[G.R. No. 120391. September 24, 1997]




The petitioner, SIMPLICIO AMPER, was charged with the violation of Section 3(e) of Republic Act No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act which provides as follows:

Sec. 3. Corrupt practices of public officers.- In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

x x x x x x x x x

(e) Causing any undue injury to any party, including the Government, or giving advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith, or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

The Information against him reads:

That on or about August 7, 1988, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, a public officer, being then the Assistant City Engineer of Davao City, taking advantage of his official position, with manifest partiality and bad faith in the discharge of his official duties, did then and there wilfully- (sic) unlawfully, and criminally, cause undue injury to the Republic of the Philippines by using for his personal benefit and advantage, to treasure hunt, one (1) unit Allis Backhoe, belonging to the City Government of Davao, without the knowledge, consent and authority from the latter, to the damage and prejudice of the City Government of Davao.


Upon arraignment the petitioner pleaded not guilty and trial ensued. The prosecution presented its witnesses whose testimonies are succinctly summarized in the Comment filed by the Office of the Solicitor General (OSG), the pertinent portions of which we quote hereunder with approval.

On August 1, 1988, Filemon Cantela was visiting his two sisters-in-Christ near the vicinity of the Guzman Estate at Matina District, Davao City when he chanced upon petitioner Simplicio Amper, Assistant City Engineer, Davao City, together with two others, scanning the area with the use of detector. After petitioner had left, he inquired and gathered from the landowner, Emilio Alvarez-Guzman, that petitioner and his companions were looking for hidden treasure and that they were planning to operate in the area with the use of a backhoe which is a heavy equipment used for excavating. Apprehensive that appellant, being the Assistant City Engineer, and as such had at his disposal the use of the city government-owned backhoe, might actually make use of the said equipment, he advised his sister-in-Christ to inform him if and when petitioner would actually resume his treasure hunting operation in the area. (TSN, April 11, 1991, pp. 14-19).

On August 6, 1988, around 6:00 oclock in the afternoon (sic), Cantela was informed by his sister-in-Christ that petitioner and five others were earlier in the area clearing the premises and preparing to resume their treasure hunting operation that night. Together with Mike Lusenara and Marcelo Gervacio, Jr. of the Civil Security Unit, he prepared to conduct a surveillance on petitioner and his companions that evening (Ibid., pp.19-20).

They went to the area at about 8:30 in the evening and discreetly waited for the arrival of petitioner and his companions. Around 11:30 in (sic) the same evening, petitioner arrived on board a Toyota Land Cruiser, together with two others who were on board another vehicle. Shortly, after the arrival of petitioner and his companions, a backhoe, bearing inscription on its sides that it is owned by the city government of Davao City, arrived (Ibid., pp. 22-26). The backhoe was being operated by Tobias Porta, a heavy equipment operator assigned at the City Engineers Office, who was with his assistant, Timoteo Borongan. Thereafter, Porta, upon the instruction of petitioner, began to excavate the area with the use of the backhoe. Cantela requested Henry Adriano to go to the house of Davao City Mayor Rodrigo Duterte and inform him of petitioners illegal activity (Ibid., pp. 27-30).

Around 2:15 in the morning of August 7, 1988, Mayor Duterte arrived, together with several policemen, and surprised petitioner and his companions who were still in the act of excavating the area. However, before the Mayor could actually order their arrest, some of petitioners companions scampered, leaving only petitioner, Porta and Borongan (Ibid., p. 31).

Thereupon, Mayor Duterte ordered Porta to stop the engine of the backhoe and confronted him as to what he was digging in the area. Porta replied that he was ordered by appellant to dig for gold. Mayor Duterte likewise confronted Borongan, who upon being asked the same question, gave the same reply (Ibid.).

Duterte ordered one of the members of the Civil Security Unit to pick up petitioner, who was then sitting in his vehicle parked nearby. Mayor Duterte confronted petitioner and shortly thereafter, ordered petitioner, Porta and Borongan to follow him to the Tolomo Police Station (Ibid., p. 32).

Mayor Duterte declared that there are four (4) backhoes owned by the city government of Davao City including the subject backhoe; that he checked it out with the Office of the City Engineer and he found out that no permission was granted to petitioner to use the subject backhoe for private purposes (TSN, April 29, 1993, p. 12).

While in the past, the use of the city government-owned backhoe for private purposes was allowed upon payment of the corresponding rental, Mayor Duterte disallowed the same during his administration because the city government which had so many projects to undertake needed those equipment for the aforesaid projects. He allowed the lease of the city-government-owned backhoes to private individuals but not as matter of policy and only in extreme cases upon payment of rental (Ibid.).[2]

The petitioner denied the allegations against him and asserted that contrary to Mayor Dutertes claim that the use of the subject backhoe was unauthorized, the same was in fact officially leased by the Davao City government to Francisco Chavez of F.T. Chavez Construction, thus, its use on the private property of Segundo Tan was proper.[3] Public respondent Sandiganbayan found the foregoing asseveration to be without merit considering that petitioner was caught en flagrante delicto directing the use and operation of the said backhoe for his own treasure hunting operations. Furthermore, the petitioner failed to present either Francisco Chavez or Segundo Tan to corroborate his testimony that the backhoe subject of the instant case was the same backhoe which Francisco Chavez rented from the city government.[4]

In a decision promulgated on March 6, 1995, the Sandiganbayan convicted the petitioner of violating Section 3(e) of R.A. No. 3019 and sentenced him to suffer the penalty of imprisonment of SIX (6) YEARS, ONE (1) MONTH and ONE (1) day, to further suffer perpetual special disqualification from public office, and to pay the costs.[5]

We have carefully reviewed the records of this case and find nothing therein to warrant a reversal of the assailed decision of the Sandiganbayan.

The petitioners conviction was anchored mainly on the prosecution witnesses uniform testimonies that they saw him in the actual perpetration of the crime charged. Filomeno Cantela attested to the petitioners presence at the scene of the crime from the inception of the treasure hunting operation at around 11:30 in the evening of August 6, 1988 until his subsequent apprehension by the group of Mayor Duterte at around 2:00 oclock in the morning of the next day. Petitioners participation in the commission of the said crime was categorically established also by Filomeno Cantela who further testified that the backhoe began to operate upon the instructions of the petitioner.[6] And no less than the Mayor of Davao City whose group effected the petitioners arrest corroborated this eyewitness account.[7] Furthermore, even the backhoe operator, Tobias Porta, belied the petitioners futile denials when he testified that on the night of August 6, 1988, the petitioner asked him to proceed to the vacant lot in front of the A-Mart in Matina District, Davao City on the pretext that they were going to install concrete culverts but upon reaching the said lot, petitioner ordered him to excavate the area for gold.[8]

No ill-motives have been shown to induce the abovementioned witnesses to falsely testify against the petitioner and maliciously implicate him in the said crime. The petitioners representation that Mayor Duterte had an axe to grind against him because he did not support the latter in the past elections is unsupported by evidence and cannot, thus, be accorded any iota of consideration. At the risk of being repetitious, we state here the well established rule that absent a showing that the prosecution witnesses were actuated by any improper motive, their testimony is entitled to full faith and credit.[9] This being so, the petitioners claim of non-involvement must necessarily fail, for denial, to reiterate, cannot prevail over positive identification.[10]

Moreover, what the petitioner ultimately assails are the factual findings and evaluation of witnesses credibility by the trial court. It is a settled tenet, however, that the findings of fact of the trial court is accorded not only with great weight and respect on appeal but at times finality, provided that it is supported by substantial evidence on record, as in this case. With respect to who as between the prosecution and the defense witnesses are to be believed, the trial courts assessment thereof enjoys a badge of respect for the reason that the trial court has the advantage of observing the demeanor of the witnesses as they testify.[11]

Anent the petitioners attempt to obtain a new trial of his case on the ground of newly discovered evidence, suffice it to state that it simply cannot be allowed as correctly ruled by the Sandiganbayan for the undeniable reason that the testimonies of Francisco Chavez and Segundo Tan which the petitioner seeks to belatedly present do not constitute newly discovered evidence. Under the Rules of Court,[12] the requisites for newly discovered evidence as a ground for new trial are: (a) the evidence was discovered after the trial; (b) such evidence could not have been discovered and produced at the trial with reasonable diligence; and (c) that it is material, not merely cumulative, corroborative or impeaching, and is of such weight that, if admitted, will probably change the judgment. All three requisites must characterize the evidence sought to be introduced at the new trial.[13] Unfortunately, by petitioners own admission, it is not clear on the record why were (sic) they (testimonies of Francisco Chavez and Segundo Tan) not presented (but) the accused (herein petitioner) had manifested that they should have been presented x x x.[14] Aside from the petitioners bare assertion that the non-presentation of these testimonies was not due to his fault or negligence, he miserably failed to offer any evidence that the same could not have been discovered and produced at the trial despite reasonable diligence.[15] We also agree with the Office of the Solicitor General (OSG) which accurately observed that the testimonies sought to be introduced as newly discovered evidence would not alter the judgment even if admitted, thus:

Petitioner himself testified that he asked Tobias Porta to operate the backhoe at the behest of Segundo Tan, who about one or two days before August 7, 1988, requested him to look for a backhoe operator, because he would be installing reinforced concrete culverts along his property at the J.P. Laurel, McArthur Highway, Davao City. However, Mayor Rodrigo Duterte, City Mayor of Davao City caught petitioner en flagrante delicto directing the use and operation of the backhoe, not for the purpose of installing reinforced concrete culverts but for his own personal gold treasure hunting operation (TSN, April 29, 1993, p.9). Assuming, therefore, that the testimonies of Francisco Chavez and Segundo Tan may be admitted as newly discovered evidence, petitioner can still be held liable for unauthorized use of the backhoe, because he was not himself authorized to use the backhoe for treasure hunting operation; thus, causing the government of Davao City undue injury because of the undue wear and tear caused to the said equipment.[16]

As a last recourse, the petitioner insists that the testimonies of Francisco Chavez and Segundo Tan should be admitted as newly discovered evidence since the Sandiganbayan relied on the adverse presumption arising from their non-presentation in convicting him. This contention is unfounded and misleading. It is true that according to the Sandiganbayan, the failure on the part of the defense to present these vital witnesses without offering any valid reason therefor, raised the presumption that the testimonies of Francisco Chavez and Segundo Tan would be adverse to petitioners interest if they were actually presented. However, as discussed earlier, the petitioners conviction was based on the overwhelming and unrebutted evidence of his positive identification by the prosecution witnesses, and not, as petitioner would have us believe, on the presumption that the testimonies of Francisco Chavez and Segundo Tan if presented would be adverse to the defenses case. There is, in fact, only one short paragraph in the entire nineteen (19) page decision of the Sandiganbayan which adverts to the non-presentation of Francisco Chavez and Segundo Tan as witnesses for the defense.[17] A close scrutiny of the assailed decision reveals that the antecedent facts of this case as culled from the testimonies of the witnesses were painstakingly established by the ponente[18] in order to arrive at the correct conclusions both of fact and of law. We cannot, thus, subscribe to the petitioners view and reduce the said decision into a conviction premised on an erroneous presumption.

By taking advantage of his official position as Assistant City Engineer of Davao City, the petitioner was able to use for his personal gain, a city government owned Allis Backhoe without any consideration and without any authority from the city government, thereby causing undue injury to the Davao City government consisting in the undue wear and tear caused to the said equipment and its use without consideration.[19]

WHEREFORE, the assailed decision of the Sandiganbayan is hereby AFFIRMED in toto.


Narvasa, C.J., (Chairman), Romero, Melo and Panganiban, JJ., concur.

[1] DECISION promulgated March 6, 1995 in Criminal Case No. 14197, p.1; Rollo, p.28.

[2] COMMENT in G.R. No. 120391 dated March 4, 1996, pp. 2-5; Rollo, pp. 98-101.

[3] PETITION FOR REVIEW in G.R. No. 120391 dated July 25, 1995, p.9; Rollo, p.21.

[4] Supra, p.15; Rollo, p.42.

[5] Supra, p.18; Rollo, p.45.

[6] Supra, pp.12-13; Rollo, pp.39-40.

[7] Ibid.

[8] Supra, p.11; Rollo, p.38.

[9] People of the Philippines vs. Piandiong Y Calda, et al., G.R. No. 118140, February 19, 1997; People of the Philippines vs. Calvo, Jr., et al., G.R. No. 91694, March 14, 1997; People vs. De la Cruz, 229 SCRA 754 [1994]; People vs. Perciano, 233 SCRA 393 [1994].

[10] People vs. Calvo, Jr., ibid.; People vs. Herbieto, et al., G.R. No. 103611, March 13, 1997; People vs. Ferrer, 255 SCRA 19 [1996]; People vs. Porras, 255 SCRA 514 [1996].

[11] Pat. Rudy Almeda vs. Court of Appeals, et al., G.R. No. 120853, March 13, 1997; People vs. Sumalpong, G.R. No. 123404, February 26, 1997; People vs. Herbieto, et al., ibid.; People vs. Panlilio, 255 SCRA 503 [1996]; People vs. Gamiao, 240 SCRA 254 [1995].

[12] Section 2, Rule 121 of the Rules of Court; also Section 1, Rule 37 of the Rules of Court.

[13] Commissioner of Internal Revenue vs. A. Soriano Corporation, et al., G.R. No.113703, January 31, 1997; Dapin vs. Dionaldo, 209 SCRA 38 [1992]; Bernardo vs. Court of Appeals, 216 SCRA 224 [1992]; Tumang vs. Court of Appeals, 172 SCRA 328 [1989].


[15] Commissioner of Internal Revenue vs. A. Soriano Corporation, et al., supra.

[16] Supra, p.6; Rollo, p.102.

[17] Supra, p.15; Rollo, p.42.

[18] Sandiganbayan Justice, Sabino R. De Leon, Jr.

[19] Supra, p.19; Rollo, p.46.