ARTURO DE GUZMAN, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND THE SANDIGANBAYAN, RESPONDENTS.

An appeal by Certiorari from the Decision of respondent Sandiganbayan^[1]
in Criminal Case No. 190 convicting petitioner, Arturo de Guzman, of Malversation of Public Funds.

We resolved to “(a) give due course to the petition and (b)
require the parties to file their respective Memoranda on the constitutional
questions raised.”

1. Petitioner assails the rule-making power of the Sandiganbayan as violative
of Article X, section 5(5) of the Constitution, which vests on the Supreme
Court the power to promulgate rules concerning pleading, practice and procedure
in all Courts.

It is true that Section 9 of Presidential Decree No. 1606, the
law creating the Sandiganbayan, vests it with
rule-making power, thus:

“Sec. 9.  Rule-making
Power.  ? The Sandiganbayan
shall have the power to promulgate its own rules of procedure and, pending such
promulgation, the Rules of Court shall govern its proceedings.”

However, since the Sandiganbayan
is a Court, its rule-making power must be construed, out of
“constitutional necessity” as being subject to the approval of the
Rules by the Supreme Court.  Mr. Justice
Antonio Barredo had expressed this view in his
Concurring Opinion in “Nuñez vs. Sandiganbayan, 111 SCRA 433, 455 (January 30, 1982) when he said:

“x x x the rule-making power granted to it (the Sandiganbayan) by P.D. 1606 must of constitutional necessity
be understood as signifying that any rule it may promulgate cannot have force
and effect unless approved by the Supreme Court, as if they have originated therefrom.”

The “Rules of the Sandiganbayan”
were promulgated on January 10, 1979,
and Rule XVIII thereof expressly provides that they “shall take effect
upon approval.” The approval referred to can only refer to approval by the
Supreme Court.  The Sandiganbayan
has submitted its Rules to this Court. 
In the absence of any action of approval or disapprobation from this
Court the Sandiganbayan has to be guided by
the Rules of Court.^[2]
We have reviewed the proceedings before the Sandiganbayan
and we have not found any indication therein of contravention of the Rules of
Court.

2. Petitioner also impugns the authority of the First Division of
the Sandiganbayan to hear and decide his case
contending that inasmuch as it was the only Division which had been
constituted, it could not legally function as a judicial body and,
consequently, he was placed in a “precarious predicament”.

This argument must also fail. 
Although the Sandiganbayan is composed
of a Presiding Justice and eight Associate Justices^[3],
it does not mean that it cannot validly function without all of the Divisions
constituted.  Section 3 of PD 1606 pro­vides
that “the Sandiganbayan shall sit in
three divisions of three Justices each”. 
While Section 5 thereof provides that “the unanimous vote of the
three justices in a division shall be necessary for the pronouncement of a
judgment.”

Thus, the Sandiganbayan
functions in Divisions of three Justices each and each Division functions
independently of the other.  As long as a
Division has been duly constituted it is a judicial body whose pronouncements
are binding as judgments of the Sandiganbayan.

The judgment convicting petitioner was a unanimous Decision of
the First Division duly constituted.  It
thus met the requirement for the pronouncement of a judgment as required by
Section 5 of PD 1606, supra.

We find no substance to the argument that no member could be
expected to dissent because no special Division of five Justices could then be
formed, considering that the Decision was a unanimous one and there was no
indication that any one of the three Justices had intended to dissent.

3. Petitioner’s contention that there is a dilution of his right
to appeal inasmuch as Decisions of the Sandiganbayan
are subject to review by this Court only by Certiorari under Rule 45 of
the Rules of Court^[4]
and, consequently, he is deprived of his right to appeal on questions of fact,
is neither meritorious.  On this point,
this Court, speaking through Chief Justice Enrique M. Fernando, stressed in the
Nuñez case:

“Even from the standpoint then of the American decisions
relied upon, it cannot be successfully argued that there is a dilution of the
right to appeal.  Admittedly, under
Presidential Decree No. 1486, there is no recourse to the Court of Appeals, the
review coming from this Court.  x x x Would the omission of the
Court of Appeals as an intermediate tribunal deprive petitioner of a right
vital to the protection of his liberty? 
The answer must be in the negative. 
In the first place, his innocence or guilt is passed upon by the
three-judge court of a division of respondent Court.  More­over, a unanimous vote is required,
failing which ‘the Presiding Justice shall designate two other justices from
among the members of the Court to sit temporarily with them, forming a division
of five justices and the concurrence of a majority of such division shall be
necessary for rendering judgment.  Then
if convicted, this Court has the duty if he seeks a review to see whether any
error of law was committed to justify a reversal of the judgment.  Petitioner makes much, perhaps excessively so
as to the wont of advocates, of the fact that there is no review of the
facts.  What cannot be sufficiently
stressed is that this Court in determining whether or not to give due course to
the petition for review must be convinced that the constitutional presumption
of innocence has been overcome.  In that
sense, it cannot be said that on the appellate level there is no way of
scrutinizing whether the quan­tum of evidence required for a finding of guilt
has been satisfied.  The standard as to
when there is proof of such weight to justify a conviction is set forth in
People vs. Dramayo“.^[5]

Justice Barredo, in his Concurring
Opinion also observed:

“x x x I
believe that the accused has a better guarantee of a real and full
consideration of the evidence and the determination of the facts where there
are three judges actually seeing and observing the demeanor and conduct of the
witnesses.  It is Our constant
jurisprudence that the appellate courts should rely on the evaluation of the
evidence by the trial court judges, except in cases where pivotal points are
shown to have been overlooked by them. 
With more reason should this rule apply to the review of the decision of
a collegiate trial court.  Moreover, when
the Court of Appeals passes on an appeal in a criminal case, it has only the
records to rely on, and yet the Supreme Court has no power to reverse its
findings of fact, with only the usual exceptions already known to all lawyers
and judges.  I strongly believe that the
review of the decisions of the Sandiganbayan whose
three justices have actually seen and observed the witnesses as provided for in
P.D. 1606 is a more iron-clad guarantee that no person accused before such
special court will ever be finally convicted without his guilt appearing beyond
reasonable doubt as mandated by the Constitution.”^[6]

4. Petitioner’s argument that he was deprived of his right to a
preliminary investigation as the same was conducted ex parte
has much less to recommend it. 
Petitioner failed to appear at said investigation despite notice thereof
received by a member of his family, in the same way that the formal
administrative investigation against him for dishonesty, conduct prejudicial to
the best interest of the service, and for violation of civil service rules and
regulations was similarly conducted ex parte
because of petitioner’s failure to appear despite due notice served upon and
received by his wife, where he was found guilty as charged and dismissed from
the service effective on the day immediately following his last day of service,
with pay (Exhibit “C”).

Besides, an ex parte
preliminary investigation is authorized under section 1(b) of PD 911, reading:

“x x x If respondent cannot be subpoenaed, or if subpoenaed he
does not appear before the investigating fiscal or state prosecutor, the
preliminary investigation shall proceed without him.  x x x “

It should also be recalled that the statutory right to a
preliminary investigation may be waived expressly or impliedly.  Petitioner waived it when he failed to appear
for such investigation despite notice. 
The denial of his petition for reinvestigation by the Tanodbayan was a matter of discretion with the latter.

5. Finally, petitioner’s contention that his conviction is not in
accord with law and jurisprudence is unmeritorious.  The judgment against petitioner sentenced him
as follows:

“WHEREFORE, judgment is hereby rendered finding accused Arturo
de Guzman guilty beyond reasonable doubt as principal of the crime of Malversation of Public Funds, as defined and penalized in
Article 217, paragraph 4, of the Revised Penal Code; and, in default of any
modifying circumstance in attendance, sentencing him to an indeterminate
penalty ranging from Twelve (12) Years and One (1) Day, as minimum, to Eighteen
(18) Years, Eight (8) Months and One (1) Day, as maximum, both of reclusion
temporal, with the accessories provided by law and with credit for
preventive imprisonment undergone, if any, in accordance with the provision of
Article 29 of the Re­vised Penal Code, as amended by Republic Act 6127; to
suffer perpetual special disqualification; to pay a fine in the amount of
Seventy Six Thousand Five Hundred Twenty One and 37/100 Pesos (P76,521.37); to
indemnify the City of Manila, Republic of the Philippines, in the same amount
of Seventy Six Thousand Five Hundred Twenty One and 37/100 Pesos (P76,521.37)
representing the amount malversed; and, to pay the
costs.”

We find that the Sandiganbayan
has not committed any error of law in convicting petitioner.  For the period from May 22, 1978 to June 7,
1978, petitioner, as Travelling Collector and an
accountable officer, collected the total amount of P204,319.32 from various
agencies (Veterinary Inspection Board, Public Health Laboratory, North
Cemetery, among others) but remitted to the General Teller (Mr. Gerardo Verder, now retired), Cash Division Department of Finance,
City of Manila, only P127,797.95, thus resulting in a shortage of
P76,521.37.  Said shortage pertained to
collections of petitioner from the Veterinary Inspection Board (Exhibits
“H-1-i” to “H-1-n”).

Petitioner’s contention that his accountabi­lity was not proven
considering that the audit exam­ination was conducted in his absence and after
he had signed the Report of Examination (Exhibit “H”) in blank
presented to him by Auditing Examiner Maximo Pielago, thus making said procedure irregular, is neither
persuasive.  If he was not present during
the audit examination, petitioner himself was to blame for he should have known
that when he received a de­mand letter from Pielago
to produce his accountabilities (Exhibit “G”) on June 5, 1978 an examination would be
forthcoming.  Upon petitioner’s assurance
that he had no more existing accountabilities as he had ceased to make
collections due to his expected promotion, and his promise to produce his accountabilities
on June 7 or 8, 1978, Pielago presented said Report
of Examina­tion to petitioner for signature. 
On this point, we are in full agreement with the findings of respondent
Court:

“Neither is there any merit in the accused’s
asseverations that his accountability has not been proved.  It is true that as candidly admitted by
Auditing Examiner Pielago himself, he made the
accused sign the Report of Examination (Exhibit H) in blank even before any
examination could be conducted.  But,
this rather irregular procedure is not altogether without any reasonable
explanation.  As uncontradictedly
explained by Pielago, he resorted to that course of
action because, upon his first demand to the accused for the production of his
cash and cash items, the latter already told him that he had nothing to account
for anymore because he had since ceased making collection in anticipation of
his then sup­posed pending promotion. 
Evidently, because of this assurance from the accused, Pielago may have thought that the projected examination
would be merely pro-forma and could not possibly result in anything but a
zero-zero balance as far as the accounts of the accused were concerned.”^[7]

It must be emphasized that petitioner did not report for work
anymore beginning June 9, 1978, despite a demand from Pielago
for the production of his accountabilities (Exhibit “M”), a reminder
of his criminal liability, and the fact that administrative charges had been
filed against him for violation of civil service rules and regulations and
conduct prejudicial to the best interests of the service (Exhi­bit
“F”).  Pielago
thus proceeded with the audit examination of petitioner’s accountability from
the official records available, namely:

“x x x Official Receipts issued by him to collection agents from
whom he received public funds (Exhibits H-1-a to H-1-n); Daily Statements of
Collections Exhibits I, I-1 to 1-7) and Official Receipts (Exhibits L, L-1 to
L-8) covering remittances made by him of his collection to the General Teller;
the Ledger reflecting entries of collections made by him from the Veterinary
Inspection Board (Exhibits Q, Q-1, Q-1-a to Q-1-f, Q-2, Q-2-a to Q-2-e); and
the Cashbooks also recording his remittances of his collections to the General
Teller (Exhibits J, J-1, J-1-a, J-2, J-2-a, K, K-1, K-1-a, K-2-a, and
K-2-b)”^[8]

As against the above documentary evidence, petitioner’s posture
that he had turned over his collections everyday to Mr. Gerardo Verder, the General Teller then, who had assured him that
he would do the explaining, is lame, indeed. 
Besides, he could not but admit his accountability for receipts, with
serial nos. 155901 to 155990, issued by him, but under the accountability of
Gregorio Saño, a travelling
collector, because of petitioner’s own pending request for transfer of
accountability.^[9]

In the face of the evidence presented, petitioner failed to
overcome the presumption under Art. 217 of the Revised Penal Code that the
failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any public officer, shall
be prima facie evidence that he has put such missing funds to personal
use.  In Malversation,
all that is necessary to prove is that the defendant received in his possession
public funds, that he could not account for them and did not have them in his
possession and that he could not give a reasonable excuse for the disappearance
of the same.  An accountable public
officer may be convicted of Malversation even if
there is no direct evidence of misappropriation and the only evi­dence is that
there is a shortage in his accounts which he has not been able to explain
satisfactorily.^[10]

Neither do we find tenable petitioner’s contention that his
accountability was not established as the Report of Examination was denominated
by Pielago as “preliminary”.  As held by respondent Court:

“True, the report of the audit aforesaid was denominated as
‘preliminary’.  But, this does not imply
that the sane may not be taken as basis for determining the extent of the
accountability of the accused as of the date of said audit.  If there was anything tentative about the
finding made, it was only because collections of the accused under official
receipts known to be still in his possession and the stubs of which had not yet
been submitted, were not yet accounted for. 
Hence, the only meaning that the term’ preliminary’ had in the premises
was that the amount of shortage could still be increased if all said receipts
are eventually found and taken into account. 
But, on the basis of the re­cords available to the auditor, the amount
of shortage established could not but be considered final.”

All told, we are convinced that the constitutional presumption of
innocence in petitioner ‘s favor has been overcome and his guilt established
beyond reasonable doubt.

WHEREFORE, the judgment appealed from, convicting
petitioner of the crime of Malversation of Public Funds, is hereby affirmed.

Costs against petitioner, Arturo de Guzman.

SO ORDERED.

Fernando, C.J., Aquino, Guerrero, Abad Santos, De Castro, Plana, Escolin, Vasquez, Relova, and Gutierrez, Jr., JJ., concur.

Teehankee, J., reiterates his concurrence with the grounds of
Justice Makasiar’s dissent in Nuñez
vs. Sandiganbayan, G.R. Nos. 50581 and 50617, Jan. 30, 1982.

Makasiar, J., reiterates his concurring and dissenting opinion in the Nuñez case; because the crime was committed several days
before the promulgation on June 11, 1978 of PD No. 1486 and ordered eleven (11) months before
the promulgation on December 10, 1978 of PD No. 1606.

Concepcion, Jr., J., on leave.

^[1]
Penned by Justice Bernardo P. Fernandez and con­curred in by Presiding Justice
Manuel R. Pamaran and Justice Romeo M. Escareal.

^[2]
Sec. 9, PD 1606, supra.

^[3]
Sec. 1 PD 1606.

^[4]
Sec. 7, ibid.

^[5] Nuñez vs. Sandiganbayan,
pp. 450-451, supra.

^[6] Nuñez vs. Sandiganbayan,
p. 457, supra.

^[7]
pp. 41-42, Rollo.

^[8]
p. 42, ibid.

^[9]
Exhibit “R”, T.s.n., January 18, 1980, pp. 101-104.

^[10] Aquino, The Revised Penal Code, Vol. II, 1976 Edition
citing U.S. vs. Melencio, 4 Phil. 331, (1905);
U.S. vs. Javier, 6 Phil. 334 (1906); and People vs. Mingoa, 92 Phil. 856 (1953).