SECOND DIVISION

[G.R. Nos. 118757 & 121571. November 11, 2005.]

ROBERTO BRILLANTE, petitioner, vs. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

R E S O L U T I O N

TINGA, J p:

This treats of the Motion for Reconsideration dated November 25, 2004 filed by Roberto Brillante (Brillante) assailing the Decision of this Court dated October 19, 2004 which affirmed his conviction for the crime of libel but reduced the amount of moral damages he is liable to pay.

Brillante avers that his conviction, without the corresponding conviction of the writers, editors and owners of the newspapers on which the libelous materials were published, violates his right to equal protection. He also claims that he should have been convicted only of one count of libel because private respondents were not defamed separately as each publication was impelled by a single criminal intent. Finally, he claims that there is a "semblance of truth" to the accusations he hurled at private respondents citing several instances of alleged violent acts committed by the latter against his person.

Private respondent Jejomar Binay (Binay) filed a Comment dated March 3, 2005, maintaining that the equal protection clause does not apply because there are substantial distinctions between Brillante and his co-accused warranting dissimilar treatment. Moreover, contrary to Brillante's claim that he should have been convicted only of one count of libel, Binay asserts that there can be as many convictions for libel as there are persons defamed. Besides, this matter should have been raised at the time the separate complaints were filed against him and not in this motion.

For its part, the Office of the Solicitor General (OSG) filed a Comment dated April 4, 2005, stating that the issues raised in Brillante's motion have already been discussed and passed upon by the Court. Hence, the motion should be denied.

Brillante filed a Consolidated Reply dated May 26, 2005 in reiteration of his arguments.

As correctly noted by the OSG, the basic issues raised in the instant motion have already been thoroughly discussed and passed upon by the Court in its Decision. For this reason, we shall no longer dwell on them.

We believe, however, that the penalty of imprisonment imposed against Brillante should be re-examined and reconsidered. Although this matter was neither raised in Brillante's petition nor in the instant motion, we advert to the well-established rule that an appeal in a criminal proceeding throws the whole case open for review of all its aspects, including those not raised by the parties.

In , petitioner therein was found guilty of slander by deed penalized under Art. 359 of the

In this case, Brillante claims that on January 6, 1988, his friend's house was bombed resulting in the death of three people. This incident allegedly impelled him, out of moral and social duty, to call a press conference on January 7, 1988 with the intention of exposing what he believed were terrorist acts committed by private respondents against the electorate of Makati City.

We find that the circumstances surrounding the writing of the open letter on which the libelous publications were based similarly warrant the imposition of the penalty of fine only, instead of both imprisonment and fine, in accordance with Art. 355 of the The intensely feverish passions evoked during the election period in 1988 must have agitated petitioner into writing his open letter. SEHTAC

Moreover, while petitioner failed to prove all the elements of qualified privileged communication under par. 1, Art. 354 of the

The foregoing circumstances, in our view, justify the deletion of the penalty of imprisonment and the retention of the meted fine only.

WHEREFORE, the Decision dated October 19, 2004 is AFFIRMED with MODIFICATION consisting of the deletion of the penalty of imprisonment imposed upon petitioner.

SO ORDERED.

Puno, Austria-Martinez and Callejo, Sr., JJ., concur.

Chico-Nazario, J., is on leave.

Footnotes

1. , 395 Phil. 876 (2000).

2. 388 Phil. 269 (2000).

3. Art. 355. Libel by means of writing or similar means. A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

4. , 141 Phil. 519 (1969); , 13 Phil. 690 (1909); , G.R. Nos. 82380 & 82398, April 29, 1988, 160 SCRA 861.