stance of petitioner, must fail. IV. On the penalty The Sandiganbayan sentenced petitioner to an indeterminate sentence of ten (10) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum. In imposing the penalty, it found that petitioner was entitled to the mitigating circumstance of payment which is akin to voluntary surrender. Article 217 penalizes malversation in the following tenor: Article 217. Malversation of public funds or property. Presumption of malversation. Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall

take and misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property. xxxx 4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than 12,000 but is less than 22,000 pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled. The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses. (Underscoring supplied) The amount malversed totalled P72,784.57. The prescribed penalty is reclusion temporal in its maximum period to reclusion perpetua, which has a range of seventeen (17) years, four (4) months and one (1) day to forty (40) years. However, the commission of the crime was attended by the mitigating circumstance akin to voluntary surrender. As correctly observed by the Sandiganbayan, petitioner restituted the full amount even before the prosecution could present its evidence. That is borne by the records. It bears stressing that the full restitution of the amount malversed will not in any way exonerate an accused, as payment is not one of the elements of extinction of criminal liability. Under the law, the refund of the sum misappropriated, even before the commencement of the criminal prosecution, does not exempt the guilty person from liability for the crime. [85] At most, then, payment of the amount malversed will only serve as a mitigating circumstance [86] akin to voluntary surrender, as provided for in paragraph 7 of Article 13[87] in relation to paragraph 10[88] of the same Article of the Revised Penal Code. But the Court also holds that aside from voluntary surrender, petitioner is entitled to the mitigating circumstance of no intention to commit so grave a wrong, [89] again in relation to paragraph 10 of Article 13.[90]

The records bear out that petitioner misappropriated the missing funds under his custody and control because he was impelled by the genuine love for his brother and his family. Per his admission, petitioner used part of the funds to pay off a debt owed by his brother. Another portion of the misappropriated funds went to his medications for his debilitating diabetes. Further, as shown earlier, petitioner restituted all but Eight Thousand Pesos (P8,000.00) of the funds in less than one month and a half and said small balance in three (3) months from receipt of demand of COA on January 5, 1999. Evidently, there was no intention to commit so grave a wrong. Of course, the end does not justify the means. To condone what petitioner has done because of the nobility of his purpose or financial emergencies will become a potent excuse for malefactors and open the floodgates for more corruption in the government, even from small fry like him. The bottom line is a guilty person deserves the penalty given the attendant circumstances and commensurate with the gravity of the offense committed. Thus, a reduction in the imposable penalty by one degree is in order. Article 64 of the Revised Penal Code is explicit:

Art. 64. Rules for the application of penalties which contain three periods. In cases in which the penalties prescribed by law contains three periods, whether it be a single divisible penalty or composed of three difference penalties, each one of which forms a period in accordance with the provisions of Articles 76 and 77, the courts shall observe for the application of the penalty, the following rules, according to whether there are no mitigating or aggravating circumstances: xxxx 5. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances. (Underscoring supplied) Considering that there are two mitigating circumstances, the prescribed penalty is reduced to prision mayor in its maximum period to reclusion temporal in its medium period, to be imposed in any of its periods. The new penalty has a range of ten (10) years and one (1) day to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law,[91] the maximum term could be ten (10) years and one (1) day of prision mayor maximum, while the minimum term is again one degree lower[92] and could be four (4) years, two (2) months and one (1) day of prision correccional maximum. In the 1910 case of U.S. v. Reyes,[93] the trial judge entered a judgment of conviction against the accused and meted to him the penalty of three years imprisonment, to pay a fine of P1,500.00, and in case of insolvency to suffer subsidiary imprisonment at the rate of one day for every P2.50 that he failed to pay, which subsidiary imprisonment, however, should not exceed one third of the principal penalty and to be perpetually disqualified for public office and to pay the costs. This was well within the imposable penalty then under Section 1 of Act No. 1740,[94] which is imprisonment for not less than two months nor more than ten years and, in the discretion of the court, by a fine of not more than the amount of such funds and the value of such property. On appeal to the Supreme Court, the accuseds conviction was affirmed but his sentence was modified and reduced to six months. The court, per Mr. Justice Torres, reasoned thus: For the foregoing reasons the several unfounded errors assigned to the judgment appealed from have been fully refuted, since in conclusion it is fully shown that the accused unlawfully disposed of a portion of the municipal funds, putting the same to his own use, and to that of other persons in violation of Act. No. 1740, and consequently he has incurred the penalty therein established as principal of the crime of misappropriation; and even though in imposing it, it is not necessary to adhere to the rules of the Penal Code, the court in using its discretional powers as authorized by law, believes that the circumstances present in the commission of crimes should be taken into consideration, and in the present case the amount misappropriated was refunded at the time the funds were counted.[95](Underscoring supplied) We opt to exercise an analogous discretion. WHEREFORE, the Decision of the Sandiganbayan dated September 24, 2003 is AFFIRMED with the MODIFICATION that petitioner is hereby sentenced to suffer the indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correccional, as minimum term, to ten (10) years and one (1) day of prision mayor, as maximum term, with perpetual special disqualification. He is likewise ORDERED to pay a fine of P72,784.57, the amount equal to the funds malversed. Costs against petitioner.

SO ORDERED.

G.R. No. 159132 December 18, 2008 FE CAYAO-LASAM, petitioner, vs. SPOUSES CLARO and EDITHA RAMOLETE, respondents.* DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by Dr. Fe Cayao-Lasam (petitioner) seeking to annul the Decision1 dated July 4, 2003 of the Court of Appeals (CA) in CA-G.R. SP No. 62206. The antecedent facts: On July 28, 1994, respondent, three months pregnant Editha Ramolete (Editha) was brought to the Lorma Medical Center (LMC) in San Fernando, La Union due to vaginal bleeding. Upon advice of petitioner relayed via telephone, Editha was admitted to the LMC on the same day. A pelvic sonogram2 was then conducted on Editha revealing the fetus weak cardiac pulsation.3 The following day, Edithas repeat pelvic sonogram 4 showed that aside from the fetus weak cardiac pulsation, no fetal movement was also appreciated. Due to persistent and profuse vaginal bleeding, petitioner advised Editha to undergo a Dilatation and Curettage Procedure (D&C) or "raspa." On July 30, 1994, petitioner performed the D&C procedure. Editha was discharged from the hospital the following day. On September 16, 1994, Editha was once again brought at the LMC, as she was suffering from vomiting and severe abdominal pains. Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V. Komiya. Dr. Mayo allegedly informed Editha that there was a dead fetus in the latters womb. After, Editha underwent laparotomy, 5 she was found to have a massive intra-abdominal hemorrhage and a ruptured uterus. Thus, Editha had to undergo a procedure for hysterectomy6 and as a result, she has no more chance to bear a child. On November 7, 1994, Editha and her husband Claro Ramolete (respondents) filed a Complaint7 for Gross Negligence and Malpractice against petitioner before the Professional Regulations Commission (PRC). Respondents alleged that Edithas hysterectomy was caused by petitioners unmitigated negligence and professional incompetence in conducting the D&C procedure and the petitioners failure to remove the fetus inside Edithas womb.8 Among the alleged acts of negligence were: first, petitioners failure to check up, visit or administer medication on Editha during her first day of confinement at the LMC; 9 second, petitioner recommended that a D&C procedure be performed on Editha without conducting any internal examination prior to the procedure;10 third, petitioner immediately suggested a D&C procedure instead of closely monitoring the state of pregnancy of Editha.11 In her Answer,12 petitioner denied the allegations of negligence and incompetence with the following explanations: upon Edithas confirmation that she would seek admission at the LMC, petitioner immediately called the hospital to anticipate the arrival of Editha and ordered through the telephone the medicines Editha needed to take, which the nurses carried out; petitioner visited Editha on the morning of July 28, 1994 during her rounds; on July 29, 1994, she performed an internal examination on Editha and she discovered that the latters cervix was already open, thus, petitioner discussed the possible D&C procedure, should the bleeding become more profuse; on July 30 1994, she conducted another internal examination on Editha, which revealed that the latters cervix was still open; Editha persistently complained of her vaginal bleeding and her passing out of some meaty mass in the process of urination and bowel movement; thus, petitioner advised Editha to undergo D&C procedure which the respondents consented to; petitioner was very vocal in the operating room about not being able to see an abortus;13 taking the words of Editha to mean that she was passing out some meaty mass and clotted blood, she assumed that the abortus must have been expelled in the process of bleeding; it was Editha who insisted that she wanted to be discharged; petitioner agreed, but she advised Editha to return for check-up on August 5, 1994, which the latter failed to do. Petitioner contended that it was Edithas gross negligence and/or omission in insisting to be discharged on July 31, 1994 against doctors advice and her unjustified failure to return for check-up as directed by petitioner that contributed to her life-threatening condition on September 16, 1994; that Edithas hysterectomy was brought about by her very abnormal

pregnancy known as placenta increta, which was an extremely rare and very unusual case of abdominal placental implantation. Petitioner argued that whether or not a D&C procedure was done by her or any other doctor, there would be no difference at all because at any stage of gestation before term, the uterus would rupture just the same. On March 4, 1999, the Board of Medicine (the Board) of the PRC rendered a Decision,14 exonerating petitioner from the charges filed against her. The Board held: Based on the findings of the doctors who conducted the laparotomy on Editha, hers is a case of Ectopic Pregnancy Interstitial. This type of ectopic pregnancy is one that is being protected by the uterine muscles and manifestations may take later than four (4) months and only attributes to two percent (2%) of ectopic pregnancy cases. When complainant Editha was admitted at Lorma Medical Center on July 28, 1994 due to vaginal bleeding, an ultra-sound was performed upon her and the result of the Sonogram Test reveals a morbid fetus but did not specify where the fetus was located. Obstetricians will assume that the pregnancy is within the uterus unless so specified by the Sonologist who conducted the ultra-sound. Respondent (Dr. Lasam) cannot be faulted if she was not able to determine that complainant Editha is having an ectopic pregnancy interstitial. The D&C conducted on Editha is necessary considering that her cervix is already open and so as to stop the profuse bleeding. Simple curettage cannot remove a fetus if the patient is having an ectopic pregnancy, since ectopic pregnancy is pregnancy conceived outside the uterus and curettage is done only within the uterus. Therefore, a more extensive operation needed in this case of pregnancy in order to remove the fetus. 15 Feeling aggrieved, respondents went to the PRC on appeal. On November 22, 2000, the PRC rendered a Decision16 reversing the findings of the Board and revoking petitioners authority or license to practice her profession as a physician. 17 Petitioner brought the matter to the CA in a Petition for Review under Rule 43 of the Rules of Court. Petitioner also dubbed her petition as one for certiorari18 under Rule 65 of the Rules of Court. In the Decision dated July 4, 2003, the CA held that the Petition for Review under Rule 43 of the Rules of Court was an improper remedy, as the enumeration of the quasi-judicial agencies in Rule 43 is exclusive.19 PRC is not among the quasi-judicial bodies whose judgment or final orders are subject of a petition for review to the CA, thus, the petition for review of the PRC Decision, filed at the CA, was improper. The CA further held that should the petition be treated as a petition for certiorari under Rule 65, the same would still be dismissed for being improper and premature. Citing Section 2620 of Republic Act (R.A.) No. 2382 or the Medical Act of 1959, the CA held that the plain, speedy and adequate remedy under the ordinary course of law which petitioner should have availed herself of was to appeal to the Office of the President.21 Hence, herein petition, assailing the decision of the CA on the following grounds: 1. THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING THAT THE PROFESSIONAL REGULATION[S] COMMISSION (PRC) WAS EXCLUDED AMONG THE QUASI-JUDICIAL AGENCIES CONTEMPLATED UNDER RULE 43 OF THE RULES OF CIVIL PROCEDURE; 2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS EXCLUDED FROM THE PURVIEW OF RULE 43 OF THE RULES OF CIVIL PROCEDURE, THE PETITIONER WAS NOT PRECLUDED FROM FILING A PETITION FOR CERTIORARI WHERE THE DECISION WAS ALSO ISSUED IN EXCESS OF OR WITHOUT JURISDICTION, OR WHERE THE DECISION WAS A PATENT NULLITY; 3. HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY LAW TO APPEAL FROM THE DECISION OF THE BOARD OF MEDICINE TO THE PROFESSIONAL REGULATION[S] COMMISSION; 4. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING FOR IMPROPER FORUM THE PETITION FOR REVIEW/PETITION FOR CERTIORARI WITHOUT GOING OVER THE MERITS OF THE GROUNDS RELIED UPON BY THE PETITIONER; 5. PRCS GRAVE OMISSION TO AFFORD HEREIN PETITONER A CHANCE TO BE HEARD ON APPEAL IS A CLEAR VIOLATION OF HER CONSTITUTIONAL

RIGHT TO DUE PROCESS AND HAS THE EFFECT OF RENDERING THE JUDGMENT NULL AND VOID; 6. COROLLARY TO THE FOURTH ASSIGNED ERROR, PRC COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN ACCEPTING AND CONSIDERING THE MEMORANDUM ON APPEAL WITHOUT PROOF OF SERVICE TO HEREIN PETITIONER, AND IN VIOLATION OF ART. IV, SEC. 35 OF THE RULES AND REGULATIONS GOVERNING THE REGULATION AND PRACTICE OF PROFESSIONALS; 7. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING PETITIONERS LICENSE TO PRACTICE MEDICINE WITHOUT AN EXPERT TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF RESPONDENT EDITHAT [SIC] RAMOLETES INJURY; 8. PRC COMMITTED AN EVEN GRAVER ABUSE OF DISCRETION IN TOTALLY DISREGARDING THE FINDING OF THE BOARD OF MEDICINE, WHICH HAD THE NECESSARY COMPETENCE AND EXPERTISE TO ESTABLISH THE CAUSE OF RESPONDENT EDITHAS INJURY, AS WELL AS THE TESTIMONY OF THE EXPERT WITNESS AUGUSTO MANALO, M.D. ;[and] 9. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN MAKING CONCLUSIONS OF FACTS THAT WERE NOT ONLY UNSUPPORTED BY EVIDENCE BUT WERE ACTUALLY CONTRARY TO EVIDENCE ON RECORD.22 The Court will first deal with the procedural issues. Petitioner claims that the law does not allow complainants to appeal to the PRC from the decision of the Board. She invokes Article IV, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals, which provides: Sec. 35. The respondent may appeal the decision of the Board within thirty days from receipt thereof to the Commission whose decision shall be final. Complainant, when allowed by law, may interpose an appeal from the Decision of the Board within the same period. (Emphasis supplied) Petitioner asserts that a careful reading of the above law indicates that while the respondent, as a matter of right, may appeal the Decision of the Board to the Commission, the complainant may interpose an appeal from the decision of the Board only when so allowed by law.23 Petitioner cited Section 26 of Republic Act No. 2382 or "The Medical Act of 1959," to wit: Section 26. Appeal from judgment. The decision of the Board of Medical Examiners (now Medical Board) shall automatically become final thirty days after the date of its promulgation unless the respondent, during the same period, has appealed to the Commissioner of Civil Service (now Professional Regulations Commission) and later to the Office of the President of the Philippines. If the final decision is not satisfactory, the respondent may ask for a review of the case, or may file in court a petition for certiorari. Petitioner posits that the reason why the Medical Act of 1959 allows only the respondent in an administrative case to file an appeal with the Commission while the complainant is not allowed to do so is double jeopardy. Petitioner is of the belief that the revocation of license to practice a profession is penal in nature.24 The Court does not agree. For one, the principle of double jeopardy finds no application in administrative cases. Double jeopardy attaches only: (1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated without the express consent of the accused.25 These elements were not present in the proceedings before the Board of Medicine, as the proceedings involved in the instant case were administrative and not criminal in nature. The Court has already held that double jeopardy does not lie in administrative cases.26 Moreover, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals cited by petitioner was subsequently amended to read: Sec. 35. The complainant/respondent may appeal the order, the resolution or the decision of the Board within thirty (30) days from receipt thereof to the Commission whose decision shall be final and executory. Interlocutory order shall not be

appealable to the Commission. (Amended by Res. 174, Series of 1990). 27(Emphasis supplied) Whatever doubt was created by the previous provision was settled with said amendment. It is axiomatic that the right to appeal is not a natural right or a part of due process, but a mere statutory privilege that may be exercised only in the manner prescribed by law. 28 In this case, the clear intent of the amendment is to render the right to appeal from a decision of the Board available to both complainants and respondents. Such conclusion is bolstered by the fact that in 2006, the PRC issued Resolution No. 06342(A), or the New Rules of Procedure in Administrative Investigations in the Professional Regulations Commission and the Professional Regulatory Boards, which provides for the method of appeal, to wit: Sec. 1. Appeal; Period Non-Extendible.- The decision, order or resolution of the Board shall be final and executory after the lapse of fifteen (15) days from receipt of the decision, order or resolution without an appeal being perfected or taken by either the respondent or the complainant. A party aggrieved by the decision, order or resolution may file a notice of appeal from the decision, order or resolution of the Board to the Commission within fifteen (15) days from receipt thereof, and serving upon the adverse party a notice of appeal together with the appellants brief or memorandum on appeal, and paying the appeal and legal research fees. x x x29 The above-stated provision does not qualify whether only the complainant or respondent may file an appeal; rather, the new rules provide that "a party aggrieved" may file a notice of appeal. Thus, either the complainant or the respondent who has been aggrieved by the decision, order or resolution of the Board may appeal to the Commission. It is an elementary rule that when the law speaks in clear and categorical language, there is no need, in the absence of legislative intent to the contrary, for any interpretation.30 Words and phrases used in the statute should be given their plain, ordinary, and common usage or meaning. 31 Petitioner also submits that appeals from the decisions of the PRC should be with the CA, as Rule 4332 of the Rules of Court was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial agencies.33 Petitioner further contends that a quasi-judicial body is not excluded from the purview of Rule 43 just because it is not mentioned therein.34 On this point, the Court agrees with the petitioner. Sec. 1, Rule 43 of the Rules of Court provides: Section 1. Scope. - This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals, and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. (Emphasis supplied) Indeed, the PRC is not expressly mentioned as one of the agencies which are expressly enumerated under Section 1, Rule 43 of the Rules of Court. However, its absence from the enumeration does not, by this fact alone, imply its exclusion from the coverage of said Rule.35 The Rule expressly provides that it should be applied to appeals from awards, judgments final orders or resolutions of any quasi-judicial agency in the exercise of its quasijudicial functions. The phrase "among these agencies" confirms that the enumeration made in the Rule is not exclusive to the agencies therein listed. 36 Specifically, the Court, in Yang v. Court of Appeals,37 ruled 38 that Batas Pambansa (B.P.) Blg. 129 conferred upon the CA exclusive appellate jurisdiction over appeals from decisions of the PRC. The Court held: The law has since been changed, however, at least in the matter of the particular court to which appeals from the Commission should be taken. On August 14, 1981,

Batas Pambansa Bilang 129 became effective and in its Section 29, conferred on the Court of Appeals "exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions except those falling under the appellate jurisdiction of the Supreme Court. x x x." In virtue of BP 129, appeals from the Professional Regulations Commission are now exclusively cognizable by the Court of Appeals.39 (Emphasis supplied) Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules of Civil Procedure,40 lodged with the CA such jurisdiction over the appeals of decisions made by the PRC. Anent the substantive merits of the case, petitioner questions the PRC decision for being without an expert testimony to support its conclusion and to establish the cause of Edithas injury. Petitioner avers that in cases of medical malpractice, expert testimony is necessary to support the conclusion as to the cause of the injury. 41 Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances.42 In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient.43 There are four elements involved in medical negligence cases: duty, breach, injury and proximate causation.44 A physician-patient relationship was created when Editha employed the services of the petitioner. As Edithas physician, petitioner was duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances.45 The breach of these professional duties of skill and care, or their improper performance by a physician surgeon, whereby the patient is injured in body or in health, constitutes actionable malpractice.46 As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is essential.47 Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.48 In the present case, respondents did not present any expert testimony to support their claim that petitioner failed to do something which a reasonably prudent physician or surgeon would have done. Petitioner, on the other hand, presented the testimony of Dr. Augusto M. Manalo, who was clearly an expert on the subject. Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or she is to testify, either by the study of recognized authorities on the subject or by practical experience. 49 Dr. Manalo specializes in gynecology and obstetrics, authored and co-authored various publications on the subject, and is a professor at the University of the Philippines. 50 According to him, his diagnosis of Edithas case was "Ectopic Pregnancy Interstitial (also referred to as Cornual), Ruptured."51 In stating that the D&C procedure was not the proximate cause of the rupture of Edithas uterus resulting in her hysterectomy, Dr. Manalo testified as follows: Atty. Hidalgo: Q: Doctor, we want to be clarified on this matter. The complainant had testified here that the D&C was the proximate cause of the rupture of the uterus. The condition which she found herself in on the second admission. Will you please tell us whether that is true or not? A: Yah, I do not think so for two reasons. One, as I have said earlier, the instrument cannot reach the site of the pregnancy, for it to further push the pregnancy outside the uterus. And, No. 2, I was thinking a while ago about another reason- well, why I dont think so, because it is the triggering factor for the rupture, it could havethe rupture could have occurred much earlier, right after the D&C or a few days after the D&C.

Q: In this particular case, doctor, the rupture occurred to have happened minutes prior to the hysterectomy or right upon admission on September 15, 1994 which is about 1 months after the patient was discharged, after the D&C was conducted. Would you tell us whether there is any relation at all of the D&C and the rupture in this particular instance? A: I dont think so for the two reasons that I have just mentioned- that it would not be possible for the instrument to reach the site of pregnancy. And, No. 2, if it is because of the D&C that rupture could have occurred earlier.52 (Emphases supplied) Clearly, from the testimony of the expert witness and the reasons given by him, it is evident that the D&C procedure was not the proximate cause of the rupture of Edithas uterus. During his cross-examination, Dr. Manalo testified on how he would have addressed Edithas condition should he be placed in a similar circumstance as the petitioner. He stated: Atty. Ragonton: Q: Doctor, as a practicing OB-Gyne, when do you consider that you have done a good, correct and ideal dilatation and curettage procedure? A: Well, if the patient recovers. If the patient gets well. Because even after the procedure, even after the procedure you may feel that you have scraped everything, the patient stops bleeding, she feels well, I think you should still have some reservations, and wait a little more time. Q: If you were the OB-Gyne who performed the procedure on patient Editha Ramolete, would it be your standard practice to check the fetal parts or fetal tissues that were allegedly removed? A: From what I have removed, yes. But in this particular case, I think it was assumed that it was part of the meaty mass which was expelled at the time she was urinating and flushed in the toilet. So theres no way. Q: There was [sic] some portions of the fetal parts that were removed? A: No, it was described as scanty scraping if I remember it rightscanty. Q: And you would not mind checking those scant or those little parts that were removed? A: Well, the fact that it was described means, I assume that it was checked, no. It was described as scanty and the color also, I think was described. Because it would be very unusual, even improbable that it would not be examined, because when you scrape, the specimens are right there before your eyes. Its in front of you. You can touch it. In fact, some of them will stick to the instrument and therefore to peel it off from the instrument, you have to touch them. So, automatically they are examined closely. Q: As a matter of fact, doctor, you also give telephone orders to your patients through telephone? A: Yes, yes, we do that, especially here in Manila because you know, sometimes a doctor can also be tied-up somewhere and if you have to wait until he arrive at a certain place before you give the order, then it would be a lot of time wasted. Because if you know your patient, if you have handled your patient, some of the symptoms you can interpret that comes with practice. And, I see no reason for not allowing telephone orders unless it is the first time that you will be encountering the patient. That you have no idea what the problem is. Q: But, doctor, do you discharge patients without seeing them? A: Sometimes yes, depending on how familiar I am with the patient. We are on the question of telephone orders. I am not saying that that is the idle [sic] thing to do, but I think the reality of present day practice somehow justifies telephone orders. I have patients whom I have justified and then all of a sudden, late in the afternoon or late in the evening, would suddenly call they have decided that they will go home inasmuch as they anticipated that I will discharge them the following day. So, I just call and ask our resident on duty or the nurse to allow them to go because I have seen that patient and I think I have full grasp of her problems. So, thats when I make this telephone orders. And, of course before giving that order I ask about how she feels.53 (Emphases supplied)

From the foregoing testimony, it is clear that the D&C procedure was conducted in accordance with the standard practice, with the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances, and that there was nothing irregular in the way the petitioner dealt with Editha. Medical malpractice, in our jurisdiction, is often brought as a civil action for damages under Article 217654 of the Civil Code. The defenses in an action for damages, provided for under Article 2179 of the Civil Code are: Art. 2179. When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.55 An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.56 In the present case, the Court notes the findings of the Board of Medicine: When complainant was discharged on July 31, 1994, herein respondent advised her to return on August 4, 1994 or four (4) days after the D&C. This advise was clear in complainants Discharge Sheet. However, complainant failed to do so. This being the case, the chain of continuity as required in order that the doctrine of proximate cause can be validly invoked was interrupted. Had she returned, the respondent could have examined her thoroughly.57 x x x (Emphases supplied) Also, in the testimony of Dr. Manalo, he stated further that assuming that there was in fact a misdiagnosis, the same would have been rectified if Editha followed the petitioners order to return for a check-up on August 4, 1994. Dr. Manalo stated: Granting that the obstetrician-gynecologist has been misled (justifiably) up to thus point that there would have been ample opportunity to rectify the misdiagnosis, had the patient returned, as instructed for her follow-up evaluation. It was one and a half months later that the patient sought consultation with another doctor. The continued growth of an ectopic pregnancy, until its eventual rupture, is a dynamic process. Much change in physical findings could be expected in 1 months, including the emergence of suggestive ones. 58 It is undisputed that Editha did not return for a follow-up evaluation, in defiance of the petitioners advise. Editha omitted the diligence required by the circumstances which could have avoided the injury. The omission in not returning for a follow-up evaluation played a substantial part in bringing about Edithas own injury. Had Editha returned, petitioner could have conducted the proper medical tests and procedure necessary to determine Edithas health condition and applied the corresponding treatment which could have prevented the rupture of Edithas uterus. The D&C procedure having been conducted in accordance with the standard medical practice, it is clear that Edithas omission was the proximate cause of her own injury and not merely a contributory negligence on her part. Contributory negligence is the act or omission amounting to want of ordinary care on the part of the person injured, which, concurring with the defendants negligence, is the proximate cause of the injury.59 Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. 60 Where the immediate cause of an accident resulting in an injury is the plaintiffs own act, which contributed to the principal occurrence as one of its determining factors, he cannot recover damages for the injury.61 Again, based on the evidence presented in the present case under review, in which no negligence can be attributed to the petitioner, the immediate cause of the accident resulting in Edithas injury was her own omission when she did not return for a follow-up check up, in defiance of petitioners orders. The immediate cause of Edithas injury was her own act; thus, she cannot recover damages from the injury. Lastly, petitioner asserts that her right to due process was violated because she was never informed by either respondents or by the PRC that an appeal was pending before the

PRC.62 Petitioner claims that a verification with the records section of the PRC revealed that on April 15, 1999, respondents filed a Memorandum on Appeal before the PRC, which did not attach the actual registry receipt but was merely indicated therein.63 Respondents, on the other hand avers that if the original registry receipt was not attached to the Memorandum on Appeal, PRC would not have entertained the appeal or accepted such pleading for lack of notice or proof of service on the other party. 64 Also, the registry receipt could not be appended to the copy furnished to petitioners former counsel, because the registry receipt was already appended to the original copy of the Memorandum of Appeal filed with PRC.65 It is a well-settled rule that when service of notice is an issue, the rule is that the person alleging that the notice was served must prove the fact of service. The burden of proving notice rests upon the party asserting its existence. 66 In the present case, respondents did not present any proof that petitioner was served a copy of the Memorandum on Appeal. Thus, respondents were not able to satisfy the burden of proving that they had in fact informed the petitioner of the appeal proceedings before the PRC. In EDI-Staffbuilders International, Inc. v. National Labor Relations Commission,67 in which the National Labor Relations Commission failed to order the private respondent to furnish the petitioner a copy of the Appeal Memorandum, the Court held that said failure deprived the petitioner of procedural due process guaranteed by the Constitution, which could have served as basis for the nullification of the proceedings in the appeal. The same holds true in the case at bar. The Court finds that the failure of the respondents to furnish the petitioner a copy of the Memorandum of Appeal submitted to the PRC constitutes a violation of due process. Thus, the proceedings before the PRC were null and void. All told, doctors are protected by a special rule of law. They are not guarantors of care. They are not insurers against mishaps or unusual consequences 68 specially so if the patient herself did not exercise the proper diligence required to avoid the injury. WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated July 4, 2003 in CA-GR SP No. 62206 is hereby REVERSED and SET ASIDE. The Decision of the Board of Medicine dated March 4, 1999 exonerating petitioner is AFFIRMED. No pronouncement as to costs. SO ORDERED.

[G.R. No. 130140. October 25, 1999] PRESIDENTIAL AD HOC FACT-FINDING COMMITTEE ON BEHEST LOANS represented by MAGTANGGOL C. GUNIGUNDO, PCGG Chairman and ORLANDO C. SALVADOR, as Consultant, Technical Working Group of the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, petitioners, vs.HON. ANIANO A. DESIERTO as Ombudsman; JOSE Z. OSIAS; PACIFICO E. MARCOS; EDUARDO V. ROMUALDEZ; FERNANDO C. ORDOVEZA; and JUANITO ORDOVEZA, Members of the Board of Directors of Philippine Seeds, Inc.; CONCERNED MEMBERS OF THE DEVELOPMENT BANK OF THE PHILIPPINES, respondents. DECISION DAVIDE, JR., C.J.: The core issue in this special civil action for certiorari is whether public respondent Ombudsman Aniano A. Desierto (hereafter OMBUDSMAN) committed grave abuse of discretion in holding that the offenses with which the other respondents were charged in OMB-0-96-0968 had already prescribed. This case originated as G.R. No. 129763, the docket number given to the Motion for Extension of Time to File Petition for Review filed by the Presidential Commission on Good Government (PCGG).[1] The motion was granted. However, what was filed was a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, with the Presidential Ad Hoc Fact-Finding Committee on Behest Loans (hereafter COMMITTEE) as petitioner. The petition was docketed as G.R. No. 130140. Accordingly, G.R. No. 129763 is now deemed functus officio. Initially, the Court dismissed the petition in this case on technical grounds. But, upon petitioners motion for reconsideration, the petition was reinstated, and the respondents were required to comment on the petition. In its Manifestation (In Lieu of Comment),[2] the Development Bank of the Philippines (DBP) manifested that it would rel[y] on the evaluation and exercise of the discretionary power conferred on Petitioner in the prosecution of the instant petition. In its Manifestation and Motion[3] of 16 February 1998, the Office of the Solicitor General (OSG) informed the Court that it could not represent the OMBUDSMAN for the following reasons: (a) the Solicitor General is the Vice-Chairman of petitioner COMMITTEE; (b) being an agency of the Government, the COMMITTEE is entitled to be represented by the OSG; and (c) the petition was signed by Associate Solicitor Salvador C. Guevarra, who is presently on detail with the PCGG, and by Commissioner Herminio A. Mendoza of the PCGG, which is also a client of the OSG. The Court then required the OMBUDSMAN to file his own comment, which he did on 11 June 1998.[4] Copies of the resolution requiring comment on the petition sent to the other respondents were returned to sender because the said respondents had MOVED. Since the challenged resolution and order of the OMBUDSMAN were issued before said other respondents were even required to submit their counter-affidavits, impleading them in this case is not necessary; hence, this case can be resolved without their inclusion as respondents. As culled from the initiatory pleadings and MEMORANDA of the COMMITTEE and the OMBUDSMAN, the undisputed facts are as follows: On 8 October 1992, President Fidel V. Ramos issued Administrative Order No. 13, creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, with the Chairman of the PCGG as Chairman; the Solicitor General as Vice Chairman; and one representative each from the Office of the Executive Secretary, Department of Finance, Department of Justice, Development Bank of the Philippines, Philippine National Bank, Asset Privatization Trust, Government Corporate Counsel, and the Philippine Export and Foreign Loan Guarantee Corporation as members. The Committee was directed to perform the following functions: 1. Inventory all behest loans; identify the lenders and borrowers, including the principal officers and stockholders of the borrowing firms, as well as the persons responsible for granting the loans or who influenced the grant thereof; 2. Identify the borrowers who were granted friendly waivers, as well as the government officials who granted these waivers; determine the validity of these waivers. 3. Determine the courses of action that the government should take to recover those loans, and to recommend appropriate actions to the Office of the President within sixty (60) days from the date hereof. On 9 November 1992, President Ramos issued Memorandum Order No. 61 directing the COMMITTEE to include in its investigation, inventory, and study all non-performing loans which

shall embrace both behest and non-behest loans. It likewise provided for the following criteria which might be utilized as a frame of reference in determining a behest loan, to wit: a. It is undercollateralized. b. The borrower corporation is undercapitalized. c. Direct or indirect endorsement by high government officials like presence of marginal notes. d. Stockholders, officers or agents of the borrower corporation are identified as cronies. e. Deviation of use of loan proceeds from the purpose intended. f. Use of corporate layering. g. Non-feasibility of the project for which financing is being sought. h. Extraordinary speed in which the loan release was made. xxx Moreover, a behest loan may be distinguished from a non-behest loan in that while both may involve civil liability for non-payment or non-recovery, the former may likewise entail criminal liability. In its FOURTEENTH (14TH) REPORT ON BEHEST LOANS to President Ramos, dated 15 July 1993,[5] the COMMITTEE reported that the Philippine Seeds, Inc., (hereafter PSI) of which the respondents in OMB-0-96-0968 were the Directors, was one of the twenty-one corporations which obtained behest loans. In his instructions handwritten on the cover of the aforementioned Report, President Ramos directed COMMITTEE Chairman Magtanggol C. Gunigundo to, inter alia, proceed with administrative and judicial actions against the twenty-one firms (out of 21) in this batch with positive findings ASAP.[6] On 2 March 1996, the COMMITTEE through Orlando O. Salvador, the PCGG consultant detailed with the COMMITTEE, filed with the OMBUDSMAN a sworn complaint[7] against the Directors of PSI namely, Jose Z. Osias, Pacifico E. Marcos, Eduardo V. Romualdez, Fernando C. Ordoveza, and Juanito Ordoveza; and the Directors of the Development Bank of the Philippines who approved the loans for violation of paragraphs (e) and (g) of Section 3 of Republic Act No. 3019, as amended, which read: Sec. 3. Corrupt Practices of Public Officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: ... e. Causing any undue injury to any party, including the Government or giving any private party any unwarranted benefit, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. ... g. Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. The complaint, later docketed as OMB-0-96-0968, alleged as follows: 4. The evidence submitted to us show that: a) Philippine Seeds, Inc. (PSI) obtained its initial loan guarantee on April 17, 1969 under B/R 2805 (Annex 1, Evidence 3) with an aggregate amount of $3,452,535. or P13,568,463. (P3.93 to $1) . . . . Based on the foregoing DBP approved Guarantee Loans, PSI still had a collateral deficiency of P5,444,432, and likewise DBP infused the amount of P3,824,911 as against the corporations paid-up capital of P2,225,000 only. b) Subsequent loans/guarantees were extended by DBP for the benefit and/or advantage of PSI under the following Board Resolutions: 1) B/R 3353 dated August 13, 1975 (Annex 2, Evidence 4) for the following purposes: (a) DBP to extend a loan of P215,000 at 12% interest per annum for repairs & rehabilitation of the PSI plant within a period of four (4) months from the full release of the amount. (b) DBP to extend a short term of P6 million at 12% interest per annum for its working capital. (c) DBP to assume PSI loans with commercial banks. (d) DBP to restructure PSI existing obligations if after 6 months of trial period, operations proved profitable and viable. (e) DDBP to suspend foreclosure for 10 months.

2) B/R 883 series 1978, (Annex 3, Evidence 9) DBP Board approved a P2.9 million loan for the following purposes: (a) P1.9 million to liquidate PSIs obligation with other creditors. (b) P1.0 million to finance PSIs special projects. (c) DBP initiated PSI foreclosures starting March 1975 but it was not implemented by virtue of then President Marcos marginal notes dated April 1975 (Annex 4, Evidence 6) and June 1995 (Annex 5, Evidence 7). (d) Pacifico Marcos and Eduardo Romualdez, relatives of the late President Marcos, were the principal stockholders and officers of the subject firm. 5. As a private entity, Philippine Seeds, Inc., did not deserve the concessions given it without sufficient collateral for the loan and adequate capital to ensure not only the viability of its operations but its ability to repay all its loans. In the resolution[8] dated 14 May 1996 and approved on 9 June 1996, the OMBUDSMAN dismissed the complaint in OMB-0-96-0968 on the ground of prescription. Relying on People v. Dinsay,[9] a case decided by the Court of Appeals, he ratiocinated that since the questioned transactions were evidenced by public instruments and were thus open for the perusal of the public, the prescriptive period commenced to run from the time of the commission of the crime, not from the discovery thereof. Reckoning the prescriptive period from 1969, 1970, 1975, and 1978, when the disputed transactions were entered into, the OMBUDSMAN ruled that the offenses with which respondents were charged had already prescribed. Its motion for reconsideration having been denied by the OMBUDSMAN in the Order [10] of 19 May 1997, the COMMITTEE filed this case raising this sole issue: WHETHER OR NOT THE PUBLIC RESPONDENT OMBUDSMAN GRAVELY ABUSED HIS DISCRETION IN HOLDING THAT THE PRESCRIPTIVE PERIOD IN THIS CASE SHOULD BE COUNTED FROM THE DATE OF THE GRANT OF THE BEHEST LOANS INVOLVED, AND NOT FROM THE DATE OF DISCOVERY OF THE SAME BY THE COMMITTEE. The COMMITTEE argues that the right of the Republic of the Philippines to recover behest loans as ill-gotten wealth is imprescriptible pursuant to the mandate of Section 15 of Article XI of the Constitution, which provides: The right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees as transferees, shall not be barred by prescription, laches, or estoppel. Behest loans are part of the ill-gotten wealth which former President Marcos and his cronies accumulated and which the Government through the PCGG seeks to recover. Besides, even assuming ex gratia that the right to file criminal charges against the respondents is prescriptible, the prescriptive period should be counted from the discovery of the crimes charged, and not from the date of their commission. The ruling in Dinsay is not applicable to the case at bar. First, it is a decision of the Court of Appeals; hence, it does not establish a doctrine and can only have a persuasive value. Second, it involved a prosecution for estafa in that the accused disposed of his property claiming that it was free from any lien or encumbrance despite the fact that a notice of lis pendens was registered with the Registry of Deeds. The sale, cancellation of the accuseds title, and issuance of a new title to the buyer could not have been concealed from the offended parties or their lawyers because these transactions took place when the civil case involving the said property and the offended parties was in progress. Third, Dinsay involved private parties, while the instant case involves the Government and public officers. Fourth, the ruling is not absolute, since no less than this Court in People vs. Monteiro[11] said: [T]he period of prescription for the offense of failure to register with the SSS shall begin from the day of the discovery of the violation if this was not shown at the time of its commission. A contrary view would be dangerous as the successful concealment of an offense during the period fixed for its prescription would be the very means by which the offender may escape punishment. (Emphasis supplied) Also, in People v. Duque,[12] which involved a prosecution for illegal recruitment under Article 38 of the Labor Code, this Court held: Even if it be assumed arguendo that ordinary prudence required that a person seeking overseas employment ought to check the authority or status of persons pretending to be authorized or to speak for a recruitment or placement agency, the offended parties failure to do so did not start the running of the prescriptive period. In the nature of things, acts made criminal by special laws are frequently not immoral or obviously criminal in themselves; for this reason, the applicable statute requires that if the violation of the special law is not known at that time, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts. (Emphasis supplied)

Finally, the COMMITTEE asserts that even assuming that the discovery rule does not apply, still, because of the principle of equitable tolling, prescription has not yet set in for the offenses with which respondents in OMB-0-96-0960 were charged. This principle is based on the doctrine contra non valentem agere nulla currit praescriptio, i.e., no prescription shall run against a person unable to bring an action. The COMMITTEE was unable to bring the action, for the cause therefor was not known or reasonably known to it owing to the fact that (1) the loans, being behest, were concealed; (2) both parties to the loan transactions were in conspiracy to perpetrate the fraud against the State; and (3) the loans were granted at the time then President Marcos was at the threshold of his authority when no one dared question, much less investigate, any of his orders. The OMBUDSMAN takes a different view. For one, he asserts that Section 15 of Article XI of the Constitution is not applicable, since what the COMMITTEE seeks in OMB-0-96-0968 is not to recover the unlawfully acquired wealth from the respondents therein but to hold them criminally liable for violation of R.A. No. 3019. The dismissal of the case is not a bar to the institution of forfeiture proceedings against the concerned former government officials and cronies. For another, the OMBUDSMAN insists that the offenses with which the respondents were charged had already prescribed. As a matter of fact it prescribed in ten years pursuant to the original provision of Section 11 of R.A. No. 3019, which fixed the prescriptive period at ten years. B.P. Blg. 195, which increased the prescriptive period to fifteen years, became effective only on 16 March 1982 and cannot be given retroactive effect; hence, the offenses which might have arisen from the grant of the assailed loans in 1969, 1975 and 1978 prescribed in 1979, 1985 and 1988, respectively. The OMBUDSMAN points to Section 2 of Act No. 3326, which governs prescription of crimes under special laws and which reads as follows: Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof . . . According to him, the computation of the prescriptive period from the date of discovery would only be resorted to if the commission of the crime be not known at the day of the commission. The phrase if the same be not known does not mean lack of actual knowledge, but that the crime is not reasonably knowable by reason of the nature of the crime or the environmental circumstances thereof. In the case filed by the COMMITTEE, the crimes alleged to have been committed were reasonably knowable because the transactions were never conducted clandestinely ... [but] carried out in the open, leaving a trail of public instruments/documents accessible and susceptible to evaluation. Moreover, as can be drawn from the allegation in the COMMITTEEs complaint that the DBP initiated PSI foreclosures starting March 1975, the corresponding mortgages were executed and registered. Hence, the doctrine laid down in Dinsay is applicable. Likewise, in People v. Sandiganbayan,[13] this Court ruled that the prescriptive period for the violation of R.A. No. 3019, which was allegedly committed by Paredes by misrepresenting in an application for land patent that the subject land was disposable, started to run from the date of the filing of the application. Yet, in said case the falsity of Paredes representation regarding the disposability of the land was not capable of being drawn from the application alone; nevertheless, this Court was not deterred from holding that prescription started to run from the filing of the application. Finally, the OMBUDSMAN maintains that any confidential relationship between the former strongman and the respondents DBP officials ceased altogether after the February 1986 EDSA revolution. Even assuming then that the running of the 10-year period of prescription was suspended by reason of the said confidential relationship, the same re-started in February 1986 and went on to lapse in February 1996. However, the complaint of the COMMITTEE in OMB-0-96-0968 was filed only on 2 March 1996. We agree with the OMBUDSMAN that Section 15 of Article XI of the Constitution applies only to civil actions for recovery of ill-gotten wealth, and not to criminal cases, such as the complaint against the respondents in OMB-0-96-0968. This is clear from the proceedings of the Constitutional Commission of 1986. What is now Section 15 of Article XI of the Constitution was originally Section 13 of the proposed Article on Accountability of Public Officers in Committee Report No. 17 submitted to the Constitutional Commission by its Committee on Accountability of Public Officers,[14] viz: The right of the State to recover properties unlawfully acquired by public officials or employees shall not be barred by prescription. At the plenary session, Commissioner Hilario G. Davide, Jr., succeeded in having that Section amended. Thus: MR. DAVIDE. Madam President. MR. DAVIDE. Would the proponent accept some amendments? MR MAAMBONG. Gladly.

MR. DAVIDE. The amendment of Section 13 will consist of the following: On line 25, after the word employees, add the following: OR THEIR CO-PRINCIPALS, ACCOMPLICES OR ACCESSORIES OR TO PROSECUTE OFFENSES IN CONNECTION THEREWITH; then on line 25, after the word prescription, add a comma (,) and the words LACHES OR ESTOPPEL. So the entire Section 13 will read as follows: The right of the State to recover properties unlawfully acquired by public officials or employees OR THEIR COPRINCIPALS, ACCOMPLICES OR ACCESSORIES OR TO PROSECUTE OFFENSES IN CONNECTION THEREWITH shall not be barred by prescription, LACHES OR ESTOPPEL. ... MR. DAVIDE. I would like to insist on my proposal for the plain and simple reason that the republic act on forfeiture of ill-gotten wealth would cover only the civil aspect. As a matter of fact, any prosecution for the criminal aspect of that will have to be taken under the AntiGraft and Corrupt Practices Act. That is why it is necessary to include here, specifically, the criminal action and the imprescriptibility of the criminal action. Besides, what is stated in the law on ill-gotten wealth and recovery thereof would refer to prescription or statute of limitations. We know for a fact that there are two other concepts in Civil Law. We have laches and estoppel. Laches, for instance, is a concept entirely different from prescription. While an action may not prescribe, it may be barred by laches and while an action may not prescribe or may not be barred by laches, it may also be a limitation because of estoppel. So, if we really want to strengthen this particular concept, we should be very specific in having it related to both criminal and civil actions. In addition to prescription, we should also include laches and estoppel. ... THE PRESIDENT. Is it accepted by the Committee? MR. NOLLEDO. After consultations, the Committee is happy to announce that we are accepting the amendment. MR. DAVIDE. Thank you, Madam President; I also thank the members of the Committee. THE PRESIDENT. Is there any objection? (Silence) The Chair hears none; the amendment is approved.[15] (Emphasis supplied). As shown, the amendment made the provision applicable as well to criminal actions arising from, relating or incident to, or involving ill-gotten wealth. However, on motion for reconsideration by Commissioner Christian Monsod, who explained that the intention of the Committee was to limit the proposed Section 13 to civil actions, and without objection on the part of Commissioner Davide, the motion for reconsideration was granted. As a consequence, the amendment of Commissioner Davide regarding the applicability of the Section to criminal actions was deleted. After further proceedings the Section was further amended by the insertion of the phrase from them or from their transferees. Thus: MR. BENGZON. There is just one loose thread hanging in the Article on Accountability of Public Officers and I would like to get this out of the way. May I suggest that Commissioner Monsod be recognized. THE PRESIDING OFFICER. (Mr. de los Reyes). Commissioner Monsod is recognized. MR. MONSOD. We circulated to the Commissioners a memorandum that was unanimously endorsed by the members of the committee, except for one member who [was] absent. In this memorandum, we suggested the deletion of a phrase which we consider redundant in the context of the intent of the committee. We wanted to ask the body for any comment it may have on it because we feel we do not need to reopen the article if the body agrees with us that it is not a substantial change, but a change to reflect the intention of the body and the committee on this matter. THE PRESIDING OFFICER (Mr. de los Reyes). On what article is that, Commissioner Monsod? MR. MONSOD. It is on the Article on Accountability of Public Officers which was circulated a couple of days ago. On Section 13, lines 7 and 8, we propose to delete the phrase or to prosecute offenses in connection therewith. The committee considers this phrase redundant with its intent on the recovery of property illegally acquired. The action contemplated by the committee is a civil action. However, since jurisprudence considers such action for recovery as partaking of a criminal action, we believe that it is not necessary to mention or to prosecute offenses in connection therewith. Hence, we ask the body if there is any objection to delete that phrase. THE PRESIDING OFFICER (Mr. de los Reyes). Commissioner Monsod, what is the phrase sought to be deleted?

MR. MONSOD. The phrase or to prosecute offenses in connection therewith. ... MR. MONSOD. May we ask Commissioner Davide, the proponent of some of these amendments, on this article? THE PRESIDING OFFICER (Mr. de los Reyes) Commissioner Davide is recognized. MR. DAVIDE. Thank you, Mr. Presiding Officer. After deeper reflection on the consequences of the amendments which I introduced and which are now sought to be deleted, and taking into account the massive consensus of opinions on the part of the committee which is now seeking for its reconsideration, I would have no objection to it. However, there is a point to be taken up and I understand that Commissioner Regalado has also a point to take up on this. THE PRESIDING OFFICER (Mr. de los Reyes). Commissioner Regalado is recognized. MR. REGALADO. Thank you, Mr. Presiding Officer. I move for the deletion of the phrase co-principals, accomplices or accessories, because what is contemplated in that amendment is a civil action. The phrase co-principals, accomplices and accessories is proper only in a criminal action. So, I have asked the committee to delete those words. THE PRESIDING OFFICER (Mr. de los Reyes). So, how will the section now read? MR. MONSOD. The section as amended by deletion will now read: Sec. 13. The right of the State to recover properties unlawfully acquired by public officials or employees shall not be barred by prescription, laches or estoppel. THE PRESIDING OFFICER (Mr. de los Reyes). So for the information of the Members of the Commission, what phrases are deleted? MR. MONSOD. The phrases that are deleted are as follows: or to prosecute offenses in connection therewith and or their co-principals, accomplices or accessories. THE PRESIDING OFFICER (Mr. de los Reyes). So, in effect, the Commissioner is asking for a reconsideration. MR. MONSOD. It has been suggested that that would be appropriate in order to make sure that this is properly regularized. RECONSIDERATION OF APPROVAL OF PROPOSED RESOLUTION NO. 456 (Article on the Accountability of Public Officers) THE PRESIDING OFFICER (Mr. de los Reyes). As many as are in favor of reconsidering Section 13, please raise their hand. (Several Members raised their hand.) As many as are against, please raise their hand. (No Member raised his hand). The results show 27 votes in favor and 1 against; the reconsideration is approved. [16] Commissioner Monsod is again recognized. MR MONSOD. I propose that we delete the phrases: or their co-principals, accomplices or accessories and or to prosecute offenses in connection therewith. So, the entire article will now read: The right of the State to recover properties unlawfully acquired by public officials or employees shall not be barred by prescription, laches or estoppel. ... THE PRESIDING OFFICER (Mr. de los Reyes). Is there any objection to the amendment of Commissioner Monsod? Commissioner Azcuna is recognized. MR AZCUNA. Mr. Presiding Officer, the phrase co-principals, accomplices and accessories refers to criminal cases. So I propose to insert the phrase OR THEIR TRANSFEREES IN BAD FAITH in order to be able to recover these properties even from transferees of the public officers if they are done in bad faith. Hence, the amended section will read: The right of the State to recover properties unlawfully acquired by public officials or employees OR THEIR TRANSFEREES IN BAD FAITH. THE PRESIDING OFFICER (Mr. de los Reyes). What does Commissioner Monsod say? MR. MONSOD. We have no objection to that, but I understand there is a comment on this matter. ... THE PRESIDING OFFICER (Mr. de los Reyes). Commissioner Monsod is recognized. MR MONSOD. In order to clarify the intent of the amendment, we suggest that the amendment be stated this way: FROM THEM OR FROM THEIR TRANSFEREES. So, the entire section will read: The right of the State to recover properties unlawfully acquired by public officials or employees FROM THEM OR FROM THEIR TRANSFEREES shall not be barred by prescription, laches or estoppel.

THE PRESIDING OFFICER (Mr. de los Reyes). Commissioner Azcuna is recognized. MR AZCUNA. I accept the amendment. THE PRESIDING OFFICER (Mr. de los Reyes). Commissioner Maambong is recognized. MR. MAAMBONG. Mr. Presiding Officer, I recall I presented an amendment precisely on this provision. I gave way to Commissioner Davide at that time because the imprescriptibility provision was supposed to cover both criminal and civil actions. I just want to clarify this from Commissioner Monsod or from Commissioner Davide if in the present formulation, what is covered is only imprescriptibility of civil action and not of criminal action. Commissioner Davide can probably answer that. MR. MONSOD. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. de los Reyes). Commissioner Monsod is recognized. MR. MONSOD. Yes, it is just the imprescriptibility of the civil action. MR. MAAMBONG. If only civil action, it does not cover imprescriptibility of criminal action. MR. MONSOD. Yes, that is right. MR. MAAMBONG. Thank you. THE PRESIDING OFFICER (Mr. de los Reyes). Is the Commission now prepared to vote on the issue? MR. RAMA. Yes. THE PRESIDING OFFICER (Mr. de los Reyes). Is there any objection to the amendment of Commissioner Monsod? (Silence) The Chair hears none; the amendment is approved.[17] (Emphasis supplied). Then, on motion of the Committee on Style, the Section 13 which became Section 15, was approved; thus: MR. RODRIGO. In Section 15, we inserted: FROM THEM OR FROM THEIR NOMINEES OR TRANSFEREES and we deleted co-principals, accomplices or accessories or to prosecute offenses in connection therewith. So, Section 15 reads: The right of the State to recover properties unlawfully acquired by public officials or employees, FROM THEM OR FROM THEIR NOMINEES OR TRANSFEREES shall not be barred by prescription, laches, or estoppel. I move for its approval. THE PRESIDING OFFICER (Mr. Jamir). Is there any objection? (Silence). The Chair hears none; the amendment is approved.[18] The upshot of the foregoing discussion is that the prosecution of offenses arising from, relating or incident to, or involving ill-gotten wealth contemplated in Section 15, Article XI of the Constitution may be barred by prescription. Since the law alleged to have been violated, i.e., paragraphs (e) and (g) of Section 3, R.A. No. 3019, as amended, is a special law, the applicable rule in the computation of the prescriptive period is Section 2 of Act No. 3326,[19] as amended, which provides: Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted against the guilty person and shall begin to run again if the proceedings are dismissed for reasons not constituting double jeopardy. This simply means that if the commission of the crime is known, the prescriptive period shall commence to run on the day it was committed. In the present case, it was well-nigh impossible for the State, the aggrieved party, to have known the violations of R.A. No. 3019 at the time the questioned transactions were made because, as alleged, the public officials concerned connived or conspired with the beneficiaries of the loans. Thus, we agree with the COMMITTEE that the prescriptive period for the offenses with which the respondents in OMB-0-96-0968 were charged should be computed from the discovery of the commission thereof and not from the day of such commission. The assertion by the OMBUDSMAN that the phrase if the same be not known in Section 2 of Act No. 3326 does not mean lack of knowledge but that the crime is not reasonably knowable is unacceptable, as it provides an interpretation that defeats or negates the intent of the law, which is written in a clear and unambiguous language and thus provides no room for interpretation but only application. The OMBUDSMANs reliance on Dinsay is misplaced. The estafa committed by the accused was known to the offended party from the very start; hence, it could even be said that the commission and the discovery of the offense were simultaneous. [20] Neither is People v.

Sandiganbayan[21] of any help to OMBUDSMAN. We ruled therein that the prescriptive period commenced to run from the filing of the application for the following reasons: The theory of the prosecution that the prescriptive period should not commence upon the filing of Paredes application because no one could have known about it except Paredes and Lands Inspector Luison, is not correct for, as the Sandiganbayan pointedly observed: it is not only the Lands Inspector who passes upon the disposability of public land x x x other public officials pass upon the application for a free patent including the location of the land and, therefore, the disposable character thereof (p. 30, Rollo). Indeed, practically all the department personnel, who had a hand in processing and approving the application, namely: (1) the lands inspector who inspected the land to ascertain its location and occupancy; (2) the surveyor who prepared its technical description; (3) the regional director who assessed the application and determined the land classification; (4) the Director of Lands who prepared the free patent; and (5) the Department Secretary who signed it, could... have helped discovering that the subject of the application was non disposable public agricultural land. There was no showing that Paredes had connived with all the department personnel, who had a hand in processing and approving the application of Paredes. Consequently, such personnel could have easily discovered the falsity in Paredes claim and denounced it. It would have been entirely different if the public officials concerned conspired with him, in which case, they would have hidden the misdeed to escape culpability. People v. Duque[22] is more in point, and what was stated there stands reiteration: In the nature of things, acts made criminal by special laws are frequently not immoral or obviously criminal in themselves; for this reason, the applicable statute requires that if the violation of the special law is not known at the time, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts. In the case at bar the OMBUDSMAN forthwith dismissed the complaint in Case No. OMB-096-0968 without even requiring the respondents to submit their counter-affidavits and solely on the basis of the dates the alleged behest loans were granted, or the dates of the commission of the alleged offense was committed. Since the computation of the prescriptive period for the filing of the criminal action should commence from the discovery of the offense, the OMBUDSMAN clearly acted with grave abuse of discretion in dismissing outright Case No. OMB-0-96-0968. It should have first received the evidence from the complainant and the respondents to resolve the case on its merits and on the issue of the date of discovery of the offense. IN LIGHT OF ALL THE FOREGOING, judgment is hereby rendered GRANTING the petition, and SETTING ASIDE the resolution of 14 May 1996 and the Order of 19 May 1997 of the public respondent OMBUDSMAN in Case No. OMB-0-96-0968. The OMBUDSMAN is hereby directed to proceed with the preliminary investigation of the case OMB-0-96-0968 taking into account the foregoing disquisitions. No pronouncement as to costs. SO ORDERED.

G.R. No. 164815 February 22, 2008 SR. INSP. JERRY C. VALEROSO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent. DECISION REYES, R.T., J.: THE law looks forward, never backward. Lex prospicit, non respicit. A new law has a prospective, not retroactive, effect.1 However, penal laws that favor a guilty person, who is not a habitual criminal, shall be given retroactive effect.1-a These are the rule, the exception and exception to the exception on effectivity of laws. Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan. Gayunpaman, ang parusa ng bagong batas ay iiral kung ito ay pabor sa taong nagkasala na hindi pusakal na kriminal. We apply the exception rather than the rule in this petition for review on certiorari of the decision of the Court of Appeals (CA), affirming with modification that of the Regional Trial Court (RTC) in Quezon City, finding petitioner liable for illegal possession of a firearm. The Facts On July 10, 1996, at around 9:30 a.m., SPO2 Antonio M. Disuanco of the Criminal Investigation Division, Central Police District Command, received a dispatch order2 from the desk officer.3 The order directed him and three (3) other policemen to serve a warrant of arrest4 issued by Judge Ignacio Salvador against petitioner Sr. Insp. Jerry C. Valeroso in a case for kidnapping with ransom.5 After a briefing, the team conducted the necessary surveillance on petitioner, checking his hideouts in Cavite, Caloocan, and Bulacan.6 Eventually, the team proceeded to the Integrated National Police (INP) Central Station at Culiat, Quezon City, where they saw petitioner as he was about to board a tricycle.7 SPO2 Disuanco and his team approached petitioner.8 They put him under arrest, informed him of his constitutional rights, and bodily searched him.9 Found tucked in his waist10 was a Charter Arms, bearing Serial Number 5231511 with five (5) live ammunition.12 Petitioner was then brought to the police station for questioning.13 A verification of the subject firearm at the Firearms and Explosives Division at Camp Crame revealed that it was not issued to petitioner but to a certain Raul Palencia Salvatierra of Sampaloc, Manila.14 Epifanio Deriquito, the records verifier, presented a certification15 to that effect signed by Edwin C. Roque, chief records officer of the Firearms and Explosive Division.16 Petitioner was then charged with illegal possession of firearm and ammunition under Presidential Decree (P.D.) No. 1866,17 as amended. The Information read: That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused without any authority of law, did then and there willfully, unlawfully and knowingly have in his/her possession and under his/her custody and control One (1) cal. 38 "Charter Arms" revolver bearing Serial No. 52315 with five (5) live ammo. without first having secured the necessary license/permit issued by the proper authorities. CONTRARY TO LAW. Quezon City, Philippines, July 15, 1996. (Sgd.) GLORIA VICTORIA C. YAP Assistant City Prosecutor18 With the assistance of his counsel de parte, Atty. Oscar Pagulayan, petitioner pleaded not guilty when arraigned on October 9, 1996.19 Trial on the merits ensued.

SPO2 Disuanco and Deriquito testified for the prosecution in the manner stated above. Upon the other hand, the defense version was supplied by the combined testimonies of petitioner Sr. Insp. Jerry C. Valeroso, SPO3 Agustin R. Timbol, Jr. and Adrian Yuson. Petitioner recounted that on July 10, 1996, he was fast asleep in the boarding house of his children located at Sagana Homes, Barangay New Era, Quezon City.20 He was roused from his slumber when four (4) heavily armed men in civilian clothes bolted the room.21 They trained their guns at him22 and pulled him out of the room. They then tied his hands and placed him near the faucet. 23 The raiding team went back inside and searched and ransacked the room.24 SPO2 Disuanco stood guard outside with him.25 Moments later, an operative came out of the room and exclaimed, "Hoy, may nakuha akong baril sa loob!"26 Petitioner was told by SPO2 Disuanco that "we are authorized to shoot you because theres a shoot to kill order against you, so if you are planning do so something, do it right now."27 He was also told that there was a standing warrant for his arrest.28 However, he was not shown any proof when he asked for it.29 Neither was the raiding group armed with a valid search warrant.30 According to petitioner, the search done in the boarding house was illegal. The gun seized from him was duly licensed and covered by necessary permits. He was, however, unable to present the documentation relative to the firearm because it was confiscated by the police. Petitioner further lamented that when he was incarcerated, he was not allowed to engage the services of a counsel. Neither was he allowed to see or talk to his family.31 Petitioner contended that the police had an axe to grind against him. While still with the Narcotics Command, he turned down a request of Col. Romulo Sales to whitewash a drug-related investigation involving friends of the said police officer. Col. Sales was likewise subject of a complaint filed with the Ombudsman by his wife. Col. Sales was later on appointed as the head of the unit that conducted the search in his boarding house.32 SPO3 Timbol, Jr. of the Narcotics Command testified that he issued to petitioner a Memorandum Receipt dated July 1, 199333 covering the subject firearm and its ammunition. This was upon the verbal instruction of Col. Angelito Moreno. SPO3 Timbol identified his signature34 on the said receipt.35 Adrian Yuson, an occupant of the room adjacent to where petitioner was arrested, testified that on July 10, 1996, two (2) policemen suddenly entered his room as he was preparing for school.36 They grabbed his shoulder and led him out.37 During all those times, a gun was poked at him.38 He was asked where petitioner was staying. Fearing for his life, he pointed to petitioners room.39 Four (4) policemen then entered the room.40 He witnessed how they pointed a gun at petitioner, who was clad only in his underwear.41 He also witnessed how they forcibly brought petitioner out of his room.42 While a policeman remained near the faucet to guard petitioner, three (3) others went back inside the room.43 They began searching the whole place. They forcibly opened his locker,44 which yielded the subject firearm.45 RTC and CA Dispositions On May 6, 1998, the trial court found petitioner guilty as charged, disposing as follows: WHEREFORE, the Court hereby finds the accused guilty beyond reasonable doubt of Violation of Section 1 of Presidential Decree No. 1866 as amended by Republic Act No. 8294 and hereby sentences him to suffer the penalty of prision correccional in its maximum period or from 4 years, 2

months and 1 day as minimum to 6 years as maximum and to pay the fine in the amount of Fifteen Thousand Pesos (P15,000.00). The gun subject of this case is hereby ordered confiscated in favor of the government. Let the same be put in trust in the hands of the Chief of the PNP. SO ORDERED.46 Petitioner moved to reconsider47 but his motion was denied on August 27, 1998.48 He appealed to the CA. On May 4, 2004, the appellate court affirmed with modification the RTC disposition. The fallo of the CA decision reads: Verily, the penalty imposed by the trial court upon the accused-appellant is modified to 4 years and 2 months as minimum up to 6 years as maximum. WHEREFORE, with the foregoing MODIFICATION as to the penalty, the decision appealed from is herebyAFFIRMED in all other respects. SO ORDERED.49 His motion for reconsideration50 having been denied through a Resolution dated August 3, 2004,51 petitioner resorted to the present petition under Rule 45. Issues Petitioner raises the following issues for Our consideration: I. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN AFFIRMING THE CONVICTION OF PETITIONER DESPITE THE ABSENCE OF PROOF BEYOND REASONABLE DOUBT. II. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF FACT AND LAW IN SUSTAINING THE LEGALITY OF THE SEARCH AND THE VALIDITY AND ADMISSIBILITY OF THE EVIDENCE OBTAINED THEREFROM DESPITE THE OVERWHELMING PROOF THAT THE SAME IS THE FRUIT OF THE POISONOUS TREE. III. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN NOT UPHOLDING THE REGULARITY AND VALIDITY SURROUNDING THE ISSUANCE OF THE MEMORANDUM RECEIPTS(SIC) IN FAVOR OF PETITIONER WHICH PROVES HIS INNOCENCE OF THE CRIME CHARGE (SIC).52(Underscoring supplied) Our Ruling In illegal possession of firearm and ammunition, the prosecution has the burden of proving the twin elements of (1) the existence of the subject firearm and ammunition, and (2) the fact that the accused who possessed or owned the same does not have the corresponding license for it.53 The prosecution was able to discharge its burden. The existence of the subject firearm and its ammunition was established through the testimony of SPO2 Disuanco.54 Defense witness Yuson also identified the firearm.55 Its existence was likewise admitted by no less than petitioner himself.56 As for petitioners lack of authority to possess the firearm, Deriquito testified that a verification of the Charter Arms Caliber .38 bearing Serial No. 52315 with the Firearms and Explosives Division at Camp Crame revealed that the seized pistol was not issued to petitioner. It was registered in the name of a certain Raul Palencia Salvatierra of Sampaloc, Manila.57 As proof, Deriquito presented a certification signed by Roque, the chief records officer of the same office.58 The Court on several occasions ruled that either the testimony of a representative of, or a certification from, the Philippine National Police (PNP) Firearms and Explosive Office attesting that a person is not a licensee of any firearm would suffice to prove

beyond reasonable doubt the second element of possession of illegal firearms. 59The prosecution more than complied when it presented both. The certification is outside the scope of the hearsay rule. The general rule is that a witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception.60 Otherwise, the testimony is objectionable for being hearsay.61 On this score, the certification from the Firearms and Explosives Division is an exception to the hearsay rule by virtue of Rule 130, Section 44 of the Rules of Court which provides: Sec. 44. Entries in official records. Entries in official records made in the performance of his official duty by a public officer of the Philippines, or by a person in the performance of a duty specifically enjoined by law, are prima facie evidence of the facts therein stated. It may be true that the contents of said certification are only prima facie evidence of the facts stated there. However, the failure of petitioner to present controverting evidence makes the presumption unrebutted. Thus, the presumption stands. Petitioner, however, raises several points which he says entitles him to no less than an acquittal. The assessment of credibility of witnesses lies with the trial court. First, petitioner says that the seizure of the subject firearm was invalid. The search was conducted after his arrest and after he was taken out of the room he was occupying.62 This contention deserves scant consideration. Petitioners version of the manner and place of his arrest goes into the factual findings made by the trial court and its calibration of the credibility of witnesses. However, as aptly put by Justice Ynares-Santiago in People v. Rivera:63 x x x the manner of assigning values to declarations of witnesses on the witness stand is best and most competently performed by the trial judge who had the unmatched opportunity to observe the witnesses and assess their credibility by the various indicia available but not reflected on record. The demeanor of the person on the stand can draw the line between fact and fancy or evince if the witness is telling the truth or lying through his teeth. We have consistently ruled that when the question arises as to which of the conflicting versions of the prosecution and the defense is worthy of belief, the assessment of the trial courts are generally viewed as correct and entitled to great weight. Furthermore, in an appeal, where the culpability or innocence of the accused depends on the issue of credibility of witnesses and the veracity of their testimonies, findings of the trial court are given the highest degree of respect if not finality.64(Underscoring supplied) The trial court found the prosecution version worthy of credence and belief. We find no compelling reason not to accept its observation on this score. Worth noting is the fact that petitioner is a ranking police officer who not only claims to be highly decorated,65 but have effected a number of successful arrests66 as well. Common sense would dictate that he must necessarily be authorized to carry a gun. We thus agree with the Office of the Solicitor General that framing up petitioner would have been a very risky proposition. Had the arresting officers really intended to cause the damnation of petitioner by framing him up, they could have easily "planted" a more incriminating evidence rather than a gun. That would have made their nefarious scheme easier, assuming that there indeed was one. The pieces of evidence show that petitioner is not legally authorized to possess the subject firearm and its five (5) ammunition.

Second, petitioner insists that he is legally authorized to possess the subject firearm and its ammunition on the basis of the Memorandum Receipt issued to him by the PNP Narcotics Command.67 Although petitioner is correct in his submission that public officers like policemen are accorded presumption of regularity in the performance of their official duties, 68 it is only a presumption; it may be overthrown by evidence to the contrary. The prosecution was able to rebut the presumption when it proved that the issuance to petitioner of the Memorandum Receipt was anything but regular. SPO3 Timbol, Jr. testified that he issued the Memorandum Receipt to petitioner based on the verbal instruction of his immediate superior, Col. Moreno.69 However, a reading of Timbols testimony on cross-examination70 would reveal that there was an unusual facility by which said receipt was issued to petitioner. Its issuance utterly lacked the usual necessary bureaucratic constraints. Clearly, it was issued to petitioner under questionable circumstances. Failure to offer an unlicensed firearm as evidence is not fatal provided there is competent testimony as to its existence. Third, petitioner claims that the subject firearm and ammunition should have been excluded as evidence because they were not formally offered by the prosecution 71 in violation of Section 34, Rule 132 of the Rules of Court.72 We note that petitioner contradicted himself when he argued for the validity of the Memorandum Receipt and, at the same time, for the exclusion in evidence of the subject firearm and its ammunition. Petitioners act may result to an absurd situation where the Memorandum Receipt is declared valid, while the subject firearm and its ammunition which are supposedly covered by the Memorandum Receipt are excluded as evidence. That would have made the Memorandum Receipt useless. In any case, petitioners contention has no leg to stand on. Contrary to petitioners claim, the subject firearm73 and its five (5) live ammunition74 were offered in evidence by the prosecution.75 Even assuming arguendo that they were not offered, petitioners stance must still fail. The existence of an unlicensed firearm may be established by testimony, even without its presentation at trial. InPeople v. Orehuela,76 the non-presentation of the pistol did not prevent the conviction of the accused. The doctrine was affirmed in the recent case of People v. Malinao.77 As previously stated, the existence of the subject firearm and its five (5) live ammunition were established through the testimony of SPO2 Disuanco.78 Yuson also identified said firearm.79 Petitioner even admitted its existence.80 We hasten to add that there may also be conviction where an unlicensed firearm is presented during trial but through inadvertence, negligence, or fortuitous event (for example, if it is lost), it is not offered in evidence, as long as there is competent testimony as to its existence. Penal and civil liabilities Petitioner was charged with the crime of illegal possession of firearms and ammunition under the first paragraph of Section 1 of P.D. No. 1866, as amended. It provides that "[t]he penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition." P.D. No. 1866, as amended, was the governing law at the time petitioner committed the offense on July 10, 1996. However, R.A. No. 8294 amended P.D. No. 1866 on July 6, 1997,81 during the pendency of the case with the trial court. The present law now states:

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen Thousand Pesos (P15,000)shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any lowpowered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. (Underscoring supplied) As a general rule, penal laws should not have retroactive application, lest they acquire the character of an ex post facto law.82 An exception to this rule, however, is when the law is advantageous to the accused. According to Mr. Chief Justice Araullo, this is "not as a right" of the offender, "but founded on the very principles on which the right of the State to punish and the commination of the penalty are based, and regards it not as an exception based on political considerations, but as a rule founded on principles of strict justice."83 Although an additional fine of P15,000.00 is imposed by R.A. No. 8294, the same is still advantageous to the accused, considering that the imprisonment is lowered to prision correccional in its maximum period84 fromreclusion temporal in its maximum period to reclusion perpetua85 under P.D. No. 1866. Applying the Indeterminate Sentence Law, prision correccional maximum which ranges from four (4) years, two (2) months and one (1) day to six (6) years, is the prescribed penalty and will form the maximum term of the indeterminate sentence. The minimum term shall be one degree lower, which is prision correccional in its medium period (two [2] years, four [4] months and one [1] day to four [4] years and two [2] months).86 Hence, the penalty imposed by the CA is correct. The penalty of four (4) years and two (2) months of prision correccional medium, as minimum term, to six (6) years of prision correccional maximum, as maximum term, is in consonance with the Courts ruling in Gonzales v. Court of Appeals87 and Barredo v. Vinarao.88 As to the subject firearm and its five (5) live ammunition, their proper disposition should be made under Article 45 of the Revised Penal Code89 which provides, among others, that the proceeds and instruments or tools of the crime shall be confiscated and forfeited in favor of the government. WHEREFORE, the Decision of the Court of Appeals dated May 4, 2004 is AFFIRMED in full. SO ORDERED.