Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos.

162144-54 November 13, 2012

PEOPLE OF THE PHILIPPINES, Petitioner, vs. HON. MA. THERESA L. DELA TORRE- YADAO, in her capacity as Presiding Judge, Branch 81, Regional Trial Court of Quezon City, HON. MA. NATIVIDAD M. DIZON, in her capacity as Executive Judge of the Regional Trial Court of Quezon City, PANFILO M. LACSON, JEWEL F. CANSON, ROMEO M. ACOP, FRANCISCO G. ZUBIA, JR., MICHAEL RAY B. AQUINO, CEZAR O. MANCAO II, ZOROBABEL S. LAURELES, GLENN G. DUMLAO, ALMARIO A. HILARIO, JOSE ERWIN T. VILLACORTE, GIL C. MENESES, ROLANDO ANDUYAN, JOSELITO T. ESQUIVEL, RICARDO G. DANDAN, CEASAR TANNAGAN, VICENTE P. ARNADO, ROBERTO T. LANGCAUON, ANGELITO N. CAISIP, ANTONIO FRIAS, CICERO S. BACOLOD, WILLY NUAS, JUANITO B. MANAOIS, VIRGILIO V. PARAGAS, ROLANDO R. JIMENEZ, CECILIO T. MORITO, REYNALDO C. LAS PINAS, WILFREDO G CUARTERO, ROBERTO O. AGBALOG, OSMUNDO B. CARINO, NORBERTO LASAGA, LEONARDO GLORIA, ALEJANDRO G LIWANAG, ELMER FERRER and ROMY CRUZ, Respondents. DECISION ABAD, J.: This case, which involves the alleged summary execution of suspected members of the Kuratong Bale/eng Gang, is once again before this Court this time questioning, among other things, the trial qmrt's determination of the absence of probable cause and its dismissal of the criminal actions.1 The Facts and the Case In the early morning of May 18, 1995, the combined forces of the Philippine National Police's Anti-Bank Robbery and Intelligence Task Group (PNP ABRITG) composed of Task Force Habagat (then headed by Police Chief Superintendent Panfilo M. Lacson), Traffic Management Command ([TMC] led by then Police Senior Superintendent Francisco G. Zubia, Jr.), Criminal Investigation Command (led by then Police Chief Superintendent Romeo M. Acop ), and National Capital Region Command (headed by then Police Chief Superintendent Jewel F. Canson) killed 11 suspected members of the Kuratong Baleleng Gang2 along Commonwealth Avenue in Quezon City. Subsequently, SPO2 Eduardo Delos Reyes of the Criminal Investigation Command told the press that it was a summary execution, not a shoot-out between the police and those who were slain. After investigation, the Deputy Ombudsman for Military Affairs absolved all the police officers involved, including respondents Panfilo M. Lacson, Jewel F. Canson, Romeo M. Acop, Francisco G. Zubia, Jr., Michael Ray B. Aquino, Cezar O. Mancao II, and 28 others (collectively, the respondents).3 On review, however, the Office of the Ombudsman reversed the finding and filed charges of murder against the police officers involved before the Sandiganbayan in Criminal Cases 23047 to 57, except that in the cases of respondents Zubia, Acop, and Lacson, their liabilities were downgraded to mere accessory. On arraignment, Lacson pleaded not guilty. Upon respondents motion, the Sandiganbayan ordered the transfer of their cases to the Regional Trial Court (RTC) of Quezon City on the ground that none of the principal accused had the rank of Chief Superintendent or higher. Pending the resolution of the Office of the Special Prosecutors motion for reconsideration of the transfer order, Congress passed Republic Act (R.A.) 8249 that expanded the Sandiganbayans jurisdiction by deleting th e word "principal" from the phrase "principal accused" to apply to all pending cases where trial had not begun. As a result of this new law, the Sandiganbayan opted to retain and try the Kuratong Baleleng murder cases. Respondent Lacson challenged the constitutionality of R.A. 8249 in G.R. 1280964 but this Court upheld its validity. Nonetheless, the Court ordered the transfer of the trial of the cases to the RTC of Quezon City since the amended informations contained no allegations that respondents committed the offenses charged in relation to, or in the discharge of, their official functions as required by R.A. 8249.

Before the RTC of Quezon City, Branch 81, then presided over by Judge Wenceslao Agnir, Jr., could arraign respondents in the re-docketed Criminal Cases Q-99-81679 to 89, however, SPO2 Delos Reyes and the other prosecution witnesses recanted their affidavits. Some of the victims heirs also executed aff idavits of desistance. These prompted the respondents to file separate motions for the determination of probable cause before the issuance of warrants of arrests. On March 29, 1999 the RTC of Quezon City ordered the provisional dismissal of the cases for lack of probable cause to hold the accused for trial following the recantation of the principal prosecution witnesses and the desistance of the private complainants. Two years later or on March 27, 2001 PNP Director Leandro R. Mendoza sought to revive the cases against respondents by requesting the Department of Justice (DOJ) to conduct another preliminary investigation in their cases on the strength of the affidavits of P/Insp. Ysmael S. Yu and P/S Insp. Abelardo Ramos. In response, then DOJ Secretary Hernando B. Perez constituted a panel of prosecutors to conduct the requested investigation. Invoking their constitutional right against double jeopardy, Lacson and his co-accused filed a petition for prohibition with application for temporary restraining order and writ of preliminary injunction before the RTC of Manila in Civil Case 01100933. In an Order dated June 5, 2001, that court denied the plea for temporary restraining order. Thus, on June 6, 2001 the panel of prosecutors found probable cause to hold Lacson and his co-accused liable as principals for 11 counts of murder, resulting in the filing of separate informations against them in Criminal Cases 01-101102 to 12 before the RTC of Quezon City, Branch 81, now presided over by respondent Judge Ma. Theresa L. Yadao. On the same day, respondent Lacson filed a petition for certiorari before the Court of Appeals (CA), assailing the RTC of Manilas order which allowed the renewed preliminary investigation of the murder charges against him and his co accused. Lacson also filed with the RTC of Quezon City a motion for judicial determination of probable cause. But on June 13, 2001 he sought the suspension of the proceedings in that court. In the meantime, the CA issued a temporary restraining order enjoining the RTC of Quezon City from issuing warrants of arrest or conducting any proceeding in Criminal Cases 01-101102 to 12 before it. On August 24, 2001 the CA rendered a Decision, granting Lacsons petition on the ground of double jeopardy since, although the dismi ssal of Criminal Cases Q99-81679 to 89 was provisional, such dismissal became permanent two years after when they were not revived. Upon the prosecutions appeal to this Court in G.R. 149453,5 the Court ruled that, based on the record, Lacson failed to prove compliance with the requirements of Section 8, Rule 117 governing provisional dismissals. The records showed that the prosecution did not file a motion for provisional dismissal and, for his part, respondent Lacson had merely filed a motion for judicial determination of probable cause. Nowhere did he agree to some proposal for a provisional dismissal of the cases. Furthermore, the heirs of the victims had no notice of any motion for such provisional dismissal. The Court thus set aside the CA Decision of August 24, 2001 and directed the RTC of Quezon City to try the cases with dispatch. On motion for reconsideration by respondent Lacson, the Court ordered the re-raffle of the criminal cases to a heinous crimes court. Upon re-raffle, however, the cases still went to Branch 81, which as already stated was now presided over by Judge Yadao. On October 12, 2003 the parents of two of the victims submitted birth certificates showing that they were minors. Apparently reacting to this, the prosecution amended the informations to show such minority and asked respondent Executive Judge Ma. Natividad M. Dizon to recall the assignment of the cases to Branch 81 and re-raffle them to a family court. The request for recall was denied. On October 20, 2003 the prosecution filed an omnibus motion before Branch 81, praying for the re-raffle of Criminal Cases 01-101102 to12 to the family courts in view of the changes in the two informations. On October 24, 2003 the prosecution also filed its consolidated comment ex-abundanti cautela on the motions to determine probable cause. On November 12, 20036 Judge Yadao issued an order, denying the prosecutions motion for re -raffle to a family court on the ground that Section 5 of R.A. 8369 applied only to living minors. She also granted the motions for determination of probable cause and dismissed the cases against the respondents since the affidavits of the prosecution witnesses were inconsistent with those they submitted in the preliminary investigations before the Ombudsman for the crime of robbery. On November 25, 2003 the prosecution filed a verified motion to recuse or disqualify Judge Yadao and for reconsideration of her order. It also filed an administrative complaint against her for dishonesty, conduct prejudicial to the best interests of the service, manifest partiality, and knowingly rendering an unjust judgment.7 On January 14, 2004, the prosecution

filed an urgent supplemental motion for compulsory disqualification with motion for cancellation of the hearing on motion for reconsideration. On January 21, 2004 Judge Yadao issued an order, denying the motion to recuse her, prompting the prosecution to appeal from that order. Further, on January 22, 2004 Judge Yadao issued another order, denying the prosecutions motion for reconsideration of the Order dated November 12, 2003 that dismissed the action against the respondents. In response, the prosecution filed a notice of appeal from the same. Finally, on January 26, 2004 Judge Yadao issued an order, denying the prosecutions motion for reconsideration of its January 16, 2004 Order not only for lack of merit but also for having become moot and academic. On February 16, 2004 the prosecution withdrew ex-abundanti cautela the notices of appeal that it filed in the cases. Subsequently, on March 3, 2004 it filed the present special civil action of certiorari. The Issues Presented The prosecution presents the following issues: 1. Whether or not Executive Judge Dizon gravely abused her discretion in allowing Criminal Cases 01-101102 to 12 to be re-raffled to other than among the RTC of Quezon Citys family courts. 2. Whether or not Judge Yadao gravely abused her discretion when she took cognizance of Criminal Cases 01101102 to 12 contrary to the prosecutions view that such cases fell under the jurisdiction of family courts. 3. Whether or not Judge Yadao gravely abused her discretion when she did not inhibit and disqualify herself from taking cognizance of the cases. 4. Whether or not Judge Yadao gravely abused her discretion when she dismissed the criminal actions on the ground of lack of probable cause and barred the presentation of additional evidence in support of the prosecutions motion for reconsideration. 5. Whether or not Judge Yadao gravely abused her discretion when she adopted certain policies concerning the conduct of hearings in her court. The Courts Rulings Before addressing the above issues, the Court notes respondents contention that the prosecutions resort to special civil action of certiorari under Rule 65 is improper. Since the trial court dismissed the criminal actions against respondents, the prosecutions remedy was to appeal to the CA from that order of dismissal. Ordinarily, the proper remedy from an order dismissing an action is an appeal.8 Here, the prosecution in fact filed a notice of appeal from such an order issued in the subject cases. But it reconsidered its action and withdrew that notice, believing that appeal was not an effective, speedy, and adequate remedy.9 In other words, the prosecutions move was not a case of forgotten remedy but a conscious resort to another based on a belief that respondent Judge Yadao gravely abused her discretion in issuing her various orders and that certiorari under Rule 65 was the proper and all-encompassing remedy for the prosecution. The Court is not prepared to say that the remedy is altogether implausible as to throw out the petition outright. Still, the Court notes that the prosecution skipped the CA and filed its action directly with this Court, ignoring the principle of judicial hierarchy of courts. Although the Supreme Court, the CA, and the RTCs have concurrent jurisdiction to issue a writ of certiorari, such concurrence does not give the People the unrestricted freedom of choice of forum. 10 In any case, the immense public interest in these cases, the considerable length of time that has passed since the crime took place, and the numerous times these cases have come before this Court probably warrant a waiver of such procedural lapse. 1. Raffle of the Cases The prosecution points out that the RTC of Quezon City Executive Judge gravely abused her discretion when she placed Criminal Cases 01-101102 to 12 under a separate category which did not restrict their raffle to the citys special criminal and family courts in accordance with SC Administrative Order 36-96. Further, the prosecution points out that she violated

Administrative Order 19-98 when Branches 219 and 102 were left out of the raffle. The presiding judges of these two branches, both heinous crimes courts eligible to receive cases by raffle, had just been appointed to the CA. The records of the cases show nothing irregular in the conduct of the raffle of the subject cases. The raffle maintained a separate list for criminal and civil cases. Criminal cases cognizable by special criminal courts were separately listed. Criminal Cases 01-101102 to 12 were given a separate heading, "Re-Raffle," but there was nothing irregular in this since it merely indicated that the cases were not being raffled for the first time. The Executive Judge did not err in leaving out Branches 219 and 102 from raffle since these branches remained without regularly appointed judges. Although the pairing judges of these branches had authority to act on incidental, interlocutory, and urgent matters, this did not mean that such branches should already be included in the raffle of cases. Parenthetically, the prosecution was represented during the raffle yet it did not then object to the manner by which it was conducted. The prosecution raised the question only when it filed this petition, a clear afterthought. 2. Jurisdiction of Family Courts The prosecution points out that, although this Courts October 7, 2003 Resolution directed a re -raffle of the cases to a heinous crimes court, the prosecution in the meantime amended the informations to reflect the fact that two of the murder victims were minors. For this reason, the Executive Judge should have raffled the cases to a family court pursuant to Section 5 of R.A. 8369. The Court is not impervious to the provisions of Section 5 of R.A. 8369, that vests in family courts jurisdiction over violations of R.A. 7610, which in turn covers murder cases where the victim is a minor. Thus: Sec. 5. Jurisdiction of Family Courts. The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases: a) Criminal cases where one or more of the accused is below eighteen (18) years of age but not less than nine (9) years of age, or where one or more of the victims is a minor at the time of the commission of the offense: Provided, That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the respondent may have incurred. (Emphasis supplied) Undoubtedly, in vesting in family courts exclusive original jurisdiction over criminal cases involving minors, the law but seeks to protect their welfare and best interests. For this reason, when the need for such protection is not compromised, the Court is able to relax the rule. In several cases,11 for instance, the Court has held that the CA enjoys concurrent jurisdiction with the family courts in hearing petitions for habeas corpus involving minors. Here, the two minor victims, for whose interests the people wanted the murder cases moved to a family court, are dead. As respondents aptly point out, there is no living minor in the murder cases that require the special attention and protection of a family court. In fact, no minor would appear as party in those cases during trial since the minor victims are represented by their parents who had become the real private offended parties. 3. Inhibition of Judge Yadao The prosecution claims that Judge Yadao committed grave abuse of discretion in failing to inhibit herself from hearing the cases against the respondents. The rules governing the disqualification of judges are found, first, in Section 1, Rule 137 of the Rules of Court, which provides: Sec. 1. Disqualification of judges. No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.

A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above. and in Rule 3.12, Canon 3 of the Code of Judicial Conduct, which states: Rule 3.12. A judge should take no part in a proceeding where the judges impartiality might reasonably be questioned. These cases include among others, proceedings where: (a) the judge has personal knowledge of disputed evidentiary facts concerning the proceeding; xxxx (e) the judge knows the judges spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding. In every instance, the judge shall indicate the legal reason for inhibition. The first paragraph of Section 1, Rule 137 and Rule 3.12, Canon 3 provide for the compulsory disqualification of a judge while the second paragraph of Section 1, Rule 137 provides for his voluntary inhibition. The matter of voluntary inhibition is primarily a matter of conscience and sound discretion on the part of the judge since he is in a better position to determine whether a given situation would unfairly affect his attitude towards the parties or their cases. The mere imputation of bias, partiality, and prejudgment is not enough ground, absent clear and convincing evidence that can overcome the presumption that the judge will perform his duties according to law without fear or favor. The Court will not disqualify a judge based on speculations and surmises or the adverse nature of the judges rulings towards those who seek to inhibit him.12 Here, the prosecution contends that Judge Yadao should have inhibited herself for improperly submitting to a public interview on the day following her dismissal of the criminal cases against the respondents. But the Court finds nothing basically reprehensible in such interview. Judge Yadaos dismissal of the multiple murder cases aroused natural public interest and stirred the media into frenzy for correct information. Judge Yadao simply accommodated, not sought, the requests for such an interview to clarify the basis of her order. There is no allegation that she gave out false information. To be sure, the prosecution never once accused her of making public disclosures regarding the merits of those cases prior to her order dismissing such cases. The prosecution also assails as constituting bias Judge Yadaos statement that a very close relative stood to be promoted if she was to issue a warrant of arrest against the respondents. But this statement merely shows that she cannot be dissuaded by some relative who is close to her. How can this constitute bias? Besides, there is no evidence that the close relative she referred to was her spouse or child which would be a mandatory ground for disqualification. Further, the prosecution claims that Judge Yadao prejudged its motion for reconsideration when she said in her comment to the administrative complaint against her that such motion was merely the prosecutions stubborn insistence on the existence of probable cause against the respondents. The comment could of course not be regarded as a prejudgment of the issue since she had precisely already issued an order holding that the complainants evidence failed to establish probable cause against the respondents. And there is nothing wrong about characterizing a motion for reconsideration as a "stubborn" position taken by the party who filed it. Judge Yadao did not characterize the motion as wholly unjustified at the time she filed her comment. 4. Dismissal of the Criminal Cases The prosecution claims that Judge Yadao gravely abused her discretion when she set the motions for determination of probable cause for hearing, deferred the issuance of warrants of arrest, and allowed the defense to mark its evidence and argue its case. The prosecution stresses that under Section 6, Rule 112 of the Rules of Co urt Judge Yadaos duty was to determine probable cause for the purpose of issuing the arrest warrants solely on the basis of the investigating prosecutors resolution as well as the informations and their supporting documents. And, if she had some doubts a s to the existence of probable cause, the rules required her to order the investigating prosecutor to present additional evidence to support the finding of probable cause within five days from notice. Rather than take limited action, said the prosecution, Judge Yadao dug up and adopted the Ombudsmans findings when the latter conducted its preliminary investigation of the crime of robbery in 1996. Judge Yadao gave weight to the

affidavits submitted in that earlier preliminary investigation when such documents are proper for presentation during the trial of the cases. The prosecution added that the affidavits of P/S Insp. Abelardo Ramos and SPO1 Wilmor B. Medes reasonably explained the prior inconsistent affidavits they submitted before the Ombudsman. The general rule of course is that the judge is not required, when determining probable cause for the issuance of warrants of arrests, to conduct a de novo hearing. The judge only needs to personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence.13 But here, the prosecution conceded that their own witnesses tried to explain in their new affidavits the inconsistent statements that they earlier submitted to the Office of the Ombudsman. Consequently, it was not unreasonable for Judge Yadao, for the purpose of determining probable cause based on those affidavits, to hold a hearing and examine the inconsistent statements and related documents that the witnesses themselves brought up and were part of the records. Besides, she received no new evidence from the respondents.14 The public prosecutor submitted the following affidavits and documents along with the criminal informations to enable Judge Yadao to determine the presence of probable cause against the respondents: 1. P/Insp. Ysmael S. Yus affidavit of March 24, 200115 in which he said that on May 17, 1995 respondent Canson, NCR Command Head, ordered him to form two teams that would go after suspected Kuratong Baleleng Gang members who were seen at the Superville Subdivision in Paraaque City. Yu headed the assault team while Marlon Sapla headed the perimeter defense. After the police team apprehended eight men inside the safe house, it turned them over to their investigating unit. The following day, Yu just learned that the men and three others were killed in a shoot-out with the police in Commonwealth Avenue in Quezon City. 2. P/S Insp. Abelardo Ramos affidavit of March 24, 2001 16 in which he said that he was part of the perimeter defense during the Superville operation. After the assault team apprehended eight male suspects, it brought them to Camp Crame in two vans. Ramos then went to the office of respondent Zubia, TMC Head, where he saw respondents Lacson, Acop, Laureles, Villacorte and other police officers. According to Ramos, Zubia said that the eight suspects were to be brought to Commonwealth Avenue and killed in a supposed shoot-out and that this action had been cleared with higher authorities, to which remark Lacson nodded as a sign of approval. Before Ramos left the meeting, Lacson supposedly told him, "baka may mabuhay pa diyan." Ramos then boarded an L-300 van with his men and four male suspects. In the early morning of May 18, 1995, they executed the plan and gunned down the suspects. A few minutes later, P/S Insp. Glenn G. Dumlao and his men arrived and claimed responsibility for the incident. 3. SPO1 Wilmor B. Medes affidavit of April 24, 200117 in which he corroborated Ramos statements. Medes said that he belonged to the same team that arrested the eight male suspects. He drove the L-300 van in going to Commonwealth Avenue where the suspects were killed. 4. Mario C. Enads affidavit of August 8, 199518 in which he claimed having served as TMC civilian agent. At around noon of May 17, 1995, he went to Superville Subdivision together with respondents Dumlao, Tannagan, and Nuas. Dumlao told Enad to stay in the car and observe what went on in the house under surveillance. Later that night, other police officers arrived and apprehended the men in the house. Enad went in and saw six men lying on the floor while the others were handcuffed. Enad and his companions left Sucat in the early morning of May 18, 1995. He fell asleep along the way but was awaken by gunshots. He saw Dumlao and other police officers fire their guns at the L-300 van containing the apprehended suspects. 5. SPO2 Noel P. Senos affidavit of May 31, 200119 in which he corroborated what Ramos said. Seno claimed that he was part of the advance party in Superville Subdivision and was also in Commonwealth Avenue when the suspected members of the Kuratong Baleleng Gang were killed. 6. The PNP ABRITG After Operations Report of May 31, 1995 20 which narrated the events that took place on May 17 and 18, 1995. This report was submitted by Lacson, Zubia, Acop and Canson. 7. The PNP Medico-Legal Reports21 which stated that the suspected members of the Kuratong Baleleng Gang tested negative for gunpowder nitrates. The Court agrees with Judge Yadao that the above affidavits and reports, taken together with the other documents of record, fail to establish probable cause against the respondents.

First. Evidently, the case against respondents rests on the testimony of Ramos, corroborated by those of Medes, Enad, and Seno, who supposedly heard the commanders of the various units plan the killing of the Kuratong Baleleng Gang members somewhere in Commonwealth Avenue in Quezon City and actually execute such plan. Yus testimony is limited to the capture of the gang members and goes no further. He did not see them killed. Second. Respecting the testimonies of Ramos, Medes, Enad, and Seno, the prosecutions own evidencethe PNP ABRITGs After Operations Report of May 31, 1995shows that these men took no part in the operations against the Kuratong Baleleng Gang members. The report included a comprehensive list of police personnel from Task Force Habagat (Lacson), Traffic Management Command (Zubia), Criminal Investigation Command (Acop), and National Capital Region Command (Canson) who were involved. The names of Ramos, Medes, Enad, and Seno were not on that list. Notably, only Yus name, among the new set of witnesses, was on that list. Since a n after-battle report usually serves as basis for commendations and promotions, any omitted name would hardly have gone unchallenged. Third. Ramos, whose story appeared to be the most significant evidence against the respondents, submitted in the course of the preliminary investigation that the Office of the Ombudsman conducted in a related robbery charge against the police officers involved a counter-affidavit. He claimed in that counter-affidavit that he was neither in Superville Subdivision nor Commonwealth Avenue during the Kuratong Baleleng operations since he was in Bulacan on May 17, 1995 and at his home on May 18.22 Notably, Medes claimed in a joint counter-affidavit that he was on duty at the TMC headquarters at Camp Crame on May 17 and 18.23 Fourth. The Office of the Ombudsman, looking at the whole picture and giving credence to Ramos and Medes statements, dismissed the robbery case. More, it excluded Ramos from the group of officers that it charged with the murder of the suspected members of the Kuratong Baleleng Gang. Under the circumstances, the Court cannot be less skeptical than Judge Yadao was in doubting the sudden reversal after six years of testimony of these witnesses. Of course, Yu may have taken part in the subject operation but, as he narrated, his role was limited to cornering and arresting the suspected Kuratong Baleleng Gang members at their safe house in Superville Subdivision. After his team turned the suspects over to an investigating unit, he no longer knew what happened to them. Fifth. True, the PNP Medico-Legal Reports showed that the Kuratong Baleleng Gang members tested negative for gunpowder nitrates. But this finding cannot have any legal significance for the purpose of the preliminary investigation of the murder cases against the respondents absent sufficient proof that they probably took part in gunning those gang members down. The prosecution points out that, rather than dismiss the criminal action outright, Judge Yadao should have ordered the panel of prosecutors to present additional evidence pursuant to Section 6, Rule 112 of the Rules of Court which provides: Sec. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the filing of the criminal information: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) issue a warrant of arrest if it finds probable cause; and (3) order the prosecutor to present additional evidence within five days from notice in case of doubt as to the existence of probable cause.24 But the option to order the prosecutor to present additional evidence is not mandatory. The courts first option under the above is for it to "immediately dismiss the case if the evidence on record clearly fails to establish probable cause." That is the situation here: the evidence on record clearly fails to establish probable cause against the respondents. It is only "in case of doubt on the existence of probable cause" that the judge may order the prosecutor to present additional evidence within five days from notice. But that is not the case here. Discounting the affidavits of Ramos, Medes, Enad, and Seno, nothing is left in the record that presents some doubtful probability that respondents committed the crime charged. PNP Director Leandro Mendoza sought the revival of the cases in 2001, six years after it happened. It would have been ridiculous to entertain the belief that the police could produce new witnesses in the five days required of the prosecution by the rules.

In the absence of probable cause to indict respondents for the crime of multiple murder, they should be insulated from the tribulations, expenses and anxiety of a public trial.25 5. Policies Adopted for Conduct of Court Hearing The prosecution claims that Judge Yadao arbitrarily recognized only one public prosecutor and one private prosecutor for all the offended parties but allowed each of the counsels representing the individual respondents to be heard during the proceedings before it. She also unjustifiably prohibited the prosecutions use of tape recorders. But Section 5, Rule 135 of the Rules of Court gives the trial court ample inherent and administrative powers to effectively control the conduct of its proceedings. Thus: Sec. 5. Inherent powers of court. Every court shall have power: xxxx (b) To enforce order in proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority; xxxx (d) To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a case before it, in every manner appertaining thereto; xxxx (g) To amend and control its process and orders so as to make them conformable to law and justice; xxxx There is nothing arbitrary about Judge Yadaos policy of allowing only one public prosecutor and one private prosecutor to address the court during the hearing for determination of probable cause but permitting counsels representing the individual accused to do so. A criminal action is prosecuted under the direction and control of the public prosecutor. 26 The burden of establishing probable cause against all the accused is upon him, not upon the private prosecutors whose interests lie solely in their clients damages claim. Besides, the public and the private prosecutors take a common position on the issue of probable cause. On the other hand, each of the accused is entitled to adopt defenses that are personal to him. As for the prohibition against the prosecutions private recording of the proceedings, courts usually disallows such recordings because they create an unnecessary distraction and if allowed, could prompt every lawyer, party, witness, or reporter having some interest in the proceeding to insist on being given the same privilege. Since the prosecution makes no claim that the official recording of the proceedings by the courts stenographer has been insufficient, the Co urt finds no grave abuse of discretion in Judge Yadaos policy against such extraneous recordings. WHEREFORE, the Court DISMISSES this petition and AFFIRMS the following assailed Orders of the Regional Trial Court of Quezon City, Branch 81 in Criminal Cases 01-101102 to 12: 1. the Order dated November 12, 2003 which denied the prayer for re-raffle, granted the motions for determination of probable cause, and dismissed the criminal cases; 2. the Order dated January 16, 2004 which granted the motion of the respondents for the immediate resolution of the three pending incidents before the court; 3. the Order dated January 21, 2004 which denied the motion to recuse and the urgent supplemental motion for compulsory disqualification; 4. the Order dated January 22, 2004 which denied the motion for reconsideration of the Order dated November 12, 2003; and

5. the Order dated January 26, 2004 which denied the motion for reconsideration of the January 16, 2004 Order. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR:

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 192565 February 28, 2012

UNION BANK OF THE, PHILIPPINES and DESI TOMAS, Petitioners, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION BRION, J.: We review in this Rule 45 petition, the decision1 of the Regional Trial Court, Branch 65, Makati City (RTC-Makati City) in Civil Case No. 09-1038. The petition seeks to reverse and set aside the RTC-Makati City decision dismissing the petition for certiorari of petitioners Union Bank of the Philippines (Union Bank) and Desi Tomas (collectively, the petitioners). The RTC found that the Metropolitan Trial Court, Branch 63, Makati City (MeTC-Makati City) did not commit any grave abuse of discretion in denying the motion to quash the information for perjury filed by Tomas. The Antecedents Tomas was charged in court for perjury under Article 183 of the Revised Penal Code (RPC) for making a false narration in a Certificate against Forum Shopping. The Information against her reads: That on or about the 13th day of March 2000 in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously make untruthful statements under oath upon a material matter before a competent person authorized to administer oath which the law requires to wit: said accused stated in the Verification/Certification/Affidavit of merit of a complaint for sum of money with prayer for a writ of replevin docketed as [Civil] Case No. 342-00 of the Metropolitan Trial Court[,] Pasay City, that the Union Bank of the Philippines has not commenced any other action or proceeding involving the same issues in another tribunal or agency, accused knowing well that said material statement was false thereby making a willful and deliberate assertion of falsehood.2 The accusation stemmed from petitioner Union Banks two (2) complaints for sum of money with prayer for a writ of replevin against the spouses Eddie and Eliza Tamondong and a John Doe. The first complaint, docketed as Civil Case No. 98-0717, was filed before the RTC, Branch 109, Pasay City on April 13, 1998. The second complaint, docketed as Civil Case No. 342-000, was filed on March 15, 2000 and raffled to the MeTC, Branch 47, Pasay City. Both complaints showed that Tomas executed and signed the Certification against Forum Shopping. Accordingly, she was charged of deliberately violating Article 183 of the RPC by falsely declaring under oath in the Certificate against Forum Shopping in the second complaint that she did not commence any other action or proceeding involving the same issue in another tribunal or agency. Tomas filed a Motion to Quash,3 citing two grounds. First, she argued that the venue was improperly laid since it is the Pasay City court (where the Certificate against Forum Shopping was submitted and used) and not the MeTC-Makati City (where the Certificate against Forum Shopping was subscribed) that has jurisdiction over the perjury case. Second, she argued that the facts charged do not constitute an offense because: (a) the third element of perjury the willful and deliberate assertion of falsehood was not alleged with particularity without specifying what the other action or proceeding commenced involving the same issues in another tribunal or agency; (b) there was no other action or proceeding pending in another court when the second complaint was filed; and (c) she was charged with perjury by giving false testimony while the allegations in the Information make out perjury by making a false affidavit. The MeTC-Makati City denied the Motion to Quash, ruling that it has jurisdiction over the case since the Certificate against Forum Shopping was notarized in Makati City.4 The MeTC-Makati City also ruled that the allegations in the Information sufficiently charged Tomas with perjury.5 The MeTC-Makati City subsequently denied Tomas motion for reconsideration.6

The petitioners filed a petition for certiorari before the RTC-Makati City to annul and set aside the MeTC-Makati City orders on the ground of grave abuse of discretion. The petitioners anchored their petition on the rulings in United States v. Canet7and Ilusorio v. Bildner8 which ruled that venue and jurisdiction should be in the place where the false document was presented. The Assailed RTC Decision In dismissing the petition for certiorari, the RTC-Makati City held: [I]nsofar as the petitioners stance is concerned[,] the more recent case of [Sy Tiong Shiou v. Sy] (GR Nos. 174168 & 179438, March 30, 2009) however, reaffirms what has been the long standing view on the venue with respect to perjury cases. In this particular case[,] the high court reiterated the rule that the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed, or where any of its essential ingredients occurred. It went on to declare that since the subject document[,] the execution of which was the subject of the charge[,] was subscribed and sworn to in Manila[,] then the court of the said territorial jurisdiction was the proper venue of the criminal action[.] xxxx x x x Given the present state of jurisprudence on the matter, it is not amiss to state that the city court of Makati City has jurisdiction to try and decide the case for perjury inasmuch as the gist of the complaint itself which constitute[s] the charge against the petitioner dwells solely on the act of subscribing to a false certification. On the other hand, the charge against the accused in the case of Ilusorio v. Bildner, et al., based on the complaint-affidavits therein[,] was not simply the execution of the questioned documents but rather the introduction of the false evidence through the subject documents before the court of Makati City.9 (emphasis ours) The RTC-Makati City ruled that the MeTC-Makati City did not commit grave abuse of discretion since the order denying the Motion to Quash was based on jurisprudence later than Ilusorio. The RTC-Makati City also observed that the facts in Ilusorio are different from the facts of the present case. Lastly, the RTC-Makati City ruled that the Rule 65 petition was improper since the petitioners can later appeal the decision in the principal case. The RTC-Makati City subsequently denied the petitioners motion for reconsideration. 10 The Petition The petitioners pray that we reverse the RTC-Makati City decision and quash the Information for perjury against Tomas. The petitioners contend that the Ilusorio ruling is more applicable to the present facts than our ruling in Sy Tiong Shiou v. Sy Chim.11 They argued that the facts in Ilusorio showed that the filing of the petitions in court containing the false statements was the essential ingredient that consummated the perjury. In Sy Tiong, the perjurious statements were made in a General Information Sheet (GIS) that was submitted to the Securities and Exchange Commission (SEC). Interestingly, Solicitor General Jose Anselmo I. Cadiz shared the petitioners view. In his Manifest ation and Motion in lieu of Comment (which we hereby treat as the Comment to the petition), the Solicitor General also relied on Ilusorio and opined that the lis mota in the crime of perjury is the deliberate or intentional giving of false evidence in the court where the evidence is material. The Solicitor General observed that the criminal intent to assert a falsehood under oath only became manifest before the MeTC-Pasay City. The Issue The case presents to us the issue of what the proper venue of perjury under Article 183 of the RPC should be Makati City, where the Certificate against Forum Shopping was notarized, or Pasay City, where the Certification was presented to the trial court. The Courts Ruling We deny the petition and hold that the MeTC-Makati City is the proper venue and the proper court to take cognizance of the perjury case against the petitioners. Venue of Action and Criminal Jurisdiction

Venue is an essential element of jurisdiction in criminal cases. It determines not only the place where the criminal action is to be instituted, but also the court that has the jurisdiction to try and hear the case. The reason for this rule is two-fold. First, the jurisdiction of trial courts is limited to well-defined territories such that a trial court can only hear and try cases involving crimes committed within its territorial jurisdiction. 12 Second, laying the venue in the locus criminis is grounded on the necessity and justice of having an accused on trial in the municipality of province where witnesses and other facilities for his defense are available.13 Unlike in civil cases, a finding of improper venue in criminal cases carries jurisdictional consequences. In determining the venue where the criminal action is to be instituted and the court which has jurisdiction over it, Section 15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure provides: (a) Subject to existing laws, the criminal action shall be instituted and tried in the court or municipality or territorywhere the offense was committed or where any of its essential ingredients occurred. [emphasis ours] The above provision should be read in light of Section 10, Rule 110 of the 2000 Revised Rules of Criminal Procedure which states: Place of commission of the offense. The complaint or information is sufficient if it can be understood from its allegations that the offense was committed or some of its essential ingredients occurred at some place within the jurisdiction of the court, unless the particular place where it was committed constitutes an essential element of the offense charged or is necessary for its identification. Both provisions categorically place the venue and jurisdiction over criminal cases not only in the court where the offense was committed, but also where any of its essential ingredients took place. In other words, the venue of action and of jurisdiction are deemed sufficiently alleged where the Information states that the offense was committed or some of its essential ingredients occurred at a place within the territorial jurisdiction of the court. Information Charging Perjury Section 5, Rule 7 of the 1997 Rules of Civil Procedure, as amended, contains the requirement for a Certificate against Forum Shopping. The Certificate against Forum Shopping can be made either by a statement under oath in the complaint or initiatory pleading asserting a claim or relief; it may also be in a sworn certification annexed to the complaint or initiatory pleading. In both instances, the affiant is required to execute a statement under oath before a duly commissioned notary public or any competent person authorized to administer oath that: (a) he or she has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his or her knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he or she should thereafter learn that the same or similar action or claim has been filed or is pending, he or she shall report that fact within five days therefrom to the court wherein his or her aforesaid complaint or initiatory pleading has been filed. In relation to the crime of perjury, the material matter in a Certificate against Forum Shopping is the truth of the required declarations which is designed to guard against litigants pursuing simultaneous remedies in different fora.14 In this case, Tomas is charged with the crime of perjury under Article 183 of the RPC for making a false Certificate against Forum Shopping. The elements of perjury under Article 183 are: (a) That the accused made a statement under oath or executed an affidavit upon a material matter. (b) That the statement or affidavit was made before a competent officer, authorized to receive and administer oath. (c) That in the statement or affidavit, the accused made a willful and deliberate assertion of a falsehood. (d) That the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose.15(emphasis ours) Where the jurisdiction of the court is being assailed in a criminal case on the ground of improper venue, the allegations in the complaint and information must be examined together with Section 15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure. On this basis, we find that the allegations in the Information sufficiently support a finding that the crime of perjury was committed by Tomas within the territorial jurisdiction of the MeTC-Makati City.

The first element of the crime of perjury, the execution of the subject Certificate against Forum Shopping was alleged in the Information to have been committed in Makati City. Likewise, the second and fourth elements, requiring the Certificate against Forum Shopping to be under oath before a notary public, were also sufficiently alleged in the Information to have been made in Makati City: That on or about the 13th day of March 2000 in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously make untruthful statements under oath upon a material matter before a competent person authorized to administer oath which the law requires to wit: said accused stated in the Verification/Certification/Affidavit x x x. 16 We also find that the third element of willful and deliberate falsehood was also sufficiently alleged to have been committed in Makati City, not Pasay City, as indicated in the last portion of the Information: [S]aid accused stated in the Verification/Certification/Affidavit of merit of a complaint for sum of money with prayer for a writ of replevin docketed as [Civil] Case No. 342-00 of the Metropolitan Trial Court[,] Pasay City, that the Union Bank of the Philippines has not commenced any other action or proceeding involving the same issues in another tribunal or agency,accused knowing well that said material statement was false thereby making a willful and deliberate assertion of falsehood.17 (underscoring ours) Tomas deliberate and intentional assertion of falsehood was allegedly shown when she made the false declarations in the Certificate against Forum Shopping before a notary public in Makati City, despite her knowledge that the material statements she subscribed and swore to were not true. Thus, Makati City is the proper venue and MeTC-Makati City is the proper court to try the perjury case against Tomas, pursuant to Section 15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure as all the essential elements constituting the crime of perjury were committed within the territorial jurisdiction of Makati City, not Pasay City. Referral to the En Banc The present case was referred to the En Banc primarily to address the seeming conflict between the division rulings of the Court in the Ilusorio case that is cited as basis of this petition, and the Sy Tiong case that was the basis of the assailed RTCMakati City ruling. The Cited Ilusorio and Sy Tiong Cases The subject matter of the perjury charge in Ilusorio involved false statements contained in verified petitions filed with the court for the issuance of a new owners duplicate copies of certificates of title. The verified petitions containing the false statements were subscribed and sworn to in Pasig City, but were filed in Makati City and Tagaytay City. The question posed was: which court (Pasig City, Makati City and/or Tagaytay City) had jurisdiction to try and hear the perjury cases? We ruled that the venues of the action were in Makati City and Tagaytay City, the places where the verified petitions were filed. The Court reasoned out that it was only upon filing that the intent to assert an alleged falsehood became manifest and where the alleged untruthful statement found relevance or materiality. We cited as jurisprudential authority the case of United States. v. Caet18 which ruled: It is immaterial where the affidavit was subscribed and sworn, so long as it appears from the information that the defendant, by means of such affidavit, "swore to" and knowingly submitted false evidence, material to a point at issue in a judicial proceeding pending in the Court of First Instance of Iloilo Province. The gist of the offense charged is not the making of the affidavit in Manila, but the intentional giving of false evidence in the Court of First Instance of Iloilo Province by means of such affidavit. [emphasis and underscoring deleted] In Sy Tiong, the perjured statements were made in a GIS which was subscribed and sworn to in Manila. We ruled that the proper venue for the perjury charges was in Manila where the GIS was subscribed and sworn to. We held that the perjury was consummated in Manila where the false statement was made. As supporting jurisprudence, we cited the case of Villanueva v. Secretary of Justice19 that, in turn, cited an American case entitled U.S. v. Norris. 20 We ruled in Villanueva that Perjury is an obstruction of justice; its perpetration well may affect the dearest concerns of the parties before a tribunal. Deliberate material falsification under oath constitutes the crime of perjury, and the crime is complete when a witness' statement has once been made.

The Crime of Perjury: A Background To have a better appreciation of the issue facing the Court, a look at the historical background of how the crime of perjury (specifically, Article 183 of the RPC) evolved in our jurisdiction. The RPC penalizes three forms of false testimonies. The first is false testimony for and against the defendant in a criminal case (Articles 180 and 181, RPC); the second is false testimony in a civil case (Article 182, RPC); and the third is false testimony in other cases (Article 183, RPC). Based on the Information filed, the present case involves the making of an untruthful statement in an affidavit on a material matter. These RPC provisions, however, are not really the bases of the rulings cited by the parties in their respective arguments. The cited Ilusorio ruling, although issued by this Court in 2008, harked back to the case of Caet which was decided in 1915, i.e., before the present RPC took effect.21 Sy Tiong, on the other hand, is a 2009 ruling that cited Villanueva, a 2005 case that in turn cited United States v. Norris, a 1937 American case. Significantly, unlike Canet, Sy Tiong is entirely based on rulings rendered after the present RPC took effect.22 The perjurious act in Caet consisted of an information charging perjury through the presentation in court of a motion accompanied by a false sworn affidavit. At the time the Caet ruling was rendered, the prevailing law on perjury and the rules on prosecution of criminal offenses were found in Section 3, Act No. 1697 of the Philippine Commission, and in Subsection 4, Section 6 of General Order No. 5823 for the procedural aspect. Section 3 of Act No. 1697 reads: Sec. 3. Any person who, having taken oath before a competent tribunal, officer, or person, in any case in which a law of the Philippine Islands authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, disposition, or certificate by him subscribed is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punished by a fine of not more than two thousand pesos and by imprisonment for not more than five years; and shall moreover, thereafter be incapable of holding any public office or of giving testimony in any court of the Philippine Islands until such time as the judgment against him is reversed. This law was copied, with the necessary changes, from Sections 5392 24 and 539325 of the Revised Statutes of the United States.26 Act No. 1697 was intended to make the mere execution of a false affidavit punishable in our jurisdiction. 27 In turn, Subsection 4, Section 6 of General Order No. 58 provided that the venue shall be the court of the place where the crime was committed. As applied and interpreted by the Court in Caet, perjury was committed by the act of representing a false document in a judicial proceeding.28 The venue of action was held by the Court to be at the place where the false document was presented since the presentation was the act that consummated the crime. The annotation of Justices Aquino and Grio-Aquino in their textbook on the RPC29 interestingly explains the history of the perjury provisions of the present RPC and traces as well the linkage between Act No. 1697 and the present Code. To quote these authors:30 Art. 180 was taken from art. 318 of the Old Penal Code and art. 154 of Del Pans Proposed Correctional Code, while art. 181 was taken from art. 319 of the old Penal Code and Art. 157 of Del Pans Proposed Correctional Code. Said arts. 318 and 319 , together with art. 321 of the old Penal Code, were impliedly repealed by Act 1697, the Perjury Law, passed on August 23, 1907, which in turn was expressly repealed by the Administrative Code of 1916, Act 2657. In view of the express repeal of Act 1697, arts. 318 and 321 of the old Penal Code were deemed revived. However, Act 2718 expressly revived secs. 3 and 4 of the Perjury Law. Art. 367 of the Revised Penal Code repealed Act Nos. 1697 and 2718. It should be noted that perjury under Acts 1697 and 2718 includes false testimony, whereas, under the Revised Penal Code, false testimony includes perjury. Our law on false testimony is of Spanish origin, but our law on perjury (art. 183 taken from sec. 3 of Act 1697) is derived from American statutes. The provisions of the old Penal Code on false testimony embrace perjury committed in court or in some contentious proceeding, while perjury as defined in Act 1697 includes the making of a false affidavit. The provisions of the Revised Penal Code on false testimony "are more severe and strict than those of Act 1697" on perjury. [italics ours] With this background, it can be appreciated that Article 183 of the RPC which provides:

The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person, who knowingly makes untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath, or make an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires. [emphasis supplied; emphases ours] in fact refers to either of two punishable acts (1) falsely testifying under oath in a proceeding other than a criminal or civil case; and (2) making a false affidavit before a person authorized to administer an oath on any material matter where the law requires an oath. As above discussed, Sy Tiong decided under Article 183 of the RPC essentially involved perjured statements made in a GIS that was subscribed and sworn to in Manila and submitted to the SEC in Mandaluyong City. Thus, the case involved the making of an affidavit, not an actual testimony in a proceeding that is neither criminal nor civil. From this perspective, the situs of the oath, i.e., the place where the oath was taken, is the place where the offense was committed. By implication, the proper venue would have been the City of Mandaluyong the site of the SEC had the charge involved an actual testimony made before the SEC. In contrast, Caet involved the presentation in court of a motion supported and accompanied by an affidavit that contained a falsity. With Section 3 of Act No. 1697 as basis, the issue related to the submission of the affidavit in a judicial proceeding. This came at a time when Act No. 1697 was the perjury law, and made no distinction between judicial and other proceedings, and at the same time separately penalized the making of false statements under oath (unlike the present RPC which separately deals with false testimony in criminal, civil and other proceedings, while at the same time also penalizing the making of false affidavits). Understandably, the venue should be the place where the submission was made to the court or the situs of the court; it could not have been the place where the affidavit was sworn to simply because this was not the offense charged in the Information. The case of Ilusorio cited the Caet case as its authority, in a situation where the sworn petitions filed in court for the issuance of duplicate certificates of title (that were allegedly lost) were the cited sworn statements to support the charge of perjury for the falsities stated in the sworn petitions. The Court ruled that the proper venue should be the Cities of Makati and Tagaytay because it was in the courts of these cities "where the intent to assert an alleged falsehood became manifest and where the alleged untruthful statement finds relevance or materiality in deciding the issue of whether new owners duplicate copies of the [Certificate of Condominium Title] and [Transfer Certificates of Title] may issue." 31 To the Court, "whether the perjurious statements contained in the four petitions were subscribed and sworn in Pasig is immaterial, the gist of the offense of perjury being the intentional giving of false statement," 32 citing Caet as authority for its statement. The statement in Ilusorio may have partly led to the present confusion on venue because of its very categorical tenor in pointing to the considerations to be made in the determination of venue; it leaves the impression that the place where the oath was taken is not at all a material consideration, forgetting that Article 183 of the RPC clearly speaks of two situations while Article 182 of the RPC likewise applies to false testimony in civil cases. The Ilusorio statement would have made perfect sense had the basis for the charge been Article 182 of the RPC, on the assumption that the petition itself constitutes a false testimony in a civil case. The Caet ruling would then have been completely applicable as the sworn statement is used in a civil case, although no such distinction was made under Caet because the applicable law at the time (Act No. 1697) did not make any distinction. If Article 183 of the RPC were to be used, as what in fact appears in the Ilusorio ruling, then only that portion of the article, referring to the making of an affidavit, would have been applicable as the other portion refers to false testimony in other proceedings which a judicial petition for the issuance of a new owners duplicate copy of a Certificate of Condominium Title is not because it is a civil proceeding in court. As a perjury based on the making of a false affidavit, what assumes materiality is the site where the oath was taken as this is the place where the oath was made, in this case, Pasig City. Procedurally, the rule on venue of criminal cases has been subject to various changes from the time General Order No. 58 was replaced by Rules 106 to 122 of the Rules of Court on July 1, 1940. Section 14, Rule 106 of the Rules of Court provided for the rule on venue of criminal actions and it expressly included, as proper venue, the place where any one of the essential ingredients of the crime took place.1wphi1 This change was followed by the passage of the 1964 Rules of Criminal Procedure,33 the 1985 Rules of Criminal Procedure,34 and the 2000 Revised Rules of Criminal Procedure which all adopted the 1940 Rules of Criminal Procedures expanded venue of criminal actions. Thus, the venue of criminal cases is not only in the place where the offense was committed, but also where any of its essential ingredients took place. In the present case, the Certification against Forum Shopping was made integral parts of two complaints for sum of money with prayer for a writ of replevin against the respondent spouses Eddie Tamondong and Eliza B. Tamondong, who, in

turn, filed a complaint-affidavit against Tomas for violation of Article 183 of the RPC. As alleged in the Information that followed, the criminal act charged was for the execution by Tomas of an affidavit that contained a falsity. Under the circumstances, Article 183 of the RPC is indeed the applicable provision; thus, jurisdiction and venue should be determined on the basis of this article which penalizes one who "make[s] an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires." The constitutive act of the offense is the making of an affidavit; thus, the criminal act is consummated when the statement containing a falsity is subscribed and sworn before a duly authorized person. Based on these considerations, we hold that our ruling in Sy Tiong is more in accord with Article 183 of the RPC and Section 15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure. To reiterate for the guidance of the Bar and the Bench, the crime of perjury committed through the making of a false affidavit under Article 183 of the RPC is committed at the time the affiant subscribes and swears to his or her affidavit since it is at that time that all the elements of the crime of perjury are executed. When the crime is committed through false testimony under oath in a proceeding that is neither criminal nor civil, venue is at the place where the testimony under oath is given. If in lieu of or as supplement to the actual testimony made in a proceeding that is neither criminal nor civil, a written sworn statement is submitted, venue may either be at the place where the sworn statement is submitted or where the oath was taken as the taking of the oath and the submission are both material ingredients of the crime committed. In all cases, determination of venue shall be based on the acts alleged in the Information to be constitutive of the crime committed. WHEREFORE, premises considered, we hereby DENY the petition for lack of merit. Costs against the petitioners. SO ORDERED. ARTURO D. BRION Associate Justice

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 191567 March 20, 2013

MARIE CALLO-CLARIDAD, Petitioner, vs. PHILIP RONALD P. ESTEBAN and TEODORA ALYN ESTEBAN, Respondents. DECISION BERSAMIN, J.: The determination of probable cause to file a criminal complaint or information in court is exclusively within the competence of the Executive Department, through the Secretary of Justice. The courts cannot interfere in such determination, except upon a clear showing that the Secretary of Justice committed grave abuse of discretion amounting to lack or excess of jurisdiction. The Case Under review is the decision promulgated on November 20, 2009, 1 whereby the Court of Appeals (CA) upheld the resolution dated April 16, 2009 issued by the Secretary of Justice dismissing for lack of probable cause the complaint for murder filed against the respondents.2 Antecedents The petitioner is the mother of the late Cheasare Armani "Chase" Callo Claridad, whose lifeless but bloodied body was discovered in the evening of February 27, 2007 between vehicles parked at the carport of a residential house located at No.10 Cedar Place, Ferndale Homes, Quezon City. Allegedly, Chase had been last seen alive with respondent Philip Ronald P. Esteban (Philip) less than an hour before the discovery of his lifeless body. Based on the petition, the following are the background facts. Around 5:30 p.m. of February 27, 2007, Chase returned home from visiting his girlfriend, Ramonna Liza "Monnel" Hernandez. Around 7:00 p.m., Chases sister Ariane was sitting at the porch of their house when she noticed a white Honda Civic car parked along the street. Recognizing the driver to be Philip, Ariane waved her hand at him. Philip appeared nonchalant and did not acknowledge her gesture. Ariane decided to stay behind and leave with their house helpers, Marivic Guray and Michelle Corpus, only after Chase had left on board the white Honda Civic car. In the meanwhile, Chase exchanged text messages with his girlfriend Monnel starting at 7:09 p.m. and culminating at 7:31 p.m. Among the messages was: Ppnta n kunin gulongyam iniisip k prn n d tyo magksma. sbrang lungkot k ngun (On the way to get the tires I still think about us not being together Im very sad right now) Security Guard (SG) Rodolph Delos Reyes and SG Henry Solis, who were stationed at the main gate of Ferndale Homes, logged the arrival at 7:26 p.m. on February 27, 2007 of Philip on board a white Honda Civic bearing plate CRD 999 with a male companion in the passenger seat. It was determined later on that the white Honda Civic bearing plate CRD 999 was owned by one Richard Joshua Ulit, who had entrusted the car to Philip who had claimed to have found a buyer of the car. Ulit, Pamela Ann Que, and car shop owner Edbert Ylo later attested that Philip and Chase were friends, and that they were unaware of any rift between the two prior to the incident. Marivic Rodriguez, a house helper of Shellane Yukoko, the resident of No. 9 Cedar Place, Ferndale Homes, was with her co-employee nanny Jennylyn Buri and the latters ward, Joei Yukoko, when they heard somebody crying coming from the crime scene: Help! Help! This was at about 7:30 p.m. Even so, neither of them bothered to check who had been crying for help. It was noted, however, that No. 10 Cedar Place, which was owned by one Mrs. Howard, was uninhabited at the time. Based on the initial investigation report of the Megaforce Security and Allied Services, Inc., 3 the Estebans were illegally parking their cars at Mrs. Howards carport. The initial investigation report stated that the SGs would regularly remind the

Estebans to use their own parking garage, which reminders had resulted in heated discussions and altercations. The SGs kept records of all the illegal parking incidents, and maintained that only the Estebans used the carport of No. 10 Cedar Place. Around 7:45 p.m., respondent Teodora Alyn Esteban (Teodora) arrived at Ferndale Homes on board a vehicle bearing plate XPN 733, as recorded in the subdivision SGs logbook. At that time, three cars were parked at the carport of No. 10 Cedar place, to wit: a Honda CRV with plate ZAE 135 parked parallel to the Honda Civic with plate CRD 999, and another Honda Civic with plate JTG 333, the car frequently used by Philip, then parked diagonally behind the two cars. Some witnesses alleged that prior to the discovery of the Chases body, they had noticed a male and female inside the car bearing plate JTG 333 engaged in a discussion. At around 7:50 p.m., SG Abelardo Sarmiento Jr., while patrolling around the village, noticed that the side of the Honda Civic with plate JTG 333 had red streaks, which prompted him to move towards the parked cars. He inspected the then empty vehicle and noticed that its radio was still turned on. He checked the cars and discovered that the rear and side of the Honda Civic with plate CRD 999 were smeared with blood. He saw on the passenger seat a cellular phone covered with blood. It was then that he found the bloodied and lifeless body of Chase lying between the parallel cars. The body was naked from the waist up, with a crumpled bloodied shirt on the chest, and with only the socks on. SG Sarmiento called for back-up. SG Rene Fabe immediately barricaded the crime scene. Around 7:55 p.m., SG Solis received a phone call from an unidentified person who reported that a "kid" had met an accident at Cedar Place. SG Solis later identified and confirmed the caller to be "Mr. Esteban Larry" when the latter entered the village gate and inquired whether the "kid" who had met an accident had been attended to. Moreover, when SG Fabe and SG Sarmiento were securing the scene of the crime, they overheard from the radio that somebody had reported about a "kid" who had been involved in an accident at Cedar Place. SG Fabe thereafter searched the village premises but did not find any such accident. When SG Fabe got back, there were already several onlookers at the crime scene. The Scene-of-the-Crime Operations (SOCO) team arrived. Its members prepared a sketch and took photographs of the crime scene. They recovered and processed the cadaver of Chase, a bloodstained t-shirt, blood smears, green nylon cord, fingerprints, wristwatch, and a bloodied Nokia N90 mobile phone. According to the National Bureau of Investigation (NBI) Medico-Legal Report No N-07-163 signed by Dr. Valentin Bernales, Acting Medico-Legal Division Chief, and Dr. Cesar B. Bisquera, Medico-Legal Officer, the victim sustained two stab wounds, to wit: one on the left side of the lower chest wall with a depth of 9 cm., which fractured the 4th rib and pierced the heart, and the other on the middle third of the forearm. The findings corroborated the findings contained in Medico-Legal Report No. 131-07 of Police Chief Insp. Filemon C. Porciuncula Jr. Resolution of the Office of the City Prosecutor The Office of the City Prosecutor (OCP) of Quezon City dismissed the complaint in its resolution dated December 18, 2007.4 The OCP observed that there was lack of evidence, motive, and circumstantial evidence sufficient to charge Philip with homicide, much less murder; that the circumstantial evidence could not link Philip to the crime; that several possibilities would discount Philips presence at the time of the crime, including the possibility that there were more than one suspect in the fatal stabbing of Chase; that Philip was not shown to have any motive to kill Chase; that their common friends attested that the two had no ill-feelings towards each other; that no sufficient evidence existed to charge Teodora with the crime, whether as principal, accomplice, or accessory; and that the allegation that Teodora could have been the female person engaged in a discussion with a male person inside the car with plate JTG 333 was unreliable being mere hearsay. The petitioner moved for the reconsideration of the dismissal, but the OCP denied the motion on December 15, 2008.5 Resolution by the Secretary of Justice On petition for review,6 the Secretary of Justice affirmed the dismissal of the complaint on April 16, 2009. 7 The Secretary of Justice stated that the confluence of lack of an eyewitness, lack of motive, insufficient circumstantial evidence, and the doubt as to the proper identification of Philip by the witnesses resulted in the lack of probable cause to charge Philip and Teodora with the crime alleged.

The Secretary of Justice held that the only circumstantial evidence connecting Philip to the crime was the allegation that at between 7:00 to 7:30 oclock of the evening in question, Chase had boarded the white Honda Civic car driven by Philip; that the witnesses positive identification of Philip as the driver of the car was doubtful, however, considering that Philip did not alight from the car, the windows of which were tinted; and that the rest of the circumstances were pure suspicions, and did not indicate that Philip had been with Chase at the time of the commission of the crime. After her motion for reconsideration was denied by the Secretary of Justice on May 21, 2009, 8 the petitioner elevated the matter to the CA by petition for review under Rule 43, Rules of Court. Ruling of the CA In her petition for review in the CA, the petitioner assigned to the Secretary of Justice the following errors, to wit: I. THE HONORABLE SECRETARY OF JUSTICE MANIFESTLY ERRED IN DENYING THE PETITION FOR REVIEW AND MOTION FOR RECONSIDERATION THEREOF FILED BY PETITIONER CONSIDERING THAT PROBABLE CAUSE EXISTS AGAINST RESPONDENTS FOR THE CRIME OF MURDER UNDER ARTICLE 248 OF THE REVISED PENAL CODE. II. THE HONORABLE SECRETARY OF JUSTICE ERRED IN NOT FINDING THE NUMEROUS PIECES OF CIRCUMSTANTIAL EVIDENCE PRESENTED AGAINST RESPONDENTS TO HOLD THEM LIABLE FOR THE CRIME OF MURDER AS EXTANT IN THE RECORDS OF THE CASE. III. THE HONORABLE SECRETARY OF JUSTICE ERRED IN NOT FINDING THAT ALL THE ELEMENTS OF THE CRIME OF MURDER ARE PRESENT IN THE INSTANT CASE.9 On November 20, 2009, the CA promulgated its assailed decision,10 dismissing the petition for review. The petitioner filed a motion for reconsideration, but the CA denied the motion for its lack of merit. Hence, this appeal by petition for review on certiorari. The petitioner prays that Philip and Teodora be charged with murder on the strength of the several pieces of circumstantial evidence; that the qualifying aggravating circumstances of evident premeditation and treachery be appreciated in the slaying of her son, given the time, manner, and weapon used in the commission of the crime and the location and degree of the wounds inflicted on the victim. Issue Whether the CA committed a reversible error in upholding the decision of the Secretary of Justice finding that there was no probable cause to charge Philip and Teodora with murder for the killing of Chase. Ruling We deny the petition for review, and sustain the decision of the CA. We note, to start with, that the petitioner assailed the resolution of the Secretary of Justice by filing in the CA a petition for review under Rule 43, Rules of Court. That was a grave mistake that immediately called for the outright dismissal of the petition. The filing of a petition for review under Rule 43 to review the Secretary of Justices resolution on the determination of probable cause was an improper remedy.11 Indeed, the CA had no appellate jurisdiction vis--vis the Secretary of Justice. A petition for review under Rule 43 is a mode of appeal to be taken only to review the decisions, resolutions or awards by the quasi-judicial officers, agencies or bodies, particularly those specified in Section 1 of Rule 43.12 In the matter before us, however, the Secretary of Justice was not an officer performing a quasi-judicial function. In reviewing the findings of the OCP of Quezon City on the matter of probable cause, the Secretary of Justice performed an essentially executive function to determine whether the crime alleged against the respondents was committed, and whether there was probable cause to believe that the respondents were guilty thereof. 13

On the other hand, the courts could intervene in the Secretary of Justices determination of probable cause only through a special civil action for certiorari. That happens when the Secretary of Justice acts in a limited sense like a quasi-judicial officer of the executive department exercising powers akin to those of a court of law. 14 But the requirement for such intervention was still for the petitioner to demonstrate clearly that the Secretary of Justice committed grave abuse of discretion amounting to lack or excess of jurisdiction. Unless such a clear demonstration is made, the intervention is disallowed in deference to the doctrine of separation of powers. As the Court has postulated in Metropolitan Bank & Trust Co. (Metrobank) v. Tobias III: 15 Under the doctrine of separation of powers, the courts have no right to directly decide matters over which full discretionary authority has been delegated to the Executive Branch of the Government, or to substitute their own judgments for that of the Executive Branch, represented in this case by the Department of Justice. The settled policy is that the courts will not interfere with the executive determination of probable cause for the purpose of filing an information, in the absence of grave abuse of discretion. That abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of law, such as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. x x x Secondly, even an examination of the CAs decision indicates that the CA correctly concluded that t he Secretary of Justice did not abuse his discretion in passing upon and affirming the finding of probable cause by the OCP. A preliminary investigation, according to Section 1, Rule 112 of the Rules of Court, is "an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial." The investigation is advisedly called preliminary, because it is yet to be followed by the trial proper in a court of law. The occasion is not for the full and exhaustive display of the parties evidence but for the presentation only of such evidence as may engender a well -founded belief that an offense has been committed and that the accused is probably guilty of the offense.16 The role and object of preliminary investigation were "to secure the innocent against hasty, malicious, and oppressive prosecutions, and to protect him from open and public accusation of crime, from the trouble, expenses and anxiety of a public trial, and also to protect the State from useless and expensive prosecutions."17 In Arula vs. Espino,18 the Court rendered the three purposes of a preliminary investigation, to wit: (1) to inquire concerning the commission of a crime and the connection of the accused with it, in order that he may be informed of the nature and character of the crime charged against him, and, if there is probable cause for believing him guilty, that the State may take the necessary steps to bring him to trial; (2) to preserve the evidence and keep the witnesses within the control of the State; and (3) to determine the amount of bail, if the offense is bailable. The officer conducting the examination investigates or inquires into facts concerning the commission of a crime with the end in view of determining whether an information may be prepared against the accused. The determination of the existence of probable cause lies within the discretion of the public prosecutor after conducting a preliminary investigation upon the complaint of an offended party.19 Probable cause for purposes of filing a criminal information is defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed, and that it was committed by the accused. Probable cause, although it requires less than evidence justifying a conviction, demands more than bare suspicion. 20 A public prosecutor alone determines the sufficiency of evidence that establishes the probable cause justifying the filing of a criminal information against the respondent because the determination of existence of a probable cause is the function of the public prosecutor.21 Generally, the public prosecutor is afforded a wide latitude of discretion in the conduct of a preliminary investigation. Consequently, it is a sound judicial policy to refrain from interfering in the conduct of preliminary investigations, and to just leave to the Department of Justice the ample latitude of discretion in the determination of what constitutes sufficient evidence to establish probable cause for the prosecution of supposed offenders. Consistent with this policy, courts do not reverse the Secretary of Justices findings and conclusions on the matter of probable cause except in clear cases of grave abuse of discretion.22 By way of exception, however, judicial review is permitted where the respondent in the preliminary investigation clearly establishes that the public prosecutor committed grave abuse of discretion, that is, when the public prosecutor has exercised his discretion in an arbitrary, capricious, whimsical or despotic manner by reason of passion or personal hostility, patent and gross enough as to amount to an evasion of a positive duty or virtual refusal to perform a duty enjoined by law. 23 Moreover, the trial court may ultimately resolve the existence or non-existence of probable cause by examining the records of the preliminary investigation when necessary for the orderly administration of justice.24 Although policy considerations call for the widest latitude of deference to the public prosecutors findings, the courts should never shirk from exercising their power, when

the circumstances warrant, to determine whether the public prosecutors findings are supported by the fa cts, and by the law.25 Under the circumstances presented, we conclude to be correct the CAs determination that no prima facie evidence existed that sufficiently indicated the respondents involvement in the commission of the crime. It is clear that there was no eyewitness of the actual killing of Chase; or that there was no evidence showing how Chase had been killed, how many persons had killed him, and who had been the perpetrator or perpetrators of his killing. There was also nothing that directly incriminated the respondents in the commission of either homicide or murder. Admittedly, the petitioner relies solely on circumstantial evidence, which she insists to be enough to warrant the indictment of respondents for murder. We disagree. For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with one another and must constitute an unbroken chain leading to one fair and reasonable conclusion that a crime has been committed and that the respondents are probably guilty thereof. The pieces of evidence must be consistent with the hypothesis that the respondents were probably guilty of the crime and at the same time inconsistent with the hypothesis that they were innocent, and with every rational hypothesis except that of guilt. 26 Circumstantial evidence is sufficient, therefore, if: (a) there is more than one circumstance, (b) the facts from which the inferences are derived have been proven, and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 27 The records show that the circumstantial evidence linking Philip to the killing of Chase derived from the bare recollections of Ariane (sister of Chase), and of Guray and Corpus (respectively, the househelp and nanny in the household of a resident of the subdivision) about seeing Chase board the white Honda Civic at around 7:00 p.m. of February 27, 2007, and about Philip being the driver of the Honda Civic. But there was nothing else after that, because the circumstances revealed by the other witnesses could not even be regarded as circumstantial evidence against Philip. To be sure, some of the affidavits were unsworn.28 The statements subscribed and sworn to before the officers of the Philippine National Police (PNP) having the authority to administer oaths upon matters connected with the performance of their official duties undeniably lacked the requisite certifications to the effect that such administering officers had personally examined the affiants, and that such administering officers were satisfied that the affiants had voluntarily executed and understood their affidavits. 29 The lack of the requisite certifications from the affidavits of most of the other witnesses was in violation of Section 3, Rule 112 of the Rules of Court, which pertinently provides thusly: Section 3. Procedure. The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. xxxx The CA explained that the requirement for the certifications under the aforecited rule was designed to avoid self-serving and unreliable evidence from being considered for purposes of the preliminary investigation, the present rules for which do not require a confrontation between the parties and their witnesses; hence, the certifications were mandatory, to wit: In Oporto, Jr. vs. Monserate, it was held that the requirement set forth under Section 3, Rule 112 of the Revised Rules of Criminal Procedure is mandatory. This is so because the rules on preliminary investigation does not require a confrontation between the parties. Preliminary investigation is ordinarily conducted through submission of affidavits and supporting documents, through submission of affidavits and supporting documents, through the exchange of pleadings. Thus, it can be inferred that the rationale for requiring the affidavits of witnesses to be sworn to before a competent officer so as to ensure that the affidavits supporting the factual allegations in the Complaint have been sworn before a competent officer and that the affiant has signed the same in the formers presence declaring on oath the truth of the statement made considering that this becomes part of the bases in finding probable guilt against the respondent. Well-settled is the rule that persons, such as an employee, whose unsworn declarations in behalf of a party, or the employees employer in this case, are not admissible in favor of the latter. Further, it has been held that unsworn statements or declarations are self-

serving and self-serving declarations are not admissible in evidence as proof of the facts asserted, whether they arose by implication from acts and conduct or were made orally or reduced in writing. The vital objection to the admission to this kind of evidence is its hearsay character. In the case at bar, a perusal of the statements/affidavits accompanying the complaint shows that out of the total of 16 statements/affidavits corresponding to the respective witnesses, only nine (9) thereof were sworn to before a competent officer. These were the affidavits of the following: (1) SG Sarmiento; (2) SG Solis; (3) SG Fabe; (4) SG Marivic Rodriguez; (5) Jennylyn Buri; (6) Richard Joshua Sulit; (7) Marites Navarro; (8) Pamela-Ann Que; and (9) Edbert Ylo, which were sworn to or subscribed before a competent officer. Thus, it is imperative that the circumstantial evidence that the victim was last seen in the company of respondent Philip must be established by competent evidence required by the rules in preliminary investigation. Here, it was allegedly Chases sister, Ariane, and their two household helpers, Marivic Guray and Michelle Corpus, who saw respondent Philip pick up Chase at around 7:00 oclock in the evening of February 27, 2007. Yet, such fact from which the inference is derived was not duly proven. The statements of Marivic and Michelle both executed on February 28, 2007 were not sworn to before the proper officer. Neither was the affidavit dated July 3, 2009 of Ariane Claridad duly notarized nor is there any explanation why the same was belatedly executed. It cannot thus be used to prove the circumstance that it was respondent Philip who drove the white car parked in front of their house at around 7:00 oclock in the evening of February 27, 2007 and that the factual allegation that the car used bore the Plate no. CRD-999. Further, since their affidavits were not in the nature of a public document, it is incumbent upon the complainant to prove its due execution and authenticity before the same is admitted in evidence. It is a wellsettled rule that private documents must be proved as to their due execution and authenticity before they may be received in evidence. Likewise, the circumstance that the victim sent a text message to his girlfriend Monet that he was on his way to get the tires at around 7:09 oclock in the evening of February 27, 2007 is likewise inadmissible in evidence because Monets affidavit was not sworn to before a competent officer. There was also no evidence of the alleged text message pursuant to the law on admissibility of electronic evidence. Besides, it cannot be inferred therefrom who the victim was with at that time and where he was going to get the tires. Neither can the handwritten unsworn statement dated February 28, 2007 of SG Rodolph delos Reyes and handwritten sworn statement dated March 8, 2008 of SG Henry Solis be of any help in claiming that the victim was in the company of respondent Philip when the latter entered the village at around 7:26 oclock in the evening of February 27, 2007. Suffice it to state that their statements only identified respondent Philip driving the white Honda Civic bearing Plate No. CRD-999. However, both were unsure if they saw respondent Philip with a passenger because it was already dark and the car was tinted.30 Also, the CA cited in its decision the further consequences of not complying with the aforequoted rule, to wit: It also follows that the succeeding pieces of circumstantial evidence relied upon by complainant are not admissible for either being incompetent or hearsay evidence, to wit: (a) that at around 7:45 p.m., respondent Teodora Alyn Esteban, on board a vehicle bearing plate no. XPN-733 entered Ferndale Homes is inadmissible because it is not supported by any sworn affidavit of a witness (b) that at around the same time, two unidentified persons, a male and female were heard talking inside Honda Civic bearing plate no. JTG-333 allegedly belonging to respondent Philip, which was one of the vehicles parked at the carport of #10 Cedar Place, inside Ferndale Homes is inadmissible because it is not supported by any sworn affidavit of a witness; (c) that the Esteban family was temporarily using the carport of #10 Cedar Place as a carpark for their vehicles at that time is inadmissible because it is not supported by any sworn affidavit of a witness; (d) that when the guards went to the house of the Esteban family, the same was unusually dark and dim is inadmissible because it is not supported by any sworn affidavit of a witness; (e) that while the crime scene was being processed, Mr. Esteban sought assistance from the police and requested that they escort his son, respondent Philip Esteban, to St. Lukes Medical Center, as the latter also allegedly suffered injuries is inadmissible because it is not supported by any sworn affidavit of a witness;

(f) that during the investigation, Philip, Mrs. Teodora Alyn Esteban and their family refused to talk and cooperate with the authorities and that they neither disclosed the extent of Philips alleged injuries nor disclosed as to how or why he sustained them is inadmissible because it is not supported by any sworn affidavit of a witness; and (g) Mrs. Edith Flores, speaking for respondents family, reportedly communicated with the family of the deceased on numerous occasions and offered to pay for the funeral expenses is inadmissible because it is not supported by any sworn affidavit of a witness. This now leaves this Court with the remaining pieces of circumstantial evidence supported by the sworn statement dated March 6, 2007 of Marivic Rodriguez, handwritten sworn statement dated March 8, 2007 of SG Abelardo Sarmiento, Jr. and handwritten sworn statement dated March 8, 2007 of SG Rene Fabe as follows: (a) at around 7:30 p.m., Marivic Guray and Jennylyn Buri heard a commotion (loud cries saying "Help! Help!) at No. 10, Cedar Place inside Ferndale Homes; (b) at around 7:50 p.m., the body of the deceased was discovered lying in a pool of blood in the carport of #10 Cedar Place; (c) there was blood inside and outside the white Honda Civic bearing plate no. CRD-999; (d) that at around 7:55 p.m., respondent Phili p Estebans father, Lauro Esteban, who was then outside the village, called the security guard at the entrance gate of the village to report the incident through his mobile phone; (e) that at around 9:09 p.m., Mr. Esteban entered the village and admitted that he was the one who called for assistance regarding an incident that transpired at Cedar Place; and (f) as per Autopsy Report, the cause of Chases death was a stab wound in the chest and that the said wound was 9 centimeters deep, or around 3.6 inches and cut the descending aorta of his heart. The above pieces of circumstantial evidence, though duly supported by sworn statements of witnesses, when taken as a whole, do not, however, lead to a finding of probable cause that respondents committed the crime charged. The factual allegations of the complaint merely show that at around 7:30 oclock in the evening of February 27, 2007, Marivic Rodriguez heard a male voice, coming from the front of their employers house, shouting "Help! Help!"; that at around 7:50 p.m., the body of the deceased was discovered lying in a pool of blood in the carport of #10 Cedar Place; that there was blood inside and outside the white Honda Civic bearing plate no. CRD-999; and, that as per Autopsy Report, the cause of Chases death was a stab wound in the chest and that the said wound was 9 centimeters deep, or around 3.6 inches and cut the descending aorta of his heart. However, all of these do not prove the presence of respondents at the scene of the crime nor their participation therein. We likewise agree with the DOJ Secretary that there was no motive on the part of the respondents to kill the victim. This was supported by the sworn statement dated March 1, 2007 of Richard Joshua Ulit; the sworn statement dated March 10, 2007 of Pamela-Ann Que; and, the sworn statement dated March 10, 2007 of Egbert Ylo, who all knew the victim and respondent Philip and claimed that the two were good friends and that they were not aware of any misunderstanding that occurred between the concerned parties. Jurisprudence is replete that motive becomes of vital importance when there is doubt as to the identity of the perpetrator.1wphi1 In Preferred Home Specialties, Inc., et al. vs. Court of Appeals, et al., the Supreme Court held that while probable cause should be determined in a summary manner, there is a need to examine the evidence with care to prevent material damage to a potential accuseds constitutional right to liberty, the guarantees of freedom and fair play, and to protect the State from the burden of unnecessary expenses in prosecuting alleged offenses and holding trials arising from false, fraudulent or groundless charges.31 It is clear from the foregoing disquisitions of the CA that the Secretary of Justice reasonably reached the conclusion that the dismissal by the OCP of Quezon City of the complaint for murder had been based on the lack of competent evidence to support a finding of probable cause against the respondents. Accordingly, such finding of probable cause by the Executive Department, through the Secretary of Justice, could not be undone by the CA, in the absence of a clear showing that the Secretary of Justice had gravely abused his discretion. Grave abuse of discretion means that the abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law

or to act at all in contemplation of law, such as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.32 That showing was not made herein. WHEREFORE, the Court DENIES the petition for review on certiorari, and AFFIRMS the decision of the Court of Appeals promulgated on November 20, 2009. The petitioner shall pay the costs of suit. SO ORDERED. LUCAS P. BERSAMIN Associate Justice

Republic of the Philippines SUPREME COURT Baguio City THIRD DIVISION G.R. NO. 184537 April 23, 2010

QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, Petitioners, vs. The HONORABLE SANDIGANBAYAN, 4th DIVISION and the PEOPLE OF THE PHILIPPINES, Respondents. DECISION MENDOZA, J.: This is a petition for certiorari, prohibition and mandamus under Rule 65 of the 1997 Rules on Civil Procedure with a prayer for the issuance of a writ of preliminary injunction and temporary restraining order assailing the July 14, 2008 Resolution1of the Sandiganbayan in Criminal Case No. SB-08 CRM 0263, denying the Motion for Preliminary Investigation filed by the petitioners who were charged with a violation of Section 3(e) of Republic Act No. 3019, and the denial of their Motion for Reconsideration done in open court on August 13, 2008. An Information2 dated September 13, 2000 charging both petitioners with having violated Section 3(e) of Republic Act No. 3019, by causing undue injury to the government, reads: The undersigned Graft Investigation Officer of the Office of the Ombudsman-Visayas, accuses QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for VIOLATION OF SECTION 3(e) OF REPUBLIC ACT NO. 3019, AS AMENDED (THE ANTIGRAFT AND CORRUPT PRACTICES ACT), committed as follows: That in or about the months of November and December, 1997, at the Municipality of Lavezares, Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, public officials, being the Municipal Mayor and PNP Member of Lavezares, Northern Samar in such capacity and committing the offense in relation to office, conniving, confederating and mutually helping with one another, and with the late Limpio Legua, a private individual, with deliberate intent, with evident bad faith and manifest partiality, did then and there willfully, unlawfully and feloniously enter into a Pakyaw Contract for the Construction of Barangay Day Care Centers for Barangays Macarthur and Urdaneta, Lavezares, Northern Samar, each in the amount of FORTY-EIGHT THOUSAND FIVE HUNDRED PESOS (P48,500.00), Philippine Currency, or a total amount of NINETY-SEVEN THOUSAND PESOS (P97,000.00), Philippine Currency, without conducting a competitive public bidding, thus depriving the government the chance to obtain the best, if not, the most reasonable price, and thereby awarding said contracts to Olimpio Legua, a non-license contractor and non-accredited NGO, in violation of Sec. 356 of Republic Act No. 7160 (The Local Government Code) and COA Circular No. 91-368, to the damage and prejudice of the government. CONTRARY TO LAW. This case was initially raffled to the Third Division of Sandiganbayan and was docketed as Criminal Case No. 26319. In a Resolution3 promulgated on June 14, 2002, the Third Division granted petitioners Motion to Quash and dismissed the information "for failure of the prosecution to allege and prove the amount of actual damages caused the government, an essential element of the crime charged." In a Memorandum4 dated July 1, 2003, the Ombudsman directed the Office of the Special Prosecutor (OSP) to study the possibility of having the information amended and re-filed with the Sandiganbayan. Thus, the OSP re-filed the Information5 dated August 17, 2007, this time, docketed as Criminal Case No. SB-08 CRM 0263, with the Fourth Division of the Sandiganbayan, charging the petitioners for violation of Section 3(e) of R.A. No. 3019, by giving unwarranted benefit to a private person, to the prejudice of the government. The information, subject of the petition, now reads:

The undersigned Prosecutor of the Office of the Special Prosecutor/Office of the Ombudsman, hereby accuses, MAYOR QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for the violation of Section 3(e) of Republic Act 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That in or about the months of November and December, 1997 at the Municipality of Lavezares, Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, accused QUINTIN B. SALUDAGA, a high ranking public official being then the Mayor of Lavezares, Northern Samar, and committing the crime herein charged while in the discharge of his official administrative function, conspiring and conniving with accused SPO2 FIEL B. GENIO, a member of Lavezares Police Force (PNP) and with the late OLIMPIO LEGUA, a private individual, with deliberate intent, did then and there willfully, unlawfully and criminally give unwarranted benefit or advantage to the late Olimpio Legua, a nonlicense contractor and nonaccredited NGO, through evident bad faith and manifest partiality by then and there entering into a Pakyaw Contract with the latter for the Construction of Barangay Day Care Centers for barangays Mac-Arthur and Urdaneta, Lavezares, Northern Samar, in the amount of FORTY EIGHT THOUSAND FIVE HUNDRED PESOS (P48,500.00) each or a total of NINETY SEVEN THOUSAND PESOS (P97,000.00) Philippine Currency, without the benefit of a competitive public bidding to the prejudice of the Government and public interest. CONTRARY TO LAW. Petitioners filed a Motion for Preliminary Investigation6 dated June 4, 2008 which was strongly opposed by the prosecution in its Opposition7 dated June 18, 2008. Petitioners contend that the failure of the prosecution to conduct a new preliminary investigation before the filing of the second Information constituted a violation of the law because the latter charged a different offense that is, violation of Section 3(e) by giving unwarranted benefit to private parties. Hence, there was a substitution of the first Information. They argue that assuming that no substitution took place, at the very least, there was a substantial amendment in the new information and that its submission should have been preceded by a new preliminary investigation. Further, they claim that newly discovered evidence mandates re-examination of the finding of a prima facie cause to file the case. On July 14, 2008, the Sandiganbayan Fourth Division issued the assailed Resolution denying the petitioners motion for preliminary investigation. The graft court found that there is no substituted information or substantial amendment that would warrant the conduct of a new preliminary investigation. It gave the following ratiocination: The re-filed information did not change the nature of the offense charged, but merely modified the mode by which accused committed the offense. The substance of such modification is not such as to necessitate the conduct of another preliminary investigation. Moreover, no new allegations were made, nor was the criminal liability of the accused upgraded in the re-filed information. Thus, new preliminary investigation is not in order. The dispositive portion of the Resolution states: Finding the arguments of accused-movants indefensible, the sufficiency of the information must be sustained. WHEREFORE, having established the sufficiency of the Information, the motion under consideration is hereby DENIED for lack of merit. Accordingly, the arraignment of both accused shall proceed as scheduled. 8 Petitioners filed a Motion for Reconsideration9 dated August 6, 2008, submitting that the two Informations substantially charged different offenses, such that the present information constituted a substitution that should have been preceded by a new preliminary investigation. On August 13, 2008, in a hearing for the arraignment of petitioners, the Sandiganbayan denied the Motion 10 in open court. Hence, petitioners interpose the present petition for certiorari, prohibition and mandamus with prayer for the issuance of a writ of preliminary injunction and temporary restraining order under Rule 65 of the Rules of Court anchored on the following grounds: I

The Honorable Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it refused to order the preliminary investigation of the case a quo, when the second Information in the instant case constituted substituted Information whose submission required the conduct of preliminary investigation. II The Honorable Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it refused to order the conduct of a preliminary investigation of the case a quo, since the second Information therein contained substantial amendments whose submission required the conduct of preliminary investigation. III The Honorable Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it refused to order the preliminary investigation of the case a quo, although the newly discovered evidence mandates due reexamination of the finding that prima facie cause existed to file the case a quo.11 From the arguments raised by petitioners, the core issue is whether or not the two (2) ways of violating section 3(e) of Republic Act 3019, namely: (a) by causing undue injury to any party, including the Government; or (b) by giving any private party any unwarranted benefit, advantage or preference constitute two distinct and separate offenses that would warrant a new or another preliminary investigation. In its Comment12 dated January 12, 2009, respondent People of the Philippines, represented by the Office of the Special Prosecutor, counters that there is no substituted information in contemplation of law and jurisprudence that would require the conduct of another preliminary investigation. There is no newly-discovered evidence that would lead to a different determination should there be another preliminary investigation conducted. In their Reply,13 dated April 24, 2009, petitioners insist that the offenses charged in the first and second Information are not the same, and what transpired was a substitution of Information that required prior conduct of preliminary investigation. Even assuming there was no substitution, substantial amendments were made in the second Information, and that its submission should have been preceded by a new preliminary investigation. We find no merit in this petition. Petitioners were charged with a violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act which reads: 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 0unlawful: xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, 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 charged with the grant of licenses or permits or other concessions. The essential elements of the offense are as follows: 1. The accused must be a public officer discharging administrative, judicial or official functions; 2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and 3. That his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.14 In a string of decisions, the Court has consistently ruled: R.A. 3019, Section 3, paragraph (e), as amended, provides as one of its elements that the public officer should have acted by causing any undue injury to any party, including the Government, or by giving any private party unwarranted benefits,

advantage or preference in the discharge of his functions. The use of the disjunctive term "or" connotes that either act qualifies as a violation of Section 3 paragraph (e), or as aptly held in Santiago, as two (2) different modes of committing the offense. This does not however indicate that each mode constitutes a distinct offense, but rather, that an accused may be charged under either mode or under both.15 The afore-stated ruling is consistent with the well-entrenched principle of statutory construction that "The word or is a disjunctive term signifying disassociation and independence of one thing from the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word."16 Contrary to the argument of petitioners, there is no substituted information. The Information dated August 17, 2007 filed in Criminal Case No. SB-08 CRM 0263 charged the same offense, that is, violation of Section 3(e) of Republic Act No. 3019. Only the mode of commission was modified. While jurisprudence, the most recent being Talaga, Jr. v. Sandiganbayan,17provides that there are two (2) acts or modes of committing the offense, thus: a) by causing any undue injury to any party, including the government; or b) by giving any private party any unwarranted benefit, advantage or preference, it does not mean that each act or mode constitutes a distinct offense. An accused may be charged under either mode18 or under both should both modes concur.19 Petitioners reliance on the Teehankee v. Madayag,20 ruling that, "in substitution of information another preliminary investigation is entailed and that the accused has to plead anew to the new information" is not applicable to the present case because, as already stated, there is no substitution of information there being no change in the nature of the offense charged. Consequently, petitioners cannot invoke the principle enunciated in Villaflor v. Vivar, 21 that failure to conduct a new preliminary investigation is tantamount to a violation of their rights. While it is true that preliminary investigation is a statutory and substantive right accorded to the accused before trial, the denial of petitioners claim for a new investigation, however, did not deprive them of their right to due process. An examination of the records of the case discloses that there was a full-blown preliminary investigation wherein both petitioners actively participated. Anent the contention of petitioners that the information contained substantial amendments warranting a new preliminary investigation, the same must likewise fail.1avvphi1 Petitioners erroneously concluded that giving undue injury, as alleged in the first Information, and conferring unwarranted benefits, alleged in the second Information, are two distinct violations of, or two distinct ways of violating Section 3(e) of Republic Act No. 3019, and that such shift from giving undue injury to conferring unwarranted benefit constituted, at the very least, a substantial amendment. It should be noted that the Information is founded on the same transaction as the first Information, that of entering into a Pakyaw Contract for the construction of barangay day care centers for barangays Mac-Arthur and Urdaneta, Lavezares, Northern Samar. Thus, the evidentiary requirements for the prosecution and defense remain the same. To bolster their claim for a reinvestigation of the offense, petitioners cited the case of Matalam v. Sandiganbayan. 22 The same is inapplicable to petitioners case. In Matalam, there was indeed a substantial amendment which entitled the accused to another preliminary investigation. The recital of facts constituting the offense charged therein was definitely altered. In the original information, the prohibited act allegedly committed by the petitioner was the illegal and unjustifiable refusal to pay the monetary claims of the private complainants, whereas in the amended information, it is the illegal dismissal from the service of the private complainants. In the case at bar, there is no substantial amendment to speak of. As discussed previously, the Information in Criminal Case No. 26319 was already dismissed by the Third Division of the Sandiganbayan in view of the petitioners Motion to Quash. As such, there is nothing more to be amended . The Court is not unaware of the case of People v. Lacson,23 where it was written: The case may be revived by the State within the time-bar either by the refiling of the Information or by the filing of a new Information for the same offense or an offense necessarily included therein. There would be no need of a new preliminary investigation. However, in a case wherein after the provisional dismissal of a criminal case, the original witnesses of the prosecution or some of them may have recanted their testimonies or may have died or may no longer be available and new witnesses for the State have emerged, a new preliminary investigation must be conducted before an Information is refiled or a new Information is filed. A new preliminary investigation is also required if aside from the original accused, other persons are charged under a new criminal complaint for the same offense or necessarily included therein; or if under a new criminal complaint, the original charge has been upgraded; or if under a new criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a principal. The accused must be accorded the right to submit counter-affidavits and evidence.

No such circumstance is obtaining in this case, because there was no modification in the nature of the charged offense.1avvphi1Consequently, a new preliminary investigation is unnecessary and cannot be demanded by the petitioners. Finally, the third assigned error, that newly discovered evidence mandates due re-examination of the finding of prima facie cause to file the case, deserves scant consideration. For petitioners, it is necessary that a new investigation be conducted to consider newly discovered evidence, in particular, the Affidavit of COA Auditor Carlos G. Pornelos, author of the audit report. We are not convinced. Under Section 2, Rule 121 of the Rules of Court, the requisites for newly discovered evidence are: (a) the evidence was discovered after trial (in this case, after investigation); (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. 24 The Pornelos affidavit, which petitioners claim as newly-discovered, was executed by affiant way back in November 29, 2000, as correctly found by the Sandiganbayan. Clearly, it cannot be considered as newly found evidence because it was already in existence prior to the re-filing of the case. In fact, such sworn affidavit was among the documents considered during the preliminary investigation. It was the sole annexed document to petitioners Supplement to Motion for Reinvestigation,25 offered to dispute the charge that no public bidding was conducted prior to the execution of the subject project. More important is the prosecutions statement in its Memorandum that, "after a careful re -evaluation of the documentary evidence available to the prosecution at the time of the filing of the initial Information, and at the time of the re-filing of the Information, the prosecution insists on the finding of probable cause, an exercise within the exclusive province of the Office of the Ombudsman."26 Worthy of note is the case of Soriano v. Marcelo,27 viz: Case law has it that the determination of probable cause against those in public office during a preliminary investigation is a function that belongs to the Office of the Ombudsman. The Ombudsman has the discretion to determine whether a criminal case, given its attendant facts and circumstances, should be filed or not. It is basically his call. Without good and compelling reasons, the Court cannot interfere in the exercise by the Office of the Ombudsman of its investigatory and prosecutory powers.28 The only ground upon which it may entertain a review of the Office of the Ombudsmans action is grave abuse of discretion.29 Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act in contemplation of law as when the judgment rendered is not based on law and evidence but on caprice, whim and despotism.30 The special civil action for certiorari under Rule 65 of the Rules of Court is intended to correct errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. The writ of certiorari is directed against a tribunal, board or officer exercising judicial or quasi-judicial function that acted without or in excess of its or his jurisdiction or with grave abuse of discretion. Grave abuse of discretion means such capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. To justify the issuance of the writ of certiorari, the abuse of discretion must be grave, as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law, as to be equivalent to having acted without jurisdiction. 31 The case at bench discloses no evident indication that respondent Sandiganbayan acted with arbitrariness, whim or caprice. It committed no error in refusing to order the conduct of another preliminary investigation. As sufficiently explained by the prosecution, a new preliminary investigation is not necessary as there was neither a modification of the nature of the offense charged nor a new allegation. Such conduct of preliminary investigation anew will only delay the resolution of the case and would be an exercise in futility in as much as there was a complete preliminary investigation actively participated by both petitioners. In view of the foregoing, we hold that the public respondent committed no grave abuse of discretion in issuing its Resolution of July 14, 2008, denying petitioners motion for preliminary investiga tion in Criminal Case No. SB-08 CRM 0263.

WHEREFORE, the petition is DENIED. SO ORDERED. JOSE CATRAL MENDOZA Associate Justice

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. Nos. 174902-06 February 15, 2008

ALFREDO R. ENRIQUEZ, GENER C. ENDONA, and RHANDOLFO B. AMANSEC, petitioners, vs. OFFICE OF THE OMBUDSMAN, respondent. DECISION SANDOVAL-GUTIERREZ, J.: Before us for resolution is a petition for mandamus1 filed by Alfredo R. Enriquez, Gener C. Endona and Rhandolfo B. Amansec, petitioners, praying that the Office of the Ombudsman, respondent, be ordered to dismiss the following administrative and criminal cases against them: 1. OMB-ADM-0-00-0415, entitled "Fact-Finding and Intelligence Bureau vs. Alfredo R. Enriquez, Enrico V. Enriquez, Edgardo V. Castro, Rachel E. Saldariega, Rhandolfo B. Amansec and Ricardo R. Arandilla, for violation of Section 4(a) of Republic Act No. 6713, otherwise known as The Code of Conduct and Ethical Standards for Public Officials and Employees, and Section 22 (a), (c), (i), (k) and (t), Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292, The Administrative Code of 1987"; 2. OMB-ADM-0-00-0416, entitled "Fact-Finding and Intelligence Bureau vs. Alfredo R. Enriquez, Rachel E. Saldariega, Rhandolfo B. Amansec, Ricardo R. Arandilla, Edilberto Feliciano and Cynthia T. Ignacio, for dishonesty and grave misconduct"; 3. OMB-ADM-0-00-0417, entitled "Fact-Finding and Intelligence Bureau vs. Alfredo R. Enriquez, Ricardo F. Arandilla, Edilberto Feliciano, Cynthia T. Ignacio, Gener C. Endona, Macario dela Pena and Rosalinda G. Alonzo, for gross neglect of duty, inefficiency, incompetence in the performance of official duties, non-compliance with the requirements of Republic Act No. 7718, as amended, and its implementing rules and regulations"; 4. OMB-0-00-0873, entitled "Fact-Finding and Intelligence Bureau vs. Alfredo R. Enriquez, Enrico V. Enriquez, Edgardo C. Castro, Rachel E. Saldariega, Rhandolfo B. Amansec and Ricardo R. Arandilla, for violation of Section 3(b) and (c) of Republic Act No. 3019, as amended"; and 5. OMB-0-00-0874, entitled "Fact-Finding and Intelligence Bureau vs. Alfredo R. Enriquez, Rachel E. Saldariega, Rhandolfo B. Amansec, Ricardo R. Arandilla, Edilberto Feliciano and Cynthia T. Ignacio, for violation of Section 3(e) of Republic Act No. 3019, as amended."2 The undisputed facts are: On May 9, 2000, the Fact-Finding and Intelligence Bureau (FFIB), Office of the Ombudsman, filed with the Administrative Adjudication Bureau, same Office, separate Complaints-Affidavits3 of even date, charging, among others, herein petitioners Alfredo R. Enriquez, Administrator, Land Registration Authority (LRA), Gener C. Endona, LRA Legal Officer and member of the Pre-qualifications, Bids and Awards Committee, and Rhandolfo B. Amansec, Chief, LRA Inspection and Investigation Division, with administrative and criminal offenses enumerated above, in connection with the bidding of the Land Titling Computerization Project of the LRA. Finding sufficient basis to proceed with the investigation of the complaints, respondent required petitioners to submit their counter-affidavits and controverting evidence. In their Joint Counter-Affidavit,4 petitioners vehemently denied the charges. Thereafter, respondent conducted several hearings.

On June 15, 2001, complainant FFIB filed its Formal Offer of Evidence,5 to which petitioners filed their Comment dated July 10, 2001.6 On January 29, 2002, petitioners likewise formally offered their evidence. On April 17, 2002, complainant FFIB filed its Comment thereon.7 Petitioners then waited for respondents resolution on the parties respective formal offers of evidence, but there was none. This prompted petitioners, on July 12, 2002, to file a Motion to Set Date for the Simultaneous Filing of Memorandum by Each Party.8 Respondent, however, did not act on petitioners motion. On December 12, 2002, Edilberto R. Feliciano, one of those charged with petitioners, filed a Motion for Early Resolution9expressing alarm over the "inaction of the Office of the Ombudsman," and praying that the cases be resolved immediately considering that all the evidence have been formally offered and the parties arguments have been submitted. Despite all these and petitioners repeated personal follow -ups, still, respondent failed to resolve the cases. On March 24, 2006, or six (6) years from the filing of the complaints- affidavits and more than four (4) years after the parties formally offered their evidence on January 29, 2002, petitioners filed a Motion to Dismiss10 all the cases against them as respondents "inordinate delay" constitutes a violation of their constitutional right to a speedy disposition of their cases. They alleged that such delay "has not only besmirched their reputation but also caused them severe anxiety and great and irreparable injustice as they have been denied employment opportunities and retirement benefits rightfully due them." Significantly, complainant FFIB, despite notice, did not interpose any objection to petitioners motion to dismiss. Yet, the cases have remained unresolved. Owing to respondents "stubborn inaction," petitioners, on October 20, 2006, filed the present petition, invoking their constitutional right to a speedy disposition of their cases. They alleged therein that respondent acted with grave abuse of discretion amounting to lack or excess of jurisdiction in not resolving expeditiously the cases without any justification, thereby causing them to suffer grave injustice and agony. In its Comment,11 filed through Solicitor General Agnes VST Devanadera, respondent maintains that it did not violate petitioners right to a speedy disposition of their cases; that petitioners cannot reso rt to the remedy of mandamus because dismissing the administrative and criminal cases against them involves respondents exercise of discretion; and that respondent did not act with grave abuse of discretion for failing to resolve the cases, contending that "the prosecutors assigned to these cases are merely exercising extreme care in verifying, evaluating and assessing the charges against petitioners to enable them to arrive at a just determination of the cases" and that "the delay in the ongoing review is not vexatious, capricious or oppressive." The Issues I. Whether the petition for mandamus is an appropriate remedy. II. Whether respondent violated petitioners constitutional right to a speedy disposition of their cases. The Courts Ruling The petition is meritorious. First Issue:

Mandamus is the Appropriate Remedy Ordinarily, a petition for a writ of mandamus is proper to compel the public official concerned to perform a ministerial act which the law specifically enjoins as a duty resulting from an office, trust or station.12 However, it is inaccurate to say that the writ will never issue to control the public officials discretion. Our jurisprudence is replete with exceptions to that rule. Thus, this Court held that if the questioned act was done with grave abuse of discretion, manifest injustice or palpable excess of authority, the writ will be issued to control the exercise of such discretion. 13 Likewise, mandamus is a proper recourse for citizens who seek to enforce a public right and to compel the performance of a public duty, most especially when mandated by the Constitution.14 Thus, a party to a case may demand expeditious action from all officials who are tasked with the administration of justice.15 Under the undisputed facts before us, we hold that respondent acted with grave abuse of discretion amounting to lack or excess of jurisdiction by failing to resolve the administrative and criminal cases against petitioners even to this day, or a period of almost eight (8) years from the filing of their complaints- affidavits. Second Issue: The Right to a Speedy Disposition of Cases "All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial or administrative bodies," so the Constitution16 declares in no uncertain terms. This right, like the right to a speedy trial, is deemed violated when the proceedings are attended by vexatious, capricious, and oppressive delays. 17 In a number of cases, this Court ruled that the right to a speedy disposition of a case is a relative or flexible concept. A mere mathematical reckoning of the time involved is not sufficient. Particular regard must be taken of the facts and circumstances peculiar to each case. Hence, the doctrinal rule is that in the determination of whether that right has been violated, the factors that may be considered and balanced are the length of the delay, the reasons for the delay, the aggrieved partys assertion or failure to assert such right, and the prejudice caused by the delay.18 In determining whether these factors exist in the instant cases, let us first examine the constitutional and statutory mandate, powers and duties of respondent. Respondent was constitutionally created to be the "protector of the people," with the expressed mandate that it "shall act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people."19 To attain its mandate, Sections 15 and 16 of Republic Act No. 6770 (The Ombudsman Act of 1989) bestowed upon respondent broad and tremendous powers and functions generally categorized as follows: investigatory power, prosecutory power, disciplinary power, contempt power, public assistance functions, authority to inquire and obtain information, and function to adopt, institute and implement preventive measures, thus: SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; (2) Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporations with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties; (3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its

disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer; (4) Direct the officer concerned, in ay appropriate case, and subject to such limitations as it may provide in its rules of procedure, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action; (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents; (6) Publicize matters covered by its investigation of the matters mentioned in paragraphs (1), (2), (3) and (4) hereof, when circumstances so warrant and with due prudence: Provided, That the Ombudsman under its rules and regulations may determine what cases may not be made public: Provided, further, That any publicity issued by the Ombudsman shall be balanced, fair and true; (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government,and make recommendations for their elimination and the observance of high standards of ethics and efficiency; (8) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records; (9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein; (10) Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions, and duties herein or hereinafter provided; (11) Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the parties involved therein. The Ombudsman shall give priority to complaints filed against high ranking government officials and/or those occupying supervisory positions, complaints involving grave offenses, as well as complaints involving large sums of money and/or properties. SEC. 16. Applicability. The provisions of this Act shall apply to all kinds of malfeasance, misfeasance, and non-feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office. (Underscoring supplied) These powers, functions and duties are aimed to enable respondent to be "a more active and effective agent of the people in ensuring accountability in public office."20 Unfortunately, respondent has transgressed its constitutional and statutory duties. When the Constitution enjoins respondent to "act promptly" on any complaint against any public officer or employee, it has the concomitant duty to speedily resolve the same. But respondent did not act promptly or resolve speedily petitioners cases. The Rules of Procedure of the Office of the Ombudsman requires that the hearing officer is given a definite period of "not later than thirty (30) days" to resolve the case after the formal investigation shall have been concluded .21 Definitely, respondent did not observe this 30-day rule. Here, respondent did not resolve the administrative and criminal cases against petitioners although the investigation of the said cases had long been terminated when the latter formally offered their evidence way back on January 29, 2002. In fact, due to respondents inaction, petitioners, on March 24, 2006 or more than four (4) years from January 29, 2002, filed a motion praying the immediate dismissal of all the cases against them, contending that respondents "inordinate delay" in resolving them constitutes a violation of their constitutional right to a speedy disposition of their cases. Significantly, this motion was never resisted by complainant FFIB. Nonetheless, respondent did not even bother to act on the motion. Likewise, it did not inform petitioners why the cases remain unresolved.

It is unfortunate that while petitioners exerted diligent efforts by filing several motions urging respondent to resolve their cases speedily, respondent, up to now, refuses to take action thereon. Clearly, respondents inaction does not only violate petitioners right to speedy disposition of their cases guaranteed by the Constitution, but is also opposed to its role as the vanguard in the promotion of efficient service by the government to the people and in ensuring accountability in public office. Considering that respondent is tasked to "determine the causes of inefficiency in the Government, and make recommendations for (its) elimination and the observance of high standards of ethics and efficiency,"22 its prolonged delay is manifestly a violation of due process. Respondents belated excuse, as alleged in its Comment on the p resent petition, that the prosecutors assigned to these cases are still reviewing and evaluating them with extreme care to arrive at a just determination is not only unreasonable but also an afterthought. This same excuse was rejected by this Court in Duterte v. Sandiganbayan,23 thus: On the other hand, the Office of the Ombudsman failed to present any plausible, special or even novel reason which could justify the four-year delay in terminating its investigation. Its excuse for the delay the many layers of review that the case had to undergo and the meticulous scrutiny it had to entail has lost its novelty and is no longer appealing, as was the invocation in the Tatad case. In Tatad v. Sandiganbayan,24 this Court dismissed the Informations pending before the Sandiganbayan, holding that the "inordinate delay of three (3) years in terminating the preliminary investigation and in filing the Informations violated the constitutional right of the petitioner to due process and to a speedy disposition of the cases against petitioner." This Court ruled: We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutional guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Right (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the petitione rs constitutional rights. A delay of close to three (3) years can not be deemed reasonable or justifiable in the light of the circumstance obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that "the delay may be due to a painstaking and grueling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high-ranking government official. Similarly, in Roque v. Office of the Ombudsman,25 this Court held that the failure of the Office of the Ombudsman to resolve a complaint that has been pending for six (6) years is clearly violative of the rights of petitioners to due process and to a speedy disposition of the cases against them. Thus, the complaints against petitioners were dismissed. Significantly, this Court was not even persuaded by respondents argument that the petition for mandamus became moot and academic when the complaints were later resolved by the Office of the Ombudsman and the Informations were filed thereafter, holding that "the same contention was rejected in Tatad v. Sandiganbayan, wherein the Court declared that the long and unexplained delay in the resolution of the criminal complaints against petitioners was not corrected by the eventual filing of the Informations." Also, in Lopez, Jr. v. Office of the Ombudsman,26 this Court dismissed the complaints against petitioner due to the failure of the Office of the Ombudsman to resolve the same that have been pending for almost four (4) years, ruling that such delay clearly violates petitioners constitutional right to speedy disposition of his cases. These are only some of the cases showing respondents disregard of the persons constitutional right to a speedy disposition of his case. Sadly, the list of cases is growing. This is alarming. Here, respondent, the very protector of the people, became the perpetrator of the dictum that "justice delayed is justice denied." Indeed, the said dictum is not a meaningless concept that can be taken for granted by those who are tasked with the dispensation of justice. 27 The constitutional guarantee against unreasonable delay in the disposition of cases was intended to stem the tide of disenchantment among the people in the administration of justice by our judicial and quasi-judicial tribunals.28 The adjudication of cases must not only be done in an orderly manner that is in accord with the established rules of procedure, but must also be promptly decided to better serve the ends of justice. Excessive delay in the disposition of cases renders the rights of the people guaranteed by the Constitution and by various legislations inutile. 29 The peoples respect and confidence in the Office of the Ombudsman are measured not only by its impartiality, fairness, and correctness of its acts, but also by its capacity to resolve cases speedily.

WHEREFORE, we GRANT the instant petition. The administrative cases, docketed as OMB-ADM-0-00-0415, OMBADM-0-00-0416, and OMB-ADM-0-00-0417, as well as the criminal cases, docketed as OMB-0-00-0873 and OMB-0-000874, filed against petitioners, are ordered DISMISSED. SO ORDERED. ANGELINA SANDOVAL-GUTIERREZ Associate Justice

WE CONCUR:

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 199082 July 23, 2013

JOSE MIGUEL T. ARROYO, Petitioner, vs. DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her capacity as Secretary of the Department of Justice; HON. SIXTO BRILLANTES, JR., in his capacity as Chairperson of the Commission on Elections; and the JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents. x-----------------------x G.R. No. 199085 BENJAMIN S. ABALOS, SR., Petitioner, vs. HON. LEILA DE LIMA, in capacity as Secretary of Justice; HON. SIXTO S. BRILLANTES, JR., in his capacity as COMELEC Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEORGE C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET, in their capacity as CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE ON THE 2004 AND 2007 ELECTION FRAUD,Respondents. x-----------------------x G.R. No. 199118 GLORIA MACAPAGAL-ARROYO, Petitioner, vs. COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by Secretary Leila M. De Lima, JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and DOJ-COMELEC FACT FINDING TEAM, Respondents. RESOLUTION PERALTA, J.: For resolution are the separate motions for reconsideration filed by movants Gloria Macapagal Arroyo (GMA) 1 in G.R. No. 199118 and Jose Miguel T. Arroyo (Mike Arroyo )2 in G.R. No. 199082 praying that the Court take a second look at our September 18, 2012 Decision3 dismissing their petitions and supplemental petitions against respondents Commission on Elections (Comelec), the Department of Justice (DOJ), Senator Aquilino M. Pimentel III (Senator Pimentel), Joint DOJComelec Preliminary Investigation Committee (Joint Committee) and DOJ-Comelec Fact-Finding Team (Fact-Finding Team), et al. For a better perspective, we briefly state the relevant factual and procedural antecedents as found by the Court in the assailed decision, to wit: On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and constituting a Joint Committee and Fact-Finding Team (referred to as Joint Panel) on the 2004 and 2007 National Elections electoral fraud and manipulation cases. The Joint Committee was mandated to conduct the necessary preliminary investigation on the basis of the evidence gathered and the charges recommended by the Fact-Finding Team. The Fact-Finding Team, on the other hand, was created for the purpose of gathering real, documentary, and testimonial evidence which can be utilized in

the preliminary investigation to be conducted by the Joint Committee. Pursuant to Section 7 4 of the Joint Order, on August 23, 2011, the Joint Committee promulgated its Rules of Procedure. In its Initial Report5 dated October 20, 2011, the Fact-Finding Team concluded that manipulation of the results in the May 14, 2007 senatorial elections in the provinces of North and South Cotabato, and Maguindanao was indeed perpetrated.6The Fact-Finding Team recommended, among others, that petitioner Benjamin S. Abalos, Sr. (Abalos) be subjected to preliminary investigation for electoral sabotage for conspiring to manipulate the election results in North and South Cotabato; that GMA and Abalos be subjected to another preliminary investigation for manipulating the election results in Maguindanao;7 and, that Mike Arroyo be subjected to further investigation.8 The case was docketed as DOJComelec Case No. 001-2011. Meanwhile, on October 17, 2011, Senator Pimentel filed a ComplaintAffidavit 9 for Electoral Sabotage against petitioners and twelve others, and several John Does and Jane Does. The case was docketed as DOJ-Comelec Case No. 002-2011. On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-2011.10 On November 3, 2011, petitioners, through counsel, appeared before the Joint Committee11 and respondents therein were ordered to submit their Counter-Affidavits by November 14, 2011.12 Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction assailing the creation of the Joint Panel.13 The petitions were eventually consolidated. On November 14, 2011, Mike Arroyo filed a Motion to Defer Proceedings 14 before the Joint Committee, in view of the pendency of his petition before the Court. On the same day, GMA filed before the Joint Committee an Omnibus Motion Ad Cautelam15 to require Senator Pimentel to furnish her with documents referred to in his complaint-affidavit and for the production of election documents as basis for the charge of electoral sabotage. GMA prayed that she be allowed to file her counter-affidavit within ten (10) days from receipt of the requested documents. 16 Petitioner Abalos, for his part, filed a Motion to Suspend Proceedings (Ex Abundante Ad Cautelam),17 in view of the pendency of his petition brought before the Court. In an Order18 dated November 15, 2011, the Joint Committee denied the aforesaid motions of petitioners. GMA, subsequently, filed a motion for reconsideration.19 On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later indorsed to the Comelec.20On November 18, 2011, the Comelec en banc issued a Resolution 21 approving and adopting the Joint Resolution subject to modifications. The Comelec resolved, among others, that an information for electoral sabotage be filed against GMA and Abalos, while the charges against Mike Arroyo be dismissed for insufficiency of evidence. On even date, pursuant to the above Resolution, the Comelecs Law Department filed with the Regional Trial Court (RTC), Pasay City, an Information against petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for violation of Section 42(b)(3) of Republic Act (RA) No. 9369, amending Section 27 (b) of RA 6646, docketed as Criminal Case No. RPSY-11-04432-CR.22 The case was raffled to Branch 112 and the corresponding Warrant of Arrest was issued which was served on GMA on the same day.23 On November 18, 2011, GMA filed with the RTC an Urgent Omnibus Motion Ad Cautelam 24 with leave to allow the Joint Committee to resolve the motion for reconsideration filed by GMA, to defer issuance of a warrant of arrest and a hold departure order, and to proceed to judicial determination of probable cause. She, likewise, filed with the Comelec a Motion to Vacate Ad Cautelam25 praying that its Resolution be vacated for being null and void. The RTC, nonetheless, issued a Warrant for her arrest which was duly served. GMA was later arraigned and she entered a plea of "not guilty." She was, for some time, on hospital arrest but was able to obtain temporary liberty when her motion for bail was granted. At present, she is again on hospital arrest by virtue of a warrant issued in another criminal case. On September 18, 2012, the Court rendered the assailed Decision, the dispositive portion of which reads: WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED. Comelec Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15, 2011, and the Fact- Finding Teams Initial Report dated October 20, 2011, are declared VALID. However, the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack of publication.

In view of the constitutionality of the Joint Panel and the proceedings having been conducted in accordance with Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary investigation is hereby declared VALID. Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal cases for electoral sabotage against petitioners GMA and Abalos are pending, proceed with dispatch. SO ORDERED.26 Hence, these motions for reconsideration. Issues Mike Arroyo reiterates his arguments on the independence of the Comelec as basis in nullifying the subject joint DOJComelec resolutions. Echoing Justice Arturo Brion in his Dissenting and Concurring Opinion,27 Mike Arroyo insists that the creation of the Joint Panel undermines the decisional independence of the Comelec. 28 Mike Arroyo also maintains that the DOJ should conduct preliminary investigation only when deputized by the Comelec but not exercise concurrent jurisdiction.29 Finally, as has been repeatedly pointed out in his earlier pleadings before the Court, Mike Arroyo claims that the proceedings involving the electoral sabotage case were rushed because of pressures from the executive branch of the government.30 For her part, GMA claims that in availing of the procedural remedies available, she merely exercised her earnest efforts to defend herself and should not have been deemed by the Court as acts which purportedly tend to demonstrate that she either waived or forfeited her right to submit her counter-affidavit and countervailing evidence.31 Citing several cases decided by the Court, she likewise faults the Court in not upholding her right to ask for additional time within which to submit her counter-affidavit and countervailing evidence.32 GMA highlights that the subject Comelec Resolution creating the Joint Panel is different from the previous Comelec resolutions requesting the DOJ Secretary to assign prosecutors to assist the Comelec, as the latter emphasize the role of the DOJ as deputized agency in the conduct of preliminary investigation. She maintains that it is the Comelec and not the Joint Committee that has the primary, if not exclusive, authority to conduct preliminary investigation of election cases. 33 In their Consolidated Comment,34 respondents defend the creation of the Joint Committee and argue that it does not undermine the independence of the Comelec as a constitutional body because it is still the Comelec that ultimately determines probable cause.35 As to the conduct of the preliminary investigation, respondents maintain that no rights were violated as GMA was afforded the opportunity to defend herself, submit her counter-affidavit and other countervailing evidence.36 They, thus, consider GMAs claim of availing of the remedial measures as "del aying tactics" employed to thwart the investigation of charges against her by the Joint Committee.37 The Courts Ruling Clearly from the above discussion, movants raise issues that have been thoroughly explained by the Court in the assailed decision. The issues were all addressed and the explanation was exhaustive, thus, we find no reason to disturb the Courts conclusions. At any rate, if only to address the motions of the movants herein and to put an end to the questions attached to the creation of the Joint Panel and, consequently, to the performance of their assigned tasks, we hereby reiterate our findings and conclusions made in the assailed decision. This is not the first time that the Court is confronted with the issue of whether the Comelec has the exclusive power to investigate and prosecute cases of violations of election laws. In Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on Elections,38 the constitutionality of Section 4339 of RA 936940 had already been raised by petitioners therein and addressed by the Court. While recognizing the Comelecs exclusive power to investigate and prosecute cases under Batas Pambansa Bilang 881 or the Omnibus Election Code, the Court pointed out that the framers of the 1987 Constitution did not have such intention. This exclusivity is thus a legislative enactment that can very well be amended by Section 43 of RA 9369. Therefore, under the present law, the Comelec and other prosecuting arms of the government, such as the DOJ, now exercise concurrent jurisdiction in the investigation and prosecution of election offenses.

Indeed, as aptly pointed out by GMA, there is a discrepancy between Comelec Resolution No. 3467 41 dated January 12, 2001 and Joint Order No. 001-2011, dated August 15, 2011, creating and constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections electoral fraud and manipulation cases. However, GMA seemed to miss the date when these two resolutions were promulgated by the Comelec. It is noteworthy that Comelec Resolution No. 3467 was issued when Section 265 of the Omnibus Election Code was still effective, while Joint Order No. 001-2011 as well as Comelec Resolution Nos. 873342 and 905743 mentioned in the assailed decision but missed out by GMA in her motion, were issued during the effectivity of Section 43 of RA 9369, giving the Comelec and other prosecuting arms of the government the concurrent jurisdiction to investigate and prosecute election offenses. This amendment paved the way for the discrepancy. In Comelec Resolution No. 3467, the Comelec maintained the continuing deputation of prosecutors and the Comelec Law Department was tasked to supervise the investigatory and prosecutory functions of the task force pursuant to the mandate of the Omnibus Election Code. However, with the amendment, the Comelec likewise changed the tenor of the later resolutions to reflect the new mandate of the Comelec and other prosecuting arms of the government now exercising concurrent jurisdiction. Thus, the Comelec Law Department and the Office of the Chief State Prosecutor of the DOJ were tasked to jointly supervise the investigatory and prosecutory functions of the Comelec-DOJ Task Force. Considering, therefore, that the later resolutions, including Joint Order No. 001-2011, were issued pursuant to Section 43 of RA 9369 amending Section 265 of BP 881 which was declared "constitutional" in Banat, there is no reason for us to declare otherwise. To maintain the previous role of other prosecuting arms of the government as mere deputies despite the amendment would mean challenging Section 43 of RA 9369 anew which has already been settled in Banat. To be sure, the creation of a Joint Committee is not repugnant to the concept of "concurrent jurisdiction" authorized by the amendatory law. As we explained in our September 18, 2012 Decision: x x x The doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter. Contrary to the contention of the petitioners, there is no prohibition on simultaneous exercise of power between two coordinate bodies. What is prohibited is the situation where one files a complaint against a respondent initially with one office (such as the Comelec) for preliminary investigation which was immediately acted upon by said office and the re-filing of substantially the same complaint with another office (such as the DOJ). The subsequent assumption of jurisdiction by the second office over the cases filed will not be allowed. Indeed, it is a settled rule that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others. xxxx None of these problems would likely arise in the present case. The Comelec and the DOJ themselves agreed that they would exercise their concurrent jurisdiction jointly. Although the preliminary investigation was conducted on the basis of two complaints the initial report of the Fact-Finding Team and the complaint of Senator Pimentel both complaints were filed with the Joint Committee. Consequently, the complaints were filed with and the preliminary investigation was conducted by only one investigative body. Thus, we find no reason to disallow the exercise of concurrent jurisdiction jointly by those given such authority. This is especially true in this case given the magnitude of the crimes allegedly committed by petitioners. The joint preliminary investigation also serves to maximize the resources and manpower of both the Comelec and the DOJ for the prompt disposition of the cases. 44 Notwithstanding the grant of concurrent jurisdiction, the Comelec and the DOJ nevertheless included a provision in the assailed Joint Order whereby the resolutions of the Joint Committee finding probable cause for election offenses shall still be approved by the Comelec in accordance with the Comelec Rules of Procedure. 45 With more reason, therefore, that we cannot consider the creation of the Joint Committee as an abdication of the Comelecs independence enshrined in the 1987 Constitution. Finally, we focus on the validity of the preliminary investigation conducted by the Joint Committee. The procedure in conducting the preliminary investigation is governed by Rule 112 of the Revised Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure. Under both Rules, 46 the respondent shall submit his counteraffidavit and that of his witnesses and other supporting documents relied upon for his defense, within ten (10) days from receipt of the subpoena, with the complaint and supporting affidavits and documents. 47 Also in both Rules, respondent is given the right to examine evidence, but such right of examination is limited only to the documents or evidence submitted by complainants which she may not have been furnished and to copy them at her expense.48 As to the alleged denial of GMAs right to examine documents, we maintain that no right was violated in v iew of the limitation of such right as set forth above. We reiterate our explanation in the assailed decision, to wit: While it is true that Senator Pimentel referred to certain election documents which served as bases in the allegations of significant findings specific to the protested municipalities involved, there were no annexes or attachments to the

complaint filed. As stated in the Joint Committees Order dated November 15, 2011 denying GMAs Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to furnish petitioners with all the supporting evidence. However, Senator Pimentel manifested that he was adopting all the affidavits attached to the Fact-Finding Teams Initial Report. Therefore, when GMA was furnished with the documents attached to the Initial Report, she was already granted the right to examine as guaranteed by the Comelec Rules of Procedure and the Rules on Criminal Procedure. Those were the only documents submitted by the complainants to the Committee. If there are other documents that w ere referred to in Senator Pimentels complaint but were not submitted to the Joint Committee, the latter considered those documents unnecessary at that point (without foreclosing the relevance of other evidence that may later be presented during the trial) as the evidence submitted before it were considered adequate to find probable cause against her. x x x 491wphi1 Neither was GMAs right violated when her motion for extension of time within which to submit her counter-affidavit and countervailing evidence was consequently denied. The Rules use the term "shall" in requiring the respondent to submit counter-affidavit and other countervailing evidence within ten (10) days from receipt of the subpoena. It is settled that the use of the word "shall" which is a word of command, underscores the mandatory character of the rule. 50 As in any other rule, though, liberality in the application may be allowed provided that the party is able to present a compelling justification for the non-observance of the mandatory rules. In the 2008 Revised Manual for Prosecutors, investigating prosecutors allow or grant motions or requests for extension of time to submit counter-affidavits when the interest of justice demands that respondent be given reasonable time or sufficient opportunity to engage the services of counsel; examine voluminous records submitted in support of the complaint or undertake research on novel, complicated or technical questions or issues of law and facts of the case.51 In this case, GMA claimed that she could not submit her counteraffidavit within the prescribed period because she needed to examine documents mentioned in Senator Pimentels complaint -affidavit. It appeared, however, that said documents were not submitted to the Joint Committee and the only supporting documents available were those attached to the Initial Report of the Fact-Finding Team. Admittedly, GMA was furnished those documents. Thus, at the time she asked for the extension of time within which to file her counter-affidavit, she very well knew that the documents she was asking were not in the record of the case. Obviously, she was not furnished those documents because they were not submitted to the Joint Committee. Logically, she has no right to examine said documents. We cannot, therefore, fault the Joint Committee in consequently denying her motion for extension to file counter-affidavit as there was no compelling justification for the non-observance of the period she was earlier required to follow. And as we held in the assailed decision: There might have been overzealousness on the part of the Joint Committee in terminating the investigation, endorsing the Joint Resolution to the Comelec for approval, and in filing the information in court. However, speed in the conduct of proceedings by a judicial or quasijudicial officer cannot per se be instantly attributed to an injudicious performance of functions. The orderly administration of justice remains the paramount consideration with particular regard to the peculiar circumstances of each case. To be sure, petitioners were given the opportunity to present countervailing evidence. Instead of complying with the Joint Committees directive, several motions were filed but were denied by the Joint Committee. Consequently, petitioners right to submit counter -affidavit and countervailing evidence was forfeited. Taking into account the constitutional right to speedy disposition of cases and following the procedures set forth in the Rules on Criminal Procedure and the Comelec Rules of Procedure, the Joint Committee finally reached its conclusion and referred the case to the Comelec. The latter, in turn, performed its task and filed the information in court. Indeed, petitioners were given the opportunity to be heard. They even actively participated in the proceedings and in fact filed several motions before the Joint Committee. Consistent with the constitutional mandate of speedy disposition of cases, unnecessary delays should be avoided.52 Finally, in our assailed decision, we already took judicial notice that not only did GMA enter a plea of "not guilty," she also filed a Motion for Bail and after due hearing, it was granted. Apparently, she benefited from the RTC Order giving her temporary liberty. In filing the motion before the RTC and actively participating therein, she has chosen to seek judicial remedy before the RTC where the electoral sabotage case is pending instead of the executive remedy of going back to the Joint Committee for the submission of her counter-affidavit and countervailing evidence. Besides, as thoroughly discussed in the assailed decision, the irregularity or even the absence of preliminary investigation does not impair the validity of the information filed against her. WHEREFORE, premises considered, the Motions for Reconsideration are DENIED for lack of merit. SO ORDERED.

DIOSDADO M. PERALTA Associate Justice

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 152662 June 13, 2012

PEOPLE OF THE PHILIPPINES, Petitioner, vs. MA. THERESA PANGILINAN, Respondent. DECISION PEREZ, J.: The Office of the Solicitor General (OSG) filed this petition for certiorari1 under Rule 45 of the Rules of Court, on behalf of the Republic of the Philippines, praying for the nullification and setting aside of the Decision 2 of the Court of Appeals (CA) in CA-G.R. SP No. 66936, entitled "Ma. Theresa Pangilinan vs. People of the Philippines and Private Complainant Virginia C. Malolos." The fallo of the assailed Decision reads: WHEREFORE, the instant petition is GRANTED. Accordingly, the assailed Decision of the Regional Trial Court of Quezon City, Branch 218, is REVERSED and SET ASIDE and Criminal Cases Nos. 89152 and 89153 against petitioner Ma. Theresa Pangilinan are hereby ordered DISMISSED.3 Culled from the record are the following undisputed facts: On 16 September 1997, Virginia C. Malolos (private complainant) filed an affidavit-complaint for estafa and violation of Batas Pambansa (BP) Blg. 22 against Ma. Theresa Pangilinan (respondent) with the Office of the City Prosecutor of Quezon City. The complaint alleges that respondent issued nine (9) checks with an aggregate amount of Nine Million Six Hundred Fifty-Eight Thousand Five Hundred Ninety-Two Pesos (P9,658,592.00) in favor of private complainant which were dishonored upon presentment for payment. On 5 December 1997, respondent filed a civil case for accounting, recovery of commercial documents, enforceability and effectivity of contract and specific performance against private complainant before the Regional Trial Court (RTC) of Valenzuela City. This was docketed as Civil Case No. 1429-V-97. Five days thereafter or on 10 December 1997, respondent filed a "Petition to Suspend Proceedings on the Ground of Prejudicial Question" before the Office of the City Prosecutor of Quezon City, citing as basis the pendency of the civil action she filed with the RTC of Valenzuela City. On 2 March 1998, Assistant City Prosecutor Ruben Catubay recommended the suspension of the criminal proceedings pending the outcome of the civil action respondent filed against private complainant with the RTC of Valenzuela City. The recommendation was approved by the City Prosecutor of Quezon City. Aggrieved, private complainant raised the matter before the Department of Justice (DOJ). On 5 January 1999, then Secretary of Justice Serafin P. Cuevas reversed the resolution of the City Prosecutor of Quezon City and ordered the filing of informations for violation of BP Blg. 22 against respondent in connection with her issuance of City Trust Check No. 127219 in the amount of P4,129,400.00 and RCBC Check No. 423773 in the amount ofP4,475,000.00, both checks totaling the amount of P8,604,000.00. The estafa and violation of BP Blg. 22 charges involving the seven other checks included in the affidavit-complaint filed on 16 September 1997 were, however, dismissed. Consequently, two counts for violation of BP Blg. 22, both dated 18 November 1999, were filed against respondent Ma.Theresa Pangilinan on 3 February 2000 before the Office of the Clerk of Court, Metropolitan Trial Court (MeTC), Quezon City. These cases were raffled to MeTC, Branch 31on 7 June 2000.

On 17 June 2000, respondent filed an "Omnibus Motion to Quash the Information and to Defer the Issuance of Warrant of Arrest" before MeTC, Branch 31, Quezon City. She alleged that her criminal liability has been extinguished by reason of prescription. The presiding judge of MeTC, Branch 31, Quezon City granted the motion in an Order dated 5 October 2000. On 26 October 2000, private complainant filed a notice of appeal. The criminal cases were raffled to RTC, Branch 218, Quezon City. In a Decision dated 27 July 2001, the presiding judge of RTC, Branch 218, Quezon City reversed the 5 October 2000 Order of the MeTC. The pertinent portion of the decision reads: xxx Inasmuch as the informations in this case were filed on 03 February 2000 with the Clerk of Court although received by the Court itself only on 07 June 2000, they are covered by the Rule as it was worded before the latest amendment. The criminal action on two counts for violation of BP Blg. 22, had, therefore, not yet prescribed when the same was filed with the court a quo considering the appropriate complaint that started the proceedings having been filed with the Office of the Prosecutor on 16 September 1997 yet. WHEREFORE, the assailed Order dated 05 October 2000 is hereby REVERSED AND SET ASIDE. The Court a quo is hereby directed to proceed with the hearing of Criminal Cases Nos. 89152 and 89153. 4 Dissatisfied with the RTC Decision, respondent filed with the Supreme Court a petition for review5 on certiorari under Rule 45 of the Rules of Court. This was docketed as G.R. Nos. 149486-87. In a resolution6 dated 24 September 2000, this Court referred the petition to the CA for appropriate action. On 26 October 2001, the CA gave due course to the petition by requiring respondent and private complainant to comment on the petition. In a Decision dated 12 March 2002, the CA reversed the 27 July 2001 Decision of RTC, Branch 218, Quezon City, thereby dismissing Criminal Case Nos. 89152 and 89153 for the reason that the cases for violation of BP Blg. 22 had already prescribed. In reversing the RTC Decision, the appellate court ratiocinated that: xxx this Court reckons the commencement of the period of prescription for violations of Batas Pambansa Blg. 22 imputed to [respondent] sometime in the latter part of 1995, as it was within this period that the [respondent] was notified by the private [complainant] of the fact of dishonor of the subject checks and, the five (5) days grace period granted by law had elapsed. The private respondent then had, pursuant to Section 1 of Act 3326, as amended, four years therefrom or until the latter part of 1999 to file her complaint or information against the petitioner before the proper court. The informations docketed as Criminal Cases Nos. 89152 and 89152(sic) against the petitioner having been filed with the Metropolitan Trial Court of Quezon City only on 03 February 2000, the said cases had therefore, clearly prescribed. xxx Pursuant to Section 2 of Act 3326, as amended, prescription shall be interrupted when proceedings are instituted against the guilty person. In the case of Zaldivia vs. Reyes7 the Supreme Court held that the proceedings referred to in Section 2 of Act No. 3326, as amended, are judicial proceedings, which means the filing of the complaint or information with the proper court. Otherwise stated, the running of the prescriptive period shall be stayed on the date the case is actually filed in court and not on any date before that, which is in consonance with Section 2 of Act 3326, as amended. While the aforesaid case involved a violation of a municipal ordinance, this Court, considering that Section 2 of Act 3326, as amended, governs the computation of the prescriptive period of both ordinances and special laws, finds that the ruling of the Supreme Court in Zaldivia v. Reyes8 likewise applies to special laws, such as Batas Pambansa Blg. 22.9

The OSG sought relief to this Court in the instant petition for review.1wphi1 According to the OSG, while it admits that Act No. 3326, as amended by Act No. 3585 and further amended by Act No. 3763 dated 23 November 1930, governs the period of prescription for violations of special laws, it is the institution of criminal actions, whether filed with the court or with the Office of the City Prosecutor, that interrupts the period of prescription of the offense charged. 10 It submits that the filing of the complaint-affidavit by private complainant Virginia C. Malolos on 16 September 1997 with the Office of the City Prosecutor of Quezon City effectively interrupted the running of the prescriptive period of the subject BP Blg. 22 cases. Petitioner further submits that the CA erred in its decision when it relied on the doctrine laid down by this Court in the case of Zaldivia v. Reyes, Jr.11 that the filing of the complaint with the Office of the City Prosecutor is not the "judicial proceeding" that could have interrupted the period of prescription. In relying on Zaldivia, 12 the CA allegedly failed to consider the subsequent jurisprudence superseding the aforesaid ruling. Petitioner contends that in a catena of cases,13 the Supreme Court ruled that the filing of a complaint with the Fiscals Office for preliminary investigation suspends the running of the prescriptive period. It therefore concluded that the filing of the informations with the MeTC of Quezon City on 3 February 2000 was still within the allowable period of four years within which to file the criminal cases for violation of BP Blg. 22 in accordance with Act No. 3326, as amended. In her comment-opposition dated 26 July 2002, respondent avers that the petition of the OSG should be dismissed outright for its failure to comply with the mandatory requirements on the submission of a certified true copy of the decision of the CA and the required proof of service. Such procedural lapses are allegedly fatal to the cause of the petitioner. Respondent reiterates the ruling of the CA that the filing of the complaint before the City Prosecutors Office did not interrupt the running of the prescriptive period considering that the offense charged is a violation of a special law. Respondent contends that the arguments advanced by petitioner are anchored on erroneous premises. She claims that the cases relied upon by petitioner involved felonies punishable under the Revised Penal Code and are therefore covered by Article 91 of the Revised Penal Code (RPC)14 and Section 1, Rule 110 of the Revised Rules on Criminal Procedure.15Respondent pointed out that the crime imputed against her is for violation of BP Blg. 22, which is indisputably a special law and as such, is governed by Act No. 3326, as amended. She submits that a distinction should thus be made between offenses covered by municipal ordinances or special laws, as in this case, and offenses covered by the RPC. The key issue raised in this petition is whether the filing of the affidavit-complaint for estafa and violation of BP Blg. 22 against respondent with the Office of the City Prosecutor of Quezon City on 16 September 1997 interrupted the period of prescription of such offense. We find merit in this petition. Initially, we see that the respondents claim that the OSG failed to attach to the petition a dup licate original or certified true copy of the 12 March 2002 decision of the CA and the required proof of service is refuted by the record. A perusal of the record reveals that attached to the original copy of the petition is a certified true copy of the CA decision. It was also observed that annexed to the petition was the proof of service undertaken by the Docket Division of the OSG. With regard to the main issue of the petition, we find that the CA reversively erred in ruling that the offense committed by respondent had already prescribed. Indeed, Act No. 3326 entitled "An Act to Establish Prescription for Violations of Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin," as amended, is the law applicable to BP Blg. 22 cases. Appositely, the law reads: SECTION 1. Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in accordance with the following rules: (a) xxx; (b) after four years for those punished by imprisonment for more than one month, but less than two years; (c) xxx. SECTION 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

Since BP Blg. 22 is a special law that imposes a penalty of imprisonment of not less than thirty (30) days but not more than one year or by a fine for its violation, it therefor prescribes in four (4) years in accordance with the aforecited law. The running of the prescriptive period, however, should be tolled upon the institution of proceedings against the guilty person. In the old but oft-cited case of People v. Olarte,16 this Court ruled that the filing of the complaint in the Municipal Court even if it be merely for purposes of preliminary examination or investigation, should, and thus, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed cannot try the case on the merits. This ruling was broadened by the Court in the case of Francisco, et.al. v. Court of Appeals, et. al. 17 when it held that the filing of the complaint with the Fiscals Office also suspends the running of the prescriptive period of a criminal offense. Respondents contention that a different rule should be applied to cases involving special laws is bereft of merit. There is no more distinction between cases under the RPC and those covered by special laws with respect to the interruption of the period of prescription. The ruling in Zaldivia v. Reyes, Jr.18 is not controlling in special laws. In Llenes v. Dicdican,19Ingco, et al. v. Sandiganbayan,20 Brillante v. CA,21 and Sanrio Company Limited v. Lim,22 cases involving special laws, this Court held that the institution of proceedings for preliminary investigation against the accused interrupts the period of prescription. In Securities and Exchange Commission v. Interport Resources Corporation, et. al., 23 the Court even ruled that investigations conducted by the Securities and Exchange Commission for violations of the Revised Securities Act and the Securities Regulations Code effectively interrupts the prescription period because it is equivalent to the preliminary investigation conducted by the DOJ in criminal cases. In fact, in the case of Panaguiton, Jr. v. Department of Justice,24 which is in all fours with the instant case, this Court categorically ruled that commencement of the proceedings for the prosecution of the accused before the Office of the City Prosecutor effectively interrupted the prescriptive period for the offenses they had been charged under BP Blg. 22. Aggrieved parties, especially those who do not sleep on their rights and actively pursue their causes, should not be allowed to suffer unnecessarily further simply because of circumstances beyond their control, like the accuseds delaying tactics or the delay and inefficiency of the investigating agencies. We follow the factual finding of the CA that "sometime in the latter part of 1995" is the reckoning date of the commencement of presumption for violations of BP Blg. 22, such being the period within which herein respondent was notified by private complainant of the fact of dishonor of the checks and the five-day grace period granted by law elapsed. The affidavit-complaints for the violations were filed against respondent on 16 September 1997. The cases reached the MeTC of Quezon City only on 13 February 2000 because in the meanwhile, respondent filed a civil case for accounting followed by a petition before the City Prosecutor for suspension of proceedings on the ground of "prejudicial question". The matter was raised before the Secretary of Justice after the City Prosecutor approved the petition to suspend proceedings. It was only after the Secretary of Justice so ordered that the informations for the violation of BP Blg. 22 were filed with the MeTC of Quezon City. Clearly, it was respondents own motion for the suspension of the criminal proceedings, which motion she predicated on her civil case for accounting, that caused the filing in court of the 1997 initiated proceedings only in 2000. As laid down in Olarte,25 it is unjust to deprive the injured party of the right to obtain vindication on account of delays that are not under his control. The only thing the offended must do to initiate the prosecution of the offender is to file the requisite complaint. IN LIGHT OF ALL THE FOREGOING, the instant petition is GRANTED. The 12 March 2002 Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The Department of Justice is ORDERED to re-file the informations for violation of BP Blg. 22 against the respondent. SO ORDERED. JOSE PORTUGAL PEREZ Associate Justice WE CONCUR: ANTONIO T. CARPIO Senior Associate Justice Chairperson

ARTURO D. BRION Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice BIENVENIDO L. REYES Associate Justice CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Senior Associate Justice (Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

Footnotes
1

Rollo, pp. 33-66.

Penned by Associate Justice Perlita J. Tria Tirona with Associate Justices Eubulo G. Verzola and Bernardo P. Abesamis, concurring. CA rollo, pp. 162-170.
2 3

Id. at 169. Rollo, p. 133. Id. at 134-167. Id. at 169. G.R. No. 102342, 3 July 1992, 211 SCRA 277. Id. CA rollo, pp. 167-168. Section 1, Rule 110 of the 1997 Rules of Criminal Procedure Supra note 7 at 284-285. Supra.

10

11

12

Calderon-Bargas v. RTC of Pasig, Metro Manila, Br. 162, G.R. Nos. 103259-61, 1 October 1993, 227 SCRA 56; Francisco v. CA, G.R. No. L-45674, 30 May 1983, 122 SCRA 538; Ingco v. Sandiganbayan, G.R. No. 112584, 23 May 1997, 272 SCRA 563.
13

Article 91. Computation of prescription of offenses. The period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents, and shall be interrupted by the filing of the complaint or information, and shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him.
14

The term of prescription shall not run when the offender is absent from the Philippine Archipelago.

15

Section 1. Institution of criminal actions.Criminal actions shall be instituted as follows: xxx xxx The institution of the criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws.

16

G.R. No. L-22465, 28 February 1967, 19 SCRA 494, 500. 207 Phil 471, 477 (1983). Supra note 7. 328 Phil. 1272 (1996). Supra note 13. 483 Phil. 568 (2004) G.R. No. 168662, 19 February 2008, 546 SCRA 303. G.R. No. 135808, 6 October 2008, 567 SCRA 354, 415-416. G.R. No. 167571, 25 November 2008, 571 SCRA 549, 562. Supra note 16.

17

18

19

20

21

22

23

24

25

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 183090 November 14, 2011

PEOPLE OF THE PHILIPPINES, Petitioner, vs. BERNABE PANGILINAN y CRISOSTOMO, Respondent. DECISION PERALTA, J.: Before us is an appeal filed by appellant Bernabe Pangilinan which seeks to reverse and set aside the Decision 1 dated January 25, 2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00197. The CA decision affirmed the judgment2 of the Regional Trial Court (RTC) of Tarlac City, Branch 63, convicting appellant of the crimes of rape under Article 266-A of the Revised Penal Code, as amended, and sexual abuse under Section 5 (b) of Republic Act (RA) No. 7610 3 with modification as to the amount of damages awarded to the offended party. Consistent with our ruling in People v. Cabalquinto,4 we withhold the real name of the victim and her immediate family members, as well as any information which tends to establish or compromise her identity. The initials AAA represent the victim, the initials BBB stand for her aunt, appellant's wife, and the initials CCC refer to one of her relatives. On October 3, 2001, the prosecution filed two (2) Informations charging appellant of the crimes of Rape 5 and Child Sexual Abuse under Section 5 (b) of RA No. 7610. The Informations respectively read: Criminal Case No. 11768 That on or about July 27, 2001, at around 10:00 oclock in the evening at Brgy. Apsayan, Municipality of Gerona, Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, the above-named accused by means of force, threat and intimidation did then and there willfully, unlawfully and feloniously have sexual intercourse with [his] stepdaughter AAA, a minor, 13 years of age, against her will and consent. CONTRARY TO LAW.6 Criminal Case No. 11769 That on or about 1995 up to about June 2001, at Barangay Apsayan, Municipality of Gerona, Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd design, did then and there willfully, unlawfully and criminally commit acts of lasciviousness upon the person of AAA, a minor subjected to sexual abuse. That accused is the stepfather of AAA, who was born on January 29, 1988. CONTRARY TO LAW.7 Upon his arraignment on February 21, 2002,8 appellant, duly assisted by counsel, entered a plea of "Not Guilty" in both cases. Trial on the merits thereafter ensued. The prosecution presented the testimonies of Dr. Marissa M. Mascarina, the attending physician, and the victim, AAA.

Dr. Mascarina testified that she examined AAA, as the latter was allegedly raped by appellant. 9 She made physical as well as internal examinations on AAA. Based on her examination, she issued a Medical Certificate, 10 which stated, among others, that there was no hymenal laceration. AAA testified that she was born on January 20, 1988.11 She had lived with her Aunt BBB, first cousin of her father, and her husband, herein appellant, since she was two years old until July 27, 2001.12 At around 10 p.m. of July 27, 2001, while her aunt was working in Angeles, Pampanga, and she was watching television in their house, appellant arrived and ordered her to cook chicken adobo which she did. Suddenly, appellant approached her and pointed a samurai at her. Appellant then kissed her neck and mashed her breast.13 It was not the first time that appellant did that to her.14 AAA further testified that she remembered three incidents wherein appellant abused her. The first time was when appellant kissed her and touched her private parts. 15 The second time was when appellant pointed a samurai at her, took her to a room and removed her clothes and kissed her on her lips and touched her private organ. He then laid on top of her and tried to insert his penis to her private organ. His organ touched her vagina; that she felt pain in her vagina but there was no blood.16 And the third time was when appellant kissed her and mashed her breast. 17 She did not tell her aunt of appellant's sexual molestations, because he threatened to kill her and her aunt. 18 She intimated that her aunt BBB and appellant treated her like their own daughter.19 On redirect examination, AAA testified that appellant inserted his penis to her vagina and that it was painful when he did it.20 On the other hand, the defense presented appellant himself, his wife, BBB, and their two neighbors. BBB testified that she and appellant have treated AAA as their real daughter by providing her with all her needs for which reason her relatives envied AAA.21 She was able to talk with AAA while the latter was in the custody of the Department of Social Welfare and Development (DSWD), Tarlac City, and AAA told her that it was her cousin CCC who molested her.22BBB intimated that her relatives were mad at appellant because he was jobless and she was the one working for her family.23 For his part, appellant denied the accusations that he raped or molested AAA. He testified that on July 27, 2001, he was at his neighbors house dressing chickens. When he went home at around 10 p.m., AAA told him that CCC, a cousin, molested her.24 Appellant and AAA were on their way to file a complaint against CCC when they met CCC's mother who forcibly took AAA by beating her with an umbrella.25 Appellant insinuated that AAA was just forced by his wife's relatives to file the charges against him since they were against their relationship. 26 Appellant's testimony was corroborated by his two neighbors. On February 19, 2003, the RTC rendered its Judgment, the dispositive portion of which reads: WHEREFORE, from the foregoing evidence, the Court hereby finds the accused Guilty Beyond Reasonable Doubt on both cases (Criminal Case No. 11768 and Criminal Case No. 11769) for Rape and Sexual Abuse, respectively, and he is hereby sentenced as follows: I. Under Criminal Case No. 11768 1. to suffer the penalty of Reclusion Perpetua; and 2. to indemnify the private complainant in the amount of P50,000.00 as actual damages, P50,000.00 as moral damages, and P20,000.00 as fine to answer for the private complainants rehabilitation at the DSWD, Tarlac City. II. Under Criminal Case No. 11769 1. to suffer the penalty of imprisonment of six (6) months and one (1) day of Prision Correccional medium, as the minimum to seven (7) years of Prision Mayor minimum, as the maximum; and 2. to indemnify the private complainant in the amount of P30,000.00 as damages. SO ORDERED.27

Appellant's motion for reconsideration was denied in an Order28 dated March 19, 2003. Appellant filed a Notice of Appeal.29 On January 14, 2004, we accepted the appeal.30 However, pursuant to the Court's ruling in People v. Mateo,31 we transferred the case to the Court of Appeals.32 On January 25, 2008, the CA rendered its decision which affirmed the RTC Decision, finding the appellant guilty of the crimes charged, but modifying the award of damages, the dispositive portion of which reads: WHEREFORE, the instant appeal is hereby DISMISSED for lack of merit. Accordingly, the appealed Decision dated 19 February 2003 of Branch 63, Regional Trial Court (RTC), Tarlac City, Third Judicial Region, in Criminal Cases Nos. 11768 and 11769, finding the accused guilty beyond reasonable doubt in both cases imposing the sentence of Reclusion Perpetua for the crime of Rape and the penalty of imprisonment of SIX (6) MONTHS and ONE (1) DAY of Prision Correccional medium, as the minimum to SEVEN (7) YEARS of Prision Mayor minimum, as the maximum for the crime of Sexual Abuse, is hereby AFFIRMED with the following modifications as to the award of damages: 1. In Criminal Case No. 11768, to indemnify the offended party the amount of FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages; civil indemnity of SEVENTY-FIVE THOUSAND PESOS (P75,000.00) and moral damages of SEVENTY-FIVE THOUSAND (P75,000.00), instead of FIFTY THOUSAND PESOS (P50,000.00); and 2. In Criminal Case No. 11769, to pay the offended party the amount of TWENTY-FIVE THOUSAND PESOS (P25,000.00) as exemplary damages.33 In so ruling, the CA found unmeritorious appellant's argument that the allegation of "on or about 1995 up to about June 2001 was unconscionably spacious which violated his right to be informed of the nature and cause of the accusation against him." The CA ruled that the precise time of the commission of the offense need not be alleged in the complaint or information unless time is an essential element of the crime charged which is not so in the crime of acts of lasciviousness; and that since appellant did not move for a bill of particulars or quashal of the Information, he could no longer question on appeal the alleged defect in the Information. As to appellant's claim that there was no evidence showing that he had carnal knowledge of AAA on July 27, 2001, the CA found that AAA was only 14 years old and had been subjected to abuse by appellant since she was seven years old; thus, she could not remember the details and the dates when she was abused; however, it was established that she was raped which happened before the Information was filed. The findings of Dr. Mascarina that there was no hymenal laceration did not categorically discount the commission of rape and full penetration was not required to convict appellant for rape. The CA found no reason for AAA to fabricate lies as she considered appellant her father who treated her like his own daughter. The CA did not give probative value to the alleged written statement of AAA filed with it which seemed to exonerate appellant from the offense charged against him. A Notice of Appeal34 was subsequently filed by appellant. In a Resolution35 dated July 23, 2008, we accepted the appeal and ordered the parties to file their respective supplemental briefs if they so desire. Appellee filed a Manifestation36 to be excused from filing a supplemental brief as the brief filed with the CA had adequately addressed the issues and arguments raised in the appellants brief dated June 20, 2005. Appellant filed a Supplemental Brief37 wherein he alleged that assuming appellant raped AAA, the RTC gravely erred in imposing the penalty of reclusion perpetua. He claims that he should have been prosecuted for rape under RA 7610 since AAA was already more than 12 years old on that fateful day, thus, the penalty should have been reclusion temporal in its medium period to reclusion perpertua. In his Appellant's Brief, he presented the following assignment of errors, to wit: I THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE CRIME OF ACTS OF LASCIVIOUSNESS DESPITE THE FAILURE OF THE PROSECUTION TO ALLEGE AND ESTABLISH WITH PARTICULARITY THE DATE OF THE COMMISSION OF THE OFFENSE.

II THE COURT A QUO GRAVELY ERRED IN FINDING THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIMES CHARGED DESPITE THE INSUFFICIENCY OF THE PROSECUTION EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 38 It is settled that in a criminal case, an appeal throws the whole case open for review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from, whether they are made the subject of assignment of errors or not.39 In this case, appellant was charged under two separate Informations for rape under Article 266-A of the Revised Penal Code and sexual abuse under Section 5 (b) of RA No. 7610, respectively. However, we find the Information in Criminal Case No. 11769 for sexual abuse to be void for being violative of appellant's constitutional right to be informed of the nature and cause of the accusation against him. We again quote the charging part of the Information for easy reference, thus: That on or about 1995 up to about June 2001 at Barangay Apsayan, Municipality of Gerona, Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd design, did then and there willfully, unlawfully and criminally commit acts of lasciviousness upon the person of AAA, a minor subjected to sexual abuse. That accused is the stepfather of AAA who was born on January 29, 1988. CONTRARY TO LAW. Under Section 8, Rule 110 of the Rules of Criminal Procedure, it provides: Sec. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. A reading of the allegations in the above-quoted Information would show the insufficiency of the averments of the acts alleged to have been committed by appellant. It does not contain the essential facts constituting the offense, but a statement of a conclusion of law. Thus, appellant cannot be convicted of sexual abuse under such Information. In People v. Dela Cruz,40 wherein the Information in Criminal Case No. 15368-R read: That on or about the 2nd day of August, 1997, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously commit sexual abuse on his daughter either by raping her or committing acts of lasciviousness on her, which has debased, degraded and demeaned the intrinsic worth and dignity of his daughter, JEANNIE ANN DELA CRUZ as a human being. CONTRARY TO LAW.41 We dismissed the case after finding the Information to be void and made the following ratiocinations: The Court also finds that accused-appellant cannot be convicted of rape or acts of lasciviousness under the information in Criminal Case No. 15368-R, which charges accused-appellant of a violation of R.A. No. 7610 (The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act), "either by raping her or committing acts of lasciviousness. It is readily apparent that the facts charged in said information do not constitute an offense. The information does not cite which among the numerous sections or subsections of R.A. No. 7610 has been violated by accused-appellant. Moreover, it does not state the acts and omissions constituting the offense, or any special or aggravating circumstances attending the same, as required under the rules of criminal procedure. Section 8, Rule 110 thereof provides: xxxx

The allegation in the information that accused-appellant "willfully, unlawfully and feloniously commit sexual abuse on his daughter [Jeannie Ann] either by raping her or committing acts of lasciviousness on her" is not a sufficient averment of the acts constituting the offense as required under Section 8, for these are conclusions of law, not facts. The information in Criminal Case No. 15368-R is therefore void for being violative of the accused-appellants constitutionally-guaranteed right to be informed of the nature and cause of the accusation against him. 42 The right to be informed of the nature and cause of the accusation against an accused cannot be waived for reasons of public policy.43 Hence, it is imperative that the complaint or information filed against the accused be complete to meet its objectives. As such, an indictment must fully state the elements of the specific offense alleged to have been committed. 44 The next question to be addressed is whether the prosecution was able to prove all the elements of the crime of rape under Article 266-A of the Revised Penal Code, as amended, which provides: Art. 266-A Rape; When And How Committed Rape is Committed 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat, or intimidation; b) When the offended party is deprived of reason or otherwise unconscious; c) By means of fraudulent machination or grave abuse of authority; and d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. We find that AAA remained steadfast in her assertion that appellant raped her through force and intimidation with the use of a samurai. And even after the incident, appellant threatened AAA that he would kill her and her aunt, i.e., appellant's wife, should AAA report the incident. Thus, AAA's testimony on the witness stand: Q. What did the accused do to you? A. He aimed the samurai at me and he took me inside the room, sir. Q. And what happened when he took you inside the room? ATTY. MARTINEZ: Q. What date are you referring to? A. I can no longer remember, sir. FISCAL DAYAON: Q. And what happened when you were in the room? A. He aimed the samurai at me and directed me to remove my clothes, sir. Q. Did you remove your clothes? A. No, sir. Q. Because you did not take off your clothes, what happened? A. He was forcing me to remove my clothes. He was able to remove my clothes, sir. Q. After undressing you, what happened?

A. He kissed me, sir. Q. Where did he [kiss] you? A. On my lips, sir. Q. Where else? A. He was [mashing] my breast. Q. What else? A. On my genitals. Q. Aside from kissing you and mashing your breast and holding your vagina, what else did he do? A. He lay on top of me. Q. When he laid on top you, was the accused on his dress (sic) or what was his condition then? A. He was naked, sir. Q. Was he wearing a shirt? A. No, sir. Q. Was he wearing pants? A. No, sir. Q. What happened when he laid on top of you? A. He was trying to insert his penis to my vagina. FISCAL DAYAON: Q. Was he able to insert his organ to your vagina? A. No, sir. Q. Could you tell us if his organ touched your vagina? A. Yes, sir. Q. What part of your vagina was touched by his organ? A. I do not know. Q. How many times did [the] accused try to insert his organ to your vagina? A. Many times, sir. Q. Did you not tell your aunt about this incident that the accused was trying to insert his organ to your vagina. A. No, sir.

Q. Why did you not tell her? A. No, sir because he was threatening to kill me and my aunt, sir. Q. How did he tell you? A. The samurai was pointed at me, sir. Q. Could you tell us how did he tell you [that he will kill] you and your aunt? A. Don't tell the truth or else I will kill you and your aunt. 45 On clarification made by the Court after the direct examination, AAA testified, to wit: Q. Did you feel anything when he was trying to insert his penis to your private organ? A. There was, sir. Q. Where were you hurt? A. My vagina, sir.46 The Court made further clarification after the redirect examination, thus: Q. Was there any occasion that your uncle inserted his penis to your vagina? The witness A. Yes, sir. xxxx Q. What did you feel when he did that to you. A. It was painful, sir.47 Indeed, AAA testified in her redirect examination that appellant had inserted his organ into her vagina and that it was painful when appellant did it. It was the penetration that caused the pain. We held that rape is committed on the victims testimony that she felt pain.48 This, at least, could be nothing but the result of penile penetration sufficient to constitute rape.49 Rape is committed even with the slightest penetration of the woman's sex organ. 50 A finding that the accused is guilty of rape may be based solely on the victim's testimony if such testimony meets the test of credibility.51 We held that no woman, much less a child of such tender age, would willingly submit herself to the rigors, the humiliation and the stigma attendant upon the prosecution of rape, if she were not motivated by an earnest desire to put the culprit behind bars.52 Appellant argues that he could not be convicted of rape since based on the medical examination report, AAA's genitalia had no hymenal laceration which corroborated AAA's testimony that appellant merely kissed her and touched her breast on July 27, 2001. Proof of hymenal laceration is not an element of rape.53 An intact hymen does not negate a finding that the victim was raped. Penetration of the penis by entry into the lips of the vagina, even without laceration of the hymen, is enough to constitute rape, and even the briefest of contact is deemed rape.54 In People v. Bohol,55 we explained the treatment of medical evidence as not essential in proving rape cases, thus, There is no gainsaying that medical evidence is merely corroborative, and is even dispensable, in proving the crime of rape. In child sexual abuse cases particularly, normal physical findings are common due to several factors, such as delay in

seeking medical examination, the rapid healing of injuries, washing, urinating or defecating after the sexual assault, the elasticity of the hymen, changes in the hymenal tissue due to estrogen effect when the victim is at the pubertal stage, or the type of sexual molestation involved, such as fondling, oral sodomy, or cunnilingus, which leaves no physical marks. The child's disclosure is the most important evidence of the sexual abuse she has gone through.56 While it appears from AAA's testimony that she was not raped precisely on July 27, 2001 as what appellant did was kiss her lips and mash her breast on that day, however, her entire testimony in the witness stand positively shows that appellant with the use of force and intimidation had carnal knowledge of her at some other time. She testified that appellant violated her since she was seven years old. The first time was when they were still staying in Angeles City where appellant touched her private parts; the second time was when they were already in Gerona, Tarlac, where appellant pointed a samurai at her and raped her; and the third time happened on July 27, 2001 when appellant kissed her lips and mashed her breast. Indeed, appellant may be convicted for rape in the light of AAA's testimony. For in rape cases, the date of the commission is not an essential element of the offense; what is material is its occurrence.57 Notably, the information alleges that the crime of rape was committed "on or about July 27, 2001," thus the prosecution may prove that rape was committed on or about July 27, 2001, i.e., few months or years before, and not exactly on July 27, 2001. In People v. Lizada,58 wherein accused-appellant averred that the prosecution failed to adduce the requisite quantum of evidence that he raped the private complainant precisely on September 15, 1998 and October 22, 1998, we ruled: The contention of accused-appellant does not persuade the Court. The private complainant testified that since 1996, when she was only eleven years old, until 1998, for two times a week, accused-appellant used to place himself on top of her and despite her tenacious resistance, touched her arms, legs and sex organ and inserted his finger and penis into her vagina. In the process, he ejaculated. Accused-appellant threatened to kill her if she divulged to anyone what he did to her. Although private complainant did not testify that she was raped on September 15, 1998 and October 22, 1998, nevertheless accusedappellant may be convicted for two counts of rape, in light of the testimony of private complainant. It bears stressing that under the two Informations, the rape incidents are alleged to have been committed "on or about September 15, 1998" and "on or about October 22, 1998." The words "on or about" envisage a period, months or even two or four years before September 15, 1998 or October 22, 1998. The prosecution may prove that the crime charged was committed on or about September 15, 1998 and on or about October 22, 1998. 59 Appellant's main defense is denial. He claims that the charge was instigated by his wife's relatives who are against their relationship. Such defense remains unsubstantiated. Moreover, it would be the height of ingratitude for AAA, who was not even shown to have any improper motive, to falsely accuse appellant of sexual abuses especially that appellant and his wife treated her like their own daughter and the fact that appellant might go to jail. In fact, AAA suffered in silence out of fear for her and her aunt's lives if not for her cousin who saw appellant in the act of kissing her and touching her private parts. It was when she was brought to the DSWD that she made known appellant's abuses done to her. Anent the alleged letter of AAA filed with the CA which sought to exonerate appellant from the charges filed against him, we find the same not worthy of belief. We quote with approval what the CA said in not giving probative value to such letter, to wit: x x x We cannot consider the same as it has no probative value considering that it appears not to be the genuine signature of the private complainant AAA herself as compared to her signatures in the original complaint and her sworn statement. More so, it also appears that the said document is not the original one as required by the best evidence rule in criminal procedure. Lastly, it is worth noticeable that the execution of the said letter was not assisted by a counsel and it was not also notarized.60 In his Supplemental Brief, appellant claims that he should have been prosecuted for rape under RA No. 7610 since AAA was already more than 12 years old when the alleged rape was committed which carries the penalty of reclusion temporal in its medium period to reclusion perpetua. We do not agree. In People v. Dahilig,61 wherein the question posed was whether the crime committed was rape (Violation of Article 266-A, par. 1, in relation to Article 266-B, 1st paragraph of the Revised Penal Code, as amended by RA No. 8353), or is it Child Abuse, defined and penalized by Section 5, (b), RA No. 7610, we said:

As elucidated by the RTC and the CA in their respective decisions, all the elements of both crimes are present in this case. The case of People v. Abay, however, is enlightening and instructional on this issue. It was stated in that case that if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5 (b) of R.A. No. 7610 or rape under Article 266-A (except paragraph 1 [d] of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Specifically, Abay reads: Under Section 5 (b), Article III of RA 7610 in relation to RA 8353,if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A (1)(d) of the Revised Penal Code and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5 (b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5 (b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law. In this case, the victim was more than 12 years old when the crime was committed against her. The Information against appellant stated that AAA was 13 years old at the time of the incident. Therefore, appellant may be prosecuted either for violation of Section 5 (b) of RA 7610 or rape under Article 266-A (except paragraph 1 [d]) of the Revised Penal Code. While the Information may have alleged the elements of both crimes, the prosecution's evidence only established that appellant sexually violated the person of AAA through force and intimidation by threatening her with a bladed instrument and forcing her to submit to his bestial designs. Thus, rape was established. Accordingly, the accused can indeed be charged with either Rape or Child Abuse and be convicted therefor. Considering, however, that the information correctly charged the accused with rape in violation of Article 266-A par. 1 in relation to Article 266-B, 1st par. of the Revised Penal Code, as amended by R.A. No. 8353, and that he was convicted therefor, the CA should have merely affirmed the conviction. As in the present case, appellant can indeed be charged with either Rape or Child Abuse and be convicted therefor. The prosecution's evidence established that appellant had carnal knowledge of AAA through force and intimidation by threatening her with a samurai. Thus, rape was established. Considering that in the resolution of the Assistant Provincial Prosecutor, he resolved the filing of rape under Article 266-A of the Revised Penal Code for which appellant was convicted by both the RTC and the CA, therefore, we merely affirm the conviction. However, we need to modify the damages awarded for the crime of rape committed on AAA. The CA awarded the amount of P75,000.00 as civil indemnity for the crime of rape, saying that rape was qualified by the circumstance of minority. It also awarded moral damages in the amount of P75,000.00 and exemplary damages of P50,000.00. While the Information for rape mentioned AAA's minority, as well as the fact that she was a stepdaughter of appellant, it was only AAA's minority which was proven by a copy of a birth certificate issued by the Office of the City Civil Registrar of Angeles City. Conformably with the ruling in People v. Esperanza,62 when either one of the qualifying circumstances of relationship and minority is omitted or lacking, that which is pleaded in the Information and proved by the evidence may be considered as an aggravating circumstance. As such, AAA's minority may be considered as an aggravating circumstance. However, it may not serve to raise the penalty, because in simple rape by sexual intercourse, the imposable penalty is reclusion perpetua which is single and indivisible.63 Hence, the civil indemnity and moral damages awarded by the CA must be reduced from P75,000.00 to P50,000.00 each in line with prevailing jurisprudence.64 Moreover, when a crime is committed with an aggravating circumstance, either qualifying or generic, an award of exemplary damages is justified under Article 2230 of the New Civil Code.65 . The CA's award of P50,000.00 must also be reduced to P30,000.00, in accordance with prevailing jurisprudence.66 WHEREFORE, the Decision dated January 25, 2008 of the Court of Appeals, finding appellant Bernabe Pangilinan guilty beyond reasonable doubt of rape under Article 266-A of the Revised Penal Code, as amended, and sentencing him to suffer the penalty of reclusion perpetua in Criminal Case No. 11768, is hereby AFFIRMED with MODIFICATION as to the award of damages. Appellant is ordered to pay the offended party, private complainant AAA, the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P30,000.00 as exemplary damages, pursuant to prevailing jurisprudence. The Information in Criminal Case No. 11769 is declared null and void for being violative of the appellant's constitutionallyguaranteed right to be informed of the nature and cause of the accusation against him. The case for Child Sexual Abuse under Section 5 (b) of RA No. 7160 against appellant is therefore DISMISSED.

SO ORDERED. DIOSDADO M. PERALTA Associate Justice

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 201620 March 6, 2013

RAMONCITA O. SENADOR, Petitioner, vs. PEOPLE OF THE PHILIPPINES and CYNTHIA JAIME, Respondents. DECISION VELASCO, JR., J.: This is a Petition for Review on Certiorari under Rule 45 seeking the reversal of the May 17, 2011 Decision 1 and March 30, 2012 Resolution2 of the Court of Appeals (CA) in CA-G.R. CR. No. 00952. In an Information dated August 5, 2002, petitioner Ramoncita O. Senador (Senador) was charged before the Regional Trial Court (RTC), Branch 32 in Dumaguete City with the crime of Estafa under Article 315, par. 1 (b) of the Revised Penal Code,3 viz: That on or about the 10th day of September 2000 in the City of Dumaguete, Philippines, and within the jurisdiction of this Honorable Court, the said accused, having obtained and received from one Cynthia Jaime various kinds of jewelry valued in the total amount of P705,685.00 for the purpose of selling the same on consignment basis with express obligation to account for and remit the entire proceeds of the sale if sold or to return the same if unsold within an agreed period of time and despite repeated demands therefor, did, then and there willfully, unlawfully and feloniously fail to remit proceeds of the sale of said items or to return any of the items that may have been unsold to said Cynthia Jaime but instead has willfully, unlawfully and feloniously misappropriated, misapplied and converted the same to his/her own use and benefit to the damage and prejudice of said Cynthia Jaime in the aforementioned amount of P705,685.00.4 (Emphasis supplied.) Upon arraignment, petitioner pleaded "not guilty." Thereafter, trial on the merits ensued. The prosecutions evidence sought to prove the following facts: Rita Jaime (Rita) and her daughter-in-law, Cynthia Jaime (Cynthia), were engaged in a jewelry business. Sometime in the first week of September 2000, Senador went to see Rita at her house in Guadalupe Heights, Cebu City, expressing her interest to see the pieces of jewelry that the latter was selling. On September 10, 2000, Ritas daughter-in-law and business partner, Cynthia, delivered to Senador several pieces of jewelry worth seven hundred five thousand six hundred eighty five pesos (PhP 705,685).5 In the covering Trust Receipt Agreement signed by Cynthia and Senador, the latter undertook to sell the jewelry thus delivered on commission basis and, thereafter, to remit the proceeds of the sale, or return the unsold items to Cynthia within fifteen (15) days from the delivery.6 However, as events turned out, Senador failed to turn over the proceeds of the sale or return the unsold jewelry within the given period.7 Thus, in a letter dated October 4, 2001, Rita demanded from Senador the return of the unsold jewelry or the remittance of the proceeds from the sale of jewelry entrusted to her. The demand fell on deaf ears prompting Rita to file the instant criminal complaint against Senador.8 During the preliminary investigation, Senador tendered to Rita Keppel Bank Check No. 0003603 dated March 31, 2001 for the amount of PhP 705,685,9 as settlement of her obligations. Nonetheless, the check was later dishonored as it was drawn against a closed account.10 Senador refused to testify and so failed to refute any of the foregoing evidence of the prosecution, and instead, she relied on the defense that the facts alleged in the Information and the facts proven and established during the trial differ. In particular, Senador asserted that the person named as the offended party in the Information is not the same person who made the demand and filed the complaint. According to Senador, the private complainant in the Information went by the name "Cynthia Jaime," whereas, during trial, the private complainant turned out to be "Rita Jaime." Further, Cynthia Jaime was never presented as witness. Hence, citing People v. Uba, et al. 11 (Uba) and United States v. Lahoylahoy and

Madanlog (Lahoylahoy),12 Senador would insist on her acquittal on the postulate that her constitutional right to be informed of the nature of the accusation against her has been violated. Despite her argument, the trial court, by Decision dated June 30, 2008, found Senador guilty as charged and sentenced as follows: WHEREFORE, the Court finds RAMONCITA SENADOR guilty beyond reasonable doubt of the crime of ESTAFA under Par. 1 (b), Art. 315 of the Revised Penal Code, and is hereby sentenced to suffer the penalty of four (4) years and one (1) day of prision correccional as minimum to twenty (20) years of reclusion temporal as maximum and to indemnify the private complainants, RITA JA[I]ME and CYNTHIA JAIME, the following: 1) Actual Damages in the amount of P695,685.00 with interest at the legal rate from the filing of the Information until fully paid; 2) Exemplary Damages in the amount ofP100,000.00; and 3) the amount of P50,000 as Attorneys fees. Senador questioned the RTC Decision before the CA. However, on May 17, 2011, the appellate court rendered a Decision upholding the finding of the RTC that the prosecution satisfactorily established the guilt of Senador beyond reasonable doubt. The CA opined that the prosecution was able to establish beyond reasonable doubt the following undisputed facts, to wit: (1) Senador received the pieces of jewelry in trust under the obligation or duty to return them; (2) Senador misappropriated or converted the pieces of jewelry to her benefit but to the prejudice of business partners, Rita and Cynthia; and (3) Senador failed to return the pieces of jewelry despite demand made by Rita. Further, the CAfinding that Uba13 is not applicable since Senador is charged with estafa, a crime against property and not oral defamation, as in Ubaruled: WHEREFORE, the June 30, 2008 Judgment of the Regional Trial Court, Branch 32, Dumaguete City, in Criminal Case No. 16010, finding accused appellant guilty beyond reasonable doubt of Estafa is hereby AFFIRMED in toto. SO ORDERED. Senador filed a Motion for Reconsideration but it was denied in a Resolution dated March 30, 2012. Hence, the present petition of Senador. The sole issue involved in the instant case is whether or not an error in the designation in the Information of the offended party violates, as petitioner argues, the accuseds constitutional right to be informed of the nature and cause of the accusation against her, thus, entitling her to an acquittal. The petition is without merit. At the outset, it must be emphasized that variance between the allegations of the information and the evidence offered by the prosecution does not of itself entitle the accused to an acquittal, 14 more so if the variance relates to the designation of the offended party, a mere formal defect, which does not prejudice the substantial rights of the accused. 15 As correctly held by the appellate court, Senadors reliance on Uba is misplaced. In Uba, the appellant was charged with oral defamation, a crime against honor, wherein the identity of the person against whom the defamatory words were directed is a material element. Thus, an erroneous designation of the person injured is material. On the contrary, in the instant case, Senador was charged with estafa, a crime against property that does not absolutely require as indispensable the proper designation of the name of the offended party. Rather, what is absolutely necessary is the correct identification of the criminal act charged in the information.16 Thus, in case of an error in the designation of the offended party in crimes against property, Rule 110, Sec. 12 of the Rules of Court mandates the correction of the information, not its dismissal: SEC. 12. Name of the offended party.The complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name. (a) In offenses against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged. (b) If the true name of the person against whom or against whose property the offense was committed is thereafter disclosed or ascertained, the court must cause such true name to be inserted in the complaint or information and the record. x x x (Emphasis supplied.)

It is clear from the above provision that in offenses against property, the materiality of the erroneous designation of the offended party would depend on whether or not the subject matter of the offense was sufficiently described and identified. Lahoylahoy cited by Senador supports the doctrine that if the subject matter of the offense is generic or one which is not described with such particularity as to properly identify the offense charged, then an erroneous designation of the offended party is material and would result in the violation of the accuseds constitutional ri ght to be informed of the nature and cause of the accusation against her. Such error, Lahoylahoy teaches, would result in the acquittal of the accused, viz: The second sentence of section 7 of General Orders No. 58 declares that when an offense shall have been described with sufficient certainty to identify the act, an erroneous allegation as to the person injured shall be deemed immaterial. We are of the opinion that this provision can have no application to a case where the name of the person injured is matter of essential description as in the case at bar; and at any rate, supposing the allegation of ownership to be eliminated, the robbery charged in this case would not be sufficiently identified. A complaint stating, as does the one now before us, that the defendants "took and appropriated to themselves with intent of gain and against the will of the owner thereof the sum ofP100" could scarcely be sustained in any jurisdiction as a sufficient description either of the act of robbery or of the subject of the robbery. There is a saying to the effect that money has no earmarks; and generally speaking the only way money, which has been the subject of a robbery, can be described or identified in a complaint is by connecting it with the individual who was robbed as its owner or possessor. And clearly, when the offense has been so identified in the complaint, the proof must correspond upon this point with the allegation, or there can be no conviction. 17 (Emphasis supplied.) In Lahoylahoy, the subject matter of the offense was money in the total sum of PhP 100. Since money is generic and has no earmarks that could properly identify it, the only way that it (money) could be described and identified in a complaint is by connecting it to the offended party or the individual who was robbed as its owner or possessor. Thus, the identity of the offended party is material and necessary for the proper identification of the offense charged. Corollary, the erroneous designation of the offended party would also be material, as the subject matter of the offense could no longer be described with such particularity as to properly identify the offense charged. The holdings in United States v. Kepner,18 Sayson v. People,19 and Ricarze v. Court of Appeals20 support the doctrine that if the subject matter of the offense is specific or one described with such particularity as to properly identify the offense charged, then an erroneous designation of the offended party is not material and would not result in the violation of the accuseds constitutional right to be informed of the nature and cause of the accusation against her. Such error would not result in the acquittal of the accused. In the 1902 case of Kepner, this Court ruled that the erroneous designation of the person injured by a criminal act is not material for the prosecution of the offense because the subject matter of the offense, a warrant, was sufficiently identified with such particularity as to properly identify the particular offense charged. We held, thus: The allegation of the complaint that the unlawful misappropriation of the proceeds of the warrant was to the prejudice of Aun Tan may be disregarded by virtue of section 7 of General Orders, No. 58, which declares that when an offense shall have been described in the complaint with sufficient certainty to identify the act, an erroneous allegation as to the person injured shall be deemed immaterial. In any event the defect, if defect it was, was one of form which did not tend to prejudice any substantial right of the defendant on the merits, and can not, therefore, under the provisions of section 10 of the same order, affect the present proceeding.21 (Emphasis supplied.) In Sayson, this Court upheld the conviction of Sayson for attempted estafa, even if there was an erroneous allegation as to the person injured because the subject matter of the offense, a check, is specific and sufficiently identified. We held, thus: In U.S. v. Kepner x x x, this Court laid down the rule that when an offense shall have been described in the complaint with sufficient certainty as to identify the act, an erroneous allegation as to the person injured shall be deemed immaterial as the same is a mere formal defect which did not tend to prejudice any substantial right of the defendant. Accordingly, in the aforementioned case, which had a factual backdrop similar to the instant case, where the defendant was charged with estafa for the misappropriation of the proceeds of a warrant which he had cashed without authority, the erroneous allegation in the complaint to the effect that the unlawful act was to the prejudice of the owner of the cheque, when in reality the bank which cashed it was the one which suffered a loss, was held to be immaterial on the ground that the subject matter of the estafa, the warrant, was described in the complaint with such particularity as to properly identify the particular offense charged. In the instant suit for estafa which is a crime against property under the Revised Penal Code, since the check, which was the subject-matter of the offense, was described with such particularity as to properly identify the offense charged, it becomes immaterial, for purposes of convicting the accused, that it was established during the trial that the offended party was actually Mever

Films and not Ernesto Rufino, Sr. nor Bank of America as alleged in the information ." 22 (Emphasis supplied.) In Ricarze, We reiterated the doctrine espousing an erroneous designation of the person injured is not material because the subject matter of the offense, a check, was sufficiently identified with such particularity as to properly identify the particular offense charged.23 Interpreting the previously discussed cases, We conclude that in offenses against property , if the subject matter of the offense is generic and not identifiable, such as the money unlawfully taken as in Lahoylahoy, an error in the designation of the offended party is fatal and would result in the acquittal of the accused. However, if the subject matter of the offense is specific and identifiable , such as a warrant, as in Kepner, or a check, such as inSayson and Ricarze, an error in the designation of the offended party is immaterial . In the present case, the subject matter of the offense does not refer to money or any other generic property. Instead, the information specified the subject of the offense as "various kinds of jewelry valued in the total amount of P705,685.00." The charge was thereafter sufficiently fleshed out and proved by the Trust Receipt Agreement 24 signed by Senador and presented during trial, which enumerates these "various kinds of jewelry valued in the total amount of PhP 705,685," viz: Quality 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 Description #1878 1 set rositas w/brills 14 kt. 8.5 grams #2126 1 set w/brills 14 kt. 8.3 grams #1416 1 set tri-color rositas w/brills 14 kt. 4.1 grams #319 1 set creolla w/brills 14 kt. 13.8 grams #1301 1 set creolla 2 colors w/brills 20.8 grams #393 1 set tepero & marquise 14kt. 14 grams #2155 1 yg. Bracelet w brills ruby and blue sapphire 14 kt. 28 grams #1875 1 set yg. w/ choker 14 kt. (oval) 14.6 grams #2141 1 yg. w/ pearl & brills 14 kt. 8.8 grams #206 1 set double sampaloc creolla 14 kt. 14.2 grams # 146 1 set princess cut brills 13.6 grams # 2067 1 pc. brill w/ pearl & brill 14 kt. 2.0 grams #2066 1 pc. earrings w/ pearl & brills 14 kt. 4.5 grams #1306 1 set creolla w/ brills 14 kt. 12.6 grams #1851 1 pc. ladys ring w/ brills 14 kt. 7.8 grams # 1515 1 set w/ brills 14 kt. 11.8 grams #1881 1 pc yg. ring w/princess cut 14 kt. 4.1 grams

Thus, it is the doctrine elucidated in Kepner, Sayson, and Ricarze that is applicable to the present case, not the ruling inUba or Lahoylahoy. The error in the designation of the offended party in the information is immaterial and did not violate Senadors constitutional right to be informed of the nature and cause of the accusation against her. Lest it be overlooked, Senador offered to pay obligations through Keppel Check No. 0003603, which was dishonored because it was drawn against an already closed account. The offer indicates her receipt of the pieces of jewelry thus described and an implied admission that she misappropriated the jewelries themselves or the proceeds of the sale. Rule 130, Section 27 states: In criminal cases. except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised. an offer of compromise by the accused may he received in evidence as implied admission of guilt. (Emphasis supplied.)

Taken together, the C A did not err in affirming petitioner's conviction for the crime of estafa. 1wphi1 In light of current jurisprudence,25 the Court, however, finds the award of exemplary damages excessive.1wphi1 Art. 2229 of the Civil Code provides that exemplary damages may be imposed by way of example or correction for the public good. Nevertheless, "exemplary damages are imposed not to enrich one party or impoverish another, but to serve as a deterrent against or as a negative incentive to curb socially deleterious actions." 26 On this basis, the award of exemplary damages in the amount of PhP 100,000 is reduced to PhP 30,000. WHEREFORE, the Decision dated May 17, 2011 and Resolution dated March 30, 2012 of the Court of Appeals in C A-G.R. CJ.C No. 00952, finding Ramoncita Senador guilty beyond reasonable doubt of the crime of ESTAFA under par. 1 (b), Art. 315 of the Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the award of exemplary damages he reduced to PhP 30,000. SO ORDERED. PRESBITERO J. VELASCO, JR. Associate Justice

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 166967 January 28, 2013

EDNA J. JACA, Petitioner, vs. PEOPLE OF THE PHILIPPINES and the SANDIGANBAYAN, Respondents. x-----------------------x G.R. No. 166974 ALAN C. GAVIOLA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. x-----------------------x G.R. No. 167167 EUSTAQUIO B. CESA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION BRION, J.: Before the Court are the petitions for review on certiorari1 assailing the December 16, 2004 decision2 and the February 1, 2005 resolution3 of the Sandiganbayan in Criminal Case No. 24699, finding Alan C. Gaviola, Edna J. Jaca, Eustaquio B. Cesa (collectively, petitioners) and Benilda N. Bacasmas guilty of violating Section 3(e) of Republic Act (RA) No. 3019. 4 ANTECEDENT FACTS The petitioners occupied appointive positions in the different divisions of the Cebu City government at the time material to the controversy: Gaviola was the City Administrator; 5 Cesa was the City Treasurer;6 Bacasmas was the Chief Cashier of the Cash Division, which is under the Office of the City Treasurer, and Jaca was the City Accountant.7 The steps followed in the grant of cash advances to a paymaster in the Cebu City government are as follows: 1. Processing of payment: a. Paymasters request for cash advance and prepare cash advance disbursement vouchers (voucher) to be submitted to the Chief Cashier, as head of Cash Division; b. Chief Cashier 1. affixes her initials on Box A of the voucher; and 2. forwards the voucher to the City Treasurer if he sees that the vouchers and its supporting documents are in order. c. City Treasurer affixes his signature on box A. Description of Box A is as follows:

1. "BOX A" Certified Expense, cash advances necessary, lawful and incurred under my direct supervision. d. The voucher is then forwarded to the City Accountant for processing (recording) and pre-audit procedure. The City Accountant signs BOX B described as follows: 1. "BOX B" Certified, Adequate available funds/budgetary allotment in the amount of P_____, expenditures properly certified, supported by documents marked (x) per checklist on back hereof, account under checklist on back hereof, account codes proper, previous cash advance liquidated/accounted for. e. City Accountant prepares and attaches an accountants advice to the voucher. f. The voucher and the accountants advice are returned to Chief Cashier for preparation of check. g. Chief Cashier prepares the check and initials/countersigns the check h. City Treasurer signs the check i. The voucher is forwarded to City Administrator for approval on Box C. 1. City Administrators Internal Control Office (ICO) reviews the supporting documents, and if in order, will recommend its approval. 2. City Administrator approves BOX C of the voucher and countersigns the check. j. The voucher, check and the accountants advice are returned to Cash Division. k. Paymaster signs the receipt portion of the voucher and the warrant/check register to acknowledge receipt of the check for encashment later at a bank. 2. Payment a. The paymaster and the Cash Division prepare a report of disbursement of payrolls paid and supporting papers and record it in the official cashbook; b. COA auditors go to Cash Division to examine, check and verify the reports of disbursements, payrolls, cashbook and other supporting documents; c. Cashier forwards report and supporting papers to City Accountant for recording and posting. On March 4, 1998, City Auditor Rodolfo Ariesga created a team of auditors, with the task of conducting a surprise audit8 of the cash and other accounts handled by all accountable officers assigned at the Cash Division, Office of the City Treasurer. Among these disbursing officers was Rosalina G. Badana, who was the paymaster in charge of paying the salaries of the employees in eight (8) different departments or offices in the Cebu City government. 9 While Badana reported for work in the early morning of March 5, 1998, she immediately left upon learning of the planned surprise audit to be conducted that day; she has not reported for work since. 10 The audit teams cash examination covered the period from September 20, 1995 to March 5, 1998. Cecilia Chan and Cecilia Tantengco, the audit team leader and assistant team leader, respectively, conducted an examination of the cash and other accounts in Badanas custody.11 The audit team reported that Badana incurred a cash shortage of P18,527,137.19. Based on the procedure in the processing of cash advances, the audit team found out that the failure of the petitioners to observe the provisions of Presidential Decree (PD) No. 1445,12 RA No. 716013 and the rules and regulations governing the grant, utilization and liquidation of cash advances under Commission on Audit (COA) Circular Nos. 90-331, 92-382 and 97-002"facilitated, promoted, if not encouraged, the commission of malversation of public funds." 14

On March 13, 1998, Cebu City Mayor Alvin Garcia filed with the Office of the Ombudsman-Visayas (Ombudsman)15 a complaint against Badana for malversation of public funds and for violation of RA Nos. 3019 and 6713.16 The complaint resulted in administrative and criminal investigations. 17 On April 3, 1998, the Ombudsman motu proprio required the petitioners and Bacasmas to submit their respective counter-affidavits and countervailing evidence.18 On July 1, 1998, the Ombudsman charged the petitioners and Bacasmas with violation of Section 3(e) of RA No. 301919 before the Sandiganbayan under the following Information: 20 That on or about the 5th day of March 1998, and for sometime prior thereto, at Cebu City, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, public officers, having been duly appointed to such public positions above-mentioned, in such capacity and committing the offense in relation to Office, conniving and confederating together and mutually helping xxx each other, with deliberate intent, with manifest partiality, evident bad faith and with gross inexcusable negligence, did then and there allow Rosalina G. Badana, Cashier I of the Cebu City Government to obtain cash advances despite the fact that she has previous unliquidated cash advances, thus allowing Rosalina G. Badana to accumulate Cash Advances amounting to P18,522,361.96, Philippine Currency, which remains unliquidated, thus accused in the performance of their official functions, had given unwarranted benefits to Rosalina G. Badana and themselves, to the damage and prejudice of the government, particularly the Cebu City Government. On July 2, 1998, the COA Regional Office No. VII (COA Regional Office) submitted a Narrative Report on the Results of the Examination of the Cash Accounts (COA Report) of Badana.21 Pertinent portions of the COA Report read: "A.1. During the period between September 20, 1995 to March 5, 1998, records show that additional cash advances were granted, even if the previous cash advances were not yet liquidated. For example in the Trust Fund, a cash advance of Php800,000 was granted on December 8, 1997 even if Ms. Badana has an unliquidated cash advance balance of Php4,940,065.50 as of November 20, 1997 (Annex 19). The situation was true in granting all other cash advances from September 20, 1995 to March 5, 1998. Another example in the General fund, cash advance of Php1,000,000.00 was granted on December 1, 1997 even if the unliquidated balance of Ms. Badana as of November 28, 1997 was Php8,469,054.19 (Annex 20). The situation is likewise true in granting all other cash advances during the same period mentioned in the preceding paragraph. This practice resulted in excessive granting of cash advances which created the opportunity to misappropriate public funds since idle funds were placed in the hands of the paymasters under their control and custody. The practice is in violation of Section 89, PD 1445; Section 339, RA 7160 and paragraph 4.1.2 of COA Circular No. 97-002 resulting in the accumulation of excess cash in the custody of the accountable officer. A.2 The following practices also facilitated the incurrence of the shortage: a. The amount of cash advance for salary payments was not equal to the net amount of the payroll for a pay period in violation of par. 4.2.1, COA Cir. No. 90-331, Section 48(g), COA Cir. No. 92-382 and par. 4.2.2, COA Cir. No. 97-002. All disbursement vouchers covering the cash advances were not supported by payrolls or list of payees to determine the amount of the cash advance to be granted in violation of par. 4.2.2, COA Cir. No. 90-331. Ms. Rosalina G. Badana, who was assigned as paymaster to eight different offices/departments with a total monthly payroll of P5,747,569.96 (Annex 21) was granted an average monthly cash advance of P7,600,000.00 (Annex 22) or an excess of P1,900,000.00 monthly. As a result, idle funds were again placed in the hands and the total control of the Paymaster. b. The face of the disbursement voucher (sample voucher marked as annex 23) did not indicate the specific legal purpose for which the cash advance was granted in violation of par. 4.1.5 COA Cir. No. 90-331, Section 48(e) COA Cir. 92-382 and par. 4.1.7 COA Cir. No. 97-002. It is so because all disbursement vouchers covering the granting of cash advances to the paymaster did not show the office/department, the number of payees and the payroll period covered by the cash advance. The city officials signed, certified and approved these vouchers despite the aforementioned deficiencies. It makes difficult to identify which liquidating report pertains to what particular cash advance, thus contributing to the opportunity to misappropriate the funds. c. The provisions of par. 5.1.1 COA Cir. 90-331 and 97-002 and Section 48.k of COA Cir. No. 92-382 on the liquidation of cash advances within 5 days after the end of the month pay period was not followed due to the existing practice/procedure in the granting of cash advances Likewise, unliquidated cash advance balance (audited) at the end of December 31, 1997 amounted to P15,553,475.61 consisting of P11,690,639.44 and P3,862,836.17 for General and Trust Fund respectively, in

violation of par. 5.8 COA Cir. Nos. 90-331 and 97-002 and Section 48 (o) COA Cir. No. 92-382, resulting in the accumulation of unliquidated cash advances. In January 1998, the paymaster was granted cash advances before the foregoing unliquidated balance (audited) was settled. Detail as follows: Amount of Cash Advance Granted 2,000,000.00 P1,000,000.00 P2,000,000.00 P18,846.00 852430 P1,000,000.00 ____________ Total P4,000,000.00 P2,000,000.00 P4,018,846.00 Amount of Cash Returns

Date 1/05/98 1/08/98 1/09/98 1/09/98 1/12/98 1/12/98

Check No. 852367 25983919

It appears that the new cash advance of Php4,000,000.00 was used to liquidate partially the previous years unliquidated balance of P15,553,475.61 in violation of par. 4.1.5 COA Cir. 90-331, Section 48.e of COA Cir. 92-382 and par. 4.1.7 of COA Cir. 97-002. d. As discussed in letter "C" above, accounting records show that these cash advances were granted and taken up in January, 1998 while the cash returns made after granting these cash advances were taken up in December, 1997. This is contrary to the generally accepted principles of Time period which requires that accounting should be time bounded; meaning cut-off date should be properly and strictly observed. e. Submission of financial reports and its supporting schedules and vouchers/payrolls by the Accounting Division was very much delayed (Annex 25) in violation of Section 122, PD 1445 despite of several communications from the Auditor, latest of (which is attached as Annex 26) thus verification and reconciliation on the paymasters accountability cannot be determined immediately. xxxx C. The following practices led to the concealment of the shortage of P18,527,137.19 from the September 20, 1995 to March 5, 1998: 1. Accounting practices which resulted in inaccurate and misleading information in the financial statements in violation of Section 111, PD 1445 are enumerated below: a. Cash returns in January, 1998 were recorded as credits to accountability in December, 1997 amounting to P4,018,846.00 as follows: xxxx In effect, the balance of unliquidated cash advances as of December 31, 1997 was understated. b. Some liquidations/disbursements in January, 1998 were included as credits to accountability in December, 1997 amounting to P1,974,386,45 Details are as follows: xxxx x x x As a result, the unliquidated cash advances as of December 31, 1997 is understated by P1,974,386.45.

c. Verification of accounting records maintained in the Accounting Division revealed that the index cards as a control device in the processing of cash advance voucher recorded only cash advances granted to paymasters (Annex 24). It failed to show the liquidation/disposition of public funds. Hence, unliquidated balance of cash advances cannot be determined instantly when a cash advance voucher is being processed by the accounting personnel.Summarizing par. a and b, the total understatement to Ms. Badanas unliquidated cash advances per accounting records as of December 31, 1997 amounted to P5,993,232.45 for the General Fund. This practice is in violation of Section 111 of PD 1445. The financial statements appeared inaccurate and misleading because of "window dressing." 2. Presentation of paid payrolls and vouchers already recorded in the cash book/subsidiary ledgers as cash items thus misleading the auditors into believing them as valid cash items. There is untruthful presentation of facts constituting deceit or fraud. The scheme is explained below. Paid payrolls and vouchers already recorded in the cashbook and in the subsidiary ledgers were presented as cash items during the count on May 13, 1996, November 27, 1996, June 9, 1997 and November 19, 1997. These cash items were treated as credits to her accountability, thereby reducing her accountability and consequently concealing her shortage. This scheme was made possible as the paymaster can readily have access to paid payrolls and vouchers x x x. The following facilitated the use of fraudulent scheme: 1.1 The paid payrolls and vouchers were placed in an unlocked box (carton) under the table of the bookkeeper. 1.2 The paymaster was allowed to get/retrieve paid payrolls and vouchers from the said box kept by the bookkeeper.1wphi1 1.3 Failure of the Disbursing officer to stamp "PAID" all paid payrolls and vouchers. This is a control measure to avoid re-use or recycling of documents. The accountable officer resorted to the scheme abovementioned with the intention of claiming double credit when in truth and in fact, she had been credited already of said transactions: These are the following: Date May 13, 1996 Amount P3,016,239.07

Nov. 27, 1996 P5,983,102.94 June 9, 1997 Nov. 19, 1997 P7,959,677.07 P12,438,954.88

In effect, as early as May 13, 1996 and subsequently thereafter, she had already incurred shortages but was able to conceal them through deceit and fraudulent means as explained above.22 The petitioners moved for reinvestigation; the prosecution interposed no objection, provided that the petitio ners motions would be treated as a motion for reconsideration of the Ombudsmans resolution directing the filing of information. 23 The prosecution manifested that, upon its recommendation, the Ombudsman resolved to maintain the information. 24 On arraignment,25 the accused pleaded not guilty.26 During the pre-trial of December 7, 1999, the prosecution and the petitioners entered into a stipulation of facts: 1. That at all times material to this case, all of the accused are public officials of the City of Cebu. xxxx 5. That the cash advance voucher has three boxes: Box A, Box B, and Box C. 6. That Box A is to be signed by the head of the office requesting the cash advance;

7. That Box B is to be signed by the head of the office which would conduct pre-audit of the cash advances; 8. That Box C is to be signed by the person of authority who will finally approve the cash advances. 27 The prosecution presented Ariesga and Chan as its witnesses. Relying on the audit teams findings, the prosecution claimed that the shortage was incurred due to the failure of Badana and of the petitioners to comply with the laws, rules and regulations governing the granting, utilization and liquidation of cash advances. 28 For one, the vouchers for cash advances lacked an indication of the specific purpose for which an amount was being requested; the office or department to be paid, the number of payees, and the payroll period to be paid were not specified. 29 For another, the amounts requested were not equal to the amount of payroll for the pertinent pay period; the vouchers covering the cash advances for the payment of government employees were not supported by payrolls for a proper determination of the amount needed for the purpose. Thus, although the monthly payroll of the eight departments within Badanas responsibility required more than P5 million, the cash advance granted for each month averaged more than P7 million. Also, the petitioners repeatedly affixed their signatures and allowed the disbursement of public funds through cash advances, regardless of previous unliquidated cash advances.30 Cash advances were not liquidated within the period prescribed by law, enabling the use of subsequent cash advances to liquidate previous cash advances. Meanwhile, the Ombudsman rendered a decision31 in the administrative aspect of the case, finding Jaca and Cesa guilty of simple neglect of duty and imposed on them the penalty of suspension for six (6) months. The case against petitioner Gaviola was dismissed for being moot and academic. On Cesas appeal, the Court of Appeals and, eventually, this Court sustained the Ombudsmans ruling. SANDIGANBAYANS RULING On December 16, 2004, the Sandiganbayan promulgated its decision32 finding the petitioners and Bacasmas guilty as charged. The Sandiganbayan held the petitioners solidarily liable to the Cebu City government for the amount of P18,527,137.19. The Sandiganbayan ruled that all the elements under Section 3(e) of R.A. No. 3019 were established by the prosecution: first, the petitioners are all public officials; second, the public officials committed the prohibited acts during the performance of their official duties; third, based on the audit teams examinations, the undue injury suffered by the government amounted to P18,527,137.19 the amount of Badanas accumulated shortage; fourth, the petitioners gave unwarranted benefits to Badana, which resulted in undue injury to the government, by illegally allowing her to obtain cash advances; and fifth, the petitioners acted with gross inexcusable negligence in the performance of their duties. The Sandiganbayan relied largely on the COA Report to support a finding that the Cebu City government lost the amount of P18,527,137.19 under the petitioners collective watch. The Sandiganbayan explained that while the information charged and recited all the modes of violating Section 3(e) of RA No. 3019, the prosecution is only required to prove any of these modes to warrant conviction. The Sandiganbayan held: ACCORDINGLY, accused ALAN C. GAVIOLA, EUSTAQUIO B. CESA, BENILDA N. BACASMAS and EDNA J. JACA are found guilty beyond reasonable doubt of having violated Sec. 3(e) of RA 3019; and each accused is sentenced to suffer the indeterminate penalty of twelve (12) years and one day as minimum and fifteen (15) years as maximum, with the accessory penalty of perpetual disqualification from public office. These Accused are directed to indemnify jointly and severally the City Government of Cebu the amount of Eighteen Million Five Hundred Twenty-Seven Thousand One Hundred ThirtySeven and 19/100 Pesos (Php18,527,137.19).33 The petitioners separately moved for reconsideration,34 but the Sandiganbayan denied their motions on February 1, 2005.35 Hence, these present petitions. THE PETITIONERS ARGUMENTS Due to the (i) commonality of the factual circumstanc e that led to the petitioners prosecution and conviction, as well as (ii) the different positions occupied by each of the petitioners, various and varied arguments were submitted. We narrate these arguments based on the positions of each of the petitioners. a. The hierarchical positions occupied i. Cesa as City Treasurer

Cesa argues that he simply adhered to the procedure long observed and prevailing at the time of (and even prior to) his assumption of office as City Treasurer. In the processing of cash advance vouchers coming from the Cash Division, the divisions chief Bacasmas first determines that the voucher and its supporting documents are in order before Cesa affixes his signature on Box A. Under RA No. 7160, City Treasurers cease to be an approving authority in the grant of cash advances. It is the City Accountant who can approve or disapprove cash advances or disbursements. The City Treasurers previous function of pre-audit and internal audit functions are now vested with the City Accountant. He claims that he signed Box A as a requesting party and not as approving authority. ii. Jaca as City Accountant Jaca argues that strict compliance with prior and complete liquidation of Badanas previous cash advances is "impractical and unrealistic."36 About half of the Cebu City governments employees are weekly -paid and the rest are paid at the middle and at the end of the month (quincena basis) a practice within the power of the Chief Executive, not the City Accountant, to determine,37 and which has long been observed before he became City Accountant. This set up resulted in a situation where, before she can process the liquidation and posting of a previous cash advance, another request for a subsequent cash advance already comes in; the request has to be acted upon if only to avoid delay in the payment of salaries.38 While she certified that Badana had liquidated her previous cash advances, she had previously informed Cesa and the City Auditor (at that time) of the unliquidated cash advances.39 iii. Gaviola as City Administrator Gaviola argues that he affixed his signature on Box C of the vouchers because the City Accountant had earlier certified that Badanas previous cash advances were liquidated and accounted for. For him, the approval of vouchers was a ministerial act done not only after the City Accountant had pre-audited the vouchers (by affixing her signature in Box B), but after theInternal Control Office40 and a member of his staff, Virginia Pea, had determined the regularity of the vouchers and their attachments.41 Gaviola avers that the prosecution failed to present evidence to show the absence of supporting documents when he affixed his signature on the vouchers. Headds that his duties do not impose upon him accountability for the funds entrusted to Badana or the City Treasurer; neither is he tasked with pre-audit activities nor with the record keeping of a paymasters accountabilities. The following are the defenses common to the petitioners: b. Good faith in affixing their signatures to the disbursement vouchers The petitioners invoked good faith in affixing their signatures to the disbursement vouchers. They deny any knowledge of Badanas shortages until after the surprise audit was conducted on March 5, 1998. They argue that since the COA did not send them any notice of disallowance of Badanas cash advances, 42 despite the COAs semestral cash examination, they had the right to presume regularity in Badanas performance of her job as paymaster. c. Fatally defective information The petitioners argue that the information is fatally defective for violating their right to be informed of the nature and cause of accusation against them. The prosecution could not have validly alleged that the petitioners committed the offense "with deliberate intent, with manifest partiality, evident bad faith and with gross inexcusable negligence" 43 since these several modes of committing the crime are inconsistent with each other; the violation is more so when one considers the prosecutions allegation of conspiracy, which presupposes intent and the absence of negligence.44 Because of this serious flaw in the information, the information effectively charged no offense for which they can be convicted. Cesa particularly assails the validity of the information because the preliminary investigation which preceded its filing was allegedly fatally defective. Cesa argued that the Ombudsman cannot motu proprio require him to submit his counteraffidavit in the preliminary investigation without any prior complaint against him. 45 d. Evidence

The petitioners argue that the prosecution witnesses were incompetent to testify. On the one hand, Ariesga did not actually prepare the COA Report, but merely received it from the persons who did the actual audit and thereafter submitted it to the COA Regional Office. On the other hand, while Chan is the head of the audit team, she did not actually conduct the cash examination and audit of Badanas accountabilities. In view of the incompetence of the prosecution witnesses, the Sandiganbayan should not have admitted, much less relied on, the COA Report as its contents are all hearsay. e. Proof beyond reasonable doubt and the elements of Section 3(e) of RA No. 3019 were not established. Since the petitioners received no prior notice of disallowance from the auditors of the COA at the time material to the controversy, then the petitioners could not have been charged with knowledge of Badanas previous unliquidated cash advances. This lack of knowledge negates the element of "giving unwarranted benefits or causing undue injury." 46 Particularly, Cesa argues that the existence of unliquidated cash advances was not established because there has been no complete cash examination, audit and post audit of Badanas accoun tability, citing Madarang v. Sandiganbayan.47Neither was "undue injury" established since, as previously argued, the COA Report is hearsay. Also, the fact that no government employee complained of not being paid his salary/receivables only shows that no party was ever unduly injured. OSPs COMMENT The Office of the Special Prosecutor (OSP) prays for the denial of the petitions on the ground that the issues raised in the petitions are factual in nature and, hence, not covered by Rule 45 of the Rules of Court. The OSP defends the validity of the information, arguing that there is nothing inconsistent in the allegations because gross inexcusable negligence also connotes conscious indifference to duty, and not mere inadvertence. While conspiracy necessitates intent, conspiracy does not negate gross inexcusable negligence, as recognized in Sistoza v. Desierto. 48 On the merits, the OSP asserts that no amount of good faith can be appreciated for adhering to a practice if this practice is illegal. As a certified public accountant and a former state auditor himself, Cesas familia rity with the pertinent laws and regulations should have cautioned him against making a certification in Box A. Delay in the payment of salaries cannot be used as an excuse to violate the law and pertinent COA regulations. Jacas repeated certification in Box B of the vouchers despite the lack of liquidation of prior cash advances establishes her gross inexcusable negligence in the performance of her duties. Unlike in Sistoza, the vouchers Gaviola signed: (i) were on their face palpably irregular for lack of entries required by law i.e., the net amount of payroll to be paid, the intended payees and the period covered by the payroll; and, (ii) lacked supporting documents. Gaviola failed to substantiate his claim that he signed the vouchers with supporting documents. None of the documents alleged to have supported the vouchers were presented. In contrast, Chans finding and unbiased testimony (that the vouchers were signed without supporting documents) enjoy the presumption of regularity. The petitioners claim of good faith has no basis, considering that the procedure they adopted in approving the disbursement vouchers was made in violation of existing laws and COA circulars. Also, Ariesga and Chan are competent to testify on the COA Report as they were part of, and directly participated in, the audit process. OUR RULING We deny the petitions. At the outset, we emphasize that, as a rule, the Court does not review factual questions under Rule 45 of the Rules of Court. In appeals from the Sandiganbayan, only questions of law and not issues of fact may be raised. Issues raised before the Court on whether the prosecutions evidence proved the guilt of the accused beyond reasonable doubt, whether the presumption of innocence was properly accorded the accused, whether there was sufficient evidence to support a charge of conspiracy, or whether the defense of good faith was correctly appreciated are all, in varying degrees, questions of fact. As a rule, the factual findings of the Sandiganbayan are conclusive on this Court, subject to limited exceptions.49We find none of these exceptions in the present case. The information is valid Pursuant to the constitutional right of the accused to be informed of the nature and cause of the accusation against him,50the Revised Rules of Court51 require, inter alia, that the information state the designation of the offense given by the

statute and the acts or omissions imputed which constitute the offense charged. 52 Additionally, it requires that these acts or omissions and their attendant circumstances "be stated in ordinary and concise language" and "in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged and enable the court to pronounce proper judgment."53 As long as the crime is described in intelligible terms and with such particularity and reasonable certainty that the accused is duly informed of the offense charged, then the information is considered sufficient. In particular, whether an information validly charges an offense depends on whether the material facts alleged in the complaint or information shall establish the essential elements of the offense charged as defined in the law. The raison detre of the requirement in the Rules is to enable the accused to suitably prepare his defense. 54 Admittedly, the prosecution could have alleged in the information the mode of committing a violation of Section 3(e) of RA No. 3019 with technical precision by using the disjunctive term "or" instead of the conjunctive term "and." Nonetheless, in the early case of Gallego, et al. v. Sandiganbayan,55 the Court already clarified that the phrases "manifest partiality," "evident bad faith" and "gross inexcusable negligence" are merely descriptive of the different modes by which the offense penalized in Section 3(e) of RA No. 3019 may be committed, and that the use of all these phrases in the same information does not mean that the indictment charges three distinct offenses. Notably, a violation of Section 3(e) of R.A. No. 3019 may be committed either by dolo, as when the accused acted with evident bad faith or manifest partiality, or by culpa as when the accused committed gross inexcusable negligence. 56 Unlike in the commission of ordinary felonies however, the law requires that the intent or negligence, which must attend the commission of the prohibited acts under Section 3(e) of RA No. 3019, should meet the gravity required by law. Thus, in construing these phrases, the Court observed that bad faith or partiality, on the one hand, and negligence, on the other hand, per se are not enough for one to be held criminally liable under the law; that the bad faith or partiality is evident or manifest, or, that the negligent act or omission is gross and inexcusable must be shown. 57 Gross inexcusable negligence is negligence characterized by the want of even slight care; acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property;58 in cases involving public officials, it takes place only when breach of duty is flagrant and devious.59 Considering the countless scenarios that may fall under the provisions of Section 3 of RA No. 3019, particularly paragraph e, and the avowed purpose of the law to repress certain acts of public officers constituting graft or corrupt practices or leading thereto,60 the law considers the gravity of the bad faith (or partiality) or negligent act or omission as a mode to commit the violation of Section 3(e) of RA No. 3019. In requiring the negligence to be both gross and inexcusable, the law demands the neglect or disregard of duty to be willful and intentional in order for a violation to exist, although it may fall short of the required degree of bad faith, which must be evident, or of partiality, which must be manifest. Contrary to the petitioners claims, gross inexcusable negligence, on one hand, and evident bad faith or manifest partiality, on the other hand, are not two highly opposite concepts that can result in a fatally defective information should the terms be conjoined in the information. The fact that the prosecution can properly allege these different modes alternatively in the information only means that the conviction may lie based simply on the evidence that is supportive of a particular mode.61Significantly, aside from the petitioners polemics, they have not shown how their ri ght to be informed of the nature and cause of accusation against them has actually been violated; in fact, they advanced no claim that the wordings in the information prevented them from preparing their defense. We likewise cannot support Cesas argument c hallenging the validity of the information for being a product of an invalid preliminary investigation. Suffice it to state that he had already advanced this argument in opposing the prosecutions motion for the suspension of the petitioners pendente lite. The Sandiganbayan granted the prosecutions motion and ordered the preventive suspension of the petitioners who questioned the Sandiganbayans action on certiorari. In a February 28, 2001 Resolution, the Court dismissed the petition for certiorari for the petitioners failure to establish grave abuse of discretion on the part of the Sandiganbayan. Effectively, therefore, the Court passed upon and upheld the validity of the proceedings that led to the filing of the information below. 62 Under the doctrine of the law of the case, our earlier ruling continues to be the rule governing the same proceeding where the petitioners have been accused before and convicted by the Sandiganbayan.63 COA Report is not hearsay evidence Basic under the rules of evidence is that a witness can only testify on facts within his or her personal knowledge.64 This personal knowledge is a substantive prerequisite in accepting testimonial evidence establishing the truth of a disputed

fact.65 Corollarily, a document offered as proof of its contents has to be authenticated in the manner provided in the rules, that is, by the person with personal knowledge of the facts stated in the document.66 The petitioners dispute the competence of both Ariesga and Chan to testify on the contents of the COA Report: allegedly, they are not the ones who conducted the actual audit of Badanas accountabilities. While this claim may be asserted against Ariesga,67 the same conclusion does not hold true with respect to Chan and her testimony. In fact, Chan (together with Tantengco) was specifically assigned to audit the cash and accounts of Badana. On cross-examination, Chan testified: Q: Were you actually the one who conducted the cash examination? A: I assisted Mrs. Cecilia Tantengco in the cash counts and in the gathering of the documents and also in the preparation of the report. Q: You assisted Mrs. Tantengco? A: Yes sir. Q: You did not assist any City Auditors office of Cebu City? A: Being a team leader, I assisted members of the team. xxxx AJ Nario: What kind of assistance have you made? A: During the cash examination I reviewed the working papers of the team who conducted the periodic cash examination, review, your Honor. Q: What else? A: I was shown some of the documents wherein I discovered that the disbursement voucher do not indicate the information that is required under the law, rules and regulations in granting cash advances your Honor. xxxx Atty. Espina: So you did not actually conduct a cash examination but you only review the alleged result of the cash examination conducted by the members of the team? A: AS I have said earlier, I performed the cash count. I assisted Mrs. Tantingco in doing the cash count. We also have like certification of this (sic) documents and reconciliation in coming up with the result of shortage of 18 million. xxxx AJ Nario: How many members were there? A: there are ten of us I am the team leader so with that particular accountable offi cers Mrs. Badana there is only one to audit the cash examination, Mrs. Cecilia Tantingco, your Honor.68 Given Chans participation in the preparation of the COA Report, the non-presentation of the other members of the audit team does not diminish the character of Chans personal knowledge of the contents of the COA Report. If at all, the case for the prosecution may rise or fall based on the credibility of her te stimony in establishing the petitioners acts or omissions amounting to a violation of RA No. 3019. The Sandiganbayan found her testimony credible and we find no reason to disagree with its finding. Most importantly, the COAs findings are accorded great weight and respect, unless they are clearly shown to be tainted with grave abuse of discretion; the COA is the agency specifically given the power, authority and duty to examine, audit and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of fund and property owned by or pertaining to, the government. It has the exclusive authority to define the scope of its audit and examination, and to

establish the required techniques and methods. An audit is conducted to determine whether the amounts allotted for certain expenditures were spent wisely, in keeping with official guidelines and regulations. 28 Under the Rules on Evidence and considering the COAs expertise on the matter, the presumption is that official duty has been regularly performed unless there is evidence to the contrary. The petitioners failed in this regard. Elements of RA No. 3019 and the prosecutions evidence Section 3(e) of R.A. No. 3019 has "three elements: (1) the accused is a public officer discharging administrative, judicial, or official functions; (2) he or she must have acted with manifest partiality, evident bad faith, or gross and inexcusable negligence; and (3) [his or her] action caused any undue injury to any party, including the government, or [gave] any private party unwarranted benefits, advantage, or preference in the discharge of his or her functions." 69 The first element is not disputed. We shall first determine the existence of the third element since the prosecutions theory depends on the existence of a shortage upon audit of the Cebu City governments fu nds. We see no point in discussing the second element if the third element does not exist. Causing undue injury or giving unwarranted benefit Citing Madarang v. Sandiganbayan,70 Cesa argues that the prosecution has not established the fact of Badanas unliquidated cash advances because Ariesga himself testified that the cash examination and audit of Badanas accountability has not been completed even at the time of the prosecution of the case in the Sandiganbayan. Similarly, Gaviola adds that no government employee has in fact complained of not being paid his or her salary. In effect, the petitioners argue that the third element of violation of Section 3(e) of RA No. 3019 is wanting. The petitioners cannot rely on Madarang, which merely cited the case of Dumagat v. Sandiganbayan, 71 to escape liability. Dumagat is a case for malversation of funds where the evidence of shortage, appropriation, conversion or loss of public funds was necessary, among other elements, for conviction. In acquitting the accused, the Court pointed out that "the audit examination left much to be desired in terms of thoroughness and completeness as there were accounts which were not considered."72 The audit examination was done not in the official station of the accused. The accuseds other vaults that were located in other places and the "records, receipts, and cash contained therein were not made part of the audit report."73 Lastly, the prosecution itself admitted where the accused deposited her collections from particular areas. In Tinga v. People,74 again a case involving malversation of public funds, the Court ruled that the prosecution failed to establish beyond reasonable doubt that there were actually missing funds chargeable to the accused . The Sandiganbayan itself found the many errors committed by the COA in its audit, by including sums which were supposed to be excluded. The Court expressly observed the "incomplete and haphazard" manner by which the audit was conducted. Unlike Dumagat and Tinga, however, the various irregularities found by the COA itself, and affirmed by the Sandiganbayan, were the very ones which actually contributed to the audit teams difficulty in completing the audit. Significantly, nowhere does it appear that the incompleteness of the audit pertains to its scope or that the audit team conducted the audit in a haphazard manner. The fact that the person (Badana), who could actually shed light on the shortage the COA found, is nowhere to be found cannot be taken against the prosecution. The undisputed accumulation of funds in Badanas hands, considering the amount given; the fact that the disbursement vouchers do not exactly represent the amount of payroll to be paid; and the COAs findings that there was a shortage merely reflect the consequences of the petitioners acts or omissions and facilitated the commission of possible malversation by Badana. Thus, undue injury was sufficiently established. Gross inexcusable negligence and the petitioners defense of good faith a1. Cesas defense of good faith Under Section 470 of RA No. 7160, the City Treasurer is tasked with, inter alia, the following duties: (1) to take custody of and exercise proper management of the funds of the local government unit concerned; and (2) to take charge of the disbursement of all local government funds and such other funds the custody of which may be entrusted to him by law or other competent authority. It is from the viewpoint of Cesas duties as a City Treasurer that Cesas good faith should be measured, not simply from the fact that he acted because a subordinate from his office is the one asking for a cash advance. By certifying that the cash advances were "necessary and lawful and incurred under his direct supervision," 75Cesa

cannot escape the obligation to determine whether Badana complied with Section 89 of PD No. 1445, although the same requirement would have to be ultimately determined by the City Accountant. 76 Section 89 of PD No. 1445 reads: Sec. 89. Limitations on cash advance. No cash advance shall be given unless for a legally authorized specific purpose. A cash advance shall be reported on and liquidated as soon as the purpose for which it was given has been served. No additional cash advance shall be allowed to any official or employee unless the previous cash advance given to him is settled or a proper accounting thereof is made. The same requirement is reiterated in RA No. 7160: Section 339. Cash Advances. - No cash advance shall be granted to any local official or employee, elective or appointive, unless made in accordance with the rules and regulations as the Commission on Audit may prescribe. [italics supplied] Cesas claim that he precisely required Bacasmas to affix her initials first on Box A before he actually signed it cannot exonerate him because Bacasmas herself admitted that the "practice" then was simply to approve the written request of the paymaster without requiring the presentation of the supporting documents from the requesting paymaster. Accused Bacasmas herself testified: Q: Madam Witness, after preparing all these cash advances, disbursement voucher and forwarded to the Office of the City Accountant, what are those attachments your office prepared prior to the receiving of these cash vouchers to the accountant. A: What do you mean? Q: What are those supporting documents? A: Of the disbursement vouchers? Q: Yes. A: It is the written request of the paymaster concerned, sir. We practice that so long ago, sir. It is only the written request of the paymaster, no other requirements was required by us. Q: How about those payrolls, are these payrolls attached to that voucher? xxxx AJ Ferrer: The question is very simple, the voucher is prepared in your office and then it is sent to the accountant. Now, the question is, when you sent the vouchers to the accountant, is it accompanied by the payrolls, yes or no? Witness: No your Honor. Atty. Abrenica: Only the vouchers were transmitted to the accountant for approval, without any attachment? A: That is prepared by the paymaster. Q: What was the basis of transmitting request as attached by you in the vouchers? xxxx Pros. Somido: There is no showing that she was the one who attached the disbursement vouchers. AJ Ferrer: That is what she said that she attaches that to the disbursement and sent to the accountant. Q: What is the basis of your attaching the request to the voucher when you sent it to the accountant? A: The approved payrolls are there already in the paymaster, so, they will sum up the payroll and then that is the amount they will cash advance.77

As the immediate superior of Badana and who affixes her initials before accused Cesa signs Box A, Bacasmas testimony clearly establishes a "practice" in the Office of the Cash Division of simply relying on the request of the paymaster without actually requiring the submission of the necessary documents in support of the request. Contrary to Cesas claims, he was not trivially signing Box A of the disbursement voucher as a mere requesting party; he has performed a vital role in its processing and the consequent disbursement of public funds.78 The instruction at the back of the voucher itself states that: 1. x x x 6. Box A shall be signed by the responsible officer having direct supervision and knowledge of the facts of the transaction.79 In view of the clear duty of the City Treasurer to exercise proper management of the funds o f the local government, Cesas insistence that he merely followed the established "procedures and systems" - which can only refer to the "practice" observed in the Office of the Cash Division all the more negated his defense of good faith. He cannot rely on good faith based on the act of a subordinate where the documents that would support the subordinates action (Bacasmas countersignature) were not even in his (Cesas) possession for examination. Similarly, even ordinary diligence in the performance of his duties as City Treasurer should have prompted Cesa to determine if the cash advance requested is "necessary" not only as to its purpose but also as to its amount to ensure that local funds are properly spent up to the last centavo. a2. The decision in the administrative case against Cesa is not controlling in the criminal case Cesa argues that since the Ombudsman found him administratively liable for simple neglect of duty only, then the Sandiganbayan gravely erred in convicting him under Section 3(e) of RA No. 3019 for gross inexcusable negligence. We disagree with this argument. That an administrative case is independent from the criminal action, although both arose from the same act or omission, is elementary. Given the differences in the quantum of evidence required, the procedure observed, the sanctions imposed, as well as in the objective of the two proceedings, the findings and conclusions in one should not necessarily be binding on the other. Thus, as a rule, exoneration in the administrative case is not a bar to a criminal prosecution for the same or similar acts which were the subject of the administrative complaint or vice versa. 80 In the present case, we stress that the Ombudsman made an express finding that Cesa failed to exercise the diligence of a good father of a family in safeguarding the funds of the city government. Thus, Cesa (together with Bacasmas and Jaca) was found administratively liable by the Ombudsman for neglect of duty. If the exoneration from an administrative charge does not in itself bar criminal prosecution, then with more reason should the principle apply where the respondent was found to have committed an administrative infraction. The Court is not unaware of the rule that if there was a categorical finding in the administrative case that expressly rules out one (or more) of the essential elements of the crime for which the respondent is likewise sought to be held liable, then his exoneration in the administrative case can be pleaded for his acquittal in the criminal case. 81 This rule, however, obviously finds no application in the present case. The CA and, subsequently, this Court merely affirmed the administrative finding of the Ombudsman that Cesa and his co-petitioners are guilty of neglect of duty. Nowhere did the uniform rulings in the administrative case even hint that the administrative finding bars or forecloses a further determination of the gravity of the petitioners negligence as was the prosecutions theory for purposes of criminal prosecution. b1. Jacas defense of good faith According to Jaca, he affixed his signature on Box B of the disbursement vouchers, as a ministerial duty, in order to avoid delay in the payment of the Cebu City government employees salaries. Jaca practically admitted having done so even if she knew that Badanas previous cash advances had not yet bee n liquidated, and, that she did not bother to inform the COA that the accounting tools (index card and subsidiary ledger) did not accurately monitor cash advances. 82 The Sandiganbayan tried to elicit a plausible form of the defense of good faith from Jaca but her answer could not be more categorical. CHAIRMAN

No, no. The witness may answer. Its very clear. Let me rephrase your question and correct the Court if i t is stated in a wrong manner. The question of the prosecutor is something like this. Whenever this (sic) is a document presented to you which covers the salaries of other employees despite the fact that you are aware that it also contains cash advances being requested by Rosalina Badana, you have to sign it notwithstanding the fact that you know, you are aware that the previous one were still unliquidated? You have to sign it? E. JACA Yes, your honor. CHAIRMAN Will you please tell us why you have to do that? Could you not make any qualification? Can you not say that I am signing the box just for the release of the salaries of the employees but with respect to Rosalina Badana, you are objecting to the additional cash advances being requested? Can you not say that? E. JACA Precisely, it is because, your Honor, our records which COA insisted should be effective tool for monitoring. It is simply not effective, the index cards and subsidiary ledgers. CHAIRMAN Can you not execute additional documents to that effect saying that I have to sign it because I have to do it. If not, it will affect the salaries of other employees but, with respect to Rosalina Badana, we are entering our objection. I cannot sign it because there were amounts which were given and remain unliquidated. Can you not do that, just to save your neck? E. JACA There is a pro-forma voucher, your Honor, and we find it did not occur to us at that time that we may we will add anything in that box. CHAIRMAN So, in other words, you agree to the question of the prosecutor that you have no choice even though you are aware that what you are doing is wrong, you have to blindly sign the box provided for in that document? E. JACA Thats it, your Honor. xxxx PROSECUTOR MONTEROSO Q: Now, you said earlier that the internal control of the COA x x x You said that these were not actually effective, am I correct, maam? I am referring to the index cards and other forms that are supposed to be used in the control system of the audit. You said these are not effective? xxxx A: Yes, your Honor. CHAIRMAN: Why did you say that? E. JACA

Because of the criteria of the COA for the tool to be effective, it should be accurate and up-to-date. Our index cards and our subsidiary ledgers do not qualify that, your Honor. CHAIRMAN: Are you not in a position to tell those audit people in the COA, that what you are doing is not correct and not accurate? x x x E. JACA It was only at that time that these were brought out and the COA mentioned that these devices are supposed to be our controls. CHAIRMAN Dont you feel that the amount of P18M is already substantial enough for you to blow the whistle? E JACA That P18M, sir, came out after the cash examination of Badana. During those years, during the months preceding that, we did not know. There was no way of knowing at our end how much has Badana incurred.83 RA No. 7160 charges the city accountant with both the accounting and internal audit services of the local government unit and, among others, to (1) install and maintain an internal audit system in the local government unit; (2) review supporting documents before the preparation of vouchers to determine the completeness of the requirements; (3) prepare statements of cash advances, liquidation, salaries, allowances, reimbursements and remittances pertaining to the local government unit; (4) prepare statements of journal vouchers and liquidation of the same and other adjustments related thereto; (5) post individual disbursements to the subsidiary ledger and index cards; and (6) maintain individual ledgers for officials and employees of the local government unit pertaining to payrolls and deductions. 84 As the City Accountant, Jaca is presumed conversant with the pertinent COA rules and regulations in granting cash advances, i.e., COA Circular No. 90331, COA Circular No. 92-382 and COA Circular No. 97-002, but which were consistently not observed by the petitioners. 1. No additional cash advance shall be allowed to any official or employee unless the previous cash advance given him is first settled or a proper accounting thereof is made. 2. The cash advance shall be equal to the net amount of the payroll for a pay period. 3. The cash advance shall be supported by the following documents: - Payroll or list of payees with their net payments 4. The accountable officer shall liquidate his cash advance as follows: salaries, wages, etc. within five days after each 15 day/end of the month pay period. The Court is not persuaded by Jacas argument that she was merely avoiding any delay in the payment of salaries of local government employees when she consequently failed to observe the COA rules on the period of liquidation of cash advances. The Sandiganbayan correctly observed that as the City Accountant, foremost of her duties is to ensure that the local funds out of which the salaries of local government employees would be paid are properly accounted for. 85 As Cesa implicitly argued, the creation of the Office of the City Accountant 86 serves an important function of pre-audit in the chain of processing cash advances of individual paymasters. A pre-audit is an examination of financial transactions before their consumption or payment; a pre-audit seeks to determine, among others, that the claim is duly supported by authentic underlying pieces of evidence. 87 If the setup then prevailing in the Cebu City government directly conflicts with the COA regulations, Jaca should have, at the very least, informed the City Mayor of the risk in the process of disbursement of local funds or at least she should have set up an internal audit system - as was her duty to check against possible malversation of funds by the paymaster. That no one claimed that his/her salaries has not been paid is beside the point. In the present case, aside from Jacas admission that she knowingly affixed her signature in Box B of the disbursement voucher contrary to what it certifies, i.e.,

all previous cash advances had been liquidated and accounted for, the amount requested was consistently way above the total amount covered by the supporting payrolls, thereby allowing Badana to have accumulated excess funds in her hands. c1. Gaviolas defense of good faith In his defense, Gaviola invokes our ruling in Arias v. Sandiganbayan 88 and argues that he signed Box C of the disbursement vouchers (i) only after his co-accused had previously affixed their signatures and (ii) only if they were complete with supporting documents. c1.1 The Arias ruling and subsequent cases In the seminal case of Arias v. Sandiganbayan89 involving the prosecution and conviction of a public official for violation of RA No. 3019, the Court ruled: We would be setting a bad precedent if a head of office plagued by all too common problems - dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence - is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority. xxxx We can, in retrospect, argue that Arias should have probed records, inspected documents, received procedures, and questioned persons. It is doubtful if any auditor for a fairly sized office could personally do all these things in all vouchers presented for his signature. The Court would be asking for the impossible. All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations. xxx There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers that routinely pass through his hands. The number in bigger offices or departments is even more appalling. There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction.90 (italics supplied; emphases ours) The Court has since applied the Arias ruling to determine not only criminal, 91 civil92 and administrative93 liability, but even the existence of probable cause to file an information94 in the context of an allegation of conspiracy. In Siztoza v. Desierto, involving the Ombudsmans determination of probable cause for violation of RA No. 3019, the Court expounded on the reach of Arias, thus: The fact that Sistoza had knowledge of the status of the contractor as being only the second lowest bidder does not ipso facto characterize his act of reliance as recklessly imprudent xxx. Albeit misplaced, reliance in good faith by a head of office on a subordinate upon whom the primary responsibility rests negates an imputation of conspiracy by gross inexcusable negligence to commit graft and corruption. As things stand, Sistoza is presumed to have acted honestly and sincerely when he depended upon responsible assurances that everything was aboveboard since it is not always the case that second best bidders in terms of price are automatically disqualified from the award considering that the PBAC reserves the authority to select the best bid not only in terms of the price offered but other factors as well. x x x Verily, even if petitioner erred in his assessment of the extrinsic and intrinsic validity of the documents presented to him for endorsement, his act is all the same imbued with good faith because the otherwise faulty reliance upon his subordinates, who were primarily in charge of the task, falls within parameters of tolerable judgment and permissible margins of error. Stated differently, granting that there were flaws in the bidding procedures, x x x there was no cause for Sistoza to x x x investigate further since neither the defects in the process nor the unfairness or injustice in the actions of his subalterns are definite, certain, patent and palpable from a perusal of the supporting documents. 95 (emphases ours) In Leycano, Jr. v. Commission on Audit,96 the Court clarified that for one to successfully invoke Arias, the public official must then be acting in his capacity as head of office.97 In Cruz v. Sandiganbayan,98 where the Court sustained the petitioners conviction for violation of Section 3(e) of RA No. 3019, it observed that the fact that "the checks issued as payment for construction materials purchased by the municipality were not made payable to the supplier x x x but to

petitioner himself even as the disbursement vouchers attached thereto were in the name of the supplier" constitute an "added reason" for the petitioner to further examine the documents. 99 c2.2 The Arias ruling and the present case The Arias ruling squarely applies where, in the performance of his official duties, the head of an office is being held to answer for his act of relying on the acts of his subordinate. In its Memorandum,100 the prosecution submitted that the petitioners were the heads of the three "independent" offices at the time material to the controversy, i.e., the Office of the City Treasurer, the Office of the City Accountant and the Office of the City Administrator. On this point alone, Gaviolas reliance on Arias already stands on shaky grounds. However, the Court observes that the key functions of the City Administrator do not relate either to the management of or accounting of funds of the local government or to internal audit. His concern is the overall administration and management of the affairs of the local government as a whole. Given the prior certifications of the two other offices; the internal check employed by Gaviola before affixing his signature; and the intervening process before the voucher actually reaches the City Administrator, the Court cannot consider the deficiency in the "particulars of payment" alone to charge Gaviola with knowledge that something was amiss and that his failure to do so would amount to gross and inexcusable negligence. Unlike the signatures on the disbursement vouchers of the City Treasurer and of the City Accountant, the City Administrator signs Box C ultimately as an "approving officer" without any direct involvement in the management and audit of local government funds before and after the disbursement. It would seem, therefore, that Gaviolas own re liance on the signatures of the heads of the two other offices is not entirely misplaced. The signatures of the other petitioners, however, are only part of the picture. Gaviolas reliance on these alone does not establish good faith if the bare signatures on the voucher and the written request from the paymaster are all that he has with him when he affixed his signature on Box C. 101 Amidst conflicting assertions, the Sandiganbayan gave credence to the prosecutions evidence that the disbursement vouchers did not have the required supporting documents when Gaviola affixed his signature. While the vouchers themselves indicate that it had gone through the Internal Control Office, allegedly for a determination of the completeness of the supporting documents before Pea finally turned it over to Gaviola, the Sandiganbayan gave emphasis on Gaviolas failure to present evidence that he indeed requested the submission of the supposed attachments from the COA and put a premium on Chans testimony. We find no reason to reverse the Sandiganbayan. Additionally, we observe that while payment of salaries of employees of the Cebu City government is either on a quincena or weekly basis, still there are only two payrolls prepared, corresponding to the first and second halves of the month. The payroll for the first quincena is prepared on the first week of the month, in time for the weekly-paid employees to receive their first week salary. For purpose of payment for the next pay periods - the payment of the 2nd week salary and the 1st quincena - the payroll (together with its supporting documents) stays with the paymaster/disbursing officer.102 This arrangement only means that if Badana would make a cash advance for the 1st week or 3rd week, the disbursement vouchers could not actually be supported by complete documents since the same stay with the paymaster herself. As described by the prosecution, the offices involved in the processing of cash advances are technically independent of each other; one office does not form part of, or is strictly under, another. Thus, each has independent functions to perform to ensure that the funds of the local government are disbursed properly and are well accounted for. While the Court views Gaviolas failure to inquire further before affixing his signature despite the absence of the "particulars of paymen t" in the disbursement vouchers as negligence on his part,103 to additionally affix his signature despite the lack of supporting documents only shows a gross and inexcusable disregard of the consequences of his act as approving authority. If Gaviola bothered to glance at the supporting documents, he could have signaled to his co-accused that their acts or omissions opened an opportunity for Badana to commit malversation that would result in a loss to the local governments coffers. Conspiracy and conviction In Sistoza, the Court already intimated on the possibility of committing a violation of Section 3(e) of RA No. 3019 through gross and inexcusable negligence, and of incurring collective criminal responsibility through a conspiracy. x x x As we have consistently held, evidence of guilt must be premised upon a more knowing, personal and deliberate participation of each individual who is charged with others as part of a conspiracy.

Furthermore, even if the conspiracy were one of silence and inaction arising from gross inexcusable negligence, it is nonetheless essential to prove that the breach of duty borders on malice and is characterized by flagrant, palpable and willful indifference to consequences insofar as other persons may be affected. 104 As earlier discussed, considering that the gravity of negligence required by law for a violation of Section 3(e) of RA No. 3019 to exist falls short of the degree of bad faith or partiality to violate the same provision, a conspiracy of silence and inaction arising from gross inexcusable negligence would almost always be inferred only from the surrounding circumstances and the parties acts or omissions that, taken together, indicate a common understanding and concurrence of sentiments respecting the commission of the offense.105 The duties and responsibilities that the occupancy of a public office carry and the degree of relationship of interdependence of the different offices involved here determine the existence of conspiracy where gross inexcusable negligence was the mode of commission of the offence. For emphasis, the petitioners are all heads of their respective offices that perform interdependent functions in the processing of cash advances. The petitioners attitude of buck-passing in the face of the irregularities in the voucher (and the absence of supporting documents), as established by the prosecution, and their indifference to their individual and collective duties to ensure that laws and regulations are observed in the disbursement of the funds of the local government of Cebu can only lead to a finding of conspiracy of silence and inaction, contemplated in Sistoza. The Sandiganbayan correctly observed that Finally, it bears stressing that the separate acts or omissions of all the accused in the present case contributed in the end result of defrauding the government. Without anyone of these acts or omissions, the end result would not have been achieved. Suffice it to say that since each of the accused contributed to attain the end goal, it can be concluded that their acts, taken collectively, satisfactorily prove the existence of conspiracy among them. 106 WHEREFORE, premises considered, we hereby DENY the petitions for lack of merit and thereby AFFIRM the decision dated December 16, 2004 and the resolution dated February 1, 2005 of the Sandiganbayan in Criminal Case No. 24699. SO ORDERED. ARTURO D. BRION Associate Justice

Republic of the Philippines SUPREME COURT Baguio FIRST DIVISION G.R. No. 164457 April 11, 2012

ANNA LERIMA PATULA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION BERSAMIN, J.: In the trial of everycriminal case, a judge must rigidlytest the States evidence of guilt in order to ensure that such evidenceadheres to the basic rules of admissibility before pronouncing an accused guilty of the crime charged upon such evidence. Nothing less is demanded of the judge; otherwise, the guarantee of due process of law is nullified.The accused need notadduceanythingto rebut evidence that is discredited for failing the test.Acquittal should then follow. Antecedents Petitioner was charged withestafaunder an informationfiled in the Regional Trial Court (RTC) in DumagueteCitythat averred: That on or about and during the period from March 16 to 20, 1997 and for sometime prior thereto, in the City of Dumaguete, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a saleswoman of Footluckers Chain of Stores, Inc., Dumaguete City, having collected and received the total sum of P131,286.97 from several customers of said company under the express obligation to account for the proceeds of the sales and deliver the collection to the said company, but far from complying with her obligation and after a reasonable period of time despite repeated demands therefore, and with intent to defraud the said company, did, then and there willfully, unlawfully and feloniously fail to deliver the said collection to the said company but instead, did, then and there willfully unlawfully and feloniously misappropriate, misapply and convert the proceeds of the sale to her own use and benefit, to the damage and prejudice of the said company in the aforesaid amount of P131,286.97. Contrary to Art. 315, par 1 (b) of the Revised Penal Code.1 Petitioner pled not guiltyto the offense charged in the information. At pre-trial, no stipulation of factswas had, and petitioner did not avail herself of plea bargaining. Thereafter, trial on the merits ensued. The Prosecutions first witness was Lamberto Go, who testified that he was the branch manager of Footluckers Chain of Stores, Inc. (Footluckers) in Dumaguete City since October 8, 1994; that petitioner was an employee of Footluckers, starting as a saleslady in 1996 until she became a sales representative; that as a sales representative she was authorized to take orders from wholesale customers coming from different towns (like Bacong, Zamboanguita, Valencia, Lumbangan and Mabinay in Negros Oriental, and Siquijor), and to collect payments from them; that she could issue and sign official receipts of Footluckers for the payments, which she would then remit; that she would then submit the receipts for the payments for tallying and reconciliation; that at first her volume of sales was quite high, but later on dropped, leading him to confront her; that she responded that business was slow; that he summoned the accounting clerk to verify; that the accounting clerk discovered erasures on some collection receipts; that he decided to subject her to an audit by company auditor Karen Guivencan; that he learned from a customer of petitioners that the customers outstanding balance had already been fully paid although that balance appeared unpaid in Footluckers records; and that one night later on, petitioner and her parents went to his house to deny having misa ppropriated any money of Footluckers and to plead for him not to push through with a case against her, promising to settle her account on a monthly basis; and that she did not settle after that, but stopped reporting to work. 2 On March 7, 2002, Gos cross examination, re-direct examination and re-crossexamination were completed. The only other witness for the Prosecution was Karen Guivencan, whomFootluckers empl oyed as its store auditor since November 16, 1995 until her resignation on March 31, 2001. She declared that Go had requested her to audit petitioner

after some customers had told him that they had already paid their accounts but the office ledger had still reflected outstandingbalances for them; that she first conducted her audit by going to the customers in places from Mabinay to Zamboanguitain Negros Oriental, and then in Siquijor; thatshe discovered in the course of her audit that the amounts appearing on the original copies of receipts in the possession of around 50 customers varied from the amounts written on the duplicate copies of the receipts petitioner submitted to the office; that upon completing her audit, she submittedto Go a written report denominated as "List of Customers Covered by Saleswoman LERIMA PATULA w/ Differences in Records as per Audit Duly Verified March 16-20, 1997" marked as Exhibit A; and that based on the report, petitioner had misappropriated the total amount ofP131,286.92.3 During Guivencans stint as a witness, the Prosecution marked the ledgers of petitioners various customers allegedly with discrepancies as Exhibits B to YYand their derivatives, inclusive. Each of the ledgers had a first column that contained the dates of the entries, a second that identified the invoices by the number, a third that statedthe debit, a fourth that noted the credit (or the amounts paid), and a fifth that summed the balances (debit minus credit).Only 49 of theledgerswere formally offered and admitted by the RTC because the 50thledger could no longer be found. In the course of Guivencansdirect-examination,petitioners counsel interposed a continuing obj ection on the ground that the figuresentered in Exhibits B to YYand their derivatives, inclusive, were hearsay because the persons who had made the entries were not themselves presented in court.4With that, petitioners counsel did not anymore cross-examine Guivencan, apparently regarding her testimony to be irrelevant because she thereby tended to prove falsification, an offense not alleged in the information. TheProsecution thenformally offered its documentary exhibits, including Exhibits B to YYand their derivatives (like the originals and duplicates of the receipts supposedly executed and issued by petitioner), inclusive, the confirmation sheets used by Guivencan in auditing the accounts served by petitioner, and Guivencans so -called Summary (Final Report) of Discrepancies.5 After the Prosecution rested its case, the Defense decided not to file a demurrer to evidence although it had manifested the intention to do so, and instead rested itscase.The Prosecution and Defense submitted their respective memoranda, and submitted the case for decision.6 On January 28, 2004, the RTC, stating that inasmuch as petitioner had opted "not to present evidence for her defense" the Prosecutions evidence remained "unrefuted and uncontroverted, "7rendered its decision finding petitioner guilty of estafa, to wit: Wherefore, in the light of the foregoing facts and circumstances, the Court finds ANNA LERIMA PATULA guilty beyond reasonable doubt of the crime of Estafa under Art. 315 par (1b) of the Revised Penal Code and accordingly, she is hereby sentenced to suffer an INDETERMINATE PENALTY of imprisonment of 8 years and 1 day of prision mayor as minimum to 18 years and 4 months of reclusion temporal as maximum with all the accessory penalties provided by law and to indemnify private complainant the amount of P131,286.92 with interest at 12% per annum until fully paid and to pay the costs. Pursuant to Sec. 2, Rule 114 of the Revised Rules of Criminal Procedure, the cash bail put up by the accused shall be effective only until the promulgation of this judgment. SO ORDERED.8 Petitioner filed a motion for reconsideration, butthe RTC denied the motion on May 7, 2004. 9 Issues Insisting that the RTCs judgment "grossly violated [her] Constitutional and statutory right to be informed of the nature and cause of the accusation against her because, while the charge against her is estafa under Art. 315, par. 1 (b) of the Revised Penal Code, the evidence presented against her and upon which her conviction was based, was falsification, an offense not alleged or included in the Information under which she was arraigned and pleaded not guilty," and that said judgment likewise "blatantly ignored and manifestly disregarded the rules on admission of evidence in that the documentary evidence admitted by the trial court were all private documents, the due execution and authenticity of which were not proved in accordance with Sec. 20 of Rule 132 of the Revised Rules on Evidence," petitioner has directly appealed to the Court via petition for review on certiorari, positing the following issues, to wit:

1. WHETHER THE ACCUSED OR ANY ACCUSED FOR THAT MATTER , CHARGED OF ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL CODE CAN BE CONVICTED UPON OR BY EVIDENCE OF FALSIFICATION WHICH IS EVEN (SIC) NOT ALLEGED IN THE INFORMATION. 2. WHETHER THE ACCUSEDS CONSTITUTIONAL AND STATUTORY RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HER WAS VIOLATED WHEN SHE WAS CONVICTED UPON OR BY EVIDENCE OF FALSIFICATION CONSIDERING THAT THE CHARGE AGAINST HER IS ESTAFATHROUGH MISAPPROPRIATION UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL CODE. 3. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE, EXHIBITS "B" TO "YY""YY-2", ALL PRIVATE DOCUMENTS, THE DUE EXECUTION AND AUTHENTICITY OF WHICH WERE NOT PROVED IN ACCORDANCE WITH SEC. 20, RULE 132 OF THE SAID REVISED RULES ON EVIDENCE ASIDE FROM THE FACT THAT SAID EXHIBITS TEND TO PROVE FALSIFICATION BY THE ACCUSED, A CRIME NEITHER CHARGED NOR ALLEGED IN THE INFORMATION. 4. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF KAREN GUIVENCAN DESPITE THE OBJECTION THAT SAID TESTIMONY WHICH TRIED TO PROVE THAT THE ACCUSED FALSIFIED EXHIBITS "B" TO "YY"-"YY-2"INCLUSIVE VIOLATED THE ACCUSEDS CONSTITUTIONAL RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HER, FOR BEING IRRELEVANT AND IMMATERIAL SINCE THE CHARGE AGAINST THE ACCUSED IS ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL CODE. 5. WHETHER OR NOT THE TRIAL COURT ERRED IN CONCLUDING THAT THE EVIDENCE OF THE PROSECUTION "REMAINS UNREFUTED AND UNCONTROVERTED" DESPITE ACCUSEDS OBJECTION THAT SAID EVIDENCE IS IMMATERIAL AND IRRELEVANT TO THE CRIME CHARGED. 6. WHETHER OR NOT THE DEFENSES NOT CROSS-EXAMINING KAREN GUIVENCAN FOR THE REASON THAT HER TESTIMONY IS IMMATERIAL AND IRRELEVANT AS IT TENDED TO PROVE AN OFFENSE NOT CHARGED IN INFORMATION RESULTED IN THE ADMISSION OF SAID TESTIMONY AS BEING "UNREFUTED AND UNCONTROVERTED", AND WHETHER OR NOT THE DEFENSES OBJECTION WOULD NOT BE CONSIDERED WAIVED IF THE DEFENSE CROSS-EXAMINED SAID WITNESS. 7. WHETHER OR NOT THE TRIAL COURT ERRED IN RULING THAT EXHIBIT "A", WHICH IS THE LIST OF CUSTOMERS COVERED BY SALESWOMAN LERIMA PATULA WITH DIFFERENCE IN RECORD IS NOT HEARSAY AND SELF-SERVING.10 The foregoing issues are now restatedas follows: 1. Whether or not the failure of the information for estafa to allege the falsification of the duplicate receipts issued by petitioner to her customersviolated petitioners right to be informed of the nature and cause of the accusation; 2. Whether or not the RTC gravely erred in admitting evidence of the falsification of the duplicate receiptsdespite the information not alleging the falsification; 3. Whether or not the ledgers and receipts (Exhibits B to YY, and their derivatives, inclusive) were admissible as evidence of petitioners guilt for estafaas charged despite their not being duly authenticated;and 4. Whether or not Guivencanstestimony onthe ledgers and receipts (Exhibits B to YY, and their derivatives, inclusive) to prove petitioners misappropriation or conversion wasinadmissible for being hearsay. Ruling The petition is meritorious. I Failure of information to allege falsification did not violate petitioners right to be informed of thenatureand cause of the accusation

Petitioner contends that the RTC grossly violated her Constitutional right to be informed of the nature and cause of the accusation when: (a) it held that the information did not have to allege her falsification of the duplicate receipts, and (b) when it convicted her of estafa under Article 315, paragraph 1(b) of the Revised Penal Codeby relying on the evidence on falsification. The contentionof petitioner cannot be sustained. The Bill of Rights guaranteessome rightsto every person accused of a crime, among them the right to be informed of the nature and cause of the accusation, viz: Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. Rule 110 of the Revised Rules of Court, the rule then in effect when the information was filed in the RTC, contained the following provisions on the proper manner of alleging the nature and cause of the accusation in the information, to wit: Section 8.Designation of the offense. Whenever possible, a complaint or information should state the designation given to the offense by the statute, besides the statement of the acts or omissions constituting the same, and if there is no such designation, reference should be made to the section or subsection of the statute punishing it. (7) Section 9.Cause of accusation. The acts or omissions complained of as constituting the offense must be stated in ordinary and concise language without repetition, not necessarily in the terms of the statute defining the offense, but in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. (8) The importance of the proper manner of alleging the nature and cause of the accusation in the informationshould never be taken for granted by the State. An accused cannot be convicted of an offense that is not clearly charged in the complaint or information. To convict him of an offense other than that charged in the complaint or information would be violative of the Constitutional right to be informed of the nature and cause of the accusation. 11 Indeed, the accused cannot be convicted of a crime, even if duly proven, unless the crime is alleged or necessarily included in the information filed against him. The crime of estafacharged against petitioner was defined and penalized by Article 315, paragraph 1 (b), Revised Penal Code, viz: Article 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: 1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed under the provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. 2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos; 3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period if such amount is over 200 pesos but does not exceed 6,000 pesos; and 4th. By arresto mayor in its maximum period, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means:

xxx 1. With unfaithfulness or abuse of confidence, namely: xxx (b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property. xxx The elements of the offense charged were as follows: (a) That the offender received money, goods or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; (b) That the offender misappropriated or converted such money, goods or other personal property, or denied his part in its receipt; (c) That the misappropriation or conversion or denial was to the prejudice of another; and (d) That the offended party made a demand on the offender for the delivery or return of such money, goods or other personal property.12 According to the theory and proof of the Prosecution, petitioner misappropriated or converted the sums paid by her customers, and later falsified the duplicates of the receipts before turning such duplicates to her employer to show that the customers had paid less than the amounts actually reflected on the original receipts. Obviously, she committed the falsification in order to conceal her misappropriation or conversion. Considering that the falsificationwas not an offense separate and distinct from the estafacharged against her, the Prosecution could legitimately prove her acts of falsification as its means of establishing her misappropriation or conversion as an essential ingredient of the crime duly alleged in the information. In that manner, her right to be informed of the nature and cause of the accusation against her was not infringed or denied to her. We consider it inevitable to conclude that the information herein completely pleaded the estafa defined and penalized under Article 315, paragraph 1 (b), Revised Penal Codewithin the context of the substantive lawand the rules. Verily, there was no necessity for the information to allege the acts of falsification by petitioner because falsification was not an element of the estafacharged. Not surprisingly,the RTC correctly dealt in its decision with petitioners concern thuswise: In her Memorandum, it is the contention of [the] accused that [the] prosecutions evidence utterly fails to prove the crime charged. According to the defense, the essence of Karen Guivencans testimony is that the accused falsified the receipts issued to the customers served by her by changing or altering the amounts in the duplicates of the receipts and therefore, her testimony is immaterial and irrelevant as the charge is misappropriation under Art. 315, paragraph (1b) of the Revised Penal Code and there is no allegation whatsoever of any falsification or alteration of amounts in the [i]nformation under which the accused was arraigned and pleaded NOT GUILTY. Accused, thus, maintains that the testimony of Karen Guivencan should therefore not be considered at all as it tended to prove an offense not charged or included in the [i]nformation and would violate [the] accuseds constitutional and statutory right to be informed of the nature and cause of the accusation against her. The Court is not in accord with such posture of the accused. It would seem that the accused is of the idea that because the crime charged in the [i]nformation is merely [e]stafa and not [e]stafa [t]hru [f]alsification of documents, the prosecution could not prove falsification. Such argumentation is not correct. Since the information charges accused only of misappropriation pursuant to Art. 315, par. (1b) of the Revised [P]enal Code, the Court holds that there is no necessity of alleging the falsification in the Information as it is not an element of the crime charged.

Distinction should be made as to when the crimes of Estafa and Falsification will constitute as one complex crime and when they are considered as two separate offenses. The complex crime of Estafa Through Falsification of Documents is committed when one has to falsify certain documents to be able to obtain money or goods from another person. In other words, the falsification is a necessary means of committing estafa. However, if the falsification is committed to conceal the misappropriation, two separate offenses of estafa and falsification are committed. In the instant case, when accused collected payments from the customers, said collection which was in her possession was at her disposal. The falsified or erroneous entries which she made on the duplicate copies of the receipts were contrived to conceal some amount of her collection which she did not remit to the company xxx. 13 II Testimonial and documentary evidence,being hearsay, did not prove petitioners guilt beyond reasonable doubt Nonetheless, in all criminal prosecutions, the Prosecution bears the burden to establish the guilt of the accused beyond reasonable doubt. In discharging this burden, the Prosecutions duty is to prove each and every element of the crime charged in the information to warrant a finding of guilt for that crime or for any other crime necessarily included therein.14The Prosecution must further prove the participation of the accused in the commission of the offense. 15In doing all these, the Prosecution must rely on the strength of its own evidence, and not anchor its success upon the weakness of the evidence of the accused. The burden of proof placed on the Prosecution arises from the presumption of innocence in favor of the accused that no less than the Constitution has guaranteed.16Conversely, as to his innocence, the accused has no burden of proof,17that he must then be acquitted and set free should the Prosecution not overcome the presumption of innocence in his favor.In other words, the weakness of the defense put up by the accused is inconsequential in the proceedings for as long as the Prosecution has not discharged its burden of proof in establishing the commission of the crime charged and in identifying the accused as the malefactor responsible for it. Did the Prosecution adduce evidence that proved beyond reasonable doubt the guilt of petitioner for the estafa charged in the information? To establish the elements of estafaearlier mentioned, the Prosecution presented the testimonies of Go and Guivencan, and various documentsconsisting of: (a) the receipts allegedly issued by petitioner to each of her customers upon their payment, (b) the ledgers listing the accounts pertaining to each customer with the corresponding notations of the receipt numbers for each of the payments, and (c) the confirmation sheets accomplished by Guivencan herself. 18The ledgers and receipts were marked and formally offered as Exhibits B to YY, and their derivatives, inclusive. On his part, Go essentially described for the trial court the various duties of petitioner as Footluckers sales representati ve. On her part, Guivencan conceded having no personal knowledge of the amounts actually received by petitioner from the customersor remitted by petitioner to Footluckers.This means that persons other than Guivencan prepared Exhibits B to YY and their derivatives, inclusive,and that Guivencan based her testimony on the entries found in the receipts supposedly issued by petitioner and in the ledgers held by Footluckers corresponding to each customer, as well as on the unsworn statements of some of the customers. Accordingly, her being the only witness who testified on the entries effectively deprived the RTC of the reasonable opportunity to validate and test the veracity and reliability of the entries as evidence of petitioners misappropriation or conversion through cross -examination by petitioner. The denial of that opportunity rendered theentire proof of misappropriation or conversion hearsay, and thus unreliable and untrustworthy for purposes of determining the guilt or innocence of the accused. To elucidate why the Prosecutions hearsay evidence was unreliable and untrustworthy, and thus devoid of proba tive value, reference is made toSection 36 of Rule 130, Rules of Court, a rule that states that a witness can testify only to those facts that she knows of her personal knowledge; that is, which are derived from her own perception, except as otherwise provided in the Rules of Court. The personal knowledge of a witness is a substantive prerequisite for accepting testimonial evidence that establishes the truth of a disputed fact. A witness bereft ofpersonal knowledge of the disputed fact cannot be called upon for that purpose because her testimony derives its value not from the credit accorded to her as a witness presently testifying but from the veracity and competency of the extrajudicial source of her information. In case a witness is permitted to testify based on what she has heard another person say about the facts in dispute, the person from whom the witness derived the information on the facts in dispute is not in court and under oath to be examined and cross-examined. The weight of such testimony thendepends not upon theveracity of the witness but upon the veracity of the other person giving the information to the witness without oath. The information cannot be tested because the declarant is not standing in court as a witness andcannot, therefore, be cross-examined.

It is apparent, too, that a person who relates a hearsay is not obliged to enter into any particular, to answer any question, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities; and that she entrenches herself in the simple assertion that she was told so, and leaves the burden entirely upon the dead or absent author.19 Thus, the rule against hearsay testimony rests mainly on the ground that there was no opportunity to crossexamine the declarant.20 The testimony may have been given under oath and before a court of justice, but if it is offered against a party who is afforded no opportunity to cross-examine the witness, it is hearsay just the same.21 Moreover, the theory of the hearsay rule is that when a human utterance is offered as evidence of the truth of the fact asserted, the credit of the assertor becomes the basis of inference, and, therefore, the assertion can be received as evidence only when made on the witness stand, subject to the test of cross-examination. However, if an extrajudicial utterance is offered, not as an assertion to prove the matter asserted but without reference to the truth of the matter asserted, the hearsay rule does not apply. For example, in a slander case, if a prosecution witness testifies that he heard the accused say that the complainant was a thief, this testimony is admissible not to prove that the complainant was really a thief, but merely to show that the accused uttered those words.22 This kind of utterance ishearsay in character but is not legal hearsay.23The distinction is, therefore, between (a) the fact that the statement was made, to which the hearsay rule does not apply, and (b) the truth of the facts asserted in the statement, to which the hearsay rule applies. 24 Section 36, Rule 130 of the Rules of Court is understandably not the only rule that explains why testimony that is hearsay should be excluded from consideration. Excluding hearsay also aims to preserve the right of the opposing party to crossexamine the originaldeclarant claiming to have a direct knowledge of the transaction or occurrence. 25If hearsay is allowed, the right stands to be denied because the declarant is not in court. 26It is then to be stressed that the right to cross-examine the adverse partys witness, being the only means of testing the credibility of witnesses and their testimonies, is essential to the administration of justice. To address the problem of controlling inadmissible hearsay as evidence to establish the truth in a dispute while also safeguardinga partys right to cross-examine her adversarys witness,the Rules of Court offers two solutions. The firstsolution is to require that allthe witnesses in a judicial trial or hearing be examined only in courtunder oath or affirmation. Section 1, Rule 132 of the Rules of Court formalizes this solution,viz: Section 1. Examination to be done in open court. - The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. (1a) The secondsolution is to require that all witnesses besubject to the cross-examination by the adverse party. Section 6, Rule 132 of the Rules of Courtensuresthis solutionthusly: Section 6. Cross-examination; its purpose and extent. Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. (8a) Although the second solution traces its existence to a Constitutional precept relevant to criminal cases, i.e., Section 14, (2), Article III, of the 1987 Constitution,which guarantees that: " In all criminal prosecutions, the accused shall xxx enjoy the right xxx to meet the witnesses face to face xxx ," the rule requiring the cross-examination by the adverse party equally applies to non-criminal proceedings. We thus stress that the rule excluding hearsay as evidence is based upon serious concerns about the trustworthiness and reliability of hearsay evidence due to its not being given under oath or solemn affirmation and due to its not being subjected to cross-examination by the opposing counsel to test the perception, memory, veracity and articulateness of the out-of-court declarant or actor upon whose reliability the worth of the out-of-court statement depends.27 Based on the foregoing considerations, Guivencans testimony as well as Exhibits B to YY, and their derivatives, inclusive, must be entirely rejected as proof of petitioners misappropriation or conversion. III

Lack of their proper authentication rendered Exhibits B to YY and their derivatives inadmissible as judicial evidence Petitioner also contends that the RTC grossly erred in admitting as evidence Exhibits B to YY, and their derivatives, inclusive, despite their being private documents that were not duly authenticated as required by Section 20, Rule 132 of the Rules of Court. Section 19, Rule 132 of the Rules of Courtdistinguishes between a public document and a private document for the purpose of their presentation in evidence, viz: Section 19. Classes of documents. For the purpose of their presentation in evidence, documents are either public or private. Public documents are: (a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b) Documents acknowledged before a notary public except last wills and testaments, and (c) Public records, kept in the Philippines, of private documents required by law to be entered therein. All other writings are private. The nature of documents as either public or private determines how the documents may be presented as evidence in court. A public document, by virtue of its official or sovereign character, or because it has been acknowledged before a notary public (except a notarial will) or a competent public official with the formalities required by law, or because it is a public record of a private writing authorized by law, is self-authenticating and requires no further authentication in order to be presented as evidence in court.In contrast, a private document is any other writing, deed, or instrument executed by a private person without the intervention of a notary or other person legally authorized by which some disposition or agreement is proved or set forth. Lacking the official or sovereign character of a public document, or the solemnities prescribed by law, a private document requires authentication in the manner allowed by law or the Rules of Court before its acceptance as evidence in court. The requirement of authentication of a private document is excused only in four instances, specifically: (a) when the document is an ancient one within the context of Section 21, 28 Rule 132 of the Rules of Court; (b) when the genuineness and authenticity of an actionable document have not been specifically denied under oath by the adverse party;29(c) when thegenuineness and authenticity of the document have been admitted;30 or (d) when the document is not being offered as genuine.31 There is no question that Exhibits B to YY and their derivatives were private documents because private individuals executed or generated them for private or business purposes or uses. Considering that none of the exhibits came under any of the four exceptions, they could not be presented and admitted as evidence against petitioner without the Prosecution dutifully seeing to their authentication in the manner provided in Section20 of Rule 132 of the Rules of Court,viz: Section 20. Proof of private documents. Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. The Prosecutionattempted to have Go authenticate the signature of petitioner in various receipts, to wit: ATTY. ABIERA:

Q. Now, these receipts which you mentioned which do not tally with the original receipts, do you have copies of these receipts? A. Yes, I have a copy of these receipts, but its not now in my possession. Q. But when asked to present those receipts before this Honorable Court, can you assure this (Next Page) ATTY ABIERA (continuing): Honorable Court that you will be able to present those receipts? A. Yes. Q. You are also familiar with the signature of the accused in this case, Anna Lerima Patula? A. Yes. Q. Why are you familiar with the signature of the accused in this case? A. I used to see her signatures in the payroll and in the receipts also. Q. Okay, I have here a machine copy of a receipt which we would present this,or offer the same as soon as the original receipts can be presented, but for purposes only of your testimony, Im going to point to you a certain signature over this receipt number FLDT96 20441, a receipt from Cirila Askin, kindly go over the signature and tell the Honorable Court whether you are familiar with the signature? A. Yes, that is her signature. INTERPRETER: Witness is pointing to a signature above the printed word "collector". (Next Page) ATTY. ABIERA: Q. Is this the only receipt wherein the name, the signature rather, of the accused in this case appears? A. That is not the only one, there are many receipts. ATTY. ABIERA: In order to save time, Your Honor, we will just be presenting the original receipts Your Honor, because its quite voluminous, so we will just forego with the testimony of the witness but we will just present the same using the testimony of another witness, for purposes of identifying the signature of the accused. We will request that this signature which has been identified to by the witness in this case be marked, Your Honor, with the reservation to present the original copy and present the same to offer as our exhibits but for the meantime, this is only for the purposes of recording, Your Honor, which we request the same, the receipt which has just been identified awhile ago be marked as our Exhibit "A" You Honor. COURT: Mark the receipt as Exhibit "A". ATTY. ABIERA:

And the signature be bracketed and be marked as Exhibit "A-1". (Next Page) COURT: Bracket the signature &mark it as Exh. "A-1". What is the number of that receipt? ATTY. ABIERA: Receipt No. 20441 dated August 4, 1996 the statement that: received from Cirila Askin. 32 xxx As the excerpts indicate, Gos attempt at authentication of the signature of petitioner on the receipt with serial number FLDT96 No. 20441 (a document that was marked as Exhibit A, while the purported signature of petitioner thereon was marked as Exhibit A-1) immediately fizzled out after the Prosecution admitted that the document was a meremachinecopy, not the original. Thereafter, as if to soften its failed attempt, the Prosecution expressly promised to produce at a later date the originalsof the receipt with serial number FLDT96 No. 20441 and other receipts. But that promise was not even true, because almost in the same breath the Prosecution offered to authenticate the signature of petitioner on the receiptsthrougha different witness (though then still unnamed). As matters turned out in the end, the effort to have Go authenticate both themachinecopy of the receiptwith serial number FLDT96 No. 20441 and the signature of petitioner on that receipt was wasteful because the machine copy was inexplicablyforgotten and was no longer evenincluded in the Prosecutions Offer of Documentary Evidence. It is true that the original of the receipt bearing serial number FLDT96 No. 20441was subsequentlypresented as Exhibit Bthrough Guivencan. However,the Prosecution did not establishthat the signature appearing on Exhibit B was the same signature that Go had earliersought to identify to be the signature of petitioner (Exhibit A-1) on the machine copy (Exhibit A). This is borne out by the fact that the Prosecution abandoned Exhibit A as the marking nomenclature for the machine copyof the receipt bearing serial number FLDT96 No. 20441 for all intents and purposes of this case, and used the same nomenclature to referinstead toan entirely differentdocument entitled "List of Customers covered by ANA LERIMA PATULA w/difference in Records as per Audit duly verified March 16-20, 1997." In her case, Guivencans identification of petitioners signature on two receipts based alone on the fact that the signat ures contained the legible family name of Patula was ineffectual, and exposed yet another deep flaw infecting the documentary evidence against petitioner. Apparently, Guivencan could not honestly identify petitioners signature on the receipts either because she lacked familiarity with such signature, or because she had not seen petitioner affix her signature on the receipts, as the following excerpts from her testimony bear out: ATTY. ZERNA to witness: Q. There are two (2) receipts attached here in the confirmation sheet, will you go over these Miss witness? A. This was the last payment which is fully paid by the customer. The other receipt is the one showing her payment prior to the last payment. COURT: Q. Where did you get those two (2) receipts? A. From the customer. Q. And who issued those receipts? A. The saleswoman, Miss Patula. ATTY. ZERNA:

We pray, Your Honor, that this receipt identified be marked as Exhibit "B-3", receipt number 20441. (Next Page) COURT: Mark it. ATTY. ZERNA: The signature of the collector be marked as Q. By the way, there is a signature above the name of the collector, are your familiar with that signature? (shown to witness) A. Yes. Q. Whose signature is that? A. Miss Patula. Q. How do you know? A. It can be recognized because of the word Patula. Q. Are you familiar with her signature? A. Yes. ATTY. ZERNA: We pray that the signature be bracketed and marked as Exhibit "B-3-a" COURT: Mark it. ATTY. ZERNA: The other receipt number 20045 be marked as Exhibit "B-4" and the signature as Exhibit "B-4-a". COURT: Mark it.33 xxx ATTY. ZERNA: Q. Ms. Witness, here is a receipt colored white, number 26603 issued to one Divina Cadilig. Will you please identify this receipt if this is the receipt of your office? A.Yes. Q.There is a signature over the portion for the collector. Whose signature is this? A.Ms. Patula.

Q.How do you know that this is her signature? A.Because we can read the Patula.34 We also have similar impressions of lack of proper authentication as to the ledgers the Prosecution presented to prove the discrepancies between the amountspetitioner hadallegedly received from the customers and the amounts she had actually remitted to Footluckers. Guivencanexclusively relied on the entries of the unauthenticated ledgersto support her audit report on petitioners supposed misappropriation or conversion, revealing her lack of independent knowledge of the veracity of the entries, as the following excerpts of her testimony show: ATTY. ZERNA to witness: Q. What is your basis of saying that your office records showed that this Cecilia Askin has an account ofP10,791.75? ATTY. DIEZ: The question answers itself, You Honor, what is the basis, office record. COURT: Let the witness answer. WITNESS: A. I made the basis on our ledger in the office. I just copied that and showed it to the customers for confirmation. ATTY. ZERNA to witness: Q. What about the receipts? COURT: Make a follow-up question and what was the result when you copied that amount in the ledger and you had it confirmed by the customers, what was the result when you had it confirmed by the customers? WITNESS: A. She has no more balance but in our office she has still a balance of P10,971.75. ATTY. ZERNA to witness: Q. Do you have a-whats the basis of saying that the balance of this customer is still P10,971.75 (Next Page) ATTY. ZERNA (continuing): [i]n your office? COURT: That was already answered paero, the office has a ledger. Q. Now, did you bring the ledger with you? A. No, Maam.35

(Continuation of the Direct Examination of Karen Guivencan on August 13, 2002) ATTY. ZERNA to witness: Q. Okay, You said there are discrepancies between the original and the duplicate, will you please enlighten the Honorable Court on that discrepancy which you said? A. Like in this case of Cirila Askin, she has already fully paid. Her ledger shows a zero balance she has fully paidwhile in the original (Next page) WITNESS (continuing): [r]eceipt she has a balance of Ten Thousand Seven hundred Ninety-one Pesos and Seventy-five Centavos (10,791.75). COURT: Q. What about the duplicate receipt, how much is indicated there? A. The customer has no duplicate copy because it was already forwarded to the Manila Office. Q. What then is your basis in the entries in the ledger showing that it has already a zero balance? A. This is the copy of the customer while in the office, in the original receipt she has still a balance. xxx ATTY. ZERNA: The confirmation sheet --COURT: The confirmation sheet was the one you referred to as the receipt in your earlier testimony? Is that what you referred to as the receipts, the original receipts? A. This is what I copied from the ledger . Q. So where was that(sic) original receipt which you said showed that that particular customer still has a balance of Ten Thousand something? A. The receipt is no longer here. Q. You mean the entry of that receipt was already entered in the ledger ? A. Yes.36 In the face of the palpable flaws infecting the Prosecutions evidence, it should come as no surprise that petitioners counsel interposed timely objections. Yet, the RTC mysteriously overruled the objections and allowedthe Prosecutionto present the unauthenticated ledgers, as follows: (Continuation of the Direct Examination of Witness Karen Guivencan on September 11, 2002)

ATTY. ZERNA: CONTINUATION OF DIRECT-EXAMINATION Q Ms. Witness, last time around you were showing us several ledgers. Where is it now? A It is here. Q Here is a ledger of one Divina Cadilig. This Divina Cadilig, how much is her account in your office? ATTY. DIEZ: Your Honor please before the witness will proceed to answer the question, let me interpose our objection on the ground that this ledger has not been duly identified to by the person who made the same. This witness will be testifying on hearsay matters because the supposed ledger was not identified to by the person who made the same. COURT: Those ledgers were already presented in the last hearing. I think they were already duly identified by this witness. As a matter of fact, it was she who brought them to court (Next Page) COURT (cont.): because these were the ledgers on file in their office. ATTY. DIEZ That is correct, Your Honor, but the person who made the entries is not this witness, Your Honor. How do we know that the entries there is (sic) correct on the receipts submitted to their office. COURT: Precisely, she brought along the receipts also to support that. Let the witness answer. WITNESS: A Its the office clerk in-charge. COURT: The one who prepared the ledger is the office clerk. ATTY. ZERNA: She is an auditor, Your Honor. She has been qualified and she is the auditor of Footluckers. COURT: I think, I remember in the last setting also, she testified where those entries were taken. So, you answer the query of counsel. xxx ATTY. DIEZ:

Your Honor please, to avoid delay, may I interpose a continuing objection to the questions profounded(sic) on those ledgers on the ground that, as I have said, it is hearsay. COURT: Okey(sic). Let the continuing objection be noted. Q (To Witness) The clerk who allegedly was the one who prepared the entries on those ledgers, is she still connected with Footluckers? A She is no longer connected now, Your Honor, COURT: Alright proceed. (Next Page) ATTY. ZERNA: Your Honor, these are entries in the normal course of business. So, exempt from the hearsay rule. COURT: Okey(sic), proceed.37 The mystery shrouding the RTCs soft treatment of the Prosecutions flawed presentation was avoidable simply by the RTC adhering to the instructions of the rules earlier quoted, as well as withSection 22 of Rule 132 of the Rules of Court,which contains instructions on how to prove the genuineness of a handwriting in a judicial proceeding, as follows: Section 22. How genuineness of handwriting proved. The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered,or proved to be genuine to the satisfaction of the judge. (Emphases supplied) If it is already clear that Go and Guivencan had not themselves seen the execution or signing of the documents,the Prosecution surely did not authenticate Exhibits B to YY and their derivatives conformably with the aforequoted rules. Hence, Exhibits B to YY, and their derivatives, inclusive, were inescapably bereft of probative value as evidence. That was the onlyfair and just result, as the Court held in Malayan Insurance Co., Inc. v. Philippine Nails and Wires Corporation:38 On the first issue, petitioner Malayan Insurance Co., Inc., contends that Jeanne Kings testimony was hearsay because she had no personal knowledge of the execution of the documents supporting respondents cause of action, such as the sales contract, invoice, packing list, bill of lading, SGS Report, and the Marine Cargo Policy. Petitioner avers that even though King was personally assigned to handle and monitor the importation of Philippine Nails and Wires Corporation, herein respondent, this cannot be equated with personal knowledge of the facts which gave rise to respondents cause of action. Further, petitioner asserts, even th ough she personally prepared the summary of weight of steel billets received by respondent, she did not have personal knowledge of the weight of steel billets actually shipped and delivered. At the outset, we must stress that respondents cause of action is founded on breach of insurance contract covering cargo consisting of imported steel billets. To hold petitioner liable, respondent has to prove, first, its importation of 10,053.400 metric tons of steel billets valued at P67,156,300.00, and second, the actual steel billets delivered to and received by the importer, namely the respondent. Witness Jeanne King, who was assigned to handle respondents importations, including their insurance coverage, has personal knowledge of the volume of steel billets being imported, and therefore competent to testify thereon. Her testimony is not hearsay, as this doctrine is defined in Section 36, Rule 130 of the Rules of Court.However, she is not qualified to testify on the shortage in the delivery of the imported steel billets. She did not have personal knowledge of the actual steel billets received. Even though she prepared the

summary of the received steel billets, she based the summary only on the receipts prepared by other persons. Her testimony on steel billets received was hearsay. It has no probative value even if not objected to at the trial. On the second issue, petitioner avers that King failed to properly authenticate respondents documentary evidence. Under Section 20, Rule 132, Rules of Court, before a private document is admitted in evidence, it must be authenticated either by the person who executed it, the person before whom its execution was acknowledged, any person who was present and saw it executed, or who after its execution, saw it and recognized the signatures, or the person to whom the parties to the instruments had previously confessed execution thereof. In this case, respondent admits that King was none of the aforementioned persons. She merely made the summary of the weight of steel billets based on the unauthenticated bill of lading and the SGS report. Thus, the summary of steel billets actually received had no proven real basis, and Kings testimony on this point could not be taken at face value. xxx Under the rules on evidence, documents are either public or private. Private documents are those that do not fall under any of the enumerations in Section 19, Rule 132 of the Rules of Court.Section 20of the same law, in turn, provides that before any private document is received in evidence, its due execution and authenticity must be proved either by anyone who saw the document executed or written, or by evidence of the genuineness of the signature or handwriting of the maker. Here, respondents documentary exhibits are private documents. They are not am ong those enumerated in Section 19, thus, their due execution and authenticity need to be proved before they can be admitted in evidence.With the exception concerning the summary of the weight of the steel billets imported, respondent presented no supporting evidence concerning their authenticity. Consequently, they cannot be utilized to prove less of the insured cargo and/or the short delivery of the imported steel billets. In sum, we find no sufficient competent evidence to prove petitioners liability. That the Prosecutions evidence was left uncontested because petitioner decided not to subject Guivencan to cross examination, and did not tender her contrary evidencewas inconsequential. Although the trial court had overruled the seasonable objections to Guivencans testimony bypetitioners counsel due to the hearsay character, it could not be denied thathearsay evidence, whether objected to or not, had no probative value. 39Verily, the flaws of the Prosecutions evidence were fundamental and substantive, not merely technical and procedural, and were defects that the adverse partys waiver of her cross-examination or failure to rebutcould not set right or cure. Nor did the trial courts overruling of petitioners objections imbue the flawed evidence with any virtue and value. Curiously, the RTC excepted the entries in the ledgers from the application of the hearsay rule by also terselystating that the ledgers "were prepared in the regular course of business."40Seemingly, the RTC applied Section 43, Rule 130 of the Rules of Court, to wit: Section 43. Entries in the course of business. Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. This was another grave error of the RTC.The terse yet sweeping mannerof justifying the application of Section 43 was unacceptable due to the need to show the concurrence of the several requisites before entries in the course of business could be excepted from the hearsay rule. The requisites are as follows: (a) The person who made the entry must be dead or unable to testify; (b) The entries were made at or near the time of the transactions to which they refer; (c) The entrant was in a position to know the facts stated in the entries; (d) The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral, or religious; (e) The entries were made in the ordinary or regular course of business or duty.41 The Court has to acquit petitioner for failure of the State to establish her guilt beyond reasonable doubt. The Court reiterates that in the trial of every criminal case, a judge must rigidly test the States evidenc e of guilt in order to ensure that such evidence adhered to the basic rules of admissibility before pronouncing an accused guilty of the crime charged

upon such evidence. The failure of the judge to do so herein nullified the guarantee of due of process of law in favor of the accused, who had no obligation to prove her innocence. Heracquittal should follow. IV No reliable evidence on damage Conformably with finding the evidence of guilt unreliable, the Court declares that the disposition by the RTC ordering petitioner to indemnify Footluckers in the amount of P131,286.92 with interest of 12% per annum until fully paid was not yet shown to be factually founded. Yet, she cannot now be absolved of civil liability on that basis. Heracquittal has to bedeclared as without prejudice to the filing of a civil action against her for the recovery of any amount that she may still owe to Footluckers.1wphi1 WHEREFORE, the Court SETS ASIDE ANDREVERSESthe decision convicting ANNA LERIMA PATULAof estafa as charged, and ACQUITS her for failure of the Prosecution to prove her guilt beyond reasonable doubt, without prejudice to a civil action brought against her for the recoveryof any amount still owing in favor of Footluckers Chain of Stores, Inc. No pronouncement on costs of suit. SO ORDERED. LUCAS P. BERSAMIN Associate Justice WE CONCUR: RENATO C. CORONA Chief Justice Chairperson TERESITA J. LEONARDO-DE CASTRO Associate Justice MARIANO C. DEL CASTILLO Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes
1

Rollo, p. 22. TSN, September 15, 2000; March 7 and 30, 2001. TSN, April 4, 2002; August 13, 2002; September 11, 2002; September 12, 2002; and November 20, 2002. TSN, September 11, 2002, pp. 3-7

Rollo, p. 23-27. Id., p. 27. Id., p. 40. Id., p. 43. Id., pp. 45-46. Id., p. 10.

10

People v. Manalili, G. R. No. 121671, August 14, 1998, 294 SCRA 220, 252; People v. Ortega, Jr., GR No. 116736, July 24, 1997, 276 SCRA 166, 187; People v. Guevarra, G.R. No. 66437, December 4, 1989, 179 SCRA 740, 751; Matilde, Jr. v. Jabson, No. L-38392, December 29, 1975, 68 SCRA 456, 261; United States v. Campo, No. 7321, 23 Phil. 368, 371-372 (1912).
11 12

Barrameda v. Court of Appeals, G.R. No. 96428, September 2, 1999, 313 SCRA 477, 484. Rollo, pp. 41-42 (bold emphasis supplied). Andaya v. People, G.R. No. 168486, June 27, 2006, 493 SCRA 539, 556-557. People v. Esmale, G.R. Nos. 102981-82, April 21, 1995, 243 SCRA 578, 592. Section 14, (2), Article III (Bill of Rights). People v. Arapok, G.R. No. 134974, December 8, 2000, 347 SCRA 479, 498. Supra, at note 1.

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18

5 Moran, Comments on the Rules of Court, 1963 Edition, pp. 267-268; citing Coleman v. Southwick, 9 Johnson (N.Y.), 45, 50, 6 Am. Dec. 253.
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Id., citing Minea v. St. Louis Corp., 179 Mo. A., 705, 716, 162 S.W. 741. Id., p. 268. Wigmore, Sec. 1766; Tracys Handbook, 62 Ed., pp. 220-221. Id. 20 Am Jur 404. People v. Pagkaliwagan, 76 Phil. 457, 460 (1946). Donnelly v. United States, 228 US 243. Gulam v. Santos,G.R. No. 151458, August 31, 2006, 500 SCRA 463, 473.

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Section 21. When evidence of authenticity of private document not necessary. - Where a private document is more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. (22 a)
28 29

Section 8, Rule 8, Rules of Court, which states:

Section 8. How to contest such documents. When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a)
30

Section 4, Rule 129, Rules of Court, which provides: Section 4. Judicial admissions. - An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (2a)

31

Section 20, Rule 132, Rules of Court. TSN, September 15, 2000, pp. 13-16. TSN, August 13, 2002, pp. 15-16. TSN, September 11, 2002, p. 9. TSN, April 4, 2002, pp. 20-21. TSN, August 13, 2002, pp. 10-14. TSN, September 11, 2002, pp. 3-7 G.R. No. 138084, April 10, 2002, 380 SCRA 374, 378-379. Id., citing Eugenio v. Court of Appeals, G.R. No. 103737, December 15, 1994, 239 SCRA 207, 220. Rollo, p. 42. II Regalado, Remedial Law Compendium, Ninth Edition, p. 652.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 193833 November 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. PO1 FROILAN L. TRESTIZA, P/S INSP. LORIEMAN* L. MANRIQUE, and RODIE J. PINEDA @ "Buboy," Accused. PO1 FROILAN L. TRESTIZA, Accused-Appellant. DECISION CARPIO, J.: The Case G.R. No. 193833 is an appeal1 from the Decision2 promulgated on 30 June 2009 as well as the Resolution3 promulgated on 11 June 2010 by the Court of Appeals (appellate court) in CA-G.R. CR.-HC. No. 03119. The appellate court affirmed the 24 July 2007 Joint Decision4 of Branch 143 of the Regional Trial Court of Makati City (trial court) in Criminal Case Nos. 023393 for Kidnapping (for Ransom), 03-766 for Robbery, and 04-1311 also for Robbery. The trial court found appellant PO1 Froilan L. Trestiza (Trestiza) guilty beyond reasonable doubt as principal by direct participation of the crime of Kidnapping for Ransom under Article 267 of the Revised Penal Code, as amended by Section 8 of Republic Act No. 7659 (RA 7659), and sentenced him to suffer the penalty of reclusion perpetua and to pay damages to Irma Navarro (Navarro) and Lawrence Yu (Yu). P/Insp. Lorieman L. Manrique (Manrique) and Rodie Pineda y Jimenez (Pineda) were likewise found guilty of the same crime by the trial court, and adjudged the same sentence as Trestiza. The trial court acquitted Trestiza, Manrique and Pineda in Criminal Case Nos. 03-766 and 04-1311. The Facts The following charges were brought against Trestiza, Manrique and Pineda on 20 November 2002: Criminal Case No. 02-3393 for Kidnapping That on or about the 7th day of November 2002, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, PO1 Froilan Trestiza y Lacson and P/S Insp. Loriemar L. Manrique, both active members of the Philippine National Police, and Rodie Pineda y Jimenez, a private individual[,] all of them armed with firearms, conspiring, confederating and mutually helping one another with one PO2 [Reynel] Jose, a member of the Philippine National Police, did then and there willfully, unlawfully and feloniously kidnap Lawrence Yu y Lim and Maria Irma Navarro, or otherwise deprive them of their liberty by then and there kidnap without legal grounds for the purpose of extorting money for their safety and immediate release as in fact said accused demanded the amount of P1,000,000.00 as ransom money from them. CONTRARY TO LAW.5 Criminal Case No. 02-3394 for Illegal Possession of Firearm and Ammunitions That on or about the 16th day of November 2002, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, custody and control one (1) Pistol Glock 21 bearing SN 035481 with thirteen (13) rounds of live ammunitions and without the corresponding license or permit thereof, which he carried outside of his residence. CONTRARY TO LAW.6

On 15 April 2004, Trestiza was acquitted of the crime charged in Criminal Case No. 02-3394.7 The Affidavit of Arrest stated that the serial number of the firearm seized was 035481, while the firearm itself had a serial number of BRG-768. The trial court rejected the explanation that the difference between the serial numbers was a mere typographical error. An order8 of the trial court dated 16 April 2004 in Criminal Case Nos. 02-3393, 02-3394, 03-766 and 04-1311 recounted the circumstances involved in the filing of the charges against Trestiza, Manrique and Pineda. Criminal Case No. 02-3393 for Kidnapping against accused PO1 Froilan Trestiza y Lacson (PO1 Trestiza), PS/Insp. Loriemar L. Manrique (PS/Insp. Manrique) and Rodie Pineda y Jimenez (Pineda) and Criminal Case No. 02-3394 for Illegal Possession of Firearms and Ammunitions against accused PO1 Trestiza alone were filed before this Court on 20 November 2002. Surprisingly, however, SPO2 [Reynel] Jose was not included as an accused in the Kidnapping case although in the original Information, Prosecutor Andres N. Marcos mentions him as someone who mutually helped all the other accused in the willful, unlawful, felonious kidnapping of private complainants Lawrence Yu y Lim (Yu) and Ma. Irma Navarro (Navarro). A Motion for Reinvestigation dated 21 November 2002 was then filed by "all" three accused while a separate Motion for Reinvestigation and/or Preliminary Investigation dated 22 November was filed by accused PS/Insp. Manrique. Then Acting Presiding Judge Salvador S. Abad Santos issued the Order dated 26 November 2002 granting the Motions filed by all accused. In the said Order, he directed the Public Prosecutor to conduct a Preliminary Investigation of the cases filed and to furnish the Court with his Report within sixty (60) days from said date. On 21 February 2003, Public Prosecutor Andres N. Marcos filed a Motion to Withdraw Information of Kidnapping with Ransom and to Admit Information for Robbery with attached Resolution dated 03 January 2008. He pointed out therein that after he conducted a preliminary investigation, he found no probable cause exists to warrant the indictment of the accused for the crime of Kidnapping with Ransom. He added that they should be charged instead for the crimes of Robbery and Grave Threats. The Court set the hearing of this Motion to 06 March 2003. On 03 March 2003, private complainants appearing through Private Prosecutor Teresita G. Oledan filed an "Urgent Motion to Hold Withdrawal of Information for Kidnapping Charge with Entry of Appearance as Private Prosecutor." They alleged in said Motion that they were not furnished clear and certified true copies of the Resolution dated 03 January 2003 to enable them to file their Opposition/Comment to the Motion to Withdraw. On 05 March 2003, the Branch Clerk of Court of RTC Makati Branch 135 sent a letter dated 26 February 2003 addressed to the Branch Clerk of this Court ostensibly transmitting the Release Order of PO1 Trestiza dated 22 February 2003 together with other pertinent documents in connection with Criminal Case No. 02-3394, which was duly approved by the Hon. Francisco B. Ibay, Presiding Judge of said Court.1wphi1 The Order of Release dated 22 February 2003 signed by Judge Ibay directed the Jail Warden of Makati Police Station, Makati City to discharge from his custody the person of said accused as the latter was able to file the corresponding bail bond in the amount of two hundred thousand pesos (PHP200,000.00) thru the Plaridel Surety and Insurance Company provided "there exists no order in any other case to the effect that he shall remain confined under your custody." He set the arraignment of the accused on 14 March 2003 at 8:30 oclock in the morning. Before the scheduled hearing of the Motion to Withdraw at 2:0 0 oclock in the afternoon of 06 March 2003, the Private Prosecutor filed her Opposition thereto at 1:30 oclock in the afternoon of said date. She alleged therein that while the Motion to Withdraw filed by Public Prosecutor Marcos prays for the withdrawal of the Information for Kidnapping with Ransom and the substitution thereof with an Information for Robbery, the latter Information was filed immediately with the Criminal Cases Unit of the Office of the Clerk of Court on the same date that the Motion to Withdraw was filed with this Court on 21 February 2003. Subsequently, said "Information for Robbery" was raffled to RTC Branch 57 on 03 March 2003 yet there was a scheduled hearing of the Motion to Withdraw on 06 March 2003. She added that the complainants were in a quandary why the alleged "substituted" Information for Robbery was raffled to another Court and docketed as Criminal Case No. 03-766, when this Court has already acquired jurisdiction over the original cases filed. The same case was thereafter consolidated with this Court on 26 March 2003 as per Order dated 24 March 2003 rendered by the Honorable Reinato G. Quilala, Presiding Judge thereat. Accused PS/Insp. Manrique, PO1 Trestiza, and Pineda posted bail in this case, which was duly approved by Judge Ibay, while accused SPO2 Joses bail was approved by Judge Napoleon E. Inoturan, Presiding Judge of RTC Branch 133. At the hearing to the Motion to Withdraw, then Acting Presiding Judge Abad Santos gave counsel for the accused time within which to file his comment/objection to the Urgent Motion to Hold Withdrawal of Information for Kidnapping filed by the private complainants, furnishing the Private Prosecutor a copy thereof, who was given the same number of days to file her Reply, if necessary. The Court likewise ordered the "re-commitment" of all three (3) accused, who were then

present at that hearing, to the custody of the Makati City Jail despite the fact that they have already posted bail, considering that the Motion to Withdraw was still pending resolution. Counsel for the accused filed his Comment to the Opposition dated 10 March 2003 alleging that the same did not bear the conformity of the Public Prosecutor who has direct control and supervision over the Private Prosecutor as provided for under the Rules of Criminal Procedure. Said Comment, to his mind, is thus a mere scrap of paper which did not deserve any consideration by the Court. On 13 March 2003, the Court was furnished by the private complainants a copy of their "Motion for Reconsideration of the Resolution dated January 03, 2003 but Released on February 20, 2003" which they filed with the Office of the City Prosecutor of Makati City. xxx On 29 May 2003, accused PO1 Trestiza and PS/Insp. Manrique filed an Urgent Motion to Resolve Motion for Withdrawal of Original Information claiming that said Original Informations have subsequently been amended by the Public Prosecutors Office and just "needs the court/judge[s] approval of the Motion to Withdraw Complaint and for Admission of the Amended Information." Moreover, they averred that the City Prosecutors Office has approved the findings of the reinvestigating Assistant City Prosecutor on the downgrading of the original complaint. Both accused prayed that said motion be heard on 28 May 2003. On 9 June 2003, the Private Prosecutor filed an Ex-Parte Opposition to Accuseds Motion for Withdrawal of Original Information with Motion for Issuance of the Warrant of Arrest against accused SPO2 Jose. She alleged therein that "it is true that one of the accuseds right is the right to speedy trial. However, where, as in this case, the stench of "something fishy" already was evident when suddenly the robbery case as amended by Prosecutor Marcos and more recently "affirmed" by Prosecutor Sibucao, there should be further in-depth investigation as the circumstances on how the three accused were able to post bail without the knowledge and approval of this Honorable Court, which had already acquired jurisdiction over the case. In fact, a Petition for Review from the Resolution of Prosecutor Sibucao denying the Private Complainants Motion for Reconsideration of the 03 January 2003 Resolution of Prosecutor Marcos duly approved by the City Prosecutor has been seasonably filed." She further alleged that, the Urgent Motion allegedly filed by accused PO1 Trestiza and PS/Insp. Manrique does not include accused SPO2 Jose, also a member of the Police Force. However, the records show that the latter also "post bail" for the Robbery case and was in fact "outside" the Chamber of this Honorable Court when the hearing was being conducted. "However, when she went out to look for him, SPO2 Jose was able to do a Houdini and disappeared from view." Private Prosecutor Oledan prayed for the deferment of the proceedings herein unti l the final resolution of the Petition for Review. Referring back to the Urgent Motion to Resolve by accused PO1 Trestiza and PS/Insp. Manrique, considering that the latter prayed for it to be heard on 28 May 2003, but filed said Motion the following day only, the same was then set for hearing on 10 June 2003. On the same date, the Private Prosecutor furnished the Court a copy of their Petition for Review which they filed with the Department of Justice. In the meantime, the Branch Clerk of this Court issued a Certification to the effect that Acting Presiding Judge Abad Santos was on official leave until 15 July 2003 and that there is an Urgent Motion to be resolved. Pairing Judge Manuel D. Victorio, acting on the Urgent Motion, issued the Order of even date directing the City Prosecution Office to submit to the Court the complete records of its Preliminary Investigation within five (5) days from notice, thereafter the same shall be considered for resolution. On 23 June 2003, accused PO1 Trestiza filed an Ex-Parte Motion for Early Resolution of the Pending Motion to Resolve, reiterating the grounds stated in his previous Motion. Before the issue could be resolved by the Pairing Judge, however, the Honorable Estela Perlas Bernabe, took over this Court as Assisting Presiding Judge, after the Honorable Salvador S. Abad Santos requested the Supreme Court to be relieved of his assignment herein. Judge Bernabe issued the Order dated 27 June 2003 holding in abeyance the Resolution of the Prosecutions Motion to Withdraw Information for a period of sixty (60) days from the filing of the Petition for Review by private complainants with the Reviewing Office. On 08 July 2003, she denied the Motion to Dismiss Criminal Case No. 02-3394 for Illegal Possession of Firearms filed against accused PO1 Trestiza on the grounds that the allegations raised by said accused are defenses proper for determination in a full-blown trial and set the pre-trial of the same to 24 July 2003. Trial on the merits for this particular Criminal Case ensued until the Prosecution rested its case and said accused filed his Demurrer to Evidence on 05 March 2004. In the meantime, without any word yet as to the outcome of the Petition for Review filed with the DOJ relative to Criminal Case No. 02-3393, Judge Bernabe issued the Order dated 28 August 2003, directing the City Prosecution Office to conduct

a re-assessment and re-evaluation of the evidence presented and to submit its report and recommendation within a period of thirty (30) days from receipt of said Order. The Resolution of the subject Motion was again held in abeyance. On 02 March 2004, the Prosecution filed a "Motion to Resolve (Motion to Withdraw Information of Kidnapping) with attached Order dated 19 February 2004. It alleged therein that it conducted a thorough re-assessment and re-evaluation of the evidence obtaining in this case in compliance with the Order of this Court dated 28 August 2003 and maintains that the correct and appropriate charges to be filed against accused should be for ROBBERY and GRAVE THREATS but for two (2) counts each, and NOT for KIDNAPPING as initially filed. Thus, it prayed for this Court to be allowed to withdraw the present Information for Kidnapping "considering that the appropriate charges of two (2) counts of Robbery and two (2) counts of Grave Threats in lieu of the charge of KIDNAPPING have already been filed with the proper Courts." To justify the Prosecutions withdrawal of the Information for KIDNAPPING, Public Prosecutor Edgardo G. Hirang states, in the Order attached to the said Motion, that, to wit: "A careful re-evaluation of the pieces of evidence adduced by both parties shows that the offense of Kidnapping shall not prosper against all the accused. As correctly stated in the Resolution issued on February 20, 2003, one of the essential elements for the crime of Kidnapping for Ransom defined and penalized under [Article] 267 of the Revised Penal Code, as amended, is that [the] offender must be a private individual which does not obtain in the case at bar as respondents Trestiza, Manrique, and Jose are public officers being police officers who at the time the complainants were allegedly divested of their cash money and personal belongings by herein respondents, were conducting a police operation to enforce the provision of the Dangerous Drug Law (R.A. 9165). All accused were in the place of the incident to conduct such operation is shown not only by the existence of coordination between them and the police authorities but also by the declaration of the complainants that they were able to verify the plate number of the vehicle of the accused from the Makati Police Station. Hence, they should be charged with the offense of Robbery under Article 294, paragraph 5 of the Revised Penal Code and Grave Threats as recommended by this Office in its Resolution issued on February 20, 2003. Considering that there are two (2) complainants, the respondents should be charged with two (2) counts of Robbery and Grave Threats." The Prosecution filed on the same date a Motion to Amend Information and to Admit Attached Amended Information in Criminal Case No. 02-766 alleging that the Criminal Information therein for Robbery should only be limited to private complainant Yus complaint and not to Navarros. Counsel for the accused, Atty. Jose Ma. Q. Austria, filed an Urgent Motion to calendar the hearing of the Motion to Amend Information and to Admit Amended Information which the Court granted in its Order dated 25 March 2004. In the meantime, Criminal Case No. 04-1311 for Robbery which was filed on the strength of the Complaint of Navarro was consolidated with similar cases pending before this Court, upon the Order dated 12 March 2004 by the Honorable Ma. Cristina J. Cornejo, Presiding Judge of RTC Branch 147. After study, the Court resolves to: 1. DENY the Motion to Withdraw Information for Kidnapping under Criminal Case No. 02-3393; 2. To [sic] GRANT the Motion to Amend Information for Robbery; [and] 3. To [sic] Hold in Abeyance the Issuance of the Warrant of Arrest against SPO2 Jose in Criminal Case No. 02-3393 until after the Information relative thereto shall have been duly amended by the Prosecution. In its Motion to Withdraw Information for Kidnapping, the Public Prosecutor argues in essence that the crime of Kidnapping could not be possibly committed by the accused as they, except for one, are police officers, who at the time the complainants were divested of cash and other personal belongings were conducting a police operation to enforce the provisions of the Dangerous Drugs Law. This to the mind of the movant runs counter to the provisions of Art. 267 of the Revised Penal Code which provides that any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than three days; 2. If it shall have committed simulating public authority;

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made; 4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer. The Court finds this unmeritorious. Even a public officer can commit the said crime within the context of the aforesaid legal provision. This is settled in our jurisprudence in the case of People vs. ALIPIO SANTIANO, JOSE SANDIGAN, et al. (GR No. 123979[,] December 3, 1998) which provides in part: "The fact alone that appellant Pillneta is an organic member of the NARCOM and appellant Sandigan a member of the PNP would not exempt them from the criminal liability of kidnapping. It is quite clear that in abducting and taking away the victim, appellants did so neither in furtherance of official functions nor in the pursuit of authority vested in them. It is not, in fine, in relation to their office, but in purely private capacity that they have acted in concert with their co-appellant Santiano and Chanco." Even an eminent jurist, Justice Florenz B. Regalado elucidates on this point clearly: "This article provides that the crimes of kidnapping and serious illegal detention are committed by private individuals obviously because if the offender is a public officer the crime is arbitrary detention under Art. 124, but passing sub silentio on the matter of kidnapping. It should be understood however, that the public officer who unlawfully detains another and is punishable by Art. 124 is one who has the duty to apprehend a person with a correlative power to detain him. If he is only an employee with clerical or postal functions, although the Code considers him as a public officer, his detention of the victim is illegal detention under this article since he is acting in a private, and not an official, capacity. If a policeman kidnaps the victim, except when legally authorized as part of police operations, he cannot also be said to be acting in an official capacity, hence he is to be treated as a private individual liable under this article. (underscoring ours) From the purpose and the formulation of R.A. 18 and R.A. 1084, it can be deduced that the legislative intendment was to put all forms of kidnapping under Art. 267 when Congress amended it together with Art. 270. There appears to have been some oversight, however, in the related articles and these will be discussed at the proper juncture." (Florenz B. Regalado, Pages 488 and 489, Criminal Law Conspectus, First Edition, March 2000) As to whether or not the accused were indeed engaged in the performance of a legitimate police operation at the time the private complainants were allegedly deprived of their liberty and personal belongings is a matter which at this stage can only be considered as a defense that calls for further factual support in the course of judicial proceedings. Was there a Mission Order? Are there documents to show that police-to-police coordinations were indeed made? Are there corroborations to these claims whether documentary or testimonial? The need for further evidence supportive of this claim gains significance in the light of the emphatic assertions to the contrary by the private complainants and their witnesses. As there appears to be probable cause for the inclusion of accused SPO2 Jose in Criminal Case No. 02-3393 for Kidnapping considering that the latter was specifically mentioned in the body of the Information as someone who conspired, confederated and mutually helped the other accused in this case, the Court resolves to await for the Prosecution to amend the same before issuing a Warrant of Arrest against said accused. Lastly, the Court finds the sought amendment of the Information for Robbery to be well-taken. WHEREFORE, premises considered, the Court resolves to: 1. DENY the Motion to Withdraw Information for Kidnapping [under Criminal Case No. 02-3393]; 2. GRANT the Motion to Amend Information for Robbery; 3. Hold in abeyance the Issuance of the Warrant of Arrest against accused SPO2 Jose in Criminal Case No. 02-3393 until after the Information relative thereto shall have been duly amended by the Prosecution. Set these cases for arraignment on 27 April 2004 at 8:30 oclock in the morning. 1wphi1 The Amended Information for Robbery duly attached in the Motion is hereby ADMITTED.

SO ORDERED. Atty. Jose Ma. Q. Austria (Atty. Austria) withdrew as counsel for Manrique and Pineda. Atty. Austria also manifested that he would file an Omnibus Motion relative to the 16 April 2004 Order of the trial court. The arraignment was reset to 25 May 2004,9 which was further reset to 28 June 2004,10 19 July 2004,11 23 August 2004,12 and finally on 31 August 2004.13 Atty. Austria filed his Omnibus Motion for Trestiza: motion for reconsideration of the 16 April 2004 Order, motion to quash the informations, and motion to allow Trestiza to post bail.14 Complainants opposed the Omnibus Motion.15 The corresponding reply16 and rejoinder17 were also filed. In its 19 August 2004 Order,18 the trial court denied the Omnibus Motion. It ruled that the trial court has the authority to deny a Motion to Withdraw Information relative to a criminal case filed before it. Moreover, the quashal of the informations against the accused goes into the determination of the nature of the arrest, which, in turn, goes into the merits of the case. Finally, the charge of kidnapping is a non-bailable offense. When the case was called for arraignment, Trestiza, Manrique and Pineda all pleaded not guilty to the following charges: Criminal Case No. 02-3393: That on or about the 7th day of November 2002, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, PO1 Froilan Trestiza y Lacson and P/S Insp. Loriemar L. Manrique, both active members of the Philippine National Police, and Rodie Pineda y Jimenez, a private individual[,] all of them armed with firearms, conspiring, confederating and mutually helping one another with one PO2 Reynel Jose, a member of the Philippine National Police, did then and there willfully, unlawfully and feloniously kidnap Lawrence Yu y Lim and Maria Irma Navarro, or otherwise deprive them of their liberty by then and there kidnap without legal grounds for the purpose of extorting money for their safety and immediate release as in fact said accused demanded the amount of P1,000,000.00 as ransom money from them. CONTRARY TO LAW. Criminal Case No. 03-766: That on or about the 7th day of November 2002, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, PO1 Froilan Trestiza y Lacson and P/S Insp. Loriemar L. Manrique, PO2 Reynel Jose, all active members of the Philippine National Police, and Rodie Pineda y Jimenez, a private individual[,] all of them armed with firearms, conspiring, confederating and mutually helping one another with intent to gain by means of force and violence or intimidation, did then and there willfully, unlawfully and feloniously rob and divest Lawrence Yu y Lim and Maria Irma Navarro of the following items to wit: a. One (1) piece of necklace (gold) with pendant amounting to P50,000.00; b. Two (2) pieces bracelet (gold) worth more or less P70,000.00; c. One (1) Rolex watch worth P270,000.00; d. One (1) mens ring worth P15,000.00; e. Two (2) cellphone[s] described as Nokia 9210 & 3310; f. One (1) Philip Chariole [sic] watch worth P150,000.00; g. One (1) Philip Chariole [sic] bracelet worth P75,000.00; h. One (1) solo diamond studded [sic] (3K) worth P500,000.00; i. One (1) womens ring gold worth P12,000.00; j. One (1) necklace gold [sic] worth P20,000.00; k. One (1) [sic] cellphone[s] described as Nokia 7650 & 8855; and,

l. Cash money amounting to more or less P300,000.00 to the damage and prejudice of the said complainants. CONTRARY TO LAW." Criminal Case No. 04-1311: That on or about the 7th day of November 2002, in the City of Makati, Metro Manila, Philippines a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping and aiding one another, with intent of gain and by means of force and violence or intimidation, did then and there willfully, unlawfully and feloniously rob and divest Irma Maria A. Navarro of the following items to wit: a. One (1) Chariol (sic) watch b. One (1) Gold ring c. One (1) Chariol (sic) bracelet d. One (1) pair diamond earring (sic) e. One (1) gold necklace f. One (1) cellphone 7650 Nokia g. One (1) cellphone 8855 Nokia h. Cash money amounting to P120,000.00 to the damage and prejudice of the complainant. CONTRARY TO LAW.19 The trial court set the case for pre-trial conference on 14 September 2004,20 which was reset to 20 September 2004.21The parties stipulated on the following: 1. That on November 7, 2002, the three (3) accused, Trestiza, Manrique and Pineda were using an Adventure van with plate no. XAU-298; 2. That Loriemar Manrique was the team leader of the group comprising [sic] of Rodie Pineda and Reynel Jose on November 7, 2002; 3. That the incident started at the Hotel Intercon located in Makati City; 4. That Loriemar Manrique is a member of the PNP Drug Enforcement Agency; 5. That accused Froilan Trestiza was the driver of the Adventure van bearing plate no. XAU-298 on November 17, 2002; 6. That after the operation was conducted, there was never any occasion that the accused Froilan Trestiza communicated with any of the complainants; 7. None of the items allegedly lost by the complainants were recovered from accused Froilan Trestiza. 22 The trial court summarized the testimonies during trial as follows: The prosecution sought to establish its case by presenting the following witnesses: Ma. Irma A. Navarro, Lawrence Yu y Lim, PO2 Rodolfo Santiago, PO3 Rosauro P. Almonte, John Paul Joseph P. Suguitan, Angelo Gonzales, PO3 Edward C. Ramos, Schneider R. Vivas, PSInsp. Salvador V. Caro, and Chief Insp. Roseller Fabian.

The Prosecutions main evidence relies heavily upon the accounts of Irma and Lawrence who testified respectively as follows: On November 7, 2002 at about one oclock in the morning, Irma and her boyfriend Lawrence, both twenty -two (22) years old at the time of the incident, were at the "Where Else Disco" in Makati attending a party. They stayed thereat for around thirty (30) minutes only. Irma however, went out ahead of Lawrence. When she was about to proceed to where Lawrences Honda ESI car was parked, she noticed that the said car was blocked by another vehicle which was a Mitsubishi Adventure van. Three (3) armed men later on emerged from the said van. As she was about to open the door of the Honda ESI, somebody hit her in [sic] the nape. When she turned her back, she saw the three (3) men in the company of Rodie Pineda alias "Buboy" ("Pineda"). She knew Pineda because the latter was her sister Cynthias "kumpare," Pineda being the godfather of Cynthias child. Furthermore, she saw Pineda in their residence the night of November 6, 2002 as he visited his [sic] sister. She asked Pineda what was happening but the latter replied "pasensya na, mare, trabaho lang" ("Bear with me, mare, this is just a job"). She was told that the three (3) whose identities she later on learned as Capt. Lorieman Manrique, PO2 Reynel Jose and PO1 Froilan Trestiza, were policemen. She asked why she was being accosted but she was handcuffed by Manrique. She was ushered inside the Honda ESI. Pineda asked her where Lawrence was but she was left inside the car with Jose while Pineda, Trestiza and Manrique on the other hand went away apparently to look for Lawrence. Pineda and Manrique later on went back inside the Honda ESI. They drove later with Jose behind the wheels [sic] while Pineda occupied the passenger seat. They followed the Mitsubishi Adventure van which was then driven by Trestiza. Unknown to Irma, Lawrence was already inside the van at the time. They just drove and drove around (" umiikot"), passing through small alleys as they avoided major routes. She was asked later by Pineda to remove her jewelry. She was able to remove only her earrings as she was in handcuffs. Pineda himself removed her Philip Chariolle [sic] watch and bracelet. Her necklace and ring followed. All these were later on turned over by Pineda to Manrique. Her bag where her wallet containing the amount of P120,000.00 was likewise taken. Her two (2) cellphones, a 7650 and an 8855, were likewise taken by Pineda. They stopped several times at the side streets and the accused would talk to each other. Pineda would stay with her inside the vehicle while Jose would go out and talk to the occupants of the Mitsubishi Adventure. Later on, she and Lawrence were brought together inside the Mitsubishi Adventure van. It was there that they were told that they will not be released if they will not be able to produce one million pesos. These were all uttered by Jose and Manrique. It was somewhere in Blumentritt, San Juan where all the accused stopped for the last time. She was crying all the while. She later on felt the call of nature, prompting her to ask permission if she could possibly relieve herself. She was accompanied by Pineda to a nearby Shell gas station in San Juan. When they returned to where they stopped, she was asked as to whom she could possibly call so that the money that the accused were asking will be produced. The accused later on asked Lawrence to make a call using his cellphone with speaker phone. Lawrence was able to get in touch with his friends John Paul Suguitan and Angelo Gonzales. The latter was told that Lawrence figured in an accident and that he needs money badly. Lawrence and his friends agreed that the money the two will produce will be brought to the Caltex gas station along Ortigas corner Wilson Street in Greenhills. They proceeded to the said place later where they waited for the friends of Lawrence. She was told later by Manrique that she better pray that the transaction pushes through. Manrique further warned her against reporting the incident to anyone lest her whole family will be held liable. She was even shown by the accused the picture of her child. She was cursed by Jose. Trestiza on the other hand told her that Lawrences transaction should better push through. The two, John Paul Suguitan and Angelo Gonzales, later on arrived at the gas station. Lawrence took from them what appears to be a package and handed the same to Pineda. Manrique thereafter called Pineda asking " positive na ba?" to which Pineda replied "yes." The amount raised by the friends of Lawrence was one hundred eighty thousand pesos (Php 180,000.00). They (Irma and Lawrence) were later brought to the Star Mall along Edsa. Their captors warned them not to report the matter to the authorities otherwise they will face dire consequences. The items taken from Irma like the cash money, jewelry and cellphone were placed by the men inside the console box of the Mitsubishi Adventure. When they reached Star Mall, the men talked to them for thirty minutes. Again, they were warned about the consequences of their reporting the incident to the police. Irma was told that the men knew her address, the members of her family and that they have the picture of her child. She was likewise warned not to report the matter to her father, Rod Navarro, who was an actor and a policeman, otherwise her daughter with Lawrence will be the one [to] bear the consequences (" anak ko ang mananagot"). They were released after thirty (30) minutes. Lawrence had to plead for their gasoline from the accused and he was given Php 100.00. Irma decided not to tell her mother about the incident as she was very afraid. Lawrence however made a report to the Makati police station in the evening of 7 November 2002 where he was shown a "coordination sheet" pertaining to the plate number of the Mitsubishi Adventure. Buboy Pineda in the meanwhile kept on calling them (Irma and Lawrence)

demanding for their "balance" of one million pesos (Php 1,000,000.00). Irmas mother however soon learned of the incident because of a newspaper item. Her father likewise learned of the incident and lost no time in contacting authorities from the CIDG. They (Irma and Lawrence) were later investigated by the CIDG people to whom they gave their sworn statements on November 14, 2002. As Buboy Pineda continued to call them for the alleged balance, an entrapment operation was planned on that date. Boodles of money were dusted with ultra-violet powder. On the same date, Buboy Pineda called Lawrence for purposes of meeting him that night in order to get the remaining money. The entrapment operation which was conducted along the New World Hotel, and participated in by PO2 Almonte, was successful as Buboy Pineda was arrested. Recovered from the possession of Pineda were a gold necklace without a pendant; a Nokia cellphone model 7650; a Toyota corolla car with plate number PNG 214 color red and one (1) ignition key. The necessary acknowledgment receipt was duly signed by the said accused. A pawnshop ticket was likewise recovered from his possession. Lawrence on the other hand narrated that during that fateful day of 7 November 2002 at around 1:30 oclock in the morning, as he was stepping out from the Where Else Disco, he was suddenly "sandwhiched" [sic] by two (2) persons, Manrique and Trestiza. Pineda whom he likewise knew, held a gun and pointed the same to him. He was later on "lifted" through his belt and loaded to a yellow Mitsubishi Adventure. He was made to occupy the passenger seat at the back while Trestiza drove the said vehicle. Manrique occupied the seat beside Trestiza. He asked the accused who they were and he was told that they were policemen. At the time, Trestiza was wearing an outfit which was "hip hop" while Manrique was wearing a polo which was "button down." He was cursed and told to shut up. He was asked to bow down his head as they drove along. He remembers that the accused dug into his pockets and his valuables consisting of cellphones, a 9210 and a 3310 models [sic] respectively, including his wallet, cigarettes, watch bracelet, ring, necklace and a pair of earrings, were taken from him. He later on saw his Honda ESI car. He noticed that the Mitsubishi Adventure they riding was following the said Honda ESI. Manrique later asked him how much money did he have. When replied that his money was inside his car, Manrique allegedly retorted "imposible." They later on stopped in Mandaluyong near an open canal. He was asked again by Manrique about his money. At that point, another man whose name he later on learned was SPO2 Reynel Jose, boarded also the Mitsubishi Adventure. Jose asked him about his money. When he replied that his money was inside his car, Jose got mad and boxed him on his face. They later on resumed driving around. When they stopped again, Jose asked him whether he has thought of the money. When he again replied that the money was inside his car, he was boxed repeatedly by Jose. Manrique and Trestiza were seated in the front seats but did not do anything. They resumed driving again. Jose asked him again about the money. When he gave the same response, Jose put a plastic material over his head which made him unable to breath [sic]. Jose strangled him, prompting him to shout later "okay na, okay na. Sige na, sige na magbibigay na ako" ("Okay, okay. I will give."). Jose stopped strangling him and immediately removed the plastic material over his head. Jose remarked that had he cooperated earlier, he would not have been hurt. Trestiza and Manrique told him that he should not have kept the matter long. Later on, the four (4) men had a brief huddle. He was later on approached by them saying "okay na ha, isang milyon na" ("Okey ha, its one million). He could not recall however who in particular made the remark. He was later on instructed by Manrique to call certain persons with the information that he figured in [an] accident. He was made to use his 9210 model phone as the same had a " speaker" thus enabling the accused to listen to the conversation. He tried to get in touch with his siblings but failed. He was able to contact later on his friends John Paul Suguitan and Angelo Gonzales who were then in Libis. He told his friends that he needed money very badly as he had an accident. He instructed his friends to proceed to the area given by Manrique which was at the Caltex gas station along Ortigas corner Wilson Street in Greenhills. Later on, Irma and Lawrence were allowed to be together inside the Mitsubishi Adventure. It was at that point where they were told to produce the amount of One Million pesos (Php 1,000,000.00) that night so they will be released. These very words were uttered by Jose and Manrique. Irma later on asked permission to answer the call of nature and she was accompanied by Pineda to the Shell gas station in San Juan where she relieved herself. Upon arriving at the said gas station, Lawrence was directed to drive his Honda ESI car. He was in the company of Pineda while Irma on the other hand was with Manrique, Trestiza and Jose inside the Mitsubishi Adventure. While Irma was inside the Mitsubishi Adventure, she was told that if the person contacted by Lawrence will not show up, they will not be released and if Lawrence will escape, she will be finished off. Manrique thereafter told Irma to better pray that the transaction will push through. She was warned that if she reports the incident, her family will be harmed. The said accused had her childs picture at the time. Jose was cursing her. Trestiza on the other hand was seated at the driver side of the Mitsubishi Adventure van and remarked that Lawrences transaction should push through so that they will be released. Not long after, Lawrence alighted from his car and stood beside the vehicle. His f riends vehicle later on arrived. Lawrence approached the vehicle that has just arrived and took something. Pineda remained seated in Lawrences car while smoking. The door of the said car was open at the time. Lawrence thereafter walked back to where Pineda was and handed to him a package. It was already around 4: or 4:30 in the morning. Lawrences friends thereafter went away, prompting Pineda to call Manrique. Manrique allegedly asked " positive na ba?" to which Pineda replied "yes."

The amount raised by the friends of Lawrence was one hundred eighty thousand pesos (Php 180,000.00). They (Irma and Lawrence) were later brought to the Star Mall along Edsa. Their captors warned them not to report the matter to the authorities otherwise they will face dire consequences. The items taken from Irma like the cash money, jewelry and cellphone were placed by the men inside the console box of the Mitsubishi Adventure. When they reached Star Mall, the men talked to them for thirty minutes. Again, they were warned about the consequences of their reporting the incident to the police. Irma was told that the men knew her address, the members of her family and that they have the picture of her child. She was likewise warned not to report the matter to her father, Rod Navarro, who was an actor and a policeman, otherwise her daughter with Lawrence will be the one [to] bear the consequences (" anak ko ang mananagot"). They were released along Edsa after thirty (30) minutes. Lawrence had to plead for their gasoline from the accused and he was given Php 100.00. Irma decided not to tell her mother about the incident as she was very afraid. Lawrence however made a report to the Makati police station in the evening of 7 November 2002 where he was shown a "coordination sheet" pertaining to the plate number of the Mitsubishi Adventure. Buboy Pineda in the meanwhile kept on calling them (Irma and Lawrence) demanding for their "balance" of one million pesos (Php 1,000,000.00). Irmas mother however soon learned of the incident because of a newspaper item. Her father likewise learned of the incident and lost no time in contacting authorities from the CIDG. They (Irma and Lawrence) were later investigated by the CIDG people to who they gave their sworn statements on November 14, 2002. As Buboy Pineda continued to call them for the alleged balance, an entrapment operation was planned on that date. Boodles of money were dusted with ultra-violet powder. On the same date, Buboy Pineda called Lawrence for purposes of meeting him that night in order to get the remaining money. The entrapment operation which was conducted along the New World Hotel, and participated in by PO2 Almonte, was successful as Buboy Pineda was arrested. Recovered from the possession of Pineda were a gold necklace without pendant; a Nokia cellphone model 7650; a Toyota corolla car with plate number PNG 214 color red and one (1) ignition key. The necessary acknowledgment receipt was duly signed by the said accused. A pawnshop ticket was likewise recovered from his possession. Early in the morning of the following day at the CIDG, Lorieman Manrique went to the said office looking for his coaccused Froilan Trestiza. He (Manrique) was arrested thereat when the private complainants who happened to be there as they were giving additional statements identified him (Manrique) through a one-way mirror. Trestiza was likewise arrested later as he was identified by his co-accused Rodie Pineda. During the arrest, Trestiza was found to be in possession of an unlicensed firearm for which the corresponding charge was filed. He (Trestiza) was likewise the subject of the complaint sheet filed by Irma and Lawrence and was likewise identified by his co-accused Pineda as one of the cohorts in the kidnapping of the former. The Defense on the other hand presented the following version: Private complainants Irma Navarro and Lawrence Yu were known to accused Rodie Buboy Pineda, a freelance dance instructor prior to his incarceration, and a godfather to the child of Irmas sister, since 1997. The two (Irma and Lawrence) are known to Pineda as suppliers of prohibited drugs, particularly Ecstasy, blue anchors, and yeng-yen. The two, Irma and Lawrence have been distributing these drugs to various customers who [sic] frequented bars and disco pubs. Pineda has been transacting with the two, particularly Lawrence, for a profit. Realizing later that his involvement with the group of Lawrence has become deeper and deeper, Pineda thought of causing the arrest of the latter. He (Pineda) soon decided to report the matter to the police authorities and contacted forthwith his long-time acquaintance, now his co-accused Froilan Trestiza on November 6, 2002 at 10:30 in the evening. At that time, Trestiza was a policeman under the Special Action Unit, Group Directors Office of the National Capital Region. Pineda and Trestiza, who have known each other for the past ten years, used to be dancers at the Equinox Disco along Pasay Road. Upon learning the information from Pineda, Trestiza contacted his classmate PO2 Rolando de Guzman of the Philippine Drugs Enforcement Agency (PDEA) who in turn referred Trestiza to Captain Lorieman Manrique who was then the Deputy Chief of the Special Enforcement Unit of the PDEA, Metro Manila Regional Office. Manrique was called later by Trestiza through cellphone and they agreed to meet the same night, at around midnight, at the parking lot of the Intercontinental Hotel in Makati. Manrique prepared a PreOperation sheet for a possible narcotics operation. He likewise gave [the] plate number of the vehicle he was then driving which was a Mitsubishi Adventure van with plate number HAU-298. During their ensuing meeting, Manrique was with PO2 Reynel Jose. Pineda and Manrique talked to each other. Manrique later on briefed Pineda and Jose. Trestiza was about three to five meters away from the three (3). After the briefing, Manrique asked Trestiza to drive the Mitsubishi Adventure. Manrique told Trestiza that the buy-bust operation has been pre-coordinated with the Makati police. Manrique later joined Trestiza inside the Mitsubishi Adventure while Jose and Pineda were outside as though waiting for someone. Irma and Lawrence later on arrived and they talked to Pineda and Jose. Pineda introduced Jose to Irma and Lawrence as the buyer. Jose was only we aring a t-shirt at the time and it seemed Lawrence and Irma doubted him. Jose told the two that he has the money with him and he would like to buy drugs. Irma however whispered something to Lawrence prompting the latter to vascillate [sic]. From where they are seated inside the Mitsubishi Adventure, Trestiza and Manrique could see what were [sic] going on among Irma, Lawrence,

Jose and Pineda. Later on, Jose approached Trestiza and Manrique and told them that the pre -arranged signal is when he (Jose) scratched his head. According further to Jose, his scratching of his head will mean a signal to Trestiza to drive towards them the vehicle. As Jose later on scratched his head, Trestiza drove the vehicle towards the group as instructed. Manrique thereafter alighted and effected the arrest of Irma and Lawrence. Irma went hysterical and was loaded into the Honda ESI while Lawrence was made to board the Mitsubishi Adventure. It was at that point when two (2) mobile cars arrived with policemen on board. A commotion immediately ensued between the police men aboard the mobile cars and Manriques men. Firearms were drawn and poked against each of the men (nagkatutukan ng baril). Jose, however, later on showed what appeared to be a document to the men aboard the mobile car. One of the men later on made a call through his radio and then left afterwards. Manrique later on instructed Trestiza to drive towards Edsa on their way to Camp Crame. Along the way, Manrique conducted a tactical interrogation against Lawrence and Irma about their drug-related activities. Upon reaching SM Megamall, however, Manrique told Trestiza to pull over. Manrique talked to Lawrence, Irma, Jose and Pineda. Trestiza remained inside the van. Trestiza, however, overheard that Lawrence was at that point was talking about his supplier of ecstasy. Thereafter, Manrique briefed anew Pineda and Jose in the presence of Irma and Lawrence. It was understood among them that Lawrence will wait for his alleged supplier whose name was allegedly Jojo at the C altex gas station along Wilson Street in Greenhills. Lawrence told Manrique that this Jojo was really a big-time supplier of ecstasy and cocaine. Upon arriving at the gas station, the group waited for Lawrences supplier for an hour but nobody appeared. Manrique became impatient and went to where Lawrence was. Manrique later told his men that Lawrence might have alerted his supplier. He (Manrique) then decided to bring the two (Irma and Lawrence) to Camp Crame. Trestiza, however, pointed out to Manrique that nothing was taken from the possession of the two. Manrique conferred anew with Jose. Jose remarked that the items could have been thrown away. It was later on decided that Irma and Lawrence will just be released. The two were indeed released near the [Manuela] Complex along Edsa. Trestiza was later on arrested by the CIDG operatives in the early morning of November 16, 2002 at the parking lot of the Club 5 Disco. A gun was poked at him and he was shoved inside a vehicle. He was boxed and placed on handcuffs. He was not shown any warrant of arrest. He told the arresting officers that he is also a policeman. He was brought later to Camp Crame. While at Camp Crame, he was shown to his co-accused Pineda and the latter was asked "di ba sya yung nag-drive noong may operation laban kina Irma Navarro?" ("Is he not the one who drove during the operation against Irma Navarro?"). He (Trestiza) asked the authorities what were the grounds for detaining him but his queries were not answered. His watch, wallet and cellphone were taken. Later on the same day, Irma arrived in Camp Crame. The authorities thereat talked to Irma, afterwhich, a policeman told her " eto yung itinuturo ni Buboy na nag-drive." ("This is the one pointed to by Buboy as the one who drove"). Several days later, all the accused were presented to the press by the office of General Matillano. The Philippine Daily Inquirer covered the story and later on came out with an article entitled "We Were Framed." The defense likewise presented PO2 Rolando de Guzman who corroborated the claim of Trestiza that he was called by the latter concerning the information given by Pineda. No further evidence was presented. 23 The Trial Courts Ruling In its Joint Decision24 dated 24 July 2007, the trial court found Trestiza, Manrique, and Pineda guilty beyond reasonable doubt as principals by direct participation of the crime of Kidnapping for Ransom. The trial court concentrated its ruling on the credibility of the witnesses. It found the testimonies of the prosecution credible, with their versions of the incident dovetailing with each other even on minor details. On the other hand, the defenses testimonies taxed the credulity of the trial court. The trial court raised numerous questions about the defenses story line: x x x But this leads the court to wonder: if indeed Pineda was so bothered by his involvement with the group of Lawrence, why did he spill the beans against Irma and Lawrence only? Did he not state that it was a " group" that he was transacting with? Who were the other members of this group? What were their activities that were so dark and clandestine so as to make him suddenly shudder and opt for a change of life? These were not answered by Pinedas testimony. Also, while Manrique presented what appears to be a Pre-Operation Coordination Report, thus creating at first glance the impression that theirs was a legitimate police operation, this still does not detract from nor diminish the credibility of the complainants claim that they were subsequently abducted and money was demanded in exchange for their release. For even if the court is to indulge the claim of the defense that the complainants were indeed drug-pushers and undeserving of this courts sympathy, the nagging doubt about the existence of a prepared police operation as what Manrique and his co accused refer to, persists. For one, the said Pre-Operation/Coordination Sheet appears to be unreliable. Aside from the fact that the same was not duly authenticated, the failure of the defense, particularly accused Manrique, to summon the

signatories therein who may attest to the existence and authenticity of such document was not at all explained. Second, all the accused narrated about their almost-fatal encounter with another group of policemen while they were allegedly in the act of conducting the supposed buy-bust operation against the complainants. This event, to the view of this court, only invites the suspicion that the Pre-Operation/Coordination Sheet was dubious if not actually non-existent. The accused likewise claimed that they released the two later along Edsa as nothing was found on them. The manner of the release, however, raises several questions: why were the complainants who were earlier suspected of being drugpushers not brought to the police precinct? Did not Lawrence volunteer the name of his alleged supplier earlier during the tactical interrogation? Why were they unloaded just like that along Edsa at that ungodly hour? Was there an incident report on the matter considering that Manrique was mindful enough earlier to first secure a Pre-Operation/Coordination sheet?25 The dispositive portion of the trial courts Decision states: WHEREFORE, premises considered, judgment is hereby rendered in Criminal Case No. 02-3393 finding the accused PO1 FROILAN TRESTIZA Y LACSON, P/INSP LORIEMAN L. MANRIQUE and RODIE PINEDA Y JIMENEZ GUILTY beyond reasonable doubt as principals by direct participation of the crime of KIDNAPPING for RANSOM, and they are hereby sentenced to suffer the penalty of RECLUSION PERPETUA. In addition thereto, they are ordered to pay, jointly and severally, the private complainants the sums of PHP 300,000.00 as actual damages, and PHP 300,000.00 as exemplary damages. All the accused are ACQUITTED in Criminal Cases Nos. 03-766 and 04-1311 both for Robbery respectively. Send the records of this case to the archives in so far as accused PO2 Reynel Jose, who continues to be at large, is concerned. Let, however, a Warrant of Arrest be issued against him. SO ORDERED.26 On the same date as the promulgation of its decision, the trial court issued an Order of Commitment 27 of Trestiza, Manrique, and Pineda to the Director of the Bureau of Corrections. On 27 July 2007, Trestiza, Manrique, and Pineda filed a Motion for New Trial and for Inhibition. Two witnesses, Camille Anne Ortiz y Alfonso (Ortiz) and Paulo Antonio De Leon y Espiritu (De Leon), allegedly intimate friends of Navarro and Yu, will testify as to the circumstances which took place in the early morning of 7 November 2002. Their testimonies, if admitted, will allegedly result in the acquittal of Trestiza, Manrique, and Pineda. These witnesses are not known to the accused, and they could not have been produced during trial. Moreover, the accused are of the belief that trial court judge Zenaida T. Galapate-Laguilles acted with bias against them. She allegedly made an off-the-record remark and stated that the prosecution failed to establish what they sought to prove, but then later on questioned the existence of the defenses Pre-Operation/Coordination Sheet in her decision. Judge Galapate-Laguilles also failed to resolve the Petition for Bail, and failed to point out discrepancies in the testimonies of the defenses witnesses, particularly those regarding the arrests of Trestiza, Manrique, and Pineda. The prosecution opposed the Motion for New Trial and Inhibition.28 De Leon shared a cell with Manrique since July 2003, while the trial was ongoing, and hence De Leons supposed testimo ny should not be considered "newly discovered" evidence. On the other hand, Ortizs narration of events in her affidavit is full of inconsistencies. The prosecution likewis e questioned the credibility of the witnesses who allegedly heard Judge Galapate-Laguilles off-the-record remark. One was Trestizas relative, while the other was a security escort who was supposed to stay outside the courtroom. Finally, the motion itself was filed late. The supplement to the motion, to which the affidavits of the additional witnesses were attached, was filed two days after the finality of the trial courts decision. Copies of the decision were furnished to both prosecution and defense on 24 July 2007, which was also the date of promulgation. The Motion for New Trial and Inhibition was dated 27 July 2007, while the Supplement to the Motion which included the witnesses affidavits was dated 10 August 2007. The trial court held hearings on the twin motions. On 3 October 2007, the trial court issued an Order 29 denying the Motion for New Trial and for Inhibition. The evidence presented was merely corroborative, and the prosecution was able to prove its case despite the judges alleged off-the-record equivocal remark. On 19 October 2007, Trestiza, Manrique, and Pineda filed a notice of appeal. 30 The Order denying the Motion for New Trial and for Inhibition was received on 18 October 2007, while the Motion for New Trial and for Inhibition was filed on 27 July 2007 or three days after the promulgation of the Decision on 24 July 2004. The trial court gave due course to the notice of appeal.31 In their brief filed with the appellate court, Trestiza, Manrique, and Pineda assigned the following errors:

The trial court erred in convicting accused Trestiza despite the fact that he was not part of the alleged conspiracy in that it was not stipulated during the pre-trial that he was just the driver and was not part of the team. Besides, he did not perform any act in furtherance of the alleged conspiracy. The trial court erred in giving credence to the testimonies of private complainants Lawrence Yu and Irma Navarro as their demeanor in the witness stand show hesitation indicative of guilt of fabrication and their testimonies lack spontaneity and were not straightforward. The trial court erred in giving credence to the testimonies of prosecution witnesses John Paul Suguitan and Angelo Gonzales as they alleged facts and circumstance that are contrary to human nature and experience. The trial court erred in convicting the accused despite the fact that the complainants were arrested in a legitimate operation as evidenced by the Pre-Operation/Coordination Sheet which was authenticated by accused-appellant Manrique.32 The Appellate Courts Ruling On 30 June 2008, the appellate court dismissed the appeal and affirmed the trial courts decision. In its recitation of facts, the appellate court quoted from the Peoples Brief for the prosecution and from the trial court for the defense. The appellate court ruled that Trestizas contention that he was just the driver of the van and never communicated with the witnesses deserves scant consideration. Yu identified Trestiza as one of the two men who sandwiched him as he left Where Else Disco, and insisted that Yu cooperate with Jose when Jose asked Yu for cash. Trestizas acts thus show that he acted in concert with his co -accused in the commission of the crime. The appellate court relied on the trial courts assessment of the reliability of the prosecutions witnesses, and gave credence to their testimonies. The appellate court declared that all the elements of kidnapping for ransom are present and thus affirmed the trial courts decision: In any event, it was established that all the elements constituting the crime of kidnapping for ransom in the case at bar are present. The elements of kidnapping for ransom under Article 267 of the Revised Penal Code (RPC), as amended by Republic Act (R.A.) 7659 are as follows: (a) intent on the part of the accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his liberty; and (c) motive of the accused, which is extorting ransom for the release of the victim (People vs. Raul Cenahonon, 527 SCRA 542). Here, Navarro and Yu testified how they were abducted at gun point from the parking lot in Makati and confined inside the car and van respectively; that they were both handcuffed, hence, deprived of their liberty and that appellants made a demand for them to deliver a certain amount in exchange for their release. In fine, the Court rules and so holds that appellants guilt for the offense of kidnapping for ransom has been proven beyond moral certainty of doubt. WHEREFORE, the decision appealed from is hereby AFFIRMED and this appeal is hereby DISMISSED. SO ORDERED.33 Trestiza alone filed a Motion for Reconsideration34 of the appellate courts decision. In his Motion, Trestiza claimed that he alone, through counsel, filed an appeal brief. Trestiza further claimed that the stipulations made during pre-trial established Trestizas limited involvement, that is, he was merely a driver of the vehicle when the alleged crime took place, he never communicated with the complainants, and none of the items allegedly taken from the complainants were recovered from Trestizas possession. The trial court did not mention nor discuss these stipulations in its decision. Even the trial courts finding of facts shows Trestizas participation was merely that of an invited driver in a legitimate Philippine Drug Enforcement Agency (PDEA) drug bust operation. Moreover, the testimonies of witnesses of both prosecution and defense establish that Trestiza was a member of the Philippine National Police (PNP) when he allegedly committed the crime. Under the circumstances, Trestiza claimed he should be held liable only for Arbitrary Detention. Finally, Trestizas identification was not only improper for being suggested, but his warrantless arrest should also be held invalid. The Office of the Solicitor General (OSG) filed a comment opposing Trestizas Motion for Reconsideration. The stipulations do not discount that Trestiza conspired with his co-appellants Manrique and Pineda in committing the crime charged. The apprehension and detention of Navarro and Yu were clearly effected for the purpose of ransom; hence, the proper crime really is Kidnapping with Ransom. Trestiza filed a Reply to the Comment 35 on 20 October 2009.

The appellate court denied Trestizas Motion for Reconsideration in a Resolution dated 11 November 2009. 36 An examination of the appellants brief showed that th e brief was filed for Trestiza, Manrique and Pineda. The appellate court found no compelling reason to warrant consideration of its decision. Trestiza still filed a Notice of Appeal37 of the appellate courts decision on 10 January 2010. The appellate court initially denied38 Trestizas Notice of Appeal due to late filing, but eventually granted39 Trestizas Motion for Reconsideration40 of the 16 February 2010 resolution denying his Notice of Appeal. Trestiza filed the present supplemental brief41 before this Court on 15 August 2011. In his brief, Trestiza emphasized that Yu was apprehended by agents of the PNP and PDEA on 30 June 2011 during a raid of an illegal drugs laboratory. Yu was charged with the crime of manufacturing, possessing, and selling illegal drugs under Sections 8, 11, and 12, Article II of Republic Act No. 9165. The Issues Trestiza raised the following arguments against the appellate courts decision: I. The supervening event involving the apprehension of Lawrence L. Yu as the head of a big-time drug syndicate throws his credibility as a witness beneath the abyss of morass and decay that must be now totally discarded. II. The facts and circumstances surrounding the above-entitled case is consistent with the innocence of [Trestiza] rendering the evidence presented insufficient and without moral certainty to support a conviction. III. At the very least, the "equipoise rule" finds application in the case at bar, taking into consideration the supervening event that demolished the credibility of the witnesses presented by the prosecution. IV. The Constitutional presumption of innocence of [Trestiza] has not been overwhelmed by the tainted testimony and total lack of credibility of Lawrence L. Yu and, in light of the supervening event, could not now be overcome by questionable testimonies presented by the prosecution. V. The conviction of an innocent man is a great injustice that affects the very foundations of humanity. VI. It was not sufficiently shown that all the accused in the above-entitled case conspired in committing the crime of Kidnapping for Ransom and the same was not proven by proof beyond reasonable doubt. VII. [Trestiza] has no malicious or evil intent in acquiescing to drive the vehicle used in the buy-bust operation. VIII. [Trestiza] is innocent of the crime of Kidnapping for Ransom.42 The Courts Ruling At the outset, we declare that the 30 June 2011 arrest of Yu has no bearing on the present case. The two cases are independent of each other and should be treated as such. Yus innocence or guilt regarding his 30 June 2011 arrest does not affirm or negate the commission of the crime of Kidnapping for Ransom against him. Warrantless Arrest These are the circumstances surrounding Trestizas arrest: Pineda had been contacting Yu to follow up on the balance on the ransom. Pineda was then arrested pursuant to an entrapment operation conducted in the early morning of 16 November 2002 at New World Hotel. During the investigation at Camp Crame, Pineda revealed that Trestiza could be found at Club 5 in Makati. Pineda and Yu accompanied the arresting team to Club 5. Yu pointed out Trestiza to the arresting team while Trestiza was on his way to his black Hummer.43 Trestiza questioned the legality of his warrantless arrest in an Omnibus Motion 44 filed before his arraignment. In its Order dated 19 August 2004, the trial court stated that the quashal of the informations on account of Trestizas illegal arrest is not warranted. The determination of the nature of the arrest goes directly into the merits of the case, and needs a deeper judicial determination. Matters of defense are not grounds for a Motion to Quash. The trial court, however, did not make any ruling related to Trestizas warrantless arrest in its 24 July 2007 Decision.

Section 5, Rule 113 of the 2000 Rules of Criminal Procedure enumerates the instances when warrantless arrests are lawful. Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. It is clear that Trestizas warrantless arrest does not fall under any of the circumstances mentioned in Section 5, Rule 113. However, Trestiza failed to make a valid objection to his warrantless arrest. Any objection to the procedure followed in the matter of the acquisition by a court of jurisdiction over the person of the accused must be opportunely raised before he enters his plea; otherwise, the objection is deemed waived. 45 Trestiza, being a policeman himself, could have immediately objected to his warrantless arrest. However, he merely asked for the grounds for his arrest. He did not even file charges against the arresting officers. There was also a lengthy amount of time between Trestizas arrest on 16 November 2002 and the filing of the Omnibus Motion objecting to Trestizas warrantless arrest on 11 May 2004. Although it may be argued that the objection was raised prior to the entry of T restizas plea of not guilty in the kidnapping for ransom charge, it must be noted that the circumstances of the present case make us rule otherwise. Trestiza was charged with two crimes at the time of his arrest: kidnapping with ransom under Criminal Case No. 02-3393 and illegal possession of firearms under Criminal Case No. 02-3394. Trestiza did not question the legality of his warrantless arrest nor the acquisition of jurisdiction of the trial court over his person, and fully participated in the hearing of the illegal possession of firearms case. Thus, Trestiza is deemed to have waived any objection to his warrantless arrest. Under the circumstances, Trestizas Omnibus Motion in the kidnapping for ransom case is a mere afterthought and cannot be considered as a timely objection. Assuming arguendo that Trestiza indeed made a timely objection to his warrantless arrest, our jurisprudence is replete with rulings that support the view that Trestizas conviction is proper despite being illegally arrested without warrant. InPeople v. Manlulu, the Court ruled: [T]he illegality of the warrantless arrest cannot deprive the State of its right to prosecute the guilty when all other facts on record point to their culpability.46 Indeed, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a trial free from error.47 The fatal flaw of an invalid warrantless arrest becomes moot in view of a credible eyewitness account.48 Kidnapping with Ransom The trial courts findings of facts, its calibration of the collective testimonies of witnesses, its assessment of the probat ive weight of the evidence of the parties, as well as its conclusions anchored on the said findings, are accorded great weight, and even conclusive effect, unless the trial court ignored, misunderstood or misinterpreted cogent facts and circumstances of substance which, if considered, would alter the outcome of the case. This is because of the unique advantage of the trial court to observe, at close range, the conduct, demeanor and the deportment of the witnesses as they testify. 49 We see no reason to overrule the trial courts finding that Trestiza is guilty of kidnapping with ransom. Article 267 of the Revised Penal Code provides: Art. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than three days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances abovementioned were present in the commission of the offense. When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. Before the present case was tried by the trial court, there was a significant amount of time spent in determining whether kidnapping for ransom was the proper crime charged against the accused, especially since Trestiza and Manrique were both police officers. Article 267 of the Revised Penal Code specifically stated that the crime should be committed by a private individual.50 The trial court settled the matter by citing our ruling in People v. Santiano,51 thus: The fact alone that appellant Pillueta is an organic member of the NARCOM and appellant Sandigan a member of the PNP would not exempt them from the criminal liability of kidnapping. It is quite clear that in abducting and taking away the victim, appellants did so neither in furtherance of official functions nor in the pursuit of authority vested in them. It is not, in fine, in relation to their office, but in purely private capacity that they have acted in concert with their co-appellant Santiano and Chanco. In the same order, the trial court asked for further evidence which support the defenses claim of holding a legitimate police operation. However, the trial court found as unreliable the Pre-Operation/Coordination Sheet presented by the defense. The sheet was not authenticated, and the signatories were not presented to attest to its existence and authenticity. The second to the last paragraph of Article 267 prescribes the penalty of death when the extortion of ransom was the purpose of the kidnapping. Yu and Navarro were released only after they were able to give various personal effects as well as cash amounting to P300,000, with the promise to give the balance of P1,000,000 at a later date. Trestiza insists that his participation is limited to being a driver of the Mitsubishi Adventure van. Yu testified otherwise. Direct Examination of Lawrence Lim Yu Atty. Oledan: Q: What happened [after you left Wherelse Disco]? Witness: A: As soon as I stepped out of the Wherelse Disco, somebody bumped me at my right side. And then later on, I was "sandwiched" by two (2) persons and when I looked up, I noted the presence of one (1) man immediately in front of me holding a gun. Q: And these men who "sandwiched" you and the third men [sic] who held the gun in front of you, would you be able to identify them? A: Yes, maam. Q: Are they inside this Courtroom? A: Yes, maam.

Q: Will you please identify them? A: The three of them, maam. At this juncture, the witness is to pointing to the three (3) men, who are the accused in this case, inside the Courtroom. COURT: (To the Accused) Again, for the record, please stand up, gentlemen. At this juncture, the three (3) accused stood up. COURT: (To Witness) Are you sure these were the three (3) men whom you are referring to? WITNESS: A: Yes, maam. COURT: Make it of record that the witness pointed to accused PO1 Froilan Trestiza, PSINP Loriemar Manrique and Rodie Pineda. ATTY. OLEDAN: Q: (To Witness) Specifically, who among these three (3) "sandwiched" you? WITNESS: A: It was PO1 Trestiza and Capt. Manrique. xxx Q: What happened after you were brought inside the Mitsubishi vehicle? A: Later on, Officer Trestiza and Capt. Manrique likewise boarded the Mitsubishi Adventure. xxx Q: Who was driving the vehicle? A: It was Froilan Trestiza, maam. xxx Q: After [Reynel Jose] said [that had Yu cooperated earlier, he would not have been hurt] and the plastic removed from your head, what did [sic] the two, Trestiza and Manrique, doing? A: They told me the same thing. They told me that I should not have kept the matter long. Q: What happened after that? A: After that, Reynel Jose alighted again and we drove towards an area, which I know now to be within San Juan. Right in front of the Tambunting Pawnshop. Q: What happened at the Tambunting Pawnshop? Did the vehicle stop there? A: The two (2) vehicles parked there beside each other. Q: What happened when you were there at Tambunting Pawnshop?

A: After parking in front of the Tambunting Pawnshop, they boarded Irma and have her sat [sic] beside me. Then after which, the door at my left side was opened. Q: What else happened? A: They told me not to make any move, that I just keep on sitting there. Afterwards, the men huddled with each other ("nagkumpul-kumpol po sila"). Q: Where did they huddle? A: They huddled in an area close to me, almost in front of me. Q: Who among the accused huddled together? A: The four (4) of them, maam. Q: How long did they huddle? A: For a while only, maam, around (10) ten minutes. Q: After ten (10) minutes, what happened? A: After ten (10) minutes, Buboy approached me. Q: What did he say? A: He told me that they thought my money would be One Million Pesos (P1,000,000.00). xxx Q: So, after that huddle, after you were told by Buboy that "okay na yong one million" and that was confirmed by one of the three (3) men who said "isang million na," what happened? A: I was talking to Buboy at that time and I was telling him, "Why do you have to do this to me? You are the kumpare of the elder sister of Irma." Q: What did Buboy say to that? A: Buboy retorted, "Pare, pasensya na, pera pera lang yan." Q: After Buboy said that, what happened? A: I told him that he need not do that, because if he needs money, I can always lend him. Q: What did Buboy say? A: After saying this to Buboy, he told me to just shut up and then he later on handed over to me a cell phone and told me to contact a person, who can give me money. Q: Who handed you your cell phone? A: It was Froilan Trestiza, maam. xxx Q: After that, were you told to go home already?

A: Not yet, maam. Before letting us go, they threatened us. They reminded us that they have our IDs, the pictures of our children and the members of our family. Q: What did you do after that? A: We just kept on saying yes because we wanted to go home already. Q: What time was that? A: It was almost daybreak ("mag-uumaga na"). I have no watch already at that time, maam. Q: So, what did you do after that? A: After that, Froilan Trestiza handed to me my sim card telling me that they will be calling me in my house concerning my alleged balance.52 We agree with the appellate courts assessment that Trestizas acts were far from just being a mere driver. The series of events that transpired before, during, and after the kidnapping incident more than shows that Trestiza acted in concert with his co-accused in committing the crime. Conspiracy may be implied if it is proved that two or more persons aimed their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent of each other, were, in fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment.53 Trestizas civil liability is joint and several with Manrique and Pineda. They are lia ble for the P120,000 taken from Navarro and the P180,000 raised by Yu. In line with prevailing jurisprudence,54 Trestiza is also liable for P75,000 as civil indemnity which is awarded if the crime warrants the imposition of death penalty; P75,000 as moral damages because the victim is assumed to have suffered moral injuries, without need of proof; and P30,000 as exemplary damages. WHEREFORE, we DENY the petition. The Decision of the Court of Appeals in CA-G.R. H.C. No. 03119 promulgated on 30 June 2009, as well as the Resolution promulgated on 11 June 2010, is AFFIRMED with MODIFICATION. Froilan L. Trestiza is guilty beyond reasonable doubt of Kidnapping in Criminal Case No. 02-3393 and is sentenced to suffer the penalty of reclusion perpetua, as well as the accessory penalties provided by law. In addition to the restitution of P300,000 for the ransom, Trestiza is ordered to pay Lawrence Yu and Irma Navarro P75,000 as civil indemnity, P75,000 as moral damages, and P30,000 as exemplary damages. Costs against Froilan L. Trestiza. SO ORDERED. ANTONIO T. CARPIO Associate Justice WE CONCUR: ARTURO D. BRION Associate Justice JOSE PORTUGAL PEREZ Associate Justice MARIA LOURDES P. A. SERENO Associate Justice

BIENVENIDO L. REYES Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO Associate Justice Chairperson CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes
*

Sometimes referred to as "Loriemar" in the records. Under Rule 45 of the 1997 Rules of Civil Procedure and Rule 122 of the Revised Rules of Criminal Procedure.

Rollo, pp. 2-26. Penned by Associate Justice Andres B. Reyes, Jr., with Associate Justices Fernanda Lampas Peralta and Apolinario D. Bruselas, Jr., concurring.
2

Id. at 31-32. Penned by Associate Justice Andres B. Reyes, Jr., with Associate Justices Fernanda Lampas Peralta and Apolinario D. Bruselas, Jr., concurring.
3 4

CA rollo, pp. 58-73. Penned by Judge Zenaida T. Galapate-Laguilles.

Records, pp. 2-3. Signed by 2nd Assistant City Prosecutor Andres N. Marcos, an unnamed Review Prosecutor, and Senior State Prosecutor Leo B. Dacera III.
5 6Id.

at 6. Signed by 2nd Assistant City Prosecutor Andres N. Marcos, Assistant City Prosecutor Melquiades I. Mutiangpili, Review Prosecutor Rodolfo C. Lalin, and Senior State Prosecutor Leo B. Dacera III.
7

Id. at 530-533. Penned by Judge Zenaida T. Galapate-Laguilles. Id. at 534-545. Penned by Judge Zenaida T. Galapate-Laguilles. Id. at 550-551. Id. at 601-602. Id. at 628. Id. at 650, 656-657. Id. at 659. Id. at 565-584. Id. at 611-622. Id. at 637-643. Id. at 644-647.

10

11

12

13

14

15

16

17

18

Id. at 656-657. CA rollo, pp. 59-60. Italics in the original. Records, p. 671. Id. at 681. Id. at 688. CA rollo, pp. 61-69. Italics in the original. Id. at 58-73. Id. at 71-72. Id. at 73. Records, p. 1093. Id. at 1123-1131. Id. at 1157-1161. CA rollo, p. 75. Id. at 76. Id. at 89. Rollo, pp. 25-26. CA rollo, pp. 609-633. Id. at 653-663. Id. at 665-667. Id. at 672-673. Id. at 676. Id. at 701-704. Id. at 687-699. Rollo, pp. 59-122. Id. at 66-87. TSN, 23 November 2004, pp. 5-41 (PO3 Rosauro P. Almonte). Records, pp. 565-584. De Asis v. Hon. Romero, 148-B Phil. 710, 716-717 (1971). Citations omitted.

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

G.R. No. 102140, 22 April 1994, 231 SCRA 701, 710 citing People v. Briones, G.R. No. 90319, 15 October 1991, 202 SCRA 708.
46

People v. Calimlim, 416 Phil. 403, 420 (2001). See also People v. De Guzman, G.R. Nos. 98321- 24, 30 June 1993, 224 SCRA 93; People v. De Guia, G.R. Nos. 107200-03, 9 November 1993, 227 SCRA 614; People v. Lopez, 315 Phil. 59 (1995); People v. Conde, 408 Phil. 532 (2001).
47 48

People v. Manlulu, supra. People v. Tonog, Jr., G.R. No. 144497, 29 June 2004, 433 SCRA 139, 153-154. See Luis B. Reyes, 2 The Revised Penal Code: Criminal Law 542 (1998). The following are the elements of the crime: 1. That the offender is a private individual. 2. That he kidnaps or detains another, or in any other manner deprives the latter of his liberty. 3. That the act of detention or kidnapping must be illegal. 4. That in the commission of the offense, any of the following circumstances is present: (a) That the kidnapping or detention lasts for more than 3 days; (b) That it is committed simulating public authority; (c) That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) That the person detained is a minor, female or a public officer.

49

50

51

359 Phil. 928, 943 (1998). TSN, 11 July 2005, pp. 13-15, 20-21, 48-51, 53-54, 81-82. People v. Pagalasan, 452 Phil. 341, 363 (2003) paraphrasing Regina v. Murphy, 172 Eng. Rep. 502 (1837). People v. Bautista, G.R. No. 188601, 29 June 2010, 622 SCRA 524. Citations omitted.

52

53

54

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 201363 March 18, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. NAZARENO VILLAREAL y LUALHATI, Accused-Appellant. DECISION PERLAS-BERNABE, J.: This is an appeal from the May 25, 2011 Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 31320 which affirmed in toto the December 11, 2007 Decision2 of the Regional Trial Court of Caloocan City, Branch 123 (RTC), convicting appellant Nazareno Villareal y Lualhati (appellant) of violation of Section 11, Article II of Republic Act No. 9165 3 (RA 9165) and sentencing him to suffer the penalty of imprisonment for twelve (12) years and one (1) day to fourteen (14) years and eight (8) months and to pay a fine ofP300,000.00. The Factual Antecedents On December 25, 2006 at around 11:30 in the morning, as PO3 Renato de Leon (PO3 de Leon) was driving his motorcycle on his way home along 5th Avenue, he saw appellant from a distance of about 8 to 10 meters, holding and scrutinizing in his hand a plastic sachet of shabu. Thus, PO3 de Leon, a member of the Station Anti-Illegal Drugs-Special Operation Unit (SAID-SOU) in Caloocan City, alighted from his motorcycle and approached the appellant whom he recognized as someone he had previously arrested for illegal drug possession.4 Upon seeing PO3 de Leon, appellant tried to escape but was quickly apprehended with the help of a tricycle driver. Despite appellants attempts to resist arrest, PO3 de Leon was able to board appellant onto his motorcycle and confiscate the plastic sachet of shabu in his possession. Thereafter, PO3 de Leon brought appellant to the 9th Avenue Police Station to fix his handcuffs, and then they proceeded to the SAID-SOU office where PO3 de Leon marked the seized plastic sachet with "RZL/NV 12-25-06," representing his and appellants initials and the date of the arrest.5 Subsequently, PO3 de Leon turned over the marked evidence as well as the person of appellant to the investigator, PO2 Randulfo Hipolito (PO2 Hipolito) who, in turn, executed an acknowledgment receipt 6 and prepared a letter request7 for the laboratory examination of the seized substance. PO2 Hipolito personally delivered the request and the confiscated item to the Philippine National Police (PNP) Crime Laboratory, which were received by Police Senior Inspector Albert Arturo (PSI Arturo), the forensic chemist.8 Upon qualitative examination, the plastic sachet, which contained 0.03 gram of white crystalline substance, tested positive for methylamphetamine hydrochloride, a dangerous drug.9 Consequently, appellant was charged with violation of Section 11, Article II of RA 9165 for illegal possession of dangerous drugs in an Information10 which reads: That on or about the 25th day of December, 2006 in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and feloniously have in his possession, custody and control, METHYLAMPHETAMINE HYDROCHLORIDE (Shabu) weighing 0.03 gram which, when subjected to chemistry examination gave positive result of METHYLAMPHETAMIME HYDROCHLORIDE, a dangerous drug. CONTRARY TO LAW. When arraigned, appellant, assisted by counsel de oficio, entered a plea of not guilty to the offense charged. 11

In his defense, appellant denied PO3 de Leons allegations and instead claimed that on the date and time of the incident, he was walking alone along Avenida, Rizal headed towards 5th Avenue when someone who was riding a motorcycle called him from behind. Appellant approached the person, who turned out to be PO3 de Leon, who then told him not to run, frisked him, and took his wallet which contained P1,000.00.12 Appellant was brought to the 9th Avenue police station where he was detained and mauled by eight other detainees under the orders of PO3 de Leon. Subsequently, he was brought to the Sangandaan Headquarters where two other police officers, whose names he recalled were "Michelle" and "Hipolito," took him to the headquarters firing range. There, "Michelle" and "Hipolito" forced him to answer questions about a stolen cellphone, firing a gun right beside his ear each time he failed to answer and eventually mauling him when he continued to deny knowledge about the cellphone.13 Thus, appellant sustained head injuries for which he was brought to the Diosdado Macapagal Hospital for proper treatment.14 The following day, he underwent inquest proceedings before one Fiscal Guiyab, who informed him that he was being charged with resisting arrest and "Section 11."15 The first charge was eventually dismissed. The RTC Ruling After trial on the merits, the RTC convicted appellant as charged upon a finding that all the elements of the crime of illegal possession of dangerous drugs have been established, to wit: (1) the appellant is in possession of an item or object which is identified to be a prohibited drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possesses said drug. Finding no ill motive on the part of PO3 de Leon to testify falsely against appellant, coupled with the fact that the former had previously arrested the latter for illegal possession of drugs under Republic Act No. 642516 (RA 6425), the RTC gave full faith and credit to PO3 de Leons testimony. Moreover, the RTC found the plain view doctrine to be applicable, as the confiscated item was in plain view of PO3 de Leon at the place and time of the arrest. On the other hand, the RTC gave scant consideration to the defenses of denial and frame-up proffered by the appellant, being uncorroborated, and in the light of the positive assertions of PO3 de Leon. It refused to give credence to appellants claim that PO3 de Leon robbed him of his money, since he failed to bring the incident to the attention of PO3 de Leons superiors or to institute any action against the latter. Consequently, the RTC sentenced appellant to suffer the penalty of imprisonment of twelve (12) years and one (1) day to fourteen (14) years and eight (8) months and to pay a fine of P300,000.00. The CA Ruling In its assailed Decision, the CA sustained appellants conviction, finding "a clear case of in flagrante delicto warrantless arrest"17 as provided under Section 5, Rule 113 of the Revised Rules of Criminal Procedure. The CA held that appellant "exhibited an overt act or strange conduct that would reasonably arouse suspicion," 18 aggravated by the existence of his past criminal citations and his attempt to flee when PO3 de Leon approached him. Citing jurisprudence, the appellate court likewise ruled that the prosecution had adequately shown the continuous and unbroken chain of custody of the seized item, from the time it was confiscated from appellant by PO3 de Leon, marked at the police station, turned over to PO2 Hipolito and delivered to the crime laboratory, where it was received by PSI Arturo, the forensic chemist, up to the time it was presented in court for proper identification. The Issue The sole issue advanced before the Court for resolution is whether the CA erred in affirming in toto the RTCs Decision convicting appellant of the offense charged. The Ruling of the Court The appeal is meritorious. Section 5, Rule 113 of the Revised Rules of Criminal Procedure lays down the basic rules on lawful warrantless arrests, either by a peace officer or a private person, as follows: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. xxx For the warrantless arrest under paragraph (a) of Section 5 to operate, two elements must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. 19 On the other hand, paragraph (b) of Section 5 requires for its application that at the time of the arrest, an offense had in fact just been committed and the arresting officer had personal knowledge of facts indicating that the appellant had committed it. 20 In both instances, the officers personal knowledge of the fact of the commis sion of an offense is absolutely required. Under paragraph (a), the officer himself witnesses the crime while under paragraph (b), he knows for a fact that a crime has just been committed. In sustaining appellants conviction in this case, the appellate co urt ratiocinated that this was a clear case of an "in flagrante delicto warrantless arrest" under paragraphs (a) and (b) of Section 5, Rule 113 of the Revised Rules on Criminal Procedure, as above-quoted. The Court disagrees. A punctilious assessment of the factual backdrop of this case shows that there could have been no lawful warrantless arrest. A portion of PO3 de Leons testimony on direct examination in court is revelatory: FISCAL LARIEGO: While you were there at 5th Avenue, was there anything unusual that transpired? PO3 DE LEON: Yes Maam. Q: What was this incident? A: While I was on board my motorcycle on my home, I saw a man looking at the shabu in his hand, Maam. Q: And exactly what time was this? A: Around 11:30 in the morning, Maam. Q: How far were you from this person that you said was verifying something in his hand? A: Eight to ten meters, Maam. Q: What exactly did you see he was verifying? A: The shabu that he was holding, Maam. Q: After seeing what the man was doing, what did you do next? A: I alighted from my motorcycle and approached him, Maam. Q: In the first place why do you say that what he was examining and holding in his hand was a shabu? A: Because of the numerous arrests that I have done, they were all shabu, Maam. 21 (Underscoring supplied)

On the basis of the foregoing testimony, the Court finds it inconceivable how PO3 de Leon, even with his presumably perfect vision, would be able to identify with reasonable accuracy, from a distance of about 8 to 10 meters and while simultaneously driving a motorcycle, a negligible and minuscule amount of powdery substance (0.03 gram) inside the plastic sachet allegedly held by appellant. That he had previously effected numerous arrests, all involving shabu, is insufficient to create a conclusion that what he purportedly saw in appellants hands was indeed shabu. Absent any other circumstance upon which to anchor a lawful arrest, no other overt act could be properly attributed to appellant as to rouse suspicion in the mind of PO3 de Leon that he (appellant) had just committed, was committing, or was about to commit a crime, for the acts per se of walking along the street and examining something in on es hands cannot in any way be considered criminal acts. In fact, even if appellant had been exhibiting unusual or strange acts, or at the very least appeared suspicious, the same would not have been sufficient in order for PO3 de Leon to effect a lawful warrantless arrest under paragraph (a) of Section 5, Rule 113. Neither has it been established that the rigorous conditions set forth in paragraph (b) of Section 5, Rule 113 have been complied with, i.e., that an offense had in fact just been committed and the arresting officer had personal knowledge of facts indicating that the appellant had committed it. The factual circumstances of the case failed to show that PO3 de Leon had personal knowledge that a crime had been indisputably committed by the appellant. It is not enough that PO3 de Leon had reasonable ground to believe that appellant had just committed a crime; a crime must in fact have been committed first, which does not obtain in this case. Without the overt act that would pin liability against appellant, it is therefore clear that PO3 de Leon was merely impelled to apprehend appellant on account of the latters previous charge 22 for the same offense. The CA stressed this point when it said: It is common for drugs, being illegal in nature, to be concealed from view.1wphi1 PO3 Renato de Leon saw appellant holding and scrutinizing a piece of plastic wrapper containing a white powderly substance. PO3 Renato de Leon was quite familiar with appellant, having arrested him twice before for the same illegal possession of drug. It was not just a hollow suspicion. The third time around, PO3 de Leon had reasonably assumed that the piece of plastic wrapper appellant was holding and scrutinizing also contained shabu as he had personal knowledge of facts regarding appellants person and past criminal record. He would have been irresponsible to just wait and see and give appellant a chance to scamper away. For his part, appellant being, in fact, in possession of illegal drug, sensing trouble from an equally familiar face of authority, ran away. Luckily, however, PO3 de Leon caught up with him through the aid of a tricycle driver. Appellants act of running away, indeed, validated PO3 de Leons reasonable suspicion that appellant was actually in possession of illegal drug. x x x23 However, a previous arrest or existing criminal record, even for the same offense, will not suffice to satisfy the exacting requirements provided under Section 5, Rule 113 in order to justify a lawful warrantless arrest. "Personal knowledge" of the arresting officer that a crime had in fact just been committed is required. To interpret "personal knowledge" as referring to a persons reputation or past criminal citations would create a dangerous precedent and unnecessarily stretch the authority and power of police officers to effect warrantless arrests base d solely on knowledge of a persons previous criminal infractions, rendering nugatory the rigorous requisites laid out under Section 5. It was therefore error on the part of the CA to rule on the validity of appellants arrest based on "personal knowledge of facts regarding appellants person and past criminal record," as this is unquestionably not what "personal knowledge" under the law contemplates, which must be strictly construed.24 Furthermore, appellants act of darting away when PO3 de Leon approached him should not be construed against him. Flight per se is not synonymous with guilt and must not always be attributed to ones consciousness of guilt. 25 It is not a reliable indicator of guilt without other circumstances,26 for even in high crime areas there are many innocent reasons for flight, including fear of retribution for speaking to officers, unwillingness to appear as witnesses, and fear of being wrongfully apprehended as a guilty party.27 Thus, appellants attempt to run away from PO3 de Leon is susceptible of various explanations; it could easily have meant guilt just as it could likewise signify innocence. In fine, appellants acts of walking along the street and holding something in his hands, even if they appeared to be dubious, coupled with his previous criminal charge for the same offense, are not by themselves sufficient to incite suspicion of criminal activity or to create probable cause enough to justify a warrantless arrest under Section 5 abovequoted. "Probable cause" has been understood to mean a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged.28 Specifically with respect to arrests, it is such facts and circumstances which would lead a reasonably

discreet and prudent man to believe that an offense has been committed by the person sought to be arrested, 29 which clearly do not obtain in appellants case. Thus, while it is true that the legality of an arrest depends upon the reasonable discretion of the officer or functionary to whom the law at the moment leaves the decision to characterize the nature of the act or deed of the person for the urgent purpose of suspending his liberty,30 it cannot be arbitrarily or capriciously exercised without unduly compromising a citizens constitutionally-guaranteed right to liberty. As the Court succinctly explained in the case of People v. Tudtud: 31 The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection. Consequently, there being no lawful warrantless arrest, the shabu purportedly seized from appellant is rendered inadmissible in evidence for being the proverbial fruit of the poisonous tree. As the confiscated shabu is the very corpus delicti of the crime charged, appellant must be acquitted and exonerated from all criminal liability. WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 31320 is REVERSED and SET ASIDE. Appellant Nazareno Villareal y Lualhati is ACQUITTED on reasonable doubt of the offense charged and ordered immediately released from detention, unless his continued confinement is warranted by some other cause or ground. SO ORDERED. ESTELA M. PERLAS-BERNABE Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice Chairperson ARTURO D. BRION Associate Justice MARIANO C. DEL CASTILLO Associate Justice JOSE PORTUGAL PEREZ Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. MARIA LOURDES P. A. SERENO Chief Justice

Footnotes Rollo, pp. 3-20. Penned by Associate Justice Amy C. Lazaro-Javier, with Associate Justices Rebecca De GuiaSalvador and Normandie B. Pizarro, concurring.
1 2

CA rollo, pp. 14-22. Penned by Judge Edmundo T. Acuna. Otherwise known as the Comprehensive Dangerous Drugs Act of 2002. TSN, May 8, 2007, pp. 2-4. Id. at 5-7; TSN, July 3, 2007, p. 3. Exhibit "E," folder of exhibits, p. 4. Exhibit "A," folder of exhibits, p. 1. TSN, July 31, 2007, pp. 2-5; TSN, June 19, 2007, pp. 4-6. Exhibit "C," folder of exhibits, p. 2. Records, p. 2. Id. at 10. TSN, August 21, 2007, pp. 2-4. Id. at 4-7. TSN, September 11, 2007, pp. 8-9. Exhibit "I," folder of exhibits, p. 7. TSN, August 21, 2007, pp. 8-9. Otherwise known as The Dangerous Drugs Act of 1972. Rollo, p. 10. Id.

10

11

12

13

14

15

16

17

18

Valdez v. People, G.R. No. 170180, November 23, 2007, 538 SCRA 611, 624, citing People v. Tudtud, 458 Phil. 752, 775 (2003).
19 20

People v. Cuizon, G.R. No. 109287, April 18, 1996, 256 SCRA 325, 341. TSN, May 8, 2007, p. 3. Exhibit "H," folder of exhibits, p. 8. Rollo, p. 9. See People v. Tudtud, supra note 19, at 773. Valdez v. People, supra note 19, citing People v. Lopez, 371 Phil. 852, 862 (1999).

21

22

23

24

25

26

Id., citing People v. Shabaz, 424 Mich. 42, 378 N.W.2d 451 (1985). State v. Nicholson, 188 S.W.3d 649 (Tenn. 2006). People v. Chua Ho San @Tsay Ho San, 367 Phil. 703, 717 (1999). Id., citing Joaquin G. Bernas, S.J., The Constitution of the Philippines: A Commentary, 85 (1st ed. 1987). People v. Ramos, 264 Phil. 554, 568 (1990). Supra note 24, at 774.

27

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29

30

31

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 159823 February 18, 2013

TEODORO A. REYES, Petitioner, vs. ETTORE ROSSI, Respondent. DECISION BERSAMIN, J.: The rescission of a contract of sale is not a prejudicial question that will warrant the suspension of the criminal proceedings commenced to prosecute the buyer for violations of the Bouncing Checks Law (Batas Pambansa Blg. 22) arising from the dishonor of the checks the buyer issued in connection with the sale. Antecedents On October 31, 1997, petitioner Teodoro A. Reyes (Reyes) and Advanced Foundation Construction Systems Corporation (Advanced Foundation), represented by its Executive Project Director, respondent Ettore Rossi (Rossi), executed a deed of conditional sale involving the purchase by Reyes of equipment consisting of a Warman Dredging Pump HY 300A worthP10,000,000.00. The parties agreed therein that Reyes would pay the sum of P3,000,000.00 as downpayment, and the balance of P7,000,000.00 through four post-dated checks. Reyes complied, but in January 1998, he requested the restructuring of his obligation under the deed of conditional sale by replacing the four post-dated checks with nine postdated checks that would include interest at the rate of P25,000.00/month accruing on the unpaid portion of the obligation on April 30, 1998, June 30, 1998, July 31, 1998, September 30, 1998 and October 31, 1998.1 Advanced Foundation assented to Reyes request, and returned the four checks. In turn, Reyes issued and delivered the following nine postdated checks in the aggregate sum of P7,125,000.00 drawn against the United Coconut Planters Bank,2to wit: Check No. 72807 79125 72802 72808 72809 72801 72810 72811 72903 Date April 30, 1998 May 1, 1998 May 30, 1998 June 30, 1998 July 31, 1998 August 31, 1998 Amount P 25,000.00 1,000,000.00 2,000,000.00 25,000.00 25,000.00 2,000,000.00

September 30, 1998 25,000.00 October 31, 1998 November 30, 1998 25,000.00 2,000,000.00

Rossi deposited three of the post-dated checks (i.e., No. 72807, No. 79125 and No. 72808) on their maturity dates in Advanced Foundations bank account at the PCI Bank in Makati. Two of the checks were denied payment ostensibly upon Reyes instructions to stop their payment, while the third ( i.e., No. 72802) was dishonored for insufficiency of funds.3

Rossi likewise deposited two more checks (i.e., No. 72809 and No. 72801) in Advanced Foundations account at the PCI Bank in Makati, but the checks were returned with the notation Account Closed stamped on them. He did not anymore deposit the three remaining checks on the assumption that they would be similarly dishonored.4 In the meanwhile, on July 29, 1998, Reyes commenced an action for rescission of contract and damages in the Regional Trial Court in Quezon City (RTC). His complaint, docketed as Civil Case No. Q98-35109 and entitled Teodoro A. Reyes v. Advanced Foundation Construction Systems Corporation , sought judgment declaring the deed of conditional sale "rescinded and of no further force and effect," and ordering Advanced Foundation to return the P3,000,000.00 downpayment with legal interest from June 4, 1998 until fully paid; and to pay to him attorneys fees, and various kinds and amounts of damages.5 On September 8, 1998, Rossi charged Reyes with five counts of estafa and five counts of violation of Batas Pambansa Blg. 22 in the Office of the City Prosecutor of Makati for the dishonor of Checks No. 72807, No. 72808, No. 72801, No. 72809 and No. 79125. Another criminal charge for violation of Batas Pambansa Blg. 22 was lodged against Reyes in the Office of the City Prosecutor of Quezon City for the dishonor of Check No. 72802. 6 On September 29, 1998, Reyes submitted his counter-affidavit in the Office of the City Prosecutor of Makati, 7 claiming that the checks had not been issued for any valuable consideration; that he had discovered from the start of using the dredging pump involved in the conditional sale that the Caterpillar diesel engine powering the pump had been rated at only 560 horsepower instead of the 1200 horsepower Advanced Foundation had represented to him; that welding works on the pump had neatly concealed several cracks; that on May 6, 1998 he had written to Advanced Foundation complaining about the misrepresentations on the specifications of the pump and demanding documentary proof of Advanced Foundations ownership of the pump; that he had caused the order to stop the payment of three checks ( i.e., No. 72806, No. 72807 and No. 79125); that Advanced Foundation had replied to his letter on May 8, 1998 by saying that the pump had been sold to him on an as is, where is basis; that he had then sent another letter to Advanced Foundation on May 18, 1998 to reiterate his complaints and the request for proper documentation of ownership; that he had subsequently discovered other hidden defects, prompting him to write another letter; and that instead of attending to his complaints and request, Advanced Foundations lawyers had threatened him with leg al action. At the same time, Reyes assailed the jurisdiction of the Office of the City Prosecutor of Makati over the criminal charges against him on the ground that he had issued the checks in Quezon City; as well as argued that the Office of the City Prosecutor of Makati should suspend the proceedings because of the pendency in the RTC of the civil action for rescission of contract that posed a prejudicial question as to the criminal proceedings. 8 On November 20, 1998, the Assistant City Prosecutor handling the preliminary investigation recommended the dismissal of the charges of estafa and the suspension of the proceedings relating to the violation of Batas Pambansa Blg. 22 based on a prejudicial question.9 On January 5, 1999, the City Prosecutor of Makati approved the recommendation of the handling Assistant City Prosecutor,10 stating: WHEREFORE, premises considered, the complaint for Estafa is respectfully recommended to be dismissed, as upon approval, it is hereby dismissed. Further, it is respectfully recommended that the proceedings in the charge for Violation of Batas Pambansa Bilang 22 against the respondent be suspended until the prejudicial question raised in Civil Case Q-98-35109 for Rescission of Contract and Damages which is now pending with the RTC of Quezon City, Branch 224, has been duly resolved. Rossi appealed the resolution of the City Prosecutor to the Department of Justice, but the Secretary of Justice, by resolution of July 24, 2001, denied Rossis petition f or review. After the denial of his motion for reconsideration on April 29, 2002, Rossi challenged the resolutions of the Secretary of Justice by petition for certiorari in the CA. Ruling of the CA In the petition for certiorari, Rossi insisted that the Secretary of Justice had committed grave abuse of discretion amounting to lack or excess of jurisdiction in upholding the suspension of the criminal proceedings by the City Prosecutor of Makati on account of the existence of a prejudicial question, and in sustaining the dismissal of the complaints for estafa.

On May 30, 2003, the CA promulgated its assailed decision,11 to wit: WHEREFORE, the foregoing considered, the assailed resolution is hereby MODIFIED and the instant petition isGRANTED in so far as the issue of the existence of prejudicial question is concerned. Accordingly, the order suspending the preliminary investigation in I.S. No. 98-40024-29 is REVERSED and SET ASIDE, and the dismissal of the complaint for estafa is AFFIRMED. SO ORDERED. Issues Hence, this appeal by Reyes. Reyes asserts that the CA erred in ruling that there was no prejudicial question that warranted the suspension of the criminal proceedings against him; that the petition suffered fatal defects that merited its immediate dismissal; that the CA was wrong in relying on the pronouncements in Balgos, Jr. v. Sandiganbayan12 and Umali v. Intermediate Appellate Court13 because the factual backgrounds thereat were not similar to that obtaining here; and that the Secretary of Justice did not commit any grave abuse of discretion amounting to lack or excess of jurisdiction. In his comment,14 Rossi counters that the petition for review should be outrightly dismissed because of its fatal defect; that the CA did not err in ruling that the action for rescission of contract did not pose a prejudicial question that would suspend the criminal proceedings. Reyes submitted a reply,15 declaring that the defect in the affidavit of service attached to his petition for review had been due to oversight; that he had substantially complied with the rules; that there existed a prejudicial question that could affect the extent of his liability in light of Supreme Court Administrative Circular No. 12-2000; and that the CA erred in finding that the Secretary of Justice committed grave abuse of discretion. To be resolved is whether or not the civil action for rescission of the contract of sale raised a prejudicial question that required the suspension of the criminal prosecution for violation of Batas Pambansa Blg. 22. Ruling The petition for review is without merit. A prejudicial question generally comes into play in a situation where a civil action and a criminal action are both pending, and there exists in the former an issue that must first be determined before the latter may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case.16 The rationale for the suspension on the ground of a prejudicial question is to avoid conflicting decisions.17 Two elements that must concur in order for a civil case to be considered a prejudicial question are expressly stated in Section 7, Rule 111 of the 2000 Rules of Criminal Procedure, to wit: Section 7. Elements of prejudicial question. The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. In Sabandal v. Tongco,18 the concept of prejudicial question is explained in this wise: For a civil action to be considered prejudicial to a criminal case as to cause the suspension of the criminal proceedings until the final resolution of the civil, the following requisites must be present: (1) the civil case involves facts intimately related to those upon which the criminal prosecution would be based; (2) in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined; and (3) jurisdiction to try said question must be lodged in another tribunal. If both civil and criminal cases have similar issues or the issue in one is intimately related to the issues raised in the other, then a prejudicial question would likely exist, provided the other element or characteristic is satisfied. It must appear not only that the civil case involves the same facts upon which the criminal prosecution would be based, but also that the

resolution of the issues raised in the civil action would be necessarily determinative of the guilt or innocence of the accused. If the resolution of the issue in the civil action will not determine the criminal responsibility of the accused in the criminal action based on the same facts, or there is no necessity "that the civil case be determined first before taking up the criminal case," therefore, the civil case does not involve a prejudicial question. Neither is there a prejudicial question if the civil and the criminal action can, according to law, proceed independently of each other. Contending that the rescission of the contract of sale constitutes a prejudicial question, Reyes posits that the resolution of the civil action will be determinative of whether or not he was criminally liable for the violations of Batas Pambansa Blg. 22. He states that if the contract would be rescinded, his obligation to pay under the conditional deed of sale would be extinguished, and such outcome would necessarily result in the dismissal of the criminal proceedings for the violations ofBatas Pambansa Blg. 22. The action for the rescission of the deed of sale on the ground that Advanced Foundation did not comply with its obligation actually seeks one of the alternative remedies available to a contracting party under Article 1191 of the Civil Code, to wit: Article 1191. The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him. The injured party may choose between the fulfilment and the rescission of the obligation, with the payment of damages in either case. He may also seek rescission, even after he has chosen fulfilment, if the latter should become impossible. The court shall decree the rescission claimed, unless there be just cause authorizing the fixing of a period. This is understood to be without prejudice to the rights of third persons who have acquired the thing, in accordance with Articles 1385 and 1388 and the Mortgage Law. Article 1191 of the Civil Code recognizes an implied or tacit resolutory condition in reciprocal obligations. The condition is imposed by law, and applies even if there is no corresponding agreement thereon between the parties. The explanation for this is that in reciprocal obligations a party incurs in delay once the other party has performed his part of the contract; hence, the party who has performed or is ready and willing to perform may rescind the obligation if the other does not perform, or is not ready and willing to perform.19 It is true that the rescission of a contract results in the extinguishment of the obligatory relation as if it was never created, the extinguishment having a retroactive effect. The rescission is equivalent to invalidating and unmaking the juridical tie, leaving things in their status before the celebration of the contract.20 However, until the contract is rescinded, the juridical tie and the concomitant obligations subsist. To properly appreciate if there is a prejudicial question to warrant the suspension of the criminal actions, reference is made to the elements of the crimes charged. The violation of Batas Pambansa Blg. 22 requires the concurrence of the following elements, namely: (1) the making, drawing, and issuance of any check to apply for account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.21 The issue in the criminal actions upon the violations of Batas Pambansa Blg. 22 is, therefore, whether or not Reyes issued the dishonoured checks knowing them to be without funds upon presentment. On the other hand, the issue in the civil action for rescission is whether or not the breach in the fulfilment of Advanced Foundations obligation warranted the rescission of the conditional sale. If, after trial on the merits in the civil action, Advanced Foundation would be found to have committed material breach as to warrant the rescission of the contract, such result would not necessarily mean that Reyes would be absolved of the criminal responsibility for issuing the dishonored checks because, as the aforementioned elements show, he already committed the violations upon the dishonor of the checks that he had issued at a time when the conditional sale was still fully binding upon the parties. His obligation to fund the checks or to make arrangements for them with the drawee bank should not be tied up to the future event of extinguishment of the obligation under the contract of sale through rescission. Indeed, under Batas Pambansa Blg. 22, the mere issuance of a worthless check was already the offense in itself. Under such circumstances, the criminal proceedings for the violation of Batas Pambansa Blg. 22 could proceed despite the pendency of the civil action for rescission of the conditional sale. Accordingly, we agree with the holding of the CA that the civil action for the rescission of contract was not determinative of the guilt or innocence of Reyes. We consider the exposition by the CA of its reasons to be appropriate enough, to wit:

xxxx We find merit in the petition. A careful perusal of the complaint for rescission of contract and damages reveals that the causes of action advanced by respondent Reyes are the alleged misrepresentation committed by the petitioner and AFCSC and their alleged failure to comply with his demand for proofs of ownership. On one hand, he posits that his consent to the contract was vitiated by the fraudulent act of the company in misrepresenting the condition and quality of the dredging pump. Alternatively, he claims that the company committed a breach of contract which is a ground for the rescission thereof. Either way, he in effect admits the validity and the binding effect of the deed pending any adjudication which nullifies the same. Indeed, under the Jaw on contracts, vitiated consent does not make a contract unenforceable but merely voidable, the remedy of which would be to annul the contract since voidable contracts produce legal effects until they are annulled. On the other hand, rescission of contracts in case of breach pursuant to Article 1191 of the Civil Code of the Philippines also presupposes a valid contract unless rescinded or annulled. As defined, a prejudicial question is one that arises in a case, the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. It comes into play generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case. In this light, it is clear that the pendency of the civil case does not bar the continuation of the proceedings in the preliminary investigation on the ground that it poses a prejudicial question. Considering that the contracts are deemed to be valid until rescinded, the consideration and obligatory effect thereof are also deemed to have been validly made, thus demandable. Consequently, there was no failure of consideration at the time when the subject checks were dishonored. (Emphasis supplied) xxxx WHEREFORE, the Court DENIES the petition for review; AFFIRMS the decision the Court of Appeals promulgated on May 30, 2003; and DIRECTS the petitioner to pay the costs of suit. SO ORDERED. LUCAS P. BERSAMIN Associate Justice WE CONCUR: MARIA LOURDES P. A. SERENO Chief Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice

BIENVENIDO L. REYES Associate Justice CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. MARIA LOURDES P. A. SERENO Chief Justice

Footnotes
1

Rollo, p. 27. Id. at 28. Id. Id. Id. at 39-43. Id. at 28. Id. at 48-51. Id. at 29. Id. at 52-55. Id. at 30.

10

Id. at 26-35; penned by Associate Justice Josefina Guevara-Salonga (retired), and concurred in by Associate Justice Rodrigo V. Cosico (retired) and Associate Justice Edgardo F. Sundiam (retired/deceased).
11

G.R. No. 85590, August 10, 1989, 176 SCRA 287 (Note, however, that this ruling was not mentioned in the decision of the CA).
12 13

G.R. No. 63198, June 21, 1990, 186 SCRA 680. Rollo, pp. 81-88. Id. at 94-100.

14

15

Jose v. Suarez, G.R. No. 176795, June 30, 2008, 556 SCRA 773, 781; Carlos v. Court of Appeals, G.R. No. 109887; February 10, 1997, 268 SCRA 25, 33; Tuanda v. Sandiganbayan (Third Division) , G.R. No. 110544, October 17, 1995, 249 SCRA 342, 351.
16 17

Beltran v. People, G.R. No. 137567, June 20, 2000, 334 SCRA 106, 110. G.R. No. 124498, October 5, 2001, 366 SCRA 567, 571-572. 4 Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines , 1987 Edition, p. 175. Id. at 180. Tan v. Mendez, Jr., G.R. No. 138669, June 6, 2002, 383 SCRA 202, 210.

18

19

20

21

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 157547 February 23, 2011

HEIRS OF EDUARDO SIMON, Petitioners, vs. ELVIN* CHAN AND THE COURT OF APPEALS, Respondent. DECISION BERSAMIN, J.: There is no independent civil action to recover the civil liability arising from the issuance of an unfunded check prohibited and punished under Batas Pambansa Bilang 22 (BP 22). Antecedents On July 11, 1997, the Office of the City Prosecutor of Manila filed in the Metropolitan Trial Court of Manila (MeTC) an information charging the late Eduardo Simon (Simon) with a violation of BP 22, docketed as Criminal Case No. 275381 entitled People v. Eduardo Simon. The accusatory portion reads: That sometime in December 1996 in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully and feloniously make or draw and issue to Elvin Chan to apply on account or for value Landbank Check No. 0007280 dated December 26, 1996 payable to cash in the amount of P336,000.00 said accused well knowing that at the time of issue she/he/they did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment within ninety (90) days from the date thereof was subsequently dishonored by the drawee bank for Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said Elvin Chan the amount of the check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. CONTRARY TO LAW. 1 More than three years later, or on August 3, 2000, respondent Elvin Chan commenced in the MeTC in Pasay City a civil action for the collection of the principal amount of P336,000.00, coupled with an application for a writ of preliminary attachment (docketed as Civil Case No. 915-00).2 He alleged in his complaint the following: xxx 2. Sometime in December 1996 defendant employing fraud, deceit, and misrepresentation encashed a check dated December 26, 1996 in the amount of P336,000.00 to the plaintiff assuring the latter that the check is duly funded and that he had an existing account with the Land Bank of the Philippines, xerox copy of the said check is hereto attached as Annex "A"; 3. However, when said check was presented for payment the same was dishonored on the ground that the account of the defendant with the Land Bank of the Philippines has been closed contrary to his representation that he has an existing account with the said bank and that the said check was duly funded and will be honored when presented for payment; 4. Demands had been made to the defendant for him to make good the payment of the value of the check, xerox copy of the letter of demand is hereto attached as Annex "B", but despite such demand defendant refused and continues to refuse to comply with plaintiffs valid demand; 5. Due to the unlawful failure of the defendant to comply with the plaintiffs valid demands, plaintiff has been compelled to retain the services of counsel for which he agreed to pay as reasonable attorneys fees the amount ofP50,000.00 plus additional amount of P2,000.00 per appearance.

ALLEGATION IN SUPPORT OF PRAYER FOR PRELIMINARY ATTACHMENT 6. The defendant as previously alleged has been guilty of fraud in contracting the obligation upon which this action is brought and that there is no sufficient security for the claims sought in this action which fraud consist in the misrepresentation by the defendant that he has an existing account and sufficient funds to cover the check when in fact his account was already closed at the time he issued a check; 7. That the plaintiff has a sufficient cause of action and this action is one which falls under Section 1, subparagraph (d), Rule 57 of the Revised Rules of Court of the Philippines and the amount due the plaintiff is as much as the sum for which the plaintiff seeks the writ of preliminary attachment; 8. That the plaintiff is willing and able to post a bond conditioned upon the payment of damages should it be finally found out that the plaintiff is not entitled to the issuance of a writ of preliminary attachment. 3 On August 9, 2000, the MeTC in Pasay City issued a writ of preliminary attachment, which was implemented on August 17, 2000 through the sheriff attaching a Nissan vehicle of Simon.4 On August 17, 2000, Simon filed an urgent motion to dismiss with application to charge plaintiffs attachment bond for damages,5 pertinently averring: xxx On the ground of litis pendentia, that is, as a consequence of the pendency of another action between the instant parties for the same cause before the Metropolitan Trial Court of Manila, Branch X (10) entitled "People of the Philippines vs. Eduardo Simon", docketed thereat as Criminal Case No. 275381-CR, the instant action is dismissable under Section 1, (e), Rule 16, 1997 Rules of Civil Procedure, xxx xxx While the instant case is civil in nature and character as contradistinguished from the said Criminal Case No. 915-00 in the Metropolitan Trial Court of Manila, Branch X (10), the basis of the instant civil action is the herein plaintiffs criminal complaint against defendant arising from a charge of violation of Batas Pambansa Blg. 22 as a consequence of the alleged dishonor in plaintiffs hands upon presentment for payment with drawee bank a Land Bank Check No. 0007280 dated December 26, 1996 in the amount of P336,000- drawn allegedly issued to plaintiff by defendant who is the accused in said case, a photocopy of the Criminal information filed by the Assistant City Prosecutor of Manila on June 11, 1997 hereto attached and made integral part hereof as Annex "1". It is our understanding of the law and the rules, that, "when a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his right to institute it separately xxx. On August 29, 2000, Chan opposed Simons urgent motion to dismiss with application to charge plaintiffs attachment bond for damages, stating: 1. The sole ground upon which defendant seeks to dismiss plaintiffs complaint is the alleged pendency of another action between the same parties for the same cause, contending among others that the pendency of Criminal Case No. 275381-CR entitled "People of the Philippines vs. Eduardo Simon" renders this case dismissable; 2. The defendant further contends that under Section 1, Rule 111 of the Revised Rules of Court, the filing of the criminal action, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action which the plaintiff does not contest; however, it is the submission of the plaintiff that an implied reservation of the right to file a civil action has already been made, first, by the fact that the information for violation of B.P. 22 in Criminal Case No. 2753841 does not at all make any allegation of damages suffered by the plaintiff nor is there any claim for recovery of damages; on top of this the plaintiff as private complainant in the criminal case, during the presentation of the prosecution evidence was not represented at all by a private prosecutor such that no evidence has been adduced by the prosecution on the criminal case to prove damages; all of these we respectfully submit demonstrate an effective implied reservation of the right of the plaintiff to file a separate civil action for damages;

3. The defendant relies on Section 3 sub-paragraph (a) Rule 111 of the Revised Rules of Court which mandates that after a criminal action has been commenced the civil action cannot be instituted until final judgment has been rendered in the criminal action; however, the defendant overlooks and conveniently failed to consider that under Section 2, Rule 111 which provides as follows: In the cases provided for in Articles 31, 32, 33, 34 and 2177 of the Civil Code of the Philippines, an independent civil action entirely separate and distinct from the criminal action, may be brought by the injured party during the pendency of criminal case provided the right is reserved as required in the preceding section. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. In as much as the case is one that falls under Art. 33 of the Civil Code of the Philippines as it is based on fraud, this action therefore may be prosecuted independently of the criminal action; 4. In fact we would even venture to state that even without any reservation at all of the right to file a separate civil action still the plaintiff is authorized to file this instant case because the plaintiff seeks to enforce an obligation which the defendant owes to the plaintiff by virtue of the negotiable instruments law. The plaintiff in this case sued the defendant to enforce his liability as drawer in favor of the plaintiff as payee of the check. Assuming the allegation of the defendant of the alleged circumstances relative to the issuance of the check, still when he delivered the check payable to bearer to that certain Pedro Domingo, as it was payable to cash, the same may be negotiated by delivery by who ever was the bearer of the check and such negotiation was valid and effective against the drawer; 5. Indeed, assuming as true the allegations of the defendant regarding the circumstances relative to the issuance of the check it would be entirely impossible for the plaintiff to have been aware that such check was intended only for a definite person and was not negotiable considering that the said check was payable to bearer and was not even crossed; 6. We contend that what cannot be prosecuted separate and apart from the criminal case without a reservation is a civil action arising from the criminal offense charged. However, in this instant case since the liability of the defendant are imposed and the rights of the plaintiff are created by the negotiable instruments law, even without any reservation at all this instant action may still be prosecuted; 7. Having this shown, the merits of plaintiffs complaint the application for damages against the bond is totally without any legal support and perforce should be dismissed outright. 6 On October 23, 2000, the MeTC in Pasay City granted Simons urgent motion to dismiss with application to charge plaintiffs attachment bond for damages,7 dismissing the complaint of Chan because: xxx After study of the arguments of the parties, the court resolves to GRANT the Motion to Dismiss and the application to charge plaintiffs bond for damages. For "litis pendentia" to be a ground for the dismissal of an action, the following requisites must concur: (a) identity of parties or at least such as to represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same acts; and (c) the identity in the two (2) cases should be such that the judgment, which may be rendered in one would, regardless of which party is successful, amount to res judicata in the other. xxx A close perusal of the herein complaint denominated as "Sum of Money" and the criminal case for violation of BP Blg. 22 would readily show that the parties are not only identical but also the cause of action being asserted, which is the recovery of the value of Landbank Check No. 0007280 in the amount of P336,000.00. In both civil and criminal cases, the rights asserted and relief prayed for, the reliefs being founded on the same facts, are identical. Plaintiffs claim that there is an effective implied waiver of his right to pursue this civil ca se owing to the fact that there was no allegation of damages in BP Blg. 22 case and that there was no private prosecutor during the presentation of prosecution evidence is unmeritorious. It is basic that when a complaint or criminal Information is filed, even without any allegation of damages and the intention to prove and claim them, the offended party has the right to prove and claim for them, unless a waiver or reservation is made or unless in the meantime, the offended party has instituted a separate civil action. xxx The over-all import of the said provision conveys that the waiver which includes indemnity under the Revised Penal Code, and damages arising under Articles 32, 33, and 34 of the Civil Code must be both clear and express. And this

must be logically so as the primordial objective of the Rule is to prevent the offended party from recovering damages twice for the same act or omission of the accused. Indeed, the evidence discloses that the plaintiff did not waive or made a reservation as to his right to pursue the civil branch of the criminal case for violation of BP Blg. 22 against the defendant herein. To the considered view of this court, the filing of the instant complaint for sum of money is indeed legally barred. The right to institute a separate civil action shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. xxx Even assuming the correctness of the plaintiffs submission that the herein case for sum of money is one based on fraud and hence falling under Article 33 of the Civil Code, still prior reservation is required by the Rules, to wit: "In the cases provided for in Articles 31, 32, 33, 34 and 2177 of the Civil Code of the Philippines, an independent civil action entirely separate and distinct from the criminal action, may be brought by the injured party during the pendency of criminal case provided the right is reserved as required in the preceding section. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence." xxx WHEREFORE, premises considered, the court resolves to: 1. Dismiss the instant complaint on the ground of "litis pendentia"; 2. Dissolve/Lift the Writ of Attachment issued by this court on August 14, 2000; 3. Charge the plaintiffs bond the amount of P336,000.00 in favor of the defendant for the damages sustained by the latter by virtue of the implementation of the writ of attachment; 4. Direct the Branch Sheriff of this Court to RESTORE with utmost dispatch to the defendants physical possession the vehicle seized from him on August 16, 2000; and 5. Direct the plaintiff to pay the defendant the sum of P5,000.00 by way of attorneys fees. SO ORDERED. Chans motion for reconsideration was denied on December 20, 2000, 8 viz: Considering that the plaintiffs arguments appear to be a mere repetition of hi s previous submissions, and which submissions this court have already passed upon; and taking into account the inapplicability of the ratio decidendi in the Tactaquin vs. Palileo case which the plaintiff cited as clearly in that case, the plaintiff therein expressly made a reservation to file a separate civil action, the Motion for Reconsideration is DENIED for lack of merit. SO ORDERED. On July 31, 2001, the Regional Trial Court (RTC) in Pasay City upheld the dismissal of Chans complaint, disposing: 9 WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED in toto. SO ORDERED. On September 26, 2001, Chan appealed to the Court of Appeals (CA) by petition for review,10 challenging the propriety of the dismissal of his complaint on the ground of litis pendentia. In his comment, 11 Simon countered that Chan was guilty of bad faith and malice in prosecuting his alleged civil claim twice in a manner that caused him (Simon) utter embarrassment and emotional sufferings; and that the dismissal of the civil case because of the valid ground of litis pendentia based on Section 1 (e), Rule 16 of the 1997 Rules of Civil Procedure was warranted.

On June 25, 2002, the CA promulgated its assailed decision,12 overturning the RTC, viz: xxx As a general rule, an offense causes two (2) classes of injuries. The first is the social injury produced by the criminal act which is sought to be repaired through the imposition of the corresponding penalty, and the second is the personal injury caused to the victim of the crime which injury is sought to be compensated through indemnity which is also civil in nature. Thus, "every person criminally liable for a felony is also civilly liable." The offended party may prove the civil liability of an accused arising from the commission of the offense in the criminal case since the civil action is either deemed instituted with the criminal action or is separately instituted. Rule 111, Section 1 of the Revised Rules of Criminal Procedure, which became effective on December 1, 2000, provides that: (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institute the civil action prior to the criminal action. Rule 111, Section 2 further states: After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. However, with respect to civil actions for recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission, the rule has been changed. In DMPI Employees Credit Association vs. Velez, the Supreme Court pronounced that only the civil liability arising from the offense charged is deemed instituted with the criminal action unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Speaking through Justice Pardo, the Supreme Court held: "There is no more need for a reservation of the right to file the independent civil action under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines. The reservation and waiver referred to refers only to the civil action for the recovery of the civil liability arising from the offense charged. This does not include recovery of civil liability under Articles 32, 33, 34, and 2176 of the Civil Code of the Philippines arising from the same act or omission which may be prosecuted separately without a reservation". Rule 111, Section 3 reads: Sec. 3. When civil action may proceed independently. In the cases provided in Articles 32, 33, 34, and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. The changes in the Revised Rules on Criminal Procedure pertaining to independent civil actions which became effective on December 1, 2000 are applicable to this case. Procedural laws may be given retroactive effect to actions pending and undetermined at the time of their passage. There are no vested rights in the rules of procedure. xxx Thus, Civil Case No. CV-94-124, an independent civil action for damages on account of the fraud committed against respondent Villegas under Article 33 of the Civil Code, may proceed independently even if there was no reservation as to its filing." It must be pointed that the abovecited case is similar with the instant suit. The complaint was also brought on allegation of fraud under Article 33 of the Civil Code and committed by the respondent in the issuance of the check which later bounced. It was filed before the trial court, despite the pendency of the criminal case for violation of BP 22 against the respondent. While it may be true that the changes in the Revised Rules on Criminal Procedure pertaining to independent

civil action became effective on December 1, 2000, the same may be given retroactive application and may be made to apply to the case at bench, since procedural rules may be given retroactive application. There are no vested rights in the rules of procedure. In view of the ruling on the first assigned error, it is therefore an error to adjudge damages in favor of the petitioner. WHEREFORE, the petition is hereby GRANTED. The Decision dated July 13, 2001 rendered by the Regional Trial Court of Pasay City, Branch 108 affirming the dismissal of the complaint filed by petitioner is hereby REVERSED and SET ASIDE. The case is hereby REMANDED to the trial court for further proceedings. SO ORDERED. On March 14, 2003, the CA denied Simons motion for reconsideration.13 Hence, this appeal, in which the petitioners submit that the CA erroneously premised its decision on the assessment that the civil case was an independent civil action under Articles 32, 33, 34, and 2176 of the Civil Code; that the CAs reliance on the ruling in DMPI Employees Credit Cooperative Inc. v. Velez 14 stretched the meaning and intent of the ruling, and was contrary to Sections 1 and 2 of Rule 111 of the Rules of Criminal Procedure; that this case was a simple collection suit for a sum of money, precluding the application of Section 3 of Rule 111 of the Rules of Criminal Procedure.15 In his comment,16 Chan counters that the petition for review should be denied because the petitioners used the wrong mode of appeal; that his cause of action, being based on fraud, was an independent civil action; and that the appearance of a private prosecutor in the criminal case did not preclude the filing of his separate civil action. Issue The lone issue is whether or not Chans civil action to recover the amount of the unfunded check (Civil Case No. 915 -00) was an independent civil action. Ruling The petition is meritorious. A Applicable Law and Jurisprudence on the Propriety of filing a separate civil action based on BP 22 The Supreme Court has settled the issue of whether or not a violation of BP 22 can give rise to civil liability in Banal v. Judge Tadeo, Jr.,17 holding: xxx Article 20 of the New Civil Code provides: Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Regardless, therefore, of whether or not a special law so provides, indemnification of the offended party may be had on account of the damage, loss or injury directly suffered as a consequence of the wrongful act of another. The indemnity which a person is sentenced to pay forms an integral part of the penalty imposed by law for the commission of a crime (Quemel v. Court of Appeals, 22 SCRA 44, citing Bagtas v. Director of Prisons, 84 Phil 692). Every crime gives rise to a penal or criminal action for the punishment of the guilty party, and also to civil action for the restitution of the thing, repair of the damage, and indemnification for the losses (United States v. Bernardo, 19 Phil 265). xxx

Civil liability to the offended party cannot thus be denied. The payee of the check is entitled to receive the payment of money for which the worthless check was issued. Having been caused the damage, she is entitled to recompense. Surely, it could not have been the intendment of the framers of Batas Pambansa Blg. 22 to leave the offended private party defrauded and empty-handed by excluding the civil liability of the offender, giving her only the remedy, which in many cases results in a Pyrrhic victory, of having to file a separate civil suit. To do so may leave the offended party unable to recover even the face value of the check due her, thereby unjustly enriching the errant drawer at the expense of the payee. The protection which the law seeks to provide would, therefore, be brought to naught. xxx However, there is no independent civil action to recover the value of a bouncing check issued in contravention of BP 22. This is clear from Rule 111 of the Rules of Court, effective December 1, 2000, which relevantly provides: Section 1. Institution of criminal and civil actions. - (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees therefor shall constitute a first lien on the judgment awarding such damages. Where the amount of damages, other than actual, is specified in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. Except as otherwise provided in these Rules, no filing fees shall be required for actual damages. No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. (1a) (b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed. 18 Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay the filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment. Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of the Rule governing consolidation of the civil and criminal actions. Section 3. When civil action may proceed independently. In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. The aforequoted provisions of the Rules of Court, even if not yet in effect when Chan commenced Civil Case No. 915-00 on August 3, 2000, are nonetheless applicable. It is axiomatic that the retroactive application of procedural laws does not violate any right of a person who may feel adversely affected, nor is it constitutionally objectionable. The reason is simply that, as a general rule, no vested right may attach to, or arise from, procedural laws.19 Any new rules may validly be made to apply to cases pending at the time of their promulgation, considering that no party to an action has a vested right in the rules of procedure,20 except that in criminal cases, the changes do not retroactively apply if they permit or require a lesser

quantum of evidence to convict than what is required at the time of the commission of the offenses, because such retroactivity would be unconstitutional for being ex post facto under the Constitution.21 Moreover, the application of the rule would not be precluded by the violation of any assumed vested right, because the new rule was adopted from Supreme Court Circular 57-97 that took effect on November 1, 1997. Supreme Court Circular 57-97 states: Any provision of law or Rules of Court to the contrary notwithstanding, the following rules and guidelines shall henceforth be observed in the filing and prosecution of all criminal cases under Batas Pambansa Blg. 22 which penalizes the making or drawing and issuance of a check without funds or credit: 1. The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to necessarily include the corresponding civil action, and no reservation to file such civil action separately shall be allowed or recognized.22 2. Upon the filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based upon the amount of the check involved which shall be considered as the actual damages claimed, in accordance with the schedule of fees in Section 7 (a) and Section 8 (a), Rule 141 of the Rules of Court as last amended by Administrative Circular No. 11-94 effective August 1, 1994. Where the offended party further seeks to enforce against the accused civil liability by way of liquidated, moral, nominal, temperate or exemplary damages, he shall pay the corresponding filing fees therefor based on the amounts thereof as alleged either in the complaint or information. If not so alleged but any of these damages are subsequently awarded by the court, the amount of such fees shall constitute a first lien on the judgment. 3. Where the civil action has heretofore been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with the pertinent procedure outlined in Section 2 (a) of Rule 111 governing the proceedings in the actions as thus consolidated. 4. This Circular shall be published in two (2) newspapers of general circulation and shall take effect on November 1, 1997. The reasons for issuing Circular 57-97 were amply explained in Hyatt Industrial Manufacturing Corporation v. Asia Dynamic Electrix Corporation,23 thus: xxx We agree with the ruling of the Court of Appeals that upon filing of the criminal cases for violation of B.P. 22, the civil action for the recovery of the amount of the checks was also impliedly instituted under Section 1(b) of Rule 111 of the 2000 Rules on Criminal Procedure. Under the present revised Rules, the criminal action for violation of B.P. 22 shall be deemed to include the corresponding civil action. The reservation to file a separate civil action is no longer needed. The Rules provide: Section 1. Institution of criminal and civil actions. (a) x x x (b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed. Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment.

Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions. 1avvphi1 The foregoing rule was adopted from Circular No. 57-97 of this Court. It specifically states that the criminal action for violation of B.P. 22 shall be deemed to include the corresponding civil action. It also requires the complainant to pay in full the filing fees based on the amount of the check involved. Generally, no filing fees are required for criminal cases, but because of the inclusion of the civil action in complaints for violation of B.P. 22, the Rules require the payment of docket fees upon the filing of the complaint. This rule was enacted to help declog court dockets which are filled with B.P. 22 cases as creditors actually use the courts as collectors. Because ordinarily no filing fee is charged in criminal cases for actual damages, the payee uses the intimidating effect of a criminal charge to collect his credit gratis and sometimes, upon being paid, the trial court is not even informed thereof. The inclusion of the civil action in the criminal case is expected to significantly lower the number of cases filed before the courts for collection based on dishonored checks. It is also expected to expedite the disposition of these cases. Instead of instituting two separate cases, one for criminal and another for civil, only a single suit shall be filed and tried. It should be stressed that the policy laid down by the Rules is to discourage the separate filing of the civil action. The Rules even prohibit the reservation of a separate civil action, which means that one can no longer file a separate civil case after the criminal complaint is filed in court. The only instance when separate proceedings are allowed is when the civil action is filed ahead of the criminal case. Even then, the Rules encourage the consolidation of the civil and criminal cases. We have previously observed that a separate civil action for the purpose of recovering the amount of the dishonored checks would only prove to be costly, burdensome and timeconsuming for both parties and would further delay the final disposition of the case. This multiplicity of suits must be avoided. Where petitioners rights may be fully adjudicated in the proceedings before the trial court, resort to a separate action to recover civil liability is clearly unwarranted. In view of this special rule governing actions for violation of B.P. 22, Article 31 of the Civil Code cited by the trial court will not apply to the case at bar. 24 The CAs reliance on DMPI Employees Credit Association v. Velez 25 to give due course to the civil action of Chan independently and separately of Criminal Case No. 275381 was unwarranted. DMPI Employees, which involved a prosecution for estafa, is not on all fours with this case, which is a prosecution for a violation of BP 22. Although the Court has ruled that the issuance of a bouncing check may result in two separate and distinct crimes of estafa and violation of BP 22,26 the procedures for the recovery of the civil liabilities arising from these two distinct crimes are different and noninterchangeable. In prosecutions of estafa, the offended party may opt to reserve his right to file a separate civil action, or may institute an independent action based on fraud pursuant to Article 33 of the Civil Code, 27 as DMPI Employees has allowed. In prosecutions of violations of BP 22, however, the Court has adopted a policy to prohibit the reservation or institution of a separate civil action to claim the civil liability arising from the issuance of the bouncing check upon the reasons delineated in Hyatt Industrial Manufacturing Corporation, supra . To repeat, Chans separate civil action to recover the amount of the check involved in the prosecution for the violation of BP 22 could not be independently maintained under both Supreme Court Circular 57-97 and the aforequoted provisions of Rule 111 of the Rules of Court, notwithstanding the allegations of fraud and deceit. B Aptness of the dismissal of the civil action on the ground of litis pendentia Did the pendency of the civil action in the MeTC in Manila (as the civil aspect in Criminal Case No. 275381) bar the filing of Civil Case No. 915-00 in the MeTC in Pasay City on the ground of litis pendentia? For litis pendentia to be successfully invoked as a bar to an action, the concurrence of the following requisites is necessary, namely: (a) there must be identity of parties or at least such as represent the same interest in both actions; (b) there must be identity of rights asserted and reliefs prayed for, the reliefs being founded on the same facts; and, (c) the identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amount to res judicata in respect of the other. Absent the first two requisites, the possibility of the existence of the third becomes nil.28 A perusal of Civil Case No. 01-0033 and Criminal Case No. 275381 ineluctably shows that all the elements of litis pendentia are attendant. First of all, the parties in the civil action involved in Criminal Case No. 275381 and in Civil Case No. 915-00, that is, Chan and Simon, are the same. Secondly, the information in Criminal Case No. 275381 and the complaint in Civil Case No. 915-00 both alleged that Simon had issued Landbank Check No. 0007280 worth P336,000.00 payable to "cash," thereby indicating that the rights asserted and the reliefs prayed for, as well as the facts upon which the

reliefs sought were founded, were identical in all respects. And, thirdly, any judgment rendered in one case would necessarily bar the other by res judicata; otherwise, Chan would be recovering twice upon the same claim. It is clear, therefore, that the MeTC in Pasay City properly dismissed Civil Case No. 915-00 on the ground of litis pendentia through its decision dated October 23, 2000; and that the RTC in Pasay City did not err in affirming the MeTC. Wherefore, we grant the petition for review on certiorari, and, accordingly, we reverse and set aside the decision promulgated by the Court of Appeals on June 25, 2002. We reinstate the decision rendered on October 23, 2000 by the Metropolitan Trial Court, Branch 45, in Pasay City. Costs of suit to be paid by the respondent. SO ORDERED. LUCAS P. BERSAMIN Associate Justice WE CONCUR: ARTURO D. BRION** Associate Justice Acting Chairperson ROBERTO A. ABAD*** Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ARTURO D. BRION Associate Justice Acting Chairperson CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes
*

Misspelled as Elven in the caption of the petition and in the rollo.

Acting Chairperson in lieu of Justice Conchita Carpio Morales who is on leave per Special Order No. 925 dated January 24, 2011.
** ***

Additional member per Special Order No. 926 dated January 24, 2011.

Rollo, p. 31. Id., pp. 35-37. Id., pp. 35-36. Id., p. 24. Id., pp. 38-46. Id., pp. 47-49. Id., pp. 50-54. Id., p. 56. Id., pp. 76-79. Id., pp. 80-88. Id., pp. 89-97.

10

11

Id., pp. 23-27; penned by Associate Justice Perlita J. Tria Tirona (retired), and concurred in by Associate Justice Rodrigo V. Cosico (retired) and Associate Justice Mario L. Guaria.
12 13

Id., pp. 29-30. G.R. No. 129282, November 29, 2001, 371 SCRA 72. See note 19, p.16. Rollo, pp. 105-109. G.R. No. L-78911, December 11, 1987, 156 SCRA 325. Bold emphasis supplied. Cheng v.Sy, G.R. No. 174238, July 7, 2009, 592 SCRA 155, 164-165. Aldeguer v. Hoskyn, 2 Phil. 502; Ayala de Roxas v. Case, 8 Phil. 197. Sec. 22, Art. III, 1987 Constitution; Cooleys Principle of Constitutional Law, p. 313. Bold emphasis supplied. G.R. No. 163597, July 29, 2005, 465 SCRA 454, 459-461. Bold emphasis supplied. Supra, note 14. E.g., Rodriguez v. Ponferrada, G.R. Nos.155531-34, July 29, 2005, 465 SCRA 338, 343.

14

15

16

17

18

19

20

21

22

23

24

25

26

Article 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.
27

28

Taningco v. Taningco, G.R. No. 153481, August 10, 2007, 529 SCRA 735.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. Nos. 159017-18 March 9, 2011

PAULINO S. ASILO, JR., Petitioner, vs. THE PEOPLE OF THE PHILIPPINES and Spouses VISITACION AND CESAR C. BOMBASI, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 159059 VICTORIA BUETA VDA. DE COMENDADOR, IN REPRESENTATION OF DEMETRIO T. COMENDADOR, Petitioner, vs. VISITACION C. BOMBASI AND CESAR C. BOMBASI, Respondents. DECISION PEREZ, J.: At bench are appeals by certiorari1 from the Decision2 of the Fourth Division of the Sandiganbayan; (1) finding Demetrio T. Comendador3 (Mayor Comendador) and Paulino S. Asilo, Jr.4 guilty beyond reasonable doubt of violation of Sec. 3(e) of Republic Act No. 3019; (2) dismissing the cases against accused Alberto S. Angeles;5 (3) ordering the defendants Municipality of Nagcarlan, Laguna, Demetrio T. Comendador and Paulino S. Asilo, Jr. to pay the plaintiffs now respondents Visitacion C. Bombasi (Visitacion) and Cesar C. Bombasi damages; and (4) dismissing the cases against the spouses Alida and Teddy Coroza6 and Benita and Isagani Coronado.7 The factual antecedents of the case are: On 15 March 1978, Private Respondent Visitacions late mother Marciana Vda. De Corona do (Vda. De Coronado) and the Municipality of Nagcarlan, Laguna (represented by the then Municipal Mayor Crisostomo P. Manalang) entered into a lease contract whereby the Municipality allowed the use and enjoyment of property comprising of a lot and a store located at the corner of Coronado and E. Fernandez Sts. at Poblacion, Nagcarlan, Laguna, in favor of the respondents mother for a period of twenty (20) years beginning on 15 March 1978 until 15 March 1998, extendible for another 20 years. 8 The lease contract provided that the late Vda. De Coronado could build a firewall on her rented property which must be at least as high as the store; and in case of modification of the public market, she or her heir/s would be given preferential rights. Visitacion took over the store when her mother died sometime in 1984.9 From then on up to January 1993, Visitacion secured the yearly Mayors permits.10 Sometime in 1986, a fire razed the public market of Nagcarlan. Upon Visitacions request for inspection on 15 May 1986, District Engineer Marcelino B. Gorospe (Engineer Gorospe) of the then Ministry of Public Works and Highways,11 Regional Office No. IV-A, found that the store of Visitacion remained intact and stood strong. This finding of Engineer Gorospe was contested by the Municipality of Nagcarlan. The store of Visitacion continued to operate after the fire until 15 October 1993. On 1 September 1993, Visitacion received a letter12 from Mayor Comendador directing her to demolish her store within five (5) days from notice. Attached to the letter were copies of Sangguniang Bayan Resolution No. 156 13 dated 30 August 1993 and a Memorandum issued by Asst. Provincial Prosecutor Marianito Sasondoncillo of Laguna. The relevant provisos of the Resolution No. 156 states that:

NOW THEREFORE, be it RESOLVED, as it hereby resolved to authorize Hon. Demetrio T. Comendador to enforce and order the Coronados to demolish the building constructed on the space previously rented to them in order to give way for the construction of a new municipal market building. RESOLVED FURTHER, to authorize Demetrio T. Comendador, Honorable Mayor of Nagcarlan to file an Unlawful Detainer Case with damages for the expenses incurred due to the d elay in the completion of the project if the Coronados continuously resists the order. On 3 September 1993, Visitacion wrote a reply letter to Mayor Comendador saying that: (1) the lease contract was still existing and legally binding; (2) she was willing to vacate the store as long as same place and area would be given to her in the new public market; and (3) in case her proposals are not acceptable to Mayor Comendador, for the latter to just file an unlawful detainer case against her pursuant to Sangguniang Bayan Resolution No. 156. Pertinent portions of the letter read: x x x With all due respect to the resolution of the Municipal Council and the opinion rendered by the Laguna Asst. Provincial Prosecutor, it is my considered view, however, arrived at after consultation with my legal counsel, that our existing lease contract is still legally binding and in full force and effect. Lest I appear to be defiant, let me reiterate to you and the council that we are willing to vacate the said building provided that a new contract is executed granting to us the same space or lot and the same area. I believe that our proposal is most reasonable and fair under the circumstance. If you are not amenable to the said proposal, I concur with the position taken by the Council for you to file the appropriate action in court for unlawful detainer to enable our court to finally thresh out our differences. 141avvphi1 On 15 September 1993, Asst. Provincial Prosecutor Florencio Buyser sent a letter to Visitacion ordering her to vacate the portion of the public market she was occupying within 15 days from her receipt of the letter; else, a court action will be filed against her. On 11 October 1993, the Sangguniang Bayan of Nagcarlan, Laguna issued Resolution No. 183 authorizing Mayor Comendador to demolish the store being occupied by Visitacion using legal means. The significant portion of the Resolution reads: Kung kaya ang Sangguniang Bayan ay buong pagkakaisang IPINASIYA: Ang pagbibigay kapangyarihan kay Kgg. Demetrio T. Comendador na ipagiba ang anumang istrakturang nagiging sagabal sa mabilis at maayos na pagbabangon ng pamilihang bayan.15 On 14 October 1993, Municipal Administrator Paulino S. Asilo, Jr. (Asilo) also sent a letter 16 to Visitacion informing her of the impending demolition of her store the next day. Within the same day, Visitacion wrote a reply letter 17 to Asilo, alleging that there is no legal right to demolish the store in the absence of a court order and that the Resolutions did not sanction the demolition of her store but only the filing of an appropriate unlawful detainer case against her. She further replied that if the demolition will take place, appropriate administrative, criminal and civil actions will be filed against Mayor Comendador, Asilo and all persons who will take part in the demolition. On 15 October 1993, Mayor Comendador relying on the strength of Sangguniang Bayan Resolution Nos. 183 and 156 authorized the demolition of the store with Asilo and Angeles supervising the work. Engineer Winston Cabrega (Engineer Cabrega), a licensed civil engineer, estimated the cost of the demolished property as amounting to P437,900.0018 On 19 August 1994, Visitacion, together with her husband Cesar Bombasi (Spouses Bombasi) filed with the Regional Trial Court of San Pablo City, Laguna a Civil Case 19 for damages with preliminary injunction against the Municipality of Nagcarlan, Laguna, Mayor Demetrio T. Comendador, Paulino S. Asilo, Jr., and Alberto S. Angeles. The complaint was soon after amended to include the Spouses Benita and Isagani Coronado and Spouses Alida and Teddy Coroza as formal defendants because they were then the occupants of the contested area. The spouses prayed for the following disposition: 1. RESTRAINING or ENJOINING defendant Municipality and defendant Municipal Mayor from leasing the premises subject of lease Annex "A" hereof, part of which is now occupied by PNP Outpost and by the Municipal Collectors Office, and the equivalent adjacent area thereof, and to cause the removal of said stalls;

2. UPHOLDING the right of plaintiffs to occupy the equivalent corner area of the leased areas being now assigned to other persons by defendants Municipality and/or by defendant Municipal Mayor, and to allow plaintiffs to construct their stalls thereon; 3. MAKING the injunction permanent, after trial; 4. ORDERING defendants to pay plaintiffs, jointly and severally, the following (a) P437,900.00 for loss of building/store and other items therein; (b) P200,000.00 for exemplary damages; (c) P200,000.00 for moral damages; (d) P30,.00 for attorneys fees and P700.00 for every attendance of counsel in court. 5. GRANTING further reliefs upon plaintiffs as justice and equity may warrant in the premises. 20 Spouses Bombasi, thereafter, filed a criminal complaint 21 against Mayor Comendador, Asilo and Angeles for violation of Sec. 3(e) of Republic Act No. 3019 otherwise known as the "Anti-Graft and Corrupt Practices Act" before the Office of the Ombudsman. On 22 February 1996, an Information22 against Mayor Comendador, Asilo and Angeles was filed, which reads: That on or about October 15, 1993, at Nagcarlan, Laguna, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all public officers, accused Demetrio T. Comendador, being then the Municipal Mayor, accused Paulino S. Asilo, Jr. being then the Municipal Administrator and accused Alberto S. Angeles being then the Municipal Planning and Development Coordinator, all of the Municipality of Nagcarlan, Laguna, committing the crime herein charged in relation to, while in the performance and taking advantage of their official functions, conspiring and confederating with each other, and with evident bad faith, manifest partiality or through gross inexcusable negligence, did then and there willfully, unlawfully, criminally cause the demolition of a public market stall leased by the municipal government in favor of one Visitacion Coronado-Bombasi without legal or justifiable ground therefor, thus, causing undue injury to the latter in the amount of PESOS: FOUR HUNDRED THIRTY SEVEN THOUSAND AND NINE HUNDRED ONLY (P437,900.00). Upon their arraignments, all the accused entered their separate pleas of "Not Guilty." On 4 March 1997, the Sandiganbayan promulgated a Resolution ordering the consolidation of Civil Case No. SP-4064 (94)23 with Criminal Case No. 23267 pending before the Third Division pursuant to Section 4, Presidential Decree No. 1606, which pertinently reads: Any provision of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability arising from the offense charged shall at all times be simultaneously instituted with, and jointly determined in the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately from the criminal action shall be recognized; Provided, however, that where the civil action had heretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned.24 During the pendency of the case, Alberto S. Angeles died on 16 November 1997. Accordingly, the counsel of Angeles filed a motion to drop accused Angeles. On 22 September 1999, the Third Division of Sandiganbayan issued an Order25DISMISSING the case against Angeles. The germane portion of the Order reads: In view of the submission of the death certificate of accused/defendant Alberto S. Angeles, and there being no objection on the part of the Public Prosecutor, cases against deceased accused/defendant Angeles only, are hereby DISMISSED. The death of Mayor Comendador followed on 17 September 2002. As a result, the counsel of the late Mayor filed on 3 March 2003 a Manifestation before the Sandiganbayan informing the court of the fact of Mayor Comendadors death.

On 28 April 2003, the Sandiganbayan rendered a decision, the dispositive portion of which reads as follows: WHEREFORE, premises considered, judgment is hereby rendered as follows: In Criminal Case No. 23267, the court finds accused Demetrio T. Comendador and Paulino S. Asilo, Jr. guilty beyond reasonable doubt of violation of Sec. 3(e) of Republic Act. No. 3019 as amended, and in the absence of aggravating and mitigating circumstances, applying the Indeterminate Sentence Law, said accused are sentenced to suffer the indeterminate penalty of 6 years and 2 months imprisonment as minimum to 10 years and 1 day as maximum. The order of the court dated September 22, 1999 dismissing the cases against the accused Alberto S. Angeles, who died on November 16, 1997 is hereby reiterated. In Civil Case No. 4064, defendants Municipality of Nagcarlan, Laguna, Demetrio T. Comendador and Paulino S. Asilo, Jr. are hereby ordered jointly and severally to pay plaintiff P437,900.00 as actual damages for the destruction of the store; P100,000.00 as moral damages; P30,000.00 as attorneys fees, and to pay the cost of the suit. The prayer for exemplary damages is denied as the court found no aggravating circumstances in the commission of the crime. In view of this courts finding that the defendant spouses Alida and Teddy Coroza are lawful occupants of the subject market stalls from which they cannot be validly ejected without just cause, the complaint against them is dismissed. The complaint against defendant spouses Benita and Isagani Coronado is likewise dismissed, it appearing that they are similarly situated as the spouses Coroza. Meanwhile, plaintiff Visitacion Bombasi is given the option to accept market space being given to her by the municipality, subject to her payment of the appropriate rental and permit fees. The prayer for injunctive relief is denied, the same having become moot and academic. The compulsory counterclaim of defendant Comendador is likewise denied for lack of merit.26 Within the same day, Asilo, through his counsel, filed a Motion for Reconsideration 27 of the Decision alleging that there was only an error of judgment when he complied with and implemented the order of his superior, Mayor Comendador. He likewise alleged that there is no liability when a public officer commits in good faith an error of judgment. The Sandiganbayan, on its Resolution28 dated 21 July 2003 denied the Motion for Reconsideration on the ground that good faith cannot be argued to support his cause in the face of the courts finding that bad faith attended the commission of the offense charged. The Court further explained that the invocation of compliance with an order of a superior is of no moment for the "demolition [order] cannot be described as having the semblance of legality inasmuch as it was issued without the authority and therefore the same was patently illegal." 29 The counsel for the late Mayor also filed its Motion for Reconsideration 30 on 12 May 2003 alleging that the death of the late Mayor had totally extinguished both his criminal and civil liability. The Sandiganbayan on its Resolution 31 granted the Motion insofar as the extinction of the criminal liability is concerned and denied the extinction of the civil liability holding that the civil action is an independent civil action. Hence, these Petitions for Review on Certiorari.32 Petitioner Asilo argues that in order to sustain conviction under Sec. 3(e) of Republic Act No. 3019 or "The Anti-Graft and Corrupt Practices Act," the public officer must have acted with manifest partiality, evident bad faith or gross negligence. He also contended that he and his co-accused acted in good faith in the demolition of the market and, thereby, no liability was incurred. On the other hand, Petitioner Victoria argues that the death of Mayor Comendador prior to the promulgation of the decision extinguished NOT ONLY Mayor Comendadors criminal liability but also his civil liability. She also asserted good faith on the part of the accused public officials when they performed the demolition of the market stall. Lastly, she contended that assuming arguendo that there was indeed liability on the part of the accused public officials, the actual amount of damages being claimed by the Spouses Bombasi has no basis and was not duly substantiated. Liability of the accused public officials under Republic Act No. 3019 Section 3(e) of Republic Act No. 3019 provides:

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: xxxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, 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 elements of the offense are as follows: (1) that the accused are public officers or private persons charged in conspiracy with them; (2) that said public officers commit the prohibited acts during the performance of their official duties or in relation to their public positions; (3) that they caused undue injury to any party, whether the Government or a private party; (4) OR that such injury is caused by giving unwarranted benefits, advantage or preference to the other party; and (5) that the public officers have acted with manifest partiality, evident bad faith or gross inexcusable negligence.33 We sustain the Sandiganbayan in its finding of criminal and civil liabilities against petitioner Asilo and petitioner Mayor Comendador as here represented by his widow Victoria Bueta. We agree with the Sandiganbayan that it is undisputable that the first two requisites of the criminal offense were present at the time of the commission of the complained acts and that, as to the remaining elements, there is sufficient amount of evidence to establish that there was an undue injury suffered on the part of the Spouses Bombasi and that the public officials concerned acted with evident bad faith when they performed the demolition of the market stall. Causing undue injury to any party, including the government, could only mean actual injury or damage which must be established by evidence.34 In jurisprudence, "undue injury" is consistently interpreted as "actual." Undue has been defined as "more than necessary, not proper, [or] illegal;" and injury as "any wrong or damage done to another, either in his person, rights, reputation or property [that is, the] invasion of any legally protected interest of another." Actual damage, in the context of these definitions, is akin to that in civil law.35 It is evident from the records, as correctly observed by the Sandiganbayan, that Asilo and Mayor Comendador as accused below did not deny that there was indeed damage caused the Spouses Bombasi on account of the demolition. We affirm the finding that: xxx. Clearly, the demolition of plaintiffs store was carried out without a court order, and notwithstanding a restraining order which the plaintiff was able to obtain. The demolition was done in the exercise of official duties which apparently was attended by evident bad faith, manifest partiality or gross inexcusable negligence as there is nothing in the two (2) resolutions which gave the herein accused the authority to demolish plain tiffs store. "Evident bad faith" connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will. 36 [It] contemplates a state of mind affirmatively operating with furtive design or with some motive or self-interest or ill will or for ulterior purposes.37 It is quite evident in the case at bar that the accused public officials committed bad faith in performing the demolition. First, there can be no merit in the contention that respondents structure is a pub lic nuisance. The abatement of a nuisance without judicial proceedings is possible if it is nuisance per se.38 Nuisance per se is that which is nuisance at all times and under any circumstance, regardless of location and surroundings.39 In this case, the market stall cannot be considered as a nuisance per se because as found out by the Court, the buildings had not been affected by the 1986 fire. This finding was certified to by Supervising Civil Engineer Wilfredo A. Sambrano of the Laguna District Engineer Office. 40 To quote: An inspection has been made on the building (a commercial establishment) cited above and found out the following: 1. It is a two-storey building, sketch of which is attached. 2. It is located within the market site.

3. The building has not been affected by the recent fire. 4. The concrete wall[s] does not even show signs of being exposed to fire.41 Second, the Sangguniang Bayan resolutions are not enough to justify demolition. Unlike its predecessor law, 42 the present Local Government Code43 does not expressly provide for the abatement of nuisance.44 And even assuming that the power to abate nuisance is provided for by the present code, the accused public officials were under the facts of this case, still devoid of any power to demolish the store. A closer look at the contested resolutions reveals that Mayor Comendador was only authorized to file an unlawful detainer case in case of resistance to obey the order or to demolish the building using legal means. Clearly, the act of demolition without legal order in this case was not among those provided by the resolutions, as indeed, it is a legally impossible provision. Furthermore, the Municipality of Nagcarlan, Laguna, as represented by the then Mayor Comendador, was placed in estoppel after it granted yearly business permits45 in favor of the Spouses Bombasi. Art. 1431 of the New Civil Code provides that, through estoppel, an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. The representation made by the municipality that the Spouses Bombasi had the right to continuously operate its store binds the municipality. It is utterly unjust for the Municipality to receive the benefits of the store operation and later on claim the illegality of the business. The bad faith of the petitioners completes the elements of the criminal offense of violation of Sec. 3(e) of Republic Act No. 3019. The same bad faith serves as the source of the civil liability of Asilo, Angeles, and Mayor Comendador. It must be noted that when Angeles died on 16 November 1997, a motion to drop him as an accused was filed by his counsel with no objection on the part of the prosecution. The Sandiganbayan acted favorably on the motion and issued an Order dismissing all the cases filed against Angeles. On the other hand, when Mayor Comendador died and an adverse decision was rendered against him which resulted in the filing of a motion for reconsideration by Mayor Comendadors counsel, the prosecution opposed the Motion specifying the ground that the civil liability did not arise from delict, hence, survived the death of the accused. The Sandiganbayan upheld the opposition of the prosecution which disposition was not appealed. We note, first off, that the death of Angeles and of Mayor Comendador during the pendency of the case extinguished their criminal liabilities. We now hold, as did the Sandiganbayan that the civil liability of Mayor Comendador survived his death; and that of Angeles could have likewise survived had it not been for the fact that the resolution of the Sandiganbayan that his death extinguished the civil liability was not questioned and lapsed into finality. We laid down the following guidelines in People v. Bayotas:46 Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. As opined by Justice Regalado, in this regard, "the death of the accused prior to final judgment terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed, i.e., civil liability ex delicto in senso strictiore." Corollarily, the claim for civil liability survives notwithstanding the death of (the) accused, if the same may also be predicated on a source of obligation other than delict. Article 1157 of the Civil Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or omission: a) Law b) Contracts c) Quasi-contracts d) Acts or omissions punished by law; and e) Quasi-delicts. (Emphasis ours)

Where the civil liability survives, as explained [above], an action for recovery therefore may be pursued but only by way of filing a separate civil action47 and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended. This separate civil action may be enforced either against the executor/administrator or the estate of the accused, depending on the source of obligation upon which the same is based as explained above. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the private-offended party instituted together therewith the civil action. In such case, the statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal case, conformably with provisions of Article 1155 of the New Civil Code, which should thereby avoid any apprehension on a possible privation of right by prescription. Upon death of the accused pending appeal of his conviction, the criminal action is extinguished inasmuch as there is no longer a defendant to stand as the accused; the civil action instituted therein for recovery of civil liability ex delicto is ipso facto extinguished, grounded as it is on the criminal.48 The New Civil Code provisions under the Chapter, Human Relations, were cited by the prosecution to substantiate its argument that the civil action based therein is an independent one, thus, will stand despite the death of the accused during the pendency of the case. On the other hand, the defense invoked Section 4 of Presidential Decree No. 1606, as amended by Republic Act No. 8249, in support of its argument that the civil action was dependent upon the criminal action, thus, was extinguished upon the death of the accused. The law provides that: Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability arising from the offense charged shall at all times be simultaneously instituted with, and jointly determined in the same proceeding by, the Sandiganbayan, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such action shall be recognized. (Emphasis ours) We agree with the prosecution. Death of Mayor Comendador during the pendency of the case could have extinguished the civil liability if the same arose directly from the crime committed. However, in this case, the civil liability is based on another source of obligation, the law on human relations.49 The pertinent articles follow: Art. 31 of the Civil Code states: When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. And, Art. 32(6) states: Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (6) The right against deprivation of property without due process of law; xxxx In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence. As held in Aberca v. Ver:

It is obvious that the purpose of the above codal provision [Art. 32 of the New Civil Code] is to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek to violate those sacred rights with impunity. x x x.50 Indeed, the basic facts of this case point squarely to the applicability of the law on human relations. First, the complaint for civil liability was filed way AHEAD of the information on the Anti-Graft Law. And, the complaint for damages specifically invoked defendant Mayor Comendadors violation of plaintiffs right to due process. Thus: xxxx In causing or doing the forcible demolition of the store in question, the individual natural defendants did not only act with grave abuse of authority but usurped a power which belongs to our courts of justice; such actuations were done with malice or in bad faith and constitute an invasion of the property rights of plaintiff(s) without due process of law. xxxx The Court is in one with the prosecution that there was a violation of the right to private property of the Spouses Bombasi. The accused public officials should have accorded the spouses the due process of law guaranteed by the Constitution and New Civil Code. The Sangguniang Bayan Resolutions as asserted by the defense will not, as already shown, justify demolition of the store without court order. This Court in a number of decisions 51 held that even if there is already a writ of execution, there must still be a need for a special order for the purpose of demolition issued by the court before the officer in charge can destroy, demolish or remove improvements over the contested property.52 The pertinent provisions are the following: Before the removal of an improvement must take place, there must be a special order, hearing and reasonable notice to remove. Section 10(d), Rule 39 of the Rules of Court provides: (d) Removal of improvements on property subject of execution. When the property subject of execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court. The above-stated rule is clear and needs no interpretation. If demolition is necessary, there must be a hearing on the motion filed and with due notices to the parties for the issuance of a special order of demolition.53 This special need for a court order even if an ejectment case has successfully been litigated, underscores the independent basis for civil liability, in this case, where no case was even filed by the municipality. The requirement of a special order of demolition is based on the rudiments of justice and fair play. It frowns upon arbitrariness and oppressive conduct in the execution of an otherwise legitimate act. It is an amplification of the provision of the Civil Code that every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.54 Notably, the fact that a separate civil action precisely based on due process violations was filed even ahead of the criminal case, is complemented by the fact that the deceased plaintiff Comendador was substituted by his widow, herein petitioner Victoria who specified in her petition that she has "substituted him as petitioner in the above captioned case." Section 1, Rule III of the 1985 Rules in Criminal Procedure mentioned in Bayotas is, therefore, not applicable. Truly, the Sandiganbayan was correct when it maintained the separate docketing of the civil and criminal cases before it although their consolidation was erroneously based on Section 4 of Presidential Decree No. 1606 which deals with civil liability "arising from the offense charged." We must, however, correct the amount of damages awarded to the Spouses Bombasi. To seek recovery of actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable.55 In this case, the Court finds that the only evidence presented to prove the actual damages incurred was the itemized list of damaged and lost items 56 prepared by Engineer Cabrega, an engineer commissioned by the Spouses Bombasi to estimate the costs. As held by this Court in Marikina Auto Line Transport Corporation v. People of the Philippines, 57

x x x [W]e agree with the contention of petitioners that respondents failed to prove that the damages to the terrace caused by the incident amounted to P100,000.00. The only evidence adduced by respondents to prove actual damages claimed by private respondent were the summary computation of damage made by Engr. Jesus R. Regal, Jr. amounting toP171,088.46 and the receipt issued by the BB Construction and Steel Fabricator to private respondent for P35,000.00 representing cost for carpentry works, masonry, welding, and electrical works. Respondents failed to present Regal to testify on his estimation. In its five-page decision, the trial court awarded P150,000.00 as actual damages to private respondent but failed to state the factual basis for such award. Indeed, the trial court merely declared in the decretal portion of its decision that the "sum of P150,000.00 as reasonable compensation sustained by plaintiff for her damaged apartment." The appellate court, for its part, failed to explain how it arrived at the amount of P100,000.00 in its threepage decision. Thus, the appellate court merely declared: With respect to the civil liability of the appellants, they contend that there was no urgent necessity to completely demolish the apartment in question considering the nature of the damages sustained as a result of the accident. Consequently, appellants continue, the award of P150,000.00 as compensation sustained by the plaintiff-appellee for her damaged apartment is an unconscionable amount. Further, in one case,58 this Court held that the amount claimed by the respondent-claimants witness as to the actual amount of damages "should be admitted with extreme caution considering that, because it was a bare assertion, it should be supported by independent evidence." The Court further said that whatever claim the respondent witness would allege must be appreciated in consideration of his particular self-interest.59 There must still be a need for the examination of the documentary evidence presented by the claimants to support its claim with regard to the actual amount of damages. The price quotation made by Engineer Cabrega presented as an exhibit60 partakes of the nature of hearsay evidence considering that the person who issued them was not presented as a witness. 61 Any evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of another person who is not on the witness stand. Hearsay evidence, whether objected to or not, has no probative value unless the proponent can show that the evidence falls within the exceptions to the hearsay evidence rule. 62 Further, exhibits do not fall under any of the exceptions provided under Sections 37 to 47 of Rule 130 of the Rules of Court. Though there is no sufficient evidence to award the actual damages claimed, this Court grants temperate damages forP200,000.00 in view of the loss suffered by the Spouses Bombasi. Temperate damages are awarded in accordance with Art. 2224 of the New Civil Code when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proven with certainty. The amount of temperate or moderated damages is usually left to the discretion of the courts but the same should be reasonable, bearing in mind that the temperate damages should be more than nominal but less than compensatory.63 Without a doubt, the Spouses Bombasi suffered some form of pecuniary loss in the impairment of their store. Based on the record of the case,64 the demolished store was housed on a two-story building located at the markets commercial area and its concrete walls remained strong and n ot affected by the fire. However, due to the failure of the Spouses Bombasi to prove the exact amount of damage in accordance with the Rules of Evidence,65 this court finds that P200,000.00 is the amount just and reasonable under the circumstances. WHEREFORE, the instant appeal is DENIED. Accordingly, the Decision of the Sandiganbayan dated 28 April 2003 is hereby AFFIRMED WITH MODIFICATION. The Court affirms the decision finding the accused Paulino S. Asilo, Jr. and Demetrio T. Comendador guilty of violating Section 3(e) of Republic Act No. 3019. We declare the finality of the dismissal of both the criminal and civil cases against Alberto S. Angeles as the same was not appealed. In view of the death of Demetrio T. Comendador pending trial, his criminal liability is extinguished; but his civil liability survives. The Municipality of Nagcarlan, Paulino Asilo and Demetrio T. Comendador, as substituted by Victoria Bueta Vda. De Comendador, are hereby declared solidarily liable to the Spouses Bombasi for temperate damages in the amount of P200,000.00 and moral damages in the amount of P100,000.00. Costs against the petitioners-appellants. SO ORDERED. JOSE PORTUGAL PEREZ Associate Justice WE CONCUR: RENATO C. CORONA Chief Justice Chairperson

CONCHITA CAPIO MORALES Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

MARIANO C. DEL CASTILLO Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes
1

Additional member in lieu of Associate Justice Teresita J. Leonardo-De Castro per raffle dated 7 March 2011. Under Rule 45 of the 1997 Rules of Civil Procedure.

The Decision dated 28 April 2003 was penned by Associate Justice Rodolfo G. Palattao with Associate Justices Gregory S. Ong and Ma. Cristina G. Cortez-Estrada, concurring. Rollo (G.R. No. 159017-18), pp. 40-71.
2 3

Municipal Mayor of Nagcarlan, Laguna. Municipal Administrator of Nagcarlan, Laguna. Municipal Planning and Development Coordinator of Nagcarlan, Laguna. Present occupants of the premises being claimed by Spouses Cesar and Visitacion Bombasi. Id. Kasulatan ng Kasunduan. TSN, 11 August 1997, p. 24. TSN, 31 July 1997, pp. 30-32. Now Department of Public Works and Highways. Formal Offer of Evidence as admitted by the Sandiganbayan, Exhibit "H-5." Rollo (G.R. No. 159059), pp. 112-113. Rollo (G.R. No. 159017-18), pp. 17-18. Rollo (G.R. No. 159059), p. 115. Id. at 116. Rollo (G.R. No. 159017-18), p. 147.

10

11

12

13

14

15

16

17

P400,000.00 representing the cost of the concrete building; P37,900.00 representing the cost of damage and loss inside the building.
18 19

Civil Case No. SP-4064 (94). Rollo (G.R. No. 159017-18), p. 91. Docketed as Criminal Case No. 23267. Records, pp. 1-2. Then pending with the Regional Trial Court of San Pablo City, Laguna. Rollo (G.R. No. 159059), p. 77. Id. at 22. Id. at 73-74. Rollo (G.R. 159017-18), p. 72. Id. at 81. Resolution (Re: Motion for Reconsideration) of the Sandiganbayan, Fourth Division, dated 21 July 2003. Rollo (G.R. No. 159059), pp. 81-87. Id. at 75-80, dated 21 July 2003.

20

21

22

23

24

25

26

27

28

29

30

31

Rollo (G.R. No. 159017-18), pp. 3-39, dated 25 July 2003 filed by Paulino S. Asilo; Rollo (G.R. No. 159059), pp. 12-43, dated 5 September 2003 filed by Victoria Bueta Vda. De Comendador, widow of the late Mayor Comendador.
32 33

Bustillo v. People, G.R. No. 160718, 12 May 2010. Avila, Sr. v. Sandiganbayan, 366 Phil. 698, 703 (1999). Llorente v. Sandiganbayan, 350 Phil. 820 (1998). Sistoza v. Desierto, 437 Phil. 117, 132 (2002). Air France v. Carrascoso, 124 Phil. 722, 737 (1966). Parayno v. Jovellanos, G.R. No. 148408, 14 July 2006, 495 SCRA 85, 93. Jurado, Civil Law Reviewer, 20th ed., 2006, p. 411. Exhibit C-1 of the Prosecution. Records, Vol. II, p. 215. Records, Vol. III, p. 180. Local Government Code of 1983, Batas Pambansa Blg. 337. Republic Act No. 7160. Section 149 of Local Government Code of 1983. Powers and Duties. -

34

35

36

37

38

39

40

41

42

43

44

(I) The sangguniang bayan shall: xxxx (ee) Provide for the abatement of nuisance;
45

Records, Vol. III, pp. 187-196. G.R. No. 102007, 2 September 1994, 236 SCRA 239, 255-256.

46

It must be noted that the independent civil action was instituted ahead of the criminal case before both cases were jointly heard before the Sandiganbayan.
47 48

People v. Bayotas, supra note 58 at 251. Preliminary Title, Chapter 2, Civil Code of the Philippines.

49

G.R. No. L-69866, 15 April 1988, 160 SCRA 590, 601, as quoted from Joseph Charmont French Legal Philosophy, Mcmillan Co., New York, 1921, pp. 72-73.
50

Guario v. Ragsac, A.M. No. P-08-2571, 27 August 2009, 597 SCRA 235; Torres v. Sicat, Jr., 438 Phil. 109 (2002).
51 52

Sec. 10, Rule 39(d), Rules of Court. Guario v. Ragsac, supra note 65 at 236. Id. at 236-237. Polo v. People, G.R. No. 160541, 24 October 2008, 570 SCRA 80, 84 citing People v. Tigle, 465 Phil. 368 (2004). Exhibits "I" and "I-1" formally offered by the prosecution. G.R. No. 152040, 31 March 2006, 486 SCRA 284, 296-297. PNOC Shipping and Transport Corporation v. Court of Appeals, 358 Phil. 38 (1998). Id. at 55. Records, Vol. III, p. 217; Exhibit "I." People v. Narciso, 330 Phil. 527, 536 (1996).

53

54

55

56

57

58

59

60

61

Philippine Home Assurance Corporation v. Court of Appeals, 327 Phil. 255, 267-268 (1996) citing Baguio v. Court of Appeals, G.R. No. 93417, 14 September 1993, 226 SCRA 366, 370.
62

College Assurance Plan v. Belfranlt Development, Inc., G.R. No. 155604, 22 November 2007, 538 SCRA 27, 4041.
63 64

Memorandum Letter of Laguna District Engineer Wilfredo A. Sambrano. Records, Vol. III, p. 181.

Rule 132, Section 20, Proof of private document. Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either:
65

(a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 191411 July 15, 2013

RAFAEL L. COSCOLLUELA, Petitioner, vs. SANBIGANBAYAN (FIRST DIVISION) and PEOPLE OF THE PHILIPPINES, Respondents. x-----------------------x G.R. No. 191871 EDWIN N. NACIONALES, ERNESTO P. MALVAS, and JOSE MA. G. AMUGOD, Petitioners, vs. SANDIGANBAYAN (FIRST DIVISION) and PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIAL PROSECUTOR, OFFICE OF THE OMBUDSMAN, Respondents. DECISION PERLAS-BERNABE, J.: Assailed in these consolidated Petitions for Certiorari1 are the October 6, 20092 and February 10, 20103 Resolutions of public respondent First Division of Sandiganbayan (SB), denying the Motion to Quash 4 dated July 8, 2009 filed by petitioner Rafael L. Coscolluela (Coscolluela). The said motion was adopted by petitioners Edwin N. Nacionales (Nacionales), Dr. Ernesto P. Malvas (Malvas), and Jose Ma. G. Amugod (Amugod), praying for the dismissal of Crim. Case No. SB-09-CRM-0154 for violation of their right to speedy disposition of cases. The Facts Coscolluela served as governor of the Province of Negros Occidental (Province) for three (3) full terms which ended on June 30, 2001. During his tenure, Nacionales served as his Special Projects Division Head, Amugod as Nacionales subordinate, and Malvas as Provincial Health Officer.5 On November 9, 2001, the Office of the Ombudsman for the Visayas (Office of the Ombudsman) received a lettercomplaint6 dated November 7, 2001 from Peoples Graftwatch, requesting for assistance to investigate the anomalous purchase of medical and agricultural equipment for the Province in the amount of P20,000,000.00 which allegedly happened around a month before Coscolluela stepped down from office. Acting on the letter-complaint, the Case Building Team of the Office of the Ombudsman conducted its investigation, resulting in the issuance of a Final Evaluation Report 7 dated April 16, 2002 which upgraded the complaint into a criminal case against petitioners.8 Consequently, petitioners filed their respective counter-affidavits.9 On March 27, 2003, the assigned Graft Investigation Officer Butch E. Caares (Caares) prepared a Resolution (March 27, 2003 Resolution), finding probable cause against petitioners for violation of Section 3(e) of Republic Act No. (RA) 3019, otherwise known as the "Anti-Graft and Corrupt Practices Act," and recommended the filing of the corresponding information. On even date, the Information 10 was prepared and signed by Caares and submitted to Deputy Ombudsman for the Visayas Primo C. Miro (Miro) for recommendation. Miro recommended the approval of the Information on June 5, 2003. However, the final approval of Acting Ombudsman Orlando C. Casimiro (Casimiro), came only on May 21, 2009, and on June 19, 2009, the Information was filed before the SB. Petitioners alleged that they learned about the March 27, 2003 Resolution and Information only when they received a copy of the latter shortly after its filing with the SB.11

On July 9, 2009, Coscolluela filed a Motion to Quash,12 arguing, among others, that his constitutional right to speedy disposition of cases was violated as the criminal charges against him were resolved only after almost eight (8) years since the complaint was instituted. Nacionales, Malvas, and Amugod later adopted Coscolluelas motion. In reply, the respondents filed their Opposition to Motion to Quash 13 dated August 7, 2009, explaining that although the Information was originally dated March 27, 2003, it still had to go through careful review and revision before its final approval. It also pointed out that petitioners never raised any objections regarding the purported delay in the proceedings during the interim.14 The Ruling of the Sandiganbayan In a Resolution15 dated October 6, 2009, the SB denied petitioners Motion to Quash for lack of merit. It held that the preliminary investigation against petitioners was actually resolved by Caares on March 27, 2003, one (1) year and four (4) months from the date the complaint was filed, or in November 9, 2001. Complying with internal procedure, Caares then prepared the March 27, 2003 Resolution and Information for the recommendation of the Miro and eventually, the final approval of the Casimiro. As these issuances had to undergo careful review and revision through the various levels of the said office, the period of delay i.e., from March 27, 2003 to May 21, 2009, or roughly over six (6) years cannot be deemed as inordinate16 and as such, petitioners constitutional right to speedy disposition of cases was not violated. 17 Aggrieved, petitioners filed their respective Motions for Reconsideration 18 dated November 9, 2009 and November 6, 2009, similarly arguing that the SB erred in making a distinction between two time periods, namely: (a) from the filing of the complaint up to the time Caares prepared the resolution finding probable cause against petitioners; and (b) from the submission of the said resolution to the Acting Ombudsman for review and approval up to the filing of the Information with the SB. In this regard, petitioners averred that the aforementioned periods should not be compartmentalized and thus, treated as a single period. Accordingly, the delay of eight (8) years of the instant case should be deemed prejudicial to their right to speedy disposition of cases.19 The SB, however, denied the foregoing motions in its Resolution 20 dated February 10, 2010 for lack of merit. Hence, the instant petitions. The Issue Before the Court The sole issue raised for the Courts resolution is whether the SB gravely abused its discretion in finding that petitioners right to speedy disposition of cases was not violated. The Courts Ruling The petitions are meritorious. A persons right to the speedy disposition of his case is guaranteed under Section 16, Article III of the 1987 Philippine Constitution (Constitution) which provides: SEC. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. This constitutional right is not limited to the accused in criminal proceedings but extends to all parties in all cases, be it civil or administrative in nature, as well as all proceedings, either judicial or quasi-judicial. In this accord, any party to a case may demand expeditious action to all officials who are tasked with the administration of justice. 21 It must be noted, however, that the right to speedy disposition of cases should be understood to be a relative or flexible concept such that a mere mathematical reckoning of the time involved would not be sufficient. 22 Jurisprudence dictates that the right is deemed violated only when the proceedings are attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured; or even without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried. 23 Hence, in the determination of whether the defendant has been denied his right to a speedy disposition of a case, the following factors may be considered and balanced: (1) the length of delay; (2) the reasons for the delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay. 24

Examining the incidents in the present case, the Court holds tha t petitioners right to a speedy disposition of their criminal case had been violated. First, it is observed that the preliminary investigation proceedings took a protracted amount of time to complete. In this relation, the Court does not lend credence to the SBs position that the conduct of preliminary investigation was terminated as early as March 27, 2003, or the time when Caares prepared the Resolution recommending the filing of the Information. This is belied by Section 4, Rule II of the Administrative Order No. 07 dated April 10, 1990, otherwise known as the "Rules of Procedure of the Office of the Ombudsman," which provides: SEC. 4. Procedure The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions: xxxx No information may be filed and no complaint may be dismissed without the written authority or approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all other cases. (Emphasis and underscoring supplied) The above-cited provision readily reveals that there is no complete resolution of a case under preliminary investigation until the Ombudsman approves the investigating officers recommendation to either file an Information with the SB or to dismiss the complaint. Therefore, in the case at bar, the preliminary investigation proceedings against the petitioners were not terminated upon Caares preparation of the March 27, 2003 Resolution and Information but rather, only at the time Casimiro finally approved the same for filing with the SB. In this regard, the proceedings were terminated only on May 21, 2009, or almost eight (8) years after the filing of the complaint. Second, the above-discussed delay in the Ombudsmans resolution of the case largely remains unjustified. To this end, the Court equally denies the SBs ratiocination that the delay in proceedings could be excused by the fact that the case had to undergo careful review and revision through the different levels in the Office of the Ombudsman before it is finally approved, in addition to the steady stream of cases which it had to resolve. Verily, the Office of the Ombudsman was created under the mantle of the Constitution, mandated to be the "protector of the people" and as such, required to "act promptly on complaints filed in any form or manner against officers and employees of the Government, or of any subdivision, agency or instrumentality thereof, in order to promote efficient service."25 This great responsibility cannot be simply brushed aside by ineptitude. Precisely, the Office of the Ombudsman has the inherent duty not only to carefully go through the particulars of case but also to resolve the same within the proper length of time. Its dutiful performance should not only be gauged by the quality of the assessment but also by the reasonable promptness of its dispensation. Thus, barring any extraordinary complication, such as the degree of difficulty of the questions involved in the case or any event external thereto that effectively stymied its normal work activity any of which have not been adequately proven by the prosecution in the case at bar there appears to be no justifiable basis as to why the Office of the Ombudsman could not have earlier resolved the preliminary investigation proceedings against the petitioners. Third, the Court deems that petitioners cannot be faulted for their alleged failure to assert their right to speedy disposition of cases. Records show that they could not have urged the speedy resolution of their case because they were unaware that the investigation against them was still on-going. They were only informed of the March 27, 2003 Resolution and Information against them only after the lapse of six (6) long years, or when they received a copy of the latter after its filing with the SB on June 19, 2009.26 In this regard, they could have reasonably assumed that the proceedings against them have already been terminated. This serves as a plausible reason as to why petitioners never followed-up on the case altogether. Instructive on this point is the Courts observation in Duterte v. Sandiganbayan, 27 to wit: Petitioners in this case, however, could not have urged the speedy resolution of their case because they were completely unaware that the investigation against them was still on-going. Peculiar to this case, we reiterate, is the fact that petitioners were merely asked to comment, and not file counter-affidavits which is the proper procedure to follow in a

preliminary investigation. After giving their explanation and after four long years of being in the dark, petitioners, naturally, had reason to assume that the charges against them had already been dismissed. On the other hand, the Office of the Ombudsman failed to present any plausible, special or even novel reason which could justify the four-year delay in terminating its investigation. Its excuse for the delay the many layers of review that the case had to undergo and the meticulous scrutiny it had to entail has lost its novelty and is no longer appealing, as was the invocation in the Tatad case. The incident before us does not involve complicated factual and legal issues, specially (sic) in view of the fact that the subject computerization contract had been mutually cancelled by the parties thereto even before the Anti-Graft League filed its complaint. (Emphasis and underscoring supplied) Being the respondents in the preliminary investigation proceedings, it was not the petitioners duty to follow up on the prosecution of their case. Conversely, it was the Office of the Ombudsmans responsibility to expedite the same withi n the bounds of reasonable timeliness in view of its mandate to promptly act on all complaints lodged before it. As pronounced in the case of Barker v. Wingo:28 A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Fourth, the Court finally recognizes the prejudice caused to the petitioners by the lengthy delay in the proceedings against them. Lest it be misunderstood, the right to speedy disposition of cases is not merely hinged towards the objective of spurring dispatch in the administration of justice but also to prevent the oppression of the citizen by holding a criminal prosecution suspended over him for an indefinite time. Akin to the right to speedy trial, its "salutary objective" is to assure that an innocent person may be free from the anxiety and expense of litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose.30 This looming unrest as well as the tactical disadvantages carried by the passage of time should be weighed against the State and in favor of the individual. In the context of the right to a speedy trial, the Court in Corpuz v. Sandiganbayan31 (Corpuz) illumined: A balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc basis. x x x Prejudice should be assessed in the light of the interest of the defendant that the speedy trial was designed to protect, namely: to prevent oppressive pre-trial incarceration; to minimize anxiety and concerns of the accused to trial; and to limit the possibility that his defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. There is also prejudice if the defense witnesses are unable to recall accurately the events of the distant past. Even if the accused is not imprisoned prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion and often, hostility. His financial resources may be drained, his association is curtailed, and he is subjected to public obloquy. Delay is a two-edge sword. It is the government that bears the burden of proving its case beyond reasonable doubt. The passage of time may make it difficult or impossible for the government to carry its burden. The Constitution and the Rules do not require impossibilities or extraordinary efforts, diligence or exertion from courts or the prosecutor, nor contemplate that such right shall deprive the State of a reasonable opportunity of fairly prosecuting criminals. As held in Williams v. United States, for the government to sustain its right to try the accused despite a delay, it must show two things: (a) that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay; and (b) that there was no more delay than is reasonably attributable to the ordinary processes of justice. Closely related to the length of delay is the reason or justification of the State for such delay. Different weights should be assigned to different reasons or justifications invoked by the State. For instance, a deliberate attempt to delay the trial in order to hamper or prejudice the defense should be weighted heavily against the State. Also, it is improper for the prosecutor to intentionally delay to gain some tactical advantage over the defendant or to harass or prejudice him. On the other hand, the heavy case load of the prosecution or a missing witness should be weighted less heavily against the State. x x x (Emphasis and underscoring supplied; citations omitted) As the right to a speedy disposition of cases encompasses the broader purview of the entire proceedings of which trial proper is but a stage, the above-discussed effects in Corpuz should equally apply to the case at bar. As held in Dansal v. Fernandez, Sr.:32

Sec. 16, Article III of the 1987 Constitution, reads: "Sec. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies." Initially embodied in Section 16, Article IV of the 1973 Constitution, the aforesaid constitutional provision is one of three provisions mandating speedier dispensation of justice. It guarantees the right of all persons to "a speedy disposition of their case"; includes within its contemplation the periods before, during and after trial, and affords broader protection than Section 14(2), which guarantees just the right to a speedy trial. It is more embracing than the protection under Article VII, Section 15, which covers only the period after the submission of the case. The present constitutional provision applies to civil, criminal and administrative cases. (Emphasis and underscoring supplied; citations omitted) Thus, in view of the unjustified length of time miring the Office of the Ombudsmans resolution of the case as well as the concomitant prejudice that the delay in this case has caused, it is undeniabl e that petitioners constitutional right to due process and speedy disposition of cases had been violated. As the institutional vanguard against corruption and bureaucracy, the Office of the Ombudsman should create a system of accountability in order to ensure that cases before it are resolved with reasonable dispatch and to equally expose those who are responsible for its delays, as it ought to determine in this case. Corollarily, for the SBs patent and utter disregard of the existing laws and jurispruden ce surrounding the matter, the Court finds that it gravely abused its discretion when it denied the quashal of the Information. Perforce, the assailed resolutions must be set aside and the criminal case against petitioners be dismissed. While the foregoing pronouncement should, as matter of course, result in the acquittal of the petitioners, it does not necessarily follow that petitioners are entirely exculpated from any civil liability, assuming that the same is proven in a subsequent case which the Province may opt to pursue. Section 2, Rule 111 of the Rules of Court provides that an acquittal in a criminal case does not bar the private offended party from pursuing a subsequent civil case based on the delict, unless the judgment of acquittal explicitly declares that the act or omission from which the civil liability may arise did not exist. 33 As explained in the case of Abejuela v. People,34citing Banal v. Tadeo, Jr.:35 The Rules provide: "The extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In other cases, the person entitled to the civil action may institute it in the jurisdiction and in the manner provided by law against the person who may be liable for restitution of the thing and reparation or indemnity for the damage suffered." xxxx In Banal vs. Tadeo, Jr., we declared: "While an act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Viewing things pragmatically, we can readily see that what gives rise to the civil liability is really the obligation and moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, done intentionally or negligently, whether or not the same be punishable by law."(Emphasis and underscoring supplied) Based on the violation of petitioners right to speedy disposition of cases as herein discussed, the present case stands to be dismissed even before either the prosecution or the defense has been given the chance to present any evidence. Thus, the Court is unable to make a definite pronouncement as to whether petitioners indeed committed the acts or omissions from which any civil liability on their part might arise as prescribed under Section 2, Rule 120 of the Rules of Court.36Consequently, absent this pronouncement, the Province is not precluded from instituting a subsequent civil case based on the delict if only to recover the amount of P20,000,000.00 in public funds attributable to petitioners alleged malfeasance. WHEREFORE, the petitions are hereby GRANTED. The assailed Resolutions dated October 6, 2009 and February 10, 2010 of the First Division of the Sandiganbayan are ANNULLED and SET ASIDE. The Sandiganbayan is likewise ordered to DISMISS Crim. Case No. SB-09-CRM-0154 for violation of the Constitutional right to speedy disposition of cases of petitioners Rafael L. Coscolluela, Edwin N. Nacionales, Dr. Ernesto P. Malvas, and Jose Ma. G. Amugod, without prejudice to any civil action which the Province of Negros Occidental may file against petitioners.

SO ORDERED. ESTELA M. PERLAS-BERNABE Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice Chairperson MARIANO C. DEL CASTILLO Associate Justice JOSE PORTUGAL PEREZ Associate Justice

JOSE CATRAL MENDOZA* Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the cases were assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the cases were assigned to the writer of the opinion of the Court's Division . MARIA LOURDES P.A. SERENO Chief Justice

Footnotes
*

Designated Acting Member per Special Order No. 1484 dated July 9, 2013. Rollo (G.R. No. 191411), pp. 3-27; rollo (G.R. No. 191871), pp. 4-22.

Rollo (G.R. No. 191411), pp. 48-51; rollo (G.R. No. 191871), pp. 26-29. Penned by Associate Justice Rodolfo A. Ponferrada, with Associate Justices Norberto Y. Geraldez and Alexander G. Gesmundo, concurring.
2 3

Rollo (G.R. No. 191411), pp. 52-54; rollo (G.R. No. 191871), pp. 32-34. Rollo (G.R. No. 191871), pp. 41-50. Rollo (G.R. No. 191411), p. 183. Rollo (G.R. No. 191871), pp. 51-53. Rollo (G.R. No. 191411), pp. 112-115; rollo (G.R. No. 191871), pp. 132-135.

Rollo (G.R. No. 191411), p. 114. Rollo (G.R. No. 191871), p. 57. Coscolluela filed his counter-affidavit on November 13, 2002. Rollo (G.R. No. 191411), pp. 43-47. See Information dated March 27, 2003. Id. at 186. Rollo (G.R. No. 191871), pp. 41-50. Id. at 54-62. Id. at 59-60. Rollo (G.R. No. 191411), pp. 48-51; rollo (G.R. No. 191871), pp. 26-29. Rollo (G.R. No. 191411), p. 50; rollo (G.R. No. 191871), p. 28. Rollo (G.R. No. 191411), p. 50; rollo (G.R. No. 191871), p. 28.

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11

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16

17

Rollo (G.R. No. 191411), pp. 31-42 for Coscolluela; rollo (G.R. No. 191871), p. 36-40 for Nacionales, Malvas, and Amugod.
18 19

Rollo (G.R. No. 191411), p. 39; rollo (G.R. No. 191871), p. 38. Rollo (G.R. No. 191411), pp. 52-54; rollo (G.R. No. 191871), pp. 32-34. Roquero v. Chancellor of UP-Manila, G.R. No. 181851, March 9, 2010, 614 SCRA 723, 732. (Citations omitted) Enriquez v. Office of the Ombudsman, G.R. Nos. 174902-06, February 15, 2008, 545 SCRA 618, 626. Roquero v. Chancellor of UP-Manila, supra note 21. Id. at 733. Enriquez v. Office of the Ombudsman, supra note 22, at 627-630. Rollo (G.R. No. 191411), p. 186. 352 Phil. 557, 582-583 (1998). 407 U.S. 514 (1972). Corpuz v. Sandiganbayan, 484 Phil. 899, 917 (2004). (Citations omitted) Mari v. Gonzales, G.R. No. 187728, September 12, 2011, 657 SCRA 414, 423. Corpuz v. Sandiganbayan, supra note 29 at 917-919. 383 Phil. 897, 905 (2000). (Citations omitted) Section 2, Rule 111 of the Rules of Court partly provides: SEC. 2. When separate civil action is suspended. xxxx

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27

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The extinction of the penal action does not carry with it extinction of the civil action. However, the civil action based on delict may be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist.
34

G.R. No. 80130, August 19, 1991, 200 SCRA 806, 814-815. 240 Phil. 326, 331 (1987). Section 2, Rule 120 of the Rules of Court partly provides: SEC. 2. Contents of the Judgment. xxxx In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist. (Emphasis supplied)

35

36

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 185527 July 18, 2012

HARRY L. GO, TONNY NGO, JERRY NGO AND JANE GO, Petitioners, vs. THE PEOPLE OF THE PHILIPPINES and HIGHDONE COMPANY, LTD., ET AL., Respondents. DECISION PERLAS-BERNABE, J.: The procedure for taking depositions in criminal cases recognizes the prosecution's right to preserve testimonial evidence and prove its case despite the unavailability of its witness. It cannot, however, give license to prosecutorial indifference or unseemly involvement in a prosecution witness' absence from trial. To rule otherwise would effectively deprive the accused of his fundamental right to be confronted with the witnesses against him. In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioners seek to nullify and set aside the February 19, 2008 Decision1 and November 28, 2008 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 99383, which reversed the September 12, 2006 Order3 issued by the Regional Trial Court (RTC) of Manila, Branch 27 in Civil Case No. 06-114844 and upheld the grant of the prosecutions motion to take the testimony of a witness by oral depositions in Laos, Cambodia. Petitioners Harry Go, Tonny Ngo, Jerry Ngo and Jane Go were charged before the Metropolitan Trial Court (MeTC) of Manila for Other Deceits under Article 318 of the Revised Penal Code (RPC) docketed as Criminal Case No. 396447. The Information4 dated September 24, 2003, later amended5 on September 14, 2004, reads: "That sometime in August 1996, in the City of Manila, Philippines, the said accused, conspiring, confederating together and helping one another, did then and there willfully, unlawfully and feloniously defraud Highdone Company Ltd. Represented by Li Luen Ping, in the following manner, to wit: all said accused, by means of false manifestations and fraudulent representations which they made to said Li Luen Ping to the effect that they have chattels such as machinery, spare parts, equipment and raw materials installed and fixed in the premises of BGB Industrial Textile Mills Factory located in the Bataan Export Processing Zone (BEPZ) in Mariveles, Bataan, executed a Deed of Mortgage for a consideration of the amount of $464,266.90 or its peso equivalent at P20,892,010.50 more or less in favor of ML Resources and Highdone Company Ltd. Representing that the said deed is a FIRST MORTGAGE when in truth and in fact the accused well knew that the same had been previously encumbered, mortgaged and foreclosed by CHINA BANK CORPORATION as early as September 1994 thereby causing damage and prejudice to said HIGHDONE COMPANY LTD., in the said amount of $464,266.90 or its peso equivalent at P20,892,010.50 more or less." Upon arraignment, petitioners pleaded not guilty to the charge. The prosecution's complaining witness, Li Luen Ping, a frail old businessman from Laos, Cambodia, traveled from his home country back to the Philippines in order to attend the hearing held on September 9, 2004. However, trial dates were subsequently postponed due to his unavailability. On October 13, 2005, the private prosecutor filed with the MeTC a Motion to Take Oral Deposition 6 of Li Luen Ping, alleging that he was being treated for lung infection at the Cambodia Charity Hospital in Laos, Cambodia and that, upon doctor's advice, he could not make the long travel to the Philippines by reason of ill health. Notwithstanding petitioners' Opposition, 7 the MeTC granted8 the motion after the prosecution complied with the directive to submit a Medical Certificate of Li Luen Ping. Petitioners sought its reconsideration which the MeTC denied, 9 prompting petitioners to file a Petition for Certiorari10 before the RTC. On September 12, 2006, the RTC granted the petition and declared the MeTC Orders null and void.11 The RTC held that Section 17, Rule 23 on the taking of depositions of witnesses in civil cases cannot apply suppletorily to the case since there is a specific provision in the Rules of Court with respect to the taking of depositions of prosecution witnesses in criminal

cases, which is primarily intended to safeguard the constitutional rights of the accused to meet the witness against him face to face. Upon denial by the RTC of their motion for reconsideration through an Order dated March 5, 2006, 12 the prosecution elevated the case to the CA. On February 19, 2008, the CA promulgated the assailed Decision which held that no grave abuse of discretion can be imputed upon the MeTC for allowing the deposition-taking of the complaining witness Li Luen Ping because no rule of procedure expressly disallows the taking of depositions in criminal cases and that, in any case, petitioners would still have every opportunity to cross-examine the complaining witness and make timely objections during the taking of the oral deposition either through counsel or through the consular officer who would be taking the deposition of the witness. On November 28, 2008, the CA denied petitioners' motion for reconsideration. Hence, this petition alleging that I.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE METROPOLITAN TRIAL COURT INFRINGED THE CONSTITUTIONAL RIGHT OF THE PETITIONERS TO A PUBLIC TRIAL IN ALLOWING THE TAKING OF THE DEPOSITION OF THE COMPLAINING WITNESS IN LAOS, CAMBODIA. II.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE DEPOSITION TAKING OF THE COMPLAINING WITNESS IN LAOS, CAMBODIA IS AN INFRINGEMENT OF THE CONSTITUTIONAL RIGHT OF THE PETITIONERS TO CONFRONT THE SAID WITNESS FACE TO FACE. III.THE COURT OF APPEALS ERRED IN SUSTAINING THE JUDICIAL LEGISLATION COMMITTED BY THE METROPOLITAN TRIAL COURT IN APPLYING THE RULES ON DEPOSITION-TAKING IN CIVIL CASES TO CRIMINAL CASES. IV.THE COURT OF APPEALS ERRED IN LIMITING THE TRADITIONAL DEFINITION OF GRAVE ABUSE OF DISCRETION, OVERLOOKING THE ESTABLISHED RULE THAT VIOLATION OF THE CONSTITUTION, THE LAW OR JURISPRUDENCE SIMILARLY COMES WITHIN THE PURVIEW OF GRAVE ABUSE OF DISCRETION. We rule in favor of petitioners. The Procedure for Testimonial Examination of an Unavailable Prosecution Witness is Covered Under Section 15, Rule 119. The examination of witnesses must be done orally before a judge in open court. 13 This is true especially in criminal cases where the Constitution secures to the accused his right to a public trial and to meet the witnessess against him face to face. The requirement is the "safest and most satisfactory method of investigating facts" as it enables the judge to test the witness' credibility through his manner and deportment while testifying.14 It is not without exceptions, however, as the Rules of Court recognizes the conditional examination of witnesses and the use of their depositions as testimonial evidence in lieu of direct court testimony. Even in criminal proceedings, there is no doubt as to the availability of conditional examination of witnesses both for the benefit of the defense, as well as the prosecution. The Court's ruling in the case of Vda. de Manguerra v. Risos15 explicitly states that "x x x As exceptions, Rule 23 to 28 of the Rules of Court provide for the different modes of discovery that may be resorted to by a party to an action. These rules are adopted either to perpetuate the testimonies of witnesses or as modes of discovery. In criminal proceedings, Sections 12, 13 and 15, Rule 119 of the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, allow the conditional examination of both the defense and prosecution witnesses." (Underscoring supplied)16 The procedure under Rule 23 to 28 of the Rules of Court allows the taking of depositions in civil cases, either upon oral examination or written interrogatories, before any judge, notary public or person authorized to administer oaths at any time or place within the Philippines; or before any Philippine consular official, commissioned officer or person authorized to administer oaths in a foreign state or country, with no additional requirement except reasonable notice in writing to the other party. 17

But for purposes of taking the deposition in criminal cases, more particularly of a prosecution witness who would forseeably be unavailable for trial, the testimonial examination should be made before the court, or at least before the judge, where the case is pending as required by the clear mandate of Section 15, Rule 119 of the Revised Rules of Criminal Procedure. The pertinent provision reads thus: SEC. 15. Examination of witness for the prosecution. When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused. Since the conditional examination of a prosecution witness must take place at no other place than the court where the case is pending, the RTC properly nullified the MeTC's orders granting the motion to take the deposition of Li Luen Ping before the Philippine consular official in Laos, Cambodia. We quote with approval the RTC's ratiocination in this wise: The condition of the private complainant being sick and of advanced age falls within the provision of Section 15 Rule 119 of the Rules of Court. However, said rule substantially provides that he should be conditionally examined before the court where the case is pending. Thus, this Court concludes that the language of Section 15 Rule 119 must be interpreted to require the parties to present testimony at the hearing through live witnesses, whose demeanor and credibility can be evaluated by the judge presiding at the hearing, rather than by means of deposition. No where in the said rule permits the taking of deposition outside the Philippines whether the deponent is sick or not. 18 (Underscoring supplied) Certainly, to take the deposition of the prosecution witness elsewhere and not before the very same court where the case is pending would not only deprive a detained accused of his right to attend the proceedings but also deprive the trial judge of the opportunity to observe the prosecution witness' deportment and properly assess his credibility, which is especially intolerable when the witness' testimony is crucial to the prosecution's case against the accused. This is the import of the Court's ruling in Vda. de Manguerra19 where we further declared that While we recognize the prosecution's right to preserve the testimony of its witness in order to prove its case, we cannot disregard the rules which are designed mainly for the protection of the accused's constitutional rights. The giving of testimony during trial is the general rule. The conditional examination of a witness outside of the trial is only an exception, and as such, calls for a strict construction of the rules.20 (Underscoring supplied) It is argued that since the Rules of Civil Procedure is made explicitly applicable in all cases, both civil and criminal as well as special proceedings, the deposition-taking before a Philippine consular official under Rule 23 should be deemed allowable also under the circumstances. However, the suggested suppletory application of Rule 23 in the testimonial examination of an unavailable prosecution witness has been categorically ruled out by the Court in the same case of Vda. de Manguerra, as follows: It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil procedure apply to all actions, civil or criminal, and special proceedings. In effect, it says that the rules of civil procedure have suppletory application to criminal cases. However, it is likewise true that criminal proceedings are primarily governed by the Revised Rules of Criminal Procedure. Considering that Rule 119 adequately and squarely covers the situation in the instant case, we find no cogent reason to apply Rule 23 suppletorily or otherwise." (Underscoring supplied) The Conditional Examination of a Prosecution Witness Cannot Defeat the Rights of the Accused to Public Trial and Confrontation of Witnesses The CA took a simplistic view on the use of depositions in criminal cases and overlooked fundamental considerations no less than the Constitution secures to the accused, i.e., the right to a public trial and the right to confrontation of witnesses. Section 14(2), Article III of the Constitution provides as follows: Section 14. (1) x x x

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (Underscoring supplied) In dismissing petitioners' apprehensions concerning the deprivation of their constitutional rights to a public trial and confrontation, the CA opined that petitioners would still be accorded the right to cross-examine the deponent witness and raise their objections during the deposition-taking in the same manner as in a regular court trial. We disagree. There is a great deal of difference between the face-to- face confrontation in a public criminal trial in the presence of the presiding judge and the cross-examination of a witness in a foreign place outside the courtroom in the absence of a trial judge. In the aptly cited case of People v. Estenzo, 21 the Court noted the uniqueness and significance of a witness testifying in open court, thus: "The main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the opportunity of cross-examination. "The opponent", according to an eminent authority, "demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross examination which cannot be had except by the direct and personal putting of questions and obtaining immediate answers." There is also the advantage of the witness before the judge, and it is this it enables the judge as trier of facts "to obtain the elusive and incommunicable evidence of a witness' deportment while testifying, and a certain subjective moral effect is produced upon the witness. It is only when the witness testifies orally that the judge may have a true idea of his countenance, manner and expression, which may confirm or detract from the weight of his testimony. Certainly, the physical condition of the witness will reveal his capacity for accurate observation and memory, and his deportment and physiognomy will reveal clues to his character. These can only be observed by the judge if the witness testifies orally in court. x x x"22(Underscoring supplied)1wphi1 The right of confrontation, on the other hand, is held to apply specifically to criminal proceedings and to have a twofold purpose: (1) to afford the accused an opportunity to test the testimony of witnesses by cross-examination, and (2) to allow the judge to observe the deportment of witnesses. 23 The Court explained in People v. Seneris24 that the constitutional requirement "insures that the witness will give his testimony under oath, thus deterring lying by the threat of perjury charge; it forces the witness to submit to cross-examination, a valuable instrument in exposing falsehood and bringing out the truth; and it enables the court to observe the demeanor of the witness and assess his credibility." 25 As the right of confrontation is intended "to secure the accused in the right to be tried as far as facts provable by witnesses as meet him face to face at the trial who give their testimony in his presence, and give to the accused an opportunity of cross-examination,"26 it is properly viewed as a guarantee against the use of unreliable testimony in criminal trials. In the American case of Crawford v. Washington,27 the US Supreme Court had expounded on the procedural intent of the confrontation requirement, thus: Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's right to confront witness face to face protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability". Certainly, none of the authorities discussed above acknowledges any general reliability exception to the common-law rule. Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined." (Underscoring supplied) The Webb Ruling is Not on All Fours with the Instant Case The CA found the frail and infirm condition of the prosecution witness as sufficient and compelling reason to uphold the MeTC Orders granting the deposition-taking, following the ruling in the case of People v. Webb28 that the taking of an unavailable witness' deposition is in the nature of a discovery procedure the use of which is within the trial court's sound discretion which needs only to be exercised in a reasonable manner and in consonance with the spirit of the law.29 But the ruling in the cited case is not instantly applicable herein as the factual settings are not similar.1wphi1 The accused in the Webb case had sought to take the oral deposition of five defense witnesses before a Philippine consular

agent in lieu of presenting them as live witnesses, alleging that they were all residents of the United States who could not be compelled by subpoena to testify in court. The trial court denied the motion of the accused but the CA differed and ordered the deposition taken. When the matter was raised before this Court, we sustained the trial court's disallowance of the deposition-taking on the limited ground that there was no necessity for the procedure as the matter sought to be proved by way of deposition was considered merely corroborative of the evidence for the defense. 30 In this case, where it is the prosecution that seeks to depose the complaining witness against the accused, the stringent procedure under Section 15, Rule 119 cannot be ignored without violating the constitutional rights of the accused to due process. Finally, the Court takes note that prosecution witness Li Luen Ping had managed to attend the initial trial proceedings before the MeTC of Manila on September 9, 2004. At that time, Li Luen Ping's old age and fragile constitution should have been unmistakably apparent and yet the prosecution failed to act with zeal and foresight in having his deposition or testimony taken before the MeTC pursuant to Section 15, Rule 119 of the Revised Rules of Court. In fact, it should have been imperative for the prosecution to have moved for the preservation of Li Luen Ping's testimony at that first instance given the fact that the witness is a non-resident alien who can leave the Philippines anytime without any definite date of return. Obviously, the prosecution allowed its main witness to leave the court's jurisdiction without availing of the court procedure intended to preserve the testimony of such witness. The loss of its cause is attributable to no other party. Still, even after failing to secure Li Luen Ping's conditional examination before the MeTC prior to said witness' becoming sick and unavailable, the prosecution would capitalize upon its own failure by pleading for a liberal application of the rules on depositions. It must be emphasized that while the prosecution must provide the accused every opportunity to take the deposition of witnesses that are material to his defense in order to avoid charges of violating the right of the accused to compulsory process, the State itself must resort to deposition-taking sparingly if it is to guard against accusations of violating the right of the accused to meet the witnesses against him face to face. Great care must be observed in the taking and use of depositions of prosecution witnesses to the end that no conviction of an accused will rely on ex parte affidavits and deposition.31 Thus, the CA ignored the procedure under the Revised Rules of Criminal Procedure for taking the deposition of an unavailable prosecution witness when it upheld the trial court's order allowing the deposition of prosecution witness Li Luen Ping to take place in a venue other than the court where the case is pending. This was certainly grave abuse of discretion. WHEREFORE, the petition is hereby GRANTED. The assailed Decision dated February 19, 2008 and the Resolution dated November 28, 2008 of the Court of Appeals are REVERSED and SET ASIDE. Accordingly, the Decision of the Regional Trial Court which disallowed the deposition-taking in Laos, Cambodia is REINSTATED. SO ORDERED. ESTELA M. PERLAS-BERNABE Associate justice WE CONCUR: PRESBITERO J. VELASCO, JR. Associate justice Chairperson DIOSDADO M. PERALTA Associate Justice JOSE CATRAL MENDOZA Associate justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was .assigned to the writer of the opinion of the Court's Division. ROBERTO A. ABAD Associate Justice

PRESBITERO J. VELASCO, JR. Associate justice Chairperson, Third Division CERTIFICATION I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. ANTONIO T. CARPIO Senior Associate Justice (Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

Footnotes Penned by Associate Justice Monina Arevalo-Zenarosa, with Presiding Justice Conrado M. Vasquez, Jr. and Associate Justice Edgardo F. Sundiam, concurring; rollo, pp. 44-55.
1 2

Annex "B" of the Petition, id. at pp. 56-59. Issued by Judge Teresa P. Soriaso, id. at pp. 136-142. Annex "C" of the Petition, id. at pp. 60-61. Annex "D" of the Petition, id. at pp. 62-63. Annex "E" of the Petition, id. at pp. 64-66 Annex "F" of the Petition, id. at pp. 67-68. Annex "H" of the Petition, id. at pp. 73-74. Annex "L" of the Petition, id. at p. 90. Annex "M" of the Petition, id. at pp. 92-112. RTC Order, Annex "O" of the Petition, id. at pp. 136-142. Annex "R" of the Petition, id. at pp. 173-174. Section 1, Rule 132, Rules of Court. Francisco, R.J., Evidence, 1993 Edition, p. 437. G.R. No. 152643, August 28, 2008, 563 SCRA 499. Id. at pp. 506-507. Sections 1, 10, 11, 14 and 15, Rule 23, 1997 Rules of Civil Procedure. RTC Order, rollo, pp. 138-139. G.R. No. 152643, August 28, 2008, 563 SCRA 499.

10

11

12

13

14

15

16

17

18

19

20

Id. at p. 510. No. L-41166, August 25, 1976, 72 SCRA 428 Id. at 432.

21

22

Bernas, J.G., The 1987 Constitution: A Commentary, 1996 Edition, p. 463, citing U.S. v. Anastacio, 6 Phil. 413, 416 (1906); U.S. v. Raymundo, 14 Phil. 416, 438 (1909); and U.S. v. Javier, 37 Phil. 449, 452 (1918).
23 24

No. L-48883, August 6, 1980, 99 SCRA 92. Citing California v. Green, 339 US 157 (1970). United States v. Javier, No. L-12990, January 21, 1918, 37 Phil. 449, citing Dowdell v. U.S., 22 US 325. 541 U.S. 26 (2004). G.R. No. 132577, August 17, 1999, 312 SCRA 573. CA Decision, rollo, p. 52. People v. Webb, supra note 25, at 592. See Cruz, 1., Constitutional Law, 1995 Edition, p. 324.

25

26

27

28

29

30

31

Republic of the Philippines SUPREME COURT Baguio City FIRST DIVISION G.R. No. 197291 April 3, 2013

DATU ANDAL AMPATUAN JR., Petitioner, vs. SEC. LEILA DE LIMA, as Secretary of the Department of Justice, CSP CLARO ARELLANO, as Chief State Prosecutor, National Prosecution Service, and PANEL OF PROSECUTORS OF THE MAGUINDANAO MASSACRE, headed by RSP PETER MEDALLE, Respondents. DECISION BERSAMIN, J.: In matters involving the exercise of judgment and discretion, mandamus cannot be used to direct the manner or the particular way the judgment and discretion are to be exercised. Consequently, the Secretary of Justice may be compelled by writ of mandamus to act on a letter-request or a motion to include a person in the information, but may not be compelled by writ of mandamus to act in a certain way, i.e., to grant or deny such letter-request or motion. The Case This direct appeal by petition for review on certiorari has been taken from the final order issued on June 27, 2011 in Civil Case No. 10-1247771 by the Regional Trial Court (RTC), Branch 26, in Manila, dismissing petitioners petition for mandamus.2 Antecedents History will never forget the atrocities perpetrated on November 23, 2009, when 57 innocent civilians were massacred in Sitio Masalay, Municipality of Ampatuan, Maguindanao Province. Among the principal suspects was petitioner, then the Mayor of the Municipality of Datu Unsay, Maguindanao Province. Inquest proceedings were conducted against petitioner on November 26, 2009 at the General Santos (Tambler) Airport Lounge, before he was flown to Manila and detained at the main office of the National Bureau of Investigation (NBI). The NBI and the Philippine National Police (PNP) charged other suspects, numbering more than a hundred, for what became aptly known as the Maguindanao massacre.3 Through Department Order No. 948, then Secretary of Justice Agnes Devanadera constituted a Special Panel of Prosecutors to conduct the preliminary investigation. On November 27, 2009, the Department of Justice (DOJ) resolved to file the corresponding informations for murder against petitioner, and to issue subpoenae to several persons.4 On December 1, 2009, 25 informations for murder were also filed against petitioner in the Regional Trial Court, 12th Judicial Region, in Cotabato City. 5 On December 3, 2009, Secretary of Justice Devanadera transmitted her letter to Chief Justice Puno requesting the transfer of the venue of the trial of the Maguindanao massacre from Cotabato City to Metro Manila, either in Quezon City or in Manila, to prevent a miscarriage of justice.6 On December 8, 2009, the Court granted the request for the transfer of venue.7 However, on December 9, 2009, but prior to the transfer of the venue of the trial to Metro Manila, the Prosecution filed a manifestation regarding the filing of 15 additional informations for murder against petitioner in Branch 15 of the Cotabato City RTC.8 Later on, additional informations for murder were filed against petitioner in the RTC in Quezon City, Branch 211, the new venue of the trial pursuant to the resolution of the Court. 9 The records show that petitioner pleaded not guilty to each of the 41 informations for murder when he was arraigned on January 5, 2010,10 February 3, 2010,11 and July 28, 2010.12 In the joint resolution issued on February 5, 2010, the Panel of Prosecutors charged 196 individuals with multiple murder in relation to the Maguindanao massacre.13 It appears that in issuing the joint resolution of February 5, 2010 the Panel of Prosecutors partly relied on the twin affidavits of one Kenny Dalandag, both dated December 7, 2009. 14

On August 13, 2010, Dalandag was admitted into the Witness Protection Program of the DOJ.15 On September 7, 2010, the QC RTC issued its amended pre-trial order,16 wherein Dalandag was listed as one of the Prosecution witnesses.17 On October 14, 2010, petitioner, through counsel, wrote to respondent Secretary of Justice Leila De Lima and Assistant Chief State Prosecutor Richard Fadullon to request the inclusion of Dalandag in the informations for murder considering that Dalandag had already confessed his participation in the massacre through his two sworn declarations.18 Petitioner reiterated the request twice more on October 22, 2010 19 and November 2, 2010.20 By her letter dated November 2, 2010,21 however, Secretary De Lima denied petitioners request. Accordingly, on December 7, 2010, petitioner brought a petition for mandamus in the RTC in Manila (Civil Case No. 10124777),22 seeking to compel respondents to charge Dalandag as another accused in the various murder cases undergoing trial in the QC RTC. On January 19, 2011,23 the RTC in Manila set a pre-trial conference on January 24, 2011 in Civil Case No. 10-124777. At the close of the pre-trial, the RTC in Manila issued a pre-trial order. In their manifestation and motion dated February 15, 201124 and February 18, 2011,25 respondents questioned the propriety of the conduct of a trial in a proceeding for mandamus. Petitioner opposed. On February 15, 2011, petitioner filed a motion for the production of documents, 26 which the RTC in Manila granted on March 21, 2011 after respondents did not file either a comment or an opposition. Respondents then sought the reconsideration of the order of March 21, 2011. On March 21, 2011,27 the RTC in Manila issued a subpoena to Dalandag, care of the Witness Protection Program of the DOJ, requiring him to appear and testify on April 4, 2011 in Civil Case No. 10-124777. On April 4, 2011, respondents moved to quash the subpoena.28 Petitioner opposed the motion to quash the subpoena on April 15, 2011.29 The parties filed other papers, specifically, respondents their reply dated April 26, 2011; 30 petitioner an opposition on May 12, 2011;31 and respondents another reply dated May 20, 2011.32 On June 27, 2011,33 the RTC of Manila issued the assailed order in Civil Case No. 10-124777 dismissing the petition for mandamus.34 Hence, this appeal by petition for review on certiorari. Issues Petitioner raises the following issues, to wit: 1. WHETHER THE PUBLIC RESPONDENTS MAY BE COMPELLED BY MANDAMUS TO INVESTIGATE AND PROSECUTE KENNY DALANDAG AS AN ACCUSED IN THE INFORMATIONS FOR MULTIPLE MURDER IN THE MAGUINADANAO MASSACRE CASES IN LIGHT OF HIS ADMITTED PARTICIPATION THEREAT IN AFFIDAVITS AND OFFICIAL RECORDS FILED WITH THE PROSECUTOR AND THE QC RTC; and, 2. WHETHER THE SUBSEQUENT INCLUSION OF KENNY DALANDAG IN THE WITNESS PROTECTION PROGRAM JUSTIFIES EXCLUSION AS AN ACCUSED AND HIS NON-INDICTMENT FOR HIS COMPLICITY IN THE MAGUINDANAO MASSACRE NOTWITHSTANDING ADMISSIONS MADE THAT HE TOOK PART IN ITS PLANNING AND EXECUTION.35 The crucial issue is whether respondents may be compelled by writ of mandamus to charge Dalandag as an accused for multiple murder in relation to the Maguindanao massacre despite his admission to the Witness Protection Program of the DOJ. Ruling The appeal lacks merit.

The prosecution of crimes pertains to the Executive Department of the Government whose principal power and responsibility are to see to it that our laws are faithfully executed. A necessary component of the power to execute our laws is the right to prosecute their violators. The right to prosecute vests the public prosecutors with a wide range of discretion the discretion of what and whom to charge, the exercise of which depends on a smorgasbord of factors that are best appreciated by the public prosecutors.36 The public prosecutors are solely responsible for the determination of the amount of evidence sufficient to establish probable cause to justify the filing of appropriate criminal charges against a respondent. Theirs is also the quasi-judicial discretion to determine whether or not criminal cases should be filed in court. 37 Consistent with the principle of separation of powers enshrined in the Constitution, the Court deems it a sound judicial policy not to interfere in the conduct of preliminary investigations, and to allow the Executive Department, through the Department of Justice, exclusively to determine what constitutes sufficient evidence to establish probable cause for the prosecution of supposed offenders. By way of exception, however, judicial review may be allowed where it is clearly established that the public prosecutor committed grave abuse of discretion, that is, when he has exercised his discretion "in an arbitrary, capricious, whimsical or despotic manner by reason of passion or personal hostility, patent and gross enough as to amount to an evasion of a positive duty or virtual refusal to perform a duty enjoined by law." 38 The records herein are bereft of any showing that the Panel of Prosecutors committed grave abuse of discretion in identifying the 196 individuals to be indicted for the Maguindanao massacre. It is notable in this regard that petitioner does not assail the joint resolution recommending such number of individuals to be charged with multiple murder, but only seeks to have Dalandag be also investigated and charged as one of the accused based because of his own admissions in his sworn declarations. However, his exclusion as an accused from the informations did not at all amount to grave abuse of discretion on the part of the Panel of Prosecutors whose procedure in excluding Dalandag as an accused was far from arbitrary, capricious, whimsical or despotic. Section 2, Rule 110 of the Rules of Court, which requires that "the complaint or information shall be xxx against all persons who appear to be responsible for the offense involved," albeit a mandatory provision, may be subject of some exceptions, one of which is when a participant in the commission of a crime becomes a state witness. The two modes by which a participant in the commission of a crime may become a state witness are, namely: (a) by discharge from the criminal case pursuant to Section 17 of Rule 119 of the Rules of Court; and (b) by the approval of his application for admission into the Witness Protection Program of the DOJ in accordance with Republic Act No. 6981 (The Witness Protection, Security and Benefit Act).39 These modes are intended to encourage a person who has witnessed a crime or who has knowledge of its commission to come forward and testify in court or quasi-judicial body, or before an investigating authority, by protecting him from reprisals, and shielding him from economic dislocation. These modes, while seemingly alike, are distinct and separate from each other. Under Section 17, Rule 119 of the Rules of Court, the discharge by the trial court of one or more of several accused with their consent so that they can be witnesses for the State is made upon motion by the Prosecution before resting its case. The trial court shall require the Prosecution to present evidence and the sworn statements of the proposed witnesses at a hearing in support of the discharge. The trial court must ascertain if the following conditions fixed by Section 17 of Rule 119 are complied with, namely: (a) there is absolute necessity for the testimony of the accused whose discharge is requested; (b) there is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; (c) the testimony of said accused can be substantially corroborated in its material points; (d) said accused does not appear to be most guilty; and (e) said accused has not at any time been convicted of any offense involving moral turpitude. On the other hand, Section 10 of Republic Act No. 6981 provides: Section 10. State Witness. Any person who has participated in the commission of a crime and desires to be a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present: a. the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code or its equivalent under special laws; b. there is absolute necessity for his testimony; c. there is no other direct evidence available for the proper prosecution of the offense committed;

d. his testimony can be substantially corroborated on its material points; e. he does not appear to be most guilty; and f. he has not at any time been convicted of any crime involving moral turpitude. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Section 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused, so that he can be used as a State Witness under Rule 119 of the Revised Rules of Court. Save for the circumstance covered by paragraph (a) of Section 10, supra, the requisites under both rules are essentially the same. Also worth noting is that an accused discharged from an information by the trial court pursuant to Section 17 of Rule 119 may also be admitted to the Witness Protection Program of the DOJ provided he complies with the requirements of Republic Act No. 6981. A participant in the commission of the crime, to be discharged to become a state witness pursuant to Rule 119, must be one charged as an accused in the criminal case. The discharge operates as an acquittal of the discharged accused and shall be a bar to his future prosecution for the same offense, unless he fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge.40 The discharge is expressly left to the sound discretion of the trial court, which has the exclusive responsibility to see to it that the conditions prescribed by the rules for that purpose exist.41 While it is true that, as a general rule, the discharge or exclusion of a co-accused from the information in order that he may be utilized as a Prosecution witness rests upon the sound discretion of the trial court, 42 such discretion is not absolute and may not be exercised arbitrarily, but with due regard to the proper administration of justice. 43 Anent the requisite that there must be an absolute necessity for the testimony of the accused whose discharge is sought, the trial court has to rely on the suggestions of and the information provided by the public prosecutor. The reason is obvious the public prosecutor should know better than the trial court, and the Defense for that matter, which of the several accused would best qualify to be discharged in order to become a state witness. The public prosecutor is also supposed to know the evidence in his possession and whomever he needs to establish his case,44 as well as the availability or non-availability of other direct or corroborative evidence, which of the accused is the most guilty one, and the like.45 On the other hand, there is no requirement under Republic Act No. 6981 for the Prosecution to first charge a person in court as one of the accused in order for him to qualify for admission into the Witness Protection Program. The admission as a state witness under Republic Act No. 6981 also operates as an acquittal, and said witness cannot subsequently be included in the criminal information except when he fails or refuses to testify. The immunity for the state witness is granted by the DOJ, not by the trial court. Should such witness be meanwhile charged in court as an accused, the public prosecutor, upon presentation to him of the certification of admission into the Witness Protection Program, shall petition the trial court for the discharge of the witness.46 The Court shall then order the discharge and exclusion of said accused from the information.47 The admission of Dalandag into the Witness Protection Program of the Government as a state witness since August 13, 2010 was warranted by the absolute necessity of his testimony to the successful prosecution of the criminal charges. Apparently, all the conditions prescribed by Republic Act No. 6981 were met in his case. That he admitted his participation in the commission of the Maguindanao massacre was no hindrance to his admission into the Witness Protection Program as a state witness, for all that was necessary was for him to appear not the most guilty. Accordingly, he could not anymore be charged for his participation in the Maguindanao massacre, as to which his admission operated as an acquittal, unless he later on refuses or fails to testify in accordance with the sworn statement that became the basis for his discharge against those now charged for the crimes. Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station. It is proper when the act against which it is directed is one addressed to the discretion of the tribunal or officer. In matters involving the exercise of judgment and discretion, mandamus may only be resorted to in order to compel respondent tribunal, corporation, board, officer or person to take action, but it cannot be used to direct the manner or the particular way discretion is to be exercised,48or to compel the retraction or reversal of an action already taken in the exercise of judgment or discretion.49 As such, respondent Secretary of Justice may be compelled to act on the letter-request of petitioner, but may not be compelled to act in a certain way, i.e., to grant or deny such letter-request. Considering that respondent Secretary of Justice already denied the letter-request, mandamus was no longer available as petitioner's recourse.

WHEREFORE, the Court DENIES the petition for review on certiorari; AFFIRMS the final order issued on June 27, 2011 in Civil Case No. 10-124777 by the Regional Trial Court in Manila; and ORDERS petitioner to pay the costs of suit. SO ORDERED. LUCAS P. BERSAMIN Associate Justice WE CONCUR: MARIA LOURDES P. A. SERENO Chief Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice

BIENVENIDO L. REYES Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division MARIA LOURDES P. A. SERENO Chief Justice

Footnotes Entitled Datu Andal Ampatuan, Jr. v. Secretary Leila De Lima, as Secretary of the Department of Justice, CSP Claro Arellano, as Chief State Prosecutor, National Prosecution Service, and Panel of Prosecutors of the Maguindanao Massacre, headed by DCSP Richard Fadullon.
1 2

Rollo, pp. 45-46. Id. at 258. Id. at 672-678. Id. at 679-751. Id. at 752. Id. at 753-757. Id. at 758-759. Id. at 805-806. Id. at 839. Id. at 840. Id. at 841.

10

11

12

13

Id. at 65-141. Id. at 180-189. Id. at 842. Id. at 191-244. Id. at 214. Id. at 246-247. Id. at 249. Id. at 251. Id. at 253. Id. at 255-271. Id. at 300. Id. at 331-334. Id. at 336-340. Id. at 415-417. Id. at 418. Id. at 452-457. Id. at 459-466. Id. at 468-476. Id. at 478-485. Id. at 487-492. Supra, note 2. Rollo, pp. 3-43. Id. p. 11.

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

Soberano v. People, G.R. No. 154629, October 5, 2005, 472 SCRA 125, 139-140; Leviste v. Alameda, G.R. No. 182677, August 3, 2010, 626 SCRA 575, 598.
36

Crespo v. Mogul, No. L-53373, June 30, 1987, 151 SCRA 462, 410; Paderanga v. Drilon, G.R. No. 96080, April 19, 1991, 196 SCRA 86, 90.
37

Glaxosmithkline Philippines, Inc. v. Khalid Mehmood Malik, G.R. No. 166924, August 17, 2006, 499 SCRA 268, 273; Metropolitan Bank and Trust Company v. Reynado, G.R. No. 164538 August 9, 2010, 627 SCRA 88, 101.
38 39

Approved on April 24, 1991.

40

Section 18, Rule 119, Rules of Court. People v. Tabayoyong, No. L-31084, May 29, 1981, 104 SCRA 724, 739.

41

Chua v. Court of Appeals, G.R. No. 103397, August 28, 1996, 261 SCRA 112, 120; citing U.S. v. De Guzman, 30 Phil. 416 (1915) and U.S. v. Bonete, 40 Phil. 958 (1920).
42

Ramos v. Sandiganbayan, G.R. No. 58876, November 27, 1990, 191 SCRA 671, 682; People v. De Atras, No. L27267, May 29, 1969, 28 SCRA 389, 392.
43 44

People v. Ocimar, G.R. No. 94555, August 17, 1992, 212 SCRA 646, 655. People v. Court of Appeals, No. L-62881, August 30, 1983, 124 SCRA 338, 343. Section 12, Republic Act No. 6981. Id.

45

46

47

See Quarto v. Marcelo, G.R. No. 169042, October 5, 2011, 658 SCRA 580, 594; Angchangco, Jr. v. Ombudsman, 335 Phil. 766 ( 1997).
48 49

Angchangco, Sr. v. Ombudsman, supra, 771-772.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 159450 March 30, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. OLIVIA ALETH GARCIA CRISTOBAL, Accused-Appellant. DECISION BERSAMIN, J.: Although a waiver of the right to present evidence by the accused is not a trivial matter to be lightly regarded by the trial court, the filing of the demurrer to evidence without express leave of court operates as a waiver that binds the accused pursuant to the express provision of the Rules of Court. Under challenge in this appeal is the decision promulgated on July 31, 2003 in C.A.-G.R. CR No. 24556, whereby the Court of Appeals (CA) affirmed the conviction for qualified theft of the accused, a teller of complainant Prudential Bank, and punished her with reclusion perpetua,1 thereby modifying the decision dated May 26, 2000 rendered by the Regional Trial Court, Branch 57, in Angeles City (RTC),2 imposing an indeterminate sentence from ten (10) years and one (1) day ofprision mayor as minimum to twenty (20) years of reclusion temporal as maximum. Antecedents The information charged the accused with qualified theft, alleging: That on or about the 2nd of January, 1996, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, OLIVIA ALETH GARCIA CRISTOBAL, being then the teller of Prudential Bank, Angeles Main Branch, Sto. Rosario Street, Angeles City, and as such is entrusted with cash and other accountabilities, with grave abuse of trust and confidence reposed upon her by her employer, with intent to gain and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and carry away cash money amounting to $10,000.00, belonging to the Prudential Bank, Angeles Main Branch, represented by its Branch Manager, EDGARDO PANLILIO, to the damage and prejudice of Prudential Bank, Angeles Main Branch, in the aforementioned amount of TEN THOUSAND DOLLARS ($10,000.00) or its equivalent of TWO HUNDRED SIXTY THOUSAND PESOS (P260,000.00), Philippine Currency and parity rate. ALL CONTRARY TO LAW.3 After the accused pleaded not guilty at arraignment, the State presented four witnesses, namely: Prudential Bank Branch Manager Edgardo Panlilio, Sr., Bank Auditor Virgilio Frias, Bank Cashier Noel Cunanan, and account holder Apolinario Tayag. The summary of the evidence of the State rendered in the assailed decision of the CA follows:4 xxx Among the six tellers in the Angeles City main branch of Prudential Bank, accused-appellant (hereafter "appellant") was the only teller assigned to handle dollar deposits and withdrawals. On January 2, 1996, an internal spot-audit team headed by Prudential Banks senior audit examiner Virgilio Frias ("Frias"), inventoried the cash accountabilities of the said branch by manually counting the money in eac h of the tellers cash boxes. While the books of the branch showed that appellant had a cash accountability of $15,040.52, the money in her cash box was only $5,040.52.

Asked about the shortage of $10,000.00, appellant explained that there was a withdrawal of $10,000.00 on December 29, 1995 after the cut-off time which would be treated as a withdrawal on January 2, 1996. Appellant then presented to Frias a withdrawal memo dated January 2, 1996 showing a withdrawal of $10,000.00 from Dollar Savings Account No. FX-836 ("FX-836") of Adoracion Tayag and her co-signatory, Apolinario Tayag. On January 3, 1996, appellant showed the aforesaid withdrawal memo to the branch cashier, Noel Cunanan ("Cunanan"). Noticing that the said withdrawal memo did not contain the required signatures of two bank officers, Cunanan asked appellant what the nature of the transaction was. Appellant replied that the depositor, Apolinario Tayag, had instructed her to withdraw $10,000.00 from his account on January 3, 1996, through his driver whom he had sent to the bank. Cunanan, however, did not notice that while the withdrawal was supposed to have been made on January 3, 1996, the withdrawal memo was dated January 2, 1996. Cunanan then instructed appellant to have the withdrawal posted in the corresponding ledger and to bring the withdrawal memo back to him so he and the branch manager, Edgardo Panlilio, could affix their signatures. Meanwhile, Frias checked the account ledger of FX-836, and found a "hold jacket" indicating that no withdrawal from the said account should be allowed to reduce its balance below $35,000.00. The supposed withdrawal of $10,000.00 had reduced the account balance of FX-836 to $26,077.51. From the account ledger, Frias also discovered that a deposit of $10,000.00 was made on January 2, 1996. He found the deposit memo on file. Thereafter, Frias compared the signature on the withdrawal memo with the specimen signatures of the depositors in their signature card. Finding a "big difference" in the signatures, he referred the matter to the branch manager, Edgardo Panlilio ("Panlilio"). Asked by Panlilio to explain, appellant reiterated that the withdrawal was made after the cut-off time on December 29, 1995. Doubting her explanation, Frias conducted another cash count. At that time, appellants accountability based on the books of the bank was $21,778.86, but the money in her cash box was only $11,778.86, thus, short of US$10,000.00. When Panlilio again asked appellant to explain, the latter started to cry and said she would explain to the bank president. The next day, January 4, 1996, appellant told Panlilio that she gave the $10,000.00 to a person on December 29, 1995 because her family was being threatened. In her letter to the bank president dated January 4, 1996, appellant apologized and explained her shortage of $10,000.00 and another shortage of P2.2 Million which the audit team had also discovered. She wrote: Sometime in the month of September, a man approached me at my counter and handed me a note demanding me (sic) to give him a big amount of money of P600,000. I looked at him and told him I dont have any. He told me to get at my drawer and not to tell anybody because their companions are at the nearby of my house (sic) and threatened me that something will happened (sic) to my kids. That time he looked back and I also saw another man w/ radio at his waist, who stood up and went out. I nervously handed him the money. While doing this, I tried to pull the alarm at my counter but it was out of order. This alarm was out of order for quite sometime but I was still hoping it might work. Since that day, time and again, he kept on coming back and I couldnt do anything but to give in to his request. His second, he demanded for (sic) another P600,000 but I gave him only P530,000. The 3rd & 4th was P550,000 each. Last December 29, 1995 at around 3:00 pm, I was surprised to see him at my counter, again, he was asking for money. I was balancing my dollar transaction. But that time, I had delivered my peso cash box to our cashier. He saw the bundle of $10,000 which was on top of my desk because I was writing the breakdown on my cash count. He wanted me to give it to him & this time he pointed a gun at me and I got so nervous & gave him the dollars. During this time, in order for me to be balance with (sic) my transactions, I cash out checks (suppose to be for late deposit) & included them in todays clearing. The following day, I validated the deposit slips as cash deposit. . . Apolinario Tayag denied withdrawing $10,000.00 from FX-836 either on December 29, 1995 or on January 2, 1996 when he was in Baguio City. He said he was not familiar with the withdrawal and deposit memos showing the withdrawal of $10,000.00 from the said account and the subsequent deposit of the same amount therein. He also denied the signatures thereon as his or his mothers. xxx Upon the State resting its case against the accused, her counsel filed a Demurrer to Evidence and Motion to Defer Defense Evidence,5 praying for the dismissal of the charge on the ground that the evidence of the State did not suffice to establish her guilt beyond reasonable doubt.

However, the RTC denied the Demurrer to Evidence and Motion to Defer Defense Evidence and deemed the case submitted for decision on the basis that her filing her demurrer to evidence without express leave of court as required by Section 15, Rule 119, of the Rules of Court had waived her right to present evidence, viz: 6 WHEREFORE, the Demurer to Evidence filed by the accused is hereby denied for lack of merit. Reviewing further the records of this case, there is evidence and proof that the Demurrer to Evidence filed by the accused Cristobal is without express leave of court hence, under Section 15 par. 2 of Rule 119, accused Cristobal has waived her right to present evidence and submit the case for judgment on the basis of the evidence for the prosecution. In view thereof, this case filed against accused Cristobal is hereby submitted for decision. SO ORDERED. On May 26, 2000, therefore, the RTC rendered its decision finding and pronouncing the accused guilty of qualified theft,7disposing: WHEREFORE, the Court finds Olivia Aleth Cristobal guilty beyond reasonable doubt of the crime of Qualified Theft and hereby sentences her to suffer the penalty of imprisonment of ten (10) years and one (1) day of prision mayor to twenty (20) years of reclusion temporal as maximum. Accused Cristobal is also ordered to pay Prudential Bank, the amount of US $10,000.00, representing the amount that was lost, plus interest. SO ORDERED. The accused appealed, but the CA affirmed her conviction on July 31, 2003, albeit modifying the penalty, 8 finding and ruling as follows: The following circumstances as established by the prosecutions evidence, show beyond reasonable doubt that appellant stole US$10,000.00 from Prudential Bank: 1. Appellant was the only teller in the Angeles City main branch of Prudential Bank assigned to handle dollar transactions. Thus, it was only she who had access to the subject account for purposes of dollar deposits and withdrawals; 2. She admitted having transacted or processed the supposed withdrawal of US$10,000.00 from dollar savings account no. FX-836; 3. It was she who presented to the head auditor, Rolando Frias, the withdrawal memo for US$10,000.00 supposedly withdrawn from dollar savings account no. FX-836, saying that it was withdrawn on December 29, 1995 after the cut-off time and would be considered a withdrawal on January 2, 1996; 4. The said withdrawal memo did not contain the required signatures of two bank officers; 5. The supposed withdrawal of $10,000.00 from dollar savings account no. FX-836 reduced the balance thereof toP26,077.51, violating the "hold jacket" or instruction in the account ledger which disallowed any withdrawal from the said account that would reduce the balance thereof below P35,000.00; 6. The discrepancy in the signature on the withdrawal memo and the specimen signatures in the depositors signature card; 7. Asked to explain the shortage of $10,000.00 revealed by the second cash count, following the discovery of the aforesaid "hold jacket" in the account ledger and discrepancy in the signatures, appellant began to cry, saying she would just explain to the bank president; 8. The depositor, Apolinario Tayag, denied withdrawing money from dollar savings account no. FX-836 either on December 29, 1995, when appellant claimed the withdrawal was made, or on January 2, 1996, the date of the withdrawal memo, at which time he was in Baguio City. He was not familiar with the withdrawal and deposit

memos showing the withdrawal of $10,000.00 from the said account and the subsequent deposit of the same amount therein. He also denied that the signatures thereon belong to him or his mother, Adoracion Tayag, with whom he shares the account as co-signatory; 9. In her letter to the bank president, she admitted appropriating US$10,000.00 and P2.2 Million, and explained how she covered it up; 10. Appellant gave different and inconsistent explanations for her shortage of US$10,000.00. She explained to the auditors that the said amount was withdrawn on December 29, 1995 after the cut-off time, hence, would be considered as a withdrawal on January 2, 1996. To the branch cashier, Noel Cunanan, she said that Apolinario Tayag had instructed her to withdraw $10,000.00 from his account on January 3, 1996, through his driver whom he had sent to the bank. Later, she told Panlilio and the bank president that she gave the $10,000.00 to a person on December 29, 1995 because he had threatened her family; and 11. In her letter to the bank president, she mentioned five instances when the unidentified man supposedly threatened her and demanded money from her. However, she never reported any of these incidents to any of the bank officers or the police authorities. Even without an eyewitness, the foregoing circumstances indicate that appellant committed the crime, to the exclusion of all others. In the absence of an eyewitness, reliance on circumstantial evidence becomes inevitable. Circumstantial evidence is defined as that which indirectly proves a fact in issue through an inference which the factfinder draws from the evidence established. Resort thereto is essential when the lack of direct testimony would, in many cases, result in setting a felon free and denying proper protection to the community. In order that circumstantial evidence may be sufficient to convict, the same must comply with these essential requisites, viz., (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. As hereinbefore shown, there is more than one circumstance or indication of appellants guilt. Moreover, the said circumstances, from which the act of taking could be inferred, had been established by the prosecutions evidence. And the combination of the said circumstances is clearly sufficient to convict the appellant of qualified theft beyond reasonable doubt. In conclusion, We hold that the totality of the evidence points to no other conclusion than that accused-appellant is guilty of the crime charged. Evidence is weighed not counted. When facts or circumstances which are proved are not only consistent with the guilt of the accused but also inconsistent with his innocence, such evidence, in its weight and probative force, may surpass direct evidence in its effect upon the court. This is how it is in this case. xxx WHEREFORE, the assailed Decision convicting the accused-appellant of Qualified Theft is hereby AFFIRMED withMODIFICATION in that the penalty shall be reclusion perpetua and the accessory penalties of death under Article 40 of the Revised Penal Code, and accused-appellant shall pay Prudential Bank US$10,000.00, without interest. SO ORDERED. Issues In her appeal, the accused submits that the CA gravely erred: 1. xxx in affirming the conviction of the accused on the basis of an information for qualified theft that charges the accused to have taken $10,000.00 on January 2, 1996 when the evidence on record based on various admissions of the prosecution's witnesses reveal that the accused did not and cannot take away $10,000.00 on January 2, 1996. 2. xxx in affirming the conviction of the accused based on an extra-judicial admission that was made without assistance of counsel and hearsay evidence as testified by the next most possible suspects to the loss.

3. xxx in affirming the conviction of the accused when the facts and evidence on record do not satisfy the elements of the crime as charged. 4. xxx in affirming the conviction of the accused when the very procedure employed by the trial court in the case at bench showed leniency to the prosecution and strictness to the defense in violation of the constitutional and statutory rights of the accused. 5. xxx in affirming the ruling of the trial court that the accused had waived her right to present evidence-in-chief despite the expressed motion to defer its presentation when the demurrer to evidence was filed.9 The assigned errors are restated thuswise: (a) Whether the information filed against the accused was fatally defective; (b) Whether the RTC correctly found that the accused had waived her right to present evidence in her defense; and (c) Whether the extrajudicial admission of taking the amount involved contained in the letter of the accused to the President of Prudential Bank was admissible under the rules and jurisprudence. Ruling We deny the petition for review and affirm the CAs decision. 1. Findings of CA and RTC are affirmed due to being based on the evidence There is no question about the findings of fact being based on the evidence adduced by the Prosecution. The decisions of both lower courts are remarkable for their thoroughness and completeness. In fact, the accused did not impugn the findings of fact, and confined herself only to the validity of the information and the legality of her letter due to its being held admissible as evidence against her. Although she decried her failure to present her evidence on account of her having demurred without express leave of court, that, too, was not an obstacle to the correctness of the findings of fact against her. Thus, we sustain the findings of fact, for findings of the CA upon factual matters are conclusive and ought not to be disturbed unless they are shown to be contrary to the evidence on record.10 2. Information was sufficient and valid The petitioner submits that the information charged her with qualified theft that allegedly transpired on December 29, 1995, but the evidence at trial could not be the basis of her conviction because it actually proved that the taking had transpired on January 2, 1996; and that the discrepancy would unduly prejudice her rights as an accused to be informed of the charges as to enable her to prepare for her defense. To bolster her submission, she cites the testimony of Virgilio Frias11 to the effect that she was cleared of her accountability upon her turning her cash box over to the bank cashier on December 29, 1995, thereby negating the accusation that she had taken the money on December 29, 1995. The petitioners submission is untenable. The main purpose of requiring the various elements of a crime to be set forth in the information is to enable the accused to adequately prepare her defense.12 As to the sufficiency of the allegation of the time or date of the commission of the offense, Section 6 and Section 11, Rule 110 of the Revised Rules of Court, the rules applicable, 13 provide: Section 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense; and the place wherein the offense was committed.

When an offense is committed by more than one person, all of them shall be included in the complaint or information. (5a) Section 11. Time of the commission of the offense. It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit. (10) Conformably with these rules, the information was sufficient because it stated the approximate time of the commission of the offense through the words "on or about the 2nd of January, 1996," and the accused could reasonably deduce the nature of the criminal act with which she was charged from a reading of its contents as well as gather by such reading whatever she needed to know about the charge to enable her to prepare her defense. The information herein did not have to state the precise date when the offense was committed, considering that the date was not a material ingredient of the offense. As such, the offense of qualified theft could be alleged to be committed on a date as near as possible to the actual date of its commission.14 Verily, December 29, 1995 and January 2, 1996 were dates only four days apart. With the information herein conforming to the standard erected by the Revised Rules of Court and pertinent judicial pronouncements, the accused was fully apprised of the charge of qualified theft involving the US$10,000.00 belonging to her employer on or about January 2, 1996. 3. CA and RTC did not err in deeming petitioner to have waived her right to present evidence The accused contended that: xxx (2) The trial court denied accused (sic) Demurrer To Evidence and Motion To Defer Defense Evidence and ruled that the accused is considered to have waived her evidence (for alleged lack of leave of court). Although the accused is not principally relying on this error (because the prosecutions own evidence show that she is not guilty), still it was error for the trial court to deprive the accused of her day in court because the demurrer was at the same time, as stated in the title thereof, also a motion to defer defense evidence.15 The CA rejected her contention in the following manner:16 As to whether or not the Trial Court correctly ruled that appellant waived the presentation of her evidence when she filed her "Demurrer To Evidence and Motion to Defer Evidence" without prior leave of court, We rule in the affirmative. Appellants theory that prior leave of court had been requested because her demurrer was, at the same time, also a motion to defer defense evidence, cannot be sustained. A motion to defer evidence does not constitute a request for leave to file a demurrer to evidence. In fact, such motion indicates that appellant wanted the Trial Court to consider the demurrer before proceeding to hear her evidence. Furthermore, there is nothing in appellants Demurrer from which it can be inferred that appellant was asking the Trial Court permission to move for the dismissal of the case. Section 15, Rule 119 of the Rules of Criminal Procedure provides: Sec. 15. Demurrer to Evidence. After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court. If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When the accused files such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (Emphasis supplied.)

Clearly, when the accused files such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. In such a case, the waiver of the right to present defense evidence is unqualified. Unavoidably, Our attention is drawn to the apparent negligence of appellants counsel in failing to secure prior leave of court before filing her Demurrer to Evidence. However, We cannot lose sight of the fact that in law, the negligence of appellants counsel binds her. Indeed, jurisprudence teems with pronouncements that a client is bound by the conduct, negligence and mistakes of his counsel. The CA did not thereby err. The rule in point is Section 15, Rule 119, of the Revised Rules of Court, viz: Section 15. Demurrer to evidence. After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court. If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When the accused files such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (n) Under the rule, the RTC properly declared the accused to have waived her right to present evidence because she did not obtain the express leave of court for her demurrer to evidence, thereby reflecting her voluntary and knowing waiver of her right to present evidence. The RTC did not need to inquire into the voluntariness and intelligence of the waiver, for her opting to file her demurrer to evidence without first obtaining express leave of court effectively waived her right to present her evidence. It is true that the Court has frequently deemed the failure of the trial courts to conduct an inquiry into the voluntariness and intelligence of the waiver to be a sufficient cause to remand cases to the trial courts for the purpose of ascertaining whether the accused truly intended to waive their constitutional right to be heard, and whether they understood the consequences of their waivers.17 In People v. Bodoso,18 a prosecution for a capital offense, we leaned towards the protection of the accuseds constitutional right to due process by outlining the proper steps to be taken before deeming the right to present evidence as waived, thus: Henceforth, to protect the constitutional right to due process of every accused in a capital offense and to avoid any confusion about the proper steps to be taken when a trial court comes face to face with an accused or his counsel who wants to waive his clients right to present evidence and be heard, it shall be the unequivocal duty of the trial court to observe, as a prerequisite to the validity of such waiver, a procedure akin to a "searching inquiry" as specified in People v. Aranzado when an accused pleads guilty, particularly 1. The trial court shall hear both the prosecution and the accused with their respective counsel on the desire or manifestation of the accused to waive the right to present evidence and be heard. 2. The trial court shall ensure the attendance of the prosecution and especially the accused with their respective counsel in the hearing which must be recorded. Their presence must be duly entered in the minutes of the proceedings. 3. During the hearing, it shall be the task of the trial court to a. ask the defense counsel a series of question to determine whether he had conferred with and completely explained to the accused that he had the right to present evidence and be heard as well as its meaning and consequences, together with the significance and outcome of the waiver of such right. If the lawyer for the accused has not done so, the trial court shall give the latter enough time to fulfill this professional obligation. b. inquire from the defense counsel with conformity of the accused whether he wants to present evidence or submit a memorandum elucidating on the contradictions and insufficiency of the prosecution evidence, if any, or in default theory, file a demurrer to evidence with prior leave of court, if he so believes that the prosecution evidence is so weak that it need not even be rebutted. If there is a desire to do so, the trial court shall give the defense enough time to this purpose.

c. elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed waiver. d. all questions posed to the accused should be in a language known and understood by the latter, hence, the record must state the language used for this purpose as well as reflect the corresponding translation thereof in English. In passing, trial courts may also abide by the foregoing criminal procedure when the waiver of the right to be present and be heard is made in criminal cases involving non-capital offenses. After all, in whatever action or forum the accused is situated, the waiver that he makes if it is to be binding and effective must still be exhibited in the case records to have been validly undertaken, that is, it was done voluntarily, knowingly and intelligently with sufficient awareness of the relevant circumstances and likely consequences. As a matter of good court practice, the trial court would have to rely upon the most convenient, if not primary, evidence of the validity of the waiver which would amount to the same thing as showing its adherence to the step-by-step process outlined above. Also, in Rivera v. People,19 which involved an accused charged with a non-capital offense who filed a demurrer to evidence without leave of court, the Court, citing People v. Bodoso, supra, remanded the case to the Sandiganbayan for further proceedings upon finding that the accused had not been asked whether he had understood the consequences of filing the demurrer to evidence without leave of court. Yet, the accused cannot be extended the benefit of People v. Bodoso and Rivera v. People. The factual milieus that warranted the safeguards in said criminal cases had nothing in common with the factual milieu in which the RTC deemed the herein accused to have waived her right to present evidence. The accused in People v. Bodoso, without filing a demurrer to evidence, expressly waived the right to present evidence. The Court felt that the trial court ought to have followed the steps outlined therein. The accused in Rivera v. People filed a demurrer to evidence without having to obtain an express leave of court, considering that the Sandiganbayan itself had told him to file the demurrer to evidence. Thus, after the demurrer to evidence was denied, the accused was held to be still entitled to present his evidence. The accused and her counsel should not have ignored the potentially prejudicial consequence of the filing of a demurrer to evidence without the leave of court required in Section 15, Rule 119, of the Revised Rules of Court.20 They were well aware of the risk of a denial of the demurrer being high, for by demurring the accused impliedly admitted the facts adduced by the State and the proper inferences therefrom.21 We cannot step in now to alleviate her self-inflicted plight, for which she had no one to blame but herself; otherwise, we may unduly diminish the essence of the rule that gave her the alternative option to waive presenting her own evidence. 4. Petitioners handwritten letter is admissible in evidence The next issue concerns the admissibility of the accuseds letter dated January 4, 1996 to Prudential Banks President explaining the shortage of her dollar collection as bank teller,22 the relevant portion of which follows: xxx Sometime in the month of September, a man approached me at my counter and handed me a note demanding me (sic) to give him a big amount of money of P600,000. I looked at him and told him I dont have any. He told me to get at my drawer and not to tell anybody because their companions are at the nearby of my house (sic) and threatened me that something will happened (sic) to my kids. That time he looked back and I also saw another man w/ radio at his waist, who stood up and went out. I nervously handed him the money. While doing this, I tried to pull the alarm at my counter but it was out of order. This alarm was out of order for quite sometime but I was still hoping it might work. Since that day, time and again, he kept on coming back and I couldnt do anything but to give in to his request. His second, he demanded for (sic) another P600,000 but I gave him only P530,000. The 3rd & 4th was P550,000 each. Last December 29, 1995 at around 3:00 pm, I was surprised to see him at my counter, again, he was asking for money. I was balancing my dollar transaction. But that time, I had delivered my peso cash box to our cashier. He saw the bundle of $10,000 which was on top of my desk because I was writing the breakdown on my cash count. He wanted me to give it to him & this time he pointed a gun at me and I got so nervous & gave him the dollars. During this time, in order for me to be balance with (sic) my transactions, I cash out checks (suppose to be for late deposit) & included them in todays clearing. The following day, I validated the deposit slips as cash deposit xxx.

The accused submits that the letter was inadmissible for being in reality an uncounselled extrajudicial confession, and for not being executed under oath. The submission lacks persuasion. The letter was not an extrajudicial confession whose validity depended on its being executed with the assistance of counsel and its being under oath, but a voluntary party admission under Section 26, 23 Rule 130 of the Rules of Court that was admissible against her. An admission, if voluntary, is admissible against the admitter for the reason that it is fair to presume that the admission corresponds with the truth, and it is the admitters fault if the admission does not. 24 By virtue of its being made by the party himself, an admission is competent primary evidence against the admitter.25 Worth pointing out is that the letter was not a confession due to its not expressly acknowledging the guilt of the accused for qualified theft. Under Section 30,26 Rule 130 of the Rules of Court, a confession is a declaration of an accused acknowledging guilt for the offense charged, or for any offense necessarily included therein. Nonetheless, there was no need for a counsel to have assisted the accused when she wrote the letter because she spontaneously made it while not under custodial investigation. Her insistence on the assistance of a counsel might be valid and better appreciated had she made the letter while under arrest, or during custodial investigation, or under coercion by the investigating authorities of the Government. The distinction of her situation from that of a person arrested or detained and under custodial investigation for the commission of an offense derived from the clear intent of insulating the latter from police coercion or intimidation underlying Section 12 of Article III (Bill of Rights) of the 1987 Constitution, which provides: Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. To reiterate, the rights under Section 12, supra, are available to "any person under investigation for the commission of an offense." The phrase does not cover all kinds of investigations, but contemplates only a situation wherein "a person is already in custody as a suspect, or if the person is the suspect, even if he is not yet deprived in any significant way of his liberty."27 The situation of the accused was not similar to that of a person already in custody as a suspect, or if the person is the suspect, even if she is not yet deprived in any significant way of his liberty. 5. Penalty was correctly determined We quote and adopt with approval the CAs discourse on why the penalty of reclusion perpetua wa s appropriate for the offense committed by the accused, to wit: The foregoing considered, appellants conviction must perforce be affirmed. The sentence imposed by the Trial Court should, however, be modified. The Trial Court sentenced the appellant to imprisonment of ten (10) years and one (1) day of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum. The correct penalty, however, should be reclusion perpetua with the accessory penalties of death under Article 40 of the Revised Penal Code. Article 310 of the Revised Penal Code provides that qualified theft shall be punished by the penalties next higher by two degrees than those specified in Article 309 of the Revised Penal Code. Paragraph (1) of Article 309 states that if the value

of the thing stolen exceeds P22,000, the penalty shall be the maximum period of prision mayor in its minimum and medium periods, and one year for each P10,000.00 in excess of P22,000.00, but the total of the penalty which may be imposed shall not exceed twenty years (or reclusion temporal). Appellant stole US$10,000.00 or P262,140.00 computed based on the exchange rate on December 29, 1995 when the appropriation took place. Under Article 309, the basic penalty is prision mayor in its minimum and medium periods to be imposed in the maximum period since the amount stolen exceeded P22,000.00. To determine the additional years of imprisonment prescribed in Article 309 (1), the amount of P22,000.00 should be deducted from P262,140.00, thus, leaving the amount of P240,140.00. The net amount should then be divided by P10,000.00, disregarding any amount below P10,000.00. The result is the incremental penalty of twenty-four (24) years which must then be added to the basic penalty of the maximum period ofprision mayor minimum and medium periods. The penalty of prision mayor in its minimum and medium periods has a range of six years (6) and one (1) day to ten (10) years. Its maximum period is eight (8) years, eight (8) months and one (1) day to ten (10) years, and the incremental penalty is twenty-four (24) years. Had appellant committed simple theft, the penalty should have been twenty years of reclusion temporal, the maximum penalty allowable under Article 309, subject to the Indeterminate Sentence Law. Considering that the theft is qualified by grave abuse of confidence, the penalty is two degrees higher than that specified under Article 309. Under Article 25 of the Revised Penal Code, two degrees higher than reclusion temporal is death. However, Article 74 of the same Code provides that in cases in which the law prescribes a penalty higher than another given penalty, without specifically designating the name of the former, and if such higher penalty should be that of death, the same penalty and the accessory penalties of Article 40, shall be considered as the next higher penalty.1wphi1 The Supreme Court held that in such a case, the accused should be meted the penalty of reclusion perpetua for forty years with the accessory penalties of death under Article 40 of the Revised Penal Code. WHEREFORE, we deny the petition for review on certiorari, and affirm the decision promulgated on July 31, 2003 in CA-G.R. CR No. 24556. SO ORDERED. LUCAS P. BERSAMIN Associate Justice WE CONCUR: CONCHITA CARPIO MORALES Associate Justice Chairperson ARTURO D. BRION Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. CONCHITA CARPIO MORALES Associate Justice Chairperson CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes Rollo, pp. 54-73; penned by Associate Justice Noel G. Tijam, and concurred in by Associate Justice Portia AlioHormachuelos and Associate Justice Edgardo P. Cruz (retired).
1 2

Records, pp. 216-227; penned by Presiding Judge Omar T. Viola. Id., p. 1. Rollo, pp. 55-58. Id., pp. 129-136. Records, pp. 143-146. Id., pp. 216-227. Supra, note 1. Rollo, pp. 35-36. People v. Torrefiel, G.R. No. 115431, April 18, 1996, 256 SCRA 369, 379. TSN, May 5, 1997, pp. 8-9; pp. 12-13. People v. Batin, G.R. No.177223, November 28, 2007, 539 SCRA 272.

10

11

12

The information was filed on May 30, 1996, prior to the effectivity on December 1, 2000 of the 2000 Revised Rules of Criminal Procedure.
13

People v. Ching G.R. No. 177150, November 22, 2007, 538 SCRA 117; People v. Domingo, G.R. No. 177744, November 23, 2007, 538 SCRA 733; People v. Ibanez, G.R. No. 174656, May 11, 2007, 523 SCRA 136.
14 15

CA Rollo, p. 98. Rollo, pp. 68-69.

16

People v. Flores, G.R. No. 106581, March 3, 1997, 269 SCRA 62; De Guzman v. Sandiganbayan, G.R. No. 103276, April 11, 1996, 256 SCRA 171; Rivera v. People, G.R. No. 163996, June 9, 2005, 460 SCRA 85.
17 18

G.R. No. 149382-149383, March 5, 2003, 398 SCRA 642, 653-654. Supra, note 17.

19

Section 15. Demurrer to evidence. After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court.
20

If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When the accused files such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (n)
21

See Mansfield v. Reserve Oil Co., 29 P.2d 491, 492, 38 NM 187. Folder of Exhibits, pp. 41-42.

22

Section 26. Admissions of a party. The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22)
23 24

United States v. Ching Po, 23 Phil. 578. Regalado, Remedial Law Compendium, 2001 Edition, p. 620.

25

Section 33. Confession. The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. (29a)
26 27

Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 Ed., p. 413.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 190889 January 10, 2011

ELENITA C. FAJARDO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION NACHURA, J.: At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking the reversal of the February 10, 2009 Decision1 of the Court of Appeals (CA), which affirmed with modification the August 29, 2006 decision2 of the Regional Trial Court (RTC), Branch 5, Kalibo, Aklan, finding petitioner guilty of violating Presidential Decree (P.D.) No. 1866, as amended. The facts: Petitioner, Elenita Fajardo, and one Zaldy Valerio (Valerio) were charged with violation of P.D. No. 1866, as amended, before the RTC, Branch 5, Kalibo, Aklan, committed as follows: That on or about the 28th day of August, 2002, in the morning, in Barangay Andagao, Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, without authority of law, permit or license, did then and there, knowingly, willfully, unlawfully and feloniously have in their possession, custody and control two (2) receivers of caliber .45 pistol, [M]odel [No.] M1911A1 US with SN 763025 and Model [No.] M1911A1 US with defaced serial number, two (2) pieces short magazine of M16 Armalite rifle, thirty-five (35) pieces live M16 ammunition 5.56 caliber and fourteen (14) pieces live caliber .45 ammunition, which items were confiscated and recovered from their possession during a search conducted by members of the Provincial Intelligence Special Operation Group, Aklan Police Provincial Office, Kalibo, Aklan, by virtue of Search Warrant No. 01 (9) 03 issued by OIC Executive Judge Dean Telan of the Regional Trial Court of Aklan.3 When arraigned on March 25, 2004, both pleaded not guilty to the offense charged. 4 During pre-trial, they agreed to the following stipulation of facts: 1. The search warrant subject of this case exists; 2. Accused Elenita Fajardo is the same person subject of the search warrant in this case who is a resident of Sampaguita Road, Park Homes, Andagao, Kalibo, Aklan; 3. Accused Zaldy Valerio was in the house of Elenita Fajardo in the evening of August 27, 2002 but does not live therein; 4. Both accused were not duly licensed firearm holders; 5. The search warrant was served in the house of accused Elenita Fajardo in the morning of August 28, 2002; and 6. The accused Elenita Fajardo and Valerio were not arrested immediately upon the arrival of the military personnel despite the fact that the latter allegedly saw them in possession of a firearm in the evening of August 27, 2002.5 As culled from the similar factual findings of the RTC and the CA,6 these are the chain of events that led to the filing of the information:

In the evening of August 27, 2002, members of the Provincial Intelligence Special Operations Group (PISOG) were instructed by Provincial Director Police Superintendent Edgardo Mendoza (P/Supt. Mendoza) to respond to the complaint of concerned citizens residing on Ilang-Ilang and Sampaguita Roads, Park Homes III Subdivision, Barangay Andagao, Kalibo, Aklan, that armed men drinking liquor at the residence of petitioner were indiscriminately firing guns. Along with the members of the Aklan Police Provincial Office, the elements of the PISOG proceeded to the area. Upon arrival thereat, they noticed that several persons scampered and ran in different directions. The responding team saw Valerio holding two .45 caliber pistols. He fired shots at the policemen before entering the house of petitioner. Petitioner was seen tucking a .45 caliber handgun between her waist and the waistband of her shorts, after which, she entered the house and locked the main door. To prevent any violent commotion, the policemen desisted from entering petitioners house but, in order to deter Valerio from evading apprehension, they cordoned the perimeter of the house as they waited for further instructions from P/Supt. Mendoza. A few minutes later, petitioner went out of the house and negotiated for the pull-out of the police troops. No agreement materialized. At around 2:00 a.m. and 4:00 a.m. of August 28, 2002, Senior Police Officer 2 Clemencio Nava (SPO2 Nava), who was posted at the back portion of the house, saw Valerio emerge twice on top of the house and throw something. The discarded objects landed near the wall of petitioners house and inside the compound of a neighboring residence. SPO2 Nava, together with SPO1 Teodoro Neron and Jerome T. Vega (Vega), radio announcer/reporter of RMN DYKR, as witness, recovered the discarded objects, which turned out to be two (2) receivers of .45 caliber pistol, model no. M1911A1 US, with serial number (SN) 763025, and model no. M1911A1 US, with a defaced serial number. The recovered items were then surrendered to SPO1 Nathaniel A. Tan (SPO1 Tan), Group Investigator, who utilized them in applying for and obtaining a search warrant. The warrant was served on petitioner at 9:30 a.m. Together with a barangay captain, barangay kagawad, and members of the media, as witnesses, the police team proceeded to search petitioners house. The team found and was able to confiscate the following: 1. Two (2) pieces of Short Magazine of M16 Armalite Rifle; 2. Thirty five (35) pieces of live M16 ammos 5.56 Caliber; and 3. Fourteen (14) pieces of live ammos of Caliber 45 pistol. Since petitioner and Valerio failed to present any documents showing their authority to possess the confiscated firearms and the two recovered receivers, a criminal information for violation of P.D. No. 1866, as amended by Republic Act (R.A.) No. 8294, was filed against them. For their exoneration, petitioner and Valerio argued that the issuance of the search warrant was defective because the allegation contained in the application filed and signed by SPO1 Tan was not based on his personal knowledge. They quoted this pertinent portion of the application: That this application was founded on confidential information received by the Provincial Director, Police Supt. Edgardo Mendoza.7 They further asserted that the execution of the search warrant was infirm since petitioner, who was inside the house at the time of the search, was not asked to accompany the policemen as they explored the place, but was instead ordered to remain in the living room (sala). Petitioner disowned the confiscated items. She refused to sign the inventory/receipt prepared by the raiding team, because the items allegedly belonged to her brother, Benito Fajardo, a staff sergeant of the Philippine Army. Petitioner denied that she had a .45 caliber pistol tucked in her waistband when the raiding team arrived. She averred that such situation was implausible because she was wearing garterized shorts and a spaghetti-strapped hanging blouse.8 Ruling of the RTC

The RTC rejected the defenses advanced by accused, holding that the same were already denied in the Orders dated December 31, 2002 and April 20, 2005, respectively denying the Motion to Quash Search Warrant and Demurrer to Evidence. The said Orders were not appealed and have thus attained finality. The RTC also ruled that petitioner and Valerio were estopped from assailing the legality of their arrest since they participated in the trial by presenting evidence for their defense. Likewise, by applying for bail, they have effectively waived such irregularities and defects. In finding the accused liable for illegal possession of firearms, the RTC explained: Zaldy Valerio, the bodyguard of Elenita Fajardo, is a former soldier, having served with the Philippine Army prior to his separation from his service for going on absence without leave (AWOL). With his military background, it is safe to conclude that Zaldy Valerio is familiar with and knowledgeable about different types of firearms and ammunitions. As a former soldier, undoubtedly, he can assemble and disassemble firearms. It must not be de-emphasize[d] that the residence of Elenita Fajardo is definitely not an armory or arsenal which are the usual depositories for firearms, explosives and ammunition. Granting arguendo that those firearms and ammunition were left behind by Benito Fajardo, a member of the Philippine army, the fact remains that it is a government property. If it is so, the residence of Elenita Fajardo is not the proper place to store those items. The logical explanation is that those items are stolen property. xxxx The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to ones control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law[,] the proprietary concept of the possession can have no bearing whatsoever. xxxx x x x. [I]n order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent. xxxx To convict an accused for illegal possession of firearms and explosive under P.D. 1866, as amended, two (2) essential elements must be indubitably established, viz.: (a) the existence of the subject firearm ammunition or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused has no license or permit to own or possess the firearm, ammunition or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive (Exhibit G). The judicial admission of the accused that they do not have permit or license on the two (2) receivers of caliber .45 pistol, model M1911A1 US with SN 763025 and model M1911A1 of M16 Armalite rifle, thirty-five (35) pieces live M16 ammunition, 5.56 caliber and fourteen (14) pieces live caliber .45 ammunition confiscated and recovered from their possession during the search conducted by members of the PISOG, Aklan Police Provincial Office by virtue of Search Warrant No. 01 (9) 03 fall under Section 4 of Rule 129 of the Revised Rules of Court.9 Consequently, petitioner and Valerio were convicted of illegal possession of firearms and explosives, punishable under paragraph 2, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, which provides: The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.

Both were sentenced to suffer the penalty of imprisonment of six (6) years and one (1) day to twelve (12) years of prision mayor, and to pay a fine of P30,000.00. On September 1, 2006, only petitioner filed a Motion for Reconsideration, which was denied in an Order dated October 25, 2006. Petitioner then filed a Notice of Appeal with the CA. Ruling of the CA The CA concurred with the factual findings of the RTC, but disagreed with its conclusions of law, and held that the search warrant was void based on the following observations: [A]t the time of applying for a search warrant, SPO1 Nathaniel A. Tan did not have personal knowledge of the fact that appellants had no license to possess firearms as required by law. For one, he failed to make a categorical statement on that point during the application. Also, he failed to attach to the application a certification to that effect from the Firearms and Explosives Office of the Philippine National Police. x x x, this certification is the best evidence obtainable to prove that appellant indeed has no license or permit to possess a firearm. There was also no explanation given why said certification was not presented, or even deemed no longer necessary, during the application for the warrant. Such vital evidence was simply ignored.10 Resultantly, all firearms and explosives seized inside petitioners residence were declared inadmissible in evidence. However, the 2 receivers recovered by the policemen outside the house of petitioner before the warrant was served were admitted as evidence, pursuant to the plain view doctrine. Accordingly, petitioner and Valerio were convicted of illegal possession of a part of a firearm, punishable under paragraph 1, Section 1 of P.D. No. 1866, as amended. They were sentenced to an indeterminate penalty of three (3) years, six (6) months, and twenty-one (21) days to five (5) years, four (4) months, and twenty (20) days of prision correccional, and ordered to pay a P20,000.00 fine. Petitioner moved for reconsideration,11 but the motion was denied in the CA Resolution dated December 3, 2009. 12Hence, the present recourse. At the onset, it must be emphasized that the information filed against petitioner and Valerio charged duplicitous offenses contrary to Section 13 of Rule 110 of the Rules of Criminal Procedure, viz.: Sec. 13. Duplicity of offense. A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses. A reading of the information clearly shows that possession of the enumerated articles confiscated from Valerio and petitioner are punishable under separate provisions of Section 1, P.D. No. 1866, as amended by R.A. No. 8294. 13 Illegal possession of two (2) pieces of short magazine of M16 Armalite rifle, thirty-five (35) pieces of live M16 ammunition 5.56 caliber, and fourteen (14) pieces of live caliber .45 ammunition is punishable under paragraph 2 of the said section, viz.: The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, 41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.14 On the other hand, illegal possession of the two (2) receivers of a .45 caliber pistol, model no. M1911A1 US, with SN 763025, and Model M1911A1 US, with a defaced serial number, is penalized under paragraph 1, which states: Sec. 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms or ammunition or instruments used or intended to be used in the manufacture of firearms or ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.15 This is the necessary consequence of the amendment introduced by R.A. No. 8294, which categorized the kinds of firearms proscribed from being possessed without a license, according to their firing power and caliber. R.A. No. 8294 likewise

mandated different penalties for illegal possession of firearm according to the above classification, unlike in the old P.D. No. 1866 which set a standard penalty for the illegal possession of any kind of firearm. Section 1 of the old law reads: Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of Ammunition. The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire dispose, or possess any firearms, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. (Emphasis ours.) By virtue of such changes, an information for illegal possession of firearm should now particularly refer to the paragraph of Section 1 under which the seized firearm is classified, and should there be numerous guns confiscated, each must be sorted and then grouped according to the categories stated in Section 1 of R.A. No. 8294, amending P.D. No. 1866. It will no longer suffice to lump all of the seized firearms in one information, and state Section 1, P.D. No. 1866 as the violated provision, as in the instant case,16 because different penalties are imposed by the law, depending on the caliber of the weapon. To do so would result in duplicitous charges. Ordinarily, an information that charges multiple offenses merits a quashal, but petitioner and Valerio failed to raise this issue during arraignment. Their failure constitutes a waiver, and they could be convicted of as many offenses as there were charged in the information.17 This accords propriety to the diverse convictions handed down by the courts a quo. Further, the charge of illegal possession of firearms and ammunition under paragraph 2, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, including the validity of the search warrant that led to their confiscation, is now beyond the province of our review since, by virtue of the CAs Decision, petitioner and Valerio have been effectively acquitted from the said charges. The present review is consequently only with regard to the conviction for illegal possession of a part of a firearm. The Issues Petitioner insists on an acquittal and avers that the discovery of the two (2) receivers does not come within the purview of the plain view doctrine. She argues that no valid intrusion was attendant and that no evidence was adduced to prove that she was with Valerio when he threw the receivers. Likewise absent is a positive showing that any of the two receivers recovered by the policemen matched the .45 caliber pistol allegedly seen tucked in the waistband of her shorts when the police elements arrived. Neither is there any proof that petitioner had knowledge of or consented to the alleged throwing of the receivers. Our Ruling We find merit in the petition. First, we rule on the admissibility of the receivers. We hold that the receivers were seized in plain view, hence, admissible. No less than our Constitution recognizes the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. This right is encapsulated in Article III, Section 2, of the Constitution, which states: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Complementing this provision is the exclusionary rule embodied in Section 3(2) of the same article (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. There are, however, several well-recognized exceptions to the foregoing rule. Thus, evidence obtained through a warrantless search and seizure may be admissible under any of the following circumstances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of custom laws; (4) seizure of evidence in plain view; and (5) when the accused himself waives his right against unreasonable searches and seizures.18

Under the plain view doctrine, objects falling in the "plain view" of an officer, who has a right to be in the position to have that view, are subject to seizure and may be presented as evidence.19 It applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; and (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband, or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand, and its discovery inadvertent. 20 Tested against these standards, we find that the seizure of the two receivers of the .45 caliber pistol outside petitioners house falls within the purview of the plain view doctrine. First, the presence of SPO2 Nava at the back of the house and of the other law enforcers around the premises was justified by the fact that petitioner and Valerio were earlier seen respectively holding .45 caliber pistols before they ran inside the structure and sought refuge. The attendant circumstances and the evasive actions of petitioner and Valerio when the law enforcers arrived engendered a reasonable ground for the latter to believe that a crime was being committed. There was thus sufficient probable cause for the policemen to cordon off the house as they waited for daybreak to apply for a search warrant. Secondly, from where he was situated, SPO2 Nava clearly saw, on two different instances, Valerio emerge on top of the subject dwelling and throw suspicious objects. Lastly, considering the earlier sighting of Valerio holding a pistol, SPO2 Nava had reasonable ground to believe that the things thrown might be contraband items, or evidence of the offense they were then suspected of committing. Indeed, when subsequently recovered, they turned out to be two (2) receivers of .45 caliber pistol. The pertinent portions of SPO2 Navas testimony are elucidating: Q When you arrived in that place, you saw policemen? A Yes, sir. Q What were they doing? A They were cordoning the house. Q You said that you asked your assistant team leader Deluso about that incident. What did he tell you? A Deluso told me that a person ran inside the house carrying with him a gun. Q And this house you are referring to is the house which you mentioned is the police officers were surrounding? A Yes, sir. Q Now, how long did you stay in that place, Mr. Witness? A I stayed there when I arrived at past 10:00 oclock up to 12:00 oclock the following day. Q At about 2:00 oclock in the early morning of August 28, 2002, can you recall where were you? A Yes, sir. Q Where were you? A I was at the back of the house that is being cordoned by the police. Q While you were at the back of this house, do you recall any unusual incident? A Yes, sir.

Q Can you tell the Honorable Court what was that incident? A Yes, sir. A person went out at the top of the house and threw something. Q And did you see the person who threw something out of this house? A Yes, sir. xxxx Q Can you tell the Honorable Court who was that person who threw that something outside the house? A It was Zaldy Valerio. COURT: (to witness) Q Before the incident, you know this person Zaldy Valerio? A Yes, sir. Q Why do you know him? A Because we were formerly members of the Armed Forces of the Philippines. xxxx PROS. PERALTA: Q When you saw something thrown out at the top of the house, did you do something if any? A I shouted to seek cover. xxxx Q So, what else did you do if any after you shouted, "take cover?" A I took hold of a flashlight after five minutes and focused the beam of the flashlight on the place where something was thrown. Q What did you see if any? A I saw there the lower [part] of the receiver of cal. 45. xxxx Q Mr. Witness, at around 4:00 oclock that early morning of August 28, 2002, do you recall another unusual incident? A Yes, sir. Q And can you tell us what was that incident? A I saw a person throwing something there and the one that was thrown fell on top of the roof of another house. Q And you saw that person who again threw something from the rooftop of the house? A Yes, sir.

Q Did you recognize him? A Yes, sir. Q Who was that person? A Zaldy Valerio again. xxxx Q Where were you when you saw this Zaldy Valerio thr[o]w something out of the house? A I was on the road in front of the house. Q Where was Zaldy Valerio when you saw him thr[o]w something out of the house? A He was on top of the house. xxxx Q Later on, were you able to know what was that something thrown out? A Yes, sir. Q What was that? A Another lower receiver of a cal. 45. xxxx Q And what did he tell you? A It [was] on the wall of another house and it [could] be seen right away. xxxx Q What did you do if any? A We waited for the owner of the house to wake up. xxxx Q Who opened the fence for you? A It was a lady who is the owner of the house. Q When you entered the premises of the house of the lady, what did you find? A We saw the lower receiver of this .45 cal. (sic)21 The ensuing recovery of the receivers may have been deliberate; nonetheless, their initial discovery was indubitably inadvertent. It is not crucial that at initial sighting the seized contraband be identified and known to be so. The law merely requires that the law enforcer observes that the seized item may be evidence of a crime, contraband, or otherwise subject to seizure. Hence, as correctly declared by the CA, the two receivers were admissible as evidence. The liability for their possession, however, should fall only on Valerio and not on petitioner.1avvphil

The foregoing disquisition notwithstanding, we find that petitioner is not liable for illegal possession of part of a firearm. In dissecting how and when liability for illegal possession of firearms attaches, the following disquisitions in People v. De Gracia22 are instructive: The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatsoever. But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses. When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously. In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent. Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a violation of a statute prohibiting the possession of this kind of weapon, such as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no offense committed.23 Certainly, illegal possession of firearms, or, in this case, part of a firearm, is committed when the holder thereof: (1) possesses a firearm or a part thereof (2) lacks the authority or license to possess the firearm.24 We find that petitioner was neither in physical nor constructive possession of the subject receivers. The testimony of SPO2 Nava clearly bared that he only saw Valerio on top of the house when the receivers were thrown. None of the witnesses saw petitioner holding the receivers, before or during their disposal. At the very least, petitioners possession of the receivers was merely incidental because Valerio, the one in actual physical possession, was seen at the rooftop of petitioners house. Absent any evidence pointing to petitioners partici pation, knowledge or consent in Valerios actions, she cannot be held liable for illegal possession of the receivers. Petitioners apparent liability for illegal possession of part of a firearm can only proceed from the assumption that one of the thrown receivers matches the gun seen tucked in the waistband of her shorts earlier that night. Unfortunately, the prosecution failed to convert such assumption into concrete evidence. Mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt. The rule is the same whether the offenses are punishable under the Revised Penal Code, which are mala in se, or in crimes, which are malum prohibitum by virtue of special law.25 The quantum of proof required by law was not adequately met in this case in so far as petitioner is concerned.

The gun allegedly seen tucked in petitioners waistband was not identifie d with sufficient particularity; as such, it is impossible to match the same with any of the seized receivers. Moreover, SPO1 Tan categorically stated that he saw Valerio holding two guns when he and the rest of the PISOG arrived in petitioners house. It is not unlikely then that the receivers later on discarded were components of the two (2) pistols seen with Valerio. These findings also debunk the allegation in the information that petitioner conspired with Valerio in committing illegal possession of part of a firearm. There is no evidence indubitably proving that petitioner participated in the decision to commit the criminal act committed by Valerio. Hence, this Court is constrained to acquit petitioner on the ground of reasonable doubt. The constitutional presumption of innocence in her favor was not adequately overcome by the evidence adduced by the prosecution. The CA correctly convicted Valerio with illegal possession of part of a firearm. In illegal possession of a firearm, two (2) things must be shown to exist: (a) the existence of the subject firearm; and (b) the fact that the accused who possessed the same does not have the corresponding license for it. 26 By analogy then, a successful conviction for illegal possession of part of a firearm must yield these requisites: (a) the existence of the part of the firearm; and (b) the accused who possessed the same does not have the license for the firearm to which the seized part/component corresponds. In the instant case, the prosecution proved beyond reasonable doubt the elements of the crime. The subject receivers - one with the markings "United States Property" and the other bearing Serial No. 763025 - were duly presented to the court as Exhibits E and E-1, respectively. They were also identified by SPO2 Nava as the firearm parts he retrieved af ter Valerio discarded them.27 His testimony was corroborated by DYKR radio announcer Vega, who witnessed the recovery of the receivers.28 Anent the lack of authority, SPO1 Tan testified that, upon verification, it was ascertained that Valerio is not a duly licensed/registered firearm holder of any type, kind, or caliber of firearms. 29 To substantiate his statement, he submitted a certification30 to that effect and identified the same in court.31 The testimony of SPO1 Tan, or the certification, would suffice to prove beyond reasonable doubt the second element.32 WHEREFORE, premises considered, the February 10, 2009 Decision of the Court of Appeals is hereby REVERSED with respect to petitioner Elenita Fajardo y Castro, who is hereby ACQUITTED on the ground that her guilt was not proved beyond reasonable doubt. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice Chairperson DIOSDADO M. PERALTA Associate Justice JOSE CATRAL MENDOZA Associate Justice ATTESTATION ROBERTO A. ABAD Associate Justice

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes Penned by Executive Justice Antonio L. Villamor, with Associate Justices Stephen C. Cruz and Florito S. Macalino, concurring; rollo, pp. 71-84.
1 2

Id. at 32-69. Information; CA rollo, pp. 6-7. (Emphasis supplied.) Supra note 2, at 33. Id. Supra notes 1 and 2. CA rollo, pp. 60-90; see also Exhibits 2 & 2a, records, Vol. I, p. 37. Supra note 2, at 49-63. Id. at 64-68. Supra note 1, at 78-79. Rollo, pp. 85-90. Id. at 92-93. Approved on June 6, 1997. Emphasis supplied. Emphasis supplied. In fact, the signing prosecutor did not even cite Section 1; see Information, supra note 3.

10

11

12

13

14

15

16

The purpose of the rule against duplicity of offense, embodied in Sec. 13, Rule 110 of the Rules of Court, is to give the defendant the necessary knowledge of the charge so that he may not be confused in his defense. (F. Regalado, Remedial Law Compendium, Volume II [8th ed., 2000], citing People v. Ferrer, 101 Phil. 234, 270 [1957]).
17

People v. Go, 457 Phil. 885, 926 (2003), citing People v. Doria, G.R. No. 125299, January 22, 1999, 301 SCRA 668, 704-705.
18

People v. Go, supra, at 928, citing People v. Musa, 217 SCRA 597, 610 (1993) and Harris v. United States, 390 U.S. 192, 72 L. ed. 231 (1927).
19 20

People v. Doria, supra note 18, at 711. TSN, August 25, 2004, pp. 5-14. G.R. Nos. 102009-10, July 6, 1994, 233 SCRA 716. Id. at 725-727. (Citations omitted.)

21

22

23

See People v. Dela Rosa, G.R. No. 84857, January 16, 1998, 284 SCRA 158, 167, citing People v. Caling, G.R. No. 94784, May 8, 1992, 208 SCRA 827.
24 25

People v. Dela Rosa, id. at 172.

See Teofilo Evangelista v. The People of the Philippines, G.R. No. 163267, May 5, 2010; People v. Eling, G.R. No. 178546, April 30, 2008, 553 SCRA 724, 738; Advincula v. Court of Appeals, 397 Phil. 641, 649 (2000).
26 27

Q Now, when you saw this lower receiver of the cal. 45, what did you do if any? A I called some uniformed men and asked them to guard the place. Q You did not right away pick it up? A No, sir, because we waited for some media persons for them to see what was thrown. Q Were (sic) the media people eventually arrived? A Yes, sir. Q Were they able to see this lower receiver of cal. 45? A Yes, sir. xxxx Q Were you the one who actually picked up this lower receiver of the cal. 45? A Yes, sir, I picked it with the help of a wire. Q If that lower receiver of cal. 45 including the wire in picking it up is shown to you, will you be able to identify them? A Yes, sir. Q I am showing to you a receiver of the cal. 45 already marked as Exhibit E, please go over the same and tell if this is the same lower receiver of cal. 45 including the wire? A Yes, sir. xxxx

Q You said that Zaldy Valerio threw something out of the house towards the direction of another house. Can you remember having said so? A Yes, sir. xxxx Q And you cannot enter this if the owner of the house will not open the gate for you? A Yes, sir. Q And so, were you able to enter this house? A They let us in because they opened the fence. xxxx Q When you entered the premises of the house of the lady, what did you find? A We saw the lower receiver of this .45 cal. Q If that lower receiver of cal. 45 will be shown to you, will you be able to identify the same? A Yes, sir. Q I am showing to you this lower receiver of the cal. 45 already marked as Exhibit E-1, is that the same lower receiver of cal. 45 which you saw in the early morning of August 28, 2002? A Yes, sir. Q What did you do with that lower receiver? A I picked it up and when I have picked it up, turned it over to our investigator. Q Can you tell us how did you pick up that lower receiver? A Through the use of a wire. Q Was there any media people present when you picked up this lower receiver of the cal. 45? A Many. (TSN, August 25, 2004, pp. 8-14)
28

TSN, August 18, 2004, pp. 21-30. TSN, August 4, 2004, pp. 16-17. Exhibit G; records, Volume I, p. 8. TSN, August 4, 2004, p. 16. Valeroso v. People, G.R. No. 164815, February 22, 2008, 546 SCRA 450, 468-469.

29

30

31

32

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 170217 HPS SOFTWARE AND COMMUNICATION CORPORATION and HYMAN YAP, Petitioners, vs. PHILIPPINE LONG DISTANCE TELEPHONE COMPANY (PLDT), JOSE JORGE E. CORPUZ, in his capacity as the Chief of the PNP-Special Task Force Group-Visayas, PHILIP YAP, FATIMA CIMAFRANCA, and EASTERN TELECOMMUNICATIONS PHILIPPINES, INC., Respondents. X----------------X G.R. No. 170694 December 10, 2012

PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, Petitioner, vs. HPS SOFTWARE AND COMMUNICATION CORPORATION, including its Incorporators, Directors, Officers: PHILIP YAP, STANLEY T. YAP, ELAINE JOY T. YAP, JULIE Y. SY, HYMAN A. YAP and OTHER PERSONS UNDER THEIR EMPLOY, JOHN DOE AND JANE DOE, IN THE PREMISES LOCATED AT HPS BUILDING, PLARIDEL ST., BRGY. ALANG-ALANG, MANDAUE CITY, CEBU, Respondents. DECISION LEONARDO-DE CASTRO, J.: Before the Court are two consolidated petitions for review on certiorari under Rule 45 of the Rules of Court each seeking to annul and set aside a ruling of the Court of Appeals concerning the May 23, 2001 Joint Order1 issued by the Regional Trial Court of Mandaue City, Branch 55. In G.R. No. 170217, petitioners HPS Software and Communication Corporation and Hyman Yap (HPS Corporation, et al.) seek to nullify the March 26, 2004 Decision2 as well as the September 27, 2005 Resolution3 of the former Fourth (4th) Division of the Court of Appeals in CA-G.R. SP No. 65682, entitled "Philippine Long Distance Telephone Company v. Hon. Judge Ulric Caete, in his capacity as the Presiding Judge of the Regional Trial Court, Branch 55, Mandaue City, HPS Software and Communications Corporation; its Officers and/or Directors: Philip Yap, Hyman Yap, Fatima Cimafranca; Eastern Telecommunications Phils., Inc., and Jose Jorge E. Corpuz, in his capacity as the Chief of the PNP - Special Task Force Group- Visayas." The March 26, 2004 Decision modified the May 23, 2001 Joint Order of the trial court by setting aside the portion directing the immediate return of the seized items to HPS Corporation and, as a consequence, directing the Philippine National Police (PNP) - Special Task Force Group Visayas to retrieve possession and take custody of all the seized items pending the final disposition of the appeal filed by Philippine Long Distance Telephone Company (PLDT) on the said May 23, 2001 Joint Order. The September 27, 2005 Resolution denied for lack of merit HPS Corporation, et al.s subsequent Motion for Reconsideration. On the other hand, in G.R. No. 170694, petitioner PLDT seeks to set aside the April 8, 2005 Decision4 as well as the December 7, 2005 Resolution5 of the former Eighteenth Division of the Court of Appeals in CA-G.R. CV No. 75838, entitled "People of the Philippines, Philippine Long Distance Telephone Company v. HPS Software and Communication Corporation, its Incorporators, Directors, Officers: Philip Yap, Stanley T. Yap, Elaine Joy T. Yap, Julie Y. Sy, Hyman A. Yap and Other Persons Under Their Employ, John Doe and Jane Doe, in the premises located at HPS Building, Plaridel St., Brgy. Alang-Alang, Mandaue City, Cebu." The April 8, 2005 Decision affirmed the May 23, 2001 Joint Order of the trial court while the December 7, 2005 Resolution denied for lack of merit PLDTs subsequent Motion for Reconsideration. The undisputed thread of facts binding these consolidated cases, as summarized in the assailed May 23, 2001 Joint Order, follows: [O]n October 20, 2000, the complainant PAOCTF filed with this Honorable Court two applications for the issuance of search warrant for Violation of Article 308 of the Revised Penal Code for Theft of Telephone Services and for Violation of P.D. 401 for unauthorized installation of telephone communication equipments following the complaint of the Philippine Long Distance Telephone Company or PLDT that they were able to monitor the use of the respondents in their premises of Mabuhay card and equipments capable of receiving and transmitting calls from the USA to the Philippines without these calls passing through the facilities of PLDT.

Complainants witnesses Richard Dira and Reuben Hinagdanan testified under oath that Respondents are engaged in the business of International [S]imple Resale or unauthorized sale of international long distance calls. They explained that International Simple Resale (ISR) is an alternative call pattern employed by communication provider outside of the country. This is a method of routing and completing international long distance call using pre-paid card which respondents are selling in the States. These calls are made through access number and by passes the PLDT International Gate Way Facilities and by passes the monitoring system, thus making the international long distance calls appear as local calls, to the damage and prejudice of PLDT which is deprived of revenues as a result thereof. Complainants witnesses Richard Dira and Reuben Hinagdanan testified that they found out that respondents are engaged in the business of International Simple Resale on September 13, 2000 when they conducted a test call using Mabuhay Card. They followed the dialing instructions found at the back of the card and dialed "00" and the access code number 18008595845 of the said Mabuhay Card. They were then prompted by a voice to enter the PIN code to validate and after entering the PIN code number 332 1479224, they were again prompted to dial the country code of the Philippines 0116332 and then dialed telephone number 2563066. Although the test calls were incoming international calls from the United States, they discovered in the course of their test calls that PLDT telephone lines/numbers were identified as the calling party, specifically 032-3449294 and 032-3449280. They testified that the test calls passing through the Mabuhay Card were being reflected as local calls only and not overseas calls. Upon verification, they discovered that the lines were subscribed by Philip Yap whose address is HPS Software Communication Corporation at Plaridel St., Alang-alang, Mandaue City. They also testified that the lines subscribed by Philip Yap were transferred to HPS Software and Communications Corporation of the same address. They further testified that the respondents committed these crimes by installing telecommunication equipments like multiplexers, lines, cables, computers and other switching equipments in the HPS Building and connected these equipments with PLDT telephone lines which coursed the calls through international privatized lines where the call is unmonitored and coursed through the switch equipments in Cebu particularly in Philip Yaps line and distributed to the subscribers in Cebu. Satisfied with the affidavits and sworn testimony of the complainants witnesses that they were able to trace the long distance calls that they made on September 13, 2000 from the record of these calls in the PLDT telephone numbers 032 3449280 and 032 3449294 of Philip Yap and/or later on transferred to HPS Software and Communication Corporation using the said Mabuhay Card in conducting said test calls, and that they saw the telephone equipments like lines, cables, antennas, computers, modems, multiplexers and other switching equipments, Cisco 2600/3600, Nokia BB256K (with Bayantel marking) inside the compound of the respondents being used for this purpose, this court issued the questioned search warrants to seize the instruments of the crime.6 On October 20, 2000, the trial court issued two search warrants denominated as S.W. No. 2000-10-4677 for Violation of Article 308 of the Revised Penal Code (Theft of Telephone Services) and S.W. No. 2000-10-4688 for violation of Presidential Decree No. 401 (Unauthorized Installation of Telephone Connections) which both contained identical orders directing that several items are to be seized from the premises of HPS Corporation and from the persons of Hyman Yap, et al. The search warrants were immediately implemented on the same day by a PAOCTF-Visayas team led by Police Inspector (P/Insp.) Danilo Villanueva. The police team searched the premises of HPS Corporation located at HPS Building, Plaridel St., Brgy. Alang-Alang, Mandaue City, Cebu and seized the articles specified in the search warrants.9 Subsequently, a preliminary investigation was conducted by Assistant City Prosecutor Yope M. Cotecson (Pros. Cotecson) of the Office of the City Prosecutor of Mandaue City who thereafter issued a Resolution dated April 2, 2001 10which found probable cause that all the crimes charged were committed and that Philip Yap, Hyman Yap, Stanley Yap, Elaine Joy Yap, Julie Y. Sy, as well as Gene Frederick Boniel, Michael Vincent Pozon, John Doe and Jane Doe were probably guilty thereof. The dispositive portion of the said April 2, 2001 Resolution reads as follows: Wherefore, all the foregoing considered, the undersigned finds the existence of probable cause for the crimes of Theft and Violation of PD 401 against all the respondents herein, excluding Fatima Cimafranca, hence, filing in court of corresponding Informations is hereby duly recommended.11 On November 23, 2000, Philip Yap and Hyman Yap filed a Motion to Quash and/or Suppress Illegally Seized Evidence.12Then on December 11, 2000, HPS Corporation filed a Motion to Quash Search Warrant and Return of the Things Seized.13 Both pleadings sought to quash the search warrants at issue on the grounds that the same did not refer to a specific offense; that there was no probable cause; and that the search warrants were general warrants and were wrongly implemented. In response, PLDT formally opposed the aforementioned pleadings through the filing of a Consolidated Opposition.14

The trial court then conducted hearings on whether or not to quash the subject search warrants and, in the course thereof, the parties produced their respective evidence. HPS Corporation, et al. presented, as testimonial evidence, the testimonies of Mr. Jesus M. Laureano, the Chief Enforcement and Operation Officer of the National Telecommunications Commission (NTC)-Region VII and Ms. Marie Audrey Balbuena Aller, HPS Corporations administrative officer, while PLDT presented Engr. Policarpio Tolentino, who held the position of Engineer II, Common Carrier Authorization Division of the NTC. 15 In the course of Engr. Tolentinos testimony, he identified certain pieces of evidence which PLDT caused to be marked as its own exhibits but was objected to by HPS Corporation, et al. on the grounds of immateriality. The trial court sustained the objection and accordingly disallowed the production of said exhibits. Thus, PLDT filed a Manifestation with Tender of Excluded Evidence16 on April 18, 2001 which tendered the excluded evidence of (a) Mabuhay card with Personal Identification Number (PIN) code number 349 4374802 (Exhibit "E"), and (b) Investigation Report dated October 2, 2000 prepared by Engr. Tolentino in connection with the validation he made on the complaints of PLDT against ISR activities in Cebu City and Davao City (Exhibit "G"). Subsequently, on April 19, 2001, PLDT formally offered in evidence, as part of Engr. Tolentinos testimony and in support of PLDTs opposition to HPS Corporation, et al.s motion to quash, the following: (a) Subpoena Duces Tecum and Ad Testificandum issued by the trial court to Engr. Tolentino, commanding him to appear and testify before it on March 26, 27 and 28, 2001 (Exhibit "A"); (b) Identification Card No. 180 of Engr. Tolentino (Exhibit "B"); (c) PLDTs letter dated September 22, 2000, addressed to then NTC Commissioner Joseph A. Santiago (Exhibit "C"); (d) Travel Order No. 52-92000 issued to Engr. Tolentino and signed by then NTC Commissioner Joseph Santiago (Exhibit "D"); and (e) Travel Order No. 07 03-2001 dated March 23, 2001 issued to Engr. Tolentino by then NTC Commissioner Eliseo M. Rio, Jr., authorizing Engr. Tolentino to appear and testify before the trial court (Exhibit "F"). 17 PLDT then filed a Motion for Time to File Memorandum18 asking the trial court that it be allowed to submit a Memorandum in support of its opposition to the motion to quash search warrants filed by HPS Corporation, et al. within a period of twenty (20) days from receipt of the trial courts ruling. Consequently, in an Order 19 dated May 3, 2001, the trial court admitted Exhibits "A," "B," "C," "D," and "F" as part of the testimony of Engr. Tolentino. The trial court also directed PLDT to file its Memorandum within twenty (20) days from receipt of said Order. As PLDTs counsel received said Order on May 16, 2001, it reckoned that it had until June 5, 2001 to file the aforementioned Memorandum. However, the trial court issued the assailed Joint Order on May 23, 2001, before the period for the filing of PLDTs Memorandum had lapsed. The dispositive portion of said Order states: WHEREFORE, premises considered, the motion to quash the search warrants and return the things seized is hereby granted. Search Warrant Nos. 2000-10-467 and 2000-10-468 are ordered quashed. The things seized under the said search warrants are hereby ordered to be immediately returned to respondent HPS Software and Communication Corporation.20 When PLDT discovered this development, it filed a Notice of Appeal 21 on June 7, 2001 which the trial court gave due course via an Order22 dated June 13, 2001. This case would be later docketed as CA-G.R. CV No. 75838. PLDT likewise asserted that, without its knowledge, the trial court caused the release to HPS Corporation, et al. of all the seized items that were in custody and possession of the PNP Task Force Group-Visayas. According to PLDT, it would not have been able to learn about the precipitate discharge of said items were it not for a Memorandum 23 dated June 13, 2001 issued by Police Superintendent Jose Jorge E. Corpuz which PLDT claimed to have received only on June 27, 2001. Said document indicated that the items seized under the search warrants at issue were released from the custody of the police and returned to HPS Corporation, et al. through its counsel, Atty. Roque Paloma, Jr. Thus, on July 18, 2001, PLDT filed a Petition for Certiorari under Rule 6524 with the Court of Appeals assailing the trial courts release of the seized equipment despite the fact that the Joint Order dated May 23, 2001 had not yet attained finality. This petition became the subject matter of CA-G.R. SP No. 65682. The former Fourth Division of the Court of Appeals issued a Decision dated March 26, 2004 in CA-G.R. SP No. 65682 which granted PLDTs petition for certiorari and set aside the trial courts May 23, 2001 Joint Order insofar as it released the seized equipment at issue. The dispositive portion of the March 26, 2004 Decision reads: WHEREFORE, premises considered, the instant petition is hereby GRANTED. Accordingly, the respondent judges May 23, 2001 Joint Order is MODIFIED by SETTING ASIDE that portion directing the immediate return of the seized items to respondent HPS. Consequently, the respondent PNP Special Task Force is directed to retrieve possession and take custody of all the seized items, as enumerated in the inventory a quo, pending the final disposition of the appeal filed by the petitioner on respondent judges May 23, 2001 Joint Order. 25

HPS Corporation, et al. moved for reconsideration of said Court of Appeals ruling but this motion was denied for lack of merit via a Resolution dated September 27, 2005. Subsequently, HPS Corporation, et al. filed a Petition for Review onCertiorari under Rule 4526 with this Court on November 16, 2005. The petition was docketed as G.R. No. 170217. On the other hand, PLDTs appeal docketed as CA-G.R. CV No. 75838 was resolved by the former Eighteenth Division of the Court of Appeals in a Decision dated April 8, 2005. The dispositive portion of the April 8, 2005 Decision states: WHEREFORE, the Joint Order of the Regional Trial Court, Branch 55, Mandaue City, dated May 23, 2001, is herebyAFFIRMED.27 PLDT moved for reconsideration but this was rebuffed by the Court of Appeals through a Resolution dated December 7, 2005. Unperturbed, PLDT filed a Petition for Review on Certiorari under Rule 4528 with this Court on January 26, 2006. The petition was, in turn, docketed as G.R. No. 170694. In a Resolution29 dated August 28, 2006, the Court resolved to consolidate G.R. No. 170217 and G.R. No. 170694 in the interest of speedy and orderly administration of justice. HPS Corporation, et al.s Joint Memorandum (for respondents HPS Software and Communication Corporation, Hyman Yap, Stanley Yap, Elaine Joy Yap and Julie Sy)30 dated June 23, 2008 to the consolidated cases of G.R. No. 170217 and G.R. No. 170694 raised the following issues for consideration: IV.1. Whether or not the above-entitled two (2) petitions are already moot and academic with this Honorable Supreme Courts promulgation of the doctrinal decision for the case of Luis Marcos P. Laurel vs. Hon. Zeus C. Abrogar, People of the Philippines and Philippine Long Distance Telephone Company, G.R. No. 155076, February 27, 2006, declaring that: "x x x the telecommunication services provided by PLDT and its business of providing said services are not personal properties under Article 308 of the Revised Penal Code. x x x In the Philippines, Congress has not amended the Revised Penal Code to include theft of services or theft of business as felonies. Instead, it approved a law, Republic Act No. 8484, otherwise known as the Access Devices Regulation Act of 1998, on February 11, 1998 . x x x."? In the most unlikely event that the above-entitled two (2) petitions have not yet been rendered moot by the doctrinal decision in the said Laurel case, HPS respectfully submit that the following are the other issues: IV.2. Whether or not the Court of Appeals committed grave abuse of discretion when it declared that the subject warrants are general warrants? IV.3. Whether or not the factual findings of the trial court in its May 23, 2001 Order that there was no probable cause in issuing the subject warrants is already conclusive, when the said factual findings are duly supported with evidence; were confirmed by the Court of Appeals; and, PLDT did not refute the damning evidence against it when it still had all the opportunity to do so? IV.4. Whether or not the trial court committed grave abuse of discretion amounting to lack or in excess of jurisdiction when it stated in its May 23, 2001 Joint Order that: "WHEREFORE, premises considered, the motion to quash the search warrants and return the things seized is hereby granted. Search Warrant Nos. 2000-10-467 and 2000-10-468 are ordered quashed. The things seized under the said search warrants are hereby ordered to be immediately returned to respondent HPS Software and Communications Corporation." IV.5. Whether or not PLDTs memorandum was necessary before a decision can be rendered by the trial court? IV.6. Whether or not there was a need for PLDT to first file a Motion for Reconsideration before filing its petition for certiorari in the subject case? IV.7. Whether or not a Petition for Certiorari was the appropriate remedy for PLDT when it had recourse to other plain remedy other than the Petition for Certiorari?

IV.8. Whether or not PLDT has the legal interest and personality to file the present petition when the complainant PAOCTF has already voluntarily complied with or satisfied the Joint Order. IV.9. Whether or not the Court of Appeals can, in a petition for certiorari, nullify a litigants or the Search Warrants Applicants exercise of its prerogative of accepting and complying with the said May 23, 2001 Joint Order of the trial court? IV.10. Whether or not there was forum shopping when PLDT filed an appeal and a petition for certiorari on the same May 23, 2001 Joint Order issued by the trial court? IV.11. Whether or not the Court of Appeals gravely abused its discretion when it upheld the trial courts decision to disallow the testimony of Engr. Policarpio Tolentino during the hearings of the motion to quash the subject search warrants when the said Engr. Tolentino was not even presented as witness during the hearing for the application of the subject search warrants; and, as the Court of Appeals had declared: ". . . We cannot but entertain serious doubts as to the regularity of the performance of his official function"? IV.12. Whether or not PLDTs counsel can sue its own client , the applicant of the subject search warrant?31 On the other hand, PLDT raised the following arguments in its Memorandum 32 dated June 16, 2008 to the consolidated cases of G.R. No. 170217 and G.R. No. 170694: I THE COURT OF APPEALS GRAVELY MISAPPREHENDED THE FACTS WHEN IT SUSTAINED THE QUASHAL OF THE SEARCH WARRANTS DESPITE THE CLEAR AND SUFFICIENT EVIDENCE ON RECORD ESTABLISHING PROBABLE CAUSE FOR THE ISSUANCE THEREOF. II THE COURT OF APPEALS GRAVELY ERRED IN INDISCRIMINATELY RELYING UPON RULINGS OF THIS HONORABLE COURT THAT ARE NOT APPLICABLE TO THIS CASE. A. THE RULING IN LAGON V. HOOVEN COMALCO INDUSTRIES, INC. THAT LITIGATIONS SHOULD NOT BE RESOLVED ON THE BASIS OF SUPPOSITIONS, DEDUCTIONS IS NOT PROPER IN THIS CASE CONSIDERING THAT: 1. The Search Warrant Case is merely a step preparatory to the filing of criminal cases against the Respondents. Thus, the applicant needed only to establish probable cause for the issuance of the search warrants and not proof beyond reasonable doubt. 2. Even assuming arguendo that there is some controversy as to the value remaining in the Mabuhaycard, the totality of evidence submitted during the applications for the Search Warrant is more than sufficient to establish probable cause. B. THE RULING IN DAYONOT V. NATIONAL LABOR RELATIONS COMMISSION THAT AN ADVERSE INFERENCE ARISES FROM A PARTYS FAILURE TO REBUT AN ASSERTION THAT WOULD HAVE NATURALLY INVITED AN IMMEDIATE AND PERVASIVE OPPOSITION IS INAPPLICABLE IN THIS CASE CONSIDERING THAT: 1. PLDT sufficiently rebutted Respondents claim that PLDT has no cause to complain because of its prior knowledge of HPSs internet services. 2. Assuming arguendo that PLDT had knowledge of HPSs internet services, such fact is immaterial in the determination of the propriety of the Search Warrants issued in this case. The Search Warrants were issued because the evidence presented by PAOCTF overwhelmingly established the existence of probable cause that Respondents were probably committing a crime and the objects used for the crime are in the premises to be searched.

III THE COURT OF APPEALS GRAVELY ERRED IN SUSTAINING THE DISALLOWANCE OF A PORTION OF ENGR. TOLENTINOS TESTIMONY AND OF THE INTRODUCTION OF THE MABUHAY CARD AND HIS INVESTIGATION REPORT IN VIOLATION OF THE PRESUMPTION THAT OFFICIAL DUTY HAS BEEN REGULARLY PERFORMED. IV THE COURT OF APPEALS GRAVELY ERRED IN SUSTAINING THE TRIAL COURTS JOINT ORDER WHICH WAS ISSUED WITH UNDUE HASTE. THE COURT OF APPEALS OVERLOOKED FACTS WHICH CLEARLY DEMONSTRATED THE TRIAL COURTS PREJUDGMENT OF THE CASE IN FAVOR OF RESPONDENTS, IN VIOLATION OF PLDTS RIGHT TO DUE PROCESS. V THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT THE CONTESTED SEARCH WARRANTS ARE IN THE NATURE OF GENERAL WARRANTS CONSIDERING THAT: A. THE ISSUE OF WHETHER THE SEARCH WARRANTS ARE GENERAL WARRANTS WAS NEVER RAISED IN THE APPEAL BEFORE IT. B. IN ANY CASE, THE SEARCH WARRANTS STATED WITH SUFFICIENT PARTICULARITY THE PLACE TO BE SEARCHED AND THE OBJECTS TO BE SEIZED, IN CONFORMITY WITH THE CONSTITUTIONAL AND JURISPRUDENTIAL REQUIREMENTS IN THE ISSUANCE OF SEARCH WARRANTS. VI RESPONDENTS ALLEGATION THAT PLDT FAILED TO COMPLY WITH THE REQUIREMENTS OF SECTION 3, RULE 45 AND SECTION 4, RULE 7 OF THE RULES OF COURT IS COMPLETELY BASELESS CONSIDERING THAT: A. PLDT COMPLIED WITH THE RULES ON PROOF OF SERVICE. B. THE PETITION WAS PROPERLY VERIFIED. ASSUMING ARGUENDO THAT THE ORIGINAL VERIFICATION SUBMITTED WAS DEFICIENT, THE SAME WAS PROMPTLY CORRECTED BY PLDT, IN FULL COMPLIANCE WITH THE DIRECTIVE OF THIS HONORABLE COURT. C. PLDT DID NOT ENGAGE IN FORUM-SHOPPING. 1. The issues, subject matter and reliefs prayed for in the Appeal Case and the Certiorari Case are distinct and separate from one another. 2. Assuming arguendo that the Appeal Case involves the same parties, subject matter and reliefs in the Certiorari Case, then Respondents are equally guilty of forum-shopping when they elevated the Decision of the Court of Appeals in the Certiorari Case to this Honorable Court. VII RESPONDENTS RELIANCE ON THE CASE OF LAUREL V. ABROGAR IS ERRONEOUS AND MISLEADING.LAUREL V. ABROGAR IS NOT YET FINAL AND EXECUTORY, HENCE, CANNOT BIND EVEN THE PARTIES THERETO, MUCH LESS RESPONDENTS HEREIN.33 (Citations omitted.) A year later, on June 1, 2009, PLDT submitted a Supplemental Memorandum34 to its June 16, 2008 Memorandum. In the said pleading, PLDT pointed out the reversal by the Supreme Court En Banc of the February 27, 2006 Decision in Laurel v. Abrogar35 and raised it as a crucial issue in the present consolidated case:

IN A RESOLUTION DATED 13 JANUARY 2009, THIS HONORABLE COURT EN BANC SET ASIDE THE 27 FEBRUARY 2006 DECISION IN LAUREL V. ABROGAR. THEREFORE, THE PREVAILING DOCTRINE WITH RESPECT TO THE ACT OF CONDUCTING ISR OPERATIONS IS THAT IT IS AN ACT OF SUBTRACTION COVERED BY THE PROVISIONS ON THEFT, AND THAT THE BUSINESS OF PROVIDING TELECOMMUNICATION OR TELEPHONE SERVICE IS CONSIDERED PERSONAL PROPERTY WHICH CAN BE THE OBJECT OF THEFT UNDER ARTICLE 308 OF THE REVISED PENAL CODE. THUS, RESPONDENTS CAN NO LONGER RELY ON THE 27 FEBRUARY 2006 DECISION OF THIS HONORABLE COURT IN LAUREL V. ABROGAR.36 After evaluating the aforementioned submissions, the Court has identified the following questions as the only relevant issues that need to be resolved in this consolidated case: I WHETHER OR NOT PLDT HAS LEGAL PERSONALITY TO FILE THE PETITION FOR SPECIAL CIVIL ACTION OF CERTIORARI IN CA-G.R. SP No. 65682 AND, SUBSEQUENTLY, THE PETITION FOR REVIEW IN G.R. NO. 170694 WITHOUT THE CONSENT OR APPROVAL OF THE SOLICITOR GENERAL. II WHETHER OR NOT PLDTS PETITION FOR CERTIORARI SHOULD HAVE BEEN DISMISSED OUTRIGHT BY THE COURT OF APPEALS SINCE NO MOTION FOR RECONSIDERATION WAS FILED BY PLDT FROM THE ASSAILED MAY 23, 2001 JOINT ORDER OF THE TRIAL COURT. III WHETHER OR NOT PLDT COMMITTED FORUM-SHOPPING. IV WHETHER OR NOT THE TWO (2) SEARCH WARRANTS WERE IMPROPERLY QUASHED. V WHETHER OR NOT THE SUBJECT SEARCH WARRANTS ARE IN THE NATURE OF GENERAL WARRANTS. VI WHETHER OR NOT THE RELEASE OF THE ITEMS SEIZED BY VIRTUE OF THE SUBJECT SEARCH WARRANTS WAS PROPER. Before resolving the aforementioned issues, we will first discuss the state of jurisprudence on the issue of whether or not the activity referred to as "international simple resale" (ISR) is considered a criminal act of Theft in this jurisdiction. To recall, HPS Corporation, et al. contends that PLDTs petition in G.R. No. 170694 has already become moot and academic because the alleged criminal activity which PLDT asserts as having been committed by HPS Corporation, et al.has been declared by this Court as not constituting the crime of Theft or any other crime for that matter. HPS Corporation,et al. draws support for their claim from the February 27, 2006 Decision of this Court in Laurel v. Abrogar.37 In that case, PLDT sued Baynet Co., Ltd. (Baynet) and its corporate officers for the crime of Theft through stealing the international long distance calls belonging to PLDT by conducting ISR which is a method of routing and completing international long distance calls using lines, cables, antennae, and/or air wave frequency which connect directly to the local or domestic exchange facilities of the country where the call is destined. One of those impleaded in the Amended Information, Luis Marcos P. Laurel (Laurel), moved for the quashal of the Amended Information arguing that an ISR activity does not constitute the felony of Theft under Article 308 of the Revised Penal Code (RPC). Both the trial court and the Court of Appeals did not find merit in his motion. However, this Court speaking through its First Division upheld Laurels contention by ruling that the Amended Information does not contain material allegations charging petitioner with theft of personal property since international long distance calls and the business of providing telecommunication or telephone services are not personal properties under Article 308 of the Revised Penal Code. The Court then explained the basis for this previous ruling in this wise:

In defining theft, under Article 308 of the Revised Penal Code, as the taking of personal property without the consent of the owner thereof, the Philippine Legislature could not have contemplated the human voice which is converted into electronic impulses or electrical current which are transmitted to the party called through the PSTN of respondent PLDT and the ISR of Baynet Card Ltd. within its coverage. When the Revised Penal Code was approved, on December 8, 1930, international telephone calls and the transmission and routing of electronic voice signals or impulses emanating from said calls, through the PSTN, IPL and ISR, were still nonexistent. Case law is that, where a legislative history fails to evidence congressional awareness of the scope of the statute claimed by the respondents, a narrow interpretation of the law is more consistent with the usual approach to the construction of the statute. Penal responsibility cannot be extended beyond the fair scope of the statutory mandate.38 Undaunted, PLDT filed a Motion for Reconsideration with Motion to Refer the Case to the Supreme Court En Banc. This motion was acted upon favorably by the Court En Banc in a Resolution39 dated January 13, 2009 thereby reconsidering and setting aside the February 27, 2006 Decision. In resolving PLDTs motion, the Court En Banc held that: The acts of "subtraction" include: (a) tampering with any wire, meter, or other apparatus installed or used for generating, containing, conducting, or measuring electricity, telegraph or telephone service; (b) tapping or otherwise wrongfully deflecting or taking any electric current from such wire, meter, or other apparatus; and (c) using or enjoying the benefits of any device by means of which one may fraudulently obtain any current of electricity or any telegraph or telephone service. In the instant case, the act of conducting ISR operations by illegally connecting various equipment or apparatus to private respondent PLDTs telephone system, through which petitioner is able to resell or reroute inter national long distance calls using respondent PLDTs facilities constitutes all three acts of subtraction mentioned above. The business of providing telecommunication or telephone service is likewise personal property which can be the object of theft under Article 308 of the Revised Penal Code. Business may be appropriated under Section 2 of Act No. 3952 (Bulk Sales Law), hence, could be the object of theft: "Section 2. Any sale, transfer, mortgage, or assignment of a stock of goods, wares, merchandise, provisions, or materials otherwise than in the ordinary course of trade and the regular prosecution of the business of the vendor, mortgagor, transferor, or assignor, or any sale, transfer, mortgage, or assignment of all, or substantially all, of the business or trade theretofore conducted by the vendor, mortgagor, transferor or assignor, or all, or substantially all, of the fixtures and equipment used in and about the business of the vendor, mortgagor, transferor, or assignor, shall be deemed to be a sale and transfer in bulk, in contemplation of the Act. x x x." In Strocheker v. Ramirez, this Court stated: "With regard to the nature of the property thus mortgaged, which is one-half interest in the business above described, such interest is a personal property capable of appropriation and not included in the enumeration of real properties in Article 335 of the Civil Code, and may be the subject of mortgage." Interest in business was not specifically enumerated as personal property in the Civil Code in force at the time the above decision was rendered. Yet, interest in business was declared to be personal property since it is capable of appropriation and not included in the enumeration of real properties. Article 414 of the Civil Code provides that all things which are or may be the object of appropriation are considered either real property or personal property. Business is likewise not enumerated as personal property under the Civil Code. Just like interest in business, however, it may be appropriated. Following the ruling in Strochecker v. Ramirez, business should also be classified as personal property. Since it is not included in the exclusive enumeration of real properties under Article 415, it is therefore personal property. As can be clearly gleaned from the above disquisitions, petitioners acts constitute theft of respondent PLDTs business and service, committed by means of the unlawful use of the latters facilities. x x x. 40 (Citations omitted.) Plainly, from the aforementioned doctrinal pronouncement, this Court had categorically stated and still maintains that an ISR activity is an act of subtraction covered by the provisions on Theft, and that the business of providing telecommunication or telephone service is personal property, which can be the object of Theft under Article 308 of the Revised Penal Code. Having established that an ISR activity is considered as Theft according to the prevailing jurisprudence on the matter, this Court will now proceed to discuss the central issues involved in this consolidated case.

Anent the first issue of whether PLDT possesses the legal personality to file the petition in G.R. No. 170694 in light of respondents claim that, in criminal appeals, it is the Solicitor General which has the exclusive and sole power to file such appeals in behalf of the People of the Philippines, this Court rules in the affirmative. The petition filed by PLDT before this Court does not involve an ordinary criminal action which requires the participation and conformity of the City Prosecutor or the Solicitor General when raised before appellate courts. On the contrary, what is involved here is a search warrant proceeding which is not a criminal action, much less a civil action, but a special criminal process. In the seminal case of Malaloan v. Court of Appeals,41 we expounded on this doctrine in this wise: The basic flaw in this reasoning is in erroneously equating the application for and the obtention of a search warrant with the institution and prosecution of a criminal action in a trial court. It would thus categorize what is only a special criminalprocess, the power to issue which is inherent in all courts, as equivalent to a criminal action, jurisdiction over which is reposed in specific courts of indicated competence. It ignores the fact that the requisites, procedure and purpose for the issuance of a search warrant are completely different from those for the institution of a criminal action. For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely constitutes process. A search warrant is defined in our jurisdiction as an order in writing issued in the name of the People of the Philippines signed by a judge and directed to a peace officer, commanding him to search for personal property and bring it before the court. A search warrant is in the nature of a criminal process akin to a writ of discovery. It is a special and peculiar remedy, drastic in its nature, and made necessary because of a public necessity. In American jurisdictions, from which we have taken our jural concept and provisions on search warrants, such warrant is definitively considered merely as a process, generally issued by a court in the exercise of its ancillary jurisdiction, and not a criminal action to be entertained by a court pursuant to its original jurisdiction. We emphasize this fact for purposes of both issues as formulated in this opinion, with the catalogue of authorities herein Invariably, a judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by authority of law; also the means of accomplishing an end, including judicial proceedings, or all writs, warrants, summonses, and orders of courts of justice or judicial officers. It is likewise held to include a writ, summons, or order issued in a judicial proceeding to acquire jurisdiction of a person or his property, to expedite the cause or enforce the judgment, or a writ, warrant, mandate, or other process issuing from a court of justice.42 (Citations omitted.) Since a search warrant proceeding is not a criminal action, it necessarily follows that the requirement set forth in Section 5, Rule 110 of the Rules on Criminal Procedure which states that "all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor" does not apply. In Columbia Pictures Entertainment, Inc. v. Court of Appeals,43 we sustained the legal personality of a private complainant to file an action or an appeal without the imprimatur of government prosecutors on the basis of the foregoing ratiocination: The threshold issue that must first be determined is whether or not petitioners have the legal personality and standing to file the appeal. Private respondent asserts that the proceedings for the issuance and/or quashal of a search warrant are criminal in nature. Thus, the parties in such a case are the "People" as offended party and the accused. A private complainant is relegated to the role of a witness who does not have the right to appeal except where the civil aspect is deemed instituted with the criminal case. Petitioners, on the other hand, argue that as the offended parties in the criminal case, they have the right to institute an appeal from the questioned order. From the records it is clear that, as complainants, petitioners were involved in the proceedings which led to the issuance of Search Warrant No. 23. In People v. Nano, the Court declared that while the general rule is that it is only the Solicitor General who is authorized to bring or defend actions on behalf of the People or the Republic of the Philippines once the case is brought before this Court or the Court of Appeals, if there appears to be grave error committed by the judge or a lack of due process, the petition will be deemed filed by the private complainants therein as if it were filed by the Solicitor General. In line with this ruling, the Court gives this petition due course and will allow petitioners to argue their case against the questioned order in lieu of the Solicitor General. (Citation omitted.)

Similarly, in the subsequent case of Sony Computer Entertainment, Inc. v. Bright Future Technologies, Inc.,44 we upheld the right of a private complainant, at whose initiative a search warrant was issued, to participate in any incident arising from or in connection with search warrant proceedings independently from the State. We quote the relevant discussion in that case here: The issue of whether a private complainant, like SCEI, has the right to participate in search warrant proceedings was addressed in the affirmative in United Laboratories, Inc. v. Isip: . . . [A] private individual or a private corporation complaining to the NBI or to a government agency charged with the enforcement of special penal laws, such as the BFAD, may appear, participate and file pleadings in the search warrant proceedings to maintain, inter alia, the validity of the search warrant issued by the court and the admissibility of the properties seized in anticipation of a criminal case to be filed; such private party may do so in collaboration with the NBI or such government agency. The party may file an opposition to a motion to quash the search warrant issued by the court, or a motion for the reconsideration of the court order granting such motion to quash.45 With regard to the second issue of whether or not PLDTs petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure should have been dismissed outright by the Court of Appeals since no motion for reconsideration was filed by PLDT from the assailed May 23, 2001 Joint Order of the trial court, this Court declares that, due to the peculiar circumstances obtaining in this case, the petition for certiorari was properly given due course by the Court of Appeals despite the non-fulfillment of the requirement of the filing of a motion for reconsideration. The general rule is that a motion for reconsideration is a condition sine qua non before a petition for certiorari may lie, its purpose being to grant an opportunity for the court a quo to correct any error attributed to it by a re-examination of the legal and factual circumstances of the case.46 However, the rule is not absolute and jurisprudence has laid down the following exceptions when the filing of a petition forcertiorari is proper notwithstanding the failure to file a motion for reconsideration: (a) where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; (c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the petition is perishable; (d) where, under the circumstances, a motion for reconsideration would be useless; (e) where petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h) where the proceeding was ex parte or in which the petitioner had no opportunity to object; and, (i) where the issue raised is one purely of law or public interest is involved. 47 In the case at bar, it is apparent that PLDT was deprived of due process when the trial court expeditiously released the items seized by virtue of the subject search warrants without waiting for PLDT to file its memorandum and despite the fact that no motion for execution was filed by respondents which is required in this case because, as stated in the assailed March 26, 2004 Decision of the Court of Appeals in CA-G.R. SP No. 65682, the May 23, 2001 Joint Order of the trial court is a final order which disposes of the action or proceeding and which may be the subject of an appeal. Thus, it is not immediately executory. Moreover, the items seized by virtue of the subject search warrants had already been released by the trial court to the custody of respondents thereby creating a situation wherein a motion for reconsideration would be useless. For these foregoing reasons, the relaxation of the settled rule by the former Fourth Division of the Court of Appeals is justified.

Moving on to the third issue of whether PLDT was engaged in forum shopping when it filed a petition for certiorari under Rule 65 with the Court of Appeals despite the fact that it had previously filed an appeal from the assailed May 23, 2001 Joint Order, this Court rules in the negative. In Metropolitan Bank and Trust Company v. International Exchange Bank ,48 we reiterated the jurisprudential definition of forum shopping in this wise: Forum shopping has been defined as an act of a party, against whom an adverse judgment has been rendered in one forum, of seeking and possibly getting a favorable opinion in another forum, other than by appeal or a special civil action for certiorari, or the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. (Citation omitted.) Thus, there is forum shopping when, between an action pending before this Court and another one, there exist: (1) identity of parties, or at least such parties as represent the same interests in both actions; (2) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (3) the identity of the two preceding particulars is such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration; said requisites also constitutive of the requisites for auter action pendant or lis pendens.49 In the case at bar, forum shopping cannot be considered to be present because the appeal that PLDT elevated to the Court of Appeals is an examination of the validity of the trial courts action of quashing the search warrants that it initially is sued while, on the other hand, the petition for certiorari is an inquiry on whether or not the trial court judge committed grave abuse of discretion when he ordered the release of the seized items subject of the search warrants despite the fact that its May 23, 2001 Joint Order had not yet become final and executory, nor had any motion for execution pending appeal been filed by the HPS Corporation, et al. Therefore, it is readily apparent that both cases posed different causes of action. As to the fourth issue of whether or not the two search warrants at issue were improperly quashed, PLDT argues that the Court of Appeals erroneously appreciated the facts of the case and the significance of the evidence on record when it sustained the quashal of the subject search warrants by the trial court mainly on the basis of test calls using a Mabuhaycard with PIN code number 332 147922450 which was the same Mabuhay card that was presented by PLDT to support its application for a search warrant against HPS Corporation, et al. These test calls were conducted in NTC-Region VII Office on November 3, 2000 and in open court on January 10, 2001. PLDT insists that these test calls, which were made after the issuance of the subject search warrants, are immaterial to the issue of whether or not HPS Corporation, et al. were engaged in ISR activities using the equipment seized at the time the subject search warrants were issued and implemented. PLDT further argues that a search warrant is merely a preparatory step to the filing of a criminal case; thus, an applicant needs only to establish probable cause for the issuance of a search warrant and not proof beyond reasonable doubt. In this case, PLDT believes that it had established probable cause that is sufficient enough to defeat the motion to quash filed by HPS Corporation, et al. We find that the contention is impressed with merit. This Court has consistently held that the validity of the issuance of a search warrant rests upon the following factors: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons and things to be seized. 51 Probable cause, as a condition for the issuance of a search warrant, is such reasons supported by facts and circumstances as will warrant a cautious man to believe that his action and the means taken in prosecuting it are legally just and proper. It requires facts and circumstances that would lead a reasonably prudent man to believe that an offense has been committed and that the objects sought in connection with that offense are in the place to be searched. 52 In Microsoft Corporation v. Maxicorp, Inc.,[53] this Court held that the quantum of evidence required to prove probable cause is not the same quantum of evidence needed to establish proof beyond reasonable doubt which is required in a criminal case that may be subsequently filed. We ruled in this case that: The determination of probable cause does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. As implied by the words themselves, "probable cause" is concerned with probability, not absolute or even moral certainty. The prosecution need not present at this stage proof beyond reasonable doubt. The standards of judgment are those of a reasonably prudent man, not the exacting calibrations of a judge after a full-blown trial.54 (Citation omitted.)

In the case at bar, both the trial court and the former Eighteenth Division of the Court of Appeals agree that no probable cause existed to justify the issuance of the subject search warrants. In sustaining the findings of the trial court, the Court of Appeals in its assailed Decision dated April 8, 2005 in CA-G.R. CV No. 75838 ratiocinated in this manner: As a giant in the telecommunications industry, PLDTs declaration in page 21 of its appellants brief that it would "take sometime, or after a certain number of minutes is consumed, before the true value of the card is correspondingly reflected", by way of further explaining the nature of the subject Mabuhay Card as not being a "smart" card, is conceded with much alacrity. We are not, however, prepared to subscribe to the theory that the twenty (20) minutes deducted from the balance of the subject Mabuhay Card after a couple of test calls were completed in open court on January 10, 2001 already included the time earlier consumed by the PLDT personnel in conducting their test calls prior to the application for the questioned warrants but belatedly deducted only during the test calls conducted by the court a quo. It is beyond cavil that litigations cannot be properly resolved by suppositions, deductions, or even presumptions, with no basis in evidence, for the truth must have to be determined by the hard rules of admissibility and proof. This Court cannot quite fathom why PLDT, with all the resources available to it, failed to substantiate this particular supposition before the court a quo, when it could have helped their case immensely. We note that at the hearing held on January 10, 2001, the trial judge allowed the conduct of test calls in open court in order to determine if the subject Mabuhay Card had in fact been used, as alleged by PLDT. However, it was proven that the Card retained its original value of $10 despite several test calls already conducted in the past using the same. PLDT should have refuted this damning evidence while it still had all the opportunity to do so, but it did not. Moreover, if we go by the gauge set by PLDT itself that it would take a certain number of minutes before the true value of the card is reflected accordingly, then we fail to see how the test calls conducted by its personnel on September 13, 2000 could only be deducted on January 10, 2001, after almost four (4) months. PLDT cannot likewise capitalize on the fact that, despite the series of test calls made by Engr. Jesus Laureno at the NTC, Region VII office on November 3, 2000, the subject Mabuhay Card still had $10 worth of calls. Had PLDT closely examined the testimony of Engr. Laureno in open court, it would have realized that not one of said calls ever got connected to a destination number. Thus: "Q You said that after you heard that female voice which says that you still have ten (10) dollars and you entered your call at the country of destination, you did not proceed that call. Will you please tell the Court of the six test calls that were conducted, how many calls were up to that particular portion? A Five (5). Q Will you please tell the Court who since that were five (5) test calls, how many calls did you personally make up to that particular portion? A Only one (1). Q In whose presence? A In the presence of Director Butaslac, Engr. Miguel, Engr. Yeban, Engr. Hinaut and three (3) PNP personnel, Atty. Muntuerto and Atty. Paloma. Q What about the other four (4)? You mentioned of five (5) test calls and you made only one, who did the other four (4) test calls which give the said results? A The third call was done by Engr. Yeban using the same procedure and then followed by the PNP personnel. Actually, the first one who dial or demonstrate is Atty. Muntuerto, me is the second; third is Engr. Yeban; the fourth is the PNP personnel and also the fifth; and the sixth test calls was Engr. Yeban and with that call, we already proceeded to the dialing the destination number which we call one of the numbers of our office. Q What number of the office was called following the instruction that you have ten (10) dollars and that you enter your destination number now? A 346-06-87.

Q What happened? You said that, that was done on the sixth test calls, what happened after that destination number was entered? A The call is not completed and the female voice said to retry again." (TSN, January 10, 2001, pp. 45-48) In fine, PLDT cannot argue that the court a quo should not have relied heavily upon the result of the test calls made by the NTC- Regional Office as well as those done in open court on January 10, 2001, as there are other convincing evidence such as the testimonies of its personnel showing that, in fact, test calls and ocular inspections had been conducted yielding positive results. Precisely, the trial court anchored its determination of probable cause for the issuance of the questioned warrants on the sworn statements of the PLDT personnel that test calls had been made using the subject Mabuhay Card. However, said statements were later proven to be wanting in factual basis. 55 Essentially, the reasoning of the Court of Appeals relies solely on the fact that the Mabuhay card with PIN code number 332 1479224 with a card value of $10.00 did not lose any of its $10.00 value before it was used in the test calls conducted at the NTC-Region VII office and in open court. Thus, the Court of Appeals concluded that, contrary to PLDTs claims, no test calls using the same Mabuhay card were actually made by PLDTs witnesses when it applied for a search warrant against HPS Corporation, et al.; otherwise, the Mabuhay card should have had less than $10.00 value left in it. This Court cannot subscribe to such a hasty conclusion because the determination of whether or not test calls were indeed made by PLDT on Mabuhay card with PIN code number 332 1479224 cannot be ascertained solely by checking the value reflected on the aforementioned Mabuhay card. In fact, reliance on this method of verification is fraught with questions that strike deep into the capability of the said Mabuhay card to automatically and accurately reflect the fact that it had indeed been used by PLDTs witnesses to make test calls. We find that indeed PLDT never represented that the Mabuhay card had an accurate recording system that would automatically deduct the value of a call from the value of the card at the time the call was made. Certainly, PLDT was not in a position to make such an assertion as it did not have a hand in the production and programming of said Mabuhaycard. Furthermore, several plausible reasons could be entertained for the non-deduction of the value of the Mabuhay card other than the trial courts assertion that the said phone card could not have been utilized in test calls made by PLDTs witnesses. One explanation that PLDT offered is that the said Mabuhay card might not be a "smart" card which, in telecommunications industry parlance, is a card that automatically debits the value of a call as it is made as opposed to a non-"smart" card which takes a considerable amount of time before the true value of the card is correspondingly reflected in the balance. Another explanation that PLDT suggests is that the test calls that were conducted in NTC-Region VII on November 3, 2000 and in open court on January 10, 2001 were made long after the subject search warrants were issued which was on October 20, 2000. During the time in between said events, the identity of the Mabuhay card was already a matter of judicial record and, thus, easily ascertainable by any interested party. PLDT asserts this circumstance could have provided HPS Corporation, et al. the opportunity to examine the prosecutions evidence, identify the specific Mabuhay card that PLDTs witnesses used and manipulate the remaining value reflected on the said phone card. This idea is not farfetched considering that if HPS Corporation, et al. did indeed engage in illegal ISR activities using Mabuhay cards then it would not be impossible for HPS Corporation, et al. to possess the technical knowledge to reconfigure the Mabuhay card that was used in evidence by PLDT. In support of this tampering theory, PLDT points to HPS Corporation, et al.s vehement opposition to the introduction of a different Mabuhay card during the testimony of Engr. Tolentino, which PLDT attributes to HPS Corporation, et al.s lack of opportunity to identify and manipulate this particular phone card. Since the value of the subject Mabuhay card may be susceptible to tampering, it would have been more prudent for the trial court and the Court of Appeals to weigh the other evidence on record. As summarized in its memorandum, PLDT submitted the following to the trial court, during the application for the subject search warrants and during the hearing on HPS Corporation, et al.s motion to suppress the evidence: a. The affidavit56 and testimony57 of PLDT employee Engr. Reuben C. Hinagdanan (Engr. Hinagdanan) which was given during the application for the issuance of the subject search warrants. In his affidavit and testimony, Engr. Hinagdanan averred that PLDT conducted surveillance on the ISR activities of HPS Corporation, et al. and that the said surveillance operation yielded positive results that PLDT telephone lines subscribed by Philip Yap and/or HPS Corporation were being utilized for illegal ISR operations.

b. The call detail records58 which are attached as Annex "C" to Engr. Hinagdanans affidavit which indicated that test calls were made by Engr. Hinagdanan using the Mabuhay card with PIN code number 332 1479224. The said document also indicated that even if the calls originated from the United States of America, the calling party reflected therein are local numbers of telephone lines which PLDT had verified as the same as those subscribed by Philip Yap and/or HPS Corporation. c. The affidavit59 and testimony60 of PLDT employee Engr. Richard L. Dira (Engr. Dira) which was given during the application for the issuance of the subject search warrants. In his affidavit and testimony, Engr. Dira averred that he personally conducted an ocular inspection in the premises of HPS Corporation and that the said inspection revealed that all PLDT lines subscribed by Philip Yap and/or HPS Corporation were illegally connected to various telecommunications and switching equipment which were used in illegal ISR activities conducted by HPS Corporation, et al. d. The testimony61 and investigation report62 of Engr. Tolentino which details the test calls he made using Mabuhaycard with PIN code number 349 4374802. This is a different Mabuhay card than what was used by PLDT in its application for the subject search warrants. According to his investigation report, the telephone lines subscribed by Philip Yap and/or HPS Corporation were indeed utilized for illegal ISR operations. e. The testimony63 of Police Officer Narciso Ouano, Jr. (Officer Ouano) of the Legal and Investigation Division of the PAOCTF given during the hearing on the application for the issuance of the subject search warrants wherein Officer Ouano averred that, upon complaint of PLDT, the PAOCTF conducted surveillance operations which yielded positive results that HPS Corporation, et al. were engaged in illegal ISR activities. f. The results of a traffic study64 conducted by PLDT on the twenty (20) direct telephone lines subscribed by Philip Yap and/or HPS Corporation which detailed the extent of the losses suffered by PLDT as a result of the illegal ISR activities conducted by HPS Corporation, et al. Taken together, the aforementioned pieces of evidence are more than sufficient to support a finding that test calls were indeed made by PLDTs witnesses using Mabuhay card with PIN code number 332 1479224 and, more importantly, that probable cause necessary to engender a belief that HPS Corporation, et al. had probably committed the crime of Theft through illegal ISR activities exists. To reiterate, evidence to show probable cause to issue a search warrant must be distinguished from proof beyond reasonable doubt which, at this juncture of the criminal case, is not required. With regard to the issue of whether or not the subject search warrants are in the nature of general warrants, PLDT argues that, contrary to the ruling of the former Eighteenth Division of the Court of Appeals in its assailed Decision dated April 8, 2005 in CA-G.R. CV No. 75838, the subject search warrants cannot be considered as such because the contents of both stated, with sufficient particularity, the place to be searched and the objects to be seized, in conformity with the constitutional and jurisprudential requirements in the issuance of search warrants. On the other hand, HPS Corporation, et al. echoes the declaration of the Court of Appeals that the language used in the subject search warrants are so all-embracing as to include all conceivable records and equipment of HPS Corporation regardless of whether they are legal or illegal. We rule that PLDTs argument on this point is well taken. A search warrant issued must particularly describe the place to be searched and persons or things to be seized in order for it to be valid,65 otherwise, it is considered as a general warrant which is proscribed by both jurisprudence and the 1987 Constitution. In Uy Kheytin v. Villareal,66 we explained the purpose of the aforementioned requirement for a valid search warrant, to wit: [A] search warrant should particularly describe the place to be searched and the things to be seized. The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant x x x what articles they shall seize, to the end that "unreasonable searches and seizures" may not be made, - that abuses may not be committed. x x x In Bache & Co. (Phil.), Inc. v. Ruiz,67 we held that, among other things, it is only required that a search warrant be specific as far as the circumstances will ordinarily allow, such that:

A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow; or when the description expresses a conclusion of fact not of law - by which the warrant officer may be guided in making the search and seizure; or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. x x x. (Citations omitted.) The disputed text of the subject search warrants reads as follows: a. LINES, CABLES AND ANTENNAS or equipment or device capable of transmitting air waves or frequency, such as an IPL and telephone lines and equipment; b. COMPUTERS or any equipment or device capable of accepting information applying the described process of the information and supplying the result of this processes; c. MODEMS or any equipment or device that enables data terminal equipment such as computers to communicate with each other data-terminal equipment via a telephone line; d. MULTIPLEXERS or any equipment or device that enables two or more signals from different sources to pass through a common cable or transmission line; e. SWITCHING EQUIPMENT or equipment or device capable of connecting telephone lines; f. SOFTWARE, DISKETTES, TAPES, OR EQUIPMENT, or device used for recording and storing information; and g. Manuals, phone cards, access codes, billing statements, receipts, contracts, checks, orders, communications, and documents, lease and/or subscription agreements or contracts, communications and documents pertaining to securing and using telephone lines and or equipment in relation to Mr. Yap/HPS ISR Operations. Utilizing the benchmark that was previously discussed, this Court finds that the subject search warrants are not general warrants because the items to be seized were sufficiently identified physically and were also specifically identified by stating their relation to the offenses charged which are Theft and Violation of Presidential Decree No. 401 through the conduct of illegal ISR activities. Lastly, on the issue of whether or not the release of the items seized by virtue of the subject search warrants was proper, this Court rules in the negative. We quote with approval the disquisition of the Court of Appeals on this particular issue in its assailed Decision dated March 26, 2004 in CA-G.R. SP No. 65682, to wit: Although there was no separate order from the respondent judge directing the immediate release of the seized items, such directive was already contained in the Joint Order dated May 23, 2001. The dispositive portion of the assailed Joint Order reads: "WHEREFORE, premises considered, the motion to quash the search warrants and return the things seized is hereby granted. Search Warrant Nos. 2000-10-467 and 2000-10-468 are ordered quashed. The things seized under the said search warrants are hereby ordered to be immediately returned to the respondent HPS Software and Communication Corporation. SO ORDERED." As properly pointed out by the petitioner PLDT, the May 23, 2001 Joint Order of the respondent judge is not "immediately executory". It is a final order which disposes of the action or proceeding and which may be the subject of an appeal. Section 1, Rule 39 of the 1997 Rules of Civil Procedure provides: "Section 1. Execution upon judgments or final orders Execution shall issue as a matter of right, on motion, upon judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom, if no appeal has been duly perfected. xxxx

From the foregoing, it is clear that execution may issue only upon motion by a party and only upon the expiration of the period to appeal, if no appeal has been perfected. Otherwise, if an appeal has been duly perfected, the parties would have to wait for the final resolution of the appeal before it may execute the judgment or final order except for instances where an execution pending appeal is granted by the proper court of law. It would appear that despite the absence of any motion for execution, the respondent judge enforced his Joint Order by directing the release of the seized items from the physical custody of the PNP Special Task Force on June 5, 2001 less than the fifteen-day prescribed period within which an aggrieved party may file an appeal or for such Joint Order to become final and executory in the absence of an appeal. Clearly the release of the seized items was enforced prematurely and without any previous motion for execution on record. We cannot give weight to the argument that the seized items were voluntarily released by the PNP Special Task Force, and thus, with such voluntary implementation of the May 23, 2001 Joint Order, the latter is already final and executed. We take note that the PNP Special Task Force only retained physical custody of the seized items. 1wphi1 However, it was clearly the respondent judge who ordered and released said seized items with his directive in the May 23, 2001 Joint Order. The PNP Special Task Force could not release the said items without the directive and authority of the court a quo. Hence, such compliance cannot be deemed voluntary at all. From the foregoing discussion, it is apparent that the respondent judges directive in the May 23, 2001 Joint Order for the immediate return of the seized items to the respondent HPS was enforced prematurely and in grave abuse of discretion. Clearly, the Joint Order dated May 23, 2001 was not yet final and executory when it was implemented on June 5, 2001. Moreover, a motion for execution filed by the interested party is obviously lacking. Thus, this Court concludes that there is no legal basis for the implementation of the May 23, 2001 Joint Order when the seized items were released on June 5, 2001.68 In all, we agree with the former Fourth Division of the Court of Appeals that there was indeed grave abuse of discretion on the part of the trial court in the premature haste attending the release of the items seized. WHEREFORE, premtses considered, the petition of HPS Corporation, et al. in G.R. No. 170217 is DENIED for lack of merit. The petition ofPLDT in G.R. No. 170694 is GRANTED. The assailed Decision dated April 8, 2005 as well as the Resolution dated December 7, 2005 of the Court of Appeals in CA-G.R. CV No. 75838 are hereby REVERSED and SET ASIDE. No costs. SO ORDERED. TERESITA J. LEONARDO-DE CASTRO Associate Justice WE CONCUR: MARIA LOURDES P. A. SERENO Chief Justice Chairperson MARIANO C. DEL CASTILLO* Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice

BIENVENIDO L. REYES Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. MARIA LOURDES P. A. SERENO Chief Justice

Footnotes
*

Per Raffle dated December 5, 2012. Rollo (G.R. No. 170217), pp. 318-327; penned by Judge Ulric R. Caete.

Id. at 30-37; penned by Associate Justice Elvi John S. Asuncion with Associate Justices Godardo A. Jacinto and Lucas P. Bersamin (now a member of this Court), concurring.
2 3

Id. at 38-39.

Rollo (G.R. No. 170694), pp. 82-94; penned by Associate Justice Ramon M. Bato, Jr. with Executive Justice Mercedes Gozo-Dadole and Associate Justice Pampio A. Abarintos, concurring.
4 5

Id. at 96-97. Rollo (G.R. No. 170217), pp. 318-320. Rollo (G.R. No. 170694), pp. 191-192. Id. at 193-194. Rollo (G.R. No. 170217), pp. 358-361. Id. at 366-377. Id. at 377. Id. at 408-415. Id. at 378-407. Id. at 321. Id. at 323-325. Rollo (G.R. No. 170694), pp. 262-269. Id. at 270-280. Rollo (G.R. No. 170217), pp. 424-427. Id. at 428. Id. at 327. Id. at 429-431. Id. at 434. Id. at 435. CA rollo, pp. 2-41.

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Rollo (G.R. No. 170217), pp. 36-37. Id. at 5-29. Rollo (G.R. No. 170694), p. 93. Id. at 12-80. Id. at 1164-1165. Rollo (G.R. No. 170217), pp. 725-799. Id. at 769-771. Id. at 647-724. Id. at 668-671. Id. at 816-824. 518 Phil. 409 (2006). Rollo (G.R. No. 170217), pp. 816-817. Supra note 35. Id. at 438-439. Laurel v. Abrogar, G.R. No. 155076, January 13, 2009, 576 SCRA 41. Id. at 53-55. G.R. No. 104879, May 6, 1994, 232 SCRA 249. Id. at 256-257. 330 Phil. 771, 778 (1996). G.R. No. 169156, February 15, 2007, 516 SCRA 62. Id. at 68-69. Pineda v. Court of Appeals (Former Ninth Division), G.R. No. 181643, November 17, 2010, 635 SCRA 274, 281.

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Republic v. Pantranco North Express, Inc. (PNEI), G.R. No. 178593, February 15, 2012, 666 SCRA 199, 205206, citing Sim v. National Labor Relations Commission, G.R. No.157376, October 2, 2007, 534 SCRA 515, 521522.
47 48

G.R. Nos. 176008 & 176131, August 10, 2011, 655 SCRA 263, 274. Making Enterprises, Inc. v. Marfori, G.R. No. 152239, August 17, 2011, 655 SCRA 528, 537. Rollo (G.R. No. 170694), p. 113. People v. Tuan, G.R. No. 176066, August 11, 2010, 628 SCRA 226, 245. Tan v. Sy Tiong Gue, G.R. No. 174570, February 17, 2010, 613 SCRA 98, 106.

49

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481 Phil. 550 (2004). Id. at 566-567. Rollo (G.R. No. 170217), pp. 109-111. Rollo (G.R. No. 170694), pp. 98-169. Id. at 565-588. Id. at 127. Id. at 170-182. Id. at 588-594. Id. at 595-802. Id. at 268-269. Id. at 565-574. Id. at 168-169. Del Castillo v. People, G.R. No. 185128, January 30, 2012, 664 SCRA 430, 439. 42 Phil. 886, 896-897 (1920). 147 Phil. 794, 811 (1971). Rollo (G.R. No. 170217), pp. 35-36.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 170979 February 9, 2011

JUDITH YU, Petitioner, vs. HON. ROSA SAMSON-TATAD, Presiding Judge, Regional Trial Court, Quezon City, Branch 105, and the PEOPLE OF THE PHILIPPINES, Respondents. DECISION BRION, J.: We resolve the petition for prohibition filed by petitioner Judith Yu to enjoin respondent Judge Rosa Samson-Tatad of the Regional Trial Court (RTC), Branch 105, Quezon City, from taking further proceedings in Criminal Case No. Q-01-105698, entitled "People of the Philippines v. Judith Yu, et al." 1 The Factual Antecedents The facts of the case, gathered from the parties pleadings, are briefly summarized below. Based on the complaint of Spouses Sergio and Cristina Casaclang, an information for estafa against the petitioner was filed with the RTC. In a May 26, 2005 decision, the RTC convicted the petitioner as charged. It imposed on her a penalty of three (3) months of imprisonment (arresto mayor), a fine of P3,800,000.00 with subsidiary imprisonment, and the payment of an indemnity to the Spouses Casaclang in the same amount as the fine. 2 Fourteen (14) days later, or on June 9, 2005, the petitioner filed a motion for new trial with the RTC, alleging that she discovered new and material evidence that would exculpate her of the crime for which she was convicted. 3 In an October 17, 2005 order, respondent Judge denied the petitioners motion for new trial for lack of merit. 4 On November 16, 2005, the petitioner filed a notice of appeal with the RTC, alleging that pursuant to our ruling in Neypes v. Court of Appeals,5 she had a "fresh period" of 15 days from November 3, 2005, the receipt of the denial of her motion for new trial, or up to November 18, 2005, within which to file a notice of appeal. 6 On November 24, 2005, the respondent Judge ordered the petitioner to submit a copy of Neypes for his guidance.7 On December 8, 2005, the prosecution filed a motion to dismiss the appeal for being filed 10 days late, arguing that Neypes is inapplicable to appeals in criminal cases.8 On January 4, 2006, the prosecution filed a motion for execution of the decision. 9 On January 20, 2006, the RTC considered the twin motions submitted for resolution. On January 26, 2006, the petitioner filed the present petition for prohibition with prayer for the issuance of a temporary restraining order and a writ of preliminary injunction to enjoin the RTC from acting on the prosecutions motions to dismiss the appeal and for the execution of the decision.10 The Petition

The petitioner argues that the RTC lost jurisdiction to act on the prosecutions motions when she filed her notice of appeal within the 15-day reglementary period provided by the Rules of Court, applying the "fresh period rule" enunciated in Neypes. The Case for the Respondents The respondent People of the Philippines, through the Office of the Solicitor General (OSG), filed a manifestation in lieu of comment, stating that Neypes applies to criminal actions since the evident intention of the "fresh period rule" was to set a uniform appeal period provided in the Rules.11 In view of the OSGs manifestation, we required the Spouses Casaclang to comment on the petition.12 In their comment, the Spouses Casaclang aver that the petitioner cannot seek refuge in Neypes to extend the "fresh period rule" to criminal cases because Neypes involved a civil case, and the pronouncement of "standardization of the appeal periods in the Rules" referred to the interpretation of the appeal periods in civil cases, i.e., Rules 40, 41, 42 and 45, of the 1997 Rules of Civil Procedure among others; nowhere in Neypes was the period to appeal in criminal cases, Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, mentioned.13 Issue The core issue boils down to whether the "fresh period rule" enunciated in Neypes applies to appeals in criminal cases. The Courts Ruling We find merit in the petition. The right to appeal is not a constitutional, natural or inherent right it is a statutory privilege and of statutory origin and, therefore, available only if granted or as provided by statutes. It may be exercised only in the manner prescribed by the provisions of the law.14 The period to appeal is specifically governed by Section 39 of Batas Pambansa Blg. 129 (BP 129),15 as amended, Section 3 of Rule 41 of the 1997 Rules of Civil Procedure, and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure. Section 39 of BP 129, as amended, provides: SEC. 39. Appeals. The period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from: Provided, however, That in habeas corpus cases, the period for appeal shall be forty-eight (48) hours from the notice of the judgment appealed from. Section 3, Rule 41 of the 1997 Rules of Civil Procedure states: SEC. 3. Period of ordinary appeal. The appeal shall be taken within fifteen (15) days from notice o f the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration . No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. Section 6, Rule 122 of the Revised Rules of Criminal Procedure reads: SEC. 6. When appeal to be taken. An appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion has been served upon the accused or his counsel at which time the balance of the period begins to run. In Neypes, the Court modified the rule in civil cases on the counting of the 15-day period within which to appeal. The Court categorically set a fresh period of 15 days from a denial of a motion for reconsideration within which to appeal, thus:

The Supreme Court may promulgate procedural rules in all courts. It has the sole prerogative to amend, repeal or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases. In the rules governing appeals to it and to the Court of Appeals, particularly Rules 42, 43 and 45, the Court allows extensions of time, based on justifiable and compelling reasons, for parties to file their appeals. These extensions may consist of 15 days or more. To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. Henceforth, this "fresh period rule" shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court . The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution.16 The Court also reiterated its ruling that it is the denial of the motion for reconsideration that constituted the final order which finally disposed of the issues involved in the case. The raison dtre for the "fresh period rule" is to standardize the appeal period provided in the Rules and do away with the confusion as to when the 15-day appeal period should be counted. Thus, the 15-day period to appeal is no longer interrupted by the filing of a motion for new trial or motion for reconsideration; litigants today need not concern themselves with counting the balance of the 15-day period to appeal since the 15-day period is now counted from receipt of the order dismissing a motion for new trial or motion for reconsideration or any final order or resolution. While Neypes involved the period to appeal in civil cases, the Courts pronouncement of a "fresh period" to a ppeal should equally apply to the period for appeal in criminal cases under Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, for the following reasons: First, BP 129, as amended, the substantive law on which the Rules of Court is based, makes no distinction between the periods to appeal in a civil case and in a criminal case. Section 39 of BP 129 categorically states that "[t]he period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from." Ubi lex non distinguit nec nos distinguere debemos. When the law makes no distinction, we (this Court) also ought not to recognize any distinction.17 Second, the provisions of Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, though differently worded, mean exactly the same. There is no substantial difference between the two provisions insofar as legal results are concerned the appeal period stops running upon the filing of a motion for new trial or reconsideration and starts to run again upon receipt of the order denying said motion for new trial or reconsideration. It was this situation that Neypes addressed in civil cases. No reason exists why this situation in criminal cases cannot be similarly addressed. Third, while the Court did not consider in Neypes the ordinary appeal period in criminal cases under Section 6, Rule 122 of the Revised Rules of Criminal Procedure since it involved a purely civil case, it did include Rule 42 of the 1997 Rules of Civil Procedure on petitions for review from the RTCs to the Court of Appeals (CA), and Rule 45 of the 1997 Rules of Civil Procedure governing appeals by certiorari to this Court, both of which also apply to appeals in criminal cases, as provided by Section 3 of Rule 122 of the Revised Rules of Criminal Procedure, thus: SEC. 3. How appeal taken. x x x x (b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42. xxxx Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45.

Clearly, if the modes of appeal to the CA (in cases where the RTC exercised its appellate jurisdiction) and to this Court in civil and criminal cases are the same, no cogent reason exists why the periods to appeal from the RTC (in the exercise of its original jurisdiction) to the CA in civil and criminal cases under Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure should be treated differently. Were we to strictly interpret the "fresh period rule" in Neypes and make it applicable only to the period to appeal in civil cases, we shall effectively foster and encourage an absurd situation where a litigant in a civil case will have a better right to appeal than an accused in a criminal case a situation that gives undue favor to civil litigants and unjustly discriminates against the accused-appellants. It suggests a double standard of treatment when we favor a situation where property interests are at stake, as against a situation where liberty stands to be prejudiced. We must emphatically reject this double and unequal standard for being contrary to reason. Over time, courts have recognized with almost pedantic adherence that what is contrary to reason is not allowed in law Quod est inconveniens, aut contra rationem non permissum est in lege. 18 Thus, we agree with the OSGs view that if a delay in the filing of an appeal may be excused on grounds of substantial justice in civil actions, with more reason should the same treatment be accorded to the accused in seeking the review on appeal of a criminal case where no less than the liberty of the accused is at stake. The concern and the protection we must extend to matters of liberty cannot be overstated.1avvphi1 In light of these legal realities, we hold that the petitioner seasonably filed her notice of appeal on November 16, 2005, within the fresh period of 15 days, counted from November 3, 2005, the date of receipt of notice denying her motion for new trial. WHEREFORE, the petition for prohibition is hereby GRANTED. Respondent Judge Rosa Samson-Tatad is DIRECTED toCEASE and DESIST from further exercising jurisdiction over the prosecutions motions to dismiss appeal and for execution of the decision. The respondent Judge is also DIRECTED to give due course to the petitioners appeal in Criminal Case No. Q-01-105698, and to elevate the records of the case to the Court of Appeals for review of the appealed decision on the merits. No pronouncement as to costs. SO ORDERED. ARTURO D. BRION Associate Justice

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 178607 December 5, 2012

DANTE LA. JIMENEZ, in his capacity as President and representative of UNLAD SHIPPING & MANAGEMENT CORPORATION, Petitioner, vs. HON. EDWIN SORONGON (in his capacity as Presiding Judge of Branch 214 of the Regional Trial Court of Mandaluyong City), SOCRATES ANTZOULATOS, CARMEN ALAMIL, MARCELl GAZA and MARKOS AVGOUSTIS,Respondents. DECISION BRION, J.: We resolve the petition for review on certiorari[ 1] filed by Dante La. Jimenez (petitioner) to challenge the twin resolutions of the Court of Appeals ( CA) dated November 23, 20062 and June 28, 20073 in CA-G.R. SP No. 96584, which dismissed the petitioner's petition for certiorari and denied his motion for reconsideration, respectively. The Factual Antecedents The petitioner is the president of Unlad Shipping & Management Corporation, a local manning agency, while Socrates Antzoulatos, Carmen Alamil, Marceli Gaza, and Markos Avgoustis (respondents) are some of the listed incorporators of Tsakos Maritime Services, Inc. (TMSI), another local manning agency. On August 19, 2003, the petitioner filed a complaint-affidavit4 with the Office of the City Prosecutor of Mandaluyong City against the respondents for syndicated and large scale illegal recruitment. 5 The petitioner alleged that the respondents falsely represented their stockholdings in TMSIs articles of incorporation 6 to secure a license to operate as a recruitment agency from the Philippine Overseas Employment Agency (POEA). On October 9, 2003, respondents Antzoulatos and Gaza filed their joint counter-affidavit denying the complaint-affidavits allegations.7 Respondents Avgoustis and Alamil did not submit any counter-affidavit. In a May 4, 2004 resolution,8 the 3rd Assistant City Prosecutor recommended the filing of an information for syndicated and large scale illegal recruitment against the respondents. The City Prosecutor approved his recommendation and filed the corresponding criminal information with the Regional Trial Court (RTC) of Mandaluyong City (docketed as Criminal Case No. MC04-8514 and raffled to Branch 212) presided by Judge Rizalina T. Capco-Umali. Subsequently, in a December 14, 2004 resolution, the City Prosecutor reconsidered the May 4, 2004 resolution and filed a motion with the RTC to withdraw the information.9 The petitioner and respondents Antzoulatos and Gaza filed their opposition10 and comment to the opposition, respectively. In an August 1, 2005 resolution,11 the RTC denied the motion to withdraw information as it found the existence of probable cause to hold the respondents for trial. 12 Thus, the RTC ordered the issuance of warrants of arrest against the respondents. On August 26, 2005, respondents Antzoulatos and Gaza filed an omnibus motion for reconsideration and for deferred enforcement of the warrants of arrest.13 In a September 2, 2005 order,14 the RTC denied the omnibus motion, reiterating that the trial court is the sole judge on whether a criminal case should be dismissed or not. On September 26, 2005, respondent Alamil filed a motion for judicial determination of probable cause with a request to defer enforcement of the warrants of arrest.15

On September 29, 2005, the petitioner filed his opposition with motion to expunge, contending that respondent Alamil, being a fugitive from justice, had no standing to seek any relief and that the RTC, in the August 1, 2005 resolution, already found probable cause to hold the respondents for trial.16 In a September 30, 2005 order,17 the RTC denied respondent Alamils motion for being moot and academic; it ruled that it had already found probable cause against the respondents in the August 1, 2005 resolution, which it affirmed in the September 2, 2005 order. On October 10, 2005, respondent Alamil moved for reconsideration and for the inhibition of Judge Capco-Umali, for being biased or partial.18 On October 25, 2005, the petitioner filed an opposition with a motion to expunge, reiterating that respondent Alamil had no standing to seek relief from the RTC.19 In a January 4, 2006 order,20 Judge Capco-Umali voluntarily inhibited herself from the case and did not resolve respondent Alamils motion for reconsideration and the petitioners motion to expunge. The case was later re -raffled to Branch 214, presided by Judge Edwin D. Sorongon. The RTC Rulings In its March 8, 2006 order,21 the RTC granted respondent Alamils motion for reconsideration. It treated respondent Alamils motion for judicial determination as a motion to dismiss for lack of pro bable cause. It found: (1) no evidence on record to indicate that the respondents gave any false information to secure a license to operate as a recruitment agency from the POEA; and (2) that respondent Alamil voluntarily submitted to the RTCs jurisdictio n through the filing of pleadings seeking affirmative relief. Thus, the RTC dismissed the case, and set aside the earlier issued warrants of arrest. On April 3, 2006, the petitioner moved for reconsideration, stressing the existence of probable cause to prosecute the respondents and that respondent Alamil had no standing to seek any relief from the RTC. 22 On April 26, 2006, respondent Alamil moved to expunge the motion for being a prohibited pleading since the motion did not have the public prosecutors conformity.23 In its May 10, 2006 order,24 the RTC denied the petitioners motion for reconsideration, finding that the petitioner merely reiterated arguments in issues that had been finally decided. The RTC ordered the motion expunged from the records since the motion did not have the public prosecutors conformity. On May 19, 2006, the petitioner filed a notice of appeal.25 On May 30, 2006, respondent Alamil moved to expunge the petitioners notice of appeal since the public prosecutor did not authorize the appeal and the petitioner had no civil interest in the case. 26 On June 27, 2006, the petitioner filed his comment to the motion to expunge, claiming that, as the offended party, he has the right to appeal the RTC order dismissing the case; the respondents fraudulent acts in forming TMSI greatly prejudiced him.27 In its August 7, 2006 joint order,28 the RTC denied the petitioners notice of appeal since the petitioner filed it without the conformity of the Solicitor General, who is mandated to represent the People of the Philippines in criminal actions appealed to the CA. Thus, the RTC ordered the notice of appeal expunged from the records. On October 18, 2006, the petitioner elevated his case to the CA via a Rule 65 petition for certiorari assailing the RTCs March 8, 2006, May 10, 2006, and August 7, 2006 orders. The CA Ruling In its November 23, 2006 resolution,29 the CA dismissed outright the petitioners Rule 65 petition for lack of legal personality to file the petition on behalf of the People of the Philippines. It noted that only the Office of the Solicitor General (OSG) has the legal personality to represent the People, under Section 35(1), Chapter 12, Title III, Book IV of the 1987 Administrative Code. It also held that the petitioner was not the real party in interest to institute the case, him not being a victim of the crime charged to the respondents, but a mere competitor in their recruitment business. The CA denied30 the motion for reconsideration31 that followed.

The Petition The petitioner argues that he has a legal standing to assail the dismissal of the criminal case since he is the private complainant and a real party in interest who had been directly damaged and prejudiced by the respondents illegal acts; respondent Alamil has no legal standing to seek any relief from the RTC since she is a fugitive from justice. The Case for the Respondents The respondents32 submit that the petitioner lacks a legal standing to assail the dismissal of the criminal case since the power to prosecute lies solely with the State, acting through a public prosecutor; the petitioner acted independently and without the authority of a public prosecutor in the prosecution and appeal of the case. The Issue The case presents to us the issue of whether the CA committed a reversible error in dismissing outright the petitioners Rule 65 petition for certiorari for lack of legal personality to file the petition on behalf of the People of the Philippines. Our Ruling The petition lacks merit. The petitioner has no legal personality to assail the dismissal of the criminal case It is well-settled that "every action must be prosecuted or defended in the name of the real party in interest[,]" "who stands to be benefited or injured by the judgment in the suit, or by the party entitled to the avails of the suit."33 Interest means material interest or an interest in issue to be affected by the decree or judgment of the case, as distinguished from mere interest in the question involved.34 By real interest is meant a present substantial interest, as distinguished from a mere expectancy, or a future, contingent, subordinate or consequential interest. 35 When the plaintiff or the defendant is not a real party in interest, the suit is dismissible.36 Procedural law basically mandates that "[a]ll criminal actions commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor."37 In appeals of criminal cases before the CA and before this Court, the OSG is the appellate counsel of the People, pursuant to Section 35(1), Chapter 12, Title III, Book IV of the 1987 Administrative Code. This section explicitly provides: SEC. 35. Powers and Functions. The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. . . . It shall have the following specific powers and functions: (1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings ; represent the Government and its officers in the Supreme Court and Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party. (emphasis added) The People is the real party in interest in a criminal case and only the OSG can represent the People in criminal proceedings pending in the CA or in this Court. This ruling has been repeatedly stressed in several cases38 and continues to be the controlling doctrine. While there may be rare occasions when the offended party may be allowed to pursue the criminal action on his own behalf39 (as when there is a denial of due process), this exceptional circumstance does not apply in the present case. In this case, the petitioner has no legal personality to assail the dismissal of the criminal case since the main issue raised by the petitioner involved the criminal aspect of the case, i.e., the existence of probable cause. The petitioner did not appeal to protect his alleged pecuniary interest as an offended party of the crime, but to cause the reinstatement of the criminal action against the respondents. This involves the right to prosecute which pertains exclusively to the People, as represented by the OSG.40 Respondent Alamil voluntarily submitted to the RTCs jurisdiction

As a rule, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. Filing pleadings seeking affirmative relief constitutes voluntary appearance, and the consequent jurisdiction of one's person to the jurisdiction of the court.41 Thus, by filing several motions before the RTC seeking the dismissal of the criminal case, respondent Alamil voluntarily submitted to the jurisdiction of the RTC. Custody of the law is not required for the adjudication of reliefs other than an application for bail.42 WHEREFORE, we hereby DENY the appeal. The twin resolutions of the CoUJt of Appeals dated November 23, 2006 and June 28, 2007 in CAG. R. SP No. 96584 are AFFIRMED. Costs against the petitioner. SO ORDERED. ARTURO D. BRION Associate Justice