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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 123696

March 11, 2004

PEOPLE OF THE PHILIPPINES, appellee,
vs.
RICKY HIJADA y VILLANUEVA, DANILO ALCERA y ALFON and RODELIO VILLAMOR y
RABANES,appellants.

DECISION

AZCUNA, J.:
Appellants Ricky Hijada y Villanueva (Ricky), Danilo Alcera y Alfon (Dante) and Rodelio Villamor y
Rabanes (Rodel) were charged with the crime of Robbery with Multiple Homicide before the
Regional Trial Court of Quezon City,1 under the following information:2
The undersigned accuses RICKY HIJADA Y VILLANUEVA @ RICKY, DANILO ALCERA Y ALFON @
DANTE and RODELIO VILLAMOR Y RABANES @ RODEL of the crime of ROBBERY WITH
MULTIPLE HOMICIDE committed as follows:
That on or about the 14th day of September, 1992 in Quezon City, Philippines, the abovenamed accused, conspiring together, confederating with and mutually helping one another,
with intent to gain and by means of violence and intimidation against persons, did then and
there, willfully, unlawfully and feloniously rob the residence of FILONILA TUPAZ located at
No. 32 Pantaleona Street, Don Jose Subd., Brgy. Commonwealth, Quezon City in the
following manner, to wit: on the date and place aforementioned, accused, pursuant to their
conspiracy, went to the residence of said FILONILA TUPAZ and then and there hogtied
FILOMENA GARCIA and ROSEMARIE DIAZ and thereafter carted away the following
personal properties, to wit:
1. Six (6) blank Checks of BPI
2. Two (2) Units Vacuum cleaner (Red & blue)
3. One (1) White garnet necklace
4. Two (2) pcs. Gold filled necklace

5. One (1) Cal. .38 revolver, 2 inches barrel, paper weight, bearing SN-510960 with
six (6) live ammunitions
6. One (1) brown holster for snub-nose cal. .38
7. Assorted coins of different denominations amounting to P36.00
8. One (1) unit tire gauge
of still undetermined value and belonging to said FILONILA TUPAZ, and on the occasion of
said robbery, the accused pursuant to their conspiracy, did then and there willfully, unlawfully
and feloniously stab FILONILA TUPAZ, FILOMENA GARCIA and ROSEMARIE DIAZ,
thereby inflicting upon them serious and grave wounds which were the direct and immediate
cause of their death, to the damage and prejudice of the heirs of said FILONILA TUPAZ,
FILOMENA GARCIA and ROSEMARIE DIAZ in such amount as may be awarded to them
under the provisions of law.
Evidence for the Prosecution
SPO1 Rolando Aguilar3 testified that he was the police investigator who took the statement of
Dante on September 19, 1992. Rolando Aguilar said that before taking down Dante’s statement, he
duly informed the latter of his constitutional rights to remain silent and to have counsel present.
Dante signified that he was waiving these rights and executed a document to this effect. Thereafter,
Dante gave a statement confessing to having robbed the house of Filonila Tupaz. He also implicated
Ricky and Rodel as having taken part in the robbery and pointed to Ricky as the person who killed
the three victims.
Rolando Aguilar, however, admitted that both the waiver and the confession were not signed in the
presence of counsel as required by the Constitution, although there were a number of media men
who witnessed the whole interrogation proceedings.
Furthermore, Rolando Aguilar identified the items that were found in the possession of appellants
upon their arrest, which included those purportedly taken from the house of Filonila Tupaz, as well
as the weapon allegedly used in stabbing the victims. He also identified pictures taken from the
crime scene.
SPO4 Juan S. Aguilar4 testified that he was the head of the investigation team which apprehended
appellants. He said that on September 17, 1992, Rolando Aguilar handed to him a cartographic
sketch of one of the suspects. He then showed the sketch to an informant who positively identified
the person in the drawing as Ricky.
Through another informant, the police were able to obtain the address of Ricky in Marikina. They
proceeded to that address where they met Jeffrey Ambrosio who told them that he knew something
about the crime and was willing to cooperate on the condition that he be first placed under arrest and
brought to the police station so that his neighbors won’t see that he spoke to the police.
In the police station, Jeffrey Ambrosio said that Ricky attempted to recruit him for the robbery. Jeffrey
Ambrosio also gave the addresses of Dante and Rodel whom he identified as participants in the
robbery. The police and Jeffrey Ambrosio went first to the residence of Rodel in Capitol Hills, Quezon
City where they chanced upon Dante and Rodel leaving the house. A brief chase then ensued that
ended in the apprehension of the said two appellants.

The police recovered from Dante and Rodel a necklace and a traveling bag. Inside the traveling bag
were a .38 revolver, some religious chains, 36 pieces of coins with different denominations, six
booklets of blank checks, assorted goods and their baon. Most of those items were later identified as
the victims’ stolen belongings.
According to Juan Aguilar, after being arrested, Dante and Rodel voluntarily disclosed that they were
on their way to 8th Street in New Manila to meet Ricky. The police immediately proceeded to the
aforesaid location, spotted Ricky walking along 8th Street and placed him under arrest. The police
recovered from Ricky one necklace and six rounds of live ammunition.
Ricky was thereafter brought to his residence in Tondo where he surrendered a bladed weapon
stained with blood. They returned to New Manila, to the house of Ricky’s parents, where Ricky’s
father surrendered to the police two vacuum cleaners, allegedly taken from the house of Filonila
Tupaz.
SPO1 Orlando Gacote,5 who was part of the team led by Juan Aguilar, testified substantially to
corroborate the latter’s testimony.
Mrs. Trinidad Albarracin,6 sister of Filonila Tupaz and niece of Filomena Garcia, identified the items
recovered from appellants as those belonging to the victims.7 She also testified that Ricky was once
hired by Filonila Tupaz to fix the roof of the latter’s house.
Alvin Monares8 was the witness who gave a physical description of Ricky, on which the police
based the suspect’s cartographic sketch. He testified that he was employed as a painter-helper by
the neighbor of Filonila Tupaz. On two occasions during the month of July, he saw Ricky on the
rooftop of the house of Filonila Tupaz. He also declared that in the morning of September 14, 1992,
at around 8:30, he saw all three appellants outside the residence of Filonila Tupaz, with Ricky
standing in front of the house while Dante and Rodel sat beside a gutter.
Dr. Emmanuel Aranas,9 a doctor of the Philippine National Police Crime Laboratory, testified that he
examined the two knives that were turned over to him by Rolando Aguilar. He reported that one knife
was found to be stained with human blood while the other resulted in negative findings.
Jeffrey Ambrosio10 was a former co-worker of Ricky, Dante and Rodel at a construction site. He
testified that on September 12, 1992, he was in the company of appellants mixing cement from 8:00
a.m. until 5:00 p.m. At 5:00 p.m., appellants went the house of Rodel, which was just a meter away
from the construction site, to drink gin. He, on the other hand, decided to work overtime.
After about an hour, Jeffrey Ambrosio joined appellants and had a shot of gin. He heard the three
planning to enter the house of a certain Tupaz where only two old ladies and a child resided. He said
that he was invited to join their scheme, but he declined the proposal and immediately left.
It was in the morning of September 15, 1992 that he saw the three appellants again. When asked by
the prosecution if he observed anything unusual about them, he stated that he saw Ricky wearing a
white shirt stained with blood.
Jeffrey Ambrosio further testified that a few days later, Juan Aguilar came to see him to inquire if he
had any knowledge about the crime that occurred in the house of Tupaz. He answered that he knew
something about it and so he was brought to the police station for questioning.
Evidence for the Defense

Victor Hijada11 is the father of Ricky. Briefly, he testified that on September 18, 1992, at about 5:00
a.m., he was awakened by his wife who told him that there were armed men inside their house
looking for Ricky. He then met with these men and protested regarding their presence in his house.
The men told him that they were looking for Ricky because of his participation in the robbery at the
house of Filonila Tupaz. Victor Hijada informed the armed men that Ricky does not live with them
anymore. Nevertheless, the men continued searching for about twenty minutes but failed to find
anything. He further testified that they failed to show any document of their authority to enter and
search his house.
Appellant Dante12 testified that he was in Laguna on September 14, 1992 and left for Manila only on
September 18, 1992. Dante went to see Rodel to inquire about any job available for him. Upon
arriving at the residence of Rodel, he first went to the kitchen to eat. Later, he saw a group of armed
men arrive. After talking to Rodel, the armed men started beating up Rodel. When Dante
approached them in order to intercede, he too was beaten up. He said that the armed men were
asking them for the whereabouts of a certain Bianong Bulag, whom they did not know.
In addition, he denied knowing Ricky prior to his arrest on September 18, 1992 and further claimed
that he was never assisted by counsel all throughout his investigation.
Ricarda Alcera13 is the mother of Dante. She testified that on September 14, 1992 her son was in
Laguna farming and harvesting rice. She further claimed that Dante stayed in Laguna until
September 18, 1992 when he left to visit his uncle in Quezon City.
Appellant Rodel’s14 testimony substantially corroborated the testimony of Dante that in the morning
of September 18, 1992, a group of armed men came to his house asking him about a person by the
name ofBianong Bulag. When he told them that he does not know that person, the armed men
started beating him up. Dante tried to intervene, but he was also beaten up.
He and Dante were then brought to a talahiban15 where the armed men tried to make them confess
to the killing that occurred in the house of Filonila Tupaz. When they denied any participation in the
said crime, they were brought to the police station and again subjected to torture. Rodel said that
after three days of torture, he was forced to admit the crime. Rodel declared, however, that less than
two months later, he executed a document repudiating this confession. Rodel also testified that he
saw Ricky only for the first time that day in the police station.
Appellant Ricky16 testified that he was in Bicol from September 1, 1992 until September 16, 1992.
He stated that he left for Manila sometime on September 19, 1992 because his child was sick and
needed to be brought to the hospital. Thereafter, he went to see his father in New Manila so that he
could borrow some money for his child’s medicine.
He recounted that, while walking along 8th Street in New Manila, two owner-type jeeps stopped in
front of him. He was forced to board one of the jeeps and was brought to an old house. He was then
tortured and accused of being a killer. Thereafter, he was taken to the police precinct where he was
confined for four days and underwent continuous interrogation.
Teresita Pena17 is the mother-in-law of Ricky. She testified that Ricky was in Bagamanoc,
Catanduanes from September 1, 1992 up to September 16, 1992, which was the day Ricky left for
Manila. To corroborate her claim, Teresita Pena presented a certification18 issued by the barangay
captain of their residence attesting to the presence of Ricky in Catanduanes on those dates.
After all the evidence was presented, the trial court rendered its decision on January 16, 1996, with
the following dispositive portion:19

WHEREFORE, and after a careful study of the evidence for the prosecution and the defense,
this Court is of the opinion, and so holds, that the guilt of accused RICKY HIJADA y
VILLANUEVA @ Ricky, DANILO ALCERA y ALFON @ Dante, and RODELIO VILLAMOR y
RABANES @ Rodel appears duly proven beyond a reasonable doubt of the crime of robbery
with multiple homicide and accordingly hereby sentences all said accused to suffer the
extreme penalty of DEATH, with the accessories of article 40 of the Revised Penal Code;
each to indemnify the respective heirs of the deceased Filonila M. Tupaz, Filomena P. Garcia
and Rosemarie C. Diaz in the sum of Fifty Thousand Pesos (P50,000.00); and to pay the
proportionate costs.
SO ORDERED.
Two Appellant’s Briefs were filed. One was filed by Atty. Rolando L. Villones for all appellants, which
presented the following assigned errors for consideration:20
1. THE COURT A QUO ADMITTED AND CONSIDERED EVIDENCE THAT MAY BE
CONSIDERED AS "FRUIT OF THE POISONOUS TREE."
2. THE COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE
DOUBT.
3. THE COURT ERRED IN METING OUT THE EXTREME PENALTY OF DEATH.
The other brief, filed by the Public Attorney’s Office for Dante, assigned the following errors: 21
1. THE COURT A QUO GRAVELY ERRED IN RELYING ON THE EXTRAJUDICIAL
CONFESSION OF ACCUSED-APPELLANT DANILO ALCERA (EXHIBIT "A")
NOTWITHSTANDING THE FACT THAT IT IS INADMISSIBLE IN EVIDENCE.
2. THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT
DANILO ALCERA GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
ROBBERY WITH MULTIPLE HOMICIDE.
3. ON THE ASSUMPTION THAT ACCUSED-APPELLANT DANILO ALCERA COMMITTED
THE ACTS COMPLAINED OF, THE COURT A QUO GRAVELY ERRED IN IMPOSING THE
DEATH PENALTY IN THE CASE AT BAR.
Both briefs have assigned substantially similar errors. Hence, the Court will resolve them jointly.
The admissibility of the prosecution’s evidence
Appellants argue that the extrajudicial confession of Dante is inadmissible in evidence because it
was secured in violation of his constitutional rights. They point to the fact that his extrajudicial
confession was made without the assistance of counsel. Although the police claimed that Dante had
waived his constitutional rights, they argue that the waiver was invalid because it was not made in
the presence of counsel, as shown from the testimony of Rolando Aguilar: 22
Court: Proceed
Q.

After informing them of their constitutional right … what did Danilo Alcera do?

A.

He signed that he was willing to make a voluntary waiver, Your Honor.

Q.

In signing … was he assisted by counsel?

A.

No, Your Honor.

The Office of the Solicitor General, however, posits that while confessions extracted without the
assistance of counsel are useless in a court of law, there are instances where the constitutional
procedures do not apply. InPeople v. Cabiles,23 for instance, the Court admitted into evidence an
uncounselled verbal confession of an accused to the victim. In People v. Andan,24 the conviction of
the accused for rape with homicide was affirmed based on an uncounselled confession to the mayor
and the news reporters. The Court therein considered the confession as one that was made to a
confidant and not to a law enforcement officer and, thus, not deemed in response to any
interrogation. In People v. Domatay,25 the Court held that the accused’s confession to a radio
reporter is not covered by the prohibition because the bill of rights are primarily addressed to the
State and does not concern itself with the relation between private individuals. Lastly, in People v.
Faco,26 it was held that uncounselled statements made to a policeman, not as a police officer but as
a trusted confidant of the accused, are admissible.
The Court finds appellants’ argument meritorious.
The right to counsel during custodial investigation is guaranteed by no less than Section 12 (1) of
Article III of the Constitution:27
Sec. 12 (1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel.
In the present case, when Dante was brought to the police station, he was already a suspect and
was, therefore, under custodial investigation. He was, thus, entitled to the rights guaranteed by the
constitution.28 Though he waived these rights in writing, such was not made in the presence of
counsel, as admitted by the police. This makes the waiver invalid and the confession inadmissible.
The cases cited by the Solicitor General do not apply. In those cases the accused made verbal
admissions before private persons or before persons acting in their private capacity. Here, Dante
was made to execute a written extrajudicial confession, upon the instructions of his police
interrogators, which confession is being entered into evidence.
While the Court finds the extrajudicial confession to be inadmissible, the rest of the evidence
obtained after appellants’ arrests should remain on record. Appellants claim that they were arrested
without any valid warrant of arrest or search warrant. Although this lapse in procedure was admitted
by the police,29 appellants can no longer impugn the validity of their arrest or the search that they
were subjected to, for it has been consistently ruled by the Court that any objection against an arrest
or the procedure in the acquisition by the court of jurisdiction over the person of an accused should
be made at or before the arraignment. Otherwise, the objection is deemed waived. 30
Appellants herein have entered their "plea of not guilty" and the records are devoid of any objection
that was ever raised by them prior to arraignment and trial. As a natural consequence, the searches
conducted on appellants, being an incident to the arrests, should be upheld. 31

Guilt of Appellants
The perpetrators of the crime saw to it that no one was left alive who could testify against them.
Hence, no eyewitness could be presented who would directly link appellants to the crime.
Nevertheless, the Court has held that circumstantial evidence is sufficient for conviction if: a) there is
more than one circumstance; b) the facts from which the inferences are derived are proven; and c)
the combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt.32
After a carefully reading of the entire records of the case, the Court finds that the foregoing
conditions have been satisfied. The following are the factual circumstances correctly found by the
trial court to be duly established:
a. Appellants had planned to rob the house of Filonila Tupaz two days before the crime was
committed.
b. Appellants were seen in front of the house of Filonila Tupaz in the morning of September
14, 1992, the day the crime was committed.
c. Ricky was seen the day following the commission of the crime wearing a blood-stained
shirt.
d. The stolen items were recovered from the possession of appellants.
Appellants failed to show any strong or cogent reason to convince the Court to disregard the trial
court’s findings. They have assailed as incredible the testimonies of the prosecution witnesses. But
against these bare assertions is the settled rule that the findings and conclusions of the trial court on
the credibility of witnesses enjoy a badge of respect, absent any showing of palpable mistake or
grave abuse of discretion.33
As for the defense of alibi, appellants were positively identified by Alvin Monares as loitering in front
of the house of Filonila Tupaz that same morning when the crime was committed. It is standing
doctrine that alibi cannot prevail over the positive identification of the accused by a credible
witness.34
Proper Penalty
While the Court considers the guilt of appellants to have been duly proven, the trial court erred in
imposing upon them the supreme penalty of death.
The crime of Robbery with Homicide is a special complex crime punishable under Article 294 of the
Revised Penal Code with reclusion perpetua to death. However, at the time the crime was
committed, on September 14, 1992, the death penalty could not be imposed in view of Article III,
Section 19(1) of the Constitution.
Subsequently, the penalty of reclusion perpetua to death for Robbery with Homicide was again
imposed in 1993 with the enactment of Republic Act No. 7695.35 The provisions of Republic Act No.
7695, however, cannot be applied retroactively, for that would violate Article III, Sec. 22 of the
Constitution stating that no ex post facto law shall be enacted, as well as Article 21 of the Revised
Penal Code.36 Consequently, the single indivisible penalty ofreclusion perpetua should be imposed
on each of appellants.37

Furthermore, there is no crime of Robbery with Multiple Homicide under the Revised Penal Code.
The crime is Robbery with Homicide notwithstanding the number of homicides committed on the
occasion of the robbery38 and even if murder, physical injuries and rape were also committed on the
same occasion.39
This brings the Court to the civil liability. The Court sustains the indemnification ordered by the trial
court to the heirs of the victims in the amount of P50,000 each. 40 In addition to the indemnity, each of
appellants should also be ordered to pay the heirs of the victims P50,000 as moral damages,
pursuant to Article 2219 of the Civil Code.41 Appellants’ aforesaid liability is solidary. As no evidence
was presented regarding the actual damages, the Court awards none.
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Quezon City,
Branch 84, in Criminal Case No. Q-92-35539, is hereby MODIFIED. Appellants Ricky Hijada y
Villanueva, Danilo Alcera y Alfon and Rodelio Villamor y Rabanes are found guilty beyond
reasonable doubt of the special complex crime of Robbery with Homicide and are sentenced to
suffer the penalty of reclusion perpetua. Appellants are each further ordered to pay jointly and
severally the heirs of Filonila M. Tupaz, Filomena P. Garcia and Rosemarie C. Diaz the amounts of
P50,000 as civil indemnity and P50,000 as moral damages. No costs.
SO ORDERED.
Davide, Jr., C.J., Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., and Tinga, JJ., concur.
Puno, J., on leave.
Panganiban, J., on official leave.

SECOND DIVISION
[G.R. No. 109595. April 27, 2000]
CRISTETA CHUA-BURCE, petitioner, vs. COURT OF APPEALS AND
PEOPLE OF THE PHILIPPINES, respondents.
DECISION
QUISUMBING, J.:
Subject of the present appeal by certiorari is the decision dated November 27,
1992 of the Court of Appeals in CA-G.R. CR No. 12037, (a) affirming in
toto the trial courts decision finding petitioner guilty of estafa, and (b) denying
her Motion for Reconsideration in a Resolution dated March 25, 1993. The
Regional Trial Court, Calapan, Oriental Mindoro, Branch 40, rendered a joint
decision finding petitioner guilty of estafa under Article 315, par. 1 (b) of the
Revised Penal Code, in Criminal Case No. C-2313, and likewise found

petitioner liable for the amount of P150,000.00 in Civil Case No. R-3733. Only
the criminal case is before us for review. h Y
The uncontroverted facts, as found by the Court of Appeals, are as follows:
On August 16, 1985, Ramon Rocamora, the Manager (of Metropolitan Bank
and Trust Company, Calapan Branch, Oriental Mindoro) requested Fructuoso
Peaflor, Assistant Cashier, to conduct a physical bundle count of the cash
inside the vault, which should total P4,000,000.00, more or less. During this
initial cash count, they discovered a shortage of fifteen bundles of One
Hundred Pesos denominated bills totalling P150,000.00. The One Hundred
Peso bills actually counted was P3,850,000.00 as against the balance of
P4,000,000.00 in the Cash in Vault (CIV) Summary Sheet, or a total shortage
of P150,000.00. The next day, to determine if there was actually a shortage, a
re-verification of the records and documents of the transactions in the bank
was conducted. There was still a shortage of P150,000.00.
The bank initiated investigations totalling four (4) in all. The first was by
Ramon Rocamora, the Manager. The second was by the banks internal
auditors headed by Antonio Batungbakal. Then, the banks Department of
Internal Affairs conducted an independent investigation. Thereafter, the
National Bureau of Investigation (NBI) came in to investigate. All of these
investigations concluded that there was a shortage of P150,000.00, and the
person primarily responsible was the banks Cash Custodian, Cristeta ChuaBurce, the herein accused. Jksm
On November 4, 1985, unable to satisfactorily explain the shortage of
P150,000.00, the accuseds service with the bank was terminated.
To recover the missing amount, Metropolitan Bank and Trust Company
(Metrobank) filed a Civil Case for Sum of Money and Damages with
Preliminary Attachment and Garnishment docketed as Civil Case No. R-3733
against petitioner and her husband, Antonio Burce. Esm
Prior to the filing of the Answer, the following Information for Estafa was filed
against petitioner:

"That on or about the 16th day of August 1985, and for a period
prior and subsequent thereto, the above-named accused, with
unfaithfulness or abuse of confidence, and with intent to defraud,
did then and there wilfully, unlawfully, and feloniously, in her
capacity as Cash Custodian of the Metrobank, Calapan Branch,
take from the Banks Vault the amount of ONE HUNDRED FIFTY
THOUSAND (P150,000.00) PESOS, which is under her direct
custody and/or accountability, misappropriate and convert to her
own personal use and benefit, without the knowledge and consent
of the offended party, despite repeated demands for her to
account and/or return the said amount, she refused and failed,
and still fails and refuses to the damage and prejudice of the
Metrobank, Calapan Branch, in the aforementioned amount of
ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS.
Contrary to Article 315 of the Revised Penal Code.
Calapan, Oriental Mindoro, November 27, 1985."

[1]

Both civil and criminal cases were raffled to the same branch of the Regional
Trial Court of Calapan, Oriental Mindoro, Branch 40. Esmsc
Thereafter, petitioner moved for the suspension of the criminal case on the
ground of the existence of a prejudicial question, viz., that the resolution of the
civil case was determinative of her guilt or innocence in the criminal case.
The trial court, over the vehement opposition of the private and public
prosecutors, granted the motion and suspended the trial of the criminal case.
On petition for certiorari to the Court of Appeals, the appellate court ruled
that there was no prejudicial question.
[2]

[3]

[4]

Petitioner was arraigned and assisted by counsel de parte, entered a plea of
not guilty. While the trial of the criminal case was suspended, the trial of the
civil case continued. At the time of arraignment, the civil case was already
submitted for decision. Hence, during the pre-trial conference of the criminal
case, the parties agreed to adopt their respective evidence in the civil case as
their respective evidence in the criminal case. The trial court ordered the
parties to submit their written agreement pursuant to Section 4 of Rule 118 of
[5]

[6]

the Rules of Court. Thereafter, petitioner, duly assisted by her counsel, with
the conforme of the public prosecutor, entered into the following pre-trial
agreement:
[7]

[8]

"COMES NOW, the accused, assisted by counsel, and unto this
Honorable Court most respectfully submits this Pre-Trial
agreement:
1. That the evidence already adduced by the plaintiff in Civil Case
No. R-3733 will be adopted by the prosecution as its evidence in
Criminal Case No. C-2313;
2. That the evidence to be adduced by the defendant in Civil Case
No. R-3733 will also be adopted as evidence for the defense in
Criminal Case No. C-2313.
WHEREFORE, premises considered, it is prayed that the
foregoing pre-trial agreement be admitted in compliance with the
Order of this Court dated April 19, 1988.
RESPECTFULLY SUBMITTED.
Calapan, Oriental Mindoro, August 20, 1990.
CRISTETA CHUA-BURCE (sgd.)
Accused
Assisted By:
RODRIGO C. DIMAYACYAC (sgd.)
Defense Counsel
San Vicente, Calapan
Oriental Mindoro
IBP O.R. No. 292575

May 11, 1990
Quezon City
With Conformity:
EMMANUEL S. PANALIGAN (sgd.)
Prosecuting Fiscal
Pursuant to the pre-trial agreement, the public prosecutor filed a Motion to
Adopt Evidence. Both the pre-trial agreement and said Motion were granted
by the trial court.
[9]

[10]

On March 18, 1991, the trial court rendered a consolidated decision finding
petitioner (a) guilty of estafa under Article 315 (1) (b) of the Revised Penal
Code in the criminal case, and (b) liable for the amount of P150,000.00 in the
civil case. The dispositive portion of decision provides [11]

- In Criminal Case No. C-2313 WHEREFORE, the Court hereby finds the accused Cristeta ChuaBurce guilty beyond reasonable doubt of the crime of Estafa,
punishable under Art. 315, paragraph 1 (b) of the Revised Penal
Code, which imposes a penalty of prision correccional in its
maximum period to prision mayor in its minimum period but
considering that the amount involved exceeds P22,000.00, the
penalty provided for shall be imposed in its maximum period,
adding one year for each additional P10,000.00, but the total
amount not to exceed twenty years. Esmmis
Applying the Indeterminate Sentence Law, the imposable penalty
shall be one degree lower as minimum of arresto mayor with a
penalty range of One Month and One Day to Six Months, as
minimum to prision mayor in its maximum period, as maximum, or
a penalty of Six years to Twelve Years. Considering the mitigating
circumstance of voluntary surrender, the court hereby imposes
upon the accused to suffer imprisonment from SIX (6) MONTHS

of arresto mayor in its maximum period, as minimum, to EIGHT
(8) YEARS of prision mayor, in its minimum period, as maximum.
The civil liability shall not be imposed in this case due to a
separate civil action. Esmso
- In Civil Case No. R-3733 WHEREFORE, judgment is hereby rendered in favor of the
plaintiff Metrobank, ordering defendants Cristeta Chua-Burce and
Antonio Burce, spouses, to pay Metrobank the amount of
P150,000.00 representing the amount misappropriated with the
legal rate of six percent (6%) per annum from August 15, 1985
until fully paid and to pay the costs of suit.
SO ORDERED."
Petitioner seasonably appealed her conviction in the criminal case to the
Court of Appeals. Petitioner filed a separate appeal in the civil case.
In a decision dated November 27, 1992, the Court of Appeals affirmed the
trial courts decision in toto. Petitioners Motion for Reconsideration was
likewise denied. Hence, the recourse to this Court. Msesm
[12]

[13]

Petitioner raises the following issues:

[14]

1. IS THE RESULT OF POLYGRAPH EXAMINATION
ADMISSIBLE IN EVIDENCE?
2. CAN THE PRESIDING JUDGE OF THE REGIONAL TRIAL
COURT ADMIT IN EVIDENCE THE EVIDENCE WHICH WAS
ALREADY DENIED ADMISSION IN THE ORDER OF THE
FORMER JUDGE OF THE SAME COURT?
3. DOES PRIMA FACIE PRESUMPTION OF
MISAPPROPRIATION OR CONVERSION EXISTS (sic) AGAINST
THE PETITIONER WHEN THERE WERE OTHER PERSONS
WHO HAD DIRECT AND GREATER ACCESS IN THE CASH-INVAULT?

4. IS RULE 111 SECTION 2 (a) OF THE REVISED RULES ON
CRIMINAL PROCEDURE APPLICABLE IN (sic)THE CASE AT
BAR?
5. WAS THERE A VALID PROCEEDING WHEN THE FISCAL
WAS NOT ACTUALLY PRESENT AND DID NOT CONTROL AND
SUPERVISE THE PROSECUTION OF THE CASE? Exsm
In gist, (1) petitioner contends that the trial court erred in taking into account
the results of the polygraph examination as circumstantial evidence of guilt
considering the inherent unreliability of such tests, and the fact that the
previous trial judge who handled the case already ruled such evidence as
inadmissible; (2) petitioner insists that there can be no presumption of
misappropriation when there were other persons who had access to the cash
in vault; and (3) petitioner questions the validity of the trial of criminal case
considering that the pre-trial agreement dispensed with the intervention of the
public prosecutor in a full-blown trial of the criminal case. Kyle
The Office of the Solicitor General, for the State, contends that the guilt of
petitioner has been proven beyond reasonable doubt by the following facts
which were duly established during trial - first, petitioner was the cash
custodian who was directly responsible and accountable for the cash-invault. Second, the other persons who had access to the vault facilities never
used the duplicate keys to open the safety deposit boxes and the cash safe
from where the P100.00 bill denominations were located. In fact, the duplicate
keys were offered in evidence still in their sealed envelopes. Third, alterations
and superimposition on the cash-in-vault summary sheet were made by
petitioner to cover the cash shortage. Lastly, there was a valid joint trial of the
civil and criminal cases.
The crucial issues, in our mind, are (1) whether there was a valid trial of the
criminal case, and (2) whether the elements of the crime of estafa under
Article 315 (1) (b) of the Revised Penal Code were duly proven beyond
reasonable doubt. Kycalr
First, petitioner assails the validity of the proceedings in the trial court on the
ground that the public prosecutor did not intervene and present any evidence

during the trial of the criminal case. The records clearly show that the pre-trial
agreement was prepared by petitioner with the conforme of the public
prosecutor. Thereafter, petitioner filed aconsolidated memorandum
for both civil and criminal cases. Section 5 of Rule 110 requires that all
criminal actions shall be prosecuted under the direction and control of the
public prosecutor. The rationale behind the rule is "to prevent malicious or
unfounded prosecutions by private persons." The records show that the
public prosecutor actively participated in the prosecution of the criminal case
from its inception. It was during pre-trial conference when the parties agreed
to adopt their respective evidence in the civil case to the criminal case. This is
allowed under Section 2 (e) of Rule 118 of the Rules of Court which provides
that during pre-trial conference, the parties shall consider "such other matters
as will promote a fair and expeditious trial." The parties, in compliance with
Section 4 of Rule 118, reduced to writing such agreement. Petitioner, her
counsel, and the public prosecutor signed the agreement. Petitioner is bound
by the pre-trial agreement, and she cannot now belatedly disavow its
contents.
[15]

[16]

[17]

[18]

[19]

On the second issue. Petitioner was charged with the crime of estafa under
Article 315 (1) (b) of the Revised Penal Code. In general, the elements of
estafa are: (1) that the accused defrauded another (a) by abuse of confidence
or (b) by means of deceit; and (2) that damage or prejudice capable of
pecuniary estimation is caused to the offended party or third person. Deceit
is not an essential requisite of estafa with abuse of confidence, since the
breach of confidence takes the place of the fraud or deceit, which is a usual
element in the other estafas.
[20]

[21]

[22]

The elements of estafa through conversion or misappropriation under Art. 315
(1) (b) of the Revised Penal Code are:
[23]

(1) that personal property is received in trust, on commission, for
administration or under any other circumstance involving the duty
to make delivery of or to return the same, even though the
obligation is guaranteed by a bond;

(2) that there is conversion or diversion of such property by the
person who has so received it or a denial on his part that he
received it;
(3) that such conversion, diversion or denial is to the injury of
another and
(4) that there be demand for the return of the property.
Have the foregoing elements been met in the case at bar? We find the first
element absent. When the money, goods, or any other personal property is
received by the offender from the offended party (1) in trust or (2)
on commission or (3) for administration, the offender acquires both material or
physical possession and juridical possession of the thing received. Juridical
possession means a possession which gives the transferee a right over the
thing which the transferee may set up even against the owner. In this case,
petitioner was a cash custodian who was primarily responsible for the cash-invault. Her possession of the cash belonging to the bank is akin to that of a
bank teller, both being mere bank employees. Calrky
[24]

[25]

In People v. Locson, the receiving teller of a bank misappropriated the money
received by him for the bank. He was found liable for qualified theft on the
theory that the possession of the teller is the possession of the bank. We
explained in Locson that [26]

"The money was in the possession of the defendant as receiving
teller of the bank, and the possession of the defendant was the
possession of the bank. When the defendant, with grave abuse of
confidence, removed the money and appropriated it to his own
use without the consent of the bank, there was the taking
orapoderamiento contemplated in the definition of the crime of
theft."
[27]

In the subsequent case of Guzman v. Court of Appeals, a travelling sales
agent misappropriated or failed to return to his principal the proceeds of things
or goods he was commissioned or authorized to sell. He was, however, found
liable for estafa under Article 315 (1) (b) of the Revised Penal Code, and not
[28]

qualified theft. In the Guzman case, we explained the distinction
between possession of a bank teller and an agent for purposes of determining
criminal liability "The case cited by the Court of Appeals (People vs. Locson, 57
Phil. 325), in support of its theory that appellant only had the
material possession of the merchandise he was selling for his
principal, or their proceeds, is not in point. In said case, the
receiving teller of a bank who misappropriated money received by
him for the bank, was held guilty of qualified theft on the theory
that the possession of the teller is the possession of the bank.
There is an essential distinction between the possession by a
receiving teller of funds received from third persons paid to the
bank, and an agent who receives the proceeds of sales of
merchandise delivered to him in agency by his principal. In the
former case, payment by third persons to the teller is payment to
the bank itself; the teller is a mere custodian or keeper of the
funds received, and has no independent right or title to retain or
possess the same as against the bank. An agent, on the other
hand, can even assert, as against his own principal, an
independent, autonomous, right to retain money or goods
received in consequence of the agency; as when the principal
fails to reimburse him for advances he has made, and indemnify
him for damages suffered without his fault (Article 1915, [N]ew
Civil Code; Article 1730, old)." Mesm
Petitioner herein being a mere cash custodian had no juridical possession
over the missing funds. Hence, the element of juridical possession being
absent, petitioner cannot be convicted of the crime of estafa under Article 315,
No. 1 (b) of the Revised Penal Code.
[29]

WHEREFORE, the petition is hereby granted and petitioner is ACQUITTED of
the crime of estafa under Article 315 (1) (b) of the Revised Penal Code.
Petitioner is ordered RELEASED from custody unless she is being held for
some other lawful cause. No costs. Slx
SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6025

May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AMADO V. HERNANDEZ, ET AL., accused,
AMADO V. HERNANDEZ, ET AL., defendants-appellants.
----------------------------G.R. No. L-6026

May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BAYANI ESPIRITU, ET AL., accused,
BAYANI ESPIRITU and TEOPISTA VALERIO, defendants-appellants.
LABRADOR, J.:
This is the appeal prosecuted by the defendants from the judgment rendered by the Court of First
Instance of Manila, Hon. Agustin P. Montesa, presiding, in its Criminal Case No. 15841, People vs.
Amado V. Hernandez, et al., and Criminal Case No. 15479, People vs. Bayani Espiritu, et al. In
Criminal Case No. 15841 (G.R. No. L-6026) the charge is for Rebellion with Multiple Murder, Arsons
and Robberies; the appellants are Amado V. Hernandez, Juan J. Cruz, Genaro de la Cruz, Amado
Racanday, Fermin Rodillas and Julian Lumanog; Aquilino Bunsol, Adriano Samson and Andres
Baisa, Jr. were among those sentenced in the judgment appealed from, but they have withdrawn
their appeal. In Criminal Case No. 15479 (G.R. No. L-6026) the charge is for rebellion with murders,
arsons and kidnappings; the accused are Bayani Espiritu Teopista Valerio and Andres Balsa, Jr.;
they all appealed but Andres Balsa, Jr. withdrew his appeal.
The information filed against defendants Hernandez and others in Criminal Case No. 15481 alleged:
I. That on or about March 15, 1945, and for some time before the said date and continuously
thereafter, until the present time, in the City of Manila, Philippines, and the place which they
had chosen as the nerve center of all their rebellious activities in the different parts of the
Philippines, the said accused, conspiring, confederating and cooperating with each other, as
well as with the thirty-one (31) defendants charged in Criminal Cases Nos. 19071, 14082,

14270, 14315 and 14344 of the Court of First Instance of Manila (decided May 11, 1951) and
also with others whose whereabouts and identities are still unknown, the said accused and
their other co-conspirators, being then high ranking officers and/or members of, or otherwise
affiliated with the Communist Party of the Philippines (P.K.P.), which is now actively engaged
in an armed rebellion against the Government of the Philippines thru act theretofore
committed and planned to be further committed in Manila and other places in the Philippines,
and of which party the "Hukbong Mapagpalaya Ng Bayan"(H.M.B.) otherwise or formerly
known as the "Hukbalahaps" (Huks), unlawfully and did then and there willfully, unlawfully
and feloniously help, support, promote, maintain, cause, direct and/or command the
"Hukbong Mapagpalaya Ng Bayan" (H.M.B.) or the "Hukbalahaps" (Huks) to rise publicly and
take arms against the Republic of the Philippines, or otherwise participate in such armed
public uprising, for the purpose of removing the territory of the Philippines from the
allegiance to the government and laws thereof as in fact the said "Hukbong Mapagpalaya Ng
Bayan" or "Hukbalahaps" have risen publicly and taken arms to attain the said purpose by
then and there making armed raids, sorties and ambushes, attacks against police,
constabulary and army detachments as well as innocent civilians, and as a necessary
means to commit the crime of rebellion, in connection therewith and in furtherance thereof,
have then and there committed acts of murder, pillage, looting, plunder, arson, and planned
destruction of private and public property to create and spread chaos, disorder, terror, and
fear so as to facilitate the accomplishment of the aforesaid purpose, as. follows, to wit:
(Enumeration of thirteen attacks on government forces or civilians by Huks on May 6, 1946,
August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June, 1946, April 28, 1949,
August 25, 1950, August 26, 1950, August 25, 1950, September 12, 1950, March 28, 1950
and March 29, 1950.)
II. That during the period of time and under the same circumstances herein-above indicated
the said accused in the above-entitled case, conspiring among themselves and with several
others as aforesaid, willfully, unlawfully and feloniously organized, established, led and/or
maintained the Congress of Labor Organizations (CLO), formerly known as the Committee
on Labor Organizations (CLO), with central offices in Manila and chapters and affiliated or
associated labor unions and other "mass organizations" in different places in the Philippines,
as an active agency, organ, and instrumentality of the Communist Party of the Philippines
(P.K.P.) and as such agency, organ, and instrumentality, to fully cooperate in, and
synchronize its activities — as the CLO thus organized, established, led and/or maintained
by the herein accused and their co-conspirators, has in fact fully cooperated in and
synchronized its activities with the activities of the "Hukbong Mapagpalaya Ng Bayan"
(H.M.B.) and other organs, agencies, and instrumentalities of the Communist Party of the
Philippines (P.K.P.), to thereby assure, facilitate, and effect the complete and permanent
success of the above-mentioned armed rebellion against the Government of the Philippines.
The information filed against the defendants in Criminal Case No. 15479, Bayani Espiritu Andres
Baisa, Jr. and Teopista Valerio, alleges:
That on or about the 6th day of May, 1946, and for sometime prior and subsequent thereto
and continuously up to the present time, in the City of Manila, the seat of the government of
the Republic of the Philippines, which the herein accused have intended to overthrow, and

the place chosen for that purpose as the nerve center of all their rebellious atrocities in the
different parts of the country, the said accused being then high ranking officials and/or
members of the Communist Party of the Philippines (P.K.P.) and/or of the "Hukbong
Mapagpalaya Ng Bayan" (H.M.B.) otherwise or formerly known as the "Hukbalahaps"
(HUKS), the latter being the armed forces of said Communist Party of the Philippines; having
come to an agreement with the 29 of the 31 accused in Criminal Cases Nos. 14071, 14082,
14270, 14315, 14344 of the Court of First Instance of Manila and decided to commit the
crime of rebellion, and therefore, conspiring and confederating with all of the 29 accused in
said criminal cases, acting in accordance with their conspiracy and in furtherance thereof,
together with many others whose whereabouts and identities are still unknown up to the filing
of this information, and helping one another, did then and there willfully, unlawfully and
feloniously promote maintain, cause, direct and/or command the "Hukbong Mapagpalaya Ng
Bayan", (HMB) or the Hukbalahaps (HUKS) to rise publicly and take Arms against the
Government or otherwise participate therein for the purpose of overthrowing the same, as in
fact, the said "Hukbong Mapagpalaya Ng Bayan" or Hukbalahap (HUKS) have risen publicly
and taken arms against the Government, by then and there making armed raids, sorties and
ambushes, attacks against police, constabulary and army detachment, and as a necessary
means to commit the crime of rebellion, in connection therewith and in furtherance thereof,
by then and there committing wanton acts of murder, spoilage, looting, arson, kidnappings,
planned destruction of private and public buildings, to create and spread terrorism in order to
facilitate the accomplishment of the aforesaid purpose, as follows to wit: (Enumeration of
thirteen attacks on Government forces or civilians by Huks on May 6, 1946. August 6, 1946,
April 10, 1947, May 9, 1947, August 19, 1947, June 1946, April 28, 1949, August 25, 1950,
August 26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and March 29,
1950).
A joint trial of both cases was held, after which the court rendered the decision subject of the present
appeals.
APPEAL OF AMADO V. HERNANDEZ
After trial the Court of First Instance found, as against appellant Amado V. Hernandez, the following:
(1) that he is a member of the Communist Party of the Philippines and as such had aliases, namely,
Victor or Soliman; (2) that he was furnished copies of "Titis", a Communist publication, as well as
other publications of the Party; (3) that he held the position of President of the Congress of Labor
Organizations; (4) that he had close connections with the Secretariat of the Communist Party and
held continuous communications with its leaders and its members; (5) that he furnished a
mimeographing machine used by the Communist Party, as well as clothes and supplies for the
military operations of the Huks; (6) that he had contacted well-known Communists coming to the
Philippines and had gone abroad to the WFTU conference Brussels, Belgium as a delegate of the
CLO, etc. Evidence was also received by the court that Hernandez made various speeches
encouraging the people to join in the Huk movement in the provinces.
The court also found that there was a close tie-up between the Communist Party and the Congress
of Labor Organizations, of which Hernandez was the President, and that this Congress was

organized by Hernandez in conjunction with other Huks, namely: Alfredo Saulo, Mariano Balgos,
Guillermo Capadocia, etc.
We will now consider the nature and character of both the testimonial as well as the documentary
evidence, independently of each other, to find out if the said evidence supports the findings of the
court.
Testimonial Evidence
Amado V. Hernandez took the oath as member of the Communist Party in the month of October,
1947, at the offices of the Congress of Labor Organizations at 2070 Azcarraga in the presence of
Guillermo Capadocia, Ramon Espiritu, Pedro Castro, Andres Balsa, etc. As a Communist he was
given the pseudonyms of Victor and Soliman, and received copies of the Communist paper "Titis".
He made various speeches on the following dates and occasions:
(1) On August 29, 1948 before the Democratic Peace Rally of the CLO at Plaza Miranda, in
which he announced that the people will soon meet their dear comrade in the person of
Comrade Luis Taruc.
(2) On September 4, 1948 he conferred with Hindu Khomal Goufar at the Escolta, at which
occasion Balgos told Goufar that the PKM, CLO and the Huks are in one effort that the PKM
are the peasants in the field and the Huks are the armed forces of the Communist Party; and
the CLO falls under the TUD of the Communist Party.
1äwphï1.ñët

(3) On October 2, 1948 he went abroad to attend the Second Annual Convention of the
World Federation of Trade Unions and after arrival from abroad a dinner was given to him by
the people of Gagalangin, at which Hernandez delivered a speech and he said that he
preferred to go with the Huks because he felt safer with them than with the authorities of the
Government.
(4) In April, 1949, he made a speech before a group of tenants in Malabon attacking the
frauds in the 1947 elections, graft and corruption in the elections and that if improvement
cannot be made by the ballots, they could be made by bullets; and enjoined the people to go
to the hills and join Luis Taruc the head of the dissidents in the Philippines.
(5) On October 2, 1949 he delivered a speech on the occasion of the commemoration of the
World Peace at the CLO headquarters at 330 P. Campa. He attacked the city mayor and
incited the people to go to Balintawak and see Bonifacio there and thereafter join four
comrades under the leadership of Luis Taruc.
(6) On October 16, 1949 he delivered a speech before a convention of the unemployed at
330 P. Campa. He asked the unemployed to approve a resolution urging the Government to
give them jobs. In conclusion he said that if the Government fails to give them jobs the only
way out was to join the revolutionary forces fighting in the hills. He further said that Mao Tse
Tung, leader of the People's Army in China, drove Chiang Kai Shek from his country, and

that Luis Taruc was also being chased by Government forces run by puppets like Quirino,
etc.
(7) On January 13, 1950 there was another meeting at 330 P. Campa. In his talk Hernandez
expressed regret that two foremost leaders of the CLO, Balgos and Capadocia, had gone to
the field to join the liberation army of the HMB, justifying their going out and becoming
heroes by fighting in the fields against Government forces until the ultimate goal is achieved.
The above evidence was testified to by Florentino Diolata who was the official photographer of the
CLO since August, 1948.
On the tie-up between the Communist Party and the CLO Guillermo Calayag, a Communist and a
Huk from 1942 to 1950, explained:
(1) The ultimate goal of the Communist Party is to overthrow the president government by
force of aims and violence; thru armed revolution and replace it with the so-called
dictatorship of the proletariat the Communist Party carries its program of armed overthrow of
the present government by organizing the HMB and other forms of organization's such as
the CLO, PKM, union organizations, and the professional and intellectual group; the CLO
was organized by the Trade Union Division TUD of the Communist Party.
(2) A good majority of the members of the Executive Committee and the Central Committee
of the CLO were also top ranking officials of the Communist Party; activities undertaken by
the TUD - the vital undertaking of the TUD is to see that the directives coming from the
organizational bureau of the Communist Party can be discussed within the CLO especially
the Executive Committee. And it is a fact that since a good majority of the members of the
Executive Committee are party members, there is no time, there is no single time that those
directives and decisions of the organizational department, thru the TUD are being objected to
by the Executive Committee of the CLO. These directives refer to how the CLO will conduct
its functions. The executive committee is under the chairmanship of accused Amado V.
Hernandez.
(3) The CLO played its role in the overall Communist program of armed overthrow of the
present government and its replacement by the dictatorship of the proletariat by means of
propaganda - by propagating the principles of Communism, by giving monetary aid, clothing,
medicine and other forms of material help to the HMB. This role is manifested in the very
constitution of the CLO itself which expounded the theory of classless society and the
eradication of social classes (par. 5, Sec. 1, Art. 2, page 18 of the CLO Constitution
contained in the Fourth Annual Convention Souvenir Program of the CLO Exh. "V-1579").
Thru propaganda, the CLO promoted the aims of Communist Party and disseminated
Communist ideas by:
(a) The conspicuous display of the portrait or, pictures of Crisanto Evangelista (Exh.
V-1662), founder of Communism in the Philippines, in the session hall of the CLO
headquarters at 2070 Azcarraga and then at 330 P. Campa;

(b) The distribution of foreign communist reading materials such as the World
Federation of Trade Union Magazine, International Union of Students magazine,
Voice magazine of the marine cooks of the CLO, World Committee of the Defenders
of the Peace magazine, Free Bulgaria magazine, Soviet Russia Today magazine and
World Federation of Democratic Youth magazine (Exhs. V-911, V-907, V-910, V-899,
V-912, V-853, W-996 and V-967);
(c) The publication and distribution of some local subversive publications such as the
"Titis", "Bisig", Kidlat", which are Communist Party organs; "The Philippine Labor
Demands Justice" and "Hands Off Korea" authored by accused Amado V.
Hernandez;
(d) Principles of Communism were also propagated thru lectures, meetings, and by
means of organization of committees in the educational department as well as
researches in the Worker's Institute of the CLO.
(4) The CLO also helped carry out the program of the Communist Party thru infiltration of
party members and selected leaders of the HMB within the trade unions under the control of
the CLO. The Communist Party thru the CLO assigned Communist Party leaders and
organizers to different factories in order to organize unions. After the organization of the
union, it will affiliate itself with the CLO thru the Communist leaders and the CLO in turn, will
register said union with the Department of Labor; and the orientation and indoctrination of
the workers is continued in the line of class struggle. After this orientation and infiltration of
the Communist Party members and selected leaders of the HMB with the trade unions under
the control of the CLO is already achieved and the group made strong enough to carry out its
aims, they will begin the sporadic strikes and the liquidation of anti-labor elements and antiCommunist elements and will create a so-called revolutionary crisis. That revolutionary crisis
will be done for the party to give directives to the HMB who are fighting in the countrysides
and made them come to the city gates. The entry of the HMB is being paved by the
simultaneous and sporadic strikes, by ultimate general strikes thru the management of the
CLO.
Important Documents Submitted at Trial
1. Documents which proved that Amado V. Hernandez used the aliases "Victor", or was
referred to as "Victor" or "Soliman".
(a) Letter dated April 23, 1950 (signed) by Victor addressed to Julie telling the latter
of his sympathies for other communists, describing his experiences with Communists
abroad, telling Julie to dispose of materials that may be sent by Victor. (Exh. D-20012004)
(b) "Paano Maisasagawa, etc." — mentions different groups of labor unions of which
Victor heads one group, consisting of the MRRCO, PTLD, PGWU, EMWU and IRWU
(Exh. C-2001-2008) Cadres assigned to different industries. (Exh. V-40-41)

(c) Handwritten certificate of Honofre Mangila states that he knew Amado Hernandez
as Victor from co-party members Hugo and Ely. (Exh. LL)
(d) Letter of Elias to Ka Eto requesting the latter to deliver attached letter to Victor.
(Exh. 1103)
(e) Saulo's letter about his escape, asks Victor why his press statement was not
published in the newspapers. (Exh. C-362) Letter was however published by
Hernandez in the Daily Mirror.
(f) Letter of Taruc to Maclang directing the latter to give copy of Huk Story to Victor.
(Exh. D-463-64)
(g) Notes of Salome Cruz, Huk courier, stating that she went to Soliman at
Pampanga St. to bring to the latter communications from the Communist Party. (Exh.
D-1203) That Soliman was given copies of "Titis". (Exh. D-1209)
(h) SEC directions to Politburo members, Soliman not to be involved with
Nacionalista Rebels. (Exh. F-92-93. SEC)
(i) Letter of SEC to Politburo reporting that Saulo be sent out and Soliman has
"tendencies of careerism and tendency to want to deal with leaders of the party"; that
he should be asked to choose to go underground or fight legally. (Exh. F-562)
(j) Explanation given by Hernandez why he did not join Saulo in going underground.
(Exh. V-87) (1) His election as councilor until December, 1951. (Exhs. V-42, W-9) (2)
His election as President of CLO until August of following year. (Exhs. V-42, W-9)
2. Letters and Messages of Hernandez.
(a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh. V-80)
(b) To SOBSI Jakarta — that Filipinos are joining other communist countries of the
East. (Exh. V-82)
(c) Press release on Saulo's disappearance published by Amado Hernandez. (Exh.
W-116-120)
(d) To Hugh and Eddie, July 8, 1949 — Extends greetings to National Union of
Marine Cooks and Stewards, states that labor has one common struggle — "the
liberation of all the peoples from the chains of tyranny, fascism and imperialism".
(Exh. V-259)
(e) To Kas. Pablo and Estrada - talks of the fight - fight of labor. (Exh. V-85-89)
(f) Appeal to the Women and Asia. (Exh. V-5-10)

(g) Letter to Julie (Exh. V-2001-2004)
(h) Letter to Chan Lieu - states that leaders during the war are being persecuted, like
Taruc. Tells of reward of P100,000.00 on Taruc's head. (Exh. X-85-88)
(i) Letter to John Gates of the Daily Worker — condemns Wall Street maneuvers;
corruption and graft in Quirino administration, etc. (Exh. V-83)
(j) Cablegram: CLO join ILWU commends Harry Bridges, US Communist. (Exh. V-79)
(k) Communication of Hernandez to CLO at MRRCO — Praises Balgos and
Capadocia for joining the Huks. (Exhs. V-12-22, V-289)
(l) "Philippine labor Demands Justice" — Attacks czars of Wall Street and U.S. Army
and Government. (Exh. V-94) .
(m) Letter to Taruc — June 28, 1948.-States solidarity among the CLO Huks and
PKM. Attacks North Atlantic Pact. Praises Mao Tse Tung (contained in Exh. V-94)
(n) "Philippines Is Not A Paradise" — States of a delegation to Roxas attacking
unemployment. (Exh. V-90-93)
(o) Article "Progressive Philippines" — (Exh. V-287)
(p) Article "Hands Off Korea" — (Exhs. V-488-494, 495-501, 509-515, W-25-26)
(q) "Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon". (Exh. X-35-38)
(r) Press statement of Hernandez — opposes acceptance of decorations from
Greece by Romulo. (Exh. V-72)
3. Other Activities of Hernandez.
(a) Hernandez received clothes from Pres. Lines thru P. Campa, which clothes he
sent to the field. Letters show of sending of supplies to Huks. (Exh. S-383)
(b) Hernandez was asked to furnish portable typewriter, which he did furnish to Huks.
(Exh. C-364)
(c) Hernandez brought Taruc's letter about facts and incidents about Huks to Bulosan
for inclusion in Bulosan's book. (Exh. FF-1)
(d) Had conference with Kumar Goshal a Hindu, about the Huks and their armed
forces. (Photographs, Exhs. X-6 RR-54-55A)

(e) Supervised taking of pictures of sons of Capadocia and Joven. (Photographs,
Exhs. T-1, RR-136-138A)
(f) Had knowledge of the going underground of Capadocia and Balgos and issued
press release about their going underground. (Exh. F-91)
(g) Victor mentioned to continue as contact for Chino. (Exh. C-362)
(h) Taruc's letter to Maclang shows that Soliman had sent 7 lessons to Taruc. (Exh.
D-451-451-A)
(i) Associated with fellow ranking Communist leaders.
The Court upon consideration of the evidence submitted, found (1) that the Communist Party was
fully organized as a party and in order to carry out its aims and policies a established a National
Congress, a Central Committee (CC), Politburo PB, Secretariat (SEC), Organization Bureau (OB),
and National Courier or Communication Division (NCD), each body performing functions indicated in
their respective names; (2) that in a meeting held on August 11, 1950 the SEC discussed the
creation of a Military Committee of the Party and a new GHQ, under which on September 29, 1950
the SEC organized a special warfare division, with a technological division; (3) that on May 5, 1950 a
body known as the National Intelligence Division was created, to gather essential military intelligence
and, in general, all information useful for the conduct of the armed struggle (4) that a National
Finance Committee was also organized as a part of the Politburo and answerable to it; (5) that the
country was divided into 10 Recos, the 10th Reco comprising the Manila and suburbs command; (6)
that since November, 1949 the CPP had declared the existence of a revolutionary situation and
since then the Party had gone underground and the CPP is leading the armed struggle for national
liberation, and called on the people to organize guerrillas and coordinate with the HMB on the
decisive struggle and final overthrow of the imperialist government; (7) that in accordance with such
plan the CPP prepared plans for expansion and development not only of the Party but also of the
HMB; the expansion of the cadres from 3,600 in July 1950 to 56,000 in September 1951, the HMB
from 10,800 in July 1950 to 172,000 in September 1951, et seq.
Around the month of January, 1950 it was decided by the CPP to intensify HMB military operations
for political purposes. The Politburo sanctioned the attacks made by the Huks on the anniversary of
the HMB on March 25, 1950. The HMB attacks that were reported to the PB were those made in
May, 1946; June, 1946; April 10, 1947; May 9, 1947; August 19, 1947; August 25, 1950; August 26,
1950; October 15 and 17, 1950; May 6, 1946; August 6, 1946; April 10, 1947; May 9, 1947; August
19, 1947; April 29, 1949; August 25, 1950; August 26, 1950; September 12, 1950; March 26, 1950;
March 29, 1950.
The theory of the prosecution, as stated in the lower court's decision, is as follows:
The evidence does not show that the defendants in these cases now before this Court had
taken a direct part in those raids and in the commission of the crimes that had been
committed. It is not, however, the theory of the prosecution that they in fact had direct
participation in the commission of the same but rather that the defendants in these cases

have cooperated, conspired and confederated with the Communist Party in the prosecution
and successful accomplishment of the aims and purposes of the said Party thru the
organization called the CLO (Congress of Labor Organizations).
The Court found that the CLO is independent and separate from the CPP, organized under the same
pattern as the CPP, having its own National Congress, a Central Committee (which acts in the
absence of and in representation of the National Congress), an Executive Committee (which acts
when the National Congress and the Executive Committee are not in session), and seven
permanent Committees, namely, of Organization, Unemployment and Public Relations, Different
Strikes and Pickets, Finance, Auditing, Legislation and Political Action. Members of the Communist
Party dominate the committees of the CLO. The supposed tie-up between CPP and the CLO of
which Hernandez was the President, is described by the court below in finding, thus:
Just how the CLO coordinates its functions with the Communist Party organ under which it operates
was explained by witness Guillermo S. Calayag, one-time ranking member of the Communist Party
and the CLO who typewrites the "Patnubay sa Education" from a handwritten draft of Capadocia,
which is one of the texts used in the Worker's institute of the CLO. According to him, the CLO plays
its role by means of propaganda, giving monetary aid, clothing, medicine and other material forms of
help to the HMB, which constitutes the armed forces of the Communist Party. Propaganda is done
by lectures, meetings, and the organization of committees of the educational department as well as
researches at the CLO Worker's Institute.
Another way of helping the Communist Party of the Philippines is by allowing the Communist
Party leaders to act as organizers in the different factories in forming a union. These Party
Members help workers in the factories to agitate for the eradication of social classes and
ultimately effect the total emancipation of the working classes thru the establishment of the
so-called dictatorship of the proletariat. It is the duty of these Communist Party members to
indoctrinate uninitiated workers in the union to become proselytes of the Communist Party
ideology. After the right number is secured and a union is formed under a communist leader,
this union is affiliated with the CLO and this in turn registers the same with the Department of
Labor. The orientation and indoctrination of the masses is continued with the help of the
CLO. The primary objective of the CLO is to create what is called a revolutionary crisis. It
seeks to attain this objective by first making demands from the employers for concessions
which become more and more unreasonable until the employers would find it difficult to grant
the same. Then a strike is declared. But the strikes are only preparation for the ultimate
attainment of the Communist goal of armed overthrow of the government. After the workers
in the factories have already struck in general at the behest of the Communist Party thru the
CLO a critical point is reached when a signal is given for the armed forces of the Communist
Party, the HMB, to intervene and carry the revolution now being conducted outside to within
the city.
On the basis of the above findings, the court below found Hernandez guilty as principal of the crime
charged against him and sentenced him to suffer the penalty of reclusion perpetua with the
accessories provided by law, and to pay the proportionate amount of the costs.

Our study of the testimonial and documentary evidence, especially those cited by the Court in its
decision and by the Solicitor General in his brief, discloses that defendant-appellant Amado V.
Hernandez, as a Communist, was an active advocate of the principles of Communism, frequently
exhorting his hearers to follow the footsteps of Taruc and join the uprising of the laboring classes
against capitalism and more specifically against America and the Quirino administration, which he
dubbed as a regime of puppets of American imperialism. But beyond the open advocacy of
Communistic Theory there appears no evidence that he actually participated in the actual conspiracy
to overthrow by force the constituted authority.
Hernandez is the founder and head of the CLO. As such, what was his relation to the rebellion? If, as
testified to by Guillermo S. Calayag, the CLO plays merely the role of propagation by lectures,
meetings and organization of committees of education by Communists; if, as stated, the CLO merely
allowed Communist Party leaders to act as organizers in the different factories, to indoctrinate the
CLO members into the Communist Party and proselytize them to the Communist ideology; if, as also
indicated by Calayag, the CLO purports to attain the ultimate overthrow of the Government first by
making demands from employers for concessions until the employers find it difficult to grant the
same, at which time a strike is declared; if it is only after the various strikes have been carried out
and a crisis is thereby developed among the laboring class, that the Communist forces would
intervene and carry the revolution — it is apparent that the CLO was merely a stepping stone in the
preparation of the laborers for the Communist' ultimate revolution. In other words, the CLO had no
function but that of indoctrination and preparation of the members for the uprising that would come. It
was only a preparatory organization prior to revolution, not the revolution itself. The leader of the
CLO therefore, namely Hernandez, cannot be considered as a leader in actual rebellion or of the
actual uprising subject of the accusation. Hernandez, as President of the CLO therefore, by his
presidency and leadership of the CLO cannot be considered as having actually risen up in arms in
rebellion against the Government of the Philippines, or taken part in the conspiracy to commit the
rebellion as charged against him in the present case; he was merely a propagandist and
indoctrinator of Communism, he was not a Communist conspiring to commit the actual rebellion by
the mere fact of his presidency of the CLO.
The court below declares that since November 1949 the Communist Party of the Philippines had
declared the existence of the revolutionary situation and since then the Party had gone underground,
with the CPP leading the struggle for national integration and that in the month of January 1950, it
was decided by the said Party to intensify the HMB military operations for political purposes. The
court implicates the appellant Hernandez as a co-conspirator in this resolution or acts of the
Communist Party by his mere membership thereto. We find this conclusion unwarranted. The
seditious speeches of Hernandez took place before November, 1949 when the CPP went
underground. The court below has not been able to point out, nor have We been able to find among
all acts attributed to Hernandez, any single fact or act of his from which it may be inferred that he
took part in the deliberations declaring the existence of a revolutionary situation, or that he had gone
underground. As a matter of fact the prosecution's evidence is to the effect that Hernandez refused
to go underground preferring to engage in what they consider the legal battle for the cause.
We have also looked into the different documents which have been presented at the time of the trial
and which were confiscated from the office of the Politburo of the Communist Party. The speeches of
Hernandez were delivered before the declaration by the Communist Party of a state of revolutionary

situation in 1949. Neither was it shown that Hernandez was a member of the Executive Committee,
or of the SEC, or of the Politburo of the Communist Party; so NO presumption can arise that he had
taken part in the accord or conspiracy declaring a revolution. In short, there has been no evidence,
direct or indirect, to relate or connect the appellant Hernandez with the uprising or the resolution to
continue or maintain said uprising, his participation in the deliberations leading to the uprising being
inferred only from the fact that he was a communist.
The practice among the top Communists, as declared by the trial court appears to have been for
important members, if they intend actually to join the rebellion, to go underground, which meant
leaving the city, disappearing from sight and/or secretly joining the forces in the field.
The document, Exhibit F-562, which is quoted in the decision, contains the directive of the SEC of
September 1, 1950, to Saulo and Hernandez, which reads:
11. In view of the new developments in the city, send out Elias who prefers to work outside.
Present problem of fighting legally to Com. Soliman. If Soliman is prepared for martyrdom,
retain him to fight legally. If not, send him out with Elias. Same goes with Com. Mino and
other relatively exposed mass leaders.
And the lower court itself found that whereas Saulo went underground and joined the underground
forces outside the City, Hernandez remained in the City, engaged in the work of propaganda, making
speeches and causing the publication of such matters as the Communist Party leaders directed him
to publish.
That Hernandez refused to go underground is a fact which is further corroborated by the following
reasons (excuses) given by him for not going underground, namely (1) that his term of councilor of
the City of Manila was to extend to December, 1951; and (2) that he was elected President of the
CLO for a term which was to end the year 1951.
As a matter of fact the SEC gave instructions to Hernandez not to be involved with Nacionalista
Rebels, and reported to the Politburo that Hernandez "has tendencies of careerism, and tending to
want to deal with leaders of the Nacionalista Party instead of following CPP organizational
procedures."
The court below further found that Hernandez had been furnishing supplies for the Huks in the field.
But the very document dated December 3, 1949, Exhibit D-420422, cited in the decision (printed, p.
49), is to the effect that clothes and shoes that Hernandez was supposed to have sent have not
been received. It is true that some clothes had been sent thru him to the field, but these clothes had
come from a crew member of a ship of the American President Lines. He also, upon request, sent a
portable typewriter to the SEC or Politburo. Furthermore, a certain Niagara Duplicating machine
received by Hernandez from one Rolland Scott Bullard a crew member of the SS President
Cleveland, appease later to have been forwarded by him to the officers of the SEC or the Politburo.
Lastly, it further appears that Taruc and other CPP leaders used to send notes to appellant
Hernandez, who in turn issued press releases for which he found space in the local papers. His acts

in this respect belong to the category of propaganda, to which he appears to have limited his actions
as a Communist.
The acts of the appellant as thus explained and analyzed fall under the category of acts of
propaganda, but do not prove that he actually and in fact conspired with the leaders of the
Communist Party in the uprising or in the actual rebellion, for which acts he is charged in the
information. And his refusal to go underground because of his political commitments occasioned by
his term of election as president of the CLO and the impressions caused by his acts on the
Communist leaders, to the effect that he was in direct communication or understanding with the
Nacionalista Party to which he was affiliated, creates in Us the reasonable doubt that it was not his
Communistic leanings but his political ambitions, that motivated his speeches sympathizing with the
Huks. For which reason We hold that the evidence submitted fails to prove beyond reasonable doubt
that he has conspired in the instigation of the rebellion for which he is held to account in this criminal
case.
The question that next comes up for resolution is: Does his or anyone's membership in the
Communist Party per se render Hernandez or any Communist guilty of conspiracy to commit
rebellion under the provisions of Article 136 of the Revised Penal Code? The pertinent provision
reads:
ART. 136. Conspiracy and proposal to commit rebellion or insurrection. — The conspiracy
and proposal to commit rebellion or insurrection shall be punished, respectively, by prision
correccional in its maximum period and a fine which shall not exceed 5,000 pesos, and
by prision correccional in its medium period and a fine not exceeding 2,000 pesos.
The advocacy of Communism or Communistic theory and principle is not to be considered as a
criminal act of conspiracy unless transformed or converted into an advocacy of action. In the very
nature of things, mere advocacy of a theory or principle is insufficient unless the communist
advocates action, immediate and positive, the actual agreement to start an uprising or rebellion or an
agreement forged to use force and violence in an uprising of the working class to overthrow
constituted authority and seize the reins of Government itself. Unless action is actually advocated or
intended or contemplated, the Communist is a mere theorist, merely holding belief in the supremacy
of the proletariat a Communist does not yet advocate the seizing of the reins of Government by it. As
a theorist the Communist is not yet actually considered as engaging in the criminal field subject to
punishment. Only when the Communist advocates action and actual uprising, war or otherwise, does
he become guilty of conspiracy to commit rebellion. Borrowing the language of the Supreme Court of
the United States:
In our jurisprudence guilt is personal, and when the imposition of punishment on a status or
on conduct can only be justified by reference to the relationship of that status or conduct to
other concededly criminal activity (here advocacy of violent overthrow), that relationship
must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand
attack under the Due Process Clause of the Fifth Amendment. Membership, without more, in
an organization engaged in illegal advocacy, it is now said, has not heretofore been
recognized by this Court to be such a relationship. ... .

What must be met, then, is the argument that membership, even when accompanied by the
elements of knowledge and specific intent, affords an insufficient quantum of participation in
the organization's alleged criminal activity, that is, an insufficiently significant form of aid and
encouragement to permit the imposition of criminal sanctions on that basis. It must indeed be
recognized that a person who merely becomes a member of an illegal organization, by that
"act" alone need be doing nothing more than signifying his assent to its purposes and
activities on one hand, and providing, on the other, only the sort of moral encouragement
which comes from the knowledge that others believe in what the organization is doing. It may
indeed be argued that such assent and encouragement do fall short of the concrete,
practical impetus given to a criminal enterprise which is lent for instance by a commitment on
the part of the conspirator to act in furtherance of that enterprise. A member, as distinguished
from a conspirator, may indicate his approval of a criminal enterprise by the very fact of his
membership without thereby necessarily committing himself to further it by any act or course
of conduct whatever. (Scales v. United States, 367 U.S. 203, 6 L. ed. 782)
The most important activity of appellant Hernandez appears to be the propagation of improvement of
conditions of labor through his organization, the CLO. While the CLO of which he is the founder and
active president, has communistic tendencies, its activity refers to the strengthening of the unity and
cooperation between labor elements and preparing them for struggle; they are not yet indoctrinated
in the need of an actual war with or against Capitalism. The appellant was a politician and a labor
leader and it is not unreasonable to suspect that his labor activities especially in connection with the
CLO and other trade unions, were impelled and fostered by the desire to secure the labor vote to
support his political ambitions. It is doubtful whether his desire to foster the labor union of which he
was the head was impelled by an actual desire to advance the cause of Communism, not merely to
advance his political aspirations.
Insofar as the appellant's alleged activities as a Communist are concerned, We have not found, nor
has any particular act on his part been pointed to Us, which would indicate that he had advocated
action or the use of force in securing the ends of Communism. True it is, he had friends among the
leaders of the Communist Party, and especially the heads of the rebellion, but this notwithstanding,
evidence is wanting to show that he ever attended their meetings, or collaborated and conspired with
said leaders in planning and encouraging the acts of rebellion, or advancing the cause thereof.
Insofar as the furnishing of the mimeograph machine and clothes is concerned, it appears that he
acted merely as an intermediary, who passed said machine and clothes on to others. It does not
appear that he himself furnished funds or material help of his own to the members of the rebellion or
to the forces of the rebellion in the field.
But the very act or conduct of his in refusing to go underground, in spite of the apparent desire of the
chief of the rebellion, is clear proof of his non-participation in the conspiracy to engage in or to foster
the rebellion or the uprising.
We next consider the question as to whether the fact that Hernandez delivered speeches of
propaganda in favor of Communism and in favor of rebellion can be considered as a criminal act of
conspiracy to commit rebellion as defined in the law. In this respect, the mere fact of his giving and
rendering speeches favoring Communism would not make him guilty of conspiracy, because there
was no evidence that the hearers of his speeches of propaganda then and there agreed to rise up in

arms for the purpose of obtaining the overthrow of the democratic government as envisaged by the
principles of Communism. To this effect is the following comment of Viada:
CUESTION 10. El que hace propaganda entre sus convecinos, induciendoles a que el dia
que se anunciara la subasta de consumes se echaran a la calle para conseguir aunque
fuera preciso acudir a la fuerza el reparto entre los vecinos ricos solamente, sera
responsable de un delito de conspiracion para la sedicion? — El Tribunal Supreme ha
resuelto la negative al casar cierta sentencia de la Audiencia de Valencia, que entendio lo
contrario: "Considerando que, con areglo a lo que dispone el art. 4. del Codigo Penal, hay
conspiracion cuando dos o mas personas se conciertan para la execution de un delito y
resuelven cmeterlo; y no constando que existiera ese concierto en cuanto a los hechos que
se refieren en la tercera pregunta del veredicto, pues en ella solo se habla de los actos de
induccion que el procesado realizo, sin expresar el efecto que la mismo produjo en el animo
de las personas a quienes se dirigian, ni si estas aceptaron o no lo que se las propuso,
resulta evidence que faltan los clementos integrantes de la conspiracion, etc." (Se. de 5 de
Julio de 1907, Gaceta de 7 de Enero de 1909.) (Viada, Tomo I, Codigo Penal, p. 152)
In view of all the above circumstances We find that there is no concrete evidence proving beyond
reasonable doubt that the appellant (Hernandez) actually participated in the rebellion or in any act of
conspiracy to commit or foster the cause of the rebellion. We are constrained, in view of these
circumstances, to absolve, as We hereby absolve, the appellant Amado V. Hernandez from the
crime charged, with a proportionate share of the costs de oficio.
APPEAL OF OTHER DEFENDANTS-APPELLANTS
All the other defendants were found guilty as accomplices in the crime of rebellion as charged in the
information and were each sentenced to suffer the penalty of 10 years and 1 day of prision mayor,
with the accessories provided by law, and to pay their proportionate share of the costs.
Legal Considerations. — Before proceeding to consider the appeals of the other defendants, it is
believed useful if not necessary to lay dawn the circumstances or facts that may be determinative of
their criminal responsibility or the existence or nature thereof. To begin with, as We have
exhaustively discussed in relation to the appeal of Hernandez, we do not believe that mere
membership in the Communist Party or in the CLO renders the member liable, either of rebellion or
of conspiracy to commit rebellion, because mere membership and nothing more merely implies
advocacy of abstract theory or principle without any action being induced thereby; and that such
advocacy becomes criminal only if it is coupled with action or advocacy of action, namely, actual
rebellion or conspiracy to commit rebellion, or acts conducive thereto or evincing the same.
On the other hand, membership in the HMB (Hukbalahap) implies participation in an actual uprising
or rebellion to secure, as the Huks pretend, the liberation of the peasants and laboring class from
thraldom. By membership in the HMB, one already advocates uprising and the use of force, and by
such membership he agrees or conspires that force be used to secure the ends of the party. Such
membership, therefore, even if there is nothing more, renders the member guilty of conspiracy to
commit rebellion punishable by law.

And when a Huk member, not content with his membership, does anything to promote the ends of
the rebellion like soliciting contributions, or acting as courier, he thereby becomes guilty of
conspiracy, unless he takes to the field and joins in the rebellion or uprising, in which latter case he
commits rebellion.
In U.S. v. Vergara, infra, the defendants organized a secret society commonly known as the
"Katipunan", the purpose of which was to overthrow the government by force. Each of the
defendants on various times solicited funds from the people of Mexico, Pampanga. The Court held
that the defendants were guilty of conspiracy and proposal to commit rebellion or insurrection and
not of rebellion or insurrection itself. Thus, the Court ruled that:
From the evidence adduced in this case we are of the opinion that the said defendants are
guilty, not of inciting, setting or foot, or assisting or engaging in rebellion, but rather of the
crime of conspiring to overthrow, put down, and destroy by force the Government of the
United States in the Philippine Islands, and therefore we find that said defendants, and each
of them, did, together with others, in the months of February and March, 1903, in the
Province of Pampanga, Philippine Islands, conspire to overthrow, put down, and to destroy
by force the Government of the United States in the Philippine Islands. (U.S. v. Vergara, et
al., 3 Phil. 432, 434.)
JUAN J. CRUZ
The court found him to be a Communist with various aliases, a member of the Central Committee of
the CLO member of the Central Committee of the CPP and as such committed to the establishment
of the dictatorship of the proletariat To the same effect is the testimony of Guillermo Calayag.
There is no evidence to connect him with the rebellion or to the conspiracy to commit rebellion. He
should therefore be absolved of the charges contained in the information.
AMADO RACANDAY
The trial court found him guilty as a Communist, a Secretary and Executive Committee member of
the CLO a communications center of the Communist Party, having been found in possession of
letters from Federico Maclang to Salome Cruz, and solicitor of contributions for the Huks.
Racanday admits being a member of the Executive Committee of the CLO Editor of the Kidlat of the
Government Workers Union, receiving copies of the Titis. Calayag testified that he was a member of
the Central Committee of the Communist Party entrusted with the duty of receiving directives of the
Regional Committee of the Communist Party.
The letters found in his possession are dated February 14, 1950, before the Communist Party went
underground. We have been unable to find the evidence upon which the court bases its conclusion
that he received contributions for the Huks. With these circumstances in mind, We are not convinced
beyond reasonable doubt that as a Communist he took part in the conspiracy among the officials of
the Communist Party to take part and support the rebellion of the Huks.

We are, therefore, constrained to absolve him of the charges filed against him.
GENARO DE LA CRUZ
The court found him to be a Communist since 1945, an officer of an organized Communist branch in
Pasay City, a member of the Central Committee and Treasurer of the CLO. He admitted his
membership and his position as member of the executive committee and treasurer of the CLO these
facts being corroborated by the witness Guillermo Calayag.
His membership in the Communist Party dates as far back as the year 1945. As a communist,
Genaro de la Cruz received quotas and monetary contributions coming from the areas under his
jurisdiction, and one time he made a receipt from a member from Caloocan at the CLO headquarters
at Azcarraga signing the receipt as "Gonzalo" which is one of his aliases. He also distributed copies
of the "Titis" magazine. `
While his membership in the Communist Party plus his having received contributions for the party
indicate that he is an active member, it was not shown that the contributions that he received from
Communist Party members were received around the year 1950 when the Central Committee of the
Communist Party had already agreed to conspire and go underground and support the Huk
rebellion. Under these circumstances We cannot find him guilty of conspiracy to commit rebellion
because of the lack of evidence to prove his guilt beyond reasonable doubt.
JULIAN LUMANOG
The court found him to be an organizer of HMB among the mill workers, solicited contributions for
the HMB and Central Committee member of the CLO as per Testimony of Guillermo Calayag.
He admitted that he joined the Communist Party because he was made to believe that the Party is
for the welfare of the laborers. He also admitted being a member of the Central Committee of the
CLO Calayag testified that Lumanog organized the HMB units of the Communist Party in the Lumber
Unions and attended a Communist meeting held by Maclang.
Domingo Clarin testified that he (Julian Lumanog) used to give the money collected by him to one
Nicasio Pamintuan, one of the members of the HMB Special Unit Trigger Squad) in Manila for the
use of the said unit.
Considering that the HMB was engaged in a rebellion to overthrow the government, it is evident that
by giving his contributions he actually participated in the conspiracy to overthrow the government
and should, therefore, be held liable for such conspiracy, and should be sentenced accordingly.
FERMIN RODILLAS
The trial court found that Fermin Rodillas was a member of the CPP and the CLO that his activities
consisted in soliciting contributions, in cash and in kind, from city residents for the use of the HMB,
turning over said collections to the Party; that he has given asylum to a wanted Hukbalahap at his

house at Juan Luna St., Gagalangin, which house was used as Military post. The above findings of
the court are fully supported by the testimony of Domingo Clarin.
Considering that while he has not actually taken part in the rebellion, he has shown sympathy with
the cause by soliciting contributions for it and had given shelter to the Huks. We feel that the court
was fully justified in finding him guilty, but We hold that he should be declared liable merely as a coconspirator in the crime of conspiracy to commit rebellion, and should be sentenced accordingly.
BAYANI ESPIRITU
This appellant was found by the court to be a Communist, he having admitted membership in the
Communist Party since 1945; that his duties as a Communist was to help in the office of the National
Finance Committee, assorting papers and written documents; that sometimes he accompanied the
purchaser of medicines, shoes, papers, foodstuffs and clothing to be given to the Huks; that he is a
member of the Communication Division of the CPP in Manila, in charge of distribution of letters or
communications; that he admits having written to Salome Cruz, courier of the Communist Party,
when he asked for his necessities, such as money and shoes, etc.
The facts found by the court are sufficiently supported by the communications and evidence
submitted by the prosecution. The exhibits show that he was in constant communication with the
communists; serving them as courier. His oath as a member of the Communist Party was submitted
in court and in it he admits obedience to all orders of the Party and to propagate the stability of the
PKP.
Considering that the PKP was engaged in an actual uprising against the constituted Government
and that Bayani Espiritu was in constant communication with the Communist Party and served it as
courier, We believe that the court was fully justified in finding him guilty. However, We believe that
not having actually taken up arms in the uprising he may only be declared guilty of conspiracy to
commit rebellion.
TEOPISTA VALERIO
The court below found that this appellant joined the Communists in 1938 in San Luis, Pampanga,
under Casto Alejandrino, who later became her common-law husband; that her aliases are "Estrella"
and "Star"; that she was found in possession of various documents written to top Communists like
Alejandrino, Lava and Romy, as well as a letter from Taruc congratulating her for the delivers, of a
son.
Jose Taguiang testified that she was a member of the Provincial Committee of the CPP in Nueva
Ecija, later Chairman of the Finance Department, and then promoted to Finance Officer of the
Central Luzon Committee. Alicia Vergara, a Huk courier, testified that she delivered letter from the
mountains to Teopista Valerie, who was in turn also a courier.
Without considering the close relationship that she had with top Communist Casto Alejandrino, We
are satisfied that she herself was, aside from being a Huk courier, also a Huk, a member of the HMB
from 1942 to 1951. As she was a Communist and at the same time a member of the HMB, and

considering that the HMB was engaged in an uprising to uproot the legitimate government, there
cannot be any question that she was in conspiracy with the other members of her Party against the
constituted government. We hold, therefore, that the evidence proves beyond reasonable doubt that
she is guilty of conspiracy to commit rebellion.
DEFENDANTS NOT INCLUDED IN DECISION
In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo Capadocia, Mariano P.
Balgos, Alfredo B. Saulo and Jacobo Espino was dismissed because they have not been
apprehended at the time of the trial.
PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND
REPUBLIC ACT NO. 1700, DISTINGUISHED
In the case at bar the prosecution is for actual rebellion which consists in rising publicly and taking
aims against the Government for the purpose of removing from the allegiance to said Government or
its laws, the territory of the Philippines, or any part thereof, etc., a crime defined in Article 134 of the
Revised Penal Code; whereas Evangelista was charged and convicted for inciting to rebellion under
Art. 138, Revised Penal Code (formerly Sec. 2, Act No. 292). As the specific charge against
appellants is that of rising up in arms in actual rebellion against the Government, they cannot be held
guilty of inciting the people to arms under Article 138, which is a different offense.
On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes membership
in any organization or association committed to subvert the Government, cannot be applied to the
appellants because said Act was approved on June 20, 1957 and was not in force at the time of the
commission of the acts charged against appellants (committed 1945-1950) ; the Anti-Subversion Act
punishes participation or membership in an organization committed to overthrow the duly constituted
Government, a crime district from that of actual rebellion with which appellants are charged.
CONCLUSION
WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) defendants-appellants Amado V.
Hernandez, Juan J. Cruz, Amado Racanday and Genaro de la Cruz are absolved from the charges
contained in the information, with their proportionate share of the costs de oficio. The defendantsappellants Julian Lumanog and Fermin Rodillas in Criminal Case No. 15841 (G.R. No. L-6025) and
the defendants-appellants Bayani Espiritu and Teopista Valerio in Criminal Case No. 15479 (G.R.
No. L-6026) are hereby found guilty of the crime of conspiracy to commit rebellion, as defined and
punished in Article 136 of the Revised Penal Code, and each and everyone of them is hereby
sentenced to suffer imprisonment for five years, four months and twenty-one days of prision
correccional, and to pay a fine of P5,000.00, with subsidiary imprisonment in case of insolvency and
to pay their proportional share of the costs. So ordered.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Dizon and Makalintal, JJ.,
concur.
Padilla, Barrera and Regala, JJ., took no part.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court
of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila;
and ERICH EKKEHARD GEILING, respondents.

REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to
be followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to
lay down a decisional rule on what hitherto appears to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private
respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of Births,
Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started
auspiciously enough, and the couple lived together for some time in Malate, Manila where their only
child, Isabella Pilapil Geiling, was born on April 20, 1980. 1
Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a
separation de facto between them.
After about three and a half years of marriage, such connubial disharmony eventuated in private
respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg
Local Court in January, 1983. He claimed that there was failure of their marriage and that they had
been living apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal separation, support and separation of property
before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still
pending as Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany,
promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of
the child was granted to petitioner. The records show that under German law said court was locally
and internationally competent for the divorce proceeding and that the dissolution of said marriage
was legally founded on and authorized by the applicable law of that foreign jurisdiction. 4

On June 27, 1986, or more than five months after the issuance of the divorce decree, private
respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while still
married to said respondent, petitioner "had an affair with a certain William Chia as early as 1982 and
with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los
Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases on the
ground of insufficiency of evidence. 5 However, upon review, the respondent city fiscal approved a
resolution, dated January 8, 1986, directing the filing of two complaints for adultery against the
petitioner. 6 The complaints were accordingly filed and were eventually raffled to two branches of the
Regional Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and William
Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by the
respondent judge; while the other case, "People of the Philippines vs. Imelda Pilapil and James Chua",
docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the
same court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid
resolution of respondent fiscal be set aside and the cases against her be dismissed. 8 A similar
petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of
Justice, through the Chief State Prosecutor, gave due course to both petitions and directed the
respondent city fiscal to inform the Department of Justice "if the accused have already been arraigned
and if not yet arraigned, to move to defer further proceedings" and to elevate the entire records of both
cases to his office for review. 9
Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend
further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in
Criminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the
arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date, petitioner
moved for the cancellation of the arraignment and for the suspension of proceedings in said Criminal
Case No. 87-52435 until after the resolution of the petition for review then pending before the Secretary of
Justice. 11 A motion to quash was also filed in the same case on the ground of lack of jurisdiction, 12 which
motion was denied by the respondent judge in an order dated September 8, 1987. The same order also
directed the arraignment of both accused therein, that is, petitioner and William Chia. The latter entered a
plea of not guilty while the petitioner refused to be arraigned. Such refusal of the petitioner being
considered by respondent judge as direct contempt, she and her counsel were fined and the former was
ordered detained until she submitted herself for arraignment. 13 Later, private respondent entered a plea of
not guilty. 14
On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a
prayer for a temporary restraining order, seeking the annulment of the order of the lower court
denying her motion to quash. The petition is anchored on the main ground that the court is without
jurisdiction "to try and decide the charge of adultery, which is a private offense that cannot be
prosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as an
offended spouse having obtained a final divorce decree under his national law prior to his filing the
criminal complaint." 15
On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from
implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal
Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoñez

acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations, issued a
resolution directing the respondent city fiscal to move for the dismissal of the complaints against the
petitioner. 16
We find this petition meritorious. The writs prayed for shall accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes
against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended
spouse. It has long since been established, with unwavering consistency, that compliance with this rule is
a jurisdictional, and not merely a formal, requirement. 18 While in point of strict law the jurisdiction of the
court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint is
just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding 19 and
without which the court cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage the person who
can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of
seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of
the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended
party. The so-called exclusive and successive rule in the prosecution of the first four offenses above
mentioned do not apply to adultery and concubinage. It is significant that while the State, as parens
patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate
the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction,
abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such
amendment did not include the crimes of adultery and concubinage. In other words, only the
offended spouse, and no other, is authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute the action, it
necessarily follows that such initiator must have the status, capacity or legal representation to do so
at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in
fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as
of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that
the same requirement and rationale would not apply. Understandably, it may not have been found
necessary since criminal actions are generally and fundamentally commenced by the State, through
the People of the Philippines, the offended party being merely the complaining witness therein.
However, in the so-called "private crimes" or those which cannot be prosecuted de oficio, and the
present prosecution for adultery is of such genre, the offended spouse assumes a more predominant
role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his
power and option.
This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the
outrage in silence rather than go through the scandal of a public trial. 20 Hence, as cogently argued by
petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is still
subsisting at the time of the institution of the criminal action for, adultery. This is a logical consequence
since the raison d'etre of said provision of law would be absent where the supposed offended party had
ceased to be the spouse of the alleged offender at the time of the filing of the criminal case. 21

In these cases, therefore, it is indispensable that the status and capacity of the complainant to
commence the action be definitely established and, as already demonstrated, such status or
capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacity
to bring the action would be determined by his status before or subsequent to the commencement
thereof, where such capacity or status existed prior to but ceased before, or was acquired
subsequent to but did not exist at the time of, the institution of the case. We would thereby have the
anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to
do so.
To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as
to when precisely the status of a complainant as an offended spouse must exist where a criminal
prosecution can be commenced only by one who in law can be categorized as possessed of such
status. Stated differently and with reference to the present case, the inquiry ;would be whether it is
necessary in the commencement of a criminal action for adultery that the marital bonds between the
complainant and the accused be unsevered and existing at the time of the institution of the action by
the former against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with
ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the
right to institute proceedings against the offenders where the statute provides that the innocent
spouse shall have the exclusive right to institute a prosecution for adultery. Where, however,
proceedings have been properly commenced, a divorce subsequently granted can have no legal
effect on the prosecution of the criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that —
'No prosecution for adultery can be commenced except on the complaint of the
husband or wife.' Section 4932, Code. Though Loftus was husband of defendant
when the offense is said to have been committed, he had ceased to be such when
the prosecution was begun; and appellant insists that his status was not such as to
entitle him to make the complaint. We have repeatedly said that the offense is
against the unoffending spouse, as well as the state, in explaining the reason for this
provision in the statute; and we are of the opinion that the unoffending spouse must
be such when the prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction,
considering our statutory law and jural policy on the matter. We are convinced that in cases of such
nature, the status of the complainant vis-a-vis the accused must be determined as of the time the
complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse,
and by this is meant that he is still married to the accused spouse, at the time of the filing of the
complaint.
In the present case, the fact that private respondent obtained a valid divorce in his country, the
Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in
the Philippines insofar as private respondent is concerned 23 in view of the nationality principle in our
civil law on the matter of status of persons.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United
States court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a
trial court here alleging that her business concern was conjugal property and praying that she be ordered
to render an accounting and that the plaintiff be granted the right to manage the business. Rejecting his
pretensions, this Court perspicuously demonstrated the error of such stance, thus:
There can be no question as to the validity of that Nevada divorce in any of the
States of the United States. The decree is binding on private respondent as an
American citizen. For instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. ...
It is true that owing to the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy against absolute divorces
the same being considered contrary to our concept of public policy and morality.
However, aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law. ...
Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's
husband entitled to exercise control over conjugal assets. ... 25
Under the same considerations and rationale, private respondent, being no longer the husband of
petitioner, had no legal standing to commence the adultery case under the imposture that he was the
offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought this case before the decree of
divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case.
When said respondent initiated the divorce proceeding, he obviously knew that there would no
longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed.
Neither would there be a danger of introducing spurious heirs into the family, which is said to be one
of the reasons for the particular formulation of our law on adultery, 26 since there would thenceforth be
no spousal relationship to speak of. The severance of the marital bond had the effect of dissociating the
former spouses from each other, hence the actuations of one would not affect or cast obloquy on the
other.
The aforecited case of United States vs. Mata cannot be successfully relied upon by private
respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of
the Revised Penal Code, which punished adultery "although the marriage be afterwards declared
void", the Court merely stated that "the lawmakers intended to declare adulterous the infidelity of a
married woman to her marital vows, even though it should be made to appear that she is entitled to
have her marriage contract declared null and void, until and unless she actually secures a formal
judicial declaration to that effect". Definitely, it cannot be logically inferred therefrom that the
complaint can still be filed after the declaration of nullity because such declaration that the marriage
is void ab initio is equivalent to stating that it never existed. There being no marriage from the
beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg
to stand on. Moreover, what was consequently contemplated and within the purview of the decision
in said case is the situation where the criminal action for adultery was filed before the termination of

the marriage by a judicial declaration of its nullity ab initio. The same rule and requisite would
necessarily apply where the termination of the marriage was effected, as in this case, by a valid
foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer
the same fate of inapplicability. A cursory reading of said case reveals that the offended spouse therein
had duly and seasonably filed a complaint for adultery, although an issue was raised as to its sufficiency
but which was resolved in favor of the complainant. Said case did not involve a factual situation akin to
the one at bar or any issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and
another one enteredDISMISSING the complaint in Criminal Case No. 87-52435 for lack of
jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby made
permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Separate Opinions

PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider the German absolute divorce as
valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his
obtaining an absolute divorce in Germany can no longer be considered as the offended party in case
his former wife actually has carnal knowledge with another, because in divorcing her, he already
implicitly authorized the woman to have sexual relations with others. A contrary ruling would be less
than fair for a man, who is free to have sex will be allowed to deprive the woman of the same
privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute
divorce between the American husband and his American wife as valid and binding in the Philippines
on the theory that their status and capacity are governed by their National law, namely, American
law. There is no decision yet of the Supreme Court regarding the validity of such a divorce if one of
the parties, say an American, is married to a Filipino wife, for then two (2) different nationalities
would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and precisely
because of theNational law doctrine, he considers the absolute divorce as valid insofar as the

American husband is concerned but void insofar as the Filipino wife is involved. This results in what
he calls a "socially grotesque situation," where a Filipino woman is still married to a man who is no
longer her husband. It is the opinion however, of the undersigned that very likely the opposite
expresses the correct view. While under the national law of the husband the absolute divorce will be
valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to
comity) is when the foreign law will work an injustice or injury to the people or residents of the forum.
Consequently since to recognize the absolute divorce as valid on the part of the husband would be
injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law,
it would seem that under our law existing before the new Family Code (which took effect on August
3, 1988) the divorce should be considered void both with respect to the American husband and the
Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the
husband was an American can with a Filipino wife because in said case the validity of the divorce
insofar as the Filipino wife is concerned was NEVER put in issue.

Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider the German absolute divorce as
valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his
obtaining an absolute divorce in Germany can no longer be considered as the offended party in case
his former wife actually has carnal knowledge with another, because in divorcing her, he already
implicitly authorized the woman to have sexual relations with others. A contrary ruling would be less
than fair for a man, who is free to have sex will be allowed to deprive the woman of the same
privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute
divorce between the American husband and his American wife as valid and binding in the Philippines
on the theory that their status and capacity are governed by their National law, namely, American
law. There is no decision yet of the Supreme Court regarding the validity of such a divorce if one of
the parties, say an American, is married to a Filipino wife, for then two (2) different nationalities
would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and precisely
because of theNational law doctrine, he considers the absolute divorce as valid insofar as the
American husband is concerned but void insofar as the Filipino wife is involved. This results in what
he calls a "socially grotesque situation," where a Filipino woman is still married to a man who is no
longer her husband. It is the opinion however, of the undersigned that very likely the opposite
expresses the correct view. While under the national law of the husband the absolute divorce will be
valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to
comity) is when the foreign law will work an injustice or injury to the people or residents of the forum.
Consequently since to recognize the absolute divorce as valid on the part of the husband would be

injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law,
it would seem that under our law existing before the new Family Code (which took effect on August
3, 1988) the divorce should be considered void both with respect to the American husband and the
Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the
husband was an American can with a Filipino wife because in said case the validity of the divorce
insofar as the Filipino wife is concerned was NEVER put in issue.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-40624 June 27, 1975
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RICARDO NEPOMUCENO, JR. Y BERNARDINO, accused-appellant.
Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Eduardo C. Abaya
and Solicitor Ma. Rosario Quetulio-Losa for plaintiff-appellee.
Rosalino C. Barican for accused-appellant.
Porfirio L. Villaroman as private prosecutor.

ESGUERRA, J.:
The decision of the Court of First Instance of Bulacan, Branch V (Sta. Maria), convicting accused
Ricardo Nepomuceno, Jr. y Bernardo of "Bigamy punishable under the provisions of Article 349, of
the Revised Penal Code, and sentencing him to suffer an indeterminate penalty of Six (6) Months
and One (1) day of Prision Correccional, as minimum, to Six (6) Years and Four (4) Months
of Prision Mayor, as maximum, with costs", is now before Us for review because the Court of
Appeals (Division of Five Justices) in its Resolution of April 14, 1975, in CA-G.R. No. 12641-CR, by
a four to one vote ruled that only a question of law is involved in the appeal, and decision on the
case is not dependent on factual findings to be made so as to bring the case within the competence
of the appellate court. The dissenting opinion holds that there is no question of law involved as what
is to be decided is the question of whether or not the information filed was defective for not including
the second wife as an accused and, hence, the Court of Appeals could have decided it on the merits
by affirming the decision of the lower court.

The uncontested facts are:
The Information dated December 8, 1969 reads as follows:
"The undersigned Provincial Fiscal accuses Ricardo Nepomuceno,
Jr. of the crime of bigamy, penalized under the provisions of Article
349 of the Revised Penal Code, committed as follows:
That on or about the 16th day of August, 1969, in the municipality of
Norzagaray, province of Bulacan, Philippines, and within the
Jurisdiction of this Honorable Court, the said accused Ricardo
Nepomuceno, Jr., being then previously united in lawful marriage with
one Dolores Desiderio, and without the said marriage having been
legally dissolved, did then and there wilfully, unlawfully and
feloniously contract a second marriage with one Norma Jimenez.
Contrary to law.
Malolos, Bulacan, December 8, 1969.
(Sgd.)
FRAN
CISCO
C.
BURG
OS
Asst.
Provinc
ial
Fiscal
I hereby certify that a preliminary investigation in this case has been
conducted by me in accordance with Sec. 14, Rule 112, of the Rules
of Court; that there is reasonable ground to believe that the offense
charged has been committed; and, that the accused is probably guilty
thereof.
(Sgd.)
FRAN
CISCO
C.
BURG
OS
Asst.
provinc

ial
Fiscal
(Orig. Rec., p. 1)
Upon arraignment on February 4, 1970, accused pleaded not guilty and trial
proceeded accordingly. After the prosecution had presented one witness, the
accused, on August 11, 1970, withdrew his plea of not guilty and changed it into one
of guilty. The case however proceeded for the reception of evidence on the civil
aspect.
On December 9, 1970, a motion to quash was filed on the ground that the
information is defective as it charged only the accused for bigamy without including
the second wife and such failure, according to accused, conferred no jurisdiction on
the lower court to try and decide the case. Said motion was denied on February 22,
1971. On April 28, 1971, private prosecutor orally withdrew the claim for damages,
which the lower court granted. On May 25, 1971, the lower court rendered a decision
the dispositive portion of which reads:
WHEREFORE, the Court finds the accused RICARDO
NEPOMUCENO, JR. guilty beyond reasonable doubt of the crime of
Bigamy punishable under the provisions of Article 349 of the Revised
Penal Code and hereby sentences him to suffer an indeterminate
sentence of Six (6) Months and One (l) Day of Prision
Correccional as minimum, to Six (6) Years and Four (4) Months
of Prision Mayor, as maximum, with costs. (Orig. Rec. 201-202)
On appeal to the Court of Appeals, accused cited as a single error the lower court's
failure to quash the information for lack of jurisdiction. While awaiting completion of
the records the private prosecutor filed a motion to forward the case to the Supreme
Court on the ground that the appeal involves a pure question of law. Two other
motions of the same nature were subsequently filed. In its resolution of May 11,
1973, the Fifth Division of the Court of Appeals resolved to give due course to the
appeal, to consider it submitted for decision, the same to he raffled immediately and
to refer the motions to certify the case to the Supreme Court to the Division to which
the case may be raffled.
The case was eventually assigned to the Court of Appeals Special Division of Five Justices which
promulgated the resolution of April 14, 1975, forwarding the case to this Court for decision.
On the issue of whether or not the lower court erred in not quashing the information because it was
defective for not including the second wife (not because of lack of jurisdiction), let us scrutinize the
provision of Art. 349 of the Revised Penal Code, to wit:
The penalty of prision mayor shall be imposed upon any person who shall contract a
second or subsequent marriage before the former marriage has been legally

dissolved, or before the absent spouse has been declared presumptively dead by
means of a judgment rendered in the proceedings. (Emphasis for emphasis)
The crime of bigamy is committed when a person contracts a second or subsequent marriage before
the former marriage has been legally dissolved, or before the absent spouse has been judicially
declared as presumptively dead. The facts of this case clearly show that accused Nepomuceno
married Dolores Desiderio on March 20, 1969, in Balagtas, Bulacan, and that about five months
later, or on August 16, 1969, he again married Norma Jimenez in Norzagaray, Bulacan. Accused
undeniably contracted two marriages in the short span of five months, which he categorically
admitted when he pleaded guilty.
Appellant's contention that the crime of bigamy entails the joint liability of two persons who marry
each other, while the previous marriage of one or the other is valid and subsisting is completely
devoid of merit. Even a cursory scrutiny of Art. 349 of the Revised Penal Code will disclose that the
crime of bigamy can be committed by one person who contracts a subsequent marriage while, the
former marriage is valid and subsisting. Bigamy is not similar to the crimes of adultery and
concubinage, wherein the law (Art. 344, first and third pars., Revised Penal Code, and Sec. 4, Rule
110, Rules of Court) specifically requires that the culprits, if both are alive, should he prosecuted or
included in the information. In the crime of bigamy, both the first and second spouses may be the
offended parties depending on the circumstances, as when the second spouse married the accused
without being aware of his previous marriage. Only if the second spouse had knowledge of the
previous undissolved marriage of the accused could she be included in the information as a coaccused. Bigamy is a public offense and a crime against status, while adultery and concubinage are
private offenses and are crimes against chastity. In adultery and concubinage, pardon by the
offended party will bar the prosecution of the case, which is not so in bigamy. It is, therefore, clear
that bigamy is not similar to adultery or concubinage.
When the accused raised the question of defective information for non-inclusion of the second wife
as an accused for the first time in a motion to quash, the lower court ruled:
The information is clear and it is only the accused Ricardo Nepomuceno, Jr. who
contracted a second marriage, he being previously united in lawful marriage with one
Dolores Desiderio, and without the same having been legally dissolved, and there
being no showing in the recitation of facts in the information to the effect that Norma
Jimenez, the second wife, had knowledge of the first marriage, and despite said
knowledge she contracted the second marriage with the accused; nor is there any
showing that Norma Jimenez had had a previous marriage of her of her own, we see
no reason for the inclusion of Norma Jimenez , the second wife, in the information.
(Emphasis for emphasis)
Whether or not the second spouse, Norma Jimenez, should be included in the information is a
question of fact that was determined by the fiscal who conducted the preliminary investigation in this
case. That the fiscal did not include Norma Jimenez in the information simply shows absence of
evidence that could make her liable for the crime. Her non-inclusion in the information as a coaccused of appellant Nepomuceno in the crime of bigamy is not a defect in the information filed
against Nepomuceno alone since her inclusion or not in said information depended upon available

evidence against her. The conclusion is, therefore, irresistible that the lower court committed no error
when it refused to quash the information against the accused, Nepomuceno, on the mere flimsy
ground that the second wife was not included therein.
WHEREFORE, the decision of the trial court convicting the appellant, Ricardo Nepomuceno, Jr. y
Bernardino, and sentencing him accordingly, as stated on pages one (1) and three (3) hereof, is
affirmed with costs against the accused-appellant.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 126466 January 14, 1999
ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners,
vs.
COURT OF APPEALS and FRANCISCO WENCESLAO, respondents.

BELLOSILLO, J.:
PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft hotly
contested freedoms of man, the issue of the right of free expression be stirs and presents itself time
and again, in cyclic occurrence, to inveigle, nay, challenge the courts to re-survey its ever shifting
terrain, explore and furrow its heretofore uncharted moors and valleys and finally redefine the metes
and bounds of its controversial domain. This, prominently, is one such case.
Perhaps, never in jurisprudential history has any freedom of man undergone radical doctrinal
metamorphoses than his right to freely and openly express his views. Blackstone's pontifical
comment that "where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous
libels are punished by English law ... the liberty of the press, properly understood, is by no means
infringed or violated," found kindred expression in the landmark opinion of England's Star Chamber
in the Libelis Famosis case in 1603. 1 That case established two major propositions in the prosecution of
defamatory remarks: first, that libel against a public person is a greater offense than one directed against
an ordinary man, and second, that it is immaterial that the libel be true.
Until republicanism caught fire in early America, the view from the top on libel was no less dismal.
Even the venerable Justice Holmes appeared to waffle as he swayed from the concept of criminal
libel liability under the clear and present danger rule, to the other end of the spectrum in defense of
the constitutionally protected status of unpopular opinion in free society.

Viewed in modern times and the current revolution in information and communication technology,
libel principles formulated at one time or another have waxed and waned through the years in the
constant ebb and flow of judicial review. At the very least, these principles have lost much of their
flavor, drowned and swamped as they have been by the ceaseless cacophony and din of thought
and discourse emanating from just about every source and direction, aided no less by an
increasingly powerful and irrepressible mass media. Public discourse, laments Knight, has been
devalued by its utter commonality; and we agree, for its logical effect is to benumb thought and
sensibility on what may be considered as criminal illegitimate encroachments on the right of persons
to enjoy a good, honorable and reputable name. This may explain the imperceptible demise of
criminal prosecutions for libel and the trend to rely instead on indemnity suits to repair any damage
on one's reputation.
In this petition for review, we are asked to reverse the Court of Appeals in "Francisco Wenceslao v.
Arturo Borjal and Maximo Soliven," CA-G.R. No. 40496, holding on 25 March 1996 that petitioners
Arturo Borjal and Maximo Soliven are solidarily liable for damages for writing and publishing certain
articles claimed to be derogatory and offensive to private respondent Francisco Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines Today, Inc.
(PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star, a daily newspaper. At the time the
complaint was filed, petitioner Borjal was its President while Soliven was (and still is) Publisher and
Chairman of its Editorial Board. Among the regular writers of The Philippine Star is Borjal who runs
the column Jaywalker.
Private respondent Francisco Wenceslao, on the other hand, is a civil engineer, businessman,
business consultant and journalist by profession. In 1988 he served as a technical adviser of
Congressman Fabian Sison, then Chairman of the House of Representatives Sub-Committee on
Industrial Policy.
During the congressional hearings on the transport crisis sometime in September 1988 undertaken
by the House Sub-Committee on Industrial Policy, those who attended agreed to organize the First
National Conference on Land Transportation (FNCLT) to be participated in by the private sector in
the transport industry and government agencies concerned in order to find ways and means to solve
the transportation crisis. More importantly, the objective of the FNCLT was to draft an omnibus bill
that would embody a long-term land transportation policy for presentation to Congress. The
conference which, according to private respondent, was estimated to cost around P1,815,000.00
would be funded through solicitations from various sponsors such as government agencies, private
organizations, transport firms, and individual delegates or participants. 2
On 28 February 1989, at the organizational meeting of the FNCLT, private respondent Francisco
Wenceslao was elected Executive Director. As such, he wrote numerous solicitation letters to the
business community for the support of the conference.
Between May and July 1989 a series of articles written by petitioner Borjal was published on different
dates in his column Jaywalker. The articles dealt with the alleged anomalous activities of an
"organizer of a conference" without naming or identifying private respondent. Neither did it refer to

the FNCLT as the conference therein mentioned. Quoted hereunder are excerpts from the articles of
petitioner together with the dates they were published. 3
31 May 1989
Another self-proclaimed "hero" of the EDSA Revolution goes around organizing
"seminars and conferences" for a huge fee. This is a simple ploy coated in jazzy
letterheads and slick prose. The "hero" has the gall to solicit fees from anybody with
bucks to spare. Recently, in his usual straightforward style, Transportation Secretary
Rainerio "Ray" Reyes, asked that his name, be stricken off from the letterheads the
"hero" has been using to implement one of his pet "seminars." Reyes said: "I would
like to reiterate my request that you delete my name." Note that Ray Reyes is an
honest man who would confront anybody eyeball to eyeball without blinking.
9 June 1989
Another questionable portion of the so-called conference is its unauthorized use of
the names of President Aquino and Secretary Ray Reyes. The conference program
being circulated claims that President Aquino and Reyes will be main speakers in the
conference. Yet, the word is that Cory and Reyes have not accepted the invitation to
appear in this confab. Ray Reyes even says that the conference should be
unmasked as a moneymaking gimmick.
19 June 1989
. . . some 3,000 fund solicitation letters were sent by the organizer to every Tom, Dick
and Harry and to almost all government agencies. And the letterheads carried the
names of Reyes and Periquet. Agrarian Reform Secretary on leave Philip Juico
received one, but he decided to find out front Reyes himself what the project was all
about. Ray Reyes, in effect, advised Juico to put the fund solicitation letter in the
waste basket. Now, if the 3,000 persons and agencies approached by the organizer
shelled out 1,000 each, that's easily P3 million to a project that seems so
unsophisticated. But note that one garment company gave P100,000, after which the
Garments Regulatory Board headed by Trade and Industry Undersecretary Gloria
Macapagal-Arroyo was approached by the organizer to expedite the garment license
application of the P100,000 donor.
21 June 1989
A "conference organizer" associated with shady deals seems to have a lot of trash
tucked inside his closet. The Jaywalker continues to receive information about the
man's dubious deals. His notoriety, in according to reliable sources, has reached the
Premier Guest House where his name is spoken like dung.
xxx xxx xxx

The first information says that the "organizer" tried to mulct half a million pesos from
a garment producer and exporter who was being investigated for violation of the
rules of the Garments, Textile, Embroidery and Apparel Board. The "organizer" told
the garment exporter that the case could be fixed for a sum of P500,000.00. The
organizer got the shock of his life when the exporter told him: "If I have that amount. I
will hire the best lawyers, not you." The organizer left in a huff, his thick face very
pale.
xxx xxx xxx
Friends in government and the private sector have promised the Jaywalker more
"dope" on the "organizer." It seems that he was not only indiscreet; he even failed to
cover his tracks. You will be hearing more of the "organizer's" exploits from this
corner soon.
22 June 1989
The scheming "organizer" we have been writing about seems to have been
spreading his wings too far. A congressional source has informed the Jaywalker that
the schemer once worked for a congressman from the North as some sort of a
consultant on economic affairs. The first thing the "organizer" did was to initiate
hearings and round-the-table discussions with people from the business, export and
— his favorite — the garments sector.
xxx xxx xxx
The "organizer's" principal gamely went along, thinking that his "consultant" had
nothing but the good of these sectors in mind. It was only later that he realized that
the "consultant" was acting with a burst of energy "in aid of extortion." The
"consultant" was fired.
xxx xxx xxx
There seems to be no end to what a man could do to pursue his dubious ways. He
has tried to operate under a guise of a well-meaning, reformist. He has intellectual
pretensions — and sometimes he succeeds in getting his thoughts in the inside
pages of some newspapers, with the aid of some naive newspaper people. He has
been turning out a lot of funny-looking advice on investments, export growth, and the
like.
xxx xxx xxx
A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks
and influence-peddlers from entering the premises of his department. But the
Cabinet man might not get his wish. There is one "organizer" who, even if physically
banned, call still concoct ways of doing his thing. Without a tinge of remorse, the

"organizer" could fill up his letterheads with, names of Cabinet members,
congressmen, and reputable people from the private sector to shore up his shady
reputation and cover up his notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The attendance was very
poor and the few who participated in, the affair were mostly leaders of jeepney
drivers' groups. None of the government officials involved in regulating public
transportation was there. The big names in the industry also did not participate. With
such a poor attendance, one wonders why the conference organizers went ahead
with the affair and tried so hard to convince 3,000 companies and individuals to
contribute to the affair.
xxx xxx xxx
The conference was doomed from the start. It was bound to fail. The personalities
who count in the field of transpiration refused to attend the affair or withdrew their
support after finding out the background of the organizer of the conference. How
could a conference on transportation succeed without the participation of the big
names in the industry and government policy-makers?
Private respondent reacted to the articles. He sent a letter to The Philippine Star insisting that he
was the "organizer" alluded to in petitioner Borjal's columns. 4 In a subsequent letter to The Philippine
Star, private respondent refuted the matters contained in petitioner Borjal's columns and openly
challenged him in this manner —
To test if Borjal has the guts to back up his holier than thou attitude, I am prepared to
relinquish this position in case it is found that I have misappropriated even one peso
of FNCLT money. On the other hand, if I can prove that Borjal has used his column
as a "hammer" to get clients for his PR Firm, AA Borjal Associates, he should resign
from the STAR and never again write a column. Is it a deal? 5
Thereafter, private respondent filed a complaint with the National Press Club (NPC) against
petitioner Borjal for unethical conduct. He accused petitioner Borjal of using his column as a form of
leverage to obtain contracts for his public relations firm, AA Borjal Associates. 6 In turn, petitioner
Borjal published a rejoinder to the challenge of private respondent not only to protect his name and honor
but also to refute the claim that he was using his column for character assassination. 7
Apparently not satisfied with his complaint with the NPC, private respondent filed a criminal case for
libel against petitioners Borjal and Soliven, among others. However, in a Resolution dated 7 August
1990, the Assistant Prosecutor handling the case dismissed the complaint for insufficiency of
evidence. The dismissal was sustained by the Department of Justice and later by the Office of the
President.

On 31 October 1990 private respondent instituted against petitioners a civil action for damages
based on libel subject of the instant case. 8 In their answer, petitioners interposed compulsory
counterclaims for actual, moral and exemplary damages, plus attorney's fees and costs. After due
consideration, the trial court decided in favor of private respondent Wenceslao and ordered petitioners
Borjal and Soliven to indemnify private respondent P1,000,000.00 for actual and compensatory damages,
in addition to P200,000.00 for moral damages, P100,000.00 for exemplary damages, P200,000.00 for
attorney's fees, and to pay the costs of suit.
The Court of Appeals affirmed the decision of the court a quo but reduced the amount of the
monetary award to P110,000.00 actual damages, P200,000.00 moral damages and P75,000.00
attorney's fees plus costs. In a 20-page Decision promulgated 25 March 1996, the appellate court
ruled inter alia that private respondent was sufficiently identifiable, although not named, in the
questioned articles; that private respondent was in fact defamed by petitioner Borjal by describing
him variously as a "self-proclaimed hero," "a conference organizer associated with shady deals who
has a lot of trash tucked inside his closet," "thick face," and "a person with dubious ways;" that
petitioner's claim of privilege communication was unavailing since the privileged character of the
articles was lost by their publication in a newspaper of general circulation; that petitioner could have
performed his officer as a newspaperman without necessarily transgressing the rights of Wenceslao
by calling the attention of the government offices concerned to examine the authority by which
Wenceslao acted, warning the public against contributing to a conference that, according to his
perception, lacked the univocal indorsement of the responsible government officials, or simply
informing the public of the letters Wenceslao wrote and the favors he requested or demanded; and,
that when he imputed dishonesty, falsehood and misrepresentation, shamelessness and intellectual
pretentions to Wenceslao, petitioner Borjal crossed the thin but clear line that separated fair
comment from actionable defamation.
Private respondent manifested his desire to appeal that portion of the appellate court's decision
which reduced the amount of damages awarded him by filing with this Court a Petition for Extension
of Time to File Petition and a Motion for Suspension of Time to File Petition. 9 However, in a Resolution
dated 27 May 1996, the Second Division denied both motions: the first, for being premature, and the
second, for being a wrong remedy.
On 20 November 1996 when the First Division consolidated and transferred the present case to the
Second Division, there was no longer any case thereat with which to consolidate this case since
G.R. No. 124396 had already been disposed of by the Second Division almost six (6) months earlier.
On their part, petitioners filed a motion for reconsideration but the Court of Appeals denied the
motion in its Resolution of 12 September 1996. Hence the instant petition for review. The petitioners
contend that the Court of Appeals erred: (a) in ruling that private respondent Wenceslao was
sufficiently identified by petitioner Borjal in the questioned articles; (b) in refusing to accord serious
consideration to the findings of the Department of Justice and the Office of the President that private
respondent Wenceslao was not sufficiently identified in the questioned articles, this notwithstanding
that the degree of proof required in a preliminary investigation is merely prima facieevidence which is
significantly less than the preponderance of evidence required in civil cases; (c) in ruling that the
subject articles do not constitute qualifiedly privileged communication; (d) in refusing to apply the
"public official doctrine" laid down in New York Times v. Sullivan; (e) in ruling that the questioned
articles lost their privileged character because of their publication in a newspaper of general

circulation; (f) in ruling that private respondent has a valid cause of action for libel against petitioners
although he failed to prove actual malice on their part, and that the prosecutors of the City of Manila,
the Department of Justice, and eventually, the Office of the President, had already resolved that
there was no sufficient evidence to prove the existence of libel; and, (g) assuming arguendo that
Borjal should be held liable, in adjudging petitioner Soliven solidarily liable with him. Thus, petitioners
pray for the reversal of the appellate court's ruling, the dismissal of the complaint against them for
lack of merit, and the award of damages on their counterclaim.
The petition is impressed with merit. In order to maintain a libel suit, it is essential that the victim be
identifiable although it is not necessary that he be named. It is also not sufficient that the offended
party recognized himself as the person attacked or defamed, but it must be shown that at least a
third person could identify him as the object of the libelous publication. 10 Regrettably, these requisites
have not been complied with in the case at bar.
In ruling for private respondent, the Court of Appeals found that Borjal's column writings sufficiently
identified Wenceslao as the "conference organizer." It cited the First National Conference on Land
Transportation, the letterheads used listing different telephone numbers, the donation of
P100,000.00 from Juliano Lim and the reference to the '"organizer of the conference" — the very
same appellation employed in all the column items — as having sufficiently established the identity
of private respondent Wenceslao for those who knew about the FNCLT who were present at its
inception, and who had pledged their assistance to it.
We hold otherwise. These conclusions are at variance with the evidence at hand. The questioned
articles written by Borjal do not identify private respondent Wenceslao as the organizer of the
conference. The first of theJaywalker articles which appeared in the 31 May 1989 issue of The
Philippine Star yielded nothing to indicate that private respondent was the person referred to therein.
Surely, as observed by petitioners, there were millions of "heroes" of the EDSA Revolution and
anyone of them could be "self-proclaimed" or an "organizer of seminars and conferences." As a
matter of fact, in his 9 June 1989 column petitioner Borjal wrote about the "so-called First National
Conference on Land Transportation whose principal organizers are not specified" (emphasis
supplied).11 Neither did the FNCLT letterheads 12 disclose the identity of the conference organizer since
these contained only an enumeration of names where private respondent Francisco Wenceslao was
described as Executive Director and Spokesman and not as a conference organizer. 13 The printout 14 and
tentative program 15 of the conference were devoid of any indication of Wenceslao as organizer. The
printout which contained an article entitled "Who Organized the NCLT?" did not even mention private
respondent's name, while the tentative program only denominated private respondent as "Vice Chairman
and Executive Director," and not as organizer.
No less than private respondent himself admitted that the FNCLT had several organizers and that he
was only a part of the organization, thus —
I would like to clarify for the record that I was only a part of the organization. I was
invited then because I was the head of the technical panel of the House of
Representatives Sub-Committee on Industrial Policy that took care of congressional
hearings. 16

Significantly, private respondent himself entertained doubt that he was the person spoken of in
Borjal's columns. The former even called up columnist Borjal to inquire if he (Wenceslao) was the
one referred to in the subject articles. 17 His letter to the editor published in the 4 June 1989 issue of The
Philippine Star even showed private respondent Wenceslao's uncertainty —
Although he used a subterfuge, I was almost certain that Art Borjal referred to the
First National Conference on Land Transportation (June 29-30) and me in the second
paragraph of his May 31 column . . . 18
Identification is grossly inadequate when even the alleged offended party is himself unsure that he
was the object of the verbal attack. It is well to note that the revelation of the identity of the person
alluded to came not from petitioner Borjal but from private respondent himself; when he supplied the
information through his 4 June 1989 letter to the editor. Had private respondent not revealed that he
was the "organizer" of the FNCLT referred to in the Borjal articles, the public would have remained in
blissful ignorance of his identity. It is therefore clear that on the element of identifiability alone the
case falls.
The above disquisitions notwithstanding, and on the assumption arguendo that private respondent
has been sufficiently identified as the subject of Borjal's disputed comments, we now proceed to
resolve the other issues and pass upon the pertinent findings of the courts a quo.
The third, fourth, fifth and sixth assigned errors all revolve around the primary question of whether
the disputed articles constitute privileged communications as to exempt the author from liability.
The trial court ruled that petitioner Borjal cannot hide behind the proposition that his articles are
privileged in character under the provisions of Art. 354 of The Revised Penal Code which state —
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 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.
Respondent court explained that the writings in question did not fall under any of the exceptions
described in the above-quoted article since these were neither "private communications" nor "fair
and true report . . . without any comments or remarks." But this is incorrect.
A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely
privileged communications are those which are not actionable even if the author has acted in bad
faith. An example is found in Sec. 11, Art.VI, of the 1987 Constitution which exempts a member of

Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon
the other hand, qualifiedly privileged communications containing defamatory imputations are not
actionable unless found to have been made without good intention justifiable motive. To this genre
belong "private communications" and "fair and true report without any comments or remarks."
Indisputably, petitioner Borjal's questioned writings are not within the exceptions of Art. 354 of The
Revised Penal Code for, as correctly observed by the appellate court, they are neither private
communications nor fair and true report without any comments or remarks. However this does not
necessarily mean that they are not privileged. To be sure, the enumeration under Art. 354 is not an
exclusive list of qualifiedly privileged communications since fair commentaries on matters of public
interest are likewise privileged. The rule on privileged communications had its genesis not in the
nation's penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and
of the press. 19 As early as 1918, in United States v. Cañete, 20 this Court ruled that publications which are
privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech.
This constitutional right cannot be abolished by the mere failure of the legislature to give it express
recognition in the statute punishing libels.
The concept of privileged communications is implicit in the freedom of the press. As held in Elizalde
v. Gutierrez 21and reiterated in Santos v. Court of Appeals 22 —
To be more specific, no culpability could be imputed to petitioners for the alleged
offending publication without doing violence to the concept of privileged
communications implicit in the freedom of the press. As was so well put by Justice
Malcolm in Bustos: "Public policy, the welfare of society, and the orderly
administration of government have demanded protection of public opinion. The
inevitable and incontestable result has been the development and adoption of the
doctrine of privilege."
The doctrine formulated in these two (2) cases resonates the rule that privileged communications
must, sui generis, be protective of public opinion. This closely adheres to the democratic theory of
free speech as essential to collective self-determination and eschews the strictly libertarian view that
it is protective solely of self-expression which, in the words of Yale Sterling Professor Owen
Fiss, 23 makes its appeal to the individualistic ethos that so dominates our popular and political culture. It
is therefore clear that the restrictive interpretation vested by the Court of Appeals on the penal provision
exempting from liability only private communications and fair and true report without comments or
remarks defeats, rather than promotes, the objective of the rule on privileged communications, sadly
contriving as it does, to suppress the healthy effloresence of public debate and opinion as shining
linchpins of truly democratic societies.
To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid
defense in an action for libel or slander. The doctrine of fair comment means that while in general
every discreditable imputation publicly made is deemed false, because every man is presumed
innocent until his guilt is judicially proved, and every false imputation is deemed malicious,
nevertheless, when the discreditable imputation is directed against a public person in his public
capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official
may be actionable, it must either be a false allegation of fact or a comment based on a false
supposition. If the comment is an expression of opinion, based on established facts, then it is

immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from
the facts. 21
There is no denying that the questioned articles dealt with matters of public interest. In his testimony,
private respondent spelled out the objectives of the conference thus —
. . . The principal conference objective is to come up with a draft of an Omnibus Bill
that will embody a long term land transportation policy for presentation to Congress
in its next regular session in July. Since last January, the National Conference on
Land Transportation (NCLT), the conference secretariat, has been enlisting support
from all sectors to ensure the success of the project. 25
Private respondent likewise testified that the FNCLT was raising funds through solicitation from the
public Q: Now, in this first letter, you have attached a budget and it says
here that in this seminar of the First National Conference on Land
Transportation, you will need around One million eight hundred fifteen
thousand pesos, is that right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to raise this fund of your
seminar?
A: Well, from sponsors such as government agencies and private
sectors or organizations as well as individual transport firms and from
individual delegates/participants. 26
The declared objective of the conference, the composition of its members and participants, and the
manner by which it was intended to be funded no doubt lend to its activities as being genuinely
imbued with public interest. An organization such as the FNCLT aiming to reinvent and reshape the
transportation laws of the country and seeking to source its funds for the project from the public at
large cannot dissociate itself from the public character of its mission. As such, it cannot but invite
close scrutiny by the media obliged to inform the public of the legitimacy of the purpose of the
activity and of the qualifications and integrity of the personalities behind it.
This in effect is the strong message in New York Times v. Sullivan 27 which the appellate court failed to
consider or, for that matter, to heed. It insisted that private respondent was not, properly speaking, a
"public official" nor a "public figure," which is why the defamatory imputations against him had nothing to
do with his task of organizing the FNCLT.
New York Times v. Sullivan was decided by the U. S. Supreme Court in the 1960s at the height of
the bloody rioting in the American South over racial segregation. The then City Commissioner L. B.
Sullivan of Montgomery, Alabama, sued New York Times for publishing a paid political advertisement
espousing racial equality and describing police atrocities committed against students inside a college

campus. As commissioner having charge over police actions Sullivan felt that he was sufficiently
identified in the ad as the perpetrator of the outrage; consequently, he sued New York Times on the
basis of what he believed were libelous utterances against him.
The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled against Sullivan
holding that honest criticisms on the conduct of public officials and public figures are insulated from
libel judgments. The guarantees of freedom of speech and press prohibit a public official or public
figure from recovering damages for a defamatory falsehood relating to his official conduct unless he
proves that the statement was made with actual malice, i.e., with knowledge that it was false or with
reckless disregard of whether it was false or not.
The raison d' être for the New York Times doctrine was that to require critics of official conduct to
guarantee the truth of all their factual assertions on pain of libel judgments would lead to selfcensorship, since would be critics would be deterred from, voicing out their criticisms even if such
were believed to be true, or were in fact true, because of doubt whether it could be proved or
because of fear of the expense of having to prove it. 28
In the present case, we deem private respondent a public figure within the purview of the New York
Times ruling. At any rate, we have also defined "public figure" in Ayers Production Pty., Ltd. v.
Capulong 29 as —
. . . . a person who, by his accomplishments, fame, mode of living, or by adopting a
profession or calling which gives the public a legitimate interest in his doings, his
affairs and his character, has become a "public personage." He is, in other words, a
celebrity. Obviously to be included in this category are those who have achieved
some degree of reputation by appearing before the public, as in the case of an actor,
a professional baseball player, a pugilist, or any other entertainer. The list is,
however, broader than this. It includes public officers, famous inventors and
explorers, war heroes and even ordinary soldiers, infant prodigy, and no less a
personage than the Great Exalted Ruler of the lodge. It includes, in short, anyone
who has arrived at a position where the public attention is focused upon him as a
person.
The FNCLT was air undertaking infused with public interest. It was promoted as a joint project of the
government and the private sector, and organized by top government officials and prominent
businessmen. For this reason, it attracted media mileage and drew public attention not only to the
conference itself but to the personalities behind as well. As its Executive Director and spokesman,
private respondent consequently assumed the status of a public figure.
But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in
the FNCLT, would not qualify as a public figure, it does not necessarily follow that he could not
validly be the subject of a public comment even if he was not a public official or at least a public
figure, for he could be, as long as he was involved in a public issue. If a matter is a subject of public
or general interest, it cannot suddenly became less so merely because a private individual is
involved or because in some sense the individual did not voluntarily choose to become involved. The

public's primary interest is in the event; the public focus is on the conduct of the participant and the
content, effect and significance of the conduct, not the participant's prior anonymity or notoriety. 30
There is no denying that the questioned articles dealt with matters of public interest. A reading of the
imputations of petitioner Borjal against respondent Wenceslao shows that all these necessarily bore
upon the latter's official conduct and his moral and mental fitness as Executive Director of the
FNCLT. The nature and functions of his position which included solicitation of funds, dissemination of
information about the FNCLT in order to generate interest in the conference, and the management
and coordination of the various activities of the conference demanded from him utmost honesty,
integrity and competence. These are matters about which the public has the right to be informed,
taking into account the very public character of the conference itself.
Concededly, petitioner Borjal may have gone overboard in the language employed describing the
"organizer of the conference." One is tempted to wonder if it was by some mischievous gambit that
he would also dare test the limits of the "wild blue yonder" of free speech in this jurisdiction. But no
matter how intemperate or deprecatory the utterances appear to be, the privilege is not to be
defeated nor rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York Times
v. Sullivan, "[D]ebate on public issues should be uninhibited, robust and wide open, and that it may
well include vehement, caustic and sometimes unpleasantly sharp attacks on the government and
public officials. 31
The Court of Appeals concluded that since malice is always presumed in the publication of
defamatory matters in the absence of proof to the contrary, the question of privilege is immaterial.
We reject this postulate. While, generally, malice can be presumed from defamatory words, the
privileged character of a communication destroys the presumption of malice. 32 The onus of proving
actual malice then lies on plaintiff, private respondent Wenceslao herein. He must bring home to the
defendant, petitioner Borjal herein, the existence of malice as the true motive of his conduct. 33
Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation
of the person defamed, and implies an intention to do ulterior and unjustifiable harm. 34 Malice is bad
faith or bad motive.35 It is the essence of the crime of libel. 36
In the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles in
question petitioner Borjal acted with malice?
Primarily, private respondent failed to substantiate by preponderant evidence that petitioner was
animated by a desire to inflict unjustifiable harm on his reputation, or that the articles were written
and published without good motives or justifiable ends. On the other hand, we find petitioner Borjal
to have acted in good faith. Moved by a sense of civic duty and prodded by his responsibility as a
newspaperman, he proceeded to expose and denounce what he perceived to be a public deception.
Surely, we cannot begrudge him for that. Every citizen has the right to enjoy a good name and
reputation, but we do not consider that petitioner Borjal has violated that right in this case nor
abused his press freedom.

Furthermore, to be considered malicious, the libelous statements must be shown to have been
written or published with the knowledge that they are false or in reckless disregard of whether they
are false or not. 37"Reckless disregard of what is false or not" means that the defendant entertains
serious doubt as to the truth of the publication, 38 or that he possesses a high degree of awareness of
their probable falsity. 39
The articles subject of the instant case can hardly be said to have been written with knowledge that
these are false or in reckless disregard of what is false or not. This is not to say however that the
very serious allegations of petitioner Borjal assumed by private respondent to be directed against
him are true. But we nevertheless find these at least to have been based on reasonable grounds
formed after the columnist conducted several personal interviews and after considering the varied
documentary evidence provided him by his sources. Thus, the following are supported by
documentary evidence: (a) that private respondent requested Gloria Macapagal-Arroyo, then head
of the Garments and Textile Export Board (GTEB), to expedite the processing and release of the
import approval and certificate of availability of a garment firm in exchange for the monetary
contribution of Juliano Lim, which necessitated a reply from the office of Gloria Macapagal-Arroyo
explaining the procedure of the GTEB in processing applications and clarifying that all applicants
were treated
equally; 40 (b) that Antonio Periquet was designated Chairman of the Executive Committee of the FNCLT
notwithstanding that he had previously declined the offer; 41 and, (c) that despite the fact that then
President Aquino and her Secretary of Transportation Rainerio Reyes declined the invitation to be guest
speakers in the conference, their names were still included in the, printout of the FNCLT. 42 Added to these
are the admissions of private respondent that: (a) he assisted Juliano Lim in his application for a quota
allocation with the GTEB in exchange for monetary contributions to the FNCLT; 43 (b) he included the
name of then Secretary of Transportation Rainerio Reyes in the promotional materials of the conference
notwithstanding the latter's refusal to lend his name to and participate in the FNCLT; 44 and, (c) he used
different letterheads and telephone numbers. 45
Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone
does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free
expression and debate. Consistent with good faith and reasonable care, the press should not be
held to account, to a point of suppression, for honest mistakes or imperfections in the choice of
language. There must be some room for misstatement of fact as well as for misjudgment. Only by
giving them much leeway and tolerance can they courageously and effectively function as critical
agencies in our democracy. 46 In Bulletin Publishing Corp. v. Noel 47we held A newspaper especially one national in reach and coverage, should be free to report
on events and developments in which the public has a legitimate interest with
minimum fear of being hauled to court by one group or another on criminal or civil
charges for libel, so long as the newspaper respects and keeps within the standards
of morality and civility prevailing within the general community.
To avoid the self-censorship that would necessarily accompany strict liability for erroneous
statements, rules governing liability for injury to reputation are required to allow an adequate margin
of error by protecting some inaccuracies. It is for the same reason that the New York Times doctrine
requires that liability for defamation of a public official or public figure may not be imposed in the
absence of proof of "actual malice" on the part of the person making the libelous statement.

At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice
Malcolm expressed in U.S. v. Bustos, 48 that "the interest of society and the maintenance of good
government demand a full discussion of public affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses
of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound may be
assuaged by the balm of a clear conscience. A public official must not be too thin-skinned with reference
to comments upon his official acts."
The foregoing disposition renders the second and seventh assigned errors moot and academic,
hence, we find no necessity to pass upon them.
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
. . . a lively sense of responsibility, a free press may readily become a powerful instrument of
injustice." 49
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 restricted hunting license to prey on the ordinary citizen. 50
On petitioners' counterclaim for damages, we find the evidence too meager to sustain any award.
Indeed, private respondent cannot be said to have instituted the present suit in abuse of the legal
processes and with hostility to the press; or that he acted maliciously, wantonly, oppressively,
fraudulently and for the sole purpose of harassing petitioners, thereby entitling the latter to damages.
On the contrary, private respondent acted within his rights to protect his honor from what he
perceived to be malicious imputations against him. Proof and motive that the institution of the action
was prompted by a sinister design to vex and humiliate a person must be clearly and preponderantly
established to entitle the victim to damages. The law could not have meant to impose a penalty on
the right to litigate, nor should counsel's fees be awarded every time a party wins a suit. 51
For, concluding with the wisdom in Warren v. Pulitzer Publishing
Co. 52 —

Every man has a right to discuss matters of public interest. A clergyman with his
flock, an admiral with his fleet, a general with his army, a judge with his jury; we are,
all of us, the subject of public discussion. The view of our court has been thus stated:
"It is only in despotisms that one must speaksub rosa, or in whispers, with bated
breath, around the corner, or in the dark on a subject touching the common welfare.
It is the brightest jewel in the crown of the law to speak and maintain the golden
mean between defamation, on one hand, and a healthy and robust right of free public
discussion, on the other.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25 March 1996
and its Resolution of 12 September 1996 denying reconsideration are, REVERSED and SET ASIDE,
and the complaint for damages against petitioners is DISMISSED. Petitioners' counterclaim for
damages is likewise DISMISSED for lack of merit. No costs.
1âwphi1.nêt

SO ORDERED.
Puno, Mendoza, Martinez and Buena, JJ., concur.

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