December 2004 - Philippine Supreme Court Decisions/Resolutions
Teves v. Teves : 154182 : December 17, 2004 : J. Tinga : En Banc : Dissenting Opinion
[G.R. NO. 154182 : December 17, 2004]
EDGAR Y. TEVES and TERESITA Z. TEVES, Petitioners, v. THE SANDIGANBAYAN, Respondent.
It is imperative for this Court as guardian of the peoples fundamental liberties, to redeem persons inflicted with the classic Kafkaesque nightmare conviction for a crime the indictment for which the accused has no knowledge of. I sense that the majority recognizes, albeit tacitly, the absurdity of the convictions challenged in this petition. Thus the proposed quantum downgrading of the penalty of accused Edgardo Teves (Teves) from imprisonment of at least nine years, imposed by the Sandiganbayan, to a mere fine. However, I submit that Teves should be extenuated not as a matter of grace, but as a matter of right in consonance with the Constitution.
My submission is ultimately premised on constitutional considerations that Teves cannot be convicted of the present charges against him without violating his constitutional right to be informed of the nature and cause of the accusation against him.1 Furthermore, the punishment of Teves for a crime of which he was neither legally nor actually informed constitutes a violation of the constitutional right to due process of law.2 While the variance doctrine is a rule of long-standing, its mechanical application cannot supplant the Bill of Rights which occupies a position of primacy within our fundamental law.3 I believe that the variance between the offense charged to Teves, on one hand, and the offense of which the majority intends to convict him, on the other, is material and prejudicial enough so as to affect his substantial rights as an accused.4 cralawred
In particular, the Information filed against Teves is deficient for the purpose of convicting him, as charged, of violating Section 3(h) of the Anti-Graft and Corrupt Practices Act, or for violating Section 89(b) of the Local Government Code, as is the wont of the majority.
The offense of which Teves is charged is defined under Section 3(h) of the Anti-Graft and Corrupt Practices Act,5 which states:chanroblesvirtua1awlibrary
Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:chanroblesvirtua1awlibrary
(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest.
As the majority correctly points out, there are two modes by which a public officer who has a direct or indirect financial or pecuniary interest in any business, contract or transaction may violate Section 3(h). The first is where the public officer, in connection with his financial or pecuniary interest in a business, contract or transaction, intervenes or takes part in his official capacity (First Mode). The second is where the public officer possesses such financial or pecuniary interest and said possession is prohibited by the Constitution or of any other law (Second Mode).
The Information clearly charges the Teves spouses with violating Section 3(h) through the First Mode:chanroblesvirtua1awlibrary
The undersigned Special Prosecution Officer II, Office of the Special Prosecutor, hereby accuses EDGAR Y. TEVES and TERESITA TEVES of violation of Section 3(h) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows:chanroblesvirtua1awlibrary
That on or about February 4, 1992, and sometime subsequent thereto, in Valencia, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, accused Edgar Y. Teves, a public officer, being then the Municipal Mayor of Valencia, Negros Oriental, commiting the crime herein charged in relation to, while in the performance and taking advantage of his official functions, and conspiring and confederating with his wife, herein accuse[d] Teresita Teves, did then and there willfully, unlawfully and criminally cause the issuance of the appropriate business permit/license to operate the Valencia Cockpit and Recreation Center in favor of one Daniel Teves, said accused Edgar Y. Teves having a direct or pecuniary interest therein considering the fact that said cockpit arena is actually owned and operated by him and accused Teresita Teves.
CONTRARY TO LAW.6 cralawred
The Sandiganbayan found that Teves could not have caused the issuance of the permit to operate the cockpit in 1992, as alleged in the Information. Hence, the offense through the First Mode for which Teves was charged was not proved. Still, the Sandiganbayan found the Teves spouses guilty of violating Section 3(h), through the Second Mode, although it was not at all alleged in the Information. In justifying the conviction, the Sandiganbayan merely noted that the fact of Teves pecuniary interest in the cockpit was unrebutted,7 and that Section 89(b) of the Local Government Code barred Teves from holding an interest in a cockpit. The Sandiganbayan was silent as to why the Teves spouses were convicted of an offense different from that charged in the Information.
The ponencia fills in the blank, contending that
conviction can be had by applying the variance doctrine encapsulated in
Sections 4 and 5, Rule 120 of the Rules of Criminal Procedure. According to the
majority, the offense proved the violation of Section 3(h) through holding the
prohibited pecuniary interest, is necessarily included in the offense chargedthe violation of Section 3(h) through
intervening/taking part in an official capacity in connection with a financial
or pecuniary interest in any business, contract or transaction. However, the
majority would prefer to convict Teves instead and fine him Ten Thousand Pesos
P10,000.00) for violating Section 89(b) of the Local Government Code,
the law which specifically prohibits Teves from maintaining an interest in a cockpit.
The deviation is sought to be justified by noting that Section 89(b) of the
Local Government Code is more specific in application than the general
proscription under Section 3(h) of the Anti-Graft and Corrupt Practices Act, a
law which happens to antecede the Local Government Code. The ponencia
would also do away with a sentence of imprisonment, imposing instead a fine as
earlier adverted to.
That an accused cannot be convicted of an offense not charged or included in the information is based upon the right to be informed of the true nature and cause of the accusation against him.8 This right was long ago established in English law, and is expressly guaranteed under Section 14(2), Article III of the Constitution. This right requires that the offense be charged with clearness and all necessary certainty to inform the accused of the crime of which he stands charged, in sufficient detail to enable him to prepare a defense.9 The peculiarities attaching to the Information herein preclude his conviction of any offense other than violation of Section 3(h) through the First Mode.
Second Mode Not Necessarily Included in First Mode
With due respect, I find unacceptable the general proposition that the Second Mode of violating Section 3(h) is necessarily included in the First Mode.
Under Section 5, Rule 120 of the Rules of Criminal Procedure, the offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the formerconstitute the latter. Thus, it should be established that the Second Mode is constituted of the essential elements of the First Mode.
In analyzing the question, the majority makes the following pronouncement:chanroblesvirtua1awlibrary
The elements of the offense charged in this case, which is unlawful intervention in the issuance of a cockpit license in violation of Section 3(h) of the Anti-Graft Law, are
1. The accused is a public officer;
2. He has a direct or indirect financial or pecuniary interest in any business, contract or transaction, whether or not prohibited by law; and
3. He intervenes or takes part in his official capacity in connection with such interest.
On the other hand, the essential ingredients of the offense proved, which is possession of prohibited interest in violation of Section 3(h) of the Anti-Graft Law, are as follows:
1. The accused is a public officer;
2. He has a direct or indirect financial or pecuniary interest in any business, contract or transaction; and
3. He is prohibited from having such interest by the Constitution or any law.
It is clear that the essential ingredients of the offense proved constitute or form part of those constituting the offense charged. Put differently, the first and second elements of the offense charged, as alleged in the information, constitute the offense proved. Hence, the offense proved is necessarily included in the offense charged, or the offense charged necessarily includes the offense proved. The variance doctrine thus finds application to this case, thereby warranting the conviction of petitioner Edgar Teves for the offense proved.10 cralawred
The essential common ingredient appreciated by the majority is clearly the existence of direct or indirect financial or pecuniary interest. Yet the element of financial or pecuniary interest contemplated under the Second Mode is one prohibited by law, a qualification not present in the First Mode.
Under the First Mode, the element considered is simply that the public official maintains a financial or pecuniary interest, whether or not prohibited by law. This contrasts to the Second Mode, wherein such interest is particularly qualified as one prohibited by the Constitution or by any other statute. Thus, while the pecuniary interest of a town mayor who possesses an ownership share in a real estate firm may be cause for liability under the First Mode if the other requisites thereof concur, it is not cause for liability under the Second Mode as such ownership is not prohibited either by the Constitution or by any other law.
It should be taken into the account that the proper application of the variance doctrine ordinarily does not run afoul of the Constitution because it is expected that the accused has been given the opportunity to defend himself/herself not only of the offense charged, but also of the offense eventually proven. This is because the essential elements of the offense proved are already necessarily included in the offense charged.11 For the variance doctrine to apply, there must be a commonality of elements within the offense charged and offense proved, to the extent that an Information detailing the offense charged can be deemed as well as an Information detailing the offense proven.
Hence, the threshold question should be whether violation of Section 3(h) through the Second Mode is necessarily included in a violation of Section 3(h) through the First Mode. An affirmative answer is precluded by the difference in the nature of the pecuniary interest that respectively lie at the core of the two modes.
Information Deficient To Sustain Conviction for Any Crime Other than the First Mode of Violation of Section 3(h)
An even more crucial reason why Teves should be acquitted pertains to the particular Information charged against him.
In relation to Tevess pecuniary interest in the cockpit, all the Information alleges is that Teves had a direct financial or pecuniary interest in the cockpit. It does not allege that such pecuniary interest violates either the Constitution or any other law. It does not even state that maintaining the pecuniary interest in the cockpit is in itself unlawful. Moreover, it does not make any reference to Section 89(b) of the Local Government Code, more so of the fact that such pecuniary interest is prohibited under the said statute.
Even the majority concedes that the Information does not charge the Teves spouses with violating the Second Mode. The ponencia notes that:chanroblesvirtua1awlibrary
n]ot by any stretch of imagination can it be discerned or construed that the afore-quoted last part of the information charges the petitioners with the second mode by which Section 3(h) of the Anti-Graft Law may be violated. Hence, we agree with the petitioners that the charge was for unlawful intervention in the issuance of the license to operate the Valencia Cockpit. There was no charge for possession of pecuniary interest prohibited by law.12 cralawred
In short, the Information does not give any indication that the Office of the Special Prosecutor, which had lodged the charge sheet, was genuinely aware that the fact of Tevess ownership of the cockpit actually constitutes a violation of a law, or any law for that matter. But before the Court chalks it up as a lucky break for the government, it should first examine whether Tevess constitutional rights as an accused would be impaired if he were found guilty of a charge on the basis of an Information clearly predicated on a different ground.
Clearly, the Information is sufficient to convict Teves for the First Mode of violating Section 3(h), had the evidence warranted conviction. It amply informs Teves of that particular charge to the extent that he could adequately prepare a defense in his behalf. However, would the same Information similarly suffice to have allowed Teves to defend himself against a charge that maintaining the financial/pecuniary interest in the cockpit is itself illegal? Clearly, it would not and I so maintain.
Our holding in Esguerra v. People13 is in point. The accused was charged with estafa under Article 315, paragraph 1-b of the Revised Penal Code, which pertains to misappropriating personal property received by the offender reposed with trust to preserve or deliver it to another. However, while the Court of Appeals found that Esguerra could not be held liable for Estafa under Article 315, paragraph 1-b, he still could be held responsible for violation of the same Article, but under paragraph 3(2-a), which pertains to false pretenses or fraudulent acts committed by making misrepresentations as to his identity or status.14 The Court reversed the conviction, noting that:chanroblesvirtua1awlibrary
It is undisputed that the information contains no allegation of
misrepresentation, bad faith or false pretenses, essential element in the crime
of which appellant was found guilty by the Court of Appeals. This is so,
evidently, because, as already stated, the fiscal and the private prosecutor
avowedly were prosecuting the accused for the crime of misappropriation and
conversion committed with unfaithfulness and abuse of confidence for which the
appellant went to trial and was convicted by the lower court. It is true the
information states that "the accused, upon representations (not
misrepresentations) that the accused had copras ready for delivery to it, took
and received" the sum of
P4,400.00. Nowhere does it appear in the
information that these "representations" were false or fraudulent, or
that the accused had no such copra at the time he allegedly made such
"representations." The falsity or fraudulentness of the pretense
or representation or act being the very constitutive element of the offense,
allegation to that effect, either in the words of the law or in any other
language of similar import, must be made in the information if the right of the
accused to be informed of the nature and cause of the accusation against him is
to be preserved. xxx15 cralawred
In the case at bar, the constitutive element of the Second Mode for violating Section 3(h) is the possession of a pecuniary interest that the public officer is prohibited from having by law. Necessarily then, the Information should spell out which law prohibits such financial or pecuniary interest if conviction could be had based on the possession of such interest. Such fact would be critical in order to afford the accused the opportunity to prepare an intelligent defense. Had the Information notified Teves of his possible culpability hinging on Section 89(b) of the Local Government Code, Teves would have had the chance to study the provision and prepare accordingly. There are several avenues the defense could have pursued, such as an examination of relevant jurisprudential precedents regarding Section 89(b) or of its legislative history. Teves could have even conducted a contextual analysis of Section 89(b) in relation to the rest of the Local Government Code or of other statutes. Indeed, the validity itself of Section 89(b) could be fair game for judicial review, and it would be understood if Teves had pursued that line of argument, considering that the invalidity of the provision would equate to his absolution from criminal charges that may arise from Section 89(b).
But the simple fact remains that Teves could not have pursued these plausible defenses because Section 89(b) was not put in issue by the Information. Had he raised any matter relating to Section 89(b) during trial, these would have been deemed irrelevant as it bears no relation to the charge at hand. Indeed, the prosecution made no effort to demonstrate that Tevess interest in the cockpit was illegal under Section 89(b), as can be gleaned from the documentary evidence submitted16 on the basis of which judgment was rendered.17 Instead, intensive efforts were exerted by the prosecution to establish that Teves, in his official capacity, had caused the issuance of a license on or about 4 February 1992 to operate the cockpit in question. Confronted with the culpable acts alleged in the Information, Teves accordingly devoted his own defense to disprove the allegation that he had indeed issued the licenses for the operation of the cockpit. There is no indication that during the trial, the parties or the Sandiganbayan dwelt on the aspect that a municipal mayor may not hold an interest in a cockpit under Section 89(b), which is understandable considering that the Information itself does not proffer aspect as an issue.
Yet the Sandiganbayan anyway based its finding of guilt on Section 89(b), in relation to the Second Mode, despite the fact that the aspect had not been raised, much more the accused afforded the opportunity to offer a defense against such claim. It would be simplistic to justify the finding by pointing out that the accused had anyway admitted the facts that constitute a violation of Section 89(b). Even if the questions of fact are settled, the accused remains entitled to raise a question of law on the scope and reach, if not validity, of Section 89(b).
I am not arguing that Section 89(b) is invalid, but I am defending Tevess putative right to argue in such manner, or to be allowed the opportunity to raise any similarly-oriented arguments pertaining to the provision. It may run counterintuitive to sustain a legal doctrine that extenuates the penalty of the seemingly or obviously guilty, but precisely our Constitution is a document that is not necessarily attuned to common sense if legal sense dictates otherwise. Thus, the Constitution regards every criminally accused as innocent at the onset of trial, even an accused who murders another person in front of live television cameras to the horror of millions who witnessed the crime on their television sets. In such an instance, everybody knows that the accused is guilty, yet a judicial trial still becomes necessary to warrant for a conviction conformably to the dictates of due process.18 It should be kept in mind that the question of guilt is not merely a factual question of did he/she do it, such being the usual treatment in the court of public opinion. In legal contemplation, it also requires a determination of several possible legal questions such as is he/she justified in committing the culpable act;19 is he/she exempt from criminal liability despite committing the culpable act;20 or even whether the acts committed actually constitute an offense. It is thus very possible that even if it has been factually established that the accused had committed the acts constituting a crime, acquittal may still be legally ordained.
Therefore, it was not satisfactory on the part of the Sandiganbayan to have relied merely on the uncontroverted fact that Teves had a financial or pecuniary interest in the cockpit despite the prohibition under Section 89(b). That was not the charge lodged in the Information, nor is it even necessarily included in the offense actually alleged in the Information. The Anti-Graft Courts conclusion of guilt is based on a de novo finding which the accused had neither an opportunity to defend against, nor even would have expected as a proper matter of inquiry considering the silence of the Information or the trial proceedings on the question of Section 89(b).
Even more galling is that nowhere in the Information is it even alleged that maintaining an interest in a cockpit is actually illegal. Not only is the charge sheet silent as to which law was violated, but such fact of owning an interest in a cockpit actually constitutes an offense. For that reason, I am confident that my view does not run counter to the well settled ruling of the Court in U.S. v. Tolentino21 that where an offense may be committed in any several different modes, and the offense is alleged to have been committed in two or modes specified, it is sufficient to prove the offense committed in any one of them, provided that it be such as to constitute the substantive offense.22 The Information was crafted in such a way that only one particular offense was charged, and the alleged manner through which such offense was committed did not constitute ground for conviction for another offense.
There may have been stronger basis to uphold the conviction had the Information alleged that the mere act of possession of the pecuniary interest in the cockpit was in itself a violation of law, even if which law transgressed was not denominated in the Information. At least in such a case, Teves would have been put on guard that the legality of his ownership of the cockpit was a controversial issue and thus prepared accordingly, even if it would have to entail his having to research as to which law was actually violated by his ownership. But the Information herein is not so formulated. It was evidently crafted by persons who had no intention of putting into issue the illegality of Teves ownership of the cockpit, but arguing instead that Teves illegally abused his office by issuing a license in connection with such cockpit.
My submission to acquit Edgar Teves necessarily results in the acquittal of his wife, Teresita. She is charged as a conspirator to the commission of her husbands felonious acts, and thus the exoneration of her husband should lead to a similar result in her favor. This observation is made without disputing the finding of the majority that there is no sufficient evidence that Teresita Teves conspired with her husband to commit a violation of Section 3(h) of the Anti-Graft Law.
Perhaps there is some reluctance in acquitting a public official accused of malfeasance in connection with the public office held. Such a result bolsters the general government crusade against graft and corruption, and is usually popular with the public at large. Still, the most vital essence of the democratic way of life is the protection of the bedrock guarantees extended by the Constitution to all persons regardless of rank. These rights cannot be bargained away, especially when they stand as the sole barrier to the deprivation of ones cherished right to liberty. A due process violation cannot be obviated by the technical application of a procedural rule.
I cannot join the Court in giving imprimatur to a conviction for a crime against which the accused was deprived the opportunity to defend himself. I respectfully DISSENT, and vote to ACQUIT Edgar and Teresita Teves.
1 See Section 14(2), Art. III, Const.
2 See People v. Despavellador, 110 Phil. 800, 804 (1961).
4 Once it is shown or determined that a variance exists, the issue is whether the variance is material or prejudicial, so that it affects substantial rights of the accused. 41 Am Jur 2d 259; citing cases.
5 Republic Act No. 3019.
6 Rollo, p. 52.
7 Id. at 44.
8 Koh Tieck Heng v. People, G.R. NOS. 48535-36, 21 December 1990, 192 SCRA 533, 543; citing U.S. v. Campo, 23 Phil. 368 (1912); Esguerra v. People, 108 Phil. 1078 (1960); People v. Despavellador, 110 Phil. 800 (1961). Having the right to be informed of the criminal charge that he or she is to meet at trial, the accused cannot be tried for or convicted of an offense not charged in the indictment or information. Put simply, not only must the government prove the crime it charges, it must charge the crime it proves. 41 Am Jur 2d 257, citing cases.
9 21 Am Jur2d 325.
10 Decision, pp. 10-11.
11 An indictment for a particular offense serves as an indictment for all included offenses, even though the latter are not specifically set forth in the indictment 41 Am Jur 2d 259; citing People v. Schmidt, 126 Ill 2d 179, 127 Ill Dec 816, 533 NE2d 898, 1988 Ill LEXIS 187.
12 Decision, p. 9-10.
13 108 Phil. 1078 (1960).
14 Id. at 1082.
15 Id. at 1083-1084.
16 See Rollo, pp. 32-36.
17 No testimonial evidence was received into evidence, the parties agreeing to the authenticity of the documentary evidence. Rollo, p. 31.
18 The right to a fair and impartial trial applies whether an accused is innocent or guilty and is in no degree impaired or diminished by the strength or compelling character of the evidence against him. 21 Am Jur 2d 234. If an accused has not been afforded a fair trial before an impartial tribunal, it is obvious that he has not been afforded due process. B. Schwartz, Constitutional Law (1972), at 206.
19 See Article 11, Revised Penal Code, pertaining to Justifying Circumstances.
20 See Article 12, Revised Penal Code, pertaining to Exempting Circumstances.
21 5 Phil. 682 (1906).
22 U.S. v. Tolentino, supra note 11, at 685. See also Jurado v. Suy Yan, 148 Phil. 677, 686 (1971); Ko Bu Lin v. Court of Appeals, 204 Phil. 211, 220 (1982).