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RULE 110

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, VS. OLIVIA ALETH GARCIA CRISTOBAL, accused-appellant. G.R. No. 159450, 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 [1] complainant Prudential Bank, and punished her with reclusion perpetual, thereby modifying the decision dated May 26, 2000 rendered by the Regional Trial Court, Branch 57, in Angeles City (RTC), imposing an indeterminate sentence from ten (10) years and one (1) day of prision 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 2 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.
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March 30, 2011

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: 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 Bank's senior audit examiner
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Virgilio Frias ("Frias"), inventoried the cash accountabilities of the said branch by manually counting the money in each 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 cutoff 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, appellant's 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 don't 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 could'nt do anything but to give in to his request. His second, he rd th demanded for (sic) another P600,000 but I gave him only P530,000. The 3 & 4 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 today's 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 mother's. xxx Upon the State resting its case against the accused, her counsel filed a Demurrer to Evidence and Motion [5] to Defer Defense Evidence, 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 [6] evidence, viz: 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 fifed 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 [7] qualified theft, disposing: 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, finding and ruling as follows:
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The following circumstances as established by the prosecution's 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 to 826,077.51, 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 appellant's guilt. Moreover, the said circumstances, from which the act of taking could be inferred, had been established by the prosecution's 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 accusedappellant 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 with MODIFICATION 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 evidencein-chief despite the expressed motion to defer its presentation when the demurrer to evidence [9] was filed. 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 CA's 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 [10] record. 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 [11] defense. To bolster her submission, she cites the testimony of Virgilio Frias 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 petitioner's submission is untenable. The main purpose of requiring the various elements of a crime to be set forth in the information is to [12] enable the accused to adequately prepare her defense. 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 [13] Court, the rules applicable, 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 nd the commission of the offense through the words "on or about the 2 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 [14] commission. 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 prosecution's 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 [15] defense evidence. The CA rejected her contention in the following manner:
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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. Appellant's 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 appellant's 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 appellant's 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 appellant's 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 [17] [18] heard, and whether they understood the consequences of their waivers. In People v. Bodoso, a prosecution for a capital offense, we leaned towards the protection of the accused's 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 client's 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. 2. 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. 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. 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

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give the defense enough time to this purpose. elicit information about the personality profile of the accused, such as his age, socioeconomic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed waiver. 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, 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 [20] Rules of Court. 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 [21] therefrom. 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. Petitioner's handwritten letter is admissible in evidence The next issue concerns the admissibility of the accused's letter dated January 4, 1996 to Prudential [22] Bank's President explaining the shortage of her dollar collection as bank teller, 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 don't 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 could'nt do anything but to give in to his request. His second, he
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demanded for (sic) another P600,000 but I gave him only P530,000. The 3 & 4 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 today's 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 [23] assistance of counsel and its being under oath, but a voluntary party admission under Section 26, 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 [24] is the admitter's fault if the admission does not. By virtue of its being made by the party himself, an [25] admission is competent primary evidence against the admitter. Worth pointing out is that the letter was not a confession due to its not expressly acknowledging the guilt [26] of the accused for qualified theft. Under Section 30, 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

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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 [27] not yet deprived in any significant way of his liberty. " 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 CA's discourse on why the penalty of reclusion perpetua was appropriate for the offense committed by the accused, to wit: The foregoing considered, appellant's 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 twentyfour (24) years which must then be added to the basic penalty of the maximum period of prision 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. 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.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.CASTOR BATIN, Accused-Appellant. G.R. No. 177223 November 28, 2007 DECISION CHICO-NAZARIO, J.: We are reviewing herein the Decision of the Court of Appeals dated 6 February 2007, in CA-G.R. CR HC No. 01396, affirming the Decision of the Regional Trial Court (RTC) of Quezon City, convicting father and son, Castor and Neil Batin, of the crime of murder. The conviction was for the killing of one Eugenio Refugio, who was shot in the afternoon of 21 October 1994, while he was leaning against a mango tree near his house on St. Peter Street, San Paolo Subdivision, Nagkakaisang Nayon, Novaliches, Quezon City. The Information against Castor and Neil Batin was filed by the Office of the City Prosecutor of Quezon City on 11 April 1995, alleging as follows: That on or about the 21st day of October, 1994, in Quezon City, Philippines, the above-named accused, conspiring together, confederating with and mutually helping each other, did, then and there, wilfully, unlawfully and feloniously, with intent to kill, with treachery, taking advantage of superior strength, and with evident premeditation, attack, assault and employ personal violence upon the person of one EUGENIO REFUGIO y ZOSA, by then and there shooting him with a handgun, hitting him on the right side of his stomach, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of said Eugenio Refugio y Zosa, in such amount as may be awarded under the provisions of the Civil Code. Castor and Neil Batin entered pleas of not guilty. The prosecution, presented as its witnesses Eusebio Farrales, Vilma Juadinez Rodriguez, Florante Baltazar, Josephine Refugio, PO3 Marifor Segundo and Police Inspector Solomon Segundo, offered the following version of the facts, as summarized by the trial court: Eugenios wife, Josephine Refugio, was with him when he was shot, facing him as he leaned against the mango tree and, in fact, had her arms resting on his shoulders. She recalled that before the shooting, she was at home at No. 4-A St. Peter Street that afternoon when, looking out of the window, she caught sight of Castor Batin washing his feet at a nearby faucet. Castor was angrily muttering, and she distinctly heard him say, among the other things he said: "Mga matatandang kunsintidor, dapat manahimik na." Then, being through with washing himself, Castor moved towards the street. Seeing this, she went down and also went to the street because of a feeling of uneasiness ("Para po akong kinakabahan, kasi, ganoon naman ang ginagawa nila lagi, eh, pag nalalasing"). Finding her husband leaning against the mango tree on the side of St. Peter Street, she went to him. She tried to talk Eugenio into going home with her because Castor was again into one of his wild ways ("Nagwawala na naman, daldal ng daldal"). As he was talking with Eugenio, she glanced to her left and saw Neil Batin standing at the gate to their (Batins) compound, looking towards her and her husband. A few moments later, Neil went to one of the parked cars, opened its door, and took a gun from inside. She next noticed Castor going towards Neil as the latter stood at the side of the car and shouting: "Huwag!" Castor grabbed the gun from Neil. After the gun was taken from him, Neil just proceeded towards the right rear of the car. Castor followed Neil and handed
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the gun back to him. When she shifted her glance from the Batins, Josephine heard Castor ordering his son: "Sige, banatan mo na." Neil responded by drawing the gun from his waistline, raising and aiming it at her and her husband, and firing twice from his eye-level. Both Josephine and Eugenio fell to the ground, the former, backwards, and the latter landing on top of her. As they tried to get up, Eugenio uttered to her: "Nanay, may tama ako." She then pulled her husband by the shoulder of his shirt so that she could take him to their house as he was already slumped to the right. She later rushed her husband to the Quezon City General Hospital, where he underwent surgery, but later expired. Other eyewitnesses from the neighborhood were presented and they substantially corroborated her testimonial account. One of them, Eusebio Farrales, a resident of No. 7 St. Paul Street, in relation to which St. Peter Street was perpendicular, recalled being at the barangay outpost near the corner of St. Peter Street and St. Paul Street between 3:00 and 3:30 pm of the afternoon of October 21, 1994 engaged in the clearing of the debris of the recent typhoon when he heard someone cursing and challenging to a fight. Walking towards St. Peter Street where the voice came, he saw that it was Castor. He also saw other neighbors, namely, Eugenio, Josephine, and Eugenios mother, Emilia Refugio. According to Farrales, Castor was moving aimlessly for around five minutes ("Walang direktion at pa-ikot ikot lang siya doon") while cussing: "Putang ina ninyo, sino ang matapang lumabas." Farrales stated that a white car and a white-and-yellow colored taxicab were parked on the side portion of the street fronting the gate to the compound of the Batins and near where Eugenio and Josephine stood. Emilia, the mother of Eugenio, then came towards him, but he advised her to seek assistance from the barangay tanod. After Emilia proceeded towards St. Paul Street to do so, Neil came out through the gate, opened the door of the white car, took out a gun from inside, and handed the gun to Castor, but the latter returned the gun to Neil. Upon getting back the gun, Neil reentered the yard through the gate. Farrales asserted that in the meanwhile Eugenio remained leaning against the mango tree with Josephine facing him and her arms resting on his shoulders. They were in this position when Neil again came out through the gate a few moments later and proceeded to the right side of the car, still holding the handgun. From there, Neil fired twice at the Refugios. The Refugios both fell to the left of the mango tree. Farrales saw both Castor and Neil quickly enter the compound. At that point, Farrales decided to run home in order to summon Alfredo Dizon, his tenant, who was a police officer because he feared that the Batins might escape from the scene by car. Farrales and Dizon lost no time in going to the place of the Batins. After Dizon talked with Castor at the gate of the latters compound, the latter entered the house of his nephew, Ricky Basilio, which was beside Castors own house. A few moments later, Castor came out of Basilios house to let Dizon in through the gate. It was about this time that the responding police officers arrived at the scene. The victim had been rushed to the hospital immediately. Another neighbor, Vilma Juadines Rodriguez, resident of No. 7-A St. Peter Street, declared that while she was at home taking care of her baby at between 3:00 and 3:30 pm of October 21, 1994, she heard someone challenging others to a fight; that looking out of her window ("dungaw"), she saw that it was Boy Batin Castor and he was then walking about on St. Peter Street; that just then, her child cried, and so she went to him; that upon returning to the window to call her other child, she saw Castor hand over a handgun to Neil, and the latter thereafter entered through their gate; that she next saw Neil load bullets into the gun and then tucking it in his right waistline; that after loading, Neil went out to the street, went between the parked white car and yellow taxicab, aimed the gun at Eugenio and Josephine who were at the mango tree, and then asked Castor: "Tay, banatan ko na?"; that Castor replied: "Sige, anak, banatan

mo na." that, at that instant, Neil fired two shots; that as she went down to get her other child upon hearing the gunshots, she heard Josephine say: "Tay, may tama ka"; that she later reentered her house; and that she knew that Eugenio died afterwards. Although Eugenio was rushed to the Quezon City General Hospital right after the shooting and was operated on, he expired the next day. His remains were properly identified in writing by his brother, Tito 3 Eugenio. The medico-legal officer of the PNP Crime Laboratory Service, Dr. Florante Baltazar, conducted an autopsy 4 on Eugenios remains. In his Medico-Legal Report No. M-1715-94, he indicated that Eugenio sustained one gunshot wound, which was, however, fatal, because "it went slightly upward, slightly anteriorward from the right to the left of the body, fracturing the right to [the] left [of the] thoracic region, lacerating the right lumbar region." Dr. Baltazar made the certification as to the cause of death in the death 5 certificate. Upon a written request from the Novaliches Police Station, Quezon City, Police Inspector Solomon Segundo, Chief of the Firearms Identification Branch of the Central Crime Laboratory, Northern Police District Command, Quezon City, conducted the ballistics examination to ascertain whether or not the bullet recovered from the victim was fired from the specimen firearm submitted for examination. P/Insp. 7 Segundo prepared Ballistics Report No. B-042-94, wherein he certified that the bullet from the recovery 8 9 10 box and the bullet recovered from the victims body were fired from the same specimen firearm. This conclusion was arrived at after a test fire and a comparison under the bullet comparison microscope. The defense, on the other hand, presented accused Neil Batin, Castors common-law wife Maricon Pantoja, and one Restituto Paller. Neil Batins testimony is summarized by the trial court as follows: Neil substantially claimed that it was his responsibility to conduct his younger brothers to school and fetch them by car; that he also drove their taxicab; that it was about 7:00 oclock in morning of October 21, 1994, while he was cleaning the family-owned taxicab, that he found a short gun ("de bola") underneath it beside the right rear wheel; that he picked the gun and concealed it in the compartment of the taxicab; that he continued with his chore of cleaning; that as soon as he finished cleaning the taxicab, he drove the white Datsun car to Tondo to fetch his six-year old brother Mark, the son of his father with Maricon Pantoja; that Mark was a pupil at the Magat Salamat Elementary School in Tondo; that after picking up Mark, they drove to the house of his uncle, Domingo Batin, in Marulas, Valenzuela, to get his clothes from his cousin; that they arrived there at 11:00 am, and spent around two hours there; that from Marulas, they went home, arriving at St. Peter Street at around 2:30 pm; that he parked the car on the road in front of their fence; that he and Mark first entered the house to deposit Marks school things and later went outside to await the arrival of Marks mother; that his other brothers were outside; that Castor was also outside talking with a man whose name he did not know but whom he had seen thrice before as well as with Boy Iigo in front of the latters house; that Iigos house was 15 meters from their gate; that Pantoja soon arrived at around 2:45 pm; that he continued talking and playing with his brothers; and that at that point he decided to take the gun from the compartment of the taxicab then parked around 2 meters away from where he and his brothers were and tucked it in his waistline. Having thus tucked the gun, Neil went to stand at the right rear side of the Datsun car which was parked facing the mango tree ("halos magkatapat lang po"). Maricon came out to the street at that point to ask him about the time he had fetched Mark. It was while he was standing there with the others that, according to Neil, he suddenly felt the impulse of drawing the gun from his waistline ("Bigla kong naisipang bunutin ang baril"). He thus drew the gun and turned around, but, as he did so, he accidentally pulled the trigger, causing the gun to fire twice ("Tumalikod po ako, tapos nakalabit ko, pumutok ng dalawang beses").
6

Neil admitted knowing the late Eugenio Refugio and his wife Josephine because they were his neighbors with only a high wall separating their houses; but denied seeing them that afternoon beside the mango tree. At the sound of gunfire, Castor rushed towards Neil from where he was in front of Iigos hou se, shouting twice to his son: "Huwag!" Pantoja, for her part, forced Neil to enter the compound, where she brought him inside the house of his aunt. Neil concealed the gun in the ceiling of the aunts house. Neil said that he and his father did not grapple inside the Datsun car for possession of the gun; that his father did not wrest the gun from him; that he did not enter the compound to put bullets in the gun; that his father did not order him to shoot Eugenio; and that his father was not drunk and challenging others to a fight. He insisted that he and the Refugios, with whom he was acquainted since 1987, had no 11 misunderstandings, for he even had shared drinks with the late Eugenio before October 21, 1994. As regards the testimonies of the defenses two other witnesses, the trial court could not make an intelligible narrative of the version of the facts presented by them, considering the contradictions it found in their testimonies. The trial court found glaring Maricon Pantojas "self -contradiction" as to where she and the accused were when Eugenio was shot. During the trial, Maricon testified that she, Neil and Castor 12 were outside their house when Neil drew the gun and accidentally fired. However, in her affidavit, she alleged that they went outside their house upon hearing a gun explosion and saw "Eugenio Refugio alone 13 holding his stomach x x x we have no any knowledge whether he was hit by a bullet." On 8 June 1998, the trial court rendered its Decision finding both accused guilty of murder, qualified by treachery, to wit: WHEREFORE, judgment is hereby rendered finding the accused CASTOR BATIN and NEIL BATIN guilty beyond reasonable doubt of the crime of MURDER as defined and penalized under Art. 248, Revised Penal Code, as amended, and they are hereby each sentenced to suffer reclusion perpetua; and ordered to pay the heirs of EUGENIO REFUGIO, through his wife, JOSEPHINE REFUGIO, as follows: 1] P50,000.00, as death indemnity; 2] P61,500.00, as actual damages; 3] P500,000.00, as moral damages; 4] P307,920.00, as indemnity for lost of earning capacity; and 5] The costs of suit.
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Neil and Castor Batin filed an appeal with the Court of Appeals. However, on 13 November 2000, accused Neil Batin filed an Urgent Motion to Withdraw Appeal. The People interposed no objection to the Motion, which was granted. On 6 February 2007, the Court of Appeals rendered the assailed Decision affirming, with modification, the Decision of the trial court, to wit: WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Quezon City, Metro Manila in Criminal Case No. Q-95-61003 is hereby AFFIRMED with MODIFICATION as to civil liabilities. With the exception of the award of moral damages which is reduced to P100,000.00 and the indemnity for loss of earning capacity which is increased to P723,840.00, the awards for death indemnity and actual

damages are retained.

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Castor Batin now comes before this Court, assigning the following errors: I THE HONORABLE COURT OF APPEALS AND THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT AS PRINCIPAL FOR INDUCEMENT FOR THE CRIME CHARGED. II THE HONORABLE COURT OF APPEALS AND THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE 16 AGGRAVATING CIRCUMSTANCE OF TRACHERY. Castor Batin prays that the Decision of the Court of Appeals be reversed and set aside and a new one entered acquitting him of the crime charged. In the alternative, he prays that he be held liable for the crime of homicide only, arguing that the qualifying circumstance of treachery was not sufficiently stated in the Information. Whether there was conspiracy in the killing of Eugenio Refugio It is evident from Castors Supplemental Brief and all his other issuances after the withdrawal of Neils appeal that he had already discarded Neils theory of accidental shooting. Instead, his arguments are geared toward his distancing himself from the act of Neil in shooting Eugenio Refugio. We cannot, however, dispose of the discussion of Neils theory of accidental shooting. As Neils testimony had been the only evidence presented by the defense to rebut the prosecutions evidence concerning the acts of Castor during the incident, we should carefully scrutinize Neils testimony to determine his credibility. Neil claims that while his back was still turned against the Refugios, he suddenly felt the impulse to draw the gun from his waistline. He drew the gun, turned around with the gun in hand, and accidentally fired it twice without aiming it at anyone. As held by the trial court, this account is plainly far-fetched and incredible. As observed by the trial court, The revolver involved herein was a mechanical firearm which belonged to the so-called double-action type of guns. This type has a firing mechanism which permits two methods of firing the first is by manually cocking or retracting the hammer and then pressing the trigger to release the hammer; the second is by applying continuous pressure on the trigger in order to cock the hammer and then releasing the trigger. The drop of the hammer by either method propels the firing pin forward so that its other end strikes the primer cap to explode the propellant charge inside the shell which then forces out the bullet through the gun barrel. From the nature of the firing mechanism of Exhibit O, and there being no evidence showing that the hammer was manually cocked before the gun fired, it was absolutely physically impossible for the gun to fire accidentally. In order to determine for himself how much pressure was necessary to cock the hammer into firing position, the undersigned presiding judge personally tested the trigger pull of Exhibit O. Even assuming that the passage of time from the date of the shooting caused some change on the efficiency of the firing mechanism, such change can only show up by way of a weakening of the hammer spring. Nonetheless, it

was not surprising for the undersigned presiding judge to find heavy resistance at each trigger pull, such that he exerted some force to cock the hammer. This actual testing easily validated the conclusion that 17 firing the gun accidentally and unintentionally was impossible. Neils claim that he accidentally fired the gun twice in quick succession is, thus, even more incredible. Given the difficulty of pulling the trigger to cock the hammer into firing position, it is inconceivable how the gun could have been fired by Neil twice in quick succession except by a deliberate and intentional pulling of the trigger. Given the physical attributes and condition of the gun involved in the case at bar, the testimony of Eusebio Farrales is likewise observed to be much more credible than that of Neil. Whereas Neil claims that he accidentally fired the gun twice using only one hand, Eusebio Farrales testified that Neil fired at the Refugios while holding the gun with both hands and from a standing position. While the maxim falsus in uno falsus in omnibus is not an absolute rule of law and is in fact rarely applied 18 in modern jurisprudence, Neils credibility has been severely tarnished by the foregoing portion of his testimony. Thus, we should likewise take with a grain of salt the following parts of his testimony which tend to refute the account of the prosecution concerning the acts of Castor during the incident: (1) that Neil and Castor did not grapple inside the Datsun car for possession of the gun; (2) that Castor did not wrest the gun from him; (3) that Neil did not enter the compound to put bullets in the gun; (4) that Castor did not order Neil to shoot Eugenio; and (5) that Castor was not drunk and challenging others to a fight. As stated above, Castor has already discarded Neils theory of accidental shooting and, instead, focuses on distancing himself from the act of Neil in shooting Eugenio Refugio. Castors principal defense in this appeal is that the conviction of a person as a principal by inducement requires (1) that the inducement be made with the intention of procuring the commission of the crime; and (2) that such inducement be the 19 determining cause of the commission by the material executor. Castor claims that there is no conclusive proof that he participated in the shooting, and that "(h)is alleged utterance of the words Sige, banatan mo na" cannot be considered as the moving cause of the shooting. According to Castor, if he had wanted his son to shoot Eusebio Refugio, he would not have shouted "Huwag" and struggled for possession of the gun. We are not persuaded. First of all, the theory presented by the prosecution in both the Information and in their arguments before the courts is not Castors being a principal by inducement, but rather his being a co -conspirator. If conspiracy is proven, the act of one is the act of all. As stated above, the widow, Josephine Refugio, and the neighbors -- Eusebio Farrales and Vilma Juadinez Rodriguez -- testified to the fact that Castor handed the gun to Neil and urged the latter to fire at the Refugio spouses. The trial court, whose assessment of the credibility of witnesses deserves great respect, since it had the important opportunity to observe first20 hand the expression and demeanor of the witnesses at the trial, found these witnesses credible, thus: From its careful and thorough evaluation of the record, the Court finds that Castor and Neil conspired in shooting Eugenio. This finding is inexorable because the testimonies of the Prosecution witnesses that Castor returned the gun back to Neil; that he instigated Neil to shoot by shouting: "Sige, banatan mo na"; and that Neil then fired his gun twice were credible and sufficed to prove Castors indispensable cooperation in the killing of Eugenio. Accordingly, Castor was as much liable criminally for the death of Eugenio as Neil, the direct participant in the killing, was. The reliability of witnesses Farrales and Rodriguez, for one, cannot be doubted. Being the neighbors of

both the Batins and the Refugios, their claim of witnessing the events that culminated into the shooting of Eugenio was unassailable. The accused, in fact, could not provide any reason or motive for them to testify 21 against the Batins unless it was upon the truth. While Castor was indeed heard to have shouted "Huwag," this cannot be considered as reliable evidence that he tried to dissuade Neil from firing the gun. It was established by credible testimony that he handed back the gun to Neil and urged him to shoot the Refugio spouses. Josephine Refugio plainly stated on cross-examination that Castor shouted "Huwag" while inside the car grappling for possession of the gun, and not when Neil was aiming the gun at the spouses. Thus: (Atty. Siobal Cross-examining) Q The second time around that you saw him was when he moved towards the right rear of the car? A I did not remove my sight at Neil Batin as he moved towards this car, sir. Q Also, without moving your glance or gaze at Neil Batin, you saw him proceed to the right rear portion of the car and open the right rear door of said car, is it not? A Yes, sir. Q And without also removing your gaze or sight at Neil Batin, you saw him open and get a gun inside the car? A I saw Neil Batin opened the right rear door, as if he is putting all his body inside the car, when Mang Boy took hold of Neil, they were grappling for possession of the gun, and raised it above, and that was the time when my husband saw the gun raised, and I also saw the gun. Court So they were both inside the car, their arms were both inside the car and the gun was inside the car when you and your husband saw this particular scene? A Yes, your Honor. Atty. Siobal So you saw Castor Batin and Neil Batin grappling for the gun when they were inside the car? A Yes, sir, and then Castor Batin shouted "huwag." Q And at that time they were grappling for the gun inside the car and Castor Batin shouted "huwag," after that, you and your husband saw the gun atop the roof of the car, is that what you want to convey to the Court? A The gun was still inside the car, only we saw it through the glass window, sir. Q And what happened after that? A Neil Batin got out of the car, followed by Castor Batin and then Castor gave the gun to Neil, and after

receiving the gun, Neil placed the gun at his waist, sir. Q You said Neil Batin got out of the car ahead of Castor Batin, where did Neil Batin go or proceed, to what direction? A He proceeded to that place labeled as Exhibit G-7, sir. Q And you said Castor Batin followed Neil Batin to the place where he proceeded here at Exhibit G-7? A Yes, sir. Q Of course, when Neil Batin got out of the car ahead, his back, he must have turned his back from you? A He was sidewise in relation to me, sir. Q How about Castor Batin, when he got out of the car, he must have turned his back from you? A Yes, sir. Q And where was Castor Batin facing when you said he gave the gun to Neil Batin? A He was facing Neil, sir.
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As concluded by the trial court, the circumstances surrounding Castors utterance of "Huwag!" shows beyond doubt that Castor shouted the same, not to stop Neil from firing the gun, but to force him to leave the use of the gun to Castor. These circumstances only confirm the conspiracy between the Batins in committing the crime: after the Batins grappled for the gun and Castor shouted "Huwag," Castor finally decided to give the gun to Neil a crystal-clear expression of the agreement of the Batins concerning the commission of a felony. Conspiracy may also be deduced from the acts of the appellants before, during, and after the commission 23 of the crime which are indicative of a joint purpose, concerted action, and concurrence of sentiments. Prosecution witnesses Josephine Refugio and Eusebio Farrales positively indicated in their testimonies that prior to the shooting of Eugenio Refugio, Castor was drunk, was openly challenging others to a fight, and was uttering angry words. It was at this juncture that witnesses saw Neil retrieve his gun from the parked car, after which Castor grabbed the gun from his son, grappled with it, returned it to his son, and ordered the latter to shoot the Refugios. Secondly, even if we pursue the theory that the defense is trying to stir us to, the results would be the same. Castors argument is that "(h)is alleged utterance of the words Sige, banatan mo na cannot be considered as the moving cause of the shooting and, therefore, he cannot be considered a principal by inducement. Inducement may be by acts of command, advice or through influence or agreement for consideration. The words of advice or the influence must have actually moved the hands of the principal by direct participation. We have held that words of command of a father may induce his son to commit a crime. In 24 People v. Tamayo, we held that the moral influence of the words of the father may determine the course of conduct of a son in cases in which the same words coming from a stranger would make no impression.

There is no doubt in our minds that Castors words were the determining cause of the commission of the crime. As stated above, Vilma Juadines Rodriguez testified that the eighteen-year-old Neil Batin asked his father before shooting: "Tay, banatan ko na?" Neil Batin was clearly seeking the consent of his father 25 before proceeding with the act, and it was Castors words "Sige, banatan mo na" that sealed Eugenio Refugios fate. Whether treachery was specifically alleged in the Information There is treachery when the offender commits any of the crimes against a person, employing means, methods, or forms in the execution thereof which tend directly and specially to ensure its execution, 26 without risk to himself arising from the defense which the offended party might make. According to the trial court, treachery was attendant in the killing of Eugenio because Castor ordered Neil to fire at Eugenio after they clearly saw that he was still leaning against the mango tree and being restrained by Josephine who had her arms on his shoulders. Thereby, "the accused insured their safety from any defensive or retaliatory act of Eugenio who, in that position of helplessness and unpreparedness, obviously had no opportunity to defend himself or to retaliate even if he wanted to. The accused thus consciously used the firearm to assault from a distance, all the more to enhance the chances 27 of killing the victim without risk to themselves." Castor does not refute the above findings of the trial court that treachery was sufficiently proven during the trial. All that Castor claims before us is that the qualifying circumstance of treachery was not specifically alleged in the Information. The Information filed against the Batins states that "the accused, conspiring together, confederating with and mutually helping each other, did, then and there, wilfully, unlawfully and feloniously, with intent to kill, with treachery, taking advantage of superior strength, and with evident premeditation, attack, assault and employ personal violence upon the person of one EUGENIO REFUGIO y ZOSA, by then and there shooting him with a handgun, hitting him on the right side of his stomach, thereby inflicting upon him serious and mortal wounds which were the direct and 28 immediate cause of his untimely death." Castor claims that this charge does not allege the specific treacherous acts of the accused. According to Castor, the allegation therein that the accused "with treachery x x x, attack, assault and employ personal violence" is a mere conclusion of law by the one who drafted the said Information. Hence, it did not satisfy the test of sufficiency of Information as provided in Sections 8 and 9 of Rule 110 of the Rules of Court. Sections 8 and 9 of Rule 110 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. SEC. 9. Cause of the accusation.The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. Pertinently, we have held in Balitaan v. Court of First Instance of Batangas that the main purpose of requiring the various elements of a crime to be set forth in an Information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense. We added in said case that
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[I]t is often difficult to say what is a matter of evidence, as distinguished from facts necessary to be stated in order to render the information sufficiently certain to identify the offense. As a general rule, matters of evidence, as distinguished from facts essential to the description of the offense, need not be averred. For instance, it is not necessary to show on the face of an information for forgery in what manner a person is to be defrauded, as that is a matter of evidence at the trial. We hold that the allegation of treachery in the Information is sufficient. Jurisprudence is replete with cases wherein we found the allegation of treachery sufficient without any further explanation as to the circumstances surrounding it. Here are some of the cases: In People v. Lab-eo, Wilson Lab-eo was indicted for murder under the following Information: That on or about October 21, 1996, at the Barangay Hall, Poblacion, Tadian, Mountain Province, and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill and with the use of a sharp knife, did then and there willfully, unlawfully and feloniously attack, assault, strike and stab Segundina Cay-no with a well-honed and pointed knife and thereby inflicting a mortal stab wound upon the victim as reflected in that medico-legal certificate, to wit: Stab wound infrascapular area left, penetrating with massive hemathorax, which caused the death of the victim thereafter. That the aggravating circumstances of evident premeditation, treachery, abuse of superior strength and craft attended the commission of the offense. The accused in this case argued that the Information above, while captioned as "Murder," only charged him with homicide as written. This Court found nothing wrong with the Information, and ruled that the Information sufficiently charged the accused with murder, not even considering the absence of an explanation of the treachery stated therein, thus: The fact that the qualifying circumstances were recited in the second paragraph and not in the first paragraph of the Information, as commonly done, is a matter of form or style for which the prosecution should not be faulted. That the Provincial Prosecutor decided to write the Information differently did not impair its sufficiency. Nothing in the law prohibits the prosecutor from adopting such a form or style. As long as the requirements of the law are observed, the Information will pass judicial scrutiny. xxxx The test of sufficiency of Information is whether it enables a person of common understanding to know the charge against him, and the court to render judgment properly. The rule is that qualifying circumstances must be properly pleaded in the Information in order not to violate the accuseds constitutional right to be properly informed of the nature and cause of the accusation against him. The purpose is to allow the accused to fully prepare for his defense, precluding surprises during the trial. Significantly, the appellant never claimed that he was deprived of his right to be fully apprised of the 31 nature of the charges against him because of the style or form adopted in the Information. This Court went on to affirm the conviction of the accused therein with murder qualified by treachery. The allegation in the Information of treachery as a qualifying circumstance was similarly assailed in People 32 v. Opuran, wherein the charge was as follows: Criminal Case No. 4693
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That on or about November 19, 1998, at nighttime, at Km. 1, South Road, Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, said accused, with deliberate intent to kill and treachery, did, then and there willfully, unlawfully, and feloniously attack, assault and stab Demetrio Patrimonio, Jr., with the use of a bladed weapon (5" long from tip to handle with scabbard), thereby inflicting upon the victim fatal stab wounds on the back of his body, which wounds resulted to his instantaneous death. All contrary to law, and with attendant qualifying circumstance of treachery. This Court again rejected the argument of the defense by finding the allegation of treachery sufficient, and later on finding the accused therein guilty of murder qualified by treachery: We do not find merit in appellants contention that he cannot be convicted of murder for the death of Demetrio, Jr. because treachery was not alleged with "specificity" as a qualifying circumstance in the information. Such contention is belied by the information itself, which alleged: "All contrary to law, and with the attendant qualifying circumstance of treachery." In any event, even after the recent amendments to the Rules of Criminal Procedure, qualifying circumstances need not be preceded by 33 descriptive words such as qualifying or qualified by to properly qualify an offense. Finally, the following constitutes the Information in People v. Bajar : That on or about the 16th day of August 1999, at about 8:00 oclock in the evening, at sitio Mohon, Barangay Mambayaan, Municipality of Balingasag, Province of Misamis Oriental, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above named accused, then armed with a sharp bolo, with intent to kill, and with evident premeditation, and treachery, did then and there willfully, unlawfully and feloniously stab one 85 year old Aquilio Tiwanak, accuseds father -in-law, hitting him on the different parts of his body, which caused his instantaneous death, to the damage and prejudice of the heirs of Aquilio Tiwanak in such amounts as may be allowed by law. The aggravating circumstances of dwelling, taking advantage of superior strength, disregard of the respect due the victim on account of his age, habitual intoxication and relationship attended the commission of the crime. CONTRARY to Article 248 of the Revised Penal Code, in relation [to] Article 14, paragraph 3 and 15, and Article 15 of the Revised Penal Code. Like in the previous two cases, this Court found the Information to have sufficiently alleged treachery as a qualifying circumstance. Evidentiary facts need not be alleged in the information because these are matters of defense. Informations need only state the ultimate facts; the reasons therefor could be proved 35 during the trial. Whether the civil liabilities of the accused were correctly awarded by the lower courts The trial court ordered the accused, Neil and Castor Batin, to pay the heirs of Eugenio Refugio in the following amounts: 1) P50,000.00, as death indemnity; 2) P61,500.00, as actual damages; 3) P500,000.00, as moral damages;
34

4) P307,920.00, as indemnity for loss of earning capacity; and 5) the costs of suit.
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Jurisprudence pegs the death indemnity in the above amount (P50,000.00) pursuant to the current judicial policy on the matter. No proof thereof is required. The P61,500.00 in actual damages consists of the expenses incurred by the family of Eugenio Refugio, which Josephine Refugio testified to and was 37 summarized in Exhibit H: (1) P25,000.00 for medicines, surgery and other expenses for the 38 hospitalization and emergency treatment; (2) P20,000.00 for funeral expenses, inclusive of the costs of 39 coffin, funeral services, and expenses during the wake; and (3) P6,500.00 as for burial expenses. The Court of Appeals also modified the trial courts computation of the indemnity for loss of earning capacity. The trial court, finding the work of Eugenio Refugio to be hazardous, reduced his life expectancy to 20 years. This modification is in accord with our ruling in Pleyto v. Lomboy. computation for the award for loss of earning capacity: Net Earning = 2/3 x (80 Age at x (Gross Annual Capacity time of death) Income Reasonable & Necessary Living Expenses) Eugenio Refugio, who was 31 years old at the time of his death, had a daily income of P145.00. The Court of Appeals multiplied this amount by 26 working days to get Eugenio Refugios monthly income of P3,770.00. The Court of Appeals thus applied the Pleyto formula as follows: Net Earning = 2/3 x (80 31) x [(P3770 x 12) (P3770 x 12)]Capacity Net Earning = 2/3 x (49) x [(P45,240) (P22,620)]Capacity Net Earning = 32 x [P22,620]Capacity Net Earning = P723,840 Capacity Lastly, the Court of Appeals found the award of P500,000.00 as moral damages to be excessive, and instead fixed the amount at P100,000.00. In accord with prevailing jurisprudence, however, we further 42 reduce this amount to P50,000.00. WHEREFORE, the Decision of the Court of Appeals affirming with modification the conviction of accusedappellant Castor Batin for murder is AFFIRMED with FURTHER MODIFICATION as to the amount of the moral damages, which is hereby reduced to P50,000.00. SO ORDERED.
41 40

Pleyto offers the following

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.WILLIAM CHING, accused-appellant. G.R. No. 177150 November 22, 2007

DECISION CHICO-NAZARIO, J.: For review is the Decision of the Court of Appeals in CA-G.R. CR-HC No. 01798 dated 3 August 2006, affirming with modifications the Decision of the Quezon City Regional Trial Court (RTC), Branch 107, in 2 Criminal Cases No. Q-99-87053, Q-99-87054, and Q-99-87055 dated 4 August 2004, convicting accused3 appellant William Ching of three counts of rape committed against his minor daughter, AAA. The factual antecedents are as follows: On 1 October 1999, three separate informations were filed with the RTC against appellant for qualified rape allegedly committed as follows: CRIMINAL CASE NO. Q-99-87053 That in or about the month of May, 1998, in XXX, Philippines, the said accused by means of force and intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent. CRIMINAL CASE NO. Q-99-87054 That in or about the month of May, 1998, in XXX, Philippines, the said accused by means of force and intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent. CRIMINAL CASE NO. Q-99-87055 That in or about the year of 1996, in XXX, Philippines, the said accused by means of force and intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent. Subsequently, these informations were consolidated for joint trial. When arraigned on 6 March 2000, appellant, with the assistance of counsel de oficio, pleaded "Not Guilty" to each of the charges in the 5 informations. Thereafter, trial on the merits ensued. The prosecution presented as witnesses AAA, AAAs mother, BBB, PO3 Jesus Deduque (PO3 Deduque), PO3 Melba Baldeswis (PO3 Baldeswis), and Dr. Angel Cordero (Dr. Cordero). Their testimonies, taken together, present the following narrative: AAA is the third child in a brood of eight children born to appellant and BBB. She was 12 years of age in
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the year 1996 when the alleged incidents of rape took place. Sometime in the year 1996, at around 5:00 in the afternoon, she and her younger siblings, namely, CCC, DDD, EEE and FFF, were left at their house with appellant, while BBB was at the market buying food. Appellant told CCC, DDD and EEE to play outside the house. AAA was then cooking rice when appellant instructed her to go inside the bedroom. When AAA was already inside the room, appellant ordered her to lie down on the cemented floor. When she did, appellant placed himself on top of her and removed her shorts and panty. She screamed "Tulungan po ninyo ako!" and resisted, but to no avail because appellant pressed his feet against hers. Appellant then removed his shorts and brief and thereafter inserted his penis into her vagina. AAA felt pain but she could not move because appellant held both her hands above her head. Appellant told her, "Wag kang maingay, papatayin kita." After satisfying his lust, appellant stood up and left the bedroom. AAA proceeded to the house of BBBs kumare, Aling Leony, to forget and recover from the incident. She did not inform BBB of the incident because of her fear that appellant would make good his threats to kill her. For the second time, one evening of May 1998, AAA and her younger siblings were sleeping on the cemented floor inside the bedroom when appellant entered and lay down beside her. Appellant pulled her left arm and made her lie in a straight body position. He removed his shorts and placed himself on top of her. He then pulled down her shorts and panty, and again inserted his penis into her vagina. Despite the pain, AAA did not shout because appellant threatened to kill her. Subsequently, appellant stood up and reiterated his threat to kill her if she would tell anyone what happened. For the third time, in the evening of May 1998, while AAA and her younger siblings were sleeping inside the bedroom, appellant lay down beside her. Appellant pulled her left arm and made her face him. Appellant placed himself on top of her and removed her shorts and panty. Thereafter, he had carnal knowledge of her. She did not shout out of fear. Afterwards, appellant stood up and warned her not to tell anyone of the incident or he would kill her. From June 1998 to February 1999, appellant was arrested and detained for drug pushing. In the meantime, AAA was employed as a house helper. After his release from jail, appellant would go to see AAA at her employers house demanding money and creating a scene when AAA refused to give him any. Fed up, AAA sneaked out of her employers house and proceeded to the nearby barangay hall to report, not just the commotion caused by appellant in front of her employers house when she did not give him money, but also that appellant previously raped her several times. Hence, appellant was arrested by PO3 6 Deduque and PO3 Baldeswis, and charged with rape. BBB was not able to accompany AAA in filing the instant case against appellant because she was also detained for drug pushing and was released only on 5 December 1999. Upon her release from jail, she immediately sought AAA and, when informed of the incident, she fully supported AAA in the instant case 7 against appellant. Dr. James Belgira (Dr. Belgira), a physician of the Philippine National Police (PNP) Crime Laboratory, personally examined AAA. His findings, as stated in the medico-legal report, are as follows: FINDINGS: GENERAL AND EXTRAGENITAL:

Fairly developed, fairly nourished and coherent female subject. Breasts are conical with dark brown areola and nipple from which no secretions could be pressed out. Abdomen is flat and soft. GENITAL: There is scanty growth of pubic hair. Labia majora are full, convex and slightly gaping with an area of erythematous at the middle of the left labium and the dark brown labia minora presenting in between. On separating the same disclosed an elastic, fleshy-type hymen with shallow healed lacerations at 5 and 9 oclock position. External vaginal orifice offers moderate resistance to the introduction of the examining index finger. Vaginal canal is narrow with prominent rugosities. Cervix is firm and closed. CONCLUSION: Subject is in non-virgin state physically. There are no external signs of application of any form of physical trauma.
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However, in view of the unavailability of Dr. Belgira to personally appear before the trial court, it was Dr. Cordero, another physician at the PNP crime laboratory, who appeared in court for the purpose of producing and interpreting the medical records of AAA and confirming that the same was conducted in 9 accordance with the protocol of the PNP. The prosecution also presented documentary evidence to bolster its version of the events, to wit: (1) 10 11 Sinumpaang Salaysay of AAA ; (2) marriage contract of BBB and appellant ; (3) the baptismal certificate 12 of AAA with her date of birth entered as 12 August 1983 ; (4) letter referral of Police Station 4, 13 Novaliches, Quezon City, of the instant case to the Office of the City Prosecutor ; (5) joint sworn affidavit 14 of the arresting officers ; (6) the medico-legal report with regard to AAA issued and signed by Dr. Belgira 15 as the medico-legal officer of the PNP Crime Laboratory ; (7) the routing slip from the PNP Crime 16 Laboratory ; (8) request for laboratory examination forwarded by Police Station 4 to the PNP Crime 17 18 Laboratory ; (9) the initial laboratory report issued by the PNP Crime Laboratory ; (10) the sexual crime 19 narrative report based on the narration of AAA ; and (11) manifestation of consent executed by AAA as 20 accompanied by PO3 Baldeswis. Appellant singly testified in his own behalf and denied the foregoing accusations. He admitted that AAA is his daughter and third child with his wife, BBB. From 1992 to 1996, he worked as a driver, but he was detained for selling drugs in 1997. He was released on 29 March 1998, but he was again imprisoned for robbery and drug cases. While he was in jail, he learned that BBB asked AAA to find a job and that BBB was subsequently detained for drugs. Upon his release from jail in February 1999, appellant immediately went home and found his eldest son taking care of his other children. On several occasions, he would see AAA at her employers house to ask for money. This purportedly irked AAA and the latters employer. It 21 was AAAs employer and BBB who coached AAA to file rape charges against appellant. On 27 July 2004, the RTC rendered a Decision convicting appellant of three counts of rape. In Criminal Case No. Q-99-87055, the Court imposed on appellant the penalty of reclusion perpetua. In Criminal Cases No. Q-99-87053 and Q-99-87054, appellant was sentenced to death. The dispositive portion of the decision reads: WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds that the prosecution established the guilt of the accused beyond reasonable doubt and is therefore found guilty of the offenses charged. The accused is hereby sentenced: 1. In Crim. Case No. Q-99-87055:

a. To suffer the penalty of reclusion perpetua; b. To indemnify the private complainant AAA the amount of P50,000.00 by way of civil indemnity; c. To pay the private complainant AAA the amount of P50,000.00 for exemplary damages; d. To pay the private complainant AAA the amount of P50,000.00 for moral damages; e. To pay the costs of the suit; 2. In Crim. Case No. Q-99-87053: a. To suffer the penalty of DEATH; b. To indemnify the private complainant AAA the amount of P75,000.00; c. To pay the private complainant AAA the amount of P75,000.00 for exemplary damages; d. To pay the private complainant AAA the amount of P75,000.00 for moral damages; f. To pay the costs of the suit; and 3. In Crim. Case No. Q-99-87054: a. To suffer the penalty of DEATH; b. To indemnify the private complainant AAA the amount of P75,000.00; c. To pay the private complainant AAA the amount of P75,000.00 for exemplary damages; d. To pay the private complainant AAA the amount of P75,000.00 for moral damages; and e. To pay the costs of the suit. In the event, however, that the accused shall be pardoned by the President, he is, however, forever barred from showing himself to the private complainant. He must not approach the private complainant; he shall never contact the private complainant directly or indirectly either by letters, telephone, cellphone 22 or send text messages or with the use of any electrical devices. In view of the penalty imposed upon appellant, the RTC elevated the records of the case directly to the 23 Court of Appeals for review pursuant to our ruling in People v. Mateo. On 3 August 2006, the Court of Appeals promulgated its Decision, affirming with modifications the Decision of the RTC, thus: WHEREFORE, premises considered, the Decision dated 27 July 2004, promulgated on 04 August 2004, of the Regional Trial Court of Quezon City, Branch 107 convicting accused-appellant William Ching of three (3) counts of qualified rape in Crim. Cases Nos. Q-99-87053, Q-99-87054, Q-99-87055 is AFFIRMED with the MODIFICATION that the sentence imposed on appellant is reduced to reclusion perpetua for each count of qualified rape, in lieu of death penalty, by reason of Republic Act No. 9346, and that pursuant to

said law, accused-appellant shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. Further, accused-appellant is ordered to pay the victim AAA the amounts of P75,000.00 for civil indemnity, another P75,000.00 for moral damages and P25,000.00 for 24 exemplary damages for each count of qualified rape. Before us, appellant assigns a single error, to wit: THE TRIAL COURT ERRED IN NOT CONSIDERING THE INFORMATIONS CHARGING THE ACCUSEDAPPELLANT OF THE CRIME OF RAPE INSUFFICIENT TO SUPPORT A JUDGMENT OF CONVICTION FOR FAILURE OF THE PROSECUTION TO STATE WITH PARTICULARITY THE APPROXIMATE DATE OF THE 25 COMMISSION OF THE ALLEGED RAPES. Appellant maintains that the approximate time of the commission of the offense must be stated in the complaint or information; that the informations in the instant case do not state the approximate time of the alleged rapes; that the informations are fatally defective; that the date and time of the alleged rapes are so indefinite thereby depriving appellant of the opportunity to prepare for his defense; and that appellants constitutional right to be informed of th e nature and cause of accusation against him was 26 violated. The contentions are devoid of merit. An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor 27 and filed with the court. To be considered as valid and sufficient, an information must state the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the 28 offense; and the place where the offense was committed. The purpose of the requirement for the informations validity and sufficiency is to enable the accused to suitably prepare for his defense since he 29 is presumed to have no independent knowledge of the facts that constitute the offense. With respect to the date of the commission of the offense, Section 11, Rule 110 of the Revised Rules of Criminal Procedure specifically provides that it is not necessary to state in the information the precise date the offense was committed except when it is a material ingredient of the offense, and that the offense may be alleged to have been committed on a date as near as possible to the actual date of its commission. In rape cases, failure to specify the exact dates or times when the rapes occurred does not ipso facto make the information defective on its face. The reason is obvious. The date or time of the commission of rape is not a material ingredient of the said crime because the gravamen of rape is carnal knowledge of a woman through force and intimidation. The precise time when the rape took place has no substantial bearing on its commission. As such, the date or time need not be stated with absolute accuracy. It is sufficient that the complaint or information states that the crime has been committed at any time as near 30 as possible to the date of its actual commission. In sustaining the view that the exact date of commission 31 of the rape is immaterial, we held in People v. Purazo that: We have ruled, time and again that the date is not an essential element of the crime of rape, for the gravamen of the offense is carnal knowledge of a woman. As such, the time or place of commission in rape cases need not be accurately stated. As early as 1908, we already held that where the time or place or any other fact alleged is not an essential element of the crime charged, conviction may be had on proof of the commission of the crime, even if it appears that the crime was not committed at the precise time or place alleged, or if the proof fails to sustain the existence of some immaterial fact set out in the complaint, provided it appears that the specific crime charged was in fact committed prior to the date of

the filing of the complaint or information within the period of the statute of limitations and at a place within the jurisdiction of the court. This Court has upheld complaints and informations in prosecutions for rape which merely alleged the 32 33 month and year of its commission. In People v. Magbanua, we sustained the validity of the information for rape which merely alleged the year of its commission, thus: Although the information did not state with particularity the dates when the sexual attacks took place, we believe that the allegations therein that the acts were committed "on (sic) the year 1991 and the days thereafter" substantially apprised appellant of the crime he was charged with since all the essential elements of the crime of rape were stated in the information. As such, appellant cannot complain that he was deprived of the right to be informed of the nature of the case filed against him. An information can withstand the test of judicial scrutiny as long as it distinctly states the statutory designation of the offense and the acts or omissions constitutive thereof. There is no cogent reason to deviate from these precedents especially so that all the essential elements of rape were also stated in the informations. Hence, the allegations in the informations which stated that the three incidents of rape were committed in the year 1996 and in May 1998 are sufficient to affirm the conviction of appellant in the instant case. Since the sole issue raised by appellant was resolved by this Court in favor of the validity of the informations filed against him, then the subsequent trial court proceedings and the resulting judgment of conviction against appellant should likewise be affirmed, there being no other questions raised by appellant as to them. We further uphold the penalty imposed on appellant by the Court of Appeals. Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, was the law applicable in the year 1996, the time the first rape was committed. On the other hand, Republic Act No. 8353, otherwise known as the Anti-Rape Law of 1997, was the law pertinent to the two rapes committed in May 1998. Both laws state that the death penalty shall be imposed if the rape victim is a minor and the offender is a parent. The qualifying circumstances of minority of the victim and the latte rs relationship with the offender must be alleged in the complaint or information and proved during the trial to warrant 34 the imposition of the death penalty. The informations in Criminal Cases No. Q-99-87053, Q-99-87054 and Q-99-87055 specifically alleged that AAA was a minor at the time she was raped and that the offender, herein appellant, is her father. The prosecution also proved during the trial the presence of the qualifying circumstances of minority and relationship through documentary and testimonial evidence. As a rule, the best evidence to prove the age of the offended party for the purpose of appreciating the qualifying circumstance of minority is an original or certified true copy of the certificate of live birth of such party. However, in the absence of a certificate of live birth, similar authentic documents, such as a 35 baptismal certificate, which show the date of birth of the victim would suffice to prove age. In the case at bar, the prosecution was not able to present the birth certificate of AAA because, according to BBB, the birth of AAA was not registered with the appropriate government agencies. BBB testified during the trial that at the time she gave birth to AAA through the assistance of a comadrona, the latter told her that a neighbor known only as comadre volunteered and suggested to register the birth of AAA together with the registration of birth of comadres child; that to the best of her knowledge, comadre registered the birth of AAA; that when AAA was about to enroll in school, she went to the Quezon City Hall to secure a birth certificate of AAA but she was told therein that there are no records of birth of AAA; that she talked with comadre because the latter took all the necessary papers relevant to the birth of

AAA; and that comadre told her that such papers were lost.

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Nonetheless, BBB submitted AAAs baptismal certificate dated 23 August 2001 issued by Rev. Fr. Romeo 37 M. Castro, SVD, Parish Priest of Sacred Heart Parish, Kamuning, Quezon City. The baptismal certificate states that AAA was born on 12 August 1983. This implies that AAA was about 13 years old at the time she was raped by appellant in 1996, and that she was barely 14 years and 9 months old when she was twice raped by appellant in May 1998. The baptismal certificate also states that appellant is the father of AAA. Further, the prosecution adduced the marriage contract of appellant and BBB showing that they were 38 39 married on 29 February 1980. Appellant admitted that AAA is his daughter and BBB is his wife. Given the foregoing considerations, the penalty of death for each of the three counts of rape committed against AAA is proper. However, in view of the effectivity of Republic Act No. 9346 prohibiting the imposition of the death penalty, the penalty to be meted to appellant shall be reclusion perpetua in accordance with Section 2 thereof which reads: SECTION 2. In lieu of the death penalty, the following shall be imposed: a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code. Notwithstanding the reduction of the penalty imposed on appellant, he is not eligible for parole following Section 3 of said law which provides: SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. We also sustain the award of damages made by the Court of Appeals in favor of AAA for each of the three rapes. The award of civil indemnity in the amount of P75,000.00 is the correct amount to be awarded if the crime is qualified by circumstances that warrant the imposition of the death penalty. With respect to moral damages, the amount of P75,000.00 is fitting even though it was not pleaded or its basis 40 established by evidence, pursuant to prevailing jurisprudence. Further, the award of exemplary damages in the amount of P25,000.00 is authorized due to the presence of the qualifying circumstances of minority 41 and relationship. WHEREFORE, after due deliberation, the Decision of the Court of Appeals in CA-G.R. C.R.-H.C. No. 01798 dated 3 August 2006 is hereby AFFIRMED in toto. No costs. SO ORDERED.

PEOPLE OF THE PHILIPPINES, Appellee, vs.GERONIMO DOMINGO, Appellant. G.R. No. 177744 November 23, 2007

RESOLUTION NACHURA, J.: For review is the Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02098 dated July 6, 2006 2 which affirmed the Decision of the Regional Trial Court of Imus, Cavite, Branch 21 in Criminal Cases Nos. 7427-99 and 7428-99. The trial court convicted Geronimo Domingo of rape in Criminal Case No. 7428-99 but acquitted him in Criminal Case No. 7427-99. Sometime in 1997, AAA, then ten years of age being born on July 17, 1987, was inside her residence located at Block 17, Lot 29, Dasmarias, Cavite. At 2:00 in the afternoon, while sleeping on the sofa in their living room, AAA was awakened by the appellant, the son of AAAs maid. He told her to transfer to her bed which she did. While inside the room, she was asked to remove her shorts which she again did; then appellant subsequently inserted his penis into her private organ until the satisfaction of his bestial act. He, thereafter, warned her not to tell anybody about the incident, otherwise, something bad would 3 happen to her. The rape incident was repeated sometime in February 1998. BBB, the mother of AAA, noticed that the latter was always crying and not happy. She thus confronted 4 AAA but she refused to answer. Later, BBB found out that there was a stain in AAAs panty. On June 20, 1998, BBB thus brought AAA to the medico-legal office for examination. The examination revealed that 5 AAAs vagina admitted a finger with ease; and there were fresh lacerations at 12:00 and 6:00 positions. 6 AAA subsequently admitted to BBB that she was raped twice by the appellant. Appellant was separately charged with two counts of rape in the following Information: Criminal Case No. 7427-99 That on or about and sometime in the year 1997, in the Municipality of Dasmarias, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to have carnal knowledge of eleven (11) years old AAA and with threat and intimidation, did, there and then, willfully, unlawfully and feloniously have sexual intercourse with said AAA, an 11 year old girl, without her consent and against her will, to her damage and prejudice. CONTRARY TO LAW.
7 1

Criminal Case No. 7428-99 That on or about the month of February 1998, in the Municipality of Dasmarias, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to have carnal knowledged (sic) of eleven (11) year old AAA, and with threat and intimidation, did, there and then, willfully, unlawfully and feloniously have sexual intercourse with said eleven (11) year old AAA, against the latters will and consent, to her damage and prejudice. CONTRARY TO LAW.
8

For his part, appellant denied the charges. He instead claimed that AAA fell in love with him. As evidence 9 of his relationship with her, he claimed to have received love letters from her. Appellants mother testified that it was impossible for appellant to have raped AAA because she was with her son twenty-four 10 hours a day.

On November 11, 2003, the RTC rendered a Decision convicting the appellant of rape in Criminal Case No. 7428-99 while acquitting him in Criminal Case No. 7427-99. The pertinent portion of the decision reads: WHEREFORE, finding the accused guilty beyond reasonable doubt of the felony of rape as charged in the information in criminal case no. 7428-99, said accused is hereby sentenced to suffer the penalty of reclusion perpetua and to pay the private complainant the amount of P50,000.00 as indemnity and another amount of P50,000.00 as moral damages and the costs of this suit. The accused, however, is hereby acquitted of the felony of rape as charged in the information in criminal case no. 7427-99. SO ORDERED.
11

The trial court acquitted appellant of the first count of rape (in Criminal Case No. 7427-99) because of the defect in the information as to the time of the commission of the offense --- sometime in 1997. As to the second count of rape which was committed in February 1998, the court gave credence to the evidence of the prosecution and did not consider the sweetheart theory offered by the appellant. Assuming that there was consent on the part of AAA, still, the act committed by the appellant constituted statutory rape, 12 considering the age of the victim. Appellant was, thus, sentenced to suffer the penalty of reclusion perpetua. The court further awarded P50,000.00 as civil indemnity and P50,000.00 as moral damages. The case was initially elevated to this Court but the same was transferred to the CA pursuant to the 13 Courts directive in People v. Mateo. On July 6, 2006, the CA affirmed the trial courts decision. The fallo reads: WHEREFORE, the instant appeal is DISMISSED. The assailed Decision dated November 11, 2003 of the Regional Trial Court of Imus, Cavite, Branch 21, in Criminal Case No. 7428-99 is AFFIRMED. SO ORDERED.
14

On appeal before the Court, instead of filing their supplemental briefs, the parties opted to adopt their respective briefs filed before the CA. We find no merit in the appeal. The only issue raised by the appellant is the alleged defect in the Information charging him with the second count of rape in Criminal Case No. 7428-99, for failure to state therein the precise date and time when the offense was committed. An information is valid as long as it distinctly states the elements of the offense and the acts or omissions 15 constitutive thereof. The precise time or date of the commission of an offense need not be alleged in 16 the complaint or information, unless it is an essential element of the crime charged. In rape, it is not. The gravamen of rape is carnal knowledge of a woman through force and intimidation. In fact, the precise time when the rape takes place has no substantial bearing on its commission. As such, the date or time need not be stated with absolute accuracy.1wphi1 It is sufficient that the complaint or information states that the crime has been committed at any time as near as possible to the date of its actual 17 commission. The Information clearly alleged and the prosecution sufficiently established the commission by the appellant of statutory rape. We reiterate the findings of the CA in this wise:

We are convinced that the prosecution was able to establish the fact that the accused-appellant had carnal knowledge of AAA in February 1998 when she was only 10 years old. AAAs birth certificate admittedly shows that she was born on July 17, 1987. At the time she had carnal knowledge of accusedappellant in February 1998, she was only 10 years and five months old. The gravamen of statutory rape is carnal knowledge of a woman below twelve years of age. AAA, in this regard, categorically testified that she in fact was raped, and that she, as shown by her birth certificate was under twelve years old at the 18 time. More importantly, she positively identified the accused-appellant as her rapist. In view of the foregoing, the appellant was correctly sentenced to suffer the penalty of reclusion perpetua for statutory rape. Appellant shall not be eligible for parole pursuant to the Indeterminate Sentence 19 Law. On the civil aspect, the court rightly awarded P50,000.00 as civil indemnity and another P50,000.00 for 20 moral damages, but failed to award exemplary damages. As we held in People v. Malones, this is not the first time that a child has been snatched from the cradle of innocence by some beast to sate its deviant sexual appetite. To curb this disturbing trend, appellant should, likewise, be made to pay exemplary damages which is pegged at P25,000.00. WHEREFORE, premises considered, the appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02098 is AFFIRMED with MODIFICATION. Appellant Geronimo Domingo is sentenced to suffer the penalty of reclusion perpetua with no eligibility for parole. In addition to the award of civil indemnity and moral damages, AAA is hereby awarded P25,000.00 for exemplary damages. SO ORDERED.

PEOPLE OF THE PHILIPPINES, Appellee, vs.ZALDY IBAEZ y FRANCISCO, Appellant. G.R. No. 174656 May 11, 2007[Formerly G.R. Nos. 155271-73]

DECISION QUISUMBING, J.: Appellant Zaldy Ibaez y Francisco was charged with three counts of Rape under three informations, docketed as Criminal Cases Nos. 7197-99, 7198-99 and 7199-99, before the Regional Trial Court (RTC), xxx, Cavite, Branch 21. The informations read: CRIMINAL CASE NO. 7197-99 That sometime in June 1997, in xxx, Cavite, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, with lewd designs and by taking advantage of his moral ascendancy over his own daughter, AAA, then twelve (12) years old and by means of force, threat and intimidation, did, then and there, wilfully, unlawfully and feloniously lie and have sexual intercourse with AAA, a minor, against her will and consent. CONTRARY TO LAW.
1

CRIMINAL CASE NO. 7198-99 That during the period January to December 1998, in xxx, Cavite, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, with lewd designs and by taking advantage of his moral ascendancy over his own daughter, AAA, then thirteen (13) years old and by means of force, threat and intimidation, did, then and there, wilfully, unlawfully and feloniously lie and have sexual intercourse with AAA, a minor, against her will and consent. CONTRARY TO LAW.
2

CRIMINAL CASE NO. 7199-99 That sometime in April 1999, in xxx, Cavite, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, with lewd designs and by taking advantage of his moral ascendancy over his own daughter, AAA, [then] fourteen (14) years old and by means of force, threat and intimidation, did, then and there, wilfully, unlawfully and feloniously lie and have sexual intercourse with AAA, a minor, against her will and consent. CONTRARY TO LAW.
3

When arraigned, appellant entered pleas of not guilty. Whereupon, trial on the merits ensued. On the first charge of rape, AAA testified that she was in their home at xxx, Cavite in June 1997.1awphi1.nt Her mother was in Isabela at the time. Her youngest sibling, BBB, and she were sleeping inside her parents room when her father carried BBB and placed BBB on the floor. He told her to be quiet as he undressed her, kissed her lips, her breasts, then inserted his penis in her vagina. He was on top of her for around 10 minutes. She kept still because she was afraid of him, as she had always been 4 because he was a drug dependent. Though he did not threaten her, she told no one of the incident. On the second charge of rape, AAA testified that appellant raped her eight times from January to 5 December 1998 in their home and she did not tell her mother because she was afraid of appellant. AAA testified that the third rape happened sometime in the morning of April 1999 in their house while her mother was at work. Appellant called her to come in her parents room. When she refused, he came out, took her by the arms and dragged her into the room. Inside, he undressed her, kissed her body and raped her. After the incident, she told a cousin what happened and the latter brought her to the National 6 Bureau of Investigation (NBI) where her complaint-affidavit was executed. The NBIs medical examination in Living Case No. MG-99-477 revealed that AAAs hymen had an oldhealed laceration at the four oclock position and that the hymenal orifice admitted a tube 2.5 cm. in 7 diameter. Appellant denied raping his daughter. As alibi, he claimed that he was often away from home and usually returned only four days after because he was hooked on gambling and drugs. He would usually return home in the morning after his wife had gone to work to avoid quarrels. By then, AAA would already be in school. He admitted being in a rehabilitation center for sometime, but continued to take drugs upon his release. He also admitted that he would beat and threaten his wife if she did not give him money for drugs. He testified further that in January 1999, he left the house, stayed in Pasig and returned home only to steal his wifes car. His wife threatened to have him arrested if he did not return the car. He asked his cousin to return it minus the stereo. When he returned home, his family had gone and he started to sell 8 their things to buy shabu.

After trial, the lower court found appellant guilty beyond reasonable doubt of the crime of qualified rape in Criminal Cases Nos. 7197-99 and 7199-99. Appellant was acquitted in Criminal Case No. 7198-99. The 9 dispositive portion of the Decision dated July 17, 2002 reads: WHEREFORE, finding the accused guilty beyond reasonable doubt of the felony of rape as charged in the informations in criminal cases nos. 7197-99 and 7199-99, said accused is hereby sentenced to die by lethal injection and to pay the private complainant the amount of P50,000.00 as indemnity, another sum of P50,000.00 as moral damages, P25,000.00 as exemplary damages and the cost of this suit. The accused however is hereby acquitted of the felony of rape as charged in the information in criminal case no. 7198-99. SO ORDERED.
10

Hence, the instant resort to automatic review of appellants conviction. 1awphi1.nt Following People v. Mateo, the case was transferred and referred to the Court of Appeals. Upon review, 12 the Court of Appeals rendered its Decision dated May 31, 2006, affirming with modification the decision of the lower court. The fallo of the decision reads: WHEREFORE, appeal is hereby DISMISSED and the assailed July 17, 2002 Decision of the Regional Trial Court of xxx, Cavite, Branch 21, is hereby AFFIRMED with the MODIFICATION that accused-appellant Zaldy Ibaez is sentenced to DEATH for each conviction in Criminal Cases Nos. 7197-99 [and] 7199-99 and accused-appellant Zaldy Ibaez is hereby ORDERED to pay private complainant AAA P150,000.00 as civil indemnity and P100,000.00 as moral damages. Pursuant to Section 13 (a), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M. No. 005-03-SC dated September 28, 2004, which became effective on October 15, 2004, the Court of Appeals, after rendering judgment, hereby refrains from making an entry of judgment and forthwith certifies the case and elevates the entire record of this case to the Supreme Court for review. SO ORDERED.
13 11

Before us, appellant raises this issue for our resolution: THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THE INFORMATIONS IN CRIMINAL CASES NOS. 7197-99 AND 7199-99 INSUFFICIENT TO SUPPORT A JUDGMENT OF CONVICTION FOR FAILURE OF THE PROSECUTION TO STATE THE PRECISE DATES OF THE COMMISSION OF THE ALLEGED RAPES, IT BEING AN 14 ESSENTIAL ELEMENT OF THE CRIME CHARGED. Simply stated, should the precise dates of the commission of the rape be alleged in the information? In his brief, appellant contends that he should have been acquitted in Criminal Cases Nos. 7197-99 and 7199-99. He avers that the informations are not explicit and certain as to the dates of the rape. He argues that such uncertainties run afoul of the constitutionally protected right of the accused to be informed of the nature and cause of the accusation against him. On the other hand, the Office of the Solicitor General (OSG) submits that the two criminal informations filed against appellant are sufficient to inform appellant of the accusations against him. The OSG contends 15 that Section 6, Rule 110 of the Rules of Court merely requires that the information state "the 16 approximate time of the commission of the offense." Further, Section 11 of the same rule provides that

the precise date of the commission of the offense needs to be alleged in the information only when "it is a material ingredient of the offense." After considering the submissions of the parties, we find appellants contention devoid of merit. An information is valid as long as it distinctly states the elements of the offense and the acts or omissions constitutive thereof. The exact date of the commission of a crime is not an essential element of the crime charged. Thus, in a prosecution for rape, the material fact or circumstance to be considered is the 17 occurrence of the rape, not the time of its commission. The gravamen of the offense is carnal knowledge of a woman. The precise time of the crime has no substantial bearing on its commission. Therefore, it is 18 not essential that it be alleged in the information with ultimate precision. Also, it cannot be seriously asserted that appellant was deprived of his constitutional right to be informed of the nature and cause of the accusation against him when the prosecution failed to state the exact date of the commission of the offense. This Court has previously upheld complaints and informations in prosecutions for rape which merely alleged that a rape has been committed "sometime in the month of April 1993," for a rape which was committed in 1993; "on or about May 1998," for a rape committed sometime in the first week of May 1998; and "sometime in the month of September 1998," for a rape 19 committed on an evening in September 1998. The allegation in the informations that the appellant 20 21 committed the rape "sometime in June 1997" and "sometime in April 1999" was sufficient to inform appellant that he was being charged of qualified rape committed against his daughter. The allegation adequately afforded appellant an opportunity to prepare his defense. Thus, appellant cannot complain that he was deprived of his right to be informed of the nature and cause of the accusation against him. At any rate, it is now too late for appellant to question the sufficiency of the criminal informations regarding the dates of the commission of the offense. Appellant could have filed a motion for a bill of 22 particulars before his arraignment or a motion to quash on the ground that the informations alleged 23 erroneous dates prior to his entry of plea. However, he did not. Instead, he had himself arraigned and entered a plea of not guilty to the crime of rape. Such being the case, appellant has waived his right to object to the informations on the ground of an error as to the time of the alleged rape. Appellant also alleged that AAA filed the rape cases to have him imprisoned because of his failure to fulfill his paternal obligations. We are not persuaded by his allegation. When a woman, more so if she is a minor, says that she has been raped, she says in effect all that is necessary to constitute the commission of the crime that has been inflicted on her. This doctrine applies with more vigor when the culprit is a close relative of the victim, and 24 her father at that. Besides, no woman, least of all a minor, would concoct a story of defloration, allow an examination of her private parts and subject herself to public trial or ridicule if she has not, in truth, been 25 a victim of rape and impelled to seek justice for the wrong done to her. Withal, we are in agreement with the submission of the Court of Appeals and the OSG that the RTC erred in the imposition of the appropriate penalty because it imposed only one penalty of death for two convictions of rape. The penalty imposed on the appellant should be modified so that in each case, the conviction of rape should separately be penalized by death. However, in view of the enactment of 26 Republic Act No. 9346 on June 24, 2006 prohibiting the imposition of the death penalty, the penalty in each case to be meted on appellant is reclusion perpetua in accordance with Section 2 thereof which reads: SEC. 2. In lieu of the death penalty, the following shall be imposed:

(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or (b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code. (Emphasis supplied.) Further, this Court upholds the Court of Appeals ruling that the award of damages be modified. Pursuant 27 to prevailing jurisprudence, the civil indemnity and moral damages to be awarded are P75,000 and P75,000, respectively, for each conviction of rape which is qualified by circumstances warranting the imposition of the death penalty, and P25,000 as exemplary damages in light of the presence of the qualifying circumstances of minority and relationship. Hence, appellant should pay AAA P150,000 as civil indemnity, P150,000 as moral damages and P50,000 as exemplary damages. WHEREFORE, the Decision dated May 31, 2006 of the Court of Appeals finding appellant Zaldy Ibaez y Francisco guilty beyond reasonable doubt of the crime of qualified rape is AFFIRMED with the following MODIFICATIONS: (1) the penalty of death meted out on the appellant is reduced to RECLUSION PERPETUA, for each count of rape, without eligibility for parole as provided under Rep. Act No. 9346; and (2) the awards of civil indemnity, moral damages, and exemplary damages against appellant are set at P75,000, P75,000, and P25,000, respectively, for each count of rape, or a total of P150,000 as civil indemnity, another P150,000 as moral damages, and P50,000 as exemplary damages, for the two counts of rape, consistent with prevailing jurisprudence. SO ORDERED.

RULE 111
JAIME ALFEREZ, Petitioner, vs.PEOPLE OF THE PHILIPPINES and PINGPING CO, Respondents. G.R. No. 182301 January 31, 2011

DECISION NACHURA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Court of 1 2 Appeals (CA) Decision dated December 13, 2007 and Resolution dated March 4, 2008 in CA-G.R. CEB-CR No. 00300. The facts of the case, as culled from the records, are as follows: Petitioner Jaime Alferez purchased construction materials from Cebu ABC Sales Commercial. As payment for the goods, he issued three (3) checks for the total amount of P830,998.40. However, the checks were dishonored for having been drawn against a closed account. Petitioner was thus charged with three (3) counts of violation of Batas Pambansa Bilang (B.P. Blg.) 22 before the Municipal Trial Court in Cities

(MTCC), Cebu City. The cases were raffled to Branch 3 and docketed as Criminal Case Nos. 40985-R to 3 4 40987-R. During the trial, the prosecution presented its lone witness, private complainant Pingping Co. Thereafter, the prosecution formally offered the following documentary evidence: 1. BPI Check No. 492089 dated 29 April 1994 in the sum of P78, 889.95; 2. BPI Check No. 492010 dated 22 June 1994 in the sum of P30,745.90; 3. BPI Check No. 492011 dated 22 June 1994 in the sum of P721,362.55; 4. The demand letter dated 7 July 1994 addressed to petitioner; 5. The registry receipt of the Post Office; 6. The face of the Registry Return Receipt; 7. The dorsal side of the Registry Return Receipt; 8. The Returned Check Ticket dated 23 June 1994; and 9. The reason for the dishonor.
5

Instead of presenting evidence, petitioner filed a Demurrer to Evidence on August 8, 2003, or approximately ten (10) months after the prosecution rested its case. Petitioner averred that the prosecution failed to show that he received the notice of dishonor or demand letter. On March 4, 2005, the MTCC issued a resolution denying petitioners Demurrer to Evidence, and rendering judgment finding petitioner guilty as charged, the dispositive portion of which reads: WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of issuing bouncing checks as defined and penalized under Section 1 of Batas Pambansa Blg. 22 and hereby sentences the accused the following: 1. To pay a fine of Php830,998.40 and in case of insolvency to suffer subsidiary imprisonment; 2. To pay private complainant the total face value of the checks in the amount of Php830,998.40 plus 1% interest per month beginning from the filing of the complaint. SO ORDERED.
8 7

Aggrieved, petitioner appealed to the Regional Trial Court (RTC), Branch 21, Cebu City. The RTC rendered 9 Judgment affirming in toto the MTCC decision. Petitioner moved for reconsideration, but it was denied in 10 an Order dated December 16, 2005. In the same Order, the RTC modified the MTCC resolution by sentencing petitioner to suffer the penalty of imprisonment for six (6) months for each count of violation of B.P Blg. 22, instead of fine as originally imposed. Undaunted, petitioner elevated the matter to the CA via a petition for review under Rule 42 of the Rules of Court. In the assailed Decision, the CA dismissed the petition for lac k of merit. It sustained petitioners conviction as the elements of the crime had been sufficiently established. As to the service on petitioner of the notice of dishonor, the appellate court pointed out that petitioner did not testify, and that he did

not object to the prosecutions evidence aimed at proving the fact of receipt of the notice of dishonor. Consequently, the registry receipt and the return card adequately show the fact of receipt. As to petitioners contention that he was denied his right to present evidence after the denial of his demurrer to evidence, the CA held that there was no such denial since it was merely the consequence of the filing of demurrer without leave of court. Finally, as to the imposition of the penalty of imprisonment instead of fine, the CA found no grave abuse of discretion on the part of the RTC since it was shown that petitioner 11 acted in bad faith. On March 4, 2008, the CA denied petitioners motion for reconsideration. Hence, this petition anchored on the following issues: Whether the Registry Receipt and Registry Return Receipt alone without presenting the person who mailed and/or served the demand letter is sufficient notice of dishonor as required by BP 22. Whether the filing of the Demurrer of (sic) Evidence without leave and denied by the trial court is a waiver of the right of the petitioner (the accused before the trial court) to present his evidence in support and to rebut the evidence of the respondent particularly with respect to the civil aspect of the case. On the alternative (if the petitioner is guilty), whether the accused should only be mete[d] the penalty of 12 fine as imposed by the trial court (MTCC). The petition is partly meritorious. After a careful evaluation of the records of the case, we believe and so hold that the totality of the evidence presented does not support petitioners conviction for violation of B.P. Blg. 22. Section 1 of B.P. Blg. 22 defines the offense, as follows:
13

Section 1. Checks without sufficient funds.Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court. The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. Accordingly, this Court has held that the elements of the crime are, as follows: (1) the making, drawing, and issuance of any check to apply on 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, 14 without any valid cause, ordered the bank to stop payment.

In this case, the first and third elements of the crime have been adequately established. The prosecution, however, failed to prove the second element. Because this element involves a state of mind which is difficult to establish, Section 2 of B.P. Blg. 22 creates a presumption of knowledge of insufficiency of funds 15 under the following circumstances: Sec. 2. Evidence of knowledge of insufficient funds. The making, drawing, and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. In Suarez v. People, which is on all fours with the instant case, two Informations for violation of B.P. Blg. 22 were filed against petitioner therein. After the prosecution presented its evidence, petitioner filed a Demurrer to Evidence without leave of court on the ground that no notice of dishonor had been sent to and received by him. When the case reached this Court, we acquitted petitioner on reasonable doubt as there was insufficient proof that he received notice of dishonor. We explained that: The presumption arises when it is proved that the issuer had received this notice, and that within five banking days from its receipt, he failed to pay the amount of the check or to make arrangements for its payment. The full payment of the amount appearing in the check within five banking days from notice of dishonor is a complete defense. Accordingly, procedural due process requires that a notice of dishonor be sent to and received by the petitioner to afford the opportunity to avert prosecution under B.P. Blg. 22. x x x. [I]t is not enough for the prosecution to prove that a notice of dishonor was sent to the petitioner. It is also incumbent upon the prosecution to show "that the drawer of the check received the said notice because the fact of service provided for in the law is reckoned from receipt of such notice of dishonor by the drawee of the check. A review of the records shows that the prosecution did not prove that the petitioner received the notice of dishonor. Registry return cards must be authenticated to serve as proof of receipt of letters sent 17 through registered mail. In this case, the prosecution merely presented a copy of the demand letter, together with the registry receipt and the return card, allegedly sent to petitioner. However, there was no attempt to authenticate 18 or identify the signature on the registry return card. Receipts for registered letters and return receipts do not by themselves prove receipt; they must be properly authenticated to serve as proof of receipt of 19 the letter, claimed to be a notice of dishonor. To be sure, the presentation of the registry card with an unauthenticated signature, does not meet the required proof beyond reasonable doubt that petitioner received such notice. It is not enough for the prosecution to prove that a notice of dishonor was sent to the drawee of the check. The prosecution must also prove actual receipt of said notice, because the fact of service provided for in the law is reckoned from receipt of such notice of dishonor by the drawee of the 20 check. The burden of proving notice rests upon the party asserting its existence. Ordinarily, preponderance of evidence is sufficient to prove notice. In criminal cases, however, the quantum of proof required is proof beyond reasonable doubt. Hence, for B.P. Blg. 22 cases, there should be clear proof of 21 notice. Moreover, for notice by mail, it must appear that the same was served on the addressee or a duly authorized agent of the addressee. From the registry receipt alone, it is possible that petitioner or his 22 authorized agent did receive the demand letter. Possibilities, however, cannot replace proof beyond 23 reasonable doubt. The consistent rule is that penal statutes have to be construed strictly against the 24 State and liberally in favor of the accused. The absence of a notice of dishonor necessarily deprives the 25 accused an opportunity to preclude a criminal prosecution. As there is insufficient proof that petitioner received the notice of dishonor, the presumption that he had knowledge of insufficiency of funds cannot
16

arise.

26

This is so even if petitioner did not present his evidence to rebut the documentary evidence of the prosecution as he had waived his right to present evidence for having filed a demurrer to evidence without leave of court. We must emphasize that the prosecution has the burden of proving beyond reasonable doubt each element of the crime as its case will rise or fall on the strength of its own evidence, 27 never on the weakness or even absence of that of the defense. The failure of the prosecution to prove the receipt by petitioner of the requisite notice of dishonor and that he was given at least five (5) banking 28 days within which to settle his account constitutes sufficient ground for his acquittal. Nonetheless, petitioners acquittal for failure of the prosecution to prove all elements of the offense beyond reasonable doubt does not include the extinguishment of his civil liability for the dishonored 29 checks. In case of acquittal, the accused may still be adjudged civilly liable. The extinction of the penal action does not carry with it the extinction of the civil action where (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) the court declares that the liability of the accused is only civil; and (c) the civil liability of the accused does not arise from or is not based upon 30 the crime of which the accused was acquitted. In a number of similar cases, we have held that an 31 acquittal based on reasonable doubt does not preclude the award of civil damages. In view of the foregoing, we sustain the findings of the trial court, as affirmed by the CA, as to petitioners civil liability.1wphi1 Finally, in answer to petitioners insistence that he should have been allowed by the trial court to present his evidence on the civil aspect of the case, suffice it to state that when petitioner filed a demurrer to evidence without leave of court, the whole case was submitted for judgment on the basis of the evidence presented by the prosecution as the accused is deemed to have waived the right to present evidence. At 32 that juncture, the court is called upon to decide the case including its civil aspect. WHEREFORE, premises considered, the Court of Appeals Decision dated December 13, 2007 and Resolution dated March 4, 2008 in CA-G.R. CEB-CR No. 00300 are MODIFIED. Petitioner Jaime Alferez is ACQUITTED on reasonable doubt of violation of B.P. Blg. 22. However, the civil liability imposed on petitioner is AFFIRMED. SO ORDERED.

HUN HYUNG PARK, Petitioner, vs.EUNG WON CHOI, Respondent. G.R. No. 165496 February 12, 2007

DECISION CARPIO MORALES, J.: Petitioner, Hun Hyung Park, assails the Court of Appeals (CA) Resolutions dated May 20, 2004 and 2 September 28, 2004 in CA G.R. CR No. 28344 dismissing his petition and denying reconsideration thereof, respectively.
1

In an Information dated August 31, 2000, respondent, Eung Won Choi, was charged for violation of Batas Pambansa Blg. 22, otherwise known as the Bouncing Checks Law, for issuing on June 28, 1999 Philippine National Bank Check No. 0077133 postdated August 28, 1999 in the amount of P1,875,000 which was dishonored for having been drawn against insufficient funds. Upon arraignment, respondent, with the assistance of counsel, pleaded "not guilty" to the offense charged. Following the pre-trial conference, the prosecution presented its evidence-in-chief. After the prosecution rested its case, respondent filed a Motion for Leave of Court to File Demurrer to Evidence to which he attached his Demurrer, asserting that the prosecution failed to prove that he received the notice of dishonor, hence, the presumption of the element of knowledge of insufficiency of 4 funds did not arise. By Order of February 27, 2003, the Metropolitan Trial Court (MeTC) of Makati, Branch 65 granted the 6 Demurrer and dismissed the case. The prosecutions Motion for Reconsideration was denied. Petitioner appealed the civil aspect of the case to the Regional Trial Court (RTC) of Makati, contending that the dismissal of the criminal case should not include its civil aspect. By Decision of September 11, 2003, Branch 60 of the RTC held that while the evidence presented was insufficient to prove respondents criminal liability, it did not altogether extinguish his civil liability. It accordingly granted the appeal of petitioner and ordered respondent to pay him the amount of 8 P1,875,000 with legal interest. Upon respondents motion for reconsideration, however, the RTC set aside its decision and ordered the remand of the case to the MeTC "for further proceedings, so that the defendant [-respondent herein] may 9 adduce evidence on the civil aspect of the case." Petitioners motion for reconsideration of the remand of the case having been denied, he elevated the case to the CA which, by the assailed resolutions, dismissed his petition for the following reasons: 1. The verification and certification of non-forum shopping attached to the petition does not fully comply with Section 4, as amended by A.M. No. 00-2-10-SC, Rule 7, 1997 Rules of Court, because it does not give the assurance that the allegations of the petition are true and correct based on authentic records. 2. The petition is not accompanied by copies of certain pleadings and other material portions of the record, (i.e., motion for leave to file demurrer to evidence, demurrer to evidence and the opposition thereto, and the Municipal *sic+ Trial Courts Order dismissing Criminal Case No. 294690) as would support the allegations of the petition (Sec. 2, Rule 42, ibid.). 3. The Decision dated September 11, 2003 of the Regional Trial Court attached to the petition is an uncertified and illegible mere machine copy of the original (Sec. 2, Rule 42, ibid.). 4. Petitioners failed to implead the People of the Philippines as party-respondent in the petition.
10 7 5

In his present petition, petitioner assails the above-stated reasons of the appellate court in dismissing his petition. The manner of verification for pleadings which are required to be verified, such as a petition for review 11 before the CA of an appellate judgment of the RTC, is prescribed by Section 4 of Rule 7 of the Rules of Court:

Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. A pleading required to be verified which contains a verification based on "information and belief," or upon "knowledge, information and belief," or lacks a proper verification shall be treated as an unsigned 12 pleading. (Emphasis and underscoring supplied) Petitioner argues that the word "or" is a disjunctive term signifying disassociation and independence, hence, he chose to affirm in his petition he filed before the court a quo that its contents are "true and 13 correct of my own personal knowledge," and not on the basis of authentic documents. On the other hand, respondent counters that the word "or" may be interpreted in a conjunctive sense and construed to mean as "and," or vice versa, when the context of the law so warrants. A reading of the above-quoted Section 4 of Rule 7 indicates that a pleading may be verified under either of the two given modes or under both. The veracity of the allegations in a pleading may be affirmed based on either ones own personal knowledge or on authentic records, or both, as warranted. The use of the preposition "or" connotes that either source qualifies as a sufficient basis for verification and, needless to 14 state, the concurrence of both sources is more than sufficient. Bearing both a disjunctive and conjunctive sense, this parallel legal signification avoids a construction that will exclude the combination 15 of the alternatives or bar the efficacy of any one of the alternatives standing alone. Contrary to petitioners position, the range of permutation is not left to the pleaders liking, but is dependent on the surrounding nature of the allegations which may warrant that a verification be based either purely on personal knowledge, or entirely on authentic records, or on both sources. As pointed out by respondent, "authentic records" as a basis for verification bear significance in petitions wherein the greater portions of the allegations are based on the records of the proceedings in the court of origin and/or the court a quo, and not solely on the personal knowledge of the petitioner. To illustrate, petitioner himself could not have affirmed, based on his personal knowledge, the truthfulness of the 16 statement in his petition before the CA that at the pre-trial conference respondent admitted having 17 received the letter of demand, because he (petitioner) was not present during the conference. Hence, petitioner needed to rely on the records to confirm its veracity. Verification is not an empty ritual or a meaningless formality. Its import must never be sacrificed in the name of mere expedience or sheer caprice. For what is at stake is the matter of verity attested by the 18 sanctity of an oath to secure an assurance that the allegations in the pleading have been made in good 19 faith, or are true and correct and not merely speculative. This Court has strictly been enforcing the requirement of verification and certification and enunciating that obedience to the requirements of procedural rules is needed if fair results are to be expected therefrom. Utter disregard of the rules cannot just be rationalized by harking on the policy of liberal 20 construction. While the requirement is not jurisdictional in nature, it does not make it less a rule. A 21 relaxed application of the rule can only be justified by the attending circumstances of the case. To sustain petitioners explanation that the basis of verification is a matter of simple preference would trivialize the rationale and diminish the resoluteness of the rule. It would play on predilection and pay no heed in providing enough assurance of the correctness of the allegations.

On the second reason of the CA in dismissing the petition that the petition was not accompanied by copies of certain pleadings and other material portions of the record as would support the allegations of the petition (i.e., Motion for Leave to File Demurrer to Evidence, Demurrer to Evidence and the Opposition thereto, and the MeTC February 27, 2003 Order dismissing the case) petitioner contends that these documents are immaterial to his appeal. Contrary to petitioners contention, however, the materiality of those documents is very apparent since the civil aspect of the case, from which he is appealing, was likewise dismissed by the trial court on account of the same Demurrer. Petitioner, nonetheless, posits that he subsequently submitted to the CA copies of the enumerated documents, save for the MeTC February 27, 2003 Order, as attachments to his Motion for Reconsideration. The Rules, however, require that the petition must "be accompanied by clearly legible duplicate original or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of 22 court." A perusal of the petition filed before the CA shows that the only duplicate original or certified true copies attached as annexes thereto are the January 14, 2004 RTC Order granting respondents Motion for Reconsideration and the March 29, 2004 RTC Order denying petiti oners Motion for Reconsideration. The copy of the September 11, 2003 RTC Decision, which petitioner prayed to be reinstated, is not a certified true copy and is not even legible. Petitioner later recompensed though by appending to his Motion for Reconsideration a duplicate original copy. While petitioner averred before the CA in his Motion for Reconsideration that the February 27, 2003 MeTC Order was already attached to his petition as Annex "G," Annex "G" bares a replicate copy of a different order, however. It was to this Court that petitioner belatedly submitted an uncertified true copy of the said MeTC Order as an annex to his Reply to respondents Comment. This Court in fact observes that the copy of the other MeTC Order, that dated May 5, 2003, which petitioner attached to his petition before the CA is similarly uncertified as true. Since both Orders of the MeTC were adverse to him even with respect to the civil aspect of the case, 23 petitioner was mandated to submit them in the required form. In fine, petitioner fell short in his compliance with Section 2 (d) of Rule 42, the mandatory tenor of which 24 is discernible thereunder and is well settled. He has not, however, advanced any strong compelling reasons to warrant a relaxation of the Rules, hence, his petition before the CA was correctly dismissed. Procedural rules are tools designed to facilitate the adjudication of cases. Courts and litigants alike are thus enjoined to abide strictly by the rules. And while the Court, in some instances, allows a relaxation in the application of the rules, this we stress, was never intended to forge a bastion for erring litigants to violate the rules with impunity. The liberality in the interpretation and application of the rules applies only in proper cases and under justifiable causes and circumstances. While it is true that litigation is not a game of technicalities, it is equally true that every case must be prosecuted in accordance with the 25 prescribed procedure to insure an orderly and speedy administration of justice. (Emphasis supplied) As to the third reason for the appellate courts dismissal of his petition failure to implead the People of the Philippines as a party in the petition indeed, as petitioner contends, the same is of no moment, he having appealed only the civil aspect of the case. Passing on the dual purpose of a criminal action, this

Court ruled: Unless the offended party waives the civil action or reserves the right to institute it separately or institutes the civil action prior to the criminal action, there are two actions involved in a criminal case. The first is the criminal action for the punishment of the offender. The parties are the People of the Philippines as the plaintiff and the accused. In a criminal action, the private complainant is merely a witness for the State on the criminal aspect of the action. The second is the civil action arising from the delict. The private complainant is the plaintiff and the accused is the defendant. There is a merger of the 26 trial of the two cases to avoid multiplicity of suits. (Underscoring supplied) It bears recalling that the MeTC acquitted respondent. As a rule, a judgment of acquittal is immediately final and executory and the prosecution cannot appeal the acquittal because of the constitutional prohibition against double jeopardy. Either the offended party or the accused may, however, appeal the civil aspect of the judgment despite the acquittal of the accused. The public prosecutor has generally no interest in appealing the civil aspect of a decision acquitting the accused. The acquittal ends his work. The case is terminated as far as he is concerned. The real parties in interest in the civil aspect of a decision are the offended party and the 28 accused. Technicality aside, the petition is devoid of merit. When a demurrer to evidence is filed without leave of court, the whole case is submitted for judgment on the basis of the evidence for the prosecution as the accused is deemed to have waived the right to 29 present evidence. At that juncture, the court is called upon to decide the case including its civil aspect, 30 unless the enforcement of the civil liability by a separate civil action has been waived or reserved. If the filing of a separate civil action has not been reserved or priorly instituted or the enforcement of civil liability is not waived, the trial court should, in case of conviction, state the civil liability or damages caused by the wrongful act or omission to be recovered from the accused by the offended party, if there 31 is any. For, in case of acquittal, the accused may still be adjudged civilly liable. The extinction of the penal action does not carry with it the extinction of the civil action where (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) the court declares that the liability of the accused is only civil; and (c) the civil liability of the accused does not arise from or is not based upon the 32 crime of which the accused was acquitted. The civil action based on delict may, however, be deemed extinguished if there is a finding on the final judgment in the criminal action that the act or omission from which the civil liability may arise did not 33 exist. In case of a demurrer to evidence filed with leave of court, the accused may adduce countervailing 34 evidence if the court denies the demurrer. Such denial bears no distinction as to the two aspects of the case because there is a disparity of evidentiary value between the quanta of evidence in such aspects of the case. In other words, a court may not deny the demurrer as to the criminal aspect and at the same time grant the demurrer as to the civil aspect, for if the evidence so far presented is not insufficient to prove the crime beyond reasonable doubt, then the same evidence is likewise not insufficient to establish civil liability by mere preponderance of evidence. On the other hand, if the evidence so far presented is insufficient as proof beyond reasonable doubt, it
27

does not follow that the same evidence is insufficient to establish a preponderance of evidence. For if the court grants the demurrer, proceedings on the civil aspect of the case generally proceeds. The only recognized instance when an acquittal on demurrer carries with it the dismissal of the civil aspect is when there is a finding that the act or omission from which the civil liability may arise did not exist. Absent such determination, trial as to the civil aspect of the case must perforce continue. Thus this Court, in Salazar v. 35 People, held: If demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the civil aspect of the case unless the court also declares that the act or omission from which 36 the civil liability may arise did not exist. In the instant case, the MeTC granted the demurrer and dismissed the case without any finding that the act or omission from which the civil liability may arise did not exist. Respondent did not assail the RTC order of remand. He thereby recognized that there is basis for a remand. Indicatively, respondent stands by his defense that he merely borrowed P1,500,000 with the remainder representing the interest, and that he already made a partial payment of P1,590,000. Petitioner counters, 37 however, that the payments made by respondent pertained to other transactions. Given these conflicting claims which are factual, a remand of the case would afford the fullest opportunity for the parties to ventilate, and for the trial court to resolve the same. Petitioner finally posits that respondent waived his right to present evidence on the civil aspect of the 38 case (1) when the grant of the demurrer was reversed on appeal, citing Section 1 of Rule 33, and (2) when respondent orally opposed petitioners motion for reconsideration plead ing that proceedings with respect to the civil aspect of the case continue. Petitioners position is tenuous. Petitioners citation of Section 1 of Rule 33 is incorrect. 1awphi1.net Where a court has jurisdiction over the subject matter and over the person of the accused, and the crime was committed within its territorial jurisdiction, the court necessarily exercises jurisdiction over all issues that the law requires it to resolve. One of the issues in a criminal case being the civil liability of the accused arising from the crime, the governing law is the Rules of Criminal Procedure, not the Rules of Civil Procedure which pertains to a civil 39 action arising from the initiatory pleading that gives rise to the suit. As for petitioners attribution of waiver to respondent, it cannot be determined with certainty from the records the nature of the alleged oral objections of respondent to petitioners motion for reconsideration of the grant of the demurrer to evidence. Any waiver of the right to present evidence must be positively 40 demonstrated. Any ambiguity in the voluntariness of the waiver is frowned upon, hence, courts must 41 indulge every reasonable presumption against it. This Court therefore upholds respondents right to present evidence as reserved by his filing of leave of court to file the demurrer. WHEREFORE, the petition is, in light of the foregoing discussions, DENIED. The case is REMANDED to the court of origin, Metropolitan Trial Court of Makati City, Branch 65 which is DIRECTED to forthwith set Criminal Case No. 294690 for further proceedings only for the purpose of

receiving evidence on the civil aspect of the case. Costs against petitioner. SO ORDERED.

FRANCISCO M. BAX, petitioner, vs.PEOPLE OF THE PHILIPPINES and ILYON INDUSTRIAL CORPORATION, respondents. G.R. No. 149858 September 5, 2007

DECISION SANDOVAL-GUTIERREZ, J.: Challenged in the instant Petition for Review on Certiorari are the Decision of the Court of Appeals dated December 19, 2000 and its Resolution dated September 5, 2001 in CA-G.R. CR No. 23356 affirming in toto the Decision dated December 14, 1998 of the Regional Trial Court (RTC), Branch 70, Pasig City declaring petitioner guilty of nine (9) counts of violations of Batas Pambansa Bilang 22 (B.P. 22), otherwise known as the Bouncing Checks Law. On August 16, 1994, Francisco M. Bax, petitioner, was charged with violations of B.P. 22 (10 counts) 3 before the Metropolitan Trial Court (MeTC), Branch 71, Pasig City, docketed as Criminal Cases Nos. 14354 to 14363. The Information in Criminal Case No. 14354 reads: That on or about the 13 day of March 1994 in the Municipality of Pasig, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously make or draw and issue to Ilyon Industrial Corporation to apply on account or for value the check described below: Check No.: Drawn against In the amount Dated/Postdated Payable to : : : : : AGRO94438 United Coconut Planters Bank P47,250.00 March 13, 1994 Ilyon Industrial Corp. rep. by Benedict Tan
th 1 2

said accused well knowing that at the time of issue he did not have sufficient funds in or credit with the drawee bank for the payment in full of the face amount of such check upon its presentment, which check could have been dishonored for insufficiency of funds had not the accused, without any valid reason, ordered the bank to "Stop Payment", and despite receipt of notice of such dishonor, the accused failed to

pay said payee the face amount of the said check or made arrangement for full payment thereof within five (5) banking days after receiving notice. CONTRARY TO LAW. Except as to the numbers and dates of the other nine checks issued by petitioner, and the reason for their dishonor (drawn against insufficient funds), the Informations in Criminal Cases Nos. 14355-14363 and the above Information are similarly worded. The facts are: Sometime in October 1993, petitioner, for and in behalf of Vachman Industries, Inc. (VACHMAN), purchased 80 metric tons of chemical compounds, known as caustic soda flakes, from Ilyon Industrial Corporation (ILYON), respondent. On December 6, 1993, ILYON delivered 27 metric tons of caustic soda flakes to petitioner. Again in January 1994, ILYON delivered another 27 metric tons of caustic soda flakes to petitioner. In payment therefor, petitioner issued ten (10) checks amounting to P464,750.00 in favor of ILYON. Upon presentment of the checks to the United Coconut Planters Bank for payment, they were dishonored for being drawn against insufficient funds. Despite ILYONs demand, petiti oner failed to make good the bounced checks for the reason that he has been encountering financial problems. As a result, ILYON caused the filing of ten (10) Informations against petitioner. After hearing or on March 27, 1998, the MeTC rendered a Decision finding petitioner guilty as charged, thus: WHEREFORE, in view of all the foregoing, the Court hereby renders judgment finding the accused, Francisco Bax, "GUILTY" of the crime of Violations of Batas Pambansa Bilang 22, (10) counts, and accordingly sentences him to suffer imprisonment of six (6) months in each case and to pay the offended party the sum of P464,750.00, the amount of all the ten (10) checks and to pay the cost. SO ORDERED. On appeal, the RTC, Branch 70, Pasig City, presided by Judge Pablito Rojas, rendered a Joint Decision dated December 14, 1998 affirming with modification the MeTC Decision, thus: WHEREFORE, in view of the foregoing, the Decision of the Court a quo is hereby AFFIRMED with the following MODIFICATIONS: (a) accused is ACQUITTED in Criminal case No. 14354; (b) the sentence imposed on accused in Criminal Case Nos. 14355 to 14363 of six (6) months imprisonment for each is hereby increased to ONE (1) YEAR in each case; and (c) the total amount of indemnity to be paid by the accused to the complainant-corporation is PHP 417,500.00. SO ORDERED.

On appeal, the Court of Appeals in CA-G.R. CR No. 23356 rendered its Decision on December 19, 2000 affirming in toto the RTC Decision. Petitioner filed a motion for reconsideration but it was denied by the appellate court in a Resolution dated September 5, 2001. Hence the instant petition. The basic issue is whether the prosecution was able to prove the guilt of petitioner by evidence beyond reasonable doubt. The Solicitor General contends that the Court of Appeals did not err in affirming the RTC Joint Decision sustaining that of the MeTC because all the elements of violation of B.P. 22 are present in each case. Petitioner, on the other hand, maintains that since he did not receive a written notice of dishonor, not all the elements of the offense have been established by the prosecution. Accordingly, he should be acquitted. We agree with petitioner. It is settled that factual findings of the trial court are accorded great weight, even finality on appeal, except when it has failed to appreciate certain facts and circumstances which, if taken into account, 5 would materially affect the result of the case. This exception is present here. Section 1 of B.P. 22 provides: SECTION 1. Checks without sufficient funds. - Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two hundred thousand pesos, or both such fine and imprisonment at the discretion of the court. The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. Thus, the prosecution must prove the following essential elements of the offense: (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 there are no sufficient funds in or credit with the drawee bank for the payment of such 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 6 payment.

We find that the prosecution failed to prove the second element. To hold petitioner liable for violation of B.P. 22, it is not enough that the issued check was subsequently dishonored for insufficiency of funds. It must be shown beyond reasonable doubt that he knew of the 7 insufficiency of funds at the time the check was issued. Hence, the law provides that he must be notified of the dishonor, thus: SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee bank because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit, unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within 8 five (5) banking days after receiving notice that such check has not been paid by the drawee . While it is true that ILYON, through its president, Benedict Tan, asked petitioner to pay the dishonored checks, however, such kind of notice is not the one required by B.P. 22. Under B.P. 22, the prosecution must prove not only that the accused issued a check that was subsequently dishonored. It must also establish that the accused was actually notified that the check was dishonored, and that he or she failed, within five banking days from receipt of the notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment. Absent proof that 9 the accused received such notice, a prosecution for violation of the Bouncing Checks Law cannot prosper. In Domagsang v. Court of Appeals, we held that the notice of dishonor of a check to the maker must be in writing. A mere oral notice to the drawer or maker of the dishonor of his check is not enough, thus: While, indeed, Section 2 of B.P. Blg. 22 does not state that the notice of dishonor be in writing, taken in conjunction, however, with Section 3 of the law. i.e., "that where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal," a mere oral notice or demand to pay would appear to be insufficient for conviction under the law . The Court is convinced that both the spirit and letter of the Bouncing Checks Law would require for the act to be punished thereunder not only that the accused issued a check that is dishonored, but that likewise the accused has actually been notified in writing of the fact of dishonor. The consistent rule is that penal statutes have to be construed strictly against the State and liberally in favor of the accused. (Emphasis supplied) Since petitioner did not receive a written notice of dishonor of the checks, obviously, there is no way of determining when the 5-day period prescribed in Section 2 of B.P. 22 would start and end. Thus, the prima facie evidence of petitioners knowledge of the insufficiency of funds or credit at the time he issued 11 the checks did not arise. We thus find that the prosecution failed to prove by evidence beyond reasonable doubt that petitioner is guilty of violations of B.P. 22. However, petitioner should pay the face value of the nine (9) dishonored checks plus legal interest. It is well settled that the civil liability is not extinguished by acquittal where such acquittal is based on lack of 12 proof beyond reasonable doubt, since only preponderance of evidence is required in civil cases. We however modify the award of petitioners civil liability to ILYON from P417,500.00 to P425,250.00. In Criminal Case No. 14354, petitioner was acquitted by the RTC since the reason for the dishonor was his "stop payment order" to the drawee bank to enable VACHMAN to reconcile its accounts with ILYON.
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Hence, only the face value of the remaining nine (9) checks should be included in the computation of petitioners civil liability. Each check has a face value of P47,250.00 which, if we multiply by nine, yields P425,250.00. WHEREFORE, we REVERSE the Decision of the Court of Appeals. Petitioner Francisco M. Bax is acquitted in Criminal Cases Nos. 14355 to 14363 for violations of B.P. 22 for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered, however, to pay the offended party, ILYON, the face value of the nine (9) checks in the total amount of P425,250.00 with 12% interest per annum from the filing of the Informations until fully paid. SO ORDERED.

JOSEPHINE DOMAGSANG, petitioner, vs.THE HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. G.R. No. 139292 December 5, 2000

DECISION VITUG, J.: Petitioner was convicted by the Regional Trial Court of Makati, Branch 63, of having violated Batas Pambansa ("B.P.") Blg. 22 (Anti-Bouncing Check Law), on eighteen (18) counts, and sentenced to "suffer the penalty of One (1) Year imprisonment for each count (eighteen [18] counts)." Petitioner was likewise 1 "ordered to pay the private complainant the amount of P573,800.00." The judgment, when appealed to the Court of Appeals (CA-G.R. CR No. 18497), was affirmed in toto by the appellate court. It would appear that petitioner approached complainant Ignacio Garcia, an Assistant Vice President of METROBANK, to ask for financial assistance. Garcia accommodated petitioner and gave the latter a loan in the sum of P573,800.00. In exchange, petitioner issued and delivered to the complainant 18 postdated checks for the repayment of the loan. When the checks were, in time, deposited, the instruments were all dishonored by the drawee bank for this reason: "Account closed." The complainant demanded payment allegedly by calling up petitioner at her office. Failing to receive any payment for the value of the dishonored checks, the complainant referred the matter to his lawyer who supposedly wrote petitioner a letter of demand but that the latter ignored the demand. On 08 May 1992, Criminal Case No. 92-4465 was lodged against petitioner before the Regional Trial Court ("RTC") of Makati. The Information read: "That on or about the 24th day of June, 1991, in the Municipality 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 out, draw and issue to complainant Ignacio H. Garcia, Jr., to apply on account or for value the dated check/described below: "Check No. Drawn Against In the Amount of : 149900 : Traders Royal Bank : P50,000.00

Dated/Postdated : June 24, 1991 Payable to : Ignacio H. Garcia, Jr. "said accused well knowing that at the time of issue thereof, she did not have sufficient funds in or credit with the drawee bank for the payment in full of the face amount of such check 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 the reason `ACCOUNT CLOSED' and despite receipt of notice of such dishonor, the accused failed to pay said payee the face amount of said check or to make arrangement for full payment thereof within five (5) banking days after receiving notice. "CONTRARY TO LAW."
2

Subsequent Informations, docketed Criminal Cases No. 92-4466 to No. 92-4482, inclusive, similarly worded as in Criminal Case No. 92-4465 except as to the dates, the number, and the amounts of the checks hereunder itemized "Check Number Dated/Postdated Amount

TRB No. 161181 July 18, 1991 P6,000.00 TRB No. 149906 July 24, 1991 3,000.00 No. 182074 July 30, 1991 29,700.00 No. 182084 August 30, 1991 9,300.00 No. 182078 September 15, 1991 6,000.00 No. 161183 September 18, 1991 6,000.00 No. 161177 September 18, 1991 100,000.00 No. 182085 September 30, 1991 9,000.00 No. 182079 October 15, 1991 6,000.00 No. 182086 October 30, 1991 10,500.00 No. 182080 November 15, 1991 6,000.00 No. 182087 November 30, 1991 11,400.00 No. 182081 December 15, 1991 6,000.00 No. 182082 December 15, 1991 100,000.00 No. 182088 December 30, 1991 12,000.00 No. 182089 December 30, 1991 100,000.00 3 No. 182090 December 30, 1991 100,000.00" were also filed against petitioner. The cases were later consolidated and jointly tried following the "not guilty" plea of petitioner when arraigned on 02 November 1992. On 07 September 1993, petitioner filed a demurrer to the evidence, with leave of court, premised on the absence of a demand letter and that the checks were not issued as payment but as evidence of indebtedness of petitioner or as collaterals of the loans obtained by petitioner. Opposed by the prosecution, the demurrer was denied by the trial court. 1wphi1 In the hearing of 17 February 1994, petitioner, through counsel, waived her right to present evidence in her defense. Relying solely then on the evidence submitted by the prosecution, the lower court rendered judgment convicting petitioner. The decision, as heretofore stated, was affirmed by the Court of Appeals in its decision of 15 February 1999. Reconsideration was also denied in the resolution, dated 09 July 1999, of the appellate court. Hence, the instant petition where petitioner raised the following issues for resolution by the Court "1. Whether or not an alleged verbal demand to pay sufficient to convict herein petitioner for the crime of violation of B.P. Blg. 22;

"2. Whether or not the Honorable Court of Appeals committed reversible error when it affirmed the judgment of conviction rendered by the trial court, on the ground that a written notice of dishonor is not necessary in a prosecution for violation of B.P. Blg. 22, contrary to the pronouncement of the Supreme Court in the case of Lao vs. Court of Appeals, 274 SCRA 572; (and) "3. Whether or not the Honorable Court of Appeals erred in considering the alleged written demand 4 letter, despite failure of the prosecution to formally offer the same." The pertinent provisions of B.P. Blg. 22 "Bouncing Checks Law," provide: "SECTION 1. Checks without sufficient funds. Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand pesos, or both such fine and imprisonment at the discretion of the court. "The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. "Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. "SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. "SEC. 3. Duty of drawee; rules of evidence. It shall be the duty of the drawee of any check, when refusing to pay the same to the holder thereof upon presentment, to cause to be written, printed or stamped in plain language thereon, or attached thereto, the reason for drawee's dishonor or refusal to pay the same: Provided, That where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal. In all prosecutions under this Act, the introduction in evidence of any unpaid and dishonored check, having the drawee's refusal to pay stamped or written thereon, or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reason written, stamped or attached by the drawee on such dishonored check. "Notwithstanding receipt of an order to stop payment, the drawee shall state in the notice that there were no sufficient funds in or credit with such bank for the payment in full of such check, if such be the 5 fact." (Underscoring supplied.) The law enumerates the elements of the crime to be (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 6 the bank to stop payment. There is deemed to be a prima facie evidence of knowledge on the part of the maker, drawer or issuer of insufficiency of funds in or credit with the drawee bank of the check issued if the dishonored check is presented within 90 days from the date of the check and the maker or drawer fails to pay thereon or to make arrangement with the drawee bank for that purpose. The statute has created the prima facie presumption evidently because "knowledge" which involves a state of mind would be difficult to 7 establish. The presumption does not hold, however, when the maker, drawer or issuer of the check pays the holder thereof the amount due thereon or makes arrangement for payment in full by the drawee bank of such check within 5 banking days after receiving notice that such check has not been paid by the drawee bank. In Lao vs. Court of Appeals, this Court explained: "x x x. Section 2 of B.P. Blg. 22 clearly provides that this presumption arises not from the mere fact of drawing, making and issuing a bum check; there must also be a showing that, within five banking days from receipt of the notice of dishonor, such maker or drawer failed to pay the holder of the check the amount due thereon or to make arrangement for its payment in full by the drawee of such check. "It has been observed that the State, under this statute, actually offers the violator `a compromise by allowing him to perform some act which operates to preempt the criminal action, and if he opts to perform it the action is abated. This was also compar ed `to certain laws allowing illegal possessors of firearms a certain period of time to surrender the illegally possessed firearms to the Government, without incurring any criminal liability. In this light, the full payment of the amount appearing in the check within five banking days from notice of dishonor is a `complete defense. The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand and the basic postulates of fairness require that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under 9 B.P. Blg. 22." In the assailed decision, the Court of Appeals predicated the conviction of petitioner on the supposed fact that petitioner was informed of the dishonor of the checks through verbal notice when the complainant had called her up by telephone informing her of the dishonor of the checks and demanding payment therefor. The appellate court said: "The maker's knowledge of the insufficiency of his funds is legally presumed from the dishonor of his check (People vs. Laggui, 171 Phil. 305). The law does not require a written notice of the dishonor of such check. "In the instant case, appellant had knowledge that her checks were dishonored by the bank when complainant Garcia made several oral demands upon her to pay the value of the checks in the amount of P573,800.00. Despite said demands, appellant failed and refused to pay the same. Moreover, complaining witness further testified that his lawyer made a written demand upon appellant but the latter ignored said demand (tsn., May 27, 1993, pp. 13-14). In this connection, appellant waived her right to present evidence or rebut complainant's testimony that he made oral demands upon appellant to make good the dishonored checks and his lawyer wrote her a demand letter.
8

"Likewise, appellant did not object to the admission of the complainant's testimony with regard to the written demand by moving that it be stricken off the record for being hearsay, hence, the same is admissible evidence. In the case of People vs. Garcia, 89 SCRA 440, the Supreme court ruled: "`x x x (It) must be noted that neither the defendant nor his counsel below objected to the admission of the testimonies which are now being assailed as hearsay. This is fatal to defendant-appellant's present posture since the failure to object to hearsay evidence constitutes a waiver of the x x right to cross10 examine the actual witness to the occurrence, rendering the evidence admissible.'" Petitioner counters that the lack of a written notice of dishonor is fatal.1wphi1 The Court agrees. While, indeed, Section 2 of B.P. Blg. 22 does not state that the notice of dishonor be in writing, taken in conjunction, however, with Section 3 of the law, i.e., "that where there are no sufficient funds in or credit 11 with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal ," a mere oral notice or demand to pay would appear to be insufficient for conviction under the law. The Court is convinced that both the spirit and letter of the Bouncing Checks Law would require for the act to be punished thereunder not only that the accused issued a check that is dishonored, but that likewise the 12 accused has actually been notified in writing of the fact of dishonor. The consistent rule is that penal 13 statutes have to be construed strictly against the State and liberally in favor of the accused. Evidently, the appellate court did not give weight and credence to the assertion that a demand letter was sent by a counsel of the complainant because of the failure of the prosecution to formally offer it in 14 evidence. Courts are bound to consider as part of the evidence only those which are formally offered for 15 judges must base their findings strictly on the evidence submitted by the parties at the trial. Without the written notice of dishonor, there can be no basis, considering what has heretofore been said, for 16 establishing the presence of "actual knowledge of insufficiency of funds." The prosecution may have failed to sufficiently establish a case to warrant conviction, however, it has clearly proved petitioner's failure to pay a just debt owing to the private complainant. The total face value of the dishonored checks, to wit1wphi1 "Check Number TRB No. 149900 TRB No. 161181 TRB No. 149906 No. 182074 No. 182084 No. 182078 No. 161183 No. 161171 No. 182085 No. 182079 No. 182086 No. 182080 No. 182087 No. 182081 No. 182082 No. 182088 No. 182089

Dated/Postdated June 24, 1991 July 18, 1991 July 24, 1991 July 30, 1991 August 30, 1991 September 15, 1991 September 18, 1991 September 18, 1991 September 30, 1991 October 15, 1991 October 30, 1991 November 15, 1991 November 30, 1991 December 15, 1991 December 15, 1991 December 30, 1991 December 30, 1991

Amount P50,000.00 6,000.00 3,000.00 29,700.00 1,300.00 6,000.00 6,000.00 100,000.00 9,900.00 6,000.00 10,500.00 6,000.00 11,400.00 6,000.00 100,000.00 12,000.00 100,000.00

No. 182090 December 30, 1991 100,000.00" or the sum of P563,800, has yet to be made good by petitioner. This amount, with 12% legal interest per annum from the filing of the information until the finality of this decision, must be forthwith settled. WHEREFORE, the decision of the Court of Appeals is MODIFIED. Petitioner Josephine Domagsang is acquitted of the crime charged on reasonable doubt. She is ordered, however, to pay to the offended party the face value of the checks in the total amount of P563,800.00 with 12% legal interest, per annum, from the filing of the informations until the finality of this decision, the sum of which, inclusive of the interest, shall be subject thereafter to 12%, per annum, interest until the due amount is paid. Costs against petitioner. SO ORDERED.

17

RULE 112
AZUCENA B. CORPUZ, petitioner, VS. ROMAN G. DEL ROSARIO, respondent. [G.R. No. 149261 : December 15, 2010]

DECISION DEL CASTILLO, J.: It is a rule too firmly established that the "determination of probable cause for the filing of an Information in court is an executive function, one that properly pertains at the first instance to the public prosecutor [1] and, ultimately, to the Secretary of Justice." "judicial review of the resolution of the Secretary of Justice is limited to a determination of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction considering that the full discretionary authority has been delegated to the executive [2] branch in the determination of probable cause during a preliminary investigation." Challenged in the present petition for review on certiorari under Rule 45 of the Rules of Court is the [3] Decision dated July 27, 2001 of the Court of Appeals (CA) in CA- G.R. SP No. 56434 denying petitioner's petition for certiorari. The controversy has its root in an affidavit-complaint filed with the City Prosecutor's Office of Makati City by Assistant Solicitor General Roman G. del Rosario accusing herein petitioner Assistant Solicitor General Azucena B. Corpuz for Libel. In said complaint, respondent claimed that petitioner's June 13, 1997 memorandum was maliciously issued without any good intention but to discredit and cause dishonor to his good name as a government employee. He insisted that the import of the memorandum affected his credibility and the performance of his official functions as Assistant Solicitor General among others. After the preliminary investigation, Investigating Prosecutor Filipinas Z. Aguilar-Ata (Prosecutor Ata) issued on November 21, 1997, a Resolution making the following findings and recommendation: We find the words "x x x, there is no such thing as 'palabra de honor as far as ASG del Rosario is concerned,' x x x contained in the memorandum dated June 13, 1997 issued by respondent, defamatory as it imputes a kind of detect on complainant's part which tends to discredit his integrity as an Assistant Solicitor General and the other functions he [holds]. Malice is thus presumed from the defamatory imputation. Moreover, the respondent's disposition of having addressed the Memorandum not only to the Solicitor General but to all Assistants [sic] Solicitors] General reveals the absence of good intention on her part in making the imputation. There was, therefore, undue publication of the libelous Memorandum
[4]

as in fact, the same was received and read by the officers concerned. In line, the evidence has sufficiently established a probable cause to indict respondent with the crime of libel, and accordingly, [the] undersigned respectfully recommends that the corresponding information be [5] filed in Court What transpired then were the following events and proceedings. On December 8, 1997, the City Prosecutor's Office of Makati City approved the Resolution of Prosecutor Ata. Accordingly, an Information for libel was filed against petitioner with the Regional Trial Court (RTC) of Makati City. Petitioner's appeal from the prosecutor's resolution was not given due course by NCR Regional [6] Prosecutor/Chief State Prosecutor Jovencito R. Zuo on March 10, 1998. Her motion for [7] reconsideration was likewise denied on September 8, 1998. Petitioner appealed to the Department of Justice (DOJ) assailing the resolution of the City Prosecutor's Office of Makati City. On August 17, 1999, the DOJ Secretaiy considered the appeal as a second motion for reconsideration and resolved to deny the [8] appeal with finality. Petitioner then elevated the matter via a petition for certiorari before the CA contending that the public prosecutors gravely abused their discretion in finding a prima facie case of libel against her and exceeded their jurisdiction when her appeal from the resolution of the City Prosecutor's Office of Makati City was not given due course. Ruling of the Court of Appeals On July 27, 2001, the CA issued its herein assailed Decision denying the petition. It found that the petitioner failed to clearly show exceptional circumstances to justify her resort to the extraordinary remedy of the writ of certiorari. The appellate court likewise found petitioner's assertions that the memorandum is a privileged communication which was issued without malice are matters of defense which should be properly discussed during trial. The CA disposed the matter in this wise: WHEREFORE, finding no grave abuse of discretion, amounting to lack or excess of jurisdiction on the part of public respondents, the Petition is DENIED. SO ORDERED.
[10] [9]

The unsuccessful quest by petitioner to reverse the resolutions of the City Prosecutor's Office of Makati City, the Chief State Prosecutor, the DOJ Secretary and the CA did not hamper her struggle. Petitioner is now before us via the instant recourse ascribing to the CA the following assignment of errors: 1. (In) concluding that the findings of the Makati City Prosecutor in the preliminary investigation are essentially factual in nature, and that in assailing such findings petitioner is raising questions of fact; 2. (In) holding that petitioner's arguments that subject memorandum is a privileged communication and that there is absence of malice in the issuance thereof being matters of defense should be resolved by the trial court, and 3. (In) ruling that the extraordinary writ of certiorari is not available since other remedies are obtainable [11] with the trial court. Per directive of the Court, respondent filed his Comment to the Petition on December 12, 2001. On [14 ] January 30, 2002, the Court required petitioner to file her reply, which she complied with on April 30, [15] [16] 2002. Pursuant to our Resolution dated June 3, 2002 the parties submitted their respective memoranda.
[12] [13]

Significantly, in her Reply, petitioner made an absolute turnaround and manifested that she is not assailing in the instant petition the following findings of the Prosecutor: First, that malice is presumed from the defamatory imputation. Second, that the subject memorandum was addressed not only to the Solicitor General but also to all the Assistant Solicitors General who received and read them. Third, that the words "there is no such thing as 'palabra de honor' as far as ASG del Rosario is concerned" imputes a kind of defect on respondent tending to discredit his integrity as an Assistant Solicitor General and the other functions he holds. Petitioner expressly concedes that the main issue in the present petition is whether the CA correctly ruled that no grave abuse of discretion was committed by the Assistant City Prosecutor in concluding that her findings have prima facie established the elements of libel despite their not being in accordance with law and jurisprudence on the matter. Petitioner avers that there are no findings of facts to support the conclusion that the elements of libel exist. She also points out that the findings of the prosecutor are not sufficient to constitute probable cause. Our Ruling The contentions of petitioner are devoid of merit. We have examined the records of the case and have found no such error much less abuse of discretion committed by the prosecutor and the C A justifying a reversal of their resolutions since their unanimous findings of probable cause for libel against petitioner are based on law, jurisprudence and evidence on records. "Probable cause, for purposes of filing a criminal information, has been defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondent is [18] 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 was committed by the suspect. It "need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt [19] and definitely, not on evidence establishing absolute certainty of guilt." A prosecutor alone determines the sufficiency of evidence that will establish probable cause justifying the filing of criminal information against the respondent since the determination of existence of a probable cause is the function of the prosecutor. Judicial review is allowed only where respondent has clearly established that the prosecutor [20] committed grave abuse of discretion. "Grave abuse of discretion exists when there is an arbitrary or despotic exercise of power due to passion, prejudice or personal hostility; or a whimsical, arbitrary or capricious exercise of power that amounts to an evasion or refusal to perform a positive duty enjoined by law or to act at all in contemplation of law." Petitioner miserably failed to establish the existence of any of these exceptional circumstances to warrant further calibration of the parties' evidence presented during the preliminary investigation. Contrary to petitioner's contention, we find that in arriving at their unanimous conclusion that probable cause for libel exists, the prosecutor and the Secretary of Justice had clearly determined and carefully deliberated on the factual and legal antecedents of the case. The resolution of the prosecutor as sustained by the Secretary of Justice and the CA shows that it squarely addressed and took into consideration all the arguments and evidence submitted. The evidence before the prosecutor served as basis in arriving at her findings of fact. As defined in Article 353 of the Revised Penal Code, the crime of libel has the following elements:

[17]

1. imputation of a crime, vice or defect, real or imaginary or any act, omission, condition, status or circumstance; 2. the imputation must be malicious; 3. it must be given publicity; and 4. the victim must be identifiable. As extant from the resolution of the prosecutor, the presence of these elements was duly established during the preliminary investigation stage clearly showing prima facie a well-founded belief that a crime of libel has been committed and that petitioner probably committed it. It must be stressed that an accusation is not synonymous with guilt. That is why a trial has to follow, precisely to determine the guilt or innocence of the accused. Petitioner further contends that the memorandum is covered by the protective mantle of privileged communication under the first exception enumerated under Article 354, viz: 1. A private communication made by any person to another in the performance of any legal, moral or social duty. Petitioner's argument is essentially evidentiary in nature and a matter of defense that must be presented and heard during the trial of the criminal case. Whether the subject memorandum is a privileged communication is a question which requires an examination of the parties' evidence. Being a matter of defense, the tenability of her challenge needs to be tested in the crucible of a full-blown trial where she can prove her Innocence if her defense be indeed true than at the preliminary investigation level. It must be stressed that this Court cannot assess the merit of the said claim as it is not a trier of facts. All told, the undisputed facts of the case negate any showing of grave abuse of discretion or manifest error on the part of the public officers concerned considering their finding of probable cause to indict petitioner is supported by the evidence on record. "[C]ourts should give credence, in the absence of a clear showing of arbitrariness, to the findings and determination of probable cause by prosecutors in a [22] preliminary investigation." WHEREFORE, the instant petition is hereby DENIED. The Decision dated July 27, 2001 of the Court of Appeals in CA-G.R. SP No. 56434 is AFFIRMED. SO ORDERED.