G.R. No. 200080               September 18, 2013PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.MARVIN CAYANAN, Accused-Appellant.

R E S O L U T I O NREYES, J.:Accused-appellant Marvin Cayanan (Cayanan) seeks a review of the Decision1 dated July 14, 2011 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 04256 affirming with modifications the Consolidated Decision2 dated June 16, 2009 of the Regional Trial Court (RTC) of Malolos City, Bulacan, Branch 77. The RTC decision convicted Cayanan of the crimes of Qualified Rape (Criminal Case No. 1499-M-200 1) and Forcible Abduction with Qualified Rape (Criminal Case No. 1498-M-200 I), and sentenced him to suffer the penalty of reclusion perpetua for each crime without eligibility for parole.The CA, however, increased the award of damages originally awarded by the RTC: (1) in Criminal Case No. 1499-M-2001, from P50,000.00 toP75,000.00 as civil indemnity; and (2) in Criminal Case No. 1498-M-2001,fromP50,000.00 to P75,000.00 as civil indemnity and from P50,000.00 toP75,000.00 as moral damages. The CA also awarded an additionalP75,000.00 as moral damages in Criminal Case No. 1499-M-2001 andP30,000.00 as exemplary damages in both criminal cases.3

The prosecution established that Cayanan took advantage of 15-year old AAA4 on February 1, 2001 while the victim was alone inside her house in x x x, Bulacan. Cayanan is the victim’s brother-in-law, being married to her older sister, and the couple lived in a nearby house. AAA was asleep when she felt someone caressing her. It turned out to be Cayanan. He then started kissing her and told her to remove her shorts. When she refused, Cayanan forcibly took it off and after the latter took off his own under garment, he inserted his organ into her genitalia. Cayanan, who had a knife with him, threatened to kill AAA if she resisted and informed anybody of the incident.On February 26, 2001, AAA was about to enter the school campus with her friend Armina Adriano (Adriano) when Cayanan arrived on a tricycle driven by his uncle, Boy Manalastas. Cayanan then pulled AAA towards the tricycle. She tried shouting but he covered her mouth. They alighted somewhere and boarded a jeep. He brought her to a dress shop in x x x, Bulacan where he asked someone to give her a change of clothes as she was in her school uniform and later to a Jollibee outlet. He then brought her to his sister’s house in x x x where he raped her inside a bedroom. Afterwards, a certain couple Putay and Tessie talked to Cayanan and she was brought to the barangay office where she was asked to execute a document stating that she voluntarily went with Cayanan. It was the latter’s mother and sister-in-law who brought her home later that evening. She told her mother and brother of the incidents only after her classmate Adriano informed her family of what happened in school and of the rape incidents. AAA testified that she did not immediately tell her family because she was still in a state of shock.5

Adriano and the victim’s mother corroborated her testimony. A resident psychiatrist at the National Center for Mental Health also testified that AAA was suffering from mental depressive symptoms/chronic symptoms and presence of sexual abuse.6

Cayanan interposed the sweetheart defense. The RTC, however, did not give credit to his defense, ruling that it is a weak defense and does not rule out the use of force given the prosecution’s evidence. He also failed to establish the genuineness and authenticity of the love letters allegedly written by AAA.7

The CA sustained the ruling of the RTC.8

A review of the CA decision shows that it did not commit any reversible error in affirming Cayanan’s conviction. Record shows that Cayanan forced AAA to have sex with him on February 1, 2001 and threatened her and her family with physical harm. The testimony of Adriano, meanwhile, corroborated AAA’s testimony that Cayanan forcibly took her by the school campus gate on February 26, 2001 and thereafter raped her.1âwphi1 The defense failed to show any reason why the prosecution’s evidence should not be given weight or credit.Moreover, the claim that they were sweethearts does not justify the commission of the crimes. For the Court to even consider giving credence to the sweetheart defense, it must be proven by compelling evidence. The defense cannot just present testimonial evidence in support of the theory. Independent proof is required ― such as tokens, mementos, and photographs.9 And while Cayanan produced two love letters allegedly written by AAA, the CA correctly sustained the finding of the RTC that these letters were unauthenticated and therefore, bereft of any probative value.The Court, however, finds that Cayanan should be convicted only of Qualified Rape in Criminal Case No. 1498-M-2001. Forcible abduction is absorbed in the crime of rape if the real objective of the accused is to rape the victim.10In this case, circumstances show that the victim’s abduction was with the purpose of raping her. Thus, after Cayanan dragged her into the tricycle, he took her to several places until they reached his sister’s house where he raped her inside the bedroom. Under these circumstances, the rape absorbed the forcible abduction.11

Finally, the CA did not commit any reversible error in increasing the amount of civil indemnity and moral damages awarded in Criminal Case No. 1498-M-2001, and in awarding additional P75,000.00 as moral damages in Criminal Case No. 1499-M-2001 andP30,000.00 as exemplary damages in both criminal cases, as these are accord with prevailing jurisprudence.12

WHEREFORE, the Decision dated July 14, 2011 of the Court of Appeals in CA-G.R. CR-HC No. 04256 is MODIFIED in that accused appellant Marvin Cayanan is found guilty of Qualified Rape in Criminal Case No. 1498-M-2001. In all other respects, the CA Decision is AFFIRMED in toto.Interest at the rate of six percent (6%) per annum shall be imposed on all the damages awarded, to earn from the date of the finality of this judgment until fully paid, in line with prevailing jurisprudence.13

SO ORDERED.

[G.R. No. 140604.  March 6, 2002]DR. RICO S. JACUTIN, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.D E C I S I O N

VITUG, J.:In an accusatory Information, dated 22 July 1996, petitioner, City Health Officer

Rico Jacutin of Cagayan de Oro City, was charged before the Sandiganbayan, Fourth Division, with the crime of Sexual Harassment, thusly:“That sometime on or about 01 December 1995, in Cagayan de Oro City, and within the jurisdiction of this Honorable Court pursuant to the provisions of RA 7975, the accused, a public officer, being then the City Health Officer of Cagayan de Oro City with salary grade 26 but a high ranking official by express provision of RA 7975, committing the offense in relation to his official functions and taking advantage of his position, did there and then, willfully, unlawfully and criminally, demand, solicit, request sexual favors from Ms. Juliet Q. Yee, a young 22 year-old woman, single and fresh graduate in Bachelor of Science in Nursing who was seeking employment in the

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office of the accused, namely: by demanding from Ms. Yee that she should, expose her body and allow her private parts to be mashed and stimulated by the accused, which sexual favor was made as a condition for the employment of Ms. Yee in the Family Program of the Office of the accused, thus constituting sexual harassment.”[1]

Upon his arraignment, petitioner pled not guilty to the offense charged; hence, trial proceeded.

Juliet Q. Yee, then a 22-year old fresh graduate of nursing, averred that on 28 November 1995 her father accompanied her to the office of petitioner at the City Health Office to seek employment.  Juliet’s father and petitioner were childhood friends.  Juliet was informed by the doctor that the City Health Office had just then filled up the vacant positions for nurses but that he would still see if he might be able to help her.

The following day, 29 November 1995, Juliet and her father returned to the City Health Office, and they were informed by petitioner that a medical group from Texas, U.S.A., was coming to town in December to look into putting up a clinic in Lapasan, Cagayan de Oro, where she might be considered.  On 01 December 1995, around nine o’clock in the morning, she and her father went back to the office of petitioner.  The latter informed her that there was a vacancy in a family planning project for the city and that, if she were interested, he could interview her for the job.  Petitioner then started putting up to her a number of questions.  When asked at one point whether or not she already had a boyfriend, she said “no.” Petitioner suggested that perhaps if her father were not around, she could afford to be honest in her answers to the doctor.  The father, taking the cue, decided to leave.  Petitioner then inquired whether she was still a virgin, explaining to her his theory on the various aspects of virginity.  He “hypothetically” asked whether she would tell her family or friends if a male friend happened to intimately touch her.  Petitioner later offered her the job where she would be the subject of a “research” program.  She was requested to be back after lunch.

Before proceeding to petitioner’s office that afternoon, Juliet dropped by at the nearby church to seek divine guidance as she felt so “confused.” When she got to the office, petitioner made several telephone calls to some hospitals to inquire whether there was any available opening for her.  Not finding any, petitioner again offered her a job in the family planning research undertaking.  She expressed hesitation if a physical examination would include “hugging” her but petitioner assured her that he was only kidding about it.  Petitioner then invited her to go bowling.  Petitioner told her to meet him at Borja Street so that people would not see them on board the same car together.  Soon, at the designated place, a white car driven by petitioner stopped.  She got in.  Petitioner held her pulse and told her not to be scared.  After dropping by at his house to put on his bowling attire, petitioner got back to the car.

While driving, petitioner casually asked her if she already took her bath, and she said she was so in a hurry that she did not find time for it.  Petitioner then inquired whether she had varicose veins, and she said “no.” Petitioner told her to raise her foot and lower her pants so that he might confirm it.  She felt assured that it was all part of the research.  Petitioner still pushed her pants down to her knees and held her thigh.  He put his hands inside her panty until he reached her pubic hair.  Surprised, she exclaimed “hala ka!” and instinctively pulled her pants up.  Petitioner then touched her abdomen with his right hand saying words of endearment and letting the back of his palm touch her forehead.  He told her to raise her shirt to check whether she had nodes or lumps.  She hesitated for a while but, eventually, raised it up to her navel.  Petitioner then fondled her breast.  Shocked at what petitioner did, she lowered her shirt and embraced her bag to cover herself, telling him angrily that she

was through with the research.  He begged her not to tell anybody about what had just happened.  Before she alighted from the car, petitioner urged her to reconsider her decision to quit.  He then handed over to her P300.00 for her expenses.

Arriving home, she told her mother about her meeting with Dr. Jacutin and the money he gave her but she did not give the rest of the story.  Her mother scolded her for accepting the money and instructed her to return it.  In the morning of 04 December 1994, Juliet repaired to the clinic to return the money to petitioner but she was not able to see him until about one o’clock in the afternoon.  She tried to give back the money but petitioner refused to accept it.

A week later, Juliet told her sister about the incident.  On 16 December 1995, she attempted to slash her wrist with a fastener right after relating the incident to her mother.  Noticing that Juliet was suffering from some psychological problem, the family referred her to Dr. Merlita Adaza for counseling.  Dr. Adaza would later testify that Juliet, together with her sister, came to see her on 21 December 1995, and that Juliet appeared to be emotionally disturbed, blaming herself for being so stupid as to allow Dr. Jacutin to molest her.  Dr. Adaza concluded that Juliet’s frustration was due to post trauma stress.

Petitioner contradicted the testimony of Juliet Yee.  He claimed that on 28 November 1995 he had a couple of people who went to see him in his office, among them, Juliet and her father, Pat. Justin Yee, who was a boyhood friend.  When it was their turn  to talk to petitioner, Pat. Yee introduced his daughter Juliet who expressed her wish to join the City Health Office.  Petitioner replied that there was no vacancy in his office, adding that only the City Mayor really had the power to appoint city personnel.  On 01 December 1995, the afternoon when the alleged incident happened, he was in a meeting with the Committee on Awards in the Office of the City Mayor.  On 04 December 1995, when Juliet said she went to his office to return the P300.00, he did not report to the office for he was scheduled to leave for Davao at 2:35 p.m. to attend a hearing before the Office of the Ombudsman for Mindanao.  He submitted in evidence a photocopy of his plane ticket.  He asserted that the complaint for sexual harassment, as well as all the other cases filed against him by Vivian Yu, Iryn Salcedo, Mellie Villanueva and Pamela Rodis, were but forms of political harassment directed at him.

The Sandiganbayan, through its Fourth Division, rendered its decision, dated 05 November 1999, penned by Mr. Justice Rodolfo G. Palattao, finding the accused, Dr. Rico Jacutin, guilty of the crime of Sexual Harassment under Republic Act No. 7877.  The Sandiganbayan concluded: “WHEREFORE, judgment is hereby rendered, convicting the accused RICO JACUTIN Y SALCEDO of the crime of Sexual Harassment, defined and punished under R.A. No. 7877, particularly Secs. 3 and 7 of the same Act, properly known as the Anti-Sexual Harassment Act of 1995, and is hereby sentenced to suffer the penalty of imprisonment of six (6) months and to pay a fine of Twenty Thousand (P20,000.00) Pesos, with subsidiary imprisonment in case of insolvency.  Accused is further ordered to indemnify the offended party in the amount of Three Hundred Thousand (P300,000.00) Pesos, by way of moral damages; Two Hundred Thousand (P200,000.00) Pesos, by way of Exemplary damages and to pay the cost of suit.”[2]

In the instant recourse, it is contended that - “I.     Petitioner cannot be convicted of the crime of sexual harassment in view of the inapplicability of Republic Act No. 7877 to the case at bar. “II.     Petitioner [has been] denied x x x his constitutional right to due process of law and presumption of innocence on account of the insufficiency of the prosecution evidence to sustain his conviction.”[3]

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The above contentions of petitioner are not meritorious.  Section 3 of Republic Act  7877 provides:“SEC. 3.  Work, Education or Training-related Sexual Harassment Defined. – Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act.“(a) In a work-related or employment environment, sexual harassment is committed when:“(1)     The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee.”

Petitioner was the City Health Officer of Cagayan de Oro City, a position he held when complainant, a newly graduated nurse, saw him to enlist his help in her desire to gain employment.  He did try to show an interest in her plight, her father being a boyhood friend, but finding no opening suitable for her in his office, he asked her about accepting a job in a family planning research project.  It all started from there; the Sandiganbayan recited the rest of the story:“x x x.  Succeeding in convincing the complainant that her physical examination would be a part of a research, accused asked complainant if she would agree that her private parts (bolts) would be seen. Accused assured her that with her cooperation in the research, she would gain knowledge from it.  As complainant looked upon the accused with utmost reverence, respect, and paternal guidance, she agreed to undergo the physical examination.  At this juncture, accused abruptly stopped the interview and told the complainant to go home and be back at 2:00 o’clock in the afternoon of the same day, December 1, 1995.  Complainant returned at 2:00 o’clock in the afternoon, but did not proceed immediately to the office of the accused, as she dropped by a nearby church to ask divine guidance, as she was confused and at a loss on how to resolve her present predicament.  At 3:00 o’clock in the afternoon, she went back to the office of the accused.  And once inside, accused called up a certain Madonna, inquiring if there was a vacancy, but he was told that she would only accept a registered nurse.  Complainant was about to leave the office of the accused when the latter prevailed upon her to stay because he would call one more hospital.  In her presence, a call was made.  But again accused told her that there was no vacancy.  As all efforts to look for a job in other hospitals failed, accused renewed the offer to the complainant to be a part of the research in the Family Planning Program where there would be physical examination.  Thereafter, accused motioned his two (2) secretaries to go out of the room.  Upon moving closer to the complainant, accused asked her if she would agree to the offer.  Complainant told him she would not agree because the research included hugging.  He then assured her that he was just kidding and that a pre-schooler and high schooler have already been subjected to such examination.  With assurance given, complainant changed her mind and agreed to the research, for she is now convinced that she would be of help to the research and would gain knowledge from it.  At this point, accused asked her if she was a ‘tomboy’, she answered in the negative.  He then instructed her to go

with him but he would first play bowling, and later proceed with the research (physical examination).  On the understanding of the complainant that they will proceed to the clinic where the research will be conducted, she agreed to go with the accused.  But accused instructed her to proceed to Borja St. where she will just wait for him, as it was not good for people to see them riding in a car together.  She walked from the office of the accused and proceeded to Borja St. as instructed.  And after a while, a white car arrived.  The door was opened to her and she was instructed by the accused to come inside.  Inside the car, he called her attention why she was in a pensive mood.  She retorted she was not.  As they were seated side by side, the accused held her pulse and told her not to be scared.  He informed her that he would go home for a while to put on his bowling attire.  After a short while, he came back inside the car and asked her if she has taken a bath.  She explained that she was not able to do so because she left the house hurriedly.  Still while inside the car, accused directed her to raise her foot so he could see whether she has varicose veins on her legs.  Thinking that it was part of the research, she did as instructed.  He told her to raise it higher, but she protested.  He then instructed her to lower her pants instead.  She did lower her pants, exposing half of her legs.  But then the accused pushed it forward down to her knees and grabbed her legs.  He told her to raise her shirt.  Feeling as if she had lost control of the situation, she raised her shirt as instructed.  Shocked, she exclaimed, ‘hala ka!’ because he tried to insert his hand into her panty.  Accused then held her abdomen, saying, ‘you are like my daughter, ‘Day’! (Visayan word of endearment),’ and let the back of his palm touch her forehead, indicating the traditional way of making the young respect their elders. He again told her to raise her shirt.  Feeling embarrassed and uncomfortable, yet unsure whether she was entertaining malice, she raised her shirt up to her breast.  He then fondled her breast.  Reacting, she impulsively lower her shirt and embraced her bar while silently asking God what was happening to her and asking the courage to resist accused’s physical advances.  After a short while, she asked him if there could be a right place for physical examination where there would be many doctors.  He just exclaimed, ‘so you like that there are many doctors!’ Then he asked her if she has tooth decay.  Thinking that he was planning to kiss her, she answered that she has lots of decayed teeth.  He advised her then to have them treated.  Finally, she informed him that she would not continue with the research.  The accused retorted that complainant was entertaining malice and reminded her of what she earlier agreed; that she would not tell anybody about what happened.  He then promised to give her P15,000.00 so that she could take the examination.  She was about to open the door of the car when he suddenly grabbed her thigh, but this time, complainant instantly parried his hand with her bag.”[4]

While the City Mayor had the exclusive prerogative in appointing city personnel, it should stand to reason, nevertheless, that a recommendation from petitioner in the appointment of personnel in the municipal health office could carry good weight.  Indeed, petitioner himself would appear to have conveyed, by his words and actions, an impression that he could facilitate Juliet’s employment.  Indeed, petitioner would not have been able to take undue liberalities on the person of Juliet had it not been for his high position in the City Health Office of Cagayan de Oro City.  The findings of the Sandiganbayan were bolstered by the testimony of Vivian Yu, petitioner’s secretary between 1979 to 1994, of Iryn Lago Salcedo, Public Health Nurse II, and of Farah Dongallo y Alkuino, a city health nurse, all of whom were said to have likewise been victims of perverse behavior by petitioner.

The Sandiganbayan rightly rejected the defense of alibi proffered by petitioner, i.e., that he was at a meeting of the Committee on Awards; the court a quo said:

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“There are some observations which the Court would like to point out on the evidence adduced by the defense, particularly in the Minutes of the meeting of the Awards Committee, as testified to by witness Myrna Maagad on September 8, 1998.“First, admitted, Teresita I. Rozabal was the immediate supervisor of witness Myrna Maagad.  The Notices to hold the meeting (Exh. ‘3-A’ and ‘3-B’) were signed by Teresita Rozabal.  But the Minutes of the meeting, Exh. ‘5’, was signed by Myrna Maagad and not by Teresita Rozabal.  The documents, Exhs. ‘3-A’ and ‘3-B’ certify that the officially designated secretary of the Awards Committee was Teresita Rozabal.“Second, why was Myrna Maagad in possession of the attendance logbook and how was she able to personally bring the same in court when she testified on September 8, 1998, when in fact, she admitted during her testimony that she retired from the government service on December 1, 1997?  Surely, Myrna Maagad could not still be the custodian of the logbook when she testified.“And finally, in the logbook, under the sub-heading, ‘Others Present,’ the attendance of those who attended was individually handwritten by the persons concerned who wrote and signed their names.  But in the case of Dr. Tiro and Dr. Rico Jacutin, their names were handwritten by clerk Sylvia Tan-Nerry, not by Dr. Tiro and Dr. Jacutin.  However, Myrna Maagad testified that the logbook was passed around to attending individuals inside the conference room.”[5]

Most importantly, the Supreme Court is not a trier of facts, and the factual findings of the Sandiganbayan must be respected by, if not indeed conclusive upon, the tribunal,[6] no cogent reasons having been sufficiently shown to now hold otherwise.  The assessment on the credibility of witnesses is a matter best left to the trial court because of its unique position of being able to observe that elusive and incommunicable evidence on the deportment of witnesses at the stand, an opportunity that is denied the appellate court.[7]

Conformably with prevailing jurisprudence, the grant of moral and exemplary damages by the Sandiganbayan must be tempered to reasonable levels.  Moral damages are not intended to enrich a complainant but are awarded only to enable an injured party obtain some means that would help obviate the sufferings sustained on account of the culpable action of an offender.  Its award must not appear to be the result of passion or undue prejudice,[8] and it must always reasonably approximate the extent of injury and be proportional to the wrong committed.  Indeed, Juliet should be recompensed for her mental anguish.  Dr. Merlita F. Adaza, a psychological counseling expert, has found Juliet to be emotionally and psychologically disturbed and suffering from post trauma stress following her unpleasant experience with petitioner.  The Court finds it fitting to award in favor of Juliet Yee P30,000.00 moral damages.  In addition, she should be entitled to P20,000.00 exemplary damages to serve as a deterrent against, or as a negative incentive to curb, socially deleterious actions.[9]

WHEREFORE, the questioned decision of the Sandiganbayan in Criminal Case No. 23799, finding Dr. Rico Jacutin y Salcedo GUILTY of the crime of Sexual Harassment defined and punished under Republic Act No. 7877, particularly Sections 3 and 7 thereof, and penalizing him with imprisonment of six (6) months and to pay a fine of Twenty Thousand (P20,000.00) Pesos, with subsidiary imprisonment in case of insolvency, is AFFIRMED.  The Sandiganbayan’s award of moral and exemplary damages are MODIFIED; instead, petitioner is ordered to indemnify the offended party, Juliet Yee, in the amount of P30,000.00 and P20,000.00 by way of, respectively, moral damages and exemplary damages.  Costs against petitioner.

SO ORDERED.

[A.M. No. P-03-1697.  October 1, 2003]JOCELYN S. PAISTE, complainant, vs. APRONIANO V. MAMENTA, JR., Clerk of

Court II, Municipal Circuit Trial Court, Tayug-San Nicolas, Pangasinan,respondent.

[A.M. No. P-03-1699.  October 1, 2003]JOANNE S. GOLTIAO, complainant, vs. APRONIANO V. MAMENTA, JR., Clerk

of Court II, Municipal Circuit Trial Court, Tayug-San Nicolas, Pangasinan, respondent.

D E C I S I O NPER CURIAM:

These consolidated administrative cases arose from two different complaints filed against respondent Aproniano V. Mamenta, Jr., Clerk of Court II, Municipal Circuit Trial Court of Tayug-San Nicolas, Pangasinan.  In an affidavit-complaint filed with the Office of the Chief Justice,[1] dated August 10, 2001, complainant Joanne S. Goltiao charged him with gambling and drinking liquor during office hours, sexual harassment, arrogance and acts unbecoming of a government official.  In another affidavit-complaint filed with the Office of the Court Administrator, [2] dated August 28, 2001, the other complainant Jocelyn C. Paiste charged him with conduct unbecoming of a public officer and with violation of the Anti-Graft and Corrupt Practices Act [3] for his failure to issue official receipt.

After respondent denied the accusations against him in separate letters, [4] we resolved[5] to refer both cases to Hon. Ulysses Butuyan, Executive Judge of the Regional Trial Court of Tayug, Pangasinan for investigation, report and recommendation.[6] Separate investigations of the complaints were conducted.

In A.M. No. P-03-1699 (formerly OCA I.P.I. No. 01-1202-P), evidence shows that complainant Goltiao is a Stenographer I of the MCTC of Tayug-San Nicolas since 1997.  She testified[7]that on August 7, 2000, at about 3:00 p.m., a representative from the Plaridel Insurance Co. came to their office seeking clearance.  She immediately prepared the necessary form and, together with the representative, went to see respondent in the courtroom to obtain his signature.  When she asked him to sign the document, respondent, who was at that time playingtong-its (a card game) at the lawyers’ table with unnamed individuals, got angry and threw his cards.  He shouted at her: “Why did you bring them with you? Did you like them to bring me to the Supreme Court?” She responded that such was not her intention and reminded him of his requirement that he must first see the applicants before he sign their clearance.  He did not sign the clearance, sent then out and shouted “Bullshit  ka!” at her thrice.  They all then went out of the courtroom and proceeded back to the staff room.  She went to her table and buried her face in her hands, crying.  Respondent followed her and continued uttering unsavory remarks: “Bullshit ka! Vulva of your mother!  Why did you take the client there and even raised your voice? (Bullshit ka! Okinnam nga babai! Apay ta innalam dagita kliyente idiay sanak to rinayawan!)” She replied that her parents taught them not to answer back at older people.  He still shouted: “Vulva of your mother! I wish you will die now! Whom are you bragging of? We will try each other.  (Okinnam nga babai! Matay ka koma itattan! Apay sinno aya ti paglaslastog mo? Sige, agpipinnadas tayo.)” Thereafter, he asked the utility aide to buy him four bottles of beer.

Goltiao declared that her working relationship with the respondent is “sometimes good and sometimes bad because of his ill temper.” [8] He easily gets mad at her even for small, trivial mistakes.  This situation started, according to her, when she told him to stop courting and sending her love notes as she is already a married woman.  She

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related an incident which happened early one morning when he asked her to see him inside the judge’s chamber.  At that time, the designated judge was not around.  Once inside, she was told to sit in one of the chairs in front of the judge’s table.  The respondent, who was sitting at the judge’s chair, then extended his hand to her, as if he wanted to shake her hands.  She reciprocated by extending her hands and jokingly put his hands on her forehead (agmanmano).  She afterwards tried to free her hands off his but he would no let her.  Instead, he told her, “Wait for a while, I would just like to tell you something.  I love you, is that okay?  Tell me that you love me too.  No strings attached.”  She retorted, “As if you are my father.”  Spurned, he got mad.  This kind of incident happened at least ten more times.

Furthermore, respondent sent her love notes.  He wrote his love messages on pieces of paper in front of her and handed them to her. [9] She knew that they were intended for her as there was nobody else present when he gave the notes to her.  He would also call her at her mother’s house.  She did not respond affirmatively to his display of affection as both of them are married.  Finally, she explained that she filed a complaint against him only on August 10, 2001 because of the August 7, 2001 incident, when she got fed up at the way he treated her.

Marilyn de Leon, also a court stenographer of MCTC Tayug-San Nicolas, corroborated the testimony of Goltiao.[10] She stated that she witnessed the incident on August 7, 2001, when respondent became angry at Goltiao after the latter went to ask for his signature while he was playing tong-its.  She heard respondent shout foul words at Goltiao.  She added that respondent gets mad at everyone at the office on trivial matter.  She, too, received love notes from the respondent.

Court stenographer Glenda C. Ramirez also corroborated the testimony of Goltiao.[11] She declared that she witnessed the incident on August 7, 2001 at their office.  She observed that respondent was fuming mad at Goltiao, when the latter asked him to sign a clearance form.  She heard respondent shout at Goltiao inside the courtroom and at the staff room.  Respondent got mad when Goltiao allowed the representatives of the insurance company to enter the courtroom, where he was playing tong-its.  She related that she also received love notes from him. One time, after respondent signed her travel order she noticed the following message written on the order: “7:30 in the evening, Jollibee.”  She did not go out with him.  She chose him as a principal sponsor on her wedding in the hope that he would treat her like his own child and that he would stop sending notes to her.  This did not happen even as respondent continued to easily get mad at her for simple lapses.

Renato Rombawa, a utility worker at the court, saw the incident on August 7, 2001, when respondent got mad at Goltiao inside the courtroom. [12]  He did not know why he became furious.  At the time of the incident, respondent was playing tong-its.

Estifanio Acosta, Clerk III at the MCTC, stated that he likewise saw respondent got mad when Goltiao tried to obtain his signature for a clearance form.[13] Respondent, he recalled, was at that time playing tong-its.  He knew that respondent gives love notes to Goltiao and Glenda Ramirez, as the two revealed this secret to him.

Lastly, David Kagaoan testified that at about 3:00 o’clock in the afternoon of August 7, 2001, somebody came to get a clearance from the court. [14] The clearance form was prepared by Goltiao who went to see the respondent at the courtroom.  He then heard shouts of “vulva of your mother, get out of here!” from the room.  He thought it came from the respondent, who was then playing tong-its.  Rombawa, the utility worker, went inside the courtroom and brought the sobbing Goltiao out.  He stated that complainant showed him some of the love notes respondent gave her.  He knows it came from respondent as he is familiar with his signature.

Respondent denied the allegations against him.[15] He admitted shouting at Goltiao because she, too, shouted at him.  He declared that the complaint was intended to harass him and put him into shame and to remove him from office.  He said that Goltiao and her witnesses resent his strictness and they want to continue with their bad ways in the office.  Goltiao, Ramirez and de Leon come to office late but Goltiao’s daily time record does not reflect her tardiness.  She sells stenographic notes without remitting a single centavo to the Judiciary Development Fund (JDF).  Witness Rombawa does not work in the office from 2:00 to 5:00 o’clock in the afternoon.  Witness Acosta is a habitual absentee, reports at 10:00 o’clock and leaves after only an hour.  He then returns at 2:00 o’clock in the afternoon.  He is hired by one Bobby Go as a driver.  Witness Kagaoan is a habitual latecomer as he attends to his agricultural business first before going to the court.  He adds that witnesses Rombawa, Acosta and Kagaoan all play tong-its either at the session hall of the court or the first floor of the building.

On rebuttal, complainant Goltiao revealed that respondent invited her several times for a date at Jollibee, instructing her not to tell her husband about it.[16] Respondent countered that every time he invites her, it was with de Leon, Ramirez and other court personnel.[17]

In A.M. No. P-03-1697 (formerly OCA I.P.I. No. 01-1196-P), complainant Paiste is the owner of JCP72 Insurance Agency, and as its proprietor, has transactions with the MCTC Tayug-San Nicolas.[18] She testified that on April 3, 2001 at about 2:00 p.m. she went to the court, together with a client, to post bail.  When they arrived, they could not find the respondent.  An employee named Marilyn accompanied then to one of the rooms at the hall of justice where the respondent was holding game cards and playing tong-its with some people.  Marilyn called respondent’s attention telling him that somebody wants to post bail.  Respondent retorted, “You just go ahead upstairs.  Why, could you not wait?” They went ahead and respondent followed fifteen minutes after.  She noticed that he was mad.  They told him they want to post bail and he asked for the records of the case.  After examining the records, he slammed it and said, “You go to Rosales! That is not our work!” He also became angry when they followed him.

On April 20, 2001, Paiste, an officemate and a client again went to the MCTC in Tayug-San Nicolas to post bail in connection with Criminal Case No. 7461.  The respondent instructed them to go to the house of Judge Pastor.  They went there as told but the judge rejected their papers.  They returned the next day, a Saturday, after completing their documents.  They came from the court where they met respondent, who accompanied them to the judge’s house.  The judge approved the surety bond.[19] Later, they handed three thousand pesos (P3,000.00) to the respondent, two thousand four hundred pesos (P2,400.00) of which was for the JDF.  They gave him the remaining six hundred pesos (P600.00) after he asked them, “Paano naman yung sa akin?” They understood that to mean that he was expecting some form of compensation as he accompanied them outside the office on a non-working day.  They then demanded an official receipt for the two thousand four hundred pesos (P2,400.00) they paid him corresponding to the amount of the JDF.  He told them to go to the court and get it the following Monday.  That Monday, she sent one of her staff to get the receipt, but the latter reported to her that he did not issue one.  She added that this is not the only time that he failed to issue her a receipt.  In other cases, he also neglected to do so even after she has paid the mandatory JDF fees.

A staff member of the MCTC Tayug-San Nicolas, Estifanio Acosta, verified the records of Criminal Case No. 7461 and stated that no official receipt appears on file although the personal bail bonds issued by the JCP72 Insurance Agency, bearing the

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date April 21, 2001, in favor of the several accused in the case were approved by the acting presiding judge of the court.[20]

For his part, respondent merely denied the foregoing allegations in open court and waived presentation of evidence.[21]

After investigation, the investigating judge rendered a Consolidated Report and Recommendation[22] finding respondent guilty of serious misconduct and accordingly proposed that he be sternly reprimanded and fined ten thousand pesos (P10,000.00), thus:Nonetheless, on the basis of the evidence adduced, barely refuted by the respondent, the undersigned finds him guilty of serious misconduct in office, consisting of abundantly substantiated offenses thus:

1.                       Making undue advances through love notes to female subordinates;

2.            Indulging in card games during office hours;3.            Using abusive language in dealing with subordinates as

well as with third persons seeking his services as clerk of court; and

4.            Receiving payments for court fees without promptly issuing the corresponding receipts therefore.

WHEREFORE, all of the foregoing premises and circumstances considered, the undersigned hereby respectfully recommends that respondent be sternly reprimanded, and fined in the amount of P10,000.00, for serious misconduct.[23]

The report was forwarded to the Office of the Court Administrator (OCA).  After evaluating the report and the records, the OCA proposed that a stiffer penalty must be imposed on respondent.  On the basis of Sections 52, 54 and 55 of Memorandum Circular No. 19, series of 1999 of the Civil Service Commission,[24] it recommended that the two complaints be consolidated and docketed as a regular administrative case and that respondent be “SUSPENDED for a period of one (1) year having been found Guilty of various offenses including the (sic) Grave Offenses and disgraceful and immoral conduct.”[25]

A painstaking examination of the records of the cases convinces us that the respondent is guilty of the offenses charged against him.

The evidence in A.M. No. P-03-1699 adequately establishes that he was guilty of gambling, using abusive language and sexually harassing his female subordinates.  We find credible the categorical and straightforward testimonies of complainant Goltiao and her witnesses.  Their frank and candid testimonies, unshaken by cross-examination and unflawed by inconsistencies or contradictions in their material points, deserve our full faith and belief.[26]

In contrast, we are not persuaded by the denial put forward by the respondent.  The purported motive he imputes against complainant and her witnesses for filing this case is not worthy of attention.  He asserts that they just want him removed so they can continue with their “bad ways in the office.”  It strikes us strange that he allowed these bad ways for a long time without taking any measures or reporting them to the OCA.

Time and again, we have emphasized that court officers, circumscribed with heavy responsibility, must be the paragon of propriety and good behavior.[27] This is especially true for a clerk of court like the respondent.  As a ranking officer of the court, it is incumbent upon him to set an example to his co-employees as to how they should conduct themselves in office; to see to it that his subordinates work efficiently in accordance with the rules and regulations of the civil service and the judiciary; and to provide then with a healthy working atmosphere wherein co-workers treat each

other with respect, courtesy and cooperation, so that in the end public interest will be benefited.[28]

Respondent failed to measure up to these standards.  His use of offensive language towards complainant Goltiao reflects his impoliteness and lack of decorum.  He shouted profanity at her, verbally abused her and even disrespected her mother.  He did this in the presence of so many employees and clients of the court.  Worse, there was no reason for him to unleash to her a fury of this kind.  She was merely asking him to sign a clearance form and to examine the applicant pursuant to his specific instruction that he should first see the applicant for the clearance before he sign the form.  In fine, she was just doing her job.  The truth is, he got mad at her out of his fear that the client she brought along might report him to this court when they caught him in flagrante delicto gambling.

Similarly objectionable is respondent’s penchant for playing tong-its (a card game) and gambling with other employees of the court.  Gambling is illegal and is absolutely forbidden at court premises during office hours.[29] It generates unwholesome consequences on the gambler as it diverts his attention from the more important responsibilities of his job.[30] Respondent himself was very much aware of this prohibition and this is exactly the reason why he castigated the complainant for approaching him while he was playing cards, thus: “Why did you bring then with you? Did you like them to bring me to the Supreme Court?”[31]

Worse, respondent was playing cards and gambling during office hours at the session hall of the courtroom, which is hardly the place for such undesirable activities.  A courtroom is generally looked upon by people with high respect and regarded as a sacred place where witnesses testify under oath, where conflicts are resolved, rights adjudicated, and justice solemnly dispensed. [32] Making it a game room and a casino area diminishes its sanctity and dignity.[33]

The undue advances respondent made to complainant Goltiao betrays his twisted sense of propriety.  Many times, he declared his feelings for her and handed her love notes.  He would then beseech her to say the same things to him.  He proposed to have dinner dates with her at Jollibee.  There were times that he cornered her at the judge’s chamber and unnecessarily held her hand.  While professing one’s amorous intention is not something that usually causes a hullabaloo, it becomes indecent and improper in this case considering he is complainant Goltiao’s superior and both of them are married. His dissoluteness told itself when he went to the extent of calling her at her mother’s house and persuading her not to tell her husband about these incidents.

It appears too that the complainant was not the exclusive object of respondent’s advances.  Witnesses Marilyn de Leon and Glenda Ramirez testified that they also received love notes and invitations for dinner from him.  Like a hunter out on the prowl, he victimized other female workers unabashedly professing his alleged feelings for them in utter disregard of the fact that they were his subordinates, they were married and they were young enough to be his daughters.  Instead of he being in loco parentis over his subordinate employees, he preyed on them as he took advantage of his superior position.[34]

Under the circumstances, we find respondent guilty of sexual harassment.  His severely outrageous acts, which are an affront to women, constitute sexual harassment because they necessarily result in an intimidating, hostile, and offensive working environment for his female subordinates.[35] He abused the power and authority he exercises over them, which is the gravamen of the offense in sexual harassment.[36] Sexual harassment in the workplace is not about a man taking advantage of a woman by reason of sexual desire – it is about power being exercised

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by a superior over his women subordinates.[37] That power emanates from the fact that he can remove them if they refuse his amorous advances.[38]

There is likewise sufficient evidence in A.M. No. P-03-1697 to hold respondent administratively liable for his failure to issue official receipt after receiving court fees and for discourtesy. The testimony of complainant Paiste is worthy of belief.  We find her categorical and consistent declarations credible, especially when viewed in the light of the fact that no ill-motive on her part was established. [39] Against her positive testimony, supported by documentary evidence based on official court records, the mere uncorroborated denial of the respondent deserves scant considerations.[40]

The evidence shows that on April 21, 2001, complainant Paiste gave to the respondent the amount of two thousand four hundred pesos (P2,400.00) as bail bond of the accused in Criminal Case No. 7461.  When she asked for an official receipt, he told her to get it the following Monday at the court.  She sent an office representative that Monday as told but respondent did not issue any receipt.  Further verification from the records of Criminal Case No. 7461 reveals that no copy of the official receipt appears on file indicating that no receipt was ever issued to complainant Paiste.

Undoubtedly, respondent should have issued an official receipt when he received the sum of money from complainant Paiste.  His failure to do so is a violation of the National Accounting and Auditing Manual which mandates that no payment of any nature shall be received by a collecting officer without immediately issuing an official receipt, in acknowledgment thereof.[41] It bears emphasis that there is no valid reason for his non-issuance of a receipt.  Even if he argues that he could not issue an official receipt to the complainant Paiste as the transaction transpired on a Saturday and outside court premises, still, his failure to issue a receipt the following Monday is totally unjustified.

We also find the rude and boorish manner respondent treated complainant Paiste and her client on April 3, 2001 uncalled for.  His demeanor bordered on arrogance.  He made them wait for fifteen minutes before he attended to their concern as they found him playing cards and gambling.  He was very irritable the whole time he was talking to them.  After he examined the record, he slammed it an told them to go to the court at Rosales.  He then got annoyed when they followed him.  To be sure, this is no way to treat court users.

High strung and belligerent behavior has no place in government, especially in the judiciary, where the personnel are enjoined to act with self-restraint and civility at all times, even when confronted with rudeness and insolence. [42] They are expected to extend prompt, courteous and adequate service to the people.[43] Such conduct is exacted from them so that they will earn and keep society’s high regard for and confidence in the judicial service.[44] Conduct violative of this standard quickly and surely corrodes respect for the courts.  It is the imperative and sacred duty of everyone charged with the dispensation of justice, from the judge to the lowliest clerk, to uphold the court’s good name and standing as true temples of justice.[45]

We do not agree with both the investigating judge and the OCA when they imposed a single penalty on the respondent for two cases.  Although consolidated, the two cases are distinct and each one contains different charges.  Respondent, as a consequence, must be separately held liable and penalized for the charges in each case.

This brings us to the individual penalties which must be imposed on the respondent for each case.  In A.M. No. P-03-1699, we hold that the gross  discourtesy, gambling and sexual harassment he committed constituted serious misconduct and conduct prejudicial to the interest of the service which warrant his dismissal from office.  He has been shown to lack the requisite

professional and moral qualifications to continue as an employee in the judiciary.   In A.M. No. P-03-1697, his failure to issue a receipt amounted to gross neglect of duty while his grossly discourteous behavior is conduct unbecoming of a public officer.  For this reason, we impose on him a suspension of one (1) month.

IN VIEW WHEREOF, RESPONDENT Aproniano V. Mamenta, Jr. is found Guilty of gross discourtesy, gambling, and sexual harassment in A.M. No. P-03-1699 and is accordingly DISMISSED from the service with prejudice to re-employment in any branch, agency, or instrumentality of the Government, including government-owned and controlled corporations.

He is likewise found Guilty of gross discourtesy and failure to issue an official receipt in A.M. No. P-03-1697 and is meted the penalty of suspension for a period of One (1) Month. Considering, however, that we already ordered his dismissal in A.M. No. P-03-1699, his suspension is moot.

SO ORDERED.

G.R. No. 191566               July 17, 2013PEOPLE OF PHILIPPINES, Petitioner, vs.EDGARDO V. ODTUHAN, Respondent.

D E C I S I O NPERALTA, J.:This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by petitioner People of the Philippines, represented by the Office of the Solicitor General, against respondent Edgardo V. Odtuhan assailing the Court of Appeals Decision1 dated December 17, 2009 and Resolution2 dated March 4, 2010 in CA-G.R. SP No. 108616. The assailed decision granted the petition for certiorari filed by respondent, and ordered the Regional Trial Court (RTC) of Manila, Branch 27, to give due course to and receive evidence on respondent's motion to quash and resolve the case with dispatch, while the assailed resolution denied petitioner's motion for reconsideration.The facts of the case follow:On July 2, 1980, respondent married Jasmin Modina (Modina).3 On October 28, 1993, respondent married Eleanor A. Alagon (Alagon).4 Sometime in August 1994, he filed a petition for annulment of his marriage with Modina.5 On February 23, 1999, the RTC of Pasig City, Branch 70 granted respondent’s petition and declared his marriage with Modina void ab initio for lack of a valid marriage license.6 On November 10, 2003, Alagon died. In the meantime, in June 2003, private complainant Evelyn Abesamis Alagon learned of respondent’s previous marriage with Modina.7She thus filed a Complaint-Affidavit8 charging respondent with Bigamy.On April 15, 2005, respondent was indicted in an Information9 for Bigamy committed as follows:That on or about October 28, 1993, in the City of Manila, Philippines, the said accused being then legally married to JASMIN MODINA and without such marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second or subsequent marriage with ELEANOR A. ALAGON, which second/subsequent marriage has all the essential requisites for validity.Contrary to law.10

On February 5, 2008, respondent filed an Omnibus Motion11 praying that he be allowed to present evidence to support his motion; that his motion to quash be granted; and that the case be dismissed. Respondent moved for the quashal of the

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information on two grounds, to wit: (1) that the facts do not charge the offense of bigamy; and (2) that the criminal action or liability has been extinguished.12

On September 4, 2008, the RTC13 issued an Order14 denying respondent’s Omnibus Motion. The RTC held that the facts alleged in the information – that there was a valid marriage between respondent and Modina and without such marriage having been dissolved, respondent contracted a second marriage with Alagon – constitute the crime of bigamy. The trial court further held that neither can the information be quashed on the ground that criminal liability has been extinguished, because the declaration of nullity of the first marriage is not one of the modes of extinguishing criminal liability. Respondent’s motion for reconsideration was likewise denied in an Order15 dated February 20, 2009.Aggrieved, respondent instituted a special civil action on certiorari under Rule 65 of the Rules of Court16 before the CA, assailing the denial of his motion to quash the information despite the fact that his first marriage with Modina was declared null and void ab initio prior to the filing of the bigamy case.17

On December 17, 2009, the CA rendered the assailed decision, the dispositive portion of which reads:WHEREFORE, premises considered, the instant petition for certiorari is hereby GRANTED. The RTC, Branch 27, Manila is hereby ordered to give due course to and receive evidence on the petitioner’s motion to quash and resolve the case with dispatch.SO ORDERED.18

The CA applied the conclusion made by the Court in Morigo v. People,19 and held that there is cogent basis in looking into the motion to quash filed by respondent, for if the evidence would establish that his first marriage was indeed void ab initio, one essential element of the crime of bigamy would be lacking.20 The appellate court further held that respondent is even better off than Morigo which thus calls for the application of such doctrine, considering that respondent contracted the second marriage after filing the petition for the declaration of nullity of his first marriage and he obtained the favorable declaration before the complaint for bigamy was filed against him.21 The CA thus concluded that the RTC gravely abused its discretion in denying respondent’s motion to quash the information, considering that the facts alleged in the information do not charge an offense.22

With the denial of the motion for reconsideration before the CA, petitioner filed a petition before the Court in this petition for review on certiorari under Rule 45 of the Rules of Court based on the following grounds:THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT RENDERED ITS DECISION DATED DECEMBER 17, 2009 GRANTING RESPONDENT’S PETITION FOR CERTIORARI AND THE RESOLUTION DATED MARCH 4, 2010 DENYING PETITIONER’S MOTION FOR RECONSIDERATION, CONSIDERING THAT:

I.THE INFORMATION CHARGING RESPONDENT OF BIGAMY SUFFICIENTLY ALLEGES ALL THE ELEMENTS CONSTITUTING SAID OFFENSE.

II.THE SUBSEQUENT COURT JUDGMENT DECLARING RESPONDENT’S FIRST MARRIAGE VOID AB INITIO DID NOT EXTINGUISH RESPONDENT’S CRIMINAL LIABILITY WHICH ALREADY ATTACHED PRIOR TO SAID JUDGMENT.23

The petition is meritorious.The issues are not novel and have been squarely ruled upon by this Court in Montañez v. Cipriano,24 Teves v. People,25 and Antone v. Beronilla.26

In Montañez, respondent Cipriano married Socrates in April 1976, but during the subsistence of their marriage on January 24, 1983, respondent married Silverio. In 2001, respondent filed a petition for the annulment of her marriage with Socrates on the ground of psychological incapacity which was granted on July 18, 2003. On May 14, 2004, petitioner filed a complaint for bigamy against respondent. The latter, however, moved for the quashal of the information and dismissal of the criminal complaint alleging that her first marriage had already been declared void ab initio prior to the filing of the bigamy case.In Teves, petitioner married Thelma on November 26, 1992. During the subsistence of their marriage on December 10, 2001, he again married Edita. On May 4, 2006, petitioner obtained a declaration of her marriage with Thelma null and void on the ground that the latter is physically incapacitated to comply with her marital obligations. On June 8, 2006, an Information for Bigamy was filed against petitioner. The court eventually convicted petitioner of the crime charged.In Antone, petitioner married respondent in 1978, but during the subsistence of their marriage, respondent contracted a second marriage in 1991. On April 26, 2007, respondent obtained a declaration of nullity of her first marriage which decision became final and executory on May 15, 2007. On June 21, 2007, the prosecution filed an information for bigamy against respondent which the latter sought to be quashed on the ground that the facts charged do not constitute an offense.The present case stemmed from similar procedural and factual antecedents as in the above cases. As in Antone and Montañez, respondent moved to quash the information on the grounds that the facts do not charge the offense of bigamy and that his criminal liability has been extinguished both because of the declaration of nullity of the first marriage. The RTC refused to quash the information. On petition for certiorari, the CA, however, reached a different conclusion.As defined in Antone, "a motion to quash information is the mode by which an accused assails the validity of a criminal complaint or information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the information." It is a hypothetical admission of the facts alleged in the information. The fundamental test in determining the sufficiency of the material averments in an Information is whether or not the facts alleged therein, which are hypothetically admitted, would establish the essential elements of the crime defined by law. Evidence aliunde or matters extrinsic of the information are not to be considered.27 To be sure, a motion to quash should be based on a defect in the information which is evident on its fact.28 Thus, if the defect can be cured by amendment or if it is based on the ground that the facts charged do not constitute an offense, the prosecution is given by the court the opportunity to correct the defect by amendment.29 If the motion to quash is sustained, the court may order that another complaint or information be filed30 except when the information is quashed on the ground of extinction of criminal liability or double jeopardy.31

An examination of the information filed against respondent, however, shows the sufficiency of the allegations therein to constitute the crime of bigamy as it contained all the elements of the crime as provided for in Article 34932 of the Revised Penal Code, to wit:

(1) That the offender has been legally married;(2) That the first marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code;(3) That he contracts a second or subsequent marriage; and

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(4) That the second or subsequent marriage has all the essential requisites for validity.33

Here, the information contained the following allegations: (1) that respondent is legally married to Modina; (2) that without such marriage having been legally dissolved; (3) that respondent willfully, unlawfully, and feloniously contracted a second marriage with Alagon; and (4) that the second marriage has all the essential requisites for validity. Respondent’s evidence showing the court’s declaration that his marriage to Modina is null and void from the beginning because of the absence of a marriage license is only an evidence that seeks to establish a fact contrary to that alleged in the information that a first valid marriage was subsisting at the time he contracted the second marriage. This should not be considered at all, because matters of defense cannot be raised in a motion to quash.34It is notproper, therefore, to resolve the charges at the very outset without the benefit of a full blown trial. The issues require a fuller examination and it would be unfair to shut off the prosecution at this stage of the proceedings and to quash the information on the basis of the document presented by respondent.35 With the presentation of the court decree, no facts have been brought out which destroyed the prima facie truth accorded to the allegations of the information on the hypothetical admission thereof.Respondent’s motion to quash was founded on the trial court’s declaration that his marriage with Modina is null and void ab initio. He claims that with such declaration, one of the elements of the crime is wanting. Thus, the allegations in the information do not charge the offense of bigamy, or at the very least, such court decree extinguished his criminal liability. Both respondent and the CA heavily relied on the Court’s pronouncement in Morigo v. People36where the accused therein was acquitted because the elements of the crime of bigamy were incomplete. In said case, the first marriage was declared null and void, because the parties only signed the marriage contract without the presence of a solemnizing officer. Considering, therefore, that the declaration of nullity retroacts to the date of the first marriage, the Court held that there was no marriage to speak of when the accused contracted the second marriage. Logically, the accused was acquitted.The Family Code has settled once and for all the conflicting jurisprudence on the matter.1âwphi1 A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense.37 It has been held in a number of cases that a judicial declaration of nullity is required before a valid subsequent marriage can be contracted; or else, what transpires is a bigamous marriage, reprehensible and immoral.38

What makes a person criminally liable for bigamy is when he contracts a second or subsequent marriage during the subsistence of a valid marriage.39 Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration, the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy.40 If we allow respondent’s line of defense and the CA’s ratiocination, a person who commits bigamy can simply evade prosecution by immediately filing a petition for the declaration of nullity of his earlier marriage and hope that a favorable decision is rendered therein before anyone institutes a complaint against him.41

Respondent, likewise, claims that there are more reasons to quash the information against him, because he obtained the declaration of nullity of marriage before the filing of the complaint for bigamy against him. Again, we cannot sustain such

contention. In addition to the discussion above, settled is the rule that criminal culpability attaches to the offender upon the commission of the offense and from that instant, liability appends to him until extinguished as provided by law and that the time of filing of the criminal complaint or information is material only for determining prescription.42

Thus, as held in Antone:To conclude, the issue on the declaration of nullity of the marriage between petitioner and respondent only after the latter contracted the subsequent marriage is, therefore, immaterial for the purpose of establishing that the facts alleged in the information for Bigamy does not constitute an offense. Following the same rationale, neither may such defense be interposed by the respondent in his motion to quash by way of exception to the established rule that facts contrary to the allegations in the information are matters of defense which may be raised only during the presentation of evidence.43

In view of the foregoing, the CA erred in granting the petition for certiorari filed by respondent. The RTC did not commit grave abuse of discretion in denying his motion to quash and to allow him to present evidence to support his omnibus motion.WHEREFORE, the petition is hereby GRANTED. The Court of Appeals Decision dated December 17, 2009 and Resolution dated March 4, 2010 in CA-G.R. SP No. 108616 are SET ASIDE. Criminal Case No. 05-235814 is REMANDED to the Regional Trial Court of Manila, Branch 27 for further proceedings.SO ORDERED.

G.R. Nos. 118757 & 121571 November 11, 2005ROBERTO BRILLANTE, Petitioner, vs.COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, Respondents.

R E S O L U T I O NTinga, J.:This treats of the Motion for Reconsideration dated November 25, 2004 filed by Roberto Brillante (Brillante) assailing the Decision of this Court dated October 19, 2004 which affirmed his conviction for the crime of libel but reduced the amount of moral damages he is liable to pay.Brillante avers that his conviction, without the corresponding conviction of the writers, editors and owners of the newspapers on which the libelous materials were published, violates his right to equal protection. He also claims that he should have been convicted only of one count of libel because private respondents were not defamed separately as each publication was impelled by a single criminal intent. Finally, he claims that there is a "semblance of truth" to the accusations he hurled at private respondents citing several instances of alleged violent acts committed by the latter against his person.Private respondent Jejomar Binay (Binay) filed a Comment dated March 3, 2005, maintaining that the equal protection clause does not apply because there are substantial distinctions between Brillante and his co-accused warranting dissimilar treatment. Moreover, contrary to Brillante’s claim that he should have been convicted only of one count of libel, Binay asserts that there can be as many convictions for libel as there are persons defamed. Besides, this matter should have been raised at the time the separate complaints were filed against him and not in this motion.For its part, the Office of the Solicitor General (OSG) filed a Comment dated April 4, 2005, stating that the issues raised in Brillante’s motion have already been discussed and passed upon by the Court. Hence, the motion should be denied.

9

Brillante filed a Consolidated Reply dated May 26, 2005 in reiteration of his arguments.As correctly noted by the OSG, the basic issues raised in the instant motion have already been thoroughly discussed and passed upon by the Court in its Decision. For this reason, we shall no longer dwell on them.We believe, however, that the penalty of imprisonment imposed against Brillante should be re-examined and reconsidered. Although this matter was neither raised in Brillante’s petition nor in the instant motion, we advert to the well-established rule that an appeal in a criminal proceeding throws the whole case open for review of all its aspects, including those not raised by the parties.1

In Mari v. Court of Appeals,2 petitioner therein was found guilty of slander by deed penalized under Art. 359 of the Revised Penal Code (Penal Code) by either imprisonment or fine. In view of the fact that the offense was done in the heat of anger and in reaction to a perceived provocation, the Court opted to impose the penalty of fine instead of imprisonment.In this case, Brillante claims that on January 6, 1988, his friend’s house was bombed resulting in the death of three people. This incident allegedly impelled him, out of moral and social duty, to call a press conference on January 7, 1988 with the intention of exposing what he believed were terrorist acts committed by private respondents against the electorate of Makati City.We find that the circumstances surrounding the writing of the open letter on which the libelous publications were based similarly warrant the imposition of the penalty of fine only, instead of both imprisonment and fine, in accordance with Art. 355 of the Penal Code.3 The intensely feverish passions evoked during the election period in 1988 must have agitated petitioner into writing his open letter.Moreover, while petitioner failed to prove all the elements of qualified privileged communication under par. 1, Art. 354 of the Penal Code, incomplete privilege should be appreciated in his favor, especially considering the wide latitude traditionally given to defamatory utterances against public officials in connection with or relevant to their performance of official duties or against public figures in relation to matters of public interest involving them.4

The foregoing circumstances, in our view, justify the deletion of the penalty of imprisonment and the retention of the meted fine only.WHEREFORE, the Decision dated October 19, 2004 is AFFIRMED with MODIFICATION consisting of the deletion of the penalty of imprisonment imposed upon petitioner.SO ORDERED.DANTE O. TINGA

JOSE ALEMANIA BUATIS,             G.R. NO. 142509JR. vs   THE PEOPLE OF THE                     PHILIPPINES and ATTY. JOSE J. PIERAZ

Before us is a petition for review on certiorari filed by Jose Alemania Buatis, Jr. (petitioner)  seeking to set aside the Decision[1] dated January 18, 2000 of the Court of Appeals (CA) in CA-G.R. CR. No. 20988 which affirmed the decision of the Regional Trial Court (RTC), Branch 167 of Pasig City, convicting him of the crime of libel.  Also assailed is the appellate court’s Resolution[2] dated March 13, 2000 denying petitioner’s Motion for Reconsideration.

 The facts of the case, as summarized by the appellate court, are as follows:

          On August 18, 1995, the wife of private-complainant Atty. Jose  J. Pieraz (Atty. Pieraz), retrieved a letter from their mailbox addressed to her husband. The letter was open, not contained in an envelope, and Atty. Pieraz’ wife put it on her husband’s desk. On that same day, Atty. Pieraz came upon the letter and made out its content. It reads: 

DON HERMOGENES RODRIGUEZ Y REYES ESTATEOffice of the Asst. Court AdministratorNo. 1063 Kamias St., Bgy. Manggahan, Pasig City,Metro Manila                                                                             August 18, 1995ATTY. JOSE J. PIERAZCounsel for Benjamin A. Monroy#8 Quirino St., Life Homes SubdivisionRosario , Pasig City, Metro ManilaSubject:        Anent your letter dated August 18, 1995                     addressed to one Mrs. Teresita QuingcoAtty. Pieraz:This has reference to your lousy but inutile threatening letter dated August 18, 1995, addressed to our client; using carabao English. May we remind you that any attempt on your part to continue harassing the person of Mrs. Teresita Quingco of No. 1582 Mngo St., Bgy. Manggahan, Pasig City, Metro Manila---undersigned much to his regrets shall be constrained/compelled to file the necessary complaint for disbarment against you. You may proceed then with your stupidity and suffer the full consequence of the law. Needless for you to cite specific provisions of the Revised Penal Code, as the same is irrelevant to the present case. As a matter of fact, the same shall be used by no other than the person of Mrs. Quingco in filing administrative charge against you and all persons behind these nefarious activities. Finally, it is a welcome opportunity for the undersigned to face you squarely in any courts of justice, so as we can prove “who is who” once and for all. Trusting that you are properly inform (sic) regarding these matters, I remain. Yours in Satan name;(Signed)JOSE ALEMANIA BUATIS, JR.Atty-in- Fact of the present

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Court Administrator of the entireIntestate Estate of Don HermogenesRodriguez Y. Reyes.Copy furnished:All concerned.Not personally knowing who the sender was, Atty. Pieraz,

nevertheless, responded and sent a communication by registered mail to said Buatis, Jr., accused-appellant. In reply, Buatis, Jr. dispatched a second letter dated August 24, 1995 to Atty. Pieraz. 

Reacting to the insulting words used by Buatis, Jr., particularly: “Satan, senile, stupid, [E]nglish carabao,” Atty. Pieraz filed a complaint for libel against accused-appellant. Subject letter and its contents came to the knowledge not only of his wife but of his children as well and they all chided him telling him: “Ginagawa ka lang gago dito.” 

Aside from the monetary expenses he incurred as a  result of the filing of the instant case, Atty Pieraz’ frail health was likewise affected and aggravated by the letter of accused-appellant. 

The defense forwarded by accused-appellant Buatis, Jr. was denial. According to him, it was at the behest of the president of the organization “Nagkakaisang Samahan Ng Mga TagaManggahan” or NASATAMA, and of a member, Teresita Quingco, that he had dictated to one of his secretaries, a comment to the letter of private-complainant in the second week of August 1995. 

Initially during his testimony, Buatis, Jr. could not recall whether he had signed that letter-comment or if it was even addressed to Atty. Pieraz. Neither could he remember if he had made and sent another letter, this time dated August 24, 1995, to Atty. Pieraz. Confronted in court with the counter-affidavit which he filed before the Pasig City Prosecutor’s Office, however,Buatis, Jr. could not deny its contents, among which was his admission that indeed, he had sent subject letter of August 18 and the letter dated August 24, 1995 to Atty. Pieraz.[3]

                               After trial on the merits, the RTC rendered its Decision dated April 30, 1997[4] finding petitioner guilty of the crime of libel, the dispositive portion of which reads:

          WHEREFORE, judgment is hereby rendered finding the accused Jose Alemania Buatis, Jr. GUILTY of the crime of LIBEL defined in Art. 353 and penalized under Art. 355 of the Revised Penal Code and is hereby sentenced to an indeterminate penalty of imprisonment of Four (4) Months and One (1) Day, as minimum, to Two (2) Years, Eleven (11) Months and Ten (10) Days, as maximum; to indemnify the offended party in the  amount of P20,000.00, by way of compensatory damages; the amount

of P10,000.00, as and for moral damages, and another amount of P10,000.00, for exemplary damages; to suffer all accessory penalties provided for by law;  and, to pay the costs. [5]         

  The trial court ruled that: calling a lawyer “inutil”, stupid and capable of using

only carabao English, is intended not only for the consumption of respondent but similarly for others as a copy of the libelous letter was furnished all concerned; the letter was prejudicial to the good name of  respondent and an affront to his standing as a lawyer, who, at the time the letter was addressed to him, was representing a client in whose favor he sent a demand letter to the person represented by petitioner; the letter is libelous per se since a defect or vice imputed is plainly understood as set against the entire message sought to be conveyed; petitioner failed to reverse the presumption of malice from the defamatory imputation contained in the letter; the letter could have been couched in a civil and respectful manner, as the intention of petitioner was only to advice respondent that demand was not proper and legal but instead petitioner was seething with hate and contempt and even influenced by satanic intention.

The RTC also found that since the letter was made known or brought to the attention and notice of  other persons other than the offended party, there was publication; and that the element of identity was also established since the letter was intended for respondent. It rejected petitioner’s stance that the libelous letter resulted from mistake or negligence since petitioner boldly admitted that he had to reply to respondent’s letter to Mrs. Quingco, it being his duty to do as the latter is a member of petitioner’s association.

 The RTC found respondent entitled to recover compensatory damages as

the immediate tendency of the defamatory imputation was to impair respondent’s reputation although no actual pecuniary loss has in fact resulted. It also awarded moral damages as well as exemplary damages since the publication of the libelous letter was made with special ill will, bad faith or in a reckless disregard for the rights of respondent.         

 Subsequently, petitioner appealed the RTC’s decision to the CA which, in a

Decision dated January 18, 2000, affirmed in its entirety the decision of the trial court.  

 The CA found that the words used in the letter are uncalled for and

defamatory in character as they impeached the good reputation of respondent as a lawyer and that it is malicious. It rejected petitioner’s claim that the letter is a privileged communication which would exculpate him from liability since he failed to come up with a valid explanation as to why he had to resort to name calling and downgrading a lawyer to the extent of ridiculing him when he could have discharged his so called “duty” in a more toned down fashion. It found also that there was publication of the letter, thus, it cannot be classified as privileged.

 The CA denied petitioner’s motion for reconsideration in a Resolution

dated March 13, 2000.  Hence the instant petition for review on certiorari filed by petitioner, raising

the following issues:

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A.                 CAN THERE BE MALICE IN FACT, AS ONE OF THE ELEMENTS OF LIBEL, ATTRIBUTED TO A RESPONDING URBAN POOR LEADER ACTING AS COUNSEL, DEFENDING A MEMBER OF AN ASSOCIATION UNDER THREAT OF EJECTMENT FROM HER DWELLING PLACE? B.                 WHETHER OR NOT THE APPELLATE COURT ERRED  IN NOT FINDING THE ALLEGED LIBELOUS LETTER AS ONE OF THOSE FALLING UNDER THE PURVIEW OF PRIVILEGE (sic) COMMUNICATION?

 C.                 WHETHER OR NOT THE APPELLATE COURT ERRED IN NOT FINDING THAT:   THE PETITIONER CAN NOT BE MADE TO ACCEPT FULL RESPONSIBILITY THAT WHAT HE DID IS A CRIME?[6]

 The Office of the Solicitor General filed its Comment in behalf of the People

and respondent filed his own Comment praying for the affirmance of the CA decision. As required by us, the parties submitted their respective memoranda.

 The principal issue for resolution is whether or not petitioner is guilty of the

crime of libel.In his Memorandum, petitioner claims that: the CA failed to apply the ruling

in People v. Velasco[7] that “if the act/matter charged as libelous is only an incident in [an] act which has another objective, the crime is not libel;” when he made his reply to respondent’s letter to Mrs. Quingco making a demand for her to vacate the premises, his objective was to inform respondent that Mrs. Quingco is one of the recognized tenants of the Rodriguez estate which is claiming ownership over the area of Brgy. Manggahan, Pasig City, and petitioner is the attorney-in-fact of the administrator of the Rodriquez estate; communication in whatever language, either verbal or written of  a lawyer under obligation to defend a client’s cause is but a privileged communication; the instant case is a qualified privileged communication which is lost only by proof of malice, however, respondent failed to present actual proof of malice; the existence of malice in fact may be shown by extrinsic evidence that petitioner bore a grudge against the offended party, or there was ill will or ill feeling between them which existed at the time of the publication of the defamatory imputation which were not at all indicated by respondent in his complaint; contrary to the findings of the CA, there was justifiable  motive in sending such a letter which was to defend the vested interest of the estate and to abate any move of respondent to eject Mrs. Quingco.

 Petitioner further argues that if the words used in the libelous letter-reply

would be fully scrutinized, there is justification for the use of those words, to wit: “lousy but inutile threatening letter…using carabao English” was due to the fact that the demand letter was indeed a threatening letter as it does not serve its purpose as respondent’s  client has no legal right over the property and respondent did not file the ejectment suit; that respondent  is just making a mockery out of Mrs. Quingco, thus he is stupid; that the words “Yours in Satan name” is only a complementary greeting used in an ordinary communication letter, which is reflected to the sender but not to the person being communicated and which is just the reverse of saying “Yours in Christ”.    

We deny the petition.Article 353 of the Revised Penal Code defines libel as a public and

malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

 For an imputation to be libelous, the following requisites must concur:  (a) it

must be defamatory; (b) it must be malicious; (c) it must be given publicity;   and (d) the victim must be identifiable.[8]

 The last two elements have been duly established by the

prosecution.  There is publication in this case.  In libel, publication means making the defamatory matter, after it is written, known to someone other than the person against whom it has been written.[9]  Petitioner’s subject letter-reply itself states that the same was copy furnished to all concerned. Also, petitioner had dictated the letter to his secretary.  It is enough that the author of the libel complained of has communicated it to a third person.[10]   Furthermore, the letter, when found in the mailbox, was open, not contained in an envelope thus, open to public.

 The victim of the libelous letter was identifiable as the subject letter-reply

was addressed to respondent himself. We shall then resolve the issues raised by petitioner as to whether the

imputation is defamatory and malicious.  In determining whether a statement is defamatory, the words used are

to be construed in their entirety and should be taken in their plain, natural and ordinary meaning as they would naturally be understood by persons reading them, unless it appears that they were used and understood in another sense.[11]

 

For the purpose of determining the meaning of any publication alleged to be libelous, we laid down the rule in Jimenez v. Reyes,[12] to wit:

In Tawney vs. Simonson, Whitcomb & Hurley Co. (109 Minn., 341), the court had the following to say on this point:  “In determining whether the specified matter is libelous per se, two rules of construction are conspicuously applicable:  (1)  That construction must be adopted which will give to the matter such a meaning as is natural and obvious in the plain and ordinary sense in which the public would naturally understand what was uttered.  (2)  The published matter alleged to be libelous must be construed as a whole.” 

In applying these rules to the language of an alleged libel, the court will disregard any subtle or ingenious explanation offered by the publisher on being called to account.  The whole question being the effect the publication had upon the minds of the readers, and they not having been assisted by the offered explanation in reading the article, it comes too late to have the effect of removing the sting, if any there be, from the words used in the publication.[13]

 

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Gauging from the above–mentioned tests, the words used in the letter dated August 18, 1995 sent by petitioner to respondent is defamatory. In using words such as “lousy”, “inutile”, “carabao English”, “stupidity”, and “satan”, the letter, as it was written, casts aspersion on the character, integrity and reputation of respondent as a lawyer which exposed him to ridicule. No evidence aliunde need be adduced to prove it.  As the CA said, these very words of petitioner have caused respondent to public ridicule as even his own family have told him: “Ginagawa ka lang gago dito.”[14]      

 Any of the imputations covered by Article 353 is defamatory; and, under the

general rule laid down in Article 354, every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown. Thus, when the imputation is defamatory, the prosecution need not prove malice on the part of petitioner (malice in fact), for the law already presumes that petitioner’s imputation is malicious (malice in law).[15]  A reading of petitioner’s subject letter-reply showed that he malevolently castigated respondent for writing such a demand letter to Mrs. Quingco. There was nothing in the said letter which showed petitioner’s good intention and justifiable motive for writing the same in order to overcome the legal inference of malice.  

 Petitioner, however, insists that his letter was a private communication made

in the performance of his moral and social duty as the attorney-in-fact of the administrator of the Rodriguez estate where Mrs. Quingco is a recognized tenant and to whom respondent had written the demand letter to vacate, thus in the nature of a privileged communication and not libelous.  

We are not persuaded.Article 354 of the Revised Penal Code provides:

 Art. 354.         Requirement for publicity.─ Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1.         A private communication made by any person to another in the performance of any legal, moral, or social duty; and

2.         A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. Clearly, the presumption of malice is done away with when the defamatory

imputation is a qualified privileged communication. In order to prove that a statement falls within the purview of a qualified

privileged communication under Article 354, No. 1, as claimed by petitioner, the following requisites must concur: (1) the person who made the communication had a legal, moral, or social duty to make the communication, or at least, had an interest to protect, which interest may either be his own or of the one to whom it is made; (2) the communication is addressed to an officer or a board, or superior, having some interest or duty in the matter, and who has the power to furnish the protection sought;

and (3) the statements in the communication are made in good faith and without malice.[16]  

 While it would appear that the letter was written by petitioner out of his social

duty to a member of the association which he heads, and was written to respondent as a reply to the latter’s demand letter sent to a member, however, a reading of the subject letter-reply addressed to respondent does not show any explanation concerning the status of Mrs.Quingco and why she is entitled to the premises as against the claim of respondent’s client. The letter merely contained insulting words, i.e, “lousy” and “inutile letter usingcarabao English”, “stupidity”, and “satan”, which are totally irrelevant to his defense of Mrs. Quingco’s right over the premises. The words as written had only the effect of maligning respondent’s integrity as a lawyer, a lawyer who had served as legal officer in the Department of Environment and Natural Resources for so many years until his retirement and afterwards as consultant of the same agency and also a notary public. The letter was crafted in an injurious way than what is necessary in answering a demand letter which exposed respondent to public ridicule thus negating good faith and showing malicious intent on petitioner’s part.

Moreover, the law requires that for a defamatory imputation made out of a legal, moral or social duty to be privileged, such statement must be communicated only to the person or persons who have some interest or duty in the matter alleged, and who have the power to furnish the protection sought by the author of the statement.[17] A written letter containing libelous matter cannot be classified as privileged when it is published and circulated among the public.[18]  In this case, petitioner admitted that he dictated the letter to one of her secretaries who typed the same and made a print out of the computer.[19] While petitioner addressed the reply-letter to respondent, the same letter showed that it was copy furnished to all concerned. His lack of selectivity is indicative of malice and is anathema to his claim of privileged communication.[20] Such publication had already created upon the minds of the readers a circumstance which brought discredit and shame to respondent’s reputation.   

Since the letter is not a privileged communication, malice is presumed under Article 354 of the Revised Penal Code. The presumption was not successfully rebutted by petitioner as discussed above.  

Thus, we find that the CA did not commit any error in affirming the findings of the trial court that petitioner is guilty of the crime of libel. 

An appeal in a criminal case throws the entire case for review and it becomes our duty to correct any error, as may be found in the appealed judgment, whether assigned as an error or not.[21]  We find that the award of P20,000.00 as compensatory damages should be deleted for lack of factual basis.  To be entitled to actual and compensatory damages, there must be competent proof constituting evidence of the actual amount thereof.[22]  Respondent had not presented evidence in support thereof.

 Article 355 of the Revised Penal Code penalizes libel by means of writings

or similar means with prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

 

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The courts are given the discretion to choose whether to impose a single penalty or conjunctive penalties; that is, whether to impose a penalty of fine, or a penalty of imprisonment only, or a penalty of both fine and imprisonment.

 In Vaca v. Court of Appeals,[23] where petitioners therein were convicted of

B.P. 22 which provides for alternative penalties of fine or imprisonment or both fine and imprisonment, we deleted the prison sentence imposed upon petitioners and instead ordered them only to pay a fine equivalent to double the amount of the check. We held:

Petitioners are first-time offenders. They are Filipino entrepreneurs who presumably contribute to the national economy. Apparently, they brought this appeal, believing in all good faith, although mistakenly, that they had not committed a violation of B.P. Blg. 22. Otherwise, they could simply have accepted the judgment of the trial court and applied for probation to evade prison term.  It would best serve the ends of criminal justice if in fixing the penalty within the range of discretion allowed by §1, par. 1, the same philosophy underlying the Indeterminate Sentence Law is observed, namely, that of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness with due regard to the protection of the social order.[24]

 In the subsequent case of Lim v. People,[25] we did the same and deleted the

penalty of imprisonment and merely imposed a fine for violation of B.P. 22, concluding that such would best serve the ends of criminal justice.

Adopting these cases, we issued Administrative Circular No. 12-2000. On February 14, 2001, we issued Administrative Circular 13-2001 which modified Administrative Circular No. 12-2000 by stressing that the clear tenor of Administrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. 22.

 While Vaca case is for violation of B.P. 22, we find the reasons behind the

imposition of fine instead of imprisonment applicable to petitioner’s case of libel. We note that this is petitioner’s first offense of this nature.  He never knew respondent prior to the demand letter sent   by the latter to Mrs. Quingco who then sought his assistance thereto. He appealed from the decision of the RTC and the CA in his belief that he was merely exercising a civil or moral duty in writing the letter to private complainant. In fact, petitioner could have applied for probation to evade prison term but he did not do so believing that he did not commit a crime thus, he appealed his case. We believe that the State is concerned not only in the imperative necessity of protecting the social organization against the criminal acts of destructive individuals but also in redeeming the individual for economic usefulness and other social ends.[26] Consequently, we delete the prison sentence imposed on petitioner and instead impose a fine of six thousand pesos.

 This is not the first time that we removed the penalty of imprisonment and

imposed a fine instead in the crime of libel.  In Sazon v. Court of Appeals,[27] petitioner was convicted of libel and was meted a penalty of imprisonment and fine; and upon a petition filed with us, we affirmed the findings of libel but changed the penalty imposed to a mere fine.

 WHEREFORE, the decision of the Court of Appeals is

hereby AFFIRMED with the MODIFICATIONS that, in lieu of imprisonment, the penalty to be imposed upon the petitioner shall be a fine of Six Thousand (P6,000.00) Pesos with subsidiary imprisonment in case of insolvency. The award of compensatory damages is DELETED.    

SO ORDERED.

OGIE DIAZ, vs   PEOPLE OF THE PHILIPPINES,                                         Respondent. 

For our resolution is the instant Petition for Review on Certiorari assailing the Decision[1] of the Court of Appeals (Eleventh Division) dated March 15, 2002, in CA-G.R. CR No. 22545.                   On October 16, 1992, the Office of the City Prosecutor of Manila filed with the Regional Trial Court, Branch 2, Manila an Information for libel against Manny Pichel and Ogie Diaz (Ogie Frias in real life), petitioner.  The Information, docketed as Criminal Case No. 92-1113377, reads:

         That on or about December 28, 1991, in the City of Manila, Philippines, the said accused being then the Managing Editor and writer, respectively of Bandera, a newspaper of general circulation, conspiring and confederating together and mutually helping each other, with the malicious purpose of impeaching the integrity, honor and reputation of one FLORINDA BAGAY, and with the evident intent of exposing her to public interest, hatred, contempt, and ridicule, did then and there willfully, unlawfully, and feloniously write and publish, or cause to be written and published in the movie section of said newspaper an article which reads in part as follows:

           Ilang beses na nakaladkad ang pangalan ng isang Miss S sa buhay ni Philip Henson ang lalaking mahilig makipagsex sa asawa. Nasulat na sa ibang tabloid na limang beses diumanong ginalaw ni Philip ang babaing kine-claim na “nabuntis ako ni Philip.”           Dahil sa pahayag na yon ay nagpaliwanang at nagbigay pa ng detalye si Philip. Nagpa-interbyu siya sa ilang piling reporters.           At muli, babanggitin lang namin ang kanyang mga pahayag tungkol sa pagkakasangkot niya sa buhay ni Miss S.           Inamin ni Philip na limang beses niyang ginalaw si Miss S.  Pero hindi ko pinasok ang akin sa ano niya dahil siya rin ang may ayaw.

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           Ang sabi niya kasi sa akin, isa siyang malinis na babae at hindi siya basta-basta nagpapaganuon. So ang ginawa namin, ipit method.           Yung ipitin niya iyong akin sa dalawa niyang hita kunwari sa ano niya nakapasok habang nagpa-pump ako.           Siya pa nga ang nagturo sa akin ng iba’t ibang posisyon, e yung helicopter at saka ang galing niyang bumlow job. Sanay na sanay siya.           Kahit itanong nyo pa kay Ray Ravelo. Nagalaw din siya ni Rey, pahayag ni Philip at kami mismo ang nakarining ng mga linyang iyon sa isa naming pag-uusap sa Jaloux Disco.

            In which words and phrases, which were used by many people, the said accused meant and intended to convey as in fact, they meant and conveyed false and malicious imputations that the said Florinda Bagay is a sexual pervert and possesses lascivious and immoral habits, the accused well knowing that said imputations are devoid of truth and without foundation in fact whatsoever, highly libelous and offensive to the good name, character, and reputation of the said Florinda Bagay.            Contrary to law.

                   Upon being arraigned on June 8, 1993, petitioner Ogie Diaz and his co-accused Pichel, assisted by counsel, pleaded not guilty.  After the pre-trial, the case was heard on the merits.                   Florinda Bagay, complaining witness, testified that she is a graduate of medical secretarial course.  She tried her luck in the movies under the guidance of her godmother, Mila Parawan, a writer covering the entertainment industry.  Florinda adopted and used “Patricia Santillan” as her screen name.                   During her brief stint in the movies, she met Philip Henson, an aspiring bit player.  A whirlwind romance between them followed and on June 16, 1988, they started living together.  On March 9, 1991, she gave birth to a girl she named Maria Briana Bagay.   By that time, her relationship with Philip Henson ended.           Florinda claimed she was the “Miss S” alluded to in petitioner’s column “Pakurot” considering that her screen name is “Patricia Santillan.”                   One Nonette Lim called her attention to the article and she felt embarrassed.  Mila Parawan showed her the item.  Her family and neighbors also read it.  As a result, she was forced to stop her studies as a medical technology student at the United Doctors’ Medical Center. 

Florinda further testified that at the time the article came out, she and Philip were no longer living together.                    Mila Parawan also took the witness stand and corroborated Florinda’s testimony.  She further testified that after Philip and Florinda parted ways, her former

press relations officer, who used the nom de plume “Isko Peta,” wrote an item entitled “Ibinulgar namin ang babaeng inanakan ni Philip Henson” which appeared in the December 2, 1991 issue of Artista Magazine. Philip believed that Florinda released their story to the press.  He then caused the publication of the libelous article against her.                  

Mila Parawan added that Florinda came from a well respected family in their community. Thus, she could not have done the acts being imputed to her.

 On cross-examination, Mila Parawan stated she was certain the “Miss S”

referred to in the article is Florinda because petitioner and Pichel, her good friends, told her that “Miss S” is her “alaga” (ward).

 Pichel testified that he had been a journalist covering show business for the

past 21 years. He denied having met or known the complaining witness.  He also denied being the editor of Bandera.  He was only its lay-out artist, a part time job.

 Petitioner Ogie Diaz admitted that while he wrote the column “Pakurot”

where the alleged libelous statements appeared, however, he did not know the complaining witness or “Miss S.”  The source of his article was Philip Henson.

 The defense also presented as witness two movie journalists – Ernie Pecho

and Mario Bautista.  Both had more than 50 years covering the entertainment industry.

 Pecho testified that he has never heard the screen name “Patricia

Santillan”; that reading the article in question would not give the reader any idea that “Miss S” is “Patricia Santillan”; and that in the movie world, the letter “S” refers to “shabu,” not to a person.

 Bautista, for his part, stated that he has never heard of any actress or

starlet named “Patricia Santillan.”  After reading the article, it never came to his mind that “Miss S” is one “Patricia Santillan.”

 Douglas Quijano, a long-time line producer and talent manager, testified

that in his many years of managing movie and TV stars, he could not recall an actress named “Miss S.”  He has never heard of “Patricia Santillan.”

 On May 12, 1998, the trial court rendered its judgment convicting petitioner

and Pichel of the crime charged.   The dispositive portion reads:WHEREFORE, in view of the above discussion and

findings, the Court finds both accused Manny Pichel and Ogie Diaz guilty beyond reasonable doubt of the crime of libel, defined in Article 353 and penalized under Article 355 of the Revised Penal Code, as amended, and hereby sentences each of them to suffer an indeterminate penalty of SIX (6) MONTHS AND ONE (1) DAY as minimum to FOUR (4) YEARS AND TWO (2) MONTHS of prision correcional in its Minimum and Medium Periods, as maximum and to pay a fine of P3,000.00 each.

SO ORDERED. 

15

On appeal, the Court of Appeals, in its Decision, sustained the conviction of petitioner but acquitted Pichel.

 Petitioner timely filed a motion for reconsideration, but it was denied by the

appellate court in its Resolution dated August 29, 2003. Hence, the instant petition for review on certiorari. The sole issue for our resolution is whether the subject article is libelous. Article 353 of the Revised Penal Code, as amended, provides:

ART. 353. Definition of libel. – A libel is a public and malicious imputation of a crime, or of a vice, or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

  

This provision should be read in relation with Article 355 of the same Code which states:

ART. 355. Libel by means of writings or similar means. – A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party. Thus, for an imputation to be libelous, the following requisites must be

present: (a) it must be defamatory; (b) it must be malicious; (c) it must be given publicity; and (d) the victim must be identifiable.[2]  Absent one of these elements, a case for libel will not prosper.

 We find the first element present. In determining whether a statement is

defamatory, the words used are to be construed in their entirety and should be taken in their plain, natural, and ordinary meaning as they would naturally be understood by the persons reading them, unless it appears that they were used and understood in another sense.[3]  In the instant case, the article in question details the sexual activities of a certain “Miss S” and one “Philip Henson” who had a romantic liaison.   In their ordinary sense, the words used cast aspersion upon the character, integrity, and reputation of “Miss S.”   The words convey that “Miss S” is a sexual libertine with unusually wanton proclivities in the bedroom.  In a society such as ours, where modesty is still highly prized among young ladies, the behavior attributed to “Miss S” by the article in question had besmirched both her character and reputation.

 As to the element of malice, we find that since on its face the article is

defamatory, there is a presumption that the offender acted with malice. In Article 354 of the same Code, every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown.  There is malice when the author of the imputation is prompted by personal ill-will or spite and

speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed.[4]   We agree with the Court of Appeals that there was neither good reason nor motive why the subject article was written except to embarrass “Miss S” and injure her reputation.

 On the element of publication, there can be no question that the article

appeared in the December 28, 1991 issue of Bandera, a local tabloid. The last element of libel is that the victim is identified or identifiable from the

contents of the libelous article.   In order to maintain a libel suit, it is essential that the victim be identifiable, although it is not necessary that the person be named.  It is enough if by intrinsic reference the allusion is apparent or if the publication contains matters of description or reference to facts and circumstances from which others reading the article may know the person alluded to, or if the latter is pointed out by extraneous circumstances so that those knowing such person could and did understand that he was the person referred to. [5]  Kunkle v. Cablenews-American and Lyons[6] laid the rule that this requirement is complied with where a third person recognized or could identify the party vilified in the article.

 The libelous article, while referring to “Miss S,” does not give a sufficient

description or other indications which identify “Miss S.”   In short, the article fails to show that “Miss S” and Florinda Bagay are one and the same person.

 Although the article is libelous, we find that Florinda Bagay could not have

been the person defamed therein.   In Uy Tioco v. Yang Shu Wen,[7] we held that where the requirement for an identified or identifiable victim has not been complied with, the case for libel must be dismissed.

 WHEREFORE, we GRANT the petition. The challenged Decision of the

Court of Appeals in CA-G.R. CR No. 22545 is REVERSED.   Petitioner Ogie Diaz isACQUITTED of the crime of libel.  The bail on appeal posted for his temporary liberty is ordered CANCELLED.

SO ORDERED.

G.R. No. 156183             February 28, 2007NICASIO I. ALCANTARA, Petitioner vs.VICENTE C. PONCE and the PEOPLE OF THE PHILIPPINES, Respondents.

D E C I S I O NCORONA, J.:This is a petition for review on certiorari1 from a decision2 and resolution3 of the Court of Appeals (CA).In 1997, respondent Vicente C. Ponce filed a string of criminal complaints against petitioner Nicasio I. Alcantara and his family, hereafter the Alcantaras, including one for estafa against petitioner in the Makati Prosecutor’s Office docketed as I.S. No. 97-39547. In essence, respondent Ponce alleged that petitioner had swindled him out of 3,000,000 shares of Floro Cement Corporation.It was in the course of the preliminary investigation of the complaint for estafa that respondent Ponce, shortly after giving his sur-rejoinder affidavit,4 submitted to the investigating prosecutor a newsletter5 purporting to be a belated annex to the

16

affidavit. It was prefaced with the quotation "For every extraordinary fortune there is a great crime" and the text:An example is Marcos. We need not discuss this.Second example is the Alcantaras.

a) Overshipment of log; b) Land grabbing;c) Corruption of public office; d) Corporate grabbing.

The newsletter then went on to discuss SEC Case No. 2507 which, in the sur-rejoinder affidavit, respondent Ponce described as being the forefather of all the cases he had filed against the Alcantaras. In SEC Case No. 2507 which the Securities and Exchange Commission en banc decided against him, Ponce accused the Alcantaras of defrauding him of his shares in Iligan Cement Corporation.On December 3, 1997, petitioner filed a complaint for libel against respondent Ponce with the Makati Prosecutor’s Office6 in connection with the aforesaid newsletter. He claimed that: (1) the statements therein were defamatory; (2) respondent had circulated it in the Makati Prosecutor’s Office and (3) the newsletter could not be considered an annex to the sur-rejoinder because respondent had not attached it to the said affidavit but had given it thereafter.The preliminary investigation was conducted by City Prosecutor Imelda P. Saulog.1awphi1.net On March 17, 1998, Prosecutor Saulog issued a resolution7 finding probable cause for libel and recommending the filing of an information8 in court. Thereafter, the case was filed with the Regional Trial Court of Makati and raffled to Judge Tranquil Salvador of Branch 63.However, respondent Ponce filed a petition for review with the Secretary of Justice, who reversed the City Prosecutor in a resolution dated February 28, 2000.9 This reversal was based on the finding that the newsletter was a privileged communication, having been submitted to the investigating prosecutor Benjamin R. Bautista as an intended annex to respondent’s sur-rejoinder. The Secretary of Justice thus directed the withdrawal of the information.Petitioner filed a motion for reconsideration10 but it was denied.11

Petitioner elevated the matter via petition for certiorari to the CA where it was docketed as CA-G.R. SP No. 61543. In a decision dated August 29, 2002, the CA found that the Secretary of Justice committed grave abuse of discretion, set aside the latter’s resolution and directed the reinstatement of the criminal case.12 After unsuccessfully moving for reconsideration in the Department of Justice, respondent Ponce attempted to elevate the matter to the Supreme Court by way of a petition for review on certiorari. The case was docketed as G.R. No. 157105. However, we denied respondent Ponce’s motion for extension for time to file his petition13 as well as his subsequent motions for reconsideration.In the meantime, however, before CA-G.R. SP No. 61543 was decided, the Office of the Makati City Prosecutor, in deference to the resolution of the Justice Secretary, filed a motion to withdraw information, which the trial court granted on September 28, 2001.14 The trial court ruled that the absence of the essential element of publicity precluded the commission of the crime of libel. Petitioner moved for reconsideration of the withdrawal but the trial court denied the motion in an order dated March 21, 2002.15

On June 17, 2002, petitioner filed another petition for certiorari in the CA, docketed as CA-G.R. SP No. 71189. In this case, the CA rendered the assailed decision.The principal question for our consideration is whether or not the CA, in its decision in CA-G.R. SP No. 71189, gravely erred in finding that Judge Salvador had not committed grave abuse of discretion for granting the withdrawal of the information for libel against respondent Ponce.

The crime of libel, as defined in Article 353 of the Revised Penal Code,16 has the following elements:

(1) imputation of a crime, vice or defect, real or imaginary, or any act, omission, condition, status or circumstance;(2) publicity or publication;(3) malice;(4) direction of such imputation at a natural or juridical person, or even a dead person and(5) tendency to cause the dishonor, discredit or contempt of the person defamed.

The factual antecedents are undisputed. The only issue is whether or not the controversial newsletter constituted privileged communication, which would exempt it from libel.According to the Special Fifth Division of the CA:It is a settled principle in this jurisdiction that statements made in the course of judicial proceedings are absolutely privileged. This absolute privilege remains regardless of the defamatory tenor and the presence of malice if the same are relevant, pertinent or material to the cause in hand or subject of the inquiry. The lone requirement imposed to maintain the cloak of absolute privilege is the test of relevancy.In this case, a reading of the Sur-Rejoinder Affidavit, contrary to petitioner’s submission, instantly shows that there was sufficient reference to the "newsletter" which justified the Justice Secretary and respondent Judge in holding that private respondent actually intended the said article to be included as an annex attached to said pleading and that the same was merely omitted and belatedly submitted to Prosecutor Bautista during the preliminary investigation. Such "sufficient reference" is shown by the fact that the newsletter is about SEC Case No. 2507 the very same case being discussed by private respondent in pages 8 to 12 of his Sur-Rejoinder Affidavit and hence, petitioner’s claim that Annex "F" mentioned together with Annex "E", both articles showing the "devious maneuvering" of petitioner in the said case, refers to another article. And even if the supposed Exhibit "F" could refer also to that article "So The Public May Know," such circumstance will not exclude the subject "newsletter" as an intended annex to the said pleading as in fact private respondent explicitly mentioned "articles" without stating that there were only two (2) particular articles being referred or which of those articles caused to be published by his counsel.As the Justice Secretary opined and which position the respondent Judge adopted, the "newsletter" containing the defamatory statement is relevant and pertinent to the criminal complaint for estafa then under preliminary investigation. The crime of estafa involves deceit, dishonesty and other fraudulent acts. The inclusion in the Sur-Rejoinder Affidavit of the "newsletter" discussing the alleged "corporate grabbing" by petitioner will tend to support private respondent’s case of estafa against petitioner insofar as such alleged "corporate grabbing" will highlight or manifest petitioner’s propensity for dishonest dealing or fraudulent machinations. There is therefore no doubt that the subject "newsletter" is relevant and pertinent to the criminal complaint for estafa, and hence the same comes within the protective cloak of absolutely privileged communications as to exempt private respondent from liability for libel or damages.In determining the issue of relevancy of statements made in judicial proceedings, courts have adopted a liberal attitude by resolving all doubts in favor of relevancy. Thus, in People vs. Aquino, our Supreme Court has emphasized that "it is the rule

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that what is relevant or pertinent should be liberally construed to favor the writer, and the words are not to be scrutinized with microscopic intensity. The doctrine of privileged communication has a practical purpose.

xxx xxx xxxPublication in libel means making the defamatory matter, after it has been written, known to someone other than the person to whom it has been written. There is publication if the material is communicated to a third person. What is material is that a third person has read or heard the libelous statement, for "a man’s reputation is the estimate in which others hold him, not the good opinion which he has of himself." Our Supreme Court has established the rule that when a public officer, in the discharge of his or her official duties, sends a communication to another officer or to a body of officers, who have a duty to perform with respect to the subject matter of the communication, such communication does not amount to publication. Applying this rule by analogy to the present case, private respondent’s submission of the "newsletter" intended as an annex to his Sur-Rejoinder Affidavit in I.S. No. 97-39547 to Prosecutor Bautista who was then conducting the preliminary investigation in said case, does not amount to publication for the reason that the sending of such material was made specifically for the purpose of including the same as evidence in the preliminary investigation. That such submission was belatedly made does not take out the material from the absolutely privileged communication rule. Prosecutor Bautista had a legal duty to perform with respect to the subject communication, which is to consider the same along with the other evidence submitted by private respondent as complainant in I.S. no. 97-39547, in determining the existence of probable cause for the commission of the crime of estafa and that petitioner as accused-defendant therein should be tried for such offense.Under the circumstances and in the lawful exercise of private respondent’s right to present evidence in support of his accusations against petitioner in the criminal complaint for estafa, We fail to see how such submission of documentary evidence omitted from the annexes to the Sur-Rejoinder Affidavit, could amount to publication that would give rise to private respondent’s liability for a libel charge especially when there is no proof of the alleged circulation of copies of the subject "newsletter" except to the City Prosecutor’s Office of Makati wherein I.S. No. 97-39547 was then in the preliminary investigation stage. Petitioner’s feeble argument that Prosecutor Bautista remains a third person because the subject "newsletter" was never included or formally offered as evidence, hardly convinces Us to hold that there was actual publication for purpose of finding a prima facie case for libel against the private respondent. He must be reminded that the case for estafa was still at the preliminary investigation stage and there is no requirement of a "formal offer" of such documentary evidence or supporting documents to establish probable cause (citations omitted).17

Since the newsletter was presented during the preliminary investigation, it was vested with a privileged character. While Philippine law is silent on the question of whether the doctrine of absolute privilege extends to statements made in preliminary investigations or other proceedings preparatory to the actual trial, the U.S. case of Borg v. Boas18 makes a categorical declaration of the existence of such protection:It is hornbook learning that the actions and utterances in judicial proceedings so far as the actual participants therein are concerned and preliminary steps leading to judicial action of an official nature have been given absolute privilege. Of particular interest are proceedings leading up to prosecutions or attempted prosecutions for crime xxx [A] written charge or information filed with the prosecutor or the court is not libelous although proved to be false and unfounded. Furthermore, the information given to a prosecutor by a private person for the purpose of initiating a

prosecution is protected by the same cloak of immunity and cannot be used as a basis for an action for defamation. (Emphasis ours)The ruling in Borg is persuasive in this jurisdiction. We see no reason why we should not adopt it.Furthermore, the newsletter qualified as "a communication made bona fide upon any subject-matter in which the party communicating has an interest . . . made to a person having a corresponding interest or duty, although it contained [in]criminatory matter which without this privilege would be slanderous and actionable."19

While the doctrine of privileged communication can be abused, and its abuse can lead to great hardships, to allow libel suits to prosper strictly on this account will give rise to even greater hardships. The doctrine itself rests on public policy which looks to the free and unfettered administration of justice.20 It is as a rule applied liberally.21

The one obstacle that those pleading the defense of privileged communication must hurdle is the test of relevancy. Under this test, a matter alleged in the course of the proceedings need not be in every case material to the issues presented but should be legitimately related to the issues or be so pertinent to the controversy that it may become the subject of inquiry in the course of trial.22

Here, the controversial statements were made in the context of a criminal complaint against petitioner, albeit for other, separate acts involving greed and deceit, and were disclosed only to the official investigating the complaint. Liberally applying the privileged communication doctrine, these statements were still relevant to the complaint under investigation because, like the averments therein, they also involved petitioner’s alleged rapacity and deceitfulness.WHEREFORE, the instant petition is hereby DENIED and the September 13, 2002 decision and November 21, 2002 resolution of the Court of Appeals in CA-G.R. SP No. 71189 AFFIRMED.Costs against petitioner.SO ORDERED.

CRISTINELLI S. FERMIN, vs PEOPLE OF THE PHILIPPINES,

 

          Before us is a petition[1] for review on certiorari, under Rule 45 of the Rules of Court, of the Decision[2] dated September 3, 2002 and the Resolution[3] dated March 24, 2003 of the Court of Appeals (CA) in CA-G.R. CR No. 20890 entitled “People of the Philippines v. Cristenelli S. Fermin and Bogs C. Tugas.”            On complaint of spouses Annabelle Rama Gutierrez and Eduardo (Eddie) Gutierrez, two (2) criminal informations for libel[4] were filed against Cristinelli[5] S. Fermin and Bogs C. Tugas before the Regional Trial Court (RTC) of Quezon City, Branch 218.  Except for the name of the complainant, [6] the informations uniformly read – 

            That on or about the 14th day of June, 1995 in Quezon City, Philippines, the above-named accused CRISTENELLI SALAZAR FERMIN, publisher, and BOGS C. TUGAS, Editor-in-Chief of Gossip Tabloid with offices located at 68-A Magnolia Tulip St., Roxas District, Quezon City, and circulated in Quezon City and other parts of Metro Manila and the whole country, conspiring together, confederating with and mutually helping each other,

18

publicly and acting with malice, did then and there willfully, unlawfully and feloniously print and circulate in the headline and lead story of the said GOSSIP TABLOID issue of June 14, 1995 the following material, to wit: 

“MAS MALAKING HALAGA ANG NADISPALKO NILA SA STATES, MAY MGA NAIWAN DING ASUNTO DOON SI ANNABELLE” “IMPOSIBLENG NASA AMERIKA NGAYON SI ANNABELLE DAHIL SA KALAT DIN ANG ASUNTO NILA DU’N, BUKOD PA SA NAPAKARAMING PINOY NA HUMAHANTING SA KANILA MAS MALAKING PROBLEMA ANG KAILANGAN NIYANG HARAPIN SA STATES DAHIL SA PERANG NADISPALKO NILA, NAGHAHANAP LANG NG SAKIT NG KATAWAN SI ANNABELLE KUNG SA STATES NGA NIYA MAIISIPANG PUMUNTA NGAYON PARA LANG TAKASAN NIYA SI LIGAYA SANTOS AT ANG SINTENSIYA SA KANYA”

 when in truth and in fact, the accused very well knew that the same are entirely false and untrue but were publicly made for no other purpose than to expose said ANNABELLE RAMA GUTIERREZ to humiliation and disgrace, as it depicts her to be a fugitive from justice and a swindler, thereby causing dishonor, discredit and contempt upon the person of the offended party, to the damage and prejudice of the said ANNABELLE RAMA GUTIERREZ.             CONTRARY TO LAW.[7]

  

          Upon arraignment, petitioner and co-accused Bogs C. Tugas (Tugas) both pleaded “not guilty.”  Thereafter, a joint trial ensued.           After trial on the merits, the RTC of Quezon City, Branch 218, in its Joint Decision[8] dated January 27, 1997, found petitioner and Tugas guilty of libel.  The dispositive portion of the Joint Decision reads – 

            WHEREFORE, prosecution having established the guilt of the accused, judgment is hereby rendered finding CRISTENELLI S. FERMIN and BOGS C. TUGAS GUILTY beyond reasonable doubt, of libel, punishable under Art. 355 of the Revised Penal Code and sentences them to an indeterminate penalty of three (3) months and eleven (11) days of arresto mayor, as minimum, to one (1) year, eight (8) months and twenty-one (21) days of prision correccional, as maximum, for each case.             Likewise, accused Cristenelli S. Fermin and Bogs Tugas are sentenced to pay jointly and solidarily:

 a)      moral damages of:

 1.      P500,000.00 to Annabelle Rama in

Criminal Case No. Q-95-62823; and 2.      P500,000.00 to Eddie Gutierrez in

Criminal Case No. Q-95-62824; 

b)      attorney’s fees of P50,000.00. 

SO ORDERED.[9]

  

          Aggrieved, petitioner and Tugas appealed to the CA.  The appellate court, in its Decision dated September 3, 2002, affirmed the conviction of petitioner, but acquitted Tugas on account of non-participation in the publication of the libelous article.  The fallo of the Decision reads – 

WHEREFORE, judgment is hereby rendered as follows: 

1.      The appealed decision as against the accused-appellant BOGS C. TUGAS is REVERSED and SET ASIDE, and another is entered ACQUITTING him of the crime charged and ABSOLVING him from any civil liability; and

 2.      The same appealed decision as against accused-

appellant CRISTENELLI S. FERMIN is AFFIRMED, with the MODIFICATION that the award of moral damages is REDUCED toP300,000.00 for EACH offended party, and the award of attorney’s fees is DELETED.

 Costs against the appellant FERMIN. SO ORDERED.[10]

  

          The CA denied petitioner’s motion for reconsideration for lack of merit in the Resolution dated March 24, 2003.  Hence, this petition, raising the following arguments: 

I. 

THE RULING IN U.S. VS. TAYLOR, PEOPLE VS. TOPACIO AND SANTIAGO, U.S. VS. MADRIGAL AND U.S. VS. SANTOS AND THE HOLDING IN U.S. VS. OCAMPO AS CLARIFIED BY THE COURT OF APPEALS IN PEOPLE VS. BELTRAN AND SOLIVEN REQUIRING KNOWLEDGE, PARTICIPATION AND COMPLICITY BY THE

19

PUBLISHER IN THE PREPARATION AND APPROVAL OF THE LIBELOUS ARTICLE TO SUSTAIN THE LATTER’S CONVICTION FOR LIBEL ARE APPLICABLE IN THE PRESENT CASE. 

II. 

ART. 360 OF THE REVISED PENAL CODE WHICH MAKES A PUBLISHER LIABLE FOR LIBEL TO THE SAME EXTENT AS IF HE WERE THE AUTHOR THEREOF MERELY CREATES A DISPUTABLE PRESUMPTION WHICH MAY BE REBUTTED BY CONTRARY EVIDENCE. 

III. 

THE QUESTIONED ARTICLE IS NOT LIBELOUS. 

IV.THE QUESTIONED ARTICLE IS PROTECTED BY THE MANTLE

OF THE FREEDOM OF THE PRESS AND IS WITHIN THE REALM OF FAIR AND HONEST COMMENT.[11]

  

          Being interrelated, we shall discuss the first and the second issues jointly, then the third and the fourth issues together.           Petitioner posits that, to sustain a conviction for libel under Article 360 of the Revised Penal Code, it is mandatory that the publisher knowingly participated in or consented to the preparation and publication of the libelous article.  This principle is, allegedly, based on our ruling in U.S. v. Taylor,[12] People v. Topacio and Santiago,[13] U.S. v.Madrigal,[14] U.S. v. Abad Santos,[15] and U.S. v. Ocampo,[16] as purportedly clarified in People v. Beltran and Soliven.[17]  She submits that these cases were applied by the CA in acquitting her co-accused Tugas, and being similarly situated with him, she is also entitled to an acquittal.  She claims that she had adduced ample evidence to show that she had no hand in the preparation and publication of the offending article, nor in the review, editing, examination, and approval of the articles published in Gossip Tabloid.           The arguments are too simplistic and the cited jurisprudence are either misplaced or, in fact, damning.           Foremost, U.S. v. Madrigal and U.S. v. Abad Santos are not applicable to the present case.  U.S. v. Madrigal pertains to a criminal prosecution under Section 30 of Act No. 1519 for fraudulently representing the weight or measure of anything to be greater or less than it is, whereas U.S. v. Abad Santos refers to criminal responsibility under the Internal Revenue Law (Act. No. 2339).           The other cases are more in point, but they serve to reinforce the conviction of, rather than absolve, petitioner.  

          In U.S. v. Taylor, the accused was indicted under Section 6 of Act No. 277 which provides that: “Every author, editor or proprietor of any book, newspaper, or serial publication is chargeable with the publication of any words contained in any part of said book or number of each newspaper or serial as fully as if he were the author of the same.”  However, proof adduced during the trial showed that accused was the manager of the publication without the corresponding evidence that, as such, he was directly responsible for the writing, editing, or publishing of the matter contained in the said libelous article.[18]

           In People v. Topacio and Santiago, reference was made to the Spanish text of Article 360 of the Revised Penal Code which includes the verb “publicar.”  Thus, it was held that Article 360 includes not only the author or the person who causes the libelous matter to be published, but also the person who prints or publishes it.           Based on these cases, therefore, proof of knowledge of and participation in the publication of the offending article is not required, if the accused has been specifically identified as “author, editor, or proprietor” or “printer/publisher” of the publication, as petitioner and Tugas are in this case.            The rationale for the criminal culpability of those persons enumerated in Article 360 of the Revised Penal Code[19] was enunciated in U.S. v. Ocampo,[20] to wit: 

“According to the legal doctrines and jurisprudence of the United States, the printer of a publication containing libelous matter is liable for the same by reason of his direct connection therewith and his cognizance of the contents thereof.  With regard to a publication in which a libel is printed, not only is the publisher but also all other persons who in any way participate in or have any connection with its publication are liable as publishers.”

             x x x x           

In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St. Rep., 629), the question of the responsibility of the manager or proprietor of a newspaper was discussed.  The court said, among other things (pp. 782, 783):           

“The question then recurs as to whether the manager or proprietor of a newspaper can escape criminal responsibility solely on the ground that the libelous article was published without his knowledge or consent.  When a libel is published in a newspaper, such fact alone is sufficient evidence prima facie to charge the manager or proprietor with the guilt of its publication.           

“The manager and proprietor of a newspaper, we think ought to be held prima facie criminally for whatever appears in his paper; and it should be no defense that the publication was made without his knowledge or consent, x x x           

“One who furnishes the means for carrying on the publication of a newspaper and entrusts its management to

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servants or employees whom he selects and controls may be said to cause to be published what actually appears, and should be held responsible therefore, whether he was individually concerned in the publication or not, x x x. Criminal responsibility for the acts of an agent or servant in the course of his employment necessarily implies some degree of guilt or delinquency on the part of the publisher; x x x.             “We think, therefore, the mere fact that the libelous article was published in the newspaper without the knowledge or consent of its proprietor or manager is no defense to a criminal prosecution against such proprietor or manager.”             In the case of Commonwealth vs. Morgan (107 Mass., 197), this same question was considered and the court held that in the criminal prosecution of a publisher of a newspaper in which a libel appears, he is prima facie presumed to have published the libel, and that the exclusion of an offer by the defendant to prove that he never saw the libel and was not aware of its publication until it was pointed out to him and that an apology and retraction were afterwards published in the same paper, gave him no ground for exception.  In this same case, Mr. Justice Colt, speaking for the court, said:             “It is the duty of the proprietor of a public paper, which may be used for the publication of improper communications, to use reasonable caution in the conduct of his business that no libels be published.” (Wharton’s Criminal Law, secs. 1627, 1649; 1 Bishop’s Criminal Law, secs. 219, 221; People vs. Wilson, 64 Ill., 195; Commonwealth vs. Damon, 136 Mass., 441.)             The above doctrine is also the doctrine established by the English courts.  In the case of Rex vs. Walter (3 Esp., 21) Lord Kenyon said that he was “clearly of the opinion that the proprietor of a newspaper was answerable criminally as well as civilly for the acts of his servants or agents for misconduct in the management of the paper.”             This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr. Justice Foster.             Lofft, an English author, in his work on Libel and Slander, said:             “An information for libel will lie against the publisher of a paper, although he did not know of its being put into the paper and stopped the sale as soon as he discovered it.”             In the case of People vs. Clay (86 Ill., 147) the court held that – 

            “A person who makes a defamatory statement to the agent of a newspaper for publication, is liable both civilly and criminally, and his liability is shared by the agent and all others who aid in publishing it.”  

          It is worthy to note that petitioner was not only the “publisher,” as shown by the editorial box of Gossip Tabloid,[21] but also its “president” and “chairperson” as she herself admitted on the witness stand.[22]  She also testified that she handled the business aspect of the publication, and assigns editors to take charge of everything.[23]Obviously, petitioner had full control over the publication of articles in the said tabloid.  Her excuse of lack of knowledge, consent, or participation in the release of the libelous article fails to persuade.  Following our ruling in Ocampo, petitioner’s criminal guilt should be affirmed, whether or not she had actual knowledge and participation, having furnished the means of carrying on the publication of the article purportedly prepared by the members of the Gossip Reportorial Team, who were employees under her control and supervision.           Petitioner argues that Ocampo has been clarified by the CA in People v. Beltran and Soliven such that Maximo V. Soliven, as publisher of The Philippine Star, was acquitted by the appellate court in view of the lack of evidence that he knew and approved the article written by Luis D. Beltran about then President Corazon C. Aquino in the newspaper’s October 12, 1987 issue.  Petitioner submits that People v. Beltran and Soliven serves as a guide to this Court regarding the criminal liability of the publisher of the newspaper where a libelous article is published. Put differently, it appears that petitioner wants this Court to follow the CA decision and adopt it as judicial precedent under the principle of stare decisis. 

The doctrine of stare decisis, embodied in Article 8[24] of the Civil Code, is enunciated, thus:

             The doctrine of stare decisis enjoins adherence to judicial precedents.  It requires courts in a country to follow the rule established in a decision of the Supreme Court thereof. That decision becomes a judicial precedent to be followed in subsequent cases by all courts in the land.  The doctrine of stare decisis is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument.[25] (Emphasis supplied)  Unfortunately, the Beltran decision attained finality at the level of the CA.

Thus, if the CA seemingly made a new pronouncement regarding the criminal liability of a publisher under Article 360 of the Revised Penal Code, that ruling cannot bind this Court unless we purposely adopt the same.  Be that as it may, we find no compelling reason to revisit U.S. v. Ocampo; to modify it would amount to judicial legislation.  Article 360 is clear and unambiguous, and to apply People v. Beltran and Soliven, which requires specific knowledge, participation, and approval on the part of the publisher to be liable for the publication of a libelous article, would be reading into the law an additional requirement that was not intended by it. 

 

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In the same vein, we note that the CA erred in acquitting Tugas.  Tugas cannot feign lack of participation in the publication of the questioned article as was evident from his and petitioner’s Joint Counter-Affidavit,[26]  and as gleaned from his testimony before the trial court, to wit:

 WITNESS:      As editor-in-chief, I have no participation in the

writing of the questioned article and my only participation in the publication is the handling of the physical lay-outing, indication and allocation of type-size of the body of the article, before the same was printed and published in GOSSIP Tabloid.

 

Q:                    You do not deny the statements in this publication as executed by you in the counter-affidavit and sworn in before the City Prosecutor, is this correct?

A:                    Yes, that is correct. ATTY. ALENTAJAN:                         That is all for the witness, your Honor. COURT:          Do we get it right from you, if you were acting as you

were, you will not allow the said publication of this same article or same stories?

 A:                    If I were, if I was physically present, honestly I will

because if you can see the article, your Honor, it is according to our source, it is not a direct comment.

 COURT:          So whether you are there or not, [the] same article

leading to them (sic) will still find its way to come out?

 A:                    Yes, your honor.[27]

  

Tugas’ testimony, in fact, confirms his actual participation in the preparation and publication of the controversial article and his approval thereof as it was written.  Moreover, his alibi, which was considered meritorious by the CA, that he was confined at the Mother of Perpetual Help Clinic in Angeles City, is unavailing, in view of the testimony of his attending physician that Tugas’ medical condition did not prevent him from performing his work, thus –

 Q:        How would you describe the condition of the patient on June

13, 1995?A:         He is in stable condition. 

Q:        You said he was in severe pain, from your opinion, was that condition sufficient to enable him to work?

A:         Yes, in my opinion.[28]

  Q:        You said your impression of the patient was urethral colic

and this was caused by spasm?A:         Yes, sir. Q:        When you say spasm, it is not sustained, it comes every

now and then and [intermittently], it is not sustained?A:         Yes, sir. Q:        Now you said he was in stable condition?A:         Yes, sir. Q:        That means that his ailment is not life-threatening?A:         Correct. Q:        In fact, visitors were allowed to see him?A:         Yes, sir. Q:        He can also write?A:         Yes, sir. Q:        He was allowed to [receive] friends?A:         Yes, sir. Q:        According to you, he was able to work also, he is not totally

incapacitated in performing certain chores in the hospital room?

A:         No, sir. Q:        Now, prior to 7:10 o’clock in the morning of June 13, 1995,

you did not see Mr. Bogs Tugas?A:         I saw him, he was admitted at 7:00 o’clock but I saw him

before. Q:        How long before 7:10 were you able to see him?A:         That is about 2 hours. Q:        About 5:00 o’clock in the morning?A:         Yes, sir. Q:        Who was his companion when you saw him?A:         He was boarding in my place. Q:        So, you brought him to the hospital?A:         Both of us went to the hospital. 

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Q:        Which boarding house are you referring [to]?  In Angeles City?

A:         Yes, sir. Q:        Do you know that Mr. Bogs Tugas works here in Quezon

City as editor-in-chief of a newspaper tabloid?A:         Yes, sir. Q:        And some of his work is done in your boarding house?A:         I do not know about it. Q:        How did you know that he is working on his paper works

in Quezon City?  Did you see him do that?A:         I only know he goes to Manila everyday. Q:        In your boarding house, you saw him read and write?A:         Probably yes.[29]

  But, of course, we cannot reinstate the ruling of the trial court convicting

Bogs Tugas because with his acquittal by the CA, we would run afoul of his constitutional right against double jeopardy.

 Anent the third and fourth issues, petitioner argues that the subject article in

the June 14, 1995 issue of Gossip Tabloid is not libelous, is covered by the mantle of press freedom, and is merely in the nature of a fair and honest comment.  We disagree.

 The banner headlines of the offending article read: KUNG TOTOONG NAKATAKAS NA SI ANNABELLE RAMA, IMPOSIBLENG SA STATES SIYA NAGPUNTA! MAS MALAKING HALAGA ANG NADISPALKO NILA SA STATES, MAY MGA NAIWAN DING ASUNTO DU’N SI ANNABELLE!  

On the first page of the same issue of Gossip Tabloid, written in smaller but bold letters, are: 

HINDI SIYA MAKAKAPUNTA SA AMERIKA DAHIL NAPAKARAMI RIN NIYANG ASUNTONG INIWAN DU’N NOON PA, NAKAPAG-ABROAD MAN SIYA, E, PIHADONG HINDI SIYA SA AMERIKA NAGTULOY, SA AMERIKA PA KAYA SIYA MAGTATAGO, E, ILANG TAON NA RIN SIYANG INAABANGAN DU’N NG NGA KABABAYAN NATING NILOKO NIYA, IN ONE WAY OR ANOTHER?... NAAALALA PA BA NINYO ‘YUNG MGA MAMAHALING KALDERO NA IBINEBENTA NILA NOON SA AMERIKA, DU’N SILA NAGKAPROBLEMA, MILYON-MILYON ANG INVOLVED, KAYA KINAILANGAN NILANG UMUWI SA PILIPINAS NOON!

  

The rest of the article, which continued to the entire second page of the tabloid, follows – 

            Mainit na pinag-uusapan ngayon ang iba’t ibang posibilidad na maaaring gawin ni Annabelle Rama Gutierrez para lang hindi matuloy ang pag-aresto at pagkukulong sa kanya ng mga awtoridad kaugnay ng sintensiyang ipinapataw sa kanya ni Manila-RTC Judge Rodolfo Palattao.             Mula noong June 8, nabatid ng Gossip Tabloid, ay wala pang sinumang nakapagtuturo kung saan talaga naroon ang ina ni Ruffa Gutierrez na hindi pinayagang makapagpiyansa ng Branch 33 para sa pansamantala niyang kalayaan.             May mga nagpapalagay na sa pamamagitan ng tinatawag na back-door exit, ang pag-alis ng bansa sa paraang hindi na kailangan pang dumaan sa NAIA, ay nakaalis na si Annabellenoon pang nakaraang Biyernes, June 9, patungong Amerika.             Pero isang mapagkakatiwalaang source ng Gossip Tabloid ang nagsabing napaka-imposibleng sa Amerika nagtungo si Annabelle dahil doon man ay may mga nakahanda nang awtoridad na handang magkulong kay Annabelle, sakaling mapatunayang naroon nga siya.             “Hindi siya makapupunta sa Amerika dahil napakarami rin niyang asuntong iniwan doon noon pa!             “Nag-abroad man siya, e pihadong hindi siya sa Amerika nagtuloy dahil nakaabang na rin ang sangkatutak niyang maniningil du’n ngayon!             “Sa Amerika pa kaya siya magtatago, samantalang ilang taon na rin siyang inaabangan du’n ng mga kababayan nating niloko niya, in one way or another?” simula ng source ng Gossip Tabloid.             Niliwanag ng naturang source na ang dahilan ng biglaang pag-uwi ng pamilya Gutierrez sa bansa ilang taon na ang nakararaan ay may kinalaman sa malaking halagang hindi nabayaran nina Eddie at Annabelle sa ilang kababayan natin sa Amerika.             “Naaalala pa ba ninyo ‘yung mga kalderong ibinebenta noon nina Eddie at Annabelle sa States?             “Mga mamahaling kaldero ‘yun, hindi basta-basta kaldero ang ibinebenta nila du’n, kaya talagang ang ganda-ganda

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na sana ng buhay nilang mag-anak du’n hanggang sa dumating ‘yung point na sinisingil na sila nu’ng mismong kompanya ng kaldero!             “Malaki ang halagang involved, milyon-milyon, kaya nu’ng kinasuhan na sila, e kinailangan nilang umalis sa Amerika para bumalik na dito.             “Isa si Bert Leroy, Jr. sa mga Pilipinong nagkaroon ng malaking problema kina Eddie at Annabelle, alam ba n’yo yun?             “Ang ganda-ganda ng samahan nila nu’ng una sa Amerika, yumaman sila nang dahil sa mga mamahaling kaldero na ibinebenta nila, kaso, sumabit sina Eddie at Annabelle du’n sa mismong company na pinagkukunan nila ng produkto!             “Bukod sa napakarami na nilang isinabit na Pinoy sa Amerika dahil sa mga kalderong ‘yun, e sumabit pa sila nang malaking halaga sa mismong manufacturer nu’ng mga ibinebenta nilang mamahaling kaldero!             “Yun ang dahilan kung bakit bigla-biglang umuwi sa Pilipinas ang pamilya ni Eddie!             “Ang ikinakatwiran nilang mag-asawa noon, e gusto raw kasi nilang lumaking Pilipinong-Pilipino ang kanilang mga anak, pero ang totoo, e, napakalaki ng problemang iniwan nila sa Amerika!” mahabang simula ng source ng Gossip Tabloid.             Masamang-masama diumano ang loob ng mga Pilipinong kinatalo roon nina Eddie at Annabelle, lalo na si Annabelle, na bukod sa mataray na ay may kayabangan pa.             “Dati nang ganyan si Annabelle!  Mataray siya na wala sa lugar.  Nu’ng nasa Amerika pa silang mag-anak, e, ‘yun din ang madalas nilang pag-awayan du’n ni Eddie!             “Madalas silang magkagalit, kaya si Eddie, para lang makapagpalipas ng mga sama niya ng loob, e, du’n nag-i-stay sa bahay ng mga kaibigan niyang Pinoy!             “Grabe ang naging problema nila du’n, kaya wala silang choice that time kung di ang umuwi na lang sa Pilipinas!             “Ang halagang involved sa pagbebenta nila ng kaldero, e, hindi basta-basta, milyunan ‘yon!             “Kaso ‘yung pinagbebentahan nila, ‘yung halagang dapat sana, e, ibigay nila sa kompanya dahil porsiyentuhan lang naman sila du’n, nagastos nila! 

            “Nawala ang pera, at ang balita nga sa States, e, si Annabelle ang dahilan kung bakit nalubog sila noon sa utang sa States!             “Nag-casino pala si Annabelle!  Grabe raw kung magpatalo siya, kaya pati ‘yung kinita nila sa pagbebenta ng mamahaling kaldero, e, natunaw!” sabi uli ng source ng Gossip Tabloid.             Maraming Pilipino ang sinabitan doon ng mag-asawa, ayon pa sa source ng Gossip Tabloid, kaya ngayong may asunto naman si Annabelle dito sa Pilipinas ay napaka-imposibleng sa Amerika pa rin siya tatakbo.             “Paano siya magpupunta du’n para tuluyan nang manirahan, e, ang dami-dami ring Pinoy na naghihintay sa kanya du’n para maningil sa kanya?             “Alam n’yo ba, bukod sa galit na galit na sa kanila ang mga Pinoy na nandu’n, e, may mga nakaabang na ring asunto para kay Annabelle.             “So, malabong sa Amerika pa siya tumuloy ngayong napapabalitang nasa abroad siya dahil sa mga naghihintay na kaso sa kanya du’n.             “Ang alam namin, e, sa Europe nagbabalak pumunta ang pamilya ni Eddie.             “Di ba’t ilang beses nang nagpapabalik-balik du’n sina Ruffa.  Noon pa, e, pinag-aralan na nina Eddie at Annabelle ang posibilidad ng mga gagawin nila!             “Alam nila na hindi sila puwedeng mag-stay sa States dahil kalat din ang asunto nila du’n, bukod pa sa napakaraming Pinoy na huma-hunting sa kanila!             “Kaya kung totoong nakalusot na nga si Annabelle ngayon para makatakas siya sa pagkakulong, imposibleng sa States siya nagpunta!             “Mas malaking problema ang kailangan niyang harapin sa States dahil sa perang nadispalko nila, bukod pa sa asuntong iniwan nilang nakatiwangwang du’n!             “Naghahanap ng sakit ng katawan si Annabelle kung sa States nga niya maisipang pumunta ngayon para lang malusutan si Ligaya Santos at ang sintensiya sa kanya ni Judge Palattao!” madiin pang pahayag ng mapagkakatiwalaang source ng Gossip Tabloid.[30]

  

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          A libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary; or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. [31]  In determining whether a statement is defamatory, the words used are to be construed in their entirety and should be taken in their plain and ordinary meaning as they would naturally be understood by persons reading them, unless it appears that they were used and understood in another sense.[32]

 To say that the article, in its entirety, is not libelous disturbs one’s

sensibilities; it would certainly prick one’s conscience.  There is evident imputation of the crime of malversation (that the complainants converted for their personal use the money paid to them by fellow Filipinos in America in their business of distributing high-end cookware); of vices or defects for being fugitives from the law (that complainants and their family returned to the Philippines to evade prosecution in America); and of being a wastrel (that Annabelle Rama Gutierrez lost the earnings from their business through irresponsible gambling in casinos).  The attribution was made publicly, considering that Gossip Tabloidhad a nationwide circulation.  The victims were identified and identifiable.  More importantly, the article reeks of malice, as it tends to cause the dishonor, discredit, or contempt of the complainants.

 Petitioner claims that there was no malice on her part because, allegedly,

the article was merely a fair and honest comment on the fact that Annabelle Rama Gutierrez was issued a warrant of arrest for her conviction for estafa before then Judge Palattao’s court.  She even cited as proof of her lack of malice the purported absence of any ill will against complainants, as shown by the article she wrote about complainants’ daughter Sharmaine Ruffa Gutierrez in the June 15, 1995 issue of the same tabloid where she expressed her sympathy and admiration for the latter.

 Notably, however, the complainants successfully refuted the imputations

during the trial.  Complainants proved that they could return anytime to the United States of America after the publication of the article,[33] and that they remained on good terms with the manufacturing company of the cookware. [34] To the contrary, both petitioner and Tugas failed to adduce evidence to show the truth of the allegations in the article despite the opportunity to do so.

 Further worthy of mention is the admission of petitioner before the trial court

that she had very close association with then Congressman Golez and mayoralty candidate Joey Marquez, and that she would use her skills as a writer to campaign for them.  Complainant Eddie Gutierrez ran against then incumbent Golez for the congressional seat inParañaque City.  Petitioner testified in this wise –

 Q:        When you acted as writer during the campaign, as you said,

for Joey Marquez and Golez, of course you did not give your services for free to these candidates, were you paid?

A:        I was not paid, Sir. Q:        You just wanted to help them, am I correct?A:        Yes, because they are my friends, Sir. 

Q:        And you wanted them to win the election, thru your being a writer, is that correct?

A:        Yes, Sir. Q:        You were campaigning hard for Golez and Marquez, right?A:        Right, Sir. Q:        When you say hard, you wanted your candidates to win, is it

not?A:        Yes, Sir. Q:        Who was the opponent of Joey Marquez at that time?A:        The former Mayor Olivares, Sir. Q:        How about the opponent of Congressman Golez?A:        One of them is Eddie Gutierrez, Sir. Q:        And the tandem of Marquez and Golez versus the tandem

of Olivares and Eddie Gutierrez, am I correct?A:        Actually, that was the situation at that time, Sir. Q:        Of course, the tandem of Joey Marquez was working hard

to win over their opponent, is it not?A:        Whatever their problems were, I am out. Q:        As a hard campaigner, you wanted your team to win over

the other, is this correct?A:        Yes, Sir. Q:        Of course you understand what PRO work is, it includes

propaganda, is that correct?A:        I am sorry I don’t accept PR work, Sir. Q:        Do you understand PRO work?A:        Yes, Sir, I know. Q:        In propaganda, for your side, you promote it as against the

other, right?A:        Yes, Sir.[35]

  

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against complainants.  Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on her part.  Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in fact, as there was motive to talk ill against complainants during the electoral campaign.           Neither can petitioner take refuge in the constitutional guarantee of freedom of speech and of the press.  Although a wide latitude is given to critical utterances made against public officials in the performance of their official duties, or against public

25

figures on matters of public interest, such criticism does not automatically fall within the ambit of constitutionally protected speech.  If the utterances are false, malicious or unrelated to a public officer’s performance of his duties or irrelevant to matters of public interest involving public figures, the same may give rise to criminal and civil liability.[36]  While complainants are considered public figures for being personalities in the entertainment business, media people, including gossip and intrigue writers and commentators such as petitioner, do not have the unbridled license to malign their honor and dignity by indiscriminately airing fabricated and malicious comments, whether in broadcast media or in print, about their personal lives.[37]

             We must however take this opportunity to likewise remind media practitioners of the high ethical standards attached to and demanded by their noble profession.  The danger of an unbridled irrational exercise of the right of free speech and press, that is, in utter contempt of the rights of others and in willful disregard of the cumbrous responsibilities inherent in it, is the eventual self-destruction of the right and the regression of human society into a veritable Hobbesian state of nature where life is short, nasty and brutish.  Therefore, to recognize that there can be no absolute “unrestraint” in speech is to truly comprehend the quintessence of freedom in the marketplace of social thought and action, genuine freedom being that which is limned by the freedom of others.  If there is freedom of the press, ought there not also be freedom from the press?  It is in this sense that self-regulation as distinguished from self-censorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, “[W]ithout x x x a lively sense of responsibility, a free press may readily become a powerful instrument of injustice.             Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely flourishes and operates.  For we have always strongly maintained, as we do now, that freedom of expression is man’s birthright – constitutionally protected and guaranteed, and that it has become the singular role of the press to act as its “defensor fidei” in a democratic society such as ours.  But it is also worth keeping in mind that the press is the servant, not the master, of the citizenry, and its freedom does not carry with it an unrestricted hunting license to prey on the ordinary citizen.[38]

  

          In view of the foregoing disquisitions, the conviction of petitioner for libel should be upheld.            With respect to the penalty to be imposed for this conviction, we note that on January 25, 2008, the Court issued Administrative Circular No. 08-2008, entitled Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases.  The Circular expresses a preference for the imposition of a fine rather than imprisonment, given the circumstances attendant in the cases [39] cited therein in which only a fine was imposed by this Court on those convicted of libel.  It also states that, if the penalty imposed is merely a fine but the convict is unable to

pay the same, the Revised Penal Code provisions on subsidiary imprisonment should apply.           However, the Circular likewise allows the court, in the exercise of sound discretion, the option to impose imprisonment as penalty, whenever the imposition of a fine alone would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice.           In the case at bench, the Court considers the public’s speculations as to the whereabouts of Annabelle Rama Gutierrez with the issuance of the warrant of arrest after her initial conviction for estafa.  Petitioner fueled these speculations through her article.  However, her article went overboard and exceeded the bounds of fair comment.  This warrants her conviction.  Nonetheless, in light of the relatively wide latitude given to utterances against public figures such as private complainants, and consonant with Administrative Circular No. 08-2008, the Court deems it proper to modify the penalty of imprisonment to a fine in the amount of P6,000.00, with subsidiary imprisonment in case of insolvency, in each case.  But the award of moral damages for each of the private complainants in the amount of P500,000.00, as ordered by the trial court, should be restored on account of the serious anxiety and the wounded feelings suffered by complainants from the libelous article, particularly taking into account the fact that petitioner and the private complainants were on relatively good terms with each other, and complainants gave no cause or offense which could have provoked the malicious publication.                    WHEREFORE, the Decision dated September 3, 2002 of the Court of Appeals in CA-G.R. CR No. 20890 is AFFIRMED with the MODIFICATION that in lieu of imprisonment, petitioner Cristinelli S. Fermin is sentenced to pay a fine in the amount of P6,000.00, with subsidiary imprisonment in case of insolvency, in each case.  The award of moral damages, in the amount of P300,000.00 each in favor of complainants Annabelle Rama Gutierrez and Eduardo Gutierrez, is increased to P500,000.00.  Costs against petitioner.           SO ORDERED.

EDWIN TABAO  - versus - PEOPLE OF THE PHILIPPINES, 

 

  

Edwin Tabao (petitioner) seeks reconsideration of our Resolution, dated June 8, 2009, denying his petition for review on certiorari for failure to show any reversible error in the assailed Court of Appeals (CA) decision to warrant the exercise of this Court’s discretionary appellate jurisdiction, and for raising substantially factual issues.

 The evidence for the prosecution reveals the following facts: At around 10:00 p.m. of January 21, 1993, the petitioner was driving his

Toyota Corolla car bearing plate number PCH-111 along Governor Forbes corner G. Tuazon Streettowards Nagtahan when it suddenly ramped on an island divider,

26

bumping Rochelle Lanete who was crossing the street. As a result of the impact, Rochelle was thrown into the middle of the road on her back.[1] Thereafter, Leonardo Mendez’ speeding blue Toyota Corona car with plate number PES-764 ran over Rochelle’s body. Bystanders — armed with stones and wooden clubs — followed Mendez’ car until it stopped near the Nagtahan Flyover.[2] Francisco Cielo, a newspaper delivery boy, pleaded with the bystanders not to hurt Mendez. Cielo went inside Mendez’ car, sat beside him, got his driver’s license, and ordered him to move the car backwards. Mendez followed his order, but his car hit the center island twice while backing up.[3] Cielo went out of the car and approached the sprawled body of Rochelle; he and the petitioner brought Rochelle’s body inside Mendez’ car. The three of them (the petitioner, Cielo and Mendez) brought Rochelle to the UST Hospital,[4] where she died on February 6, 1993 due to septicemia secondary to traumatic injuries.[5]

 The defense presented a different version of the incident. The petitioner narrated that at around 10:00 p.m. of January 21, 1993, he

was driving along Governor Forbes corner G. Tuazon Street when his car ramped on an island at the foot of the Nagtahan Flyover. He tried to move the car backwards, but failed to do so. He alighted from his car and then saw that its two rear wheels had been elevated.[6] He returned inside his car to turn off its engine; he then noticed that many people were approaching his car.[7] He again alighted from his vehicle and saw a person lying on the road.[8] He looked at his left side and saw a car that was “running fast like a wind” pass by. He approached the person lying on the road, and noticed that she was still breathing and moaning. Afterwards, he saw Mendez’ car backing up; he carried the victim towards that car. [9] Thereafter, he, Mendez and Cielo brought the victim to the UST Hospital.[10]

 Mendez, for his part, testified that at around 9:00 to 9:30 p.m. of January

21, 1993, he left his girlfriend’s house in Blumentritt, Sta. Cruz, Manila. As he was driving along Governor Forbes corner G. Tuazon Street on his way home, he saw a vehicle that had ramped on an island divider. Suddenly, another vehicle overtook his car from the right and cut his lane. He slowed down his car when he saw a rug-like object fall from the car that overtook him, [11] and stopped when he realized that what had fallen was a person’s body. When he moved his car backwards to help this person, many people approached his car. He alighted from his car and inquired from them what had happened. The people replied that someone was run over; some of them pointed to him as the culprit. He denied having run over the victim when they tried to hurt him. The petitioner carried the victim and placed her inside Mendez’ car. Thereafter, the two of them brought the victim to the UST Hospital.[12]

 The Office of the City Prosecutor found probable cause and thereafter

charged the petitioner and Mendez with reckless imprudence resulting to homicide before the Regional Trial Court (RTC), Branch 39, Manila.[13] The RTC, in its decision[14] dated September 15, 2003, found that it was “very clear that both accused are responsible for the death of Rochelle Lanete,”[15] and convicted the two (2) accused of the crime charged. It found that the petitioner’s car first hit the victim, causing her to be thrown into the road on her back, and that Mendez’ car ran over her as she was lying down. It held that the two failed to observe the necessary precaution and due care in operating their respective vehicles, to wit: the petitioner was not attentive to his driving such that he failed to see the island divider and bumped

Rochelle; Mendez was driving his car too fast at nighttime such that he was unable to avoid running over her as her body lay prone on the street. The RTC sentenced them to suffer the indeterminate penalty of four months and one day ofarresto mayor, as minimum, to two years, 10 months and 20 days of prision correccional, as maximum. It also ordered them to pay the heirs of the victim the following amounts: (a) P478,434.12 as actual damages; (b) P50,000.00 as civil indemnity; and (c) P50,000.00 as moral damages.[16]

 The petitioner filed an appeal before the CA, docketed as CA-G.R. CR. No.

28401. The CA, in its decision[17] dated July 27, 2007, agreed with the factual findings of the RTC, and affirmed its decision with the modification that the petitioner be sentenced to suffer an indeterminate penalty of four months and one day of arresto mayor, as minimum, to four years, nine months and 10 days of prision correccional, as maximum.

           The petitioner moved to reconsider this decision, but the CA denied his motion in its resolution[18] of March 17, 2009.

 The petitioner filed before this Court a petition for review on certiorari alleging

that the courts a quo erred in convicting him of the crime charged. As earlier stated, we denied this petition for failure to show any reversible error in the assailed CA decision to warrant the exercise of our discretionary appellate jurisdiction, and for raising substantially factual issues.           The petitioner now comes to us via the present motion for reconsideration, raising the following arguments: 

I.                   THE FINDINGS OF FACTS OF BOTH THE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ARE HIGHLY SPECULATIVE, MANIFESTLY MISTAKEN AND UNSUPPORTED BY THE EVIDENCE [ON RECORD;]

 II.                [THE] COURT OF APPEALS [ERRED IN UPHOLDING

HIS] CONVICTION [ON THE BASIS OF THE] INCREDIBLE AND UNRELIABLE TESTIMONY OF x x x VICTOR SORIANO[; and]

 III.             THE [SUPREME] COURT DISREGARDED [HIS

CONSTITUTIONAL] PRESUMPTION OF INNOCENCE.[19]

  

In its Comment, the People of the Philippines, through the Office of the Solicitor General, prays that the motion be denied for being pro forma; the petitioner merely advanced the same arguments which he raised in his appellant’s brief and motion for reconsideration before the CA. 

 After due consideration, we resolve to DENY the motion. As a general rule, findings of fact of the trial court, especially when affirmed

by the CA, are binding and conclusive upon this Court; we will not normally disturb these factual findings unless they are palpably unsupported by the evidence on

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record or unless the judgment itself is based on a misapprehension of facts. [20] After a careful review of the records, we see no reason to overturn the lower courts’ factual findings that found the petitioner guilty of the crime charged.

           Reckless imprudence, generally defined by our penal law, consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. Imprudence connotes a deficiency of action. It implies a failure in precaution or a failure to take the necessary precaution once the danger or peril becomes foreseen.[21] Thus, in order for conviction to be decreed for reckless imprudence, the material damage suffered by the victim, the failure in precaution on the part of the accused, and the direct link between material damage and failure in precaution must be established beyond reasonable doubt. We are morally convinced that all three were established in this case in accordance with the required level of evidence in criminal cases. The petitioner was positively identified by an eyewitness            The fact of Rochelle Lanete’s death was stipulated during pre-trial, as well as duly established during trial.[22] What remain to be proven beyond reasonable doubt are the inexcusable lack in precaution on the part of the petitioner and the direct link of his negligence to the victim’s death. 

An eyewitness account established that the petitioner’s vehicle actually hit Rochelle Lanete. Eyewitness identification is vital evidence, and, in most cases, decisive of the success or failure of the prosecution.[23] One of the prosecution witnesses, Victor Soriano, unfortunately for the petitioner’s cause, saw the incident in its entirety; Victor thus provided direct evidence as eyewitness to the very act of the commission of the crime.[24] In his September 1, 1994 testimony, Victor positively identified the petitioner as the person who drove the car that ramped on an island divider along Governor Forbes corner G. Tuazon Street, and hit Rochelle. To directly quote from the records: 

ATTY. ALICIA SERRANO: Q:        Mr. Soriano, do you remember where were you on or about

10:00 o’clock (sic) of January 21, 1993? VICTOR SORIANO: A:        Yes, ma’am. Q:        Where were you?A:        I was at the corner of Governor Forbes and G. Tuazon. Q:        What were you doing at the corner of Governor Forbes and

G. Tuazon at that time?

A:        My sidecar was parked there because I was waiting for my wife, ma’am.

 Q:        And when you were there at the corner of G. Tuazon and

Governor Forbes at the said time and place, was there any unusual incident that happened?

A:        Yes, sir. Q:        And what was that unusual incident?A:        I saw an accident involving a speeding car which

ramped over the island and bumped a woman who was crossing the street.

 Q:        When you saw that the car ramped over the island and

hit and bumped a woman, what happened to the woman that was hit and bumped by the car which you said ramped over the island?

A:        The woman was thrown at the middle of the road on her back, ma’am.

 Q:        When you saw this woman after being hit and bumped

by the car that ramped over the island and was thrown at the middle of the road, what else happened?

             x x x x A:        The woman was no longer moving at that time when I saw

another car coming.             x x x x Q:        What else happened when you saw the car coming very fast?A:        The woman sprawled at the middle of the road was ran over

by the speeding car and that car stopped while going up to the flyover.

             x x x x Q:        You said you saw a car that ramped over the island and

that the car that ramped over the island was the car that hit and bumped the victim that was thrown at the middle of the street. Now, will you be able to identify before this court the driver of that car that ramped over the island and hit and bumped the victim?

A:        Yes, ma’am. Q:        If that driver of the car that hit and bumped the victim is

inside the courtroom, would you be able to point to him before this Honorable Court?

A:        Yes, ma’am, he is here. 

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Q:        Will you kindly point before this courtroom who is that driver of the car that hit and bumped the victim? Although, Your Honor, there was already a stipulation at the start of the pre-trial admitting that the accused Tabao is the driver of the car which ramped at the divider.

 INTERPRETER:             Witness approaching a man seated inside the

courtroom and who stood up and identified as Edwin Tabao, the accused in this case.[25] [emphases ours]

  

          On cross-examination, Victor further elaborated on what he saw of the incident: 

ATTY. ESTEBAN NANCHO: Q:        Mr. Soriano, you said that the first car ramped over the

island and bumped a woman, and as a result of that, the woman was thrown at the middle of Forbes Street. Do you confirm that?

 VICTOR SORIANO: A:        Yes, sir, that is true. Q:        And can you tell us how the woman was hit, was bumped by

the car that ramped over the island?A:        The woman was crossing the street and when she saw the

on-coming car, she tried to avoid that but the car [which] ramped over the island bumped the woman.

 Q:        In other words, the car first ramped over the island before it

hit the woman?A:        Yes, sir. Q:        What part of the car bumped the woman?A:        The bumper of the car, the left side of the bumper. Q:        What part of the body of the victim was hit by the car?A:        Her left side of the body. Q:        Are you saying that the victim was facing the car when the

car bumped her.A:        Yes, sir, she was facing the car.  She was about to avoid

that car. Q:        How was the woman thrown at the middle of Forbes Street?A:        She was thrown backwards. 

Q:        And what part of the body of the victim first hit the pavement?

A:        The back of her head.             x x x x Q:        And you said after the woman was thrown at the middle of

the street[,] another speeding car ran over the body of the woman?

A:        Yes, sir.             x x x x Q:        Now, from the time the body of the victim was thrown at the

middle of the street, how much time had lapsed when the second car ran over the body of the victim?

A:        Not more than one minute. When I saw the car, it was a little bit far then I saw the car running very fast. It did not take more than a minute.

             x x x x Q:        Now, did you point at any person gathered at the scene of

the accident that it were (sic) the 2 accused who were responsible for the accident?

A:        I told Cielo about that and I told him that whoever brought the victim to the hospital is the one who ran over the victim.[26]

  

          The petitioner nonetheless claims that Victor is not a credible witness due to inconsistencies between his affidavit and court testimony. He harps on the fact that Victor declared in his affidavit that the petitioner’s car first hit Rochelle before it ramped on an island divider; while he testified in court that the petitioner’s vehicle ramped on the island divider before hitting the victim.

 We find these arguments unmeritorious. Discrepancies and/or inconsistencies between a witness’ affidavit and

testimony in open court do not impair credibility as affidavits are taken ex parte and are often incomplete or inaccurate for lack or absence of searching inquiries by the investigating officer.[27] At any rate, Victor was able to sufficiently explain the discrepancies between his affidavit and court statements. Victor reasoned out that the secretary who typed his affidavit made a mistake; and explained that he signed the affidavit despite the inaccuracies in paragraph 2 because the secretary told him, “kasi ho magugulo ang naimakinilya na.”[28] Accordingly, when Victor informed his lawyer during the first day of the hearing about the inaccuracy, the latter told him to state the truth regardless of what was written in his affidavit.

 The general rule – that contradictions and discrepancies between the

testimony of a witness and his statements in an affidavit do not necessarily discredit him – is not without exception, as when the omission in the affidavit refers to a very

29

important detail of the incident that one relating the incident as an eyewitness would not be expected to fail to mention, or when the narration in the sworn statement substantially contradicts the testimony in court.[29]  In the present case, we see no substantial contradiction in Victor’s affidavit and in his court statements as he declared in both that he saw the petitioner’s car ramp on the island divider and bump Rochelle. As to whether the car ramped on the center island before or after it bumped the victim does not detract from the fundamental fact that Victor saw and identified the petitioner as the driver of the car that ramped on the island divider and hit Rochelle. As earlier discussed, Victor sufficiently explained this inconsistency during the trial. 

Victor, who stood only seven meters from the incident, clearly and in a straightforward manner described how the petitioner’s car had bumped the victim. We thus see no reason to overturn the lower courts’ finding regarding Victor’s credibility, more so since the petitioner did not impute any ill motive that could have induced Victor to testify falsely.  The  fundamental and settled rule is that the trial court's assessment regarding the credibility of witnesses is entitled to the highest degree of respect and will not be disturbed on appeal, especially when the assessment is affirmed by the CA.

 The positive identification in this case, coupled with the failure of the defense

to impute any ill-motive on the eyewitness, to our mind, works to dispel reasonable doubt on the fact that the petitioner’s car had in fact hit Rochelle. The eyewitness account provides the necessary link between the petitioner’s failure to exercise precaution in operating his vehicle and Rochelle Lanete’s death. The petitioner failed to exercise precaution in operating his vehicle            The right of a person using public streets and highways for travel in relation to other motorists is mutual, coordinate and reciprocal.[30] He is bound to anticipate the presence of other persons whose rights on the street or highway are equal to his own.[31] Although he is not an insurer against injury to persons or property, it is nevertheless his duty to operate his motor vehicle with due and reasonable care and caution under the circumstances for the safety of others as well as for his own.[32]

 The petitioner repeatedly admitted that as he drove his vehicle on his way

home from work on January 21, 1993, he did not notice the island divider at the foot of the Nagtahan Flyover. As a result, his car ramped on the island so that both its rear wheels became “elevated” from the road and he could no longer maneuver the vehicle.[33] The petitioner even testified that his car had to be towed.[34]  Later, during cross-examination, he admitted that all four wheels of his car, not just the two rear wheels mentioned in his earlier testimony, lost contact with the ground.[35]  The entire vehicle, therefore, ended up on top of the island divider.  He puts the blame for the ramping and, essentially, his failure to notice the island on the darkness of nighttime and the alleged newness of the island.[36]

           To our mind, the fact that the petitioner’s entire vehicle ended up ramped on the island divider strongly indicates what actually happened in the unfortunate incident.   The vehicle could not have ended up in that condition had the petitioner

been driving at a reasonable speed. We are not persuaded by the petitioner’s rather simplistic account that mere darkness, coupled with the traffic island’s alleged newness, caused his car to veer off the traffic trajectory of Governor Forbes Street and to end up jumping on top of the traffic island intended to channel vehicular traffic going to the Nagtahan Flyover.           A motorist is expected to exercise ordinary care and drive at a reasonable rate of speed commensurate with all the conditions encountered,[37] to enable him to keep the vehicle under control and, whenever necessary, to put the vehicle to a full stop to avoid injury to others using the highway.[38] It has not escaped our notice that the intersectionof Governor Forbes Street and G. Tuazon Street is adjacent to the vicinity of the incident.  A driver approaching an intersection is generally under duty, among others, to keep and maintain his vehicle under control so he can, if needed, stop at the shortest possible notice.[39] Ordinary or reasonable care in the operation of a motor vehicle at an intersection would naturally require more precaution than is necessary when driving elsewhere in a street or highway.[40]

           The fact that the petitioner was driving near the Governor Forbes Street and G. Tuazon Street intersection gives rise to the expectation that he would drive at a speed that anticipated — or would have anticipated — that other persons are on the road, whether as pedestrians or as motorists. The facts show, however, that the petitioner was driving his car at an inappropriate speed for a vehicle crossing an intersection. Otherwise, he should have been able to put his vehicle to a complete stop or, at the very least, at a speed that would have prevented his car from climbing entirely on top of the island divider.  That the petitioner’s entire vehicle landed on top of the traffic island — body, chassis, four wheels and all — sufficiently indicates his speed at that time. The force that propels an entire car off the street and on top of a traffic island could only have been inordinate speed, or at least speed beyond that of a motorist coming from or going to an intersection.  In short, the ramping of his vehicle demonstrably indicates to us that the petitioner failed to observe the duty to maintain a reasonable speed.  We therefore believe Victor’s testimony that the petitioner was speeding when he bumped the victim.[41]

           We are likewise not persuaded by the petitioner’s claim that darkness and the traffic island’s alleged newness justify his failure to notice the island.  The petitioner’s admission that he did not notice the traffic island is in itself an indication of his failure to observe the vigilance demanded by the circumstances. Ultimately, it shows the criminal recklessness for which he has been convicted. The record shows that pedestrians were present in the vicinity at the time of the incident. The CA even pointed out that the vicinity is near residential areas, while we pointed out its proximity to an intersection. The darkness and these circumstances should have caused the petitioner to be more alert and more vigilant, to say nothing of slowing his car down. Newly constructed or not, the island divider should have received the petitioner’s due attention. His bare allegation that the island lacked markers or reflectorized marks is likewise not persuasive. As the trial court correctly observed, many other vehicles passed the same road that night but only the petitioner failed to notice the island divider.[42] We thus find the trial court to be correct when it held that the petitioner failed to exercise precaution in operating his vehicle on the night of the incident. The location of the victim’s injuries vis-à-vis

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the position of the petitioner’s vehicle  

The petitioner insists that his car could not have bumped the victim because his car was coming from the right side (i.e., from España), while the victim was hit on the left side of her body. He argues that if the victim was on her way to her house on Mabini Street coming from the corner of Governor Forbes Street and G. Tuazon Street (where she alighted), then the responsible vehicle could only have come from the left (i.e., from Nagtahan) as only those vehicles coming from this direction could hit the victim on the left side of her body. He further claims that his car had no dents or scratches.           The petitioner’s arguments are misleading.           Dr. Sergio Alteza, Jr., the attending physician, testified that the victim suffered multiple injuries “compatible and consistent with a vehicular accident.” [43] He did not state that the injuries suffered by the victim were only on her left side. In fact, a perusal of Dr. Alteza’s initial medical report shows that the victim suffered injuries both on the left and right sides of her body. In addition, Dr. Floresto Arizala, Jr., the National Bureau of Investigation medico-legal officer who conducted an autopsy on Rochelle’s body, confirmed that the victim suffered injuries on various parts of her lower right and left extremities as a result of the initial or primary impact. 

The petitioner relies heavily on Dr. Alteza’s statement allegedly declaring that the victim’s injuries on her lower left leg and left thigh were the “primary impact” injuries. However, this statement was not based on the actual incident but on Dr. Alteza’s presumptions. For clarity, we reproduce Dr. Alteza’s testimony:

 ATTY. SERRANO: Q:        Now doctor, you said that these injuries you found x x x on

the body of the victim are compatible and consistent with a vehicular accident. Would you tell this court how these injuries were sustained?

             x x x x             Doctor, what would be the possible situation when you

use compatible and consistent vehicular accident? DR. ALTEZA: A:        If I would be allowed to make some presumptions, if the

patient was standing up at that time he was hit by a vehicle, I would presume that the primary impact injuries, injuries hit first by the vehicle are the injuries of the lower leg and the left thigh considering that the height of the injuries are approximately the height of the bumper as well as the hood of the car.

 Q:        There are several kinds of vehicles, doctor?

A:        Yes, Your Honor, I was thinking of a car. Now, after being hit by [a] car, under normal condition, the victim is normally thrown at the surface of the street.[44] [emphases ours]

  From this exchange, we find it clear that Dr. Alteza was merely making a

hypothetical statement that a person who is presumed to be standing when hit by a vehicle would suffer primary impact injuries on his lower leg and left thigh. He never declared that Rochelle suffered primary impact injuries on her lower left extremities. At any rate, it was not improbable for the victim to have been hit on the left side of her body as Victor testified that she (victim) tried to avoid the petitioner’s car, and was in fact facing the car when she was hit.

 We likewise do not believe the petitioner’s claim that his vehicle was not

involved in the incident due to the absence of dents or scratches. As the petitioner himself admitted, his vehicle was not subjected to any investigation after the incident. Moreover, the pictures of the car, presented by the petitioner in court, were taken long after the incident and after a repair had already been done to the vehicle. There was therefore no way of verifying petitioner’s claim that his car did not have any dent or scratch after the incident. At any rate, the absence of a dent or a scratch on the petitioner’s car, assuming it to be true, does not conclusively prove his non-participation in the incident. The absence of any dent or scratch is influenced by several factors: the type of paint, the speed of the car, the points of impact, and the material used on the car’s exteriors. Weight of expert testimony         

The petitioner likewise claims that the CA violated Section 49, Rule 130 of the Revised Rules of Court when it disregarded the testimony of defense witness Police Senior Inspector Danilo Cornelio who testified that the petitioner’s car could not have bumped the victim because the latter’s body was not thrown in line with the car, but on its side. The petitioner argues that P/Sr. Insp. Cornelio is highly qualified in the field of traffic accident investigation, and as such, his statements are “backed-up by [the] principles of applied physics, engineering, and mathematics.”[45]

           The petitioner’s arguments fail to convince us.

 Section 49, Rule 130 of the Revised Rules of Court states that the opinion of

a witness on a matter requiring special knowledge, skill, experience or training, which he is shown to possess, may be received in evidence. The use of the word “may” signifies that the use of opinion of an expert witness is permissive and not mandatory on the part of the courts.  Allowing the testimony does not mean, too, that courts are bound by the testimony of the expert witness.  The testimony of an expert witness must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it, and is for the court to adopt or not to adopt depending on its appreciation of the attendant facts and the applicable law.  It has been held of expert testimonies:

             Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they may choose upon such testimonies in accordance with the facts of the case. The

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relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which deserve to illuminate his statements.  The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effect. The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of abuse of discretion.[46]

  We emphasize that P/Sr. Insp. Cornelio was not an eyewitness to the

incident; his testimony was merely based on the Traffic Accident Report prepared by SPO4 Edgar Reyes who himself did not witness the incident. At any rate, nowhere in P/Sr. Insp. Cornelio’s testimony did he conclusively state that the petitioner could not have been involved in the incident. For clarity, we reproduce the pertinent portions of P/Sr. Insp. Cornelio’s testimony:

 ATTY. SERRANO: Q:        When you said in line with the motor vehicle that bumped

the victim, is it that when a victim is bumped by the motor vehicle, the victim would be thrown in line with the vehicle?

 P/SR. INSP. CORNELIO: A:        Yes, Ma’am. Usually, that is the outcome of the incident. Q:        He cannot be thrown sideward?A:        Maybe if another vehicle would hit the pedestrian because

that also happened. When a pedestrian is hit by a vehicle and another vehicle hit the pedestrian, it will be thrown somewhere else.

 Q:        Mr. Witness, you are testifying as far as the vehicle of

Tabao is concerned. You said that the line of vehicle that bumped the victim would be in line. Are you telling us that it is not possible that when the vehicle of Tabao hit the victim, the victim would be thrown sidewards?

A:        Yes, Ma’am. Q:        What do you mean, yes, Ma’am?

A:        He can be thrown either in front of the vehicle that hit the victim or slightly offset with the car of Tabao. It [may be] but not far from the side.

 Q:        But he would be thrown sidewise[,] not frontal?A:        Slightly to the side but not considerable length of distance

away from the car. It is sidewards. Q:        In your Mathematics, do you consider that if a vehicle is

speeding fast, he could have thrown anything that is bumped by that vehicle far away from the vehicle?

A:        Yes, Ma’am, possible. Q:        So, that probability is also possible aside from the

probability that you said the victim is thrown in line or in front. So, you are now saying it could be said that the victim can be thrown sidewise?

A:        It [may be] thrown sidewise. As I said [a while] ago, it might be slightly offset with the vehicle that hit the pedestrian but not too far from the side of the bumping vehicle.

 Q:        So, it could depend on the speed of the vehicle that bumped

the object bumped?A:        Yes, Ma’am. Q:        Whether it is forward or sidewise, the distance of the

object thrown would depend on the speed of the vehicle that bumped?

A:        Yes, Ma’am. Q:        So, if it is speeding, it could be thrown farther?A:        Yes, Ma’am.           Q:        Sidewise or frontal?A:        It should be frontal. Q:        You said it could be thrown sidewise do I take it

correct[ly,] it can be thrown sidewise also?A:        Maybe. As I have said [a while] ago, it [may be] slightly

offset with the line of the vehicle.             x x x x Q:        So, do we take it from you that your basis only of telling the

court that Tabao is not in [any way] responsible is the distance of the victim from the car that bumped?

A:        I am not saying categorically that the car of Tabao is not responsible. But as I can see in the sketch presented today in this Honorable Court, the position of the victim is too far from the vehicle of Mr. Tabao. If I were the

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investigator in this particular case, I should indicate the measurement of the victim from the car and this sketch [does] not indicate the distance.

                       Q:        Now, failure of the investigator to indicate the distance,

would that show that it was not Tabao who bumped the victim?

A:        I cannot say categorically that the car of Tabao indeed, hit the victim. Because the distance is very significant in this sketch for proper evaluation.

             x x x x Q:        So, it cannot be said that when an object is bumped by

a vehicle, it will be thrown forward. It will all depend on which portion of the bumper hit by object bumped?

A:        Yes, Ma’am.[47]

  

From the foregoing, it is clear that P/Sr. Insp. Cornelio did not discount the possibility that the victim could have been thrown on the side. He likewise admitted that the location of an accident victim in relation to the vehicle would also depend on the speed of the vehicle and the point of impact. The defense of denial 

The petitioner denied that his car had bumped the victim, and insists that he just saw the victim’s body sprawled on the road after his car had already ramped on the island divider.           The petitioner’s defense of denial must crumble in light of Victor’s positive and specific testimony. We reiterate that the petitioner, aside from merely alleging the inconsistency between Victor’s affidavit and court testimony, did not impute any ill motive on Victor’s part to falsely testify against him. The petitioner, in fact, admitted that he and Victor did not know each other prior to the incident. We have consistently held that positive identification of the accused, when categorical and consistent, and without anyshowing of ill-motive on the part of the testifying eyewitness, should prevail over the denial of the accused whose testimony is not substantiated by clear and convincing evidence.[48] A denial is negative evidence. To be believed, it must be buttressed by strong evidence of non-culpability; otherwise, the denial is purely self-serving and has no evidentiary value.[49]

 We significantly note that the petitioner claimed for the first time  in his

present petition that he saw a “rug-like thing”[50] being thrown out of a passing car as he was about to alight from his car after turning off its engine; he later discovered that the thing thrown was a person’s body. He reiterated this claim in his motion for reconsideration before this Court. This assertion was a clear rip-off from his co-accused Mendez’ version who likewise claimed to have seen the same thing.  To our mind, the modification of the petitioner’s story was a belated attempt to cover up his failure to convincingly explain the presence of the victim’s slumped body on the road near his car and a last-ditch effort to exculpate himself. Nowhere in his affidavit or

earlier court testimonies, or even in his previous pleadings with the lower courts, did he ever state that a passing car had thrown a “rug-like thing” [51] on the street. The petitioner’s sudden change of story at this stage of the proceedings casts doubt on the veracity of his claim.

 In addition, we are baffled by the petitioner’s act of frequenting the hospital

after the incident. Amanda Ycong, the victim’s aunt, testified that she saw the petitioner “several times” at the hospital when the victim was confined there; but would immediately leave whenever he saw members of the victim’s family. We find it highly unusual for a person who allegedly had no participation in the incident to be overly concerned with the victim’s well-being. What puzzles us even more is why the petitioner would evade members of the victim’s family whenever he was seen by them at the hospital.

 All told, we see no reason to overturn the lower courts’ findings of fact and

conclusions of law finding the petitioner guilty beyond reasonable doubt of the crime charged.

 WHEREFORE, premises considered, the Court resolves to DENY the

motion with FINALITY, no substantial argument having been adduced to warrant the reconsideration sought. Costs against the petitioner.

 SO ORDERED.

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