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[ GR No. L-26877, Dec 26, 1969 ]



141 Phil. 519

[ G.R. No. L-26877, December 26, 1969 ]




From a decision of the Court of Appeals, affirming that of the Court of First Instance of Manila, convicting him of the crime of libel and sentencing him to pay a fine of P2,000.00, with subsi­diary imprisonment in case of insolvency, which shall not exceed six (6) months, and to pay the costs, defendant Godofredo Orfanel has appealed, by petition for review on certiorari, which has been given due course.

Complainant, Jesus Ballesteros, is an employee of the Bureau of Printing, in which he has been working since 1953.  On May 5, 1961, defendant Godofredo Orfanel wrote to the Director of Printing and sent by ordinary mail the letter Exhibit A, reading as follows:

"147 Pahe, Quirino District,
Quezon City
May 5, 1961
The Director
Bureau of Printing
I wish to denounce to you what I believe is a flourishing racket in the Bureau of Printing, commit­ted by a certain Jesus Ballesteros with the help of two other employees, this racket according to my in­formation has been going on for two years already under the following circumstances, viz:
1.      That said Jesus Ballesteros and two other employees has been printing Christmas cards, wedding invitation cards, term papers for college stu­dents and others using the properties and facilities of the Bureau of Print­ing for these purposes and appropriating the money derived therefrom for their personal use;
2.      That the printing of these wedding in­vitation cards, term papers and others is being done at night, there being few employees left in the Bureau of Printing;
3.      That on January 5, 1961 said Jesus Bal­lesteros sold to Mr. Artemio Holgado wedding invitation cards printed in the Bureau of Printing.  The undersigned has a sample copy of this wedding invi­tation card which will serve as an evi­dence in case there will be an investi­gation.
4.      That because of this racket Jesus Ballesteros has already bought a choice lot in Las Piñas subdivision, a coconut plantation in Catanauan, Quezon and has a fat bank account in a bank in Manila.
In view of the foregoing, the undersigned respect­fully pray that action on this matter be taken accordingly and that I be informed first before investigation be ini­tiated by your Office as I can furnish you additional in­formation regarding this case.
I wish to request further that these information be held strictly confidential and that my identity be withheld for obvious reasons.
Hoping action will be taken on this matter.
Respectfully yours,

 Upon receipt of this letter, on May 9, 1961, the administrative officer of the Bureau of Printing, Jose Marcilla, turned it over to the Director of Printing, who referred it to his secretary, Mario Banzuela.  Subsequently, the Director of Printing forwarded Exhibit A to the Departments of General Services for administrative action.  As a mat­ter of fact, the defendant had already sent a copy of said letter to the Secretary of General Services.

After investigating the charges contained in Exhibit A, the latter's office submitted its report, Exhibit F, to the Commissioner of Civil Service, recommending complete exoneration of complainant Jeans Ballesteros, and the charges against him were, accordingly, dismissed.  Soon thereafter, complainant commenced the present criminal action for libel, against defendant Godofredo Orfanel.  After due trial, under a plea of not guilty, the Court of First Instance of Manila rendered the aforementioned judgment of conviction, imposing the penalty already adverted to.  On appeal, taken by the defendant, said judgment was affirmed by the Court of Appeals.  Hence, this petition for review on certiorari.

Defendant maintains that the Court of Appeals has erred:  (1) in not holding that Exhibit A is a "privileged communication which would exempt the author thereof from criminal responsibility"; (2) in basing his conviction on a "presumption of malice"; (3) in failing to hold "that Exhibit A merely contained an opinion or belief" for which defendant "incurred no criminal liability"; (4) in holding that the failure of the defense to present Artemio Holgado as a witness "should be taken against" him (defendant); and (5) "in holding that there had been publication of the letter Exhibit A."

With respect to the first assignment of error, it should be noted that a privileged communication may be either absolutely pri­vileged or conditionally privileged.  A Communication is said to be absolutely privileged when it is not actionable, even if its author has acted in bad faith.  This class includes statements made by members of Congress in the discharge of their functions as such, official com­munications made by public officers in the performance of their duties, and allegations or statements made by the parties or their counsel in their pleadings or motions or during the hearing of judi­cial proceedings, as well as the answers given by witnesses in reply to questions propounded to them, in the course of said proceedings, provided that said allegations or statements are relevant to the is­sues, and the answers are responsive or pertinent to the ques­tions propounded to said witnesses.  Upon the other hand, condi­tionally or qualifiedly privileged communications are those which, although containing defamatory imputations, would not be actionable unless made with malice or bad faith.[1] It has, moreover, been held that there is malice when the defamer has been prompted by ill-will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed.[2]

Exhibit A is not an absolutely privileged communication.  It belongs to the class of communications regarded as qualifiedly pri­vileged, pursuant to Article 354 of the Revised Penal Code, reading:

"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 he performance of any legal, moral, or social duty; and
2.      A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions."

More specifically, Exhibit A falls under the first subdivision of the above-quoted provision.  Being conditional or qualified, the privileged nature of said communication does not warrant defendant's acquittal, if he acted in bad faith or with malice.

The second assignment of error, in effect, raises the question whether, in convicting the defendant, the Court of Appeals has merely presumed that he had acted with malice, or found as a fact that he was so motivated in writing and sending Exhibit A to the Director of Printing and the Secretary of General Services.

At the outset, it is not disputed that the imputations made in Exhibit A are per se defamatory.  The defendant testified that he made them in good faith, believing that it was his duty to send Exhibit A to the Director of Printing; but, the trial court and the Court of Appeals found his testimony unworthy of credence.  This finding is one of fact, which is beyond our power to review, in this appeal by certiorari from a decision of the Court of Appeals.  Section 29 of Republic Act No. 296 explicitly provides that deci­sions of said Court, when rendered in the exercise of its exclusive appellate jurisdiction over cases properly brought to it from Courts of First Instance, "shall be final", subject to the discretionary power of review by certiorari of the Supreme Court, on questions of law.  Indeed, it is well-settled that, in the exercise of its juris­diction to so review on certiorari decisions of the Court of Appeals, as distinguished from ordinary appeals or appeals by writ of error or record on appeal, the findings of fact of that appellate court are conclusive upon the Supreme Court.[3]

At any rate, the aforementioned finding of the Court of Ap­peals, confirmatory of that of the trial court, and holding that de­fendant's testimony about his alleged good faith can not be accepted on its face value, and that, on the contrary, he had acted with ma­lice, was not based upon a presumption of malice, but had been deduced from the following circumstances, namely:

1.      The imputations contained in his letter Exhibit A appear to be absolutely groundless.  Indeed, the administrative investigation prompted by said communication resulted in the complete exoneration of complainant Jesus Ballesteros.  What is more, in the present cri­minal action, defendant did not even try to prove either the truth of said imputations, or that there was any semblance of truth therein.  In Exhibit A, defendant said that he had in his possession a sample copy of the wedding invitation card allegedly "printed in the Bureau of Printing" and sold by the complainant to Artemio Holgado.  Yet, defendant did not introduce or offer in evidence, either the aforementioned sample copy of the invitation or the testimony of Mr. Holgado.  Defendant did not even explain why he failed to do so.  Neither did he try to prove that complainant had actually "bought a choice lot in Las Piñas subdivision" and "a coconut plantation in Catanauan, Quezon", in addition to having "a fat bank account in a bank in Manila", as alleged in the fourth specification in said Exhi­bit A.  Worse still, he did not introduce any evidence of specific facts or circumstances that could have led a reasonably prudent man to believe honestly and earnestly that said imputations are true.  Thus, We have no more than defendant's bare testimony about his alleged belief in the truth of said imputations and good faith in mak­ing the same, although he could have introduced evidence in corro­boration thereof, if his story were true.

2.      The record shows that defendant and complainant are second cousins and residents of Catanauan, province of Quezon.  On March 23, 1961, complainant's mother, Maria Orfila, filed, in the Court of First Instance of Quezon, a civil action against appel­lant's wife, Marcelina Avellanida, and her uncle, Benito Avellanida, for the recovery of a parcel of land.  Less than a month and a half later, defendant wrote and sent the letter Exhibit A.  Defendant would have Us believe that this communication had nothing to do with said civil action, to which neither he nor the complainant was a party.  In this connection, His Honor, the trial Judge, had this to say:

"That defendant was actuated by (4) malice in sending the letter, Exh. A, to the Director of Print­ing is unequivocally shown by the fact that, although he allegedly completed his inquiries regarding his charges against the offended party in February, 1961, he did not send his letter-complaint to the Director of Printing until May 5, 1961, obviously by way of re­venge and retaliation to the offended party's mother's filing of a civil action against his, defendant's wife, on March 23, 1961, or just about 43 days before.
"In any event, defendant's pretension that he conducted an investigation into his charges and sent his letter, Exh. A, to the Director of Printing and also another letter of the same tenor to the Secretary of the Department of General Services only after he came to the . . in good faith as to the truth thereof, does not have the ring of truth and sincerity, but of an eleventh hour fabrication to mend broken fences."[4]

The Court of Appeals fully shared this view.  We quote from the decision appealed from:

x x x The testimony of the appellant that he finished his investigation of the supposed racketeer­ing activities of the complainant in the Bureau of Printing in February, 1961, that is, before the com­plaint against his wife was filed by the mother of the complainant, is not worthy of belief because it is not supported by any corroborative evidence and could be easily manufactured.  Indeed, it was but the easiest thing for the appellant to say that he finished in Feb­ruary, 1961, his alleged investigation of the supposed improper activities of the offended party in the Bureau of Printing but, if this were true, then, why was the appellant unable to present any witness whom he had interviewed in the course of his pretended investigation to prove his claim that his supposed investigation took place before the civil case was filed against his wife by complainant's mother?
"The appellant further argues that since he is himself not a party to the case filed by the complain­ant's mother against his (appellant's) wife, he has no personal interest in said case and hence, there is no ground for concluding that he wrote the letter, Each. 'A', with malice.  This argument is obviously without merit because the fruits of the parcel of land, which is the subject matter of the case against appellant's wife, would be conjugal property of the appellant and his wife and hence, said case directly affected the interests of appellant.  Besides, not being estranged from his wife, the appellant would just be following the ordinary course of human conduct by entertaining an ill-feeling against the mother of the appellant who filed a case against his wife and it is logical to pre­sume that the appellant retaliated by writing and send­ing Exh. 'A' to the Director of the Bureau of Printing in order to give vent to his said ill-feeling."[5]

It is thus apparent that the Court of Appeals and the trial court had plausible reasons to conclude, not merely presume, that defen­dant's testimony merits no credence.  In view of said reasons, and considering that His Honor, the trial Judge, had an opportunity, de­nied to Us, to observe defendant's behaviour on the witness stand, We are not prepared to disturb the action of both courts in not be­lieving the defendant and in finding that he had a grudge or ill-feeling against the complainant, that he had written and sent the letter Exhi­bit A in retaliation for the civil action aforementioned, and that he (defendant) had acted, therefore, with malice - even if We had auth­ority to review these findings.

Indeed, if his purpose had been to help stop the racket he claims to be flourishing in the Bureau of Printing - not merely to embarrass, malign or defame - why did he name only his cousin, complainant herein, not the "two other employees" who, according to his alleged information, used to "help" him in said racket?  Ap­parently, the defendant did not care, either to ascertain their names, or to reveal the same.  In short, he was merely interested in embarrassing his cousin or putting him under a cloud of suspi­cion.  Defendant's purpose was not to forestall the irregularities in the Bureau of Printing, in general.  In his own words, his ob­jective was "to stop the racketeering activities of Ballesteros", not of the other employees said to be involved in the racket.

Under his third assignment of error, defendant insists that he cannot be punished for writing and sending Exhibit A, because he merely expressed therein his opinion or belief.  To begin with, this assertion is inaccurate.  It is true he expressed in Exhibit A the "opinion or belief" that there was a "flourishing racket" in the Bur­eau of Printing and that this had been "going on for two years al­ready." The defendant, however, went farther.  He denounced in Exhibit A that complainant was the person engaged in such racket.  Defendant urged that "action on this matter be taken accordingly", and even asked that he be "informed x x x before investigation be initiated" in order that he could furnish "additional information re­garding this case." In short, defendant conveyed the impression that he had evidence to substantiate the charges made in Exhibit A.

Then, again, in order to escape criminal responsibility for libel or slander, it is not enough for the party who writes a defama­tory communication to another to say that he (the writer) expresses therein no more than his opinion or belief.  The communication must be made in the performance of a "legal, moral, or social duty." Defendant had no such "legal, moral, or social duty" to convey his opinion or belief about complainant's moral fiber, to the Director of Printing or the Secretary of General Services.  Defendant's civic duty was to help the Government clean house and weed out dishonest, unfit or disloyal officers and employees thereof, when there is rea­sonable ground to believe that they fall under this category.  He had no legal right, much less duty, to gossip, or foster the circulation of rumors, or jump at conclusions, and more so if they are gratui­tous or groundless.  Otherwise, the freedom of speech, which is guaranteed with a view to strengthening our democratic institutions and promoting the general welfare, would be a convenient excuse to engage in the vituperation of individuals, for the attainment of private, selfish and vindictive ends, thereby hampering the operation of the Government with administrative investigations of charges preferred without any color or appearance of truth, and with no other probable effect than the harrassment of the officer or employee concerned, to the detriment of public service and public order.

Furthermore, the evidence on record does not satisfactorily show that the defendant really entertained the "opinion or belief" he claimed to have.  Considering that the information on which Exhibit A was allegedly based had been given to him as early as February, 1961, according to his testimony, and that the civil action against his wife and her uncle was filed by complainant's mother in March, 1961, it is only logical to believe that, before writing Exhibit A on May 5, 1961, he must have made further inquiries and sought, with greater earnestness, evidence to support the charges therein set forth, and that he found no such evidence, because, otherwise, he would have introduced the same in the administrative investigation against complainant herein or, at least, in the case at bar.

Worse still, he did not introduce in the present case some of the evidence presented by him at the administrative investigation above referred to.  This omission is understandable, however, when we consider that said evidence tended to show that the defen­dant did not receive from Artemio Holgado the information he (defendant) claims to have obtained from the latter.  Indeed, pursuant to defendant's testimony in the case at bar and Exhibit A, he had been informed by Holgado that, for about two (2) years, complainant, "with the help of two other employees" of the Bureau of Printing, had been printing therein, at night, "using the properties and facilities" thereof, "wedding invitation cards" and "term papers for college students and others." The report on said administrative investiga­tion (Exhibit F) shows that Holgado had merely testified that, on January 20, 1961, he paid a given sum to his neighbor, complainant Jesus Ballesteros, for 45 wedding invitations, which - according to the testimony of Ballesteros and Felipe Campo in said investi­gation - were printed at Imprenta Angeles - of which Campo is an employee - at No. 929-A McGregor, Quiapo, Manila, and for which Ballesteros had paid P20, on January 16, 1961.

Defendant's own testimony, in said investigation, was to the effect that, on February 8, 1961, he paid Ballesteros P3,00 for a lead mold for calling cards.  Defendant's other witnesses, in that investigation, were Antonio Muñoz and Cornelio Regala, Acting Chiefs, respectively of the Job and Tabular Section and the Com­posing Division, of the Bureau of Printing.  Both, in effect, affirmed that Ballesteros did not and could not have committed, in said office, the irregularities imputed to him by the defendant.  Hence, defen­dant's evidence in said administrative investigation showed that no­body had given him the information mentioned in Exhibit A.  Holgado did not tell him that the wedding invitations had been printed by com­plainant in the Bureau of Printing.  Neither had any other person advised the defendant that the aforementioned lead mold for calling cards had been made in that Office, much less with materials and equipment thereof.  What is more, the defendant had not come across any evidence or received any information about the printing, in said office, of "Christmas cards" or "term papers of college students or others".  Seemingly, defendant's manifest bias and animosity to­wards Ballesteros had merely led him (defendant) to surmise and imagine, if not jump at the conclusion or assumption, that Balles­teros was engaged in the irregularities enumerated in Exhibit A.

In the language of Newell[6]:

"The person must honestly believe in the truth of the charge he makes at the time he makes it.  And this implies that he must have some ground for the as­sertion; it need not be a conclusive or convincing ground; but no charge should ever be made recklessly and wantonly, even in confidence.  The inquirer should be put in possession of all known means of knowledge; if the only means of knowledge is hearsay, he should be told so.  A rumor should never be stated as a fact; and in repeating a rumor care should be taken not to heighten its color or exaggerate its extent.  If the only information possessed is contained in a letter, he should be given the letter and left to draw his own con­clusions.  A person should not speak the air of knowing of his own knowledge that every word is a fact when he is merely repeating gossip or hazarding a series of reckless assertions.  If time allows, and means of inquiry exist, he should make some attempt to sift the charge before spreading it.  In short, con­fidential advice should be given seriously and conscientiously; it should be manifest that the person does not take a pleasure in maligning the party but is compelled to do so in the honest discharge of a painful duty."[7]

The case at bar differs substantially from U.S. v. Bustos,[8] U. S. v. Cañete9 and Deaño v. Godinez.10 The first involved charges filed by persons who were found to have acted in the belief, in good faith, that their imputations were true, there being "(p)robable cause for them to think" so.  They "did not eagerly seize on a frivo­lous matter" but had affidavits in support of their charges, "which were sufficient in an investigation (conducted) by a judge of first instance to convince him in their seriousness." The second case re­ferred to fifty (50) persons who, after a meeting held for the pur­pose, had decided - based upon the belief generally prevailing in the community, and acting without actual malice, as well as with manifest good faith - to prefer, with the Roman Catholic Archbishop of Manila, certain charges against the local parish priest.  The third case dealt with an official communication sent by a public school district supervisor to his immediate superior, the Division Superin­tendent of Schools, concerning the actuations of a school dentist in relation to a number of public school teachers, all of whom were under the jurisdiction of the first two.

The charges made in the first case were predicated upon af­fidavits, which were screened by "reputable attorneys", through whom the charges were filed to the proper official.  In the case at bar, no such affidavits were ever made and the defendant does not claim to have sought the advice of counsel before sending Exhibit A.  What is more, one of the issues in this case is whether or not defendant had really received the information mentioned in Exhibit A, and neither the trial court nor the Court of Appeals has believed his testimony to this effect.  Neither do We.  Then, too, in the present case, there is proof of a litigation between immediate members of the family of both parties, which may have created a feeling of enmity between the complainant and the defendant, whereas, in the cases above-mentioned, there was nothing that could have so marred the personal relations between the complainant and the accused, apart from the fact that there was satisfactory proof of the latter's good faith and absence of malice.

The fourth assignment of error is clearly untenable.  De­fendant claimed to believe in the truth of the charges contained in his letter Exhibit A, upon the ground that Artemio Holgado had al­legedly informed him about it.  It was his duty to prove that he had been, in fact, so tipped by Holgado.  He should have known that Holgado's testimony would have been the best proof thereon.  His failure, not only to introduce said testimony, but, also, to explain why he did not do so, necessarily weakened his defense.

Inference from not producing Evidence, distinguished.  The principle has been already examined that a party's failure to produce evidence which, if favorable, would naturally have been produced, is open to the inference that the facts were unfavorable to his cause.  (Wigmore on Evi­dence. Vol. VIII. p. 426.)
The failure to produce evidence, in general, other than his own testimony, is open to inference against a party accused, with the same limitations applicable to civil parties.  x x x .
Here, however, the effect of the burden of proof has sometimes tended to confuse.  It is true that the burden is on the prosecution, and that the accused is not required by any rule of law to pro­duce evidence; but nevertheless he runs the risk of an inference from non-production.  This seem­ing paradox, which has been already sufficiently noticed in treating of the general principle, has misled a few Courts to deny that any inference may be drawn.  (Wigmore on Evidence, Vol. VIII, pp. 427, 431.)

Under the last assignment of error, defendant assails the decision appealed from, upon the ground that he should not be held accountable for the fact that Exhibit A was read by the Adminis­trative Officer of the Bureau of Printing, who, apparently, opens letters addressed to the Director of Printing, and, also, by his secretary, Mario Banzuela to whom the Director had referred it, as well as by those who participated in the aforementioned investi­gation, inasmuch as said communication was addressed to no other than the Director of Printing.  It should be noted, however, that defendant had, likewise, sent a copy of Exhibit A to the Secretary of General Services.  Moreover, considering that the former had explicitly asked an investigation of the charges preferred in said communication, it is obvious that the reading of Exhibit A by other persons than its aforementioned addressee was precisely what the defendant had envisaged and sought.  Even, however, if no other person than the Director of Printing, to whom Exhibit A was ad­dressed, had read it, still such fact is sufficient publication there­of, for purposes of libel, for he is a third person as regards its writer and the person defamed therein.[11] Indeed, "(a) libel is 'published' not only when it is widely circulated, but also when it is made known or brought to the attention or notice of another person" than its author and the offended party.[12]

WHEREFORE, the decision appealed from is hereby affirmed, with costs against defendant Godofredo Orfanel.


Reyes, Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro, Fernando, and Teehankee, JJ., concur.
Barredo, J., did not take part.

[1] People v. De los Reyes, 47 O.G. 3569, 3577-3578; U.S. v. Bustos, 37 Phil. 731, 742.

[2] People v. Rico, 60 O.G. 47, Citing U.S. v. Cañete, 38 Phil. 253, 264.

[3] Filipinas Compañia de Seguros v. Tan Chauco, 85 Phil. 379, 388; Cabrera v. Lopez, 84 Phil. 834, 837; Cristobal v. Peo­ple, 84 Phil. 473, 476; De Ralla v. Director of Lands, 83 Phil. 491, 498; De Castro v. Tamparong, 78 Phil. 804, 807; De las Alas v. People, 78 Phil. 868, 870; Tan Si Kiok v. Tiacho, 79 Phil. 696; Zubiri v. Quijano, 74 Phil. 47, 48; De Luna v. Linatoc, 74 Phil. 15; Garcia de Ramos v. Yatco, 71 Phil. 178, 179-180; Gerio v. Gerio, 71 Phil. 106, 107; Onglengco v. Ozaeta, 70 Phil. 43, 47; Meneses v. Commonwealth, 69 Phil. 647, 649; Roldan v. Villaroman, 69 Phil. 12, 22; Mora Electric Co. v. Matic, 68 Phil. 356, 358; Hodges v. People, 68 Phil. 178, 185; Mamuyac v. Abena, 67 Phil. 289; Mateo v. Collector of Customs, 63 Phil. 470, 471; Guico v. Mayuga, 63 Phil. 328, 331; Hodges v. People, 40 O.G. (1st Supplement) 227, 234.

[4] Underscoring ours.

[5] Underscoring ours.

[6] In his work on Slander and Libel, 4th ed., pp. 434-435.

[7] Underscoring ours.

[8] 37 Phil. 731.

[9] 38 Phil. 253

[10] G.R. No. L-19518, November 28, 1964.

[11] U.S. v. Ubiñana, 1 Phil. 471, 472-473; Ocampo v. Evangelista, 37 O.G. 2196.

[12] The Law of Crime, by Burdick, Vol. 3 (1946 ed.), p. 159, citing:  State v. Shaffner, 2 Pennew. (Del.) 171, 44 Atl. 620; Giles v. State, 6 Ga. 276; State v. Moore, 140 La. 284, 72 So. 965; State v. Elder, 19 N.M. 393, 143 Pac. 482.