G.R. No. 118075 September 5, 1997 PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. EMILIANO CATANTAN y TAYONG, accusedappellant.

guilty of the crime charged and sentenced them to reclusion perpetua. 2 Of the duo only Emiliano Catantan appealed. In his appeal, accused Catantan contends that the trial court erred in convicting him of piracy as the facts proved only constitute grave coercion defined in Art. 286 of the Revised Penal Code and not piracy under PD No. 532. The evidence for the prosecution is that at 3:00 o'clock in the morning of 27 June 1993, the Pilapil brothers Eugene, 21, and Juan Jr., 18, were fishing in the sea some 3 kilometers away from the shores of Tabogon, Cebu. Suddenly, another boat caught up with them. One of them, later identified as the accused Emiliano Catantan, bearded the pump boat of the Pilapils and leveled his gun at Eugene. With his gun, Catantan struck Eugene on the left cheekbone and ordered him and Juan Jr. to "dapa." 3 Then Catantan told Ursal to follow him to the pumpboat of the Pilapils. There they hogtied Eugene, forced him to lie down at the bottom of the boat, covered him with a tarpaulin up to his neck, stepped on him and ordered Juan Jr. to ferry them to Daan Tabogon. They left behind the other

BELLOSILLO, J.: EMILIANO CATANTAN and JOSE MACVEN URSAL alias "Bimbo" were charged with violation of PD No. 532 otherwise known as the Anti-Piracy and Highway Robbery Law of 1974 for having on 27 June 1993, while armed with a firearm and a bladed weapon, acting in conspiracy with one another, by means of violence and intimidation, wilfully and feloniously attacked, assaulted and inflicted physical injuries on Eugene Pilapil and Juan Pilapil Jr. who were then fishing in the seawaters of Tabogon, Cebu, and seized their fishing boat, to their damage and prejudice. 1 The Regional Trial Court of Cebu, after trial, found both accused Emiliano Catantan y Tayong and Jose Macven Ursal alias "Bimbo"

pumpboat which the accused had earlier used together with its passengers one of whom was visibly tied. Noting that they were already far out into the sea, Eugene reminded Catantan that they were now off-course but Catantan told Eugene to keep quiet or he would be killed. Later, the engine conked out and Juan Jr. was directed to row the boat. Eugene asked to be set free so he could help but was not allowed; he was threatened with bodily harm instead. Meanwhile Juan Jr. managed to fix the engine, but as they went farther out into the open sea the engine stalled again. This time Eugene was allowed to assist his brother. Eugene's hands were set free but his legs were tied to the outrigger. At the point of a tres cantos 4 held by Ursal, Eugene helped row the boat. As they passed the shoreline of Nipa, they saw another boat. Catantan asked whose boat that was and the Pilapils told him that it was operated by a certain Juanito and that its engine was new. Upon learning this, Catantan ordered the Pilapil brothers to approach the

boat cautioning them however not to move or say anything. On the pretext that they were buying fish Catantan boarded the "new" pumpboat. Once aboard he ordered the operator Juanito to take them to Mungaz, another town of Cebu. When Juanito tried to beg-off by saying that he would still pull up his net and harvest his catch, Catantan drew his revolver and said, "You choose between the two, or I will kill you." 5 Juanito, obviously terrified, immediately obeyed and Ursal hopped in from the other pumpboat and joined Catantan. But, as Ursal was transferring to the "new" pumpboat, its outrigger caught the front part of the pumpboat of the Pilapils so he kicked hard its prow; it broke. The jolt threw Eugene into the sea and he landed on the water headlong. Juan Jr. then untied his brother's legs and the two swam together clinging to their boat. Fortunately another pumpboat passed by and towed them safely ashore. Section 2, par. (d), of PD No. 532, defines piracy as "any attack upon or seizure of any vessel, or the taking away of the whole or

part thereof or its cargo, equipment, or the personal belongings of the complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided." And a vessel is construed in Sec. 2, par. (b), of the same decree as "any vessel or watercraft used for transport of passengers and cargo from one place to another through Philippine waters. It shall include all kinds and types of vessels or boats used in fishing (emphasis supplied). On the other hand, grave coercion as defined in Art. 286 of the Revised Penal Code is committed by "any person who, without authority of law, shall, by means of violence, prevent another from doing something not prohibited by law, or compel him to do something against his will, whether it be right or wrong." Accused-appellant argues that in order that piracy may be committed it is essential that

there be an attack on or seizure of a vessel. He claims that he and his companion did not attack or seize the fishing boat of the Pilapil brothers by using force or intimidation but merely boarded the boat, and it was only when they were already on board that they used force to compel the Pilapils to take them to some other place. Appellant also insists that he and Ursal had no intention of permanently taking possession or depriving complainants of their boat. As a matter of fact, when they saw another pumpboat they ordered the brothers right away to approach that boat so they could leave the Pilapils behind in their boat. Accordingly, appellant claims, he simply committed grave coercion and not piracy. We do not agree. Under the definition of piracy in PD No. 532 as well as grave coercion as penalized in Art. 286 of the Revised Penal Code, this case falls squarely within the purview of piracy. While it may be true that Eugene and Juan Jr. were compelled to go elsewhere other than their place of destination, such compulsion was obviously part of the act of seizing their boat. The testimony of Eugene, one of the victims, shows that the appellant actually seized the

vessel through force and intimidation. The direct testimony of Eugene is significant and enlightening Q: Now, while you and your younger brother were fishing at the seawaters of Tabogon at that time, was there anything unusual that happened? A: Yes. Q: Will you please tell the Court what that was? A: While we were fishing at Tabogon another pumpboat arrived and the passengers of that pumpboat boarded our pumpboat. Q: Now, that pumpboat which you said approached you, how

many were riding in that pumpboat? A: Four. Q: When you said the passengers of that pumpboat boarded your pumpboat, how did they do that? A: They approached somewhat suddenly and came aboard the pumpboat(emphasis supplied). Q: How many suddenly came aboard your pumpboat? A: Only one. Q: What did that person do when he came aboard your pumpboat? A: When he boarded our pumpboat he aimed

his revolver at us (emphasis supplied). Q: By the way, when he aimed his revolver to you, did he say anything to you? xxx xxx xxx A: He said, "dapa," which means lie down (emphasis supplied). COURT: Q: To whom did he aim that revolver? A: He aimed the revolver on me. TRIAL PROS. ECHAVEZ: Q: What else did he do?

A: Then he ordered his companion to come aboard the pumpboat. Q: What did he do with his revolver? A: He struck my face with the revolver, hitting the lower portion of my left eye. Q: Now, after you were struck with the revolver, what did these persons do? A: We were ordered to take them to a certain place. Q: To what place did he order you to go?
A: To Daan Tabogon. 6

To sustain the defense and convert this case of piracy into one of grave coercion would be to ignore the fact that a fishing vessel cruising in Philippine waters was seized by

the accused by means of violence against or intimidation of persons. As Eugene Pilapil testified, the accused suddenly approached them and boarded their pumpboat and Catantan aimed his revolver at them as he ordered complaining witness Eugene Pilapil to "dapa" or lie down with face downwards, and then struck his face with a revolver, hitting the lower portion of his left eye, after which, Catantan told his victims at gun point to take them to Daan Tabogon. The incident happened at 3:00 o'clock in the morning. The sudden appearance of another pumpboat with four passengers, all strangers to them, easily intimidated the Pilapil brothers that they were impelled to submit in complete surrender to the marauders. The moment Catantan jumped into the other pumpboat he had full control of his victims. The sight of a drawn revolver in his hand drove them to submission. Hence the issuance of PD No. 532 designed to avert situations like the case at bar and discourage and prevent piracy in Philippine waters. Thus we cite the succeeding "whereas" clauses of the decree

Whereas, reports from lawenforcement agencies reveal that lawless elements are still committing acts of depredations upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another, thereby disturbing the peace, order and tranquility of the nation and stunting the economic and social progress of the people; Whereas, such acts of depredations constitute either piracy or highway robbery/brigandage which are among the highest forms of lawlessness condemned by the penal statutes of all countries; and, Whereas, it is imperative that said lawless elements be discouraged from perpetrating such acts of depredations by imposing heavy penalty on the offenders, with the end in view of eliminating all obstacle to the

economic, social, educational and community progress of the people. The Pilapil brothers are mere fisherfolk whose only means of livelihood is fishing in sea waters. They brave the natural elements and contend with the unknown forces of the sea to bring home a bountiful harvest. It is on these small fishermen that the townspeople depend for the daily bread. To impede their livelihood would be to deprive them of their very subsistence, and the likes of the accused within the purview of PD No. 532 are the obstacle to the "economic, social, educational and community progress of the people." Had it not been for the chance passing of another pumpboat, the fate of the Pilapil brothers, left alone helpless in a floundering, meandering outrigger with a broken prow and a conked-out engine in open sea, could not be ascertained. While appellant insists that he and Ursal had no intention of depriving the Pilapils permanently of their boat, proof of which they left behind the brothers with their boat, the truth is, Catantan and Ursal abandoned the Pilapils only because their pumpboat broke down and it was necessary to transfer to

another pumpboat that would take them back to their lair. Unfortunately for the pirates their "new" pumpboat ran out of gas so they were apprehended by the police soon after the Pilapils reported the matter to the local authorities. The fact that the revolver used by the appellant to seize the boat was not produced in evidence cannot exculpate him from the crime. The fact remains, and we state it again, that Catantan and his co-accused Ursal seized through force and intimidation the pumpboat of the Pilapils while the latter were fishing in Philippine waters. WHEREFORE, finding no reversible error in the decision appealed from, the conviction of accused-appellant EMILIANO CATANTAN y TAYONG for the crime of piracy penalized under PD No. 532 and sentencing him accordingly to reclusion perpetua, is AFFIRMED. Costs against accused-appellant. SO ORDERED. G.R. No. L-37007 July 20, 1987

RAMON S. MILO, in his capacity as Assistant Provincial Fiscal of Pangasinan, and ARMANDO VALDEZ,petitioners, vs. ANGELITO C. SALANGA, in his capacity as Judge of the Court of First Instance of Pangasinan (Branch IV), and JUAN TUVERA, SR., respondents. GANCAYCO, J.: This is a petition for review on certiorari of an order of the Court of First Instance of Pangasinan, Third Judicial District, in Criminal Case No. D-529 entitled "The People of the Philippines versus Juan Tuvera, Sr., et al.," granting the motion to quash the information filed by accused Juan Tuvera, Sr., herein respondent. The issue is whether a barrio captain can be charged of arbitrary detention. The facts are as follows: On October 12, 1972, an information for Arbitrary Detention was filed against Juan Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat, in the Court of First Instance of Pangasinan, which reads as follows:

The undersigned Assistant Provincial Fiscal accuses Juan Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat alias Rudy, all of Manaoag, Pangasinan, of the crime of ARBITRARY DETENTION, committed as follows: That on or about the 21st day of April 1973, at around 10:00 o'clock in the evening, in barrio Baguinay, Manaoag, Pangasinan, Philippines and within the jurisdiction of this Honorable Court, accused Juan Tuvera, Sr., a barrio captain, with the aid of some other private persons, namely Juan Tuvera, Jr., Bertillo Bataoil and one Dianong, maltreated one Armando Valdez by hitting with butts of their guns and fists blows and immediately thereafter, without legal grounds, with deliberate intent to deprive said Armando Valdez of his constitutional liberty, accused Barrio captain Juan Tuvera, Sr., Cpl. Tomas Mendoza and Pat. Rodolfo Mangsat, members of the police force of Mangsat, Pangasinan conspiring, confederating and helping one another, did, then and there, willfully, unlawfully and feloniously, lodge and lock said Armando Valdez inside the municipal jail of

Manaoag, Pangasinan for about eleven (11) hours. (Emphasis supplied.) CONTRARY TO ARTICLE 124 of the R.P.C. Dagupan City, October 12, 1972. (SGD.) VICENTE C. CALDONA Assistant Provincial Fiscal All the accused, including respondent Juan Tuvera, Sr., were arraigned and pleaded not guilty. On April 4, 1973, Tuvera filed a motion to quash the information on the ground that the facts charged do not constitute an offense and that the proofs adduced at the investigation are not sufficient to support the filing of the information. Petitioner Assistant Provincial Fiscal Ramon S. Milo filed an opposition thereto. Finding that respondent Juan Tuvera, Sr. was not a public officer who can be charged with Arbitrary Detention, respondent Judge Angelito C. Salanga granted the motion to quash in an order dated April 25, 1973.

Hence, this petition. Arbitrary Detention is committed by a public officer who, without legal grounds, detains a person.1 The elements of this crime are the following: 1. That the offender is a public officer or employee. 2. That he detains a person. 3. That the detention is without legal grounds.2 The ground relied upon by private respondent Tuvera for his motion to quash the information which was sustained by respondent Judge, is that the facts charged do not constitute an offense,3 that is, that the facts alleged in the information do not constitute the elements of Arbitrary Detention. The Information charges Tuvera, a barrio captain, to have conspired with Cpl. Mendoza and Pat. Mangsat, who are members of the police force of Manaoag, Pangasinan in detaining petitioner Valdez for about eleven (11) hours in the municipal jail without legal ground.

No doubt the last two elements of the crime are present. The only question is whether or not Tuvera, Sr., a barrio captain is a public officer who can be liable for the crime of Arbitrary Detention. The public officers liable for Arbitrary Detention must be vested with authority to detain or order the detention of persons accused of a crime. Such public officers are the policemen and other agents of the law, the judges or mayors.4 Respondent Judge Salanga did not consider private respondent Tuvera as such public officer when the former made this finding in the questioned order: Apparently, if Armando Valdez was ever jailed and detained more than six (6) hours, Juan Tuvera, Sr., has nothing to do with the same because he is not in any way connected with the Police Force of Manaoag, Pangasinan. Granting that it was Tuvera, Sr., who ordered Valdez arrested, it was not he who detained and jailed him because he has no such authority vested in him as a mere Barrio Captain of Barrio Baguinay, Manaoag, Pangasinan. 5

In line with the above finding of respondent Judge Salanga, private respondent Tuvera asserts that the motion to quash was properly sustained for the following reasons: (1) That he did not have the authority to make arrest, nor jail and detain petitioner Valdez as a mere barrio captain;6 (2) That he is neither a peace officer nor a policeman,7(3) That he was not a public official;8 (4) That he had nothing to do with the detention of petitioner Valdez;9 (5) That he is not connected directly or indirectly in the administration of the Manaoag Police Force; 10 (6) That barrio captains on April 21, 1972 were not yet considered as persons in authority and that it was only upon the promulgation of Presidential Decree No. 299 that Barrio Captain and Heads of Barangays were decreed among those who are persons in authority;11 and that the proper charge was Illegal Detention and Not Arbitrary Detention.12 We disagree. Long before Presidential Decree 299 was signed into law, barrio lieutenants (who were later named barrio captains and now barangay captains) were recognized as persons in authority. In various cases, this Court deemed

them as persons in authority, and convicted them of Arbitrary Detention. In U.S. vs. Braganza,13 Martin Salibio, a barrio lieutenant, and Hilario Braganza, a municipal councilor, arrested Father Feliciano Gomez while he was in his church. They made him pass through the door of the vestry and afterwards took him to the municipal building. There, they told him that he was under arrest. The priest had not committed any crime. The two public officials were convicted of Arbitrary Detention.14 In U.S. vs. Gellada,15 Geronimo Gellada, a barrio lieutenant, with the help of Filoteo Soliman, bound and tied his houseboy Sixto Gentugas with a rope at around 6:00 p.m. and delivered him to the justice of the peace. Sixto was detained during the whole night and until 9:00 a.m. of the next day when he was ordered released by the justice of the peace because he had not committed any crime, Gellada was convicted of Arbitrary Detention.16 Under Republic Act No. 3590, otherwise known as The Revised Barrio Charter, the powers and duties of a barrio captain include the following: to look after the maintenance of public order in the barrio and to assist the municipal mayor and the

municipal councilor in charge of the district in the performance of their duties in such barrio;17 to look after the general welfare of the barrio; 18 to enforce all laws and ordinances which are operative within the barrio;19 and to organize and lead an emergency group whenever the same may be necessary for the maintenance of peace and order within the barrio.20 In his treatise on Barrio Government Law and Administration, Professor Jose M. Aruego has this to say about the above-mentioned powers and duties of a Barrio Captain, to wit: "Upon the barrio captain depends in the main the maintenance of public order in the barrio. For public disorder therein, inevitably people blame him. "In the event that there be a disturbing act to said public order or a threat to disturb public order, what can the barrio captain do? Understandably, he first resorts to peaceful measures. He may take preventive measures like placing the offenders under surveillance and persuading them, where possible, to behave well, but when necessary, he may subject them to the full force of law.

"He is a peace officer in the barrio considered under the law as a person in authority. As such, he may make arrest and detain persons within legal limits.21 (Emphasis supplied.) One need not be a police officer to be chargeable with Arbitrary Detention. It is accepted that other public officers like judges and mayors, who act with abuse of their functions, may be guilty of this crime.22 A perusal of the powers and function vested in mayors would show that they are similar to those of a barrio captain23 except that in the case of the latter, his territorial jurisdiction is smaller. Having the same duty of maintaining peace and order, both must be and are given the authority to detain or order detention. Noteworthy is the fact that even private respondent Tuvera himself admitted that with the aid of his rural police, he as a barrio captain, could have led the arrest of petitioner Valdez.24 From the foregoing, there is no doubt that a barrio captain, like private respondent Tuvera, Sr., can be held liable for Arbitrary Detention. Next, private respondent Tuvera, Sr. contends that the motion to quash was validly granted as the facts and evidence on record show that there

was no crime of Arbitrary Detention;25 that he only sought the aid and assistance of the Manaoag Police Force;26 and that he only accompanied petitioner Valdez to town for the latter's personal safety.27 Suffice it to say that the above allegations can only be raised as a defense at the trial as they traverse what is alleged in the Information. We have repeatedly held that Courts, in resolving a motion to quash, cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information. This is because a motion to quash is a hypothetical admission of the facts alleged in the information.28 Matters of defense cannot be proved during the hearing of such a motion, except where the Rules expressly permit, such as extinction of criminal liability, prescription, and former jeopardy.29 In the case of U.S. vs. Perez,30 this Court held that a motion to quash on the ground that the facts charged do not constitute an offense cannot allege new facts not only different but diametrically opposed to those alleged in the complaint. This rule admits of only one exception and that is when such facts are admitted by the prosecution.31
lawphi1

Lastly, private respondent claims that by the lower court's granting of the motion to quash jeopardy has already attached in his favor 32 on the ground that here, the case was dismissed or otherwise terminated without his express consent. Respondent's contention holds no water. An order granting a motion to quash, unlike one of denial, is a final order. It is not merely interlocutory and is therefore immediately appealable. The accused cannot claim double jeopardy as the dismissal was secured not only with his consent but at his instance.33 WHEREFORE, in view of the foregoing, the Petition for certiorari is GRANTED. The questioned Order of April 25, 1973 in Criminal Case No. D-529 is hereby set aside. Let this case be remanded to the appropriate trial court for further proceedings. No pronouncement as to costs. A.M. No. 03-1462-MTJ April 19, 2007

JUDGE LORINDA B. TOLEDO-MUPAS, Municipal Trial Court, Dasmarias, Cavite, Respondent. DECISION PER CURIAM: Bizarre. The word would aptly describe this tale of the accuser turning out to be the culprit. This case started with Judge Lorinda B. ToledoMupas (Judge Mupas) of the Municipal Trial Court (MTC) of Dasmarias, Cavite, filing an administrative complaint (Administrative Matter No. OCA IPI No. 02-1515-RTJ) against Judge Dolores L. Espaol (Judge Espaol) of the Regional Trial Court (RTC), Branch 90, Dasmarias, Cavite, for Gross Ignorance of the Law, Grave Abuse of Authority, Misconduct, and Conduct Prejudicial to the Best Interest of the Service. She imputed these offenses against Judge Espaol for allegedly illegally usurping the functions of the Executive Judge of Dasmarias, Cavite, and for ordering her (Mupas) on April 18, 2002, in connection with Criminal Case No. 9292-01 (People v. Belinda Ventura Singello), "to desist from accepting, for preliminary investigation,' criminal cases falling within the

JUDGE DOLORES L. ESPAOL, Regional Trial Court, Branch 90, Dasmarias, Cavite, Complainant, vs.

exclusive jurisdiction of the Regional Trial Court, where suspects are apprehended pursuant to Sec. 7, Rule 112 of the Revised Rules of Criminal Procedure." Judge Espaol filed her Comment dated September 16, 20021 stating that since she was appointed to the single sala RTC of Dasmarias, Cavite, under Supreme Court Administrative Order No. 6 of 1975, she ipso facto became the Executive Judge exercising supervision over the MTC of Dasmarias, Cavite. She further stated that her Order dated April 18, 2002, directing the respondent to desist from conducting preliminary investigation, did not deprive the latter of the authority to conduct preliminary investigation but merely stopped her from conducting the same for being violative of the Revised Rules of Criminal Procedure, Article 125 of the Revised Penal Code and Republic Act No. 7438. In the same Comment, Judge Espaol said that Judge Mupas operated the MTC of Dasmarias, Cavite as a "One-Stop Shop" where criminal suspects apprehended without a warrant are ordered detained in the municipal jail by virtue of an unsigned "Detention Pending Investigation of

the Case," in lieu of a waiver of the provisions of Article 125 of the Revised Penal Code, as prescribed by R.A. No. 7438 and by Section 7, Rule 112 of the Revised Rules of Criminal Procedure. Thus, according to Judge Espaol, the apprehended persons were detained for a long time until Judge Mupas set the case for preliminary investigation. If the detainee can post bail, Judge Mupas would fix the amount of bail and require that the premium, usually equivalent to 20% or 30% thereof, be paid in cash. If the surety bond was secured outside of the MTC, the bond would be rejected. Hence, the applicants for bail bonds would go to the RTC of Dasmarias, Cavite to complain and apply for the release of the detention prisoners. This Court, acting on the Report dated July 4, 2003 of the Office of the Court Administrator (OCA), issued on August 6, 2003 a Resolution,2 the dispositive portion of which reads: "(T)he Court Resolved to ADOPT the following recommendations: (a) to DISMISS the charges against Judge Dolores L. Espaol for lack of merit;

(b) to TREAT the comment dated September 16, 2002 of Judge Espaol as a SEPARATE ADMINISTRATIVE COMPLAINT against Judge Lorinda Mupas of MTC, Dasmarias, Cavite; and (c) to REQUIRE Judge Toledo-Mupas to COMMENT on the allegations against her, contained in Judge Espaols comment." Thus, a complaint against the respondent Judge Mupas was deemed filed, and docketed as OCA IPI No. 03-1462-MTJ. On September 8, 2003, Judge Mupas filed a motion seeking reconsideration of this Courts Resolution. On October 1, 2003, this Court required the OCA to file its comment thereon within 15 days from notice. The OCA wrote a Memorandum dated April 15, 20043 to then Chief Justice Hilario G. Davide, Jr. recommending the denial of the respondents motion being a mere reiteration of her arguments already passed upon by the Court. This Court adopted the said recommendation of the OCA in its Resolution dated May 31, 2004.4 Accordingly, Judge Mupas faced the following charges: (1) violation of Rule 112, Section 7 of

the Revised Rules of Criminal Procedure, Article 125 of the Revised Penal Code, and Republic Act No. 7438; and (2) violation of the rules on preliminary investigation (a) for the delay in the resolution of preliminary investigation cases pending in [Judge Mupas] court; (b) for failure to perform her ministerial duty of transmitting the records of the case, including the resolution on the preliminary investigation, within 10 days from the issuance of the said resolution to the provincial prosecutor of Cavite; and (c) for conducting preliminary investigation despite the fact that there were many prosecutors in Cavite not indisposed to do the job. On September 19, 2005, Judge Mupas filed her Reply5 (should be Comment) to Judge Espaols Comment which was treated as a separate administrative complaint. She claimed that the August 6, 2003 Resolution of this Court failed to consider relevant laws, rules, and pronouncements of the Court itself. She further said that under Rule 112, Section 2 of the Revised Rules of Criminal Procedure, she is expressly authorized to conduct preliminary investigation. She questioned the authority of Judge Espaol in ordering her to desist from conducting preliminary investigations in the guise of "supervising" or "reviewing" her actions, as the

said authority was lodged in the provincial prosecutors. She pointed out that, in the case of "People vs. Belinda Ventura Singello" (Criminal Case No. 9292-01), subject of Judge Espaols Order dated April 18, 2002, the provincial prosecutor affirmed her (Mupas) finding of probable cause against the accused without any question on the manner in which the preliminary investigation was conducted. She likewise claimed that, pursuant to Administrative Order No. 59-99 dated 1 June 1999, while in single-sala stations the presiding judges are ex officio executive judges, for purposes of supervision in the interest of the service, their salas may be merged with multisala stations. Therefore, the RTC of Dasmarias, Cavite had long been merged with the multi-sala station of the RTC of Imus, Cavite. In support of this claim, Judge Mupas noted that then Executive Judge Lucenito N. Tagle of the RTC of Imus, Cavite issued a Memorandum to all judges within his supervision, including both Judge Espaol and Judge Mupas, to submit periodic reports on detention prisoners. She further argued that none of the detention prisoners had filed an administrative complaint against her. She said that it was her duty to

conduct preliminary investigation of complaints filed with her sala. In addition, Judge Mupas posited that Judge Espaol could not entertain applications for bail in the RTC because the cases were pending before the MTC. On January 30, 2006, the Court noted this Reply (should be Comment), and referred the same to the OCA for evaluation, report, and recommendation. In the Memorandum dated July 26, 20066 addressed to then Chief Justice Artemio V. Panganiban, the OCA found that the Reply of Judge Mupas was merely a rehash of the arguments she raised in her Motion for Reconsideration; it did not refute the specific allegations of Judge Espaol. The OCA said that the explanation given by the respondent was unsatisfactory and insufficient to absolve her from administrative liability. However, the OCA recommended that this case be referred to an Associate Justice of the Court of Appeals for investigation, report, and recommendation. Eventually, this case was referred to Court of Appeals Associate Justice Myrna DimarananVidal.

During the proceedings before Justice Vidal, Judge Espaol filed her Rejoinder [Re: Reply dated September 19, 2005] dated December 8, 20067 reiterating that: (1) her Order dated April 18, 2002 was lawful and within her authority to issue as the OCA declared that she was merely performing her function as Executive Judge of Dasmarias, Cavite; (2) Judge Mupas violated the rights of the accused whose preliminary investigation is pending in her court, they being detained by virtue only of a "Detention Pending Investigation of the Case" in place of a valid waiver signed in the presence of counsel for considerable lengths of time; (3) there was no basis for Judge Mupas counter-charge that she could not grant bail while preliminary investigation was pending before the Mupas court, considering the latter's absence upon the prisoners' applications for bail; and (4) Judge Mupas failed to adequately explain her failure to forward the records and the resolution of the preliminary investigation of accused Belinda Singello in Criminal Case No. 9292-01. Judge Mupas filed her Comment (Re: Rejoinder Dated December 8, 2006) dated December 21, 20068 and averred that: (1) acts made in her judicial capacity and in good faith could not be subject to disciplinary action; (2) as judge, she

enjoys the presumption of regularity in the performance of her duties; (3) the preliminary investigation she conducted was within the scope of her authority; and (4) the reason behind the seeming delay in the conduct of preliminary investigation was the heavy congestion of the dockets of the MTC of Dasmarias, Cavite. Preliminary conferences were conducted by Justice Vidal on January 2, 2007 and January 9, 2007.9 However, both parties opted not to present any testimonial evidence. In fact, Judge Espaol filed on January 5, 2007 an Urgent Manifestation and Motion to Resolve,10 praying that, inasmuch as the proceedings were summary in nature, the case be decided based on the available records and pleadings submitted. On the same day, Judge Espaol filed her Reply [Re: Comment dated December 21, 2006],11 arguing that: (1) Judge Mupas is guilty of gross ignorance of the law even if she acted in good faith; and (2) the presumption of regularity in the performance of her judicial function could not cure the incompetence of the respondent. Both the complainant12 and the respondent13 filed their respective memoranda encompassing all

the arguments they raised in their respective pleadings. Judge Espaol also filed a Counter Memorandum (Re: Memorandum of the Respondent dated January 18, 2007) dated January 29, 2007.14 In an undated Resolution filed with the OCA on February 9, 2007, Justice Myrna DimarananVidal found, contrary to Judge Mupas claim, that the document entitled "Detention Pending Investigation of Cases" cannot validly be deemed to be an implied waiver of the rights of the accused under Article 125 of the Revised Penal Code. Justice Vidal submits the following findings: "Extant from the records, is Respondents admission of her practice in the issuance of the document entitled Detention Pending Investigation of Cases claiming, however, that such document served as an implied waiver of the rights of the accused under Article 125 of the Revised Penal Code. "The undersigned disagrees. "Sec. 2 e) of RA 7438 is in point, thus:

xxx Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect. (Underscoring supplied) "The afore cited law is clear and simple. Thus, construction is unnecessary. Clearly, what the said provision requires to protect the rights of the accused is a written waiver signed by the accused with the assistance of a counsel. However, the procedure adopted by the Respondent runs counter thereto. She resorted to the issuance of a commitment order dubbed as Detention Pending Investigation of the Case to legally prolong the detention of the accused pending the resolution of the preliminary investigation. Obviously, this is not within the contemplation of the law. Thus, the practice is highly erroneous a blatant manifestation of ignorance in the legal procedure. "The New Code of Judicial Conduct for the Philippine Judiciary15 provides: Canon 6 Competence and Diligence

xxx Sec. 3. Judges shall take reasonable steps to maintain and enhance their knowledge, skills and personal qualities necessary for the proper performance of judicial duties, taking advantage for this purpose of the training and other facilities which should be made available, under judicial control, to judges. xxx "Otherwise put, Respondent is presumed to know the basic measures to protect the rights of the accused during preliminary investigation. Sadly, Respondent failed in this regard. Instead, she maintained the practice of issuing this highly improper order, i.e., Detention Pending Investigation of the Case, just to put a semblance of legality in the detention of the accused."16 With respect to the other charges, Justice Vidal found the evidence insufficient to support the accusations that Judge Mupas: (1) detained the accused for a long period of time while the preliminary investigation was pending in her court; (2) failed to transmit to the Provincial Prosecutor of Cavite the records of the case

within 10 days after preliminary investigation; and (3) acted without authority to conduct preliminary investigation because there were enough prosecutors in Cavite to conduct the same.
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Justice Vidal then concludes: "However, the undersigned finds that Respondent should still be held administratively liable. Respondents act of issuing orders dubbed as Detention Pending Investigation of Cases instead of requiring the accused to execute a written waiver, with the assistance of counsel, pursuant to Article 125 of the Revised Penal Code, fall [sic] short of the measure of responsibility expected from a judge. "Respondent should be reminded that the actions of everyone connected with an office charged with the dispensation of justice, from the presiding judge to the clerk of lowest rank, should be circumscribed with a high degree of responsibility. The image of a court, as a true temple of justice, is mirrored in the conduct, official or otherwise, of the men and women who work thereat. Judicial personnel are expected to be living examples of uprightness in the performance of official duties [and] preserve at all

times the good name and standing of the courts in the community."17 Thus, the dispositive portion of her Resolution reads: "WHEREFORE, premises considered, and it appearing that this is the first time the Respondent has committed the infraction, supra, the undersigned respectfully recommends that she be REPRIMANDED for her practice of issuing the "Detention Pending Investigation of the Case" orders with STERN WARNING that a repetition thereof or any similar act will be dealt with more severely". We agree with the findings of Justice Vidal, but We find the recommended penalty too light, grossly disproportionate to the offense committed, especially when viewed in the light of Judge Mupas record of incorrigible misconduct. There is no gainsaying that Judge Mupas practice of issuing "Detention Pending Investigation of the Case" orders in lieu of a written waiver signed by the accused with the assistance of counsel is, in the words of Justice Vidal, "a blatant manifestation of ignorance in the

legal procedure." It is gross ignorance of the law, pure and simple. Under Rule 140, Section 8, of the Rules of Court, as amended by A.M. No. 01-8-10 SC, gross ignorance of the law or procedure is classified as a serious charge, and Section 11 thereof provides the sanctions, as follows: SEC. 11. Sanctions. A. If the respondent is guilty of a serious charge, any of the following sanctions may be imposed: 1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations: Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; 2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or 3. A fine of more than P20,000.00 but not exceeding P40,000.00.

While Justice Vidal considered the respondent's practice of issuing "Detention Pending Investigation of the Case" orders as a first-time infraction, We note that this case is not the first time the respondent was charged and found guilty of gross ignorance of the law. In Espaol v. Mupas,18 the respondent judge was fined the amount of P21,000.00 for violation of the Code of Judicial Conduct and for gross ignorance of the law when she ordered the arrest of the accused in six criminal cases before the expiration of the 10-day period she gave them to file their counter-affidavits, and without any finding of probable cause. In Loss of Court Exhibits at MTC-Dasmarias, Cavite,19 aside from being found guilty of grave misconduct for refusing to turn over to the National Bureau of Investigation (NBI) for ballistics examination a firearm that a court employee surreptitiously took from the court's steel cabinet and used to commit suicide, Judge Mupas was held administratively liable for gross ignorance of the law for her failure to submit to the provincial prosecutor her resolution and the records of the case within 10 days after preliminary investigation. The Court imposed on the respondent the penalty of suspension for

three (3) months without pay, with a stern warning that a similar infraction will be dealt with more severely. In Bitoon, et al. v. Toledo-Mupas,20 the respondent was also found administratively liable for gross ignorance of the law for changing the designation of the crime from a non-bailable offense to a bailable one, i.e., syndicated estafa to simple estafa, and granted bail without hearing on the ground that the accused is entitled to it as a matter of right. The Court found her to have exceeded her authority in the conduct of preliminary investigation and to have failed to observe the elementary rules on bail. She was meted the penalties of a fine in the amount of P40,000.00, suspension for three (3) months without salaries and benefits, and a stern warning that a same or similar offense will be dealt with more severely. Upon motion for reconsideration, however, the penalty of fine of P40,000.00 was deleted on the ground that the acts of the respondent in the Espaol v. Mupas and the Loss of Court Exhibits cases were done after the acts complained of in Bitoon. While the Court maintained that the respondent's acts in Bitoon remain inexcusable, the respondent

was not found to be an incorrigible third-time offender deserving the penalty originally imposed. The Court also noted that the respondent was not motivated by malice, bad faith or corrupt motives and that there was an absence of any serious damage to the complainants. However, the stern warning of the Court should have been ample reminder that the penalty of dismissal would be imposed should the respondent commit the same or a similar infraction.21 In the present case, while the documents denominated "Detention Pending Investigation of the Case" were issued during the same period of time that the three (3) above-cited cases were decided, it is noteworthy that Judge Mupas continued with the practice even after her attention had been called. Worse, she remained insistent that the document was an implied waiver of the rights of the accused under Article 125 of the Revised Penal Code.22Judge Mupas must be reminded that although judges have in their favor the presumption of regularity and good faith in the performance of their official functions, a blatant disregard of the clear and unmistakable terms of the law obviates this presumption and renders them susceptible to administrative sanctions.23 Being among the judicial front-liners

who have direct contact with the litigants, a wanton display of utter lack of familiarity with the rules by the judge inevitably erodes the confidence of the public in the competence of our courts to render justice.24 It subjects the judiciary to embarrassment. Worse, it could raise the specter of corruption. When the gross inefficiency springs from a failure to consider so basic and elemental a rule, a law, or a principle in the discharge of his or her duties, a judge is either too incompetent and undeserving of the exalted position and title he or she holds, or the oversight or omission was deliberately done in bad faith and in grave abuse of judicial authority.25 All said, this Court finds the respondent, Judge Lorinda B. Toledo-Mupas, administratively liable for gross ignorance of the law. Considering that this is her fourth offense, she deserves to be meted the supreme penalty of dismissal from the service, with all the accessory penalties appurtenant thereto. WHEREFORE, Judge Lorinda B. Toledo-Mupas of the Municipal Trial Court of Dasmarias, Cavite is found guilty of gross ignorance of the law. This being her fourth offense, she is hereby

ORDERED DISMISSED FROM THE SERVICE with forfeiture of all benefits due her, excluding her accrued leave benefits, and with perpetual disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. G.R. Nos. 153524-25 January 31, 2005

Ombudsman in its finding of lack of probable cause made during preliminary investigation. And, yet again, we reaffirm the time-honored practice of non-interference in the conduct of preliminary investigations by our prosecutory bodies absent a showing of grave abuse of discretion on their part. Petitioners, thru a special civil action for certiorari,1 contend precisely that the public respondents herein officers of the Office of the Ombudsman gravely abused their discretion in dismissing the complaint for violation of Article 125 of the Revised Penal Code (Delay in the delivery of detained persons) against private respondents herein, members of the Philippine National Police stationed at the Municipality of Santa, Ilocos Sur. From the respective pleadings2 of the parties, the following facts appear to be indubitable: 1. On or about 8:30 in the evening of 13 May 2001 (a Sunday and the day before the 14 May 2001 Elections3 ), petitioners were arrested without a warrant by respondents police officers for alleged illegal possession of firearms and ammunition;

RODOLFO SORIA and EDIMAR BISTA, petitioners, vs. HON. ANIANO DESIERTO in his capacity as Head of the Office of the Ombudsman, HON. ORLANDO C. CASIMIRO in his capacity as Deputy Ombudsman for Military, P/INS. JEFFREY T. GOROSPE, SPO2 ROLANDO G. REGACHO, SPO1 ALFREDO B. ALVIAR, JR., PO3 JAIME D. LAZARO, PO2 FLORANTE B. CARDENAS, PO1 JOSEPH A. BENAZA, SPO1 FRANKLIN D. CABAYA and SPO4 PEDRO PAREL, respondents. DECISION CHICO-NAZARIO, J.: Yet again, we are tasked to substitute our judgment for that of the Office of the

2. Petitioner Soria was arrested for alleged illegal possession of .38 cal. revolver (a crime which carries with it the penalty of prision correccional in its maximum period) and for violation of Article 261 par. (f) of the Omnibus Election Code in relation to the Commission on Election Resolution No. 3328 (which carries the penalty of imprisonment of not less than one [1] year but not more than six [6] years); 3. Petitioner Bista was arrested for alleged illegal possession of sub-machine pistol UZI, cal. 9mm and a .22 cal. revolver with ammunition; 4. Immediately after their arrest, petitioners were detained at the Santa, Ilocos Sur, Police Station. It was at the Santa Police Station that petitioner Bista was identified by one of the police officers to have a standing warrant of arrest for violation of Batas Pambansa Blg. 6 issued by the Municipal Trial Court (MTC) of Vigan, Ilocos Sur, docketed as Criminal Case No. 12272; 5. The next day, at about 4:30 p.m. of 14 May 2001 (Monday and election day),

petitioners were brought to the residence of Provincial Prosecutor Jessica Viloria in San Juan, Ilocos Sur, before whom a "JointAffidavit" against them was subscribed and sworn to by the arresting officers. From there, the arresting officers brought the petitioners to the Provincial Prosecutors Office in Vigan, Ilocos Sur, and there at about 6:00 p.m. the "Joint-Affidavit" was filed and docketed; 6. At about 6:30 in the evening of the same day, 14 May 2001, petitioner Soria was released upon the order of Prosecutor Viloria to undergo the requisite preliminary investigation, while petitioner Bista was brought back and continued to be detained at the Santa Police Station. From the time of petitioner Sorias detention up to the time of his release, twenty-two (22) hours had already elapsed; 7. On 15 May 2001, at around 2:00 in the afternoon, petitioner Bista was brought before the MTC of Vigan, Ilocos Sur, where the case for violation of Batas Pambansa Blg. 6 was pending. Petitioner Bista posted bail and an Order of Temporary Release was issued thereafter;

8. At this point in time, no order of release was issued in connection with petitioner Bistas arrest for alleged illegal possession of firearms. At 4:30 in the afternoon of the same day (15 May 2001), an information for Illegal Possession of Firearms and Ammunition, docketed as Criminal Case No. 4413-S, was filed against petitioner Bista with the 4th Municipal Circuit Trial Court of Narvacan, Ilocos Sur. At 5:00 in the afternoon, informations for Illegal Possession of Firearms and Ammunition and violation of Article 261 par. (f) of the Omnibus Election Code in relation to COMELEC Resolution No. 3328, docketed as Criminal Cases No. 2269-N and No. 2268-N, respectively, were filed in the Regional Trial Court at Narvacan, Ilocos Sur; 9. On 08 June 2001, petitioner Bista was released upon filing of bail bonds in Criminal Cases No. 2268-N and No. 4413S. He was detained for 26 days. 10. On 15 August 2001, petitioners filed with the Office of the Ombudsman for Military Affairs a complaint-affidavit for

violation of Art. 125 of the Revised Penal Code against herein private respondents. 11. After considering the parties respective submissions, the Office of the Ombudsman rendered the first assailed Joint Resolution dated 31 January 2002 dismissing the complaint for violation of Art. 125 of the Revised Penal Code for lack of merit; and 12. On 04 March 2002, petitioners then filed their motion for reconsideration which was denied for lack of merit in the second assailed Resolution dated 25 March 2002. Article 125 of the Revised Penal Code states: Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of: twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent; and thirty-six (36) hours, for crimes or

offenses punishable by afflictive or capital penalties, or their equivalent. In every case, the person detained shall be informed of the cause of his detention and shall be allowed, upon his request, to communicate and confer at any time with his attorney or counsel. It is not under dispute that the alleged crimes for which petitioner Soria was arrested without warrant are punishable by correctional penalties or their equivalent, thus, criminal complaints or information should be filed with the proper judicial authorities within 18 hours of his arrest. Neither is it in dispute that the alleged crimes for which petitioner Bista was arrested are punishable by afflictive or capital penalties, or their equivalent, thus, he could only be detained for 36 hours without criminal complaints or information having been filed with the proper judicial authorities. The sole bone of contention revolves around the proper application of the 12-18-36 periods. With respect specifically to the detention of petitioner Soria which lasted for 22 hours, it is alleged that public respondents gravely erred in construing Article 1254 as excluding Sundays, holidays and

election days in the computation of the periods prescribed within which public officers should deliver arrested persons to the proper judicial authorities as the law never makes such exception. Statutory construction has it that if a statute is clear and unequivocal, it must be given its literal meaning and applied without any attempts at interpretation.5 Public respondents, on the other hand, relied on the cases of Medina v. Orozco, Jr.,6 and Sayo v. Chief of Police of Manila7 and on commentaries8 of jurists to bolster their position that Sundays, holidays and election days are excluded in the computation of the periods provided in Article 125,9 hence, the arresting officers delivered petitioners well within the allowable time. In addition to the foregoing arguments and with respect specifically to petitioner Bista, petitioners maintain that the filing of the information in court against petitioner Bista did not justify his continuous detention. The information was filed at 4:30 p.m. of 15 May 2001 but the orders for his release were issued by the Regional Trial Court and Municipal Trial Court of Narvacan, Ilocos Sur, only on 08 June 2001. They argued that based on law and jurisprudence, if no charge is filed by the prosecutor within the period fixed by law, the arresting officer must release the

detainee lest he be charged with violation of Article 125.10 Public respondents countered that the duty of the arresting officers ended upon the filing of the informations with the proper judicial authorities following the rulings in Agbay v. Deputy Ombudsman for the Military ,11 and People v. Acosta.12 From a study of the opposing views advanced by the parties, it is evident that public respondents did not abuse their discretion in dismissing for lack of probable cause the complaint against private respondents. Grave abuse of discretion is such capricious and whimsical exercise of judgment on the part of the public officer concerned which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.13
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of Article 125 of the Revised Penal Code cannot be said to have been conjured out of thin air as it was properly backed up by law and jurisprudence. Public respondents ratiocinated thus: As aptly pointed out by the respondents insofar as the complaint of Rodolfo Soria is concerned, based on applicable laws and jurisprudence, an election day or a special holiday, should not be included in the computation of the period prescribed by law for the filing of complaint/information in courts in cases of warrantless arrests, it being a "no-office day." (Medina vs. Orosco, 125 Phil. 313.) In the instant case, while it appears that the complaints against Soria for Illegal Possession of Firearm and Violation of COMELEC Resolution No. 3328 were filed with the Regional Trial Court and Municipal Trial Court of Narvacan, Ilocos Sur, only on May 15, 200[1] at 4:30 p.m., he had already been released the day before or on May 14, 2001 at about 6:30 p.m. by the respondents, as directed by Prov. Prosecutor Jessica [Viloria]. Hence, there could be no arbitrary detention or violation of Article 125 of the Revised Penal Code to speak of.14

No grave abuse of discretion, as defined, can be attributed to herein public respondents. Their disposition of petitioners complaint for violation

Indeed, we did hold in Medina v. Orozco, Jr.,15 that . . . The arresting officers duty under the law was either to deliver him to the proper judicial authorities within 18 hours, or thereafter release him. The fact however is that he was not released. From the time of petitioners arrest at 12:00 oclock p.m. on November 7 to 3:40 p.m. on November 10 when the information against him for murder actually was in court, over 75 hours have elapsed. But, stock should be taken of the fact that November 7 was a Sunday; November 8 was declared an official holiday; and November 9 (election day) was also an official holiday. In these three no-office days, it was not an easy matter for a fiscal to look for his clerk and stenographer, draft the information and search for the Judge to have him act thereon, and get the clerk of court to open the courthouse, docket the case and have the order of commitment prepared. And then, where to locate and the uncertainty of locating those officers and employees could very well compound the fiscals difficulties. These are considerations sufficient enough to deter us from declaring that Arthur Medina was arbitrarily detained. For, he was

brought to court on the very first office day following arrest. And, in Sayo v. Chief of Police of Manila16 -. . . Of course, for the purpose of determining the criminal liability of an officer detaining a person for more than six hours prescribed by the Revised Penal Code, the means of communication as well as the hour of arrest and other circumstances, such as the time of surrender and the material possibility for the fiscal to make the investigation and file in time the necessary information, must be taken into consideration. As to the issue concerning the duty of the arresting officer after the information has already been filed in Court, public respondents acted well within their discretion in ruling thus: In the same vein, the complaint of Edimar Bista against the respondents for Violation of Article 125, will not prosper because the running of the thirty-six (36)-hour period prescribed by law for the filing of the complaint against him from the time of his arrest was tolled by one day (election day). Moreover, he has a standing warrant of arrest for Violation of B.P. Blg. 6 and it was only

on May 15, 2001, at about 2:00 p.m. that he was able to post bail and secure an Order of Release. Obviously, however, he could only be released if he has no other pending criminal case requiring his continuous detention. The criminal Informations against Bista for Violations of Article 125, RPC and COMELEC Resolution No. 3328 were filed with the Regional Trial Court and Municipal Trial Court of Narvacan, Ilocos Sur, on May 15, 2001 (Annexes "G" and "I", Complaint-Affidavit of Edimar Bista) but he was released from detention only on June 8, 2001, on orders of the RTC and MTC of Narvacan, Ilocos Sur (Annexes "J" and "K", Complaint-Affidavit). Was there a delay in the delivery of detained person to the proper judicial authorities under the circumstances? The answer is in the negative. The complaints against him was (sic) seasonably filed in the court of justice within the thirty-six (36)-hour period prescribed by law as discussed above. The duty of the detaining officers is deemed complied with upon the filing of the complaints. Further action, like issuance of a Release Order, then rests upon the judicial authority (People v. Acosta [CA] 54 O.G. 4739).17

The above disposition is in keeping with Agbay v. Deputy Ombudsman for the Military,18 wherein we ordained that . . . Furthermore, upon the filing of the complaint with the Municipal Trial Court, the intent behind Art. 125 is satisfied considering that by such act, the detained person is informed of the crime imputed against him and, upon his application with the court, he may be released on bail. Petitioner himself acknowledged this power of the MCTC to order his release when he applied for and was granted his release upon posting bail. Thus, the very purpose underlying Article 125 has been duly served with the filing of the complaint with the MCTC. We agree with the position of the Ombudsman that such filing of the complaint with the MCTC interrupted the period prescribed in said Article. All things considered, there being no grave abuse of discretion, we have no choice but to defer to the Office of the Ombudsmans determination that the facts on hand do not make out a case for violation of Article 125 of the Revised Penal Code.
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As we have underscored in numerous decisions --

We have consistently refrained from interfering with the investigatory and prosecutorial powers of the Ombudsman absent any compelling reason. This policy is based on constitutional, statutory and practical considerations. We are mindful that the Constitution and RA 6770 endowed the Office of the Ombudsman with a wide latitude of investigatory and prosecutorial powers, virtually free from legislative, executive or judicial intervention, in order to insulate it from outside pressure and improper influence. Moreover, a preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound, as a matter of law, to order an acquittal. Hence, if the Ombudsman, using professional judgment, finds the case dismissible, the Court shall respect such findings, unless clothed with grave abuse of discretion. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it. In much the same way, the courts will be swamped with cases if they will have to review the exercise of discretion on the part of fiscals or prosecuting attorneys each time

the latter decide to file an information in court or dismiss a complaint by a private complainant.19 (Emphasis supplied) WHEREFORE, premises considered, the petition dated 27 May 2002 is hereby DISMISSED for lack of merit. The Joint Resolution dated 31 January 2002 and the Order dated 25 March 2002 of the Office of the Ombudsman are hereby AFFIRMED. No costs. G.R. No. L-64261 December 26, 1984 JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES, INC.,petitioners, vs. THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents. Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for petitioners.

The Solicitor General for respondents.

ESCOLIN, J.: Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books and other written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publishereditor of the "We Forum" newspaper, were seized.

Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for the return of the seized articles, and that respondents, "particularly the Chief Legal Officer, Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates, substitute or successors" be enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People v. Jose Burgos, Jr. et al. 1 In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents. At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of preliminary mandatory injunction, manifested that respondents "will not use the aforementioned articles as evidence in the aforementioned case until final resolution of the legality of the seizure of the aforementioned

articles. ..." 2 With this manifestation, the prayer for preliminary prohibitory injunction was rendered moot and academic. Respondents would have this Court dismiss the petition on the ground that petitioners had come to this Court without having previously sought the quashal of the search warrants before respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this Court, should have filed a motion to quash said warrants in the court that issued them. 3 But this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised not to mention the public interest generated by the search of the "We Forum" offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme Court] to suspend its rules or to except a particular case from its operation, whenever the purposes of justice require it...".

Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the fact that while said search warrants were issued on December 7, 1982, the instant petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of more than six [6] months. Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 5 Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition thus: Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the fact that the Petition was filed on June 16, 1983, more than half a year after the petitioners' premises had been raided.

The climate of the times has given petitioners no other choice. If they had waited this long to bring their case to court, it was because they tried at first to exhaust other remedies. The events of the past eleven fill years had taught them that everything in this country, from release of public funds to release of detained persons from custody, has become a matter of executive benevolence or largesse Hence, as soon as they could, petitioners, upon suggestion of persons close to the President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel Antonio Coronet asking the return at least of the printing equipment and vehicles. And after such a letter had been sent, through Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential Security Command, they were further encouraged to hope that the latter would yield the desired results.

After waiting in vain for five [5] months, petitioners finally decided to come to Court. [pp. 123-124, Rollo] Although the reason given by petitioners may not be flattering to our judicial system, We find no ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite evidently negate the presumption that they had abandoned their right to the possession of the seized property, thereby refuting the charge of laches against them. Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped from challenging the validity of the search warrants. We do not follow the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases with them, within legal bounds. The fact that he has used them as evidence does not and cannot in any way affect the validity or invalidity of the search warrants assailed in this petition.

Several and diverse reasons have been advanced by petitioners to nullify the search warrants in question. 1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This objection, however, may properly be considered moot and academic, as petitioners themselves conceded during the hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his witnesses. 2. Search Warrants No. 20-82[a] and No. 2082[b] were used to search two distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the latter address on the ground that the two search warrants pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This assertion is based on that

portion of Search Warrant No. 20- 82[b] which states: Which have been used, and are being used as instruments and means of committing the crime of subversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19 Road 3, Project 6, Quezon City. The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have issued two warrants intended for one and the same place. Besides, the addresses of the places sought to be searched were specifically set forth in the application, and since it was Col. Abadilla himself who headed the team which executed the search warrants, the ambiguity that might have arisen by reason of the typographical error is more apparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address appeared in the opening paragraph of the said

warrant. 7 Obviously this is the same place that respondent judge had in mind when he issued Warrant No. 20-82 [b]. In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been held "that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who issued the warrant intended the building described in the affidavit, And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the warrant as to the place to be searched." 8 3. Another ground relied upon to annul the search warrants is the fact that although the warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized. Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search warrant, to wit:

Sec. 2. Personal Property to be seized. A search warrant may be issued for the search and seizure of the following personal property: [a] Property subject of the offense; [b] Property stolen or embezzled and other proceeds or fruits of the offense; and [c] Property used or intended to be used as the means of committing an offense. The above rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. In fact, under subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen property. Necessarily, stolen property must be owned by one other than the person in whose possession it may be at the time of the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person

against whom the warrant is directed has control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to the articles and property seized under the warrants. 4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land and which tend directly to meet the needs of the said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo 9 where this legal provision was invoked, this Court ruled that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of the owner. In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the machineries were placed. This being the case, the machineries in question, while in fact

bolted to the ground remain movable property susceptible to seizure under a search warrant. 5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10 The application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a surveillance of the premises prior to the filing of the application for the search warrants on December 7, 1982. It is contended by petitioners, however, that the abovementioned documents could not have provided sufficient basis for the finding of a probable cause upon which a warrant may validly issue in accordance with Section 3, Article IV of the 1973 Constitution which provides: SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the

complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. And when the search warrant applied for is directed against a newspaper publisher or editor in connection with the publication of subversive materials, as in the case at bar, the application and/or its supporting affidavits must contain a specification, stating with particularity the alleged subversive material he has published or is intending to publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner "is in possession or has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all continuously being used as a means of committing the offense of subversion punishable under Presidential Decree 885, as

amended ..." 12 is a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for respondent judge to have done so. Equally insufficient as basis for the determination of probable cause is the statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and collated by our unit clearly shows that the premises above- mentioned and the articles and things above-described were used and are continuously being used for subversive activities in conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement, Movement for Free Philippines, and April 6 Movement." 13 In mandating that "no warrant shall issue except upon probable cause to be determined by the judge, ... after examination under oath or affirmation of the complainant and the witnesses he may produce; 14 the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified.

In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause." As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this Court in Alvarez case. Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise: 1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters, cabinets, tables, communications/recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing of the "WE FORUM" newspaper and any and all documents communication, letters

and facsimile of prints related to the "WE FORUM" newspaper. 2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the objectives and piurposes of the subversive organization known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and, 3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive materials and propaganda, more particularly, 1] Toyota-Corolla, colored yellow with Plate No. NKA 892; 2] DATSUN pick-up colored white with Plate No. NKV 969 3] A delivery truck with Plate No. NBS 524;

4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and, 5] TOYOTA Hi-Lux, pickup truck with Plate No. NGV 427 with marking "Bagong Silang." In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in question cannot be characterized differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent both Catholic and Puritan Reference herein to such historical episode would not be relevant for it is not the policy of our government to suppress any newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and imminent danger to state security. As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express themselves in

print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry. Respondents would justify the continued sealing of the printing machines on the ground that they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the property of any person, natural or artificial, engaged in subversive activities against the government and its duly constituted authorities ... in accordance with implementing rules and regulations as may be issued by the Secretary of National Defense." It is doubtful however, if sequestration could validly be effected in view of the absence of any implementing rules and regulations promulgated by the Minister of National Defense. Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than President Marcos himself denied the request of the military authorities to sequester the property seized from petitioners on December 7, 1982. Thus:

The President denied a request flied by government prosecutors for sequestration of the WE FORUM newspaper and its printing presses, according to Information Minister Gregorio S. Cendana. On the basis of court orders, government agents went to the We Forum offices in Quezon City and took a detailed inventory of the equipment and all materials in the premises.
Cendaa said that because of the denial the newspaper and its equipment remain at the disposal of the owners, subject to the discretion of the court. 19

That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated:
2. Contrary to reports, President Marcos turned down the recommendation of our authorities to close

the paper's printing facilities and confiscate the equipment and materials it uses. 21

Kinaadman and Archival for accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CONFESSION, AS A RULE, ADMISSIBLE; EXCEPTION; NOT APPLICABLE IN CASE AT BAR. The settled jurisprudence on the matter is that a confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat or promise of reward or leniency. Appellant relies on the much abused claim that his extra-judicial confession was legally defective and hence, should not have been admitted and considered by the trial judge. This accusation is whimsical and obviously a mere refuge for appellant's turnabout. In an attempt to avoid criminal liability, he now questions the integrity of the police authorities and the reputation of the lawyer who stood by him during the investigation. Indubitably established and now a matter of record is the fact that appellant was assisted by Atty. Parawan who even signed the former's sworn declarations. It is likewise a matter of record that before appellant made his extra-judicial confession, he was first asked if he was amenable to the services of Atty. Parawan to which query he answered affirmatively. Finally,

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent judge on December 7, 1982 are hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory injunction for the return of the seized articles is hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No costs. G.R. No. 100231. April 28, 1993. THE PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. RODRIGO DASIG @ KA RUBIN DAKU @ ARMAND; EDWIN NUEZ Y TABANAS @ MABI; ALVIN DOE @ AL @ KA ALVIN; ROGER DOE @ KA JAMES @ KA PEPE; TUDING ANDRINO @ KA ERMI @ KA ROEL @ KA GRINGO MONTAYRE; RUBEN DOE @ KA RUBEN @ KA JOJI @ INO ECHAVEZ; ANASTACIO BANGKAL @ KA JUNIOR; AND CARLITO MAGASIN @ BOBBY, accused, RODRIGO DASIG, accused-appellant. The Solicitor General for plaintiff-appellee.

the alleged use of force and intimidation has not been substantiated by evidence other than his self-serving testimony. as has been pointed out, such allegation is another naive effort of appellant to back track from his prior voluntary admission of guilt. Evidently, the taking of his extra-judicial confession was done with regularity and legality. 2. CRIMINAL LAW; REBELLION; ABSORBS THE CRIME OF DIRECT ASSAULT WHEN DONE IN FURTHERANCE THEREOF. The crime of rebellion consists of may acts. It is a vast movement of men and a complex net of intrigues and plots. Acts committed in furtherance of rebellion though crimes in themselves are deemed absorbed in one single crime of rebellion. The act of killing a police officer, knowing too well that the victim is a person in authority is a mere component or ingredient of rebellion or an act done in furtherance of the rebellion. It cannot be made a basis of a separate charge. 3. ID.; ID.; NOT COVERED BY INDETERMINATE SENTENCE LAW (R.A. 4203). The Indeterminate Sentence Law is not applicable to persons convicted of rebellion (Sec. 2, R.A. 4203), contrary to the insinuation of the

Solicitor General. Article 135 of the Revised Penal Code imposes the penalty of prision mayor and a fine not exceeding P20,000.00 to any person who promotes, maintains, or heads a rebellion. DECISION NOCON, J p: Appellant, Rodrigo Dasig is now before Us to plead the reversal of his conviction by the Regional Trial Court, Branch 28, Mandaue City finding him guilty of Murder with Direct Assault. He was charged together with Edwin Nuez and 6 others who are still at large, in an information which reads: "That on or about the 4th day of August, 1987, in the city of Mandaue, of this Honorable Court, the aforenamed accused, conspiring and confederating together and helping one another, with intent to kill, treachery, evident premeditation, abuse of superior strength and use of motor vehicle, all armed with unlicensed firearms, did then and there wilfully, unlawfully and feloniously attack, assault and shoot one Redempto Manatad, a police officer on traffic

duty, at his vital portion which caused his death soon thereafter, knowing beforehand that the victim was a policeman who was then in the performance of his official duties." Upon arraignment, appellant and Edwin Nues entered a plea of "not guilty." However, after the prosecution had presented its first witness, accused Nues changed his plea of "not guilty" to "guilty." Hence, the lower court held in abeyance the promulgation of a judgment against said accused until the prosecution had finished presenting its evidence. While trial was still ongoing, Nuez died on March 10, 1989, thereby extinguishing his criminal liability. The facts surrounding this case show that in the afternoon of August 4, 1987, Pfc. Redempto Manatad, Pfc. Ninah Tizon and Pfc. Rene Catamora were tasked by their commanding officer to assist in canning the traffic at M.N. Briones and Bonifacio Streets in Mandaue City. Pfc. Tizon controlled the traffic lighting facility; Pfc. Manatad manned the traffic; while Pfc. Catamora acted as back-up and posted himself at Norkis Trading building. At about 4:00 o'clock in the afternoon, Pfc. Catamora noticed eight (8) persons, one of

whom he identified as Edwin Nuez, acting suspiciously. He noticed one of them giving instructions to two of the men to approach Pfc. Manatad. He followed the two, but sensing that they were being followed, they immediately proceeded to the middle of the road and engaged Pfc. Catamora to a gun battle. At that instant, Pfc. Catamora heard a series of shots from the other group and thereafter saw Pfc. Manatad sprawled on the ground. Being outnumbered and to save his own life, Pat. Catamora sought refuge at the nearby BIR Office from where he saw two (2) persons take Pfc. Manatad's gun and again fired at him to make sure that he is dead while the rest of the group including Nues acted as back up. Thereafter, the Nues group commandeered a vehicle and fled from the scene of the shooting. Pfc. Rene Catamora testified that he can identify accusedappellant Nues because of a mole at the bridge of his nose near the left eye which he noticed when the accused passed 2 or 3 meters in front of him together with his companions. On August 16, 1987, two teams of police officers were tasked to conduct surveillance on a suspected safehouse of members of the sparrow unit located in Peace Valley, Cebu City. Upon reaching the place, the group saw Rodrigo Dasig

and Edwin Nues trying to escape. The team of Capt. Antonio Gorre captured Nues and confiscated a .45 caliber revolver with 3 magazines and ammunitions, while the group of Sgt. Ronald Arnejo pursued Dasig, who threw a grenade at his pursuers, but was shot on his left upper arm and subsequently apprehended. A .38 caliber revolver with 17 live ammunitions were confiscated from him. Thereafter, Dasig was brought to the hospital for treatment, while Nues was turned over to the Metrodiscom for investigation. Meanwhile, Dasig was interrogated by M/Sgt. Ariston Ira of the PC Criminal Investigation Service on August 19, 1987 at his hospital bed at the Lapulapu Army Hospital in Cebu City. Assisting Dasig during the interrogation was Atty. Fortunato Parawan of the Creer Law Office, who was requested by the military to represent appellant who did not have a lawyer. Before the start of the interrogation, Atty. Parawan asked appellant whether he was willing to avail of his services, to which appellant agreed. M/Sgt. Ira then appraised Dasig of his constitutional rights. The interrogation was conducted in Cebuano upon appellant's request. Dasig confessed that he and the group of Edwin Nues killed Pfc. Manatad. He likewise admitted

that he and Nues were members of the sparrow unit and the their aliases were "Armand" and "Mabi," respectively. The extra-judicial confession of appellant marked as Exhibit "J" 2 was signed by him on every page thereof with the first page containing a certification likewise signed by him, which states: "I hereby certify that the herein statement is free and voluntary, and that I am assisted by my counsel in the course of this investigation" followed by the signed conformity of Atty. Parawan. The extra-judicial confession was subscribed and sworn to before Cebu City Asst. Fiscal Salvador Solima. In the present appeal, Dasig contends that the procedure by which his extra-judicial confession was taken was legally defective, and contrary to his Constitutional rights. He further contends that assuming he conspired in the killing of Pfc. Manatad, he should be convicted at most of simple rebellion and not murder with direct assault. Appellant also claims that the custodial interrogation was done while he was still very sick and consequently, he could not have fully appreciated the wisdom of admitting such a serious offense. That even with the presence of counsel, his extra-judicial confession is

inadmissible in evidence as said counsel did not actively assist him and advise him of his rights. In effect, his presence was merely to give a semblance of legality to the proceedings and not to protect appellant against possible abuses of the investigator. Dasig, likewise questions the sincerity of Atty. Parawan in protecting his rights considering that the latter is a known antiCommunist advocate and that the law firm to which he belongs has represented high ranking officers of the Armed Forces of the Philippines. We find the argument specious. Fiscal Salvador Solima in his certification, Exhibit "J-7-B," stated that he had personally examined the affiant and that he is convinced that the latter's statement was free and voluntary and that the affiant signed the same in his presence and swore under oath as to the veracity of everything therein. Atty. Fortunato L. Parawan also testified that he assisted the affiant from the start of the investigation up to its termination. Atty. Parawan testified thus: "Q Who introduced Rodrigo Dasig to you? A I inquired from the personnel of the hospital the whereabout of Rodrigo Dasig and I introduced myself as a lawyer. So they informed me the

room of Rodrigo Dasig. At that time I introduced myself as a lawyer who came to assist the person of Rodrigo Dasig. Once we had a confrontation with Rodrigo Dasig, I asked him whether he was willing to get me as his lawyer in that investigation. Then he told me yes. Q Did he tell you whether he as a counsel of his own choice? A No. xxx xxx xxx Q In other words he accepted your services as counsel in connection with that investigation which was about to be made? A Yes. Q Who are the persons present at that time? A There were guards outside and inside. There was a man from the CIS in the person of Sgt. Ira, myself and Dasig. Q What happened after that? A The CIS started the investigation.

Q You mean this Ariston Ira? A Yes. Q Before Ariston Ira conducted the investigation was Dasig informed of his constitutional rights to remain silent, to counsel and if he chooses to testify or say something, that statement of his will be used against or in his favor in the court of justice? A Yes. He was willing to get me as counsel in that investigation. Q After he was informed of his constitutional rights what transpired next? A The investigation started. Q Were you present at the very start of that investigation? A Yes. I was present from the start until it was finished. Q Was that reduced to writing? A Yes. xxx xxx xxx

Q You said you were present during the entire investigation. Were the answers of the accused, Rodrigo Dasig, to the questions propounded by the investigator voluntary? A Yes, they voluntary. Q After the investigation was finished what transpired next? A After the investigation, I think that was already past 3:00 or 4:00, we proceeded to the office of the City Fiscal at F. Ramos St., Cebu City and then we proceeded to the Office of Fiscal Solema (sic) and then it was subscribed there before Fiscal Solema (sic). Q Were you present during the proceeding? A I was also present." We do not find any reason to doubt the factual findings and conclusions of the trial court that the extra-judicial confession of the appellant was voluntarily made. Said the trial court: "The prosecution's evidence clearly shows that herein accused during his investigation was properly informed and appraised of his

constitutional right to remain silent and to have a competent and independent counsel preferably of his own choice but since at that time he did not signify his intention to retain a lawyer of his own choice, so he was provided with a lawyer in the person of Atty. Fortunato Parawan of the Creer Law Office who was available at that time, to assist him during the custodial investigation conducted by T/Sgt. Ariston L. Ira at his hospital bed at Camp Lapulapu Army Station Hospital, Cebu City where he was confined after being hit on his upper left arm and in fact, Atty. Parawan only consented to assist herein accused after the latter has answered in the affirmative to his question as to whether he would be amenable to be assisted by him as his counsel of his own choice. "The prosecution's evidence further show that Atty. Fortunato Parawan after consenting to be his counsel was with him when his extra-judicial confession or sworn statement was subscribed and sworn to by him before Assistant City Fiscal Salvador O. Solima of the Cebu City Fiscal's Office who, before accused has actually affixed his signature on each and every pages of his extra-judicial confession, has informed him (accused) of his constitutional rights and has

explained the contents of his extra-judicial confession. "Moreover, per certification made by Assistant City Fiscal Salvador O. Solima of the Cebu City Fiscal's Office, clearly shows that accused in executing the same has done so voluntarily and after having understood the contents thereof which is in the visayan language, a language known to him, found on the last page thereof now marked as Exhibit "J-7-B." "Furthermore, this sworn statement of accused Dasig is collaborated by the sworn statement of his co-accused Edwin Nues dated August 18, 1987 which is sworn and subscribed to before City Fiscal Jopelinito Pareja of the city Fiscal's Office of Cebu City." The settled jurisprudence on the matter is that a confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat or promise of reward or leniency. 5 The case of People of the Philippines v. Parojinog is four square to the case at bar. In Parojinog this court had this to say:

"Anent his claim that Atty. Fuentes was not his choice, Section 12 (1) of Article III of the 1987 Constitution provides: 'Sec. 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 provided with one. These rights cannot be waived except in writing and in the presence of counsel.' "It is very clear from the aforequoted provision that a person under investigation for the commission of an offense may choose his own counsel but if he cannot afford the services of counsel, he must be provided with one. While the initial choice of the lawyer in the latter case is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. In the instant case, the records show that no objection was voiced by the accused throughout the entire proceedings of the investigation and afterwards when he subscribed to its veracity before City Prosecutor Luzminda V. Uy. Thus, he apparently acquiesced to the choice of the investigators. He complained for

the first time that Atty. Fuentes was not his choice only during trial. Thus it was too late." Appellant relies on the much abused claim that his extra-judicial confession was legally defective and hence, should not have been admitted and considered by the trial judge. This accusation is whimsical and obviously a mere refuge for appellant's turnabout. In an attempt to avoid criminal liability, he now questions the integrity of the police authorities and the reputation of the lawyer who stood by him during the investigation. Indubitably established and now a matter of record is the fact that appellant was assisted by Atty. Parawan who even signed the former's sworn declarations. It is likewise a matter of record that before appellant made his extrajudicial confession, he was first asked if he was amenable to the services of Atty. Parawan to which query he answered affirmatively. Finally, the alleged use of fore and intimidation has not been substantiated by evidence other than his self-serving testimony. As has been pointed out, such allegation is another naive effort of appellant to back track from his prior voluntary admission of guilt. Evidently, the taking of his extra-judicial confession was done with regularity and legality.

Nevertheless, there is merit in appellant's argument that granting he is guilty, what he committed was a political crime of simple rebellion, and hence he should not be convicted of murder with direct assault. The Solicitor General agrees with the accusedappellant on this point as manifested in the People's brief, which We quote: "However, as correctly pointed by appellant, the lower court erroneously convicted him of Murder with Assault Upon a Person in Authority, instead of Rebellion. "Rebellion is committed by taking up arms against the government, among other means. (Article 135, Revised Penal Code). In this case, appellant not only confessed voluntarily his membership with the sparrow unit but also his participation and that of his group in the killing of Pfc. Manatad while manning the traffic in Mandaue City in the afternoon of August 4, 1987. It is of judicial notice that the sparrow unit is the liquidation squad of the New People's Army with the objective of overthrowing the duly constituted government. It is therefore not hard to comprehend that the killing of Pfc. Manatad was committed as a means to or in furtherance of the

subversive ends of the NPA. Consequently, appellant is liable for the crime of rebellion, not murder with direct assault upon a person in authority." The crime of rebellion consists of many acts. It is a vast movement of men and a complex net of intrigues and plots. Acts committed in furtherance of rebellion though crimes in themselves are deemed absorbed in one single crime of rebellion. 9 The act of killing a police officer, knowing too well that the victim is a person in authority is a mere component or ingredient of rebellion or an act done in furtherance of the rebellion. It cannot be made a basis of a separate charge. Moreover, in the case of People v. Mangallan 10 We held that where the accused who was charged with murder admitted his membership with the NPA and the killing of a suspected PC informer, the crime committed is not murder but rebellion punishable under Articles 134 and 135 of the Revised Penal Code. As to the proper imposable penalty, the Indeterminate Sentence Law is not applicable to persons convicted of rebellion (Sec. 2, R.A. 4203), contrary to the insinuation of the Solicitor

General. Article 135 of the Revised Penal Code imposes the penalty of prision mayor and a fine not exceeding P20,000.00 to any person who promotes, maintains, or heads a rebellion. However, in the case at bar, there is no evidence to prove that appellant Dasig headed the crime committed. As a matter of fact he was not specifically pinpointed by Pfc. Catamora as the person giving instructions to the group which attacked Pfc. Manatad. Appellant merely participated in committing the act, or just executed the command of an unknown leader. Hence, he should be made to suffer the penalty of imprisonment of eight (8) years of prision mayor. For the resulting death, appellant is likewise ordered to pay the heirs of Pfc. Manatad FIFTY THOUSAND PESOS (P50,000.00) as civil indemnity. Premises considered, We uphold the findings of the trial court that the extra-judicial confession was legally obtained. However, appellant being a confessed member of the sparrow unit, the liquidation squad of the New People's Army whose objective is to overthrow the duly constituted government, the crime committed is simple rebellion and not murder with direct assault.

WHEREFORE, accused Rogelio Dasig is found guilty of participating in an act of rebellion beyond reasonable doubt and is hereby sentenced to suffer the penalty of imprisonment of eight (8) years of prision mayor, and to pay the heirs of Pfc. Redempto Manatad, P50,000.00 as civil indemnity.
BELTRAN vs. PEOPLE G. R. No. 175013, June 1, 2007 FACTS: Petitioners were all prosecuted for the crime of Rebellion. They were alleged as leaders and promoters of the plan to overthrow the Arroyo Government. In the case of Beltran, he was arrested without a warrant and without being informed of the crime for which he was charged. The basis of his arrest was based on his speech conducted in a rally on the occasion of the 20th Anniversary of the EDSA Revolution. Other than this, there are no proofs of specific acts of promoting, maintaining or heading a rebellion. An inquest proceeding was conducted leading to a finding of probable cause on the basis of the affidavits of arresting officers and letters accusing Beltran to have conspired with the petitioners in the other two cases as well as with the members of the Communist Party of the Philippines and the Makabayang Kawal ng Pilipinas of having formed a tactical alliance. The lower court ruled

that there was probable cause. Hence, the present petition to enjoin petitioners prosecution for rebellion. ISSUE: Whether or not there is probable cause to indict petitioners for the crime of Rebellion under Article 134 in relation to Article 135 of the Revised Penal Code. RULING: In resolving the issue on probable cause, the Supreme Court ruled in the negative. It is clear from the facts of the case that the elements of committing rebellion are not present. There was no showing that there was a public arising and taking of arms against the government. Probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. These circumstances were not taken into account by the prosecutor when it filed an information of rebellion against petitioners. Clearly, the prosecutor was remiss of his authority. In addition to that, mere membership in the communist party does not constitute the commission of rebellion. Although as a rule, the Supreme Court does not interfere with the prosecutors determination of probable cause, this rule however is not without exception. The

Supreme Court however has the power to review under Rule 65 in cases where the prosecutor abused his discretion by ignoring a clear insufficiency of evidence to support a finding of probable cause which is what transpired in the instance case.

G.R. No. 125796, Promulgated: December 27, 2000 OFFICE OF THE PROVINCIAL PROSECUTOR OF ZAMBOANGA DEL NORTE, Petitioners, vs. COURT OF APPEALS, ATICO ABORDO, JUDY CATUBIG, PETER MOLATO, and FLORENCIO CANDIA,Respondents. MENDOZA, J.: The issue in this case is whether, even before the start of trial, the prosecution can be ordered to change the information which it had filed on the ground that the evidence presented at the preliminary investigation shows that the crime committed is not murder with multiple frustrated murder, but rebellion. The trial court ruled that the power to determine what crime to charge on the basis of the evidence gathered is the prerogative of the public prosecutor. The Court of

Appeals, however, while agreeing with the trial court, nevertheless found the prosecutor to have gravely abused his discretion in charging murder with frustrated murder on the ground that the evidence adduced at the preliminary investigation shows that the crime committed was rebellion. Accordingly, it ordered the prosecutor to substitute the information filed by him. Hence, this petition brought by the provincial prosecutor of Zamboanga del Norte for a review of the decision of the Court of Appeals. The facts are not in dispute. On August 3, 1993, the provincial prosecutor of Zamboanga del Norte1 filed with the Regional Trial Court, Branch 8, Dipolog City, an information (docketed as Criminal Case No, 6427) charging private respondents and 10 other individuals with murder and multiple frustrated murder. The Information reads: The undersigned, Provincial Prosecutor, accuses ATICO OBODO alias "Dondoy," NACENCIANO PACA-LIUGA, JR., ELEAZAR FLORENDO, NESTOR BASES alias Beses/Belly, FLORENCIO CANDIA alias "Bimbo," JUDY CATUBIG alias Elboy/Al," PETER MOLATO alias, Joker, ALBERTO CATUBIG alias "Blacky", ALMARIO CATUBIG alias Nixon, JIMMY

BENGAL alias "Macoboy," ENRICO SIMBULAN alias Monstop, JIMMY GARIG alias "Gino" and BERNIDO QUENCAS alias "Digoy of the crime of MURDER WITH MULTIPLE FRUSTRATED MURDER, committed as follows: That, in the morning, on or about the 1st day of May, 1988, in the Municipality of Katipunan, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the above-named accused armed with the high caliber firearms, conspiring, confederating together and mutually helping one another and with intent to kill by means of treachery and evident premeditation did then and there willfully, unlawfully, unlawfully and feloniously attack, assault and fire several shots to one Cpl. ALFREDO DELA CRUZ PA, which accused his instantaneous death and causing injuries to the following victims namely: SGT. RODRIGO ALVIAR PA, SGT. RODRIGO BARADI, SGT. LINOGAMAN PIATOS and SGT. BELLIZAR PA, which injuries would ordinarily cause their death; thus performing all the acts of execution which would have produced the crime of MURDER, as a consequence, but which nevertheless did not produce it for reason of causes independent of the will of the herein accused, that is the timely and able medical attendance rendered to the said victims which

prevented their death; that as a result of the commission of the said crime the heirs of Cpl. Alfredo de la Cruz and the herein victims suffered the following damages, vis: On victim CPL ALFREDO DELA CRUZ: a. Indemnity for Victims death .. P50, 000.00 b. Loss of earning Capacity 30,000.00 P80, 000.00 SGT. RODRIGO ALVIAR: a) Hospitalization P10, 000.00 c. Loss of earning Capacity .. 10,000.00 P20, 000.00 SGT. LINOGAMAN PIATOS: a) Hospitalization P10, 000.00

d. Loss of earning Capacity .. 10,000.00 P20,000.00 SGT. RODRIGO BARADI; a) Hospitalization P10,000.00 e. Loss of earning Capacity .. 10,000.00 P20,000.00 SGT. BELLIZAR: a) Hospitalization P10,000.00 f. Loss of earning Capacity .. 10,000.00 P20,000.00 CONTR ARY TO LAW (Viol. Of Art. 248, in relation or Art. 48 of the Revised Penal Code), with the aggravating circumstance of superior

strength and with the qualifying circumstances of treachery and evident premeditation.2 The foregoing information is based on a joint affidavit executed on June 1, 1993 by five individuals, who claim to be former members of the New Peoples Army (NPA), before the Municipal Trial Court of Katipunan, Zamboanga del Norte. The affiants stated that on May 1, 1988, their group, which included private respondents, figured in an armed encounter with elements of the Philippine Army in Campo Uno, Femagas, Katipunan, Zamboanga del Norte, as a result of which one solider, Cpl. Alfredo de la Cruz, was killed while four others, Sgts. Rodrigo Alviar, Linomagan Piatos, Rodrigo Baradi, and a certain Bellizar, were seriously wounded. Although private respondents did not appear nor submit affidavits in the preliminary investigation, they appealed the resolution of the provincial prosecutor to the Secretary of Justice on the ground that, in accusing them of murder and multiple frustrated murder, the provincial prosecutor disregarded the political motivation which made the crime committed rebellion. When the case was filed in court, private respondents reiterated their contention and prayed that the provincial prosecutor be ordered to change the

charge from murder with multiple frustrated murder to rebellion. On September 29, 1995, the trial court issued an order denying private respondents motion for the correction or amendment of the information. The trial court said.3 Be it recalled, that as pointed out by the Asst. Provincial Prosecutor, the same moving counsel sometime on July 22, 1993 filed a notice of appeal assailing the resolution of the provincial prosecutor dated July 16, 1993 finding probable cause against all the above-named accused for the crime of Murder and Multiple frustrated Murder, to the Honorable Secretary of Justice, by raising the same issue that "instead of recommending the filing of a political crime such as subversion or rebellion, the investigating prosecutor is recommending the filing of the common crime of murder to cover-up the apparent political color of the alleged crime committed. Until the Secretary of Justice therefore resolves the appeal by the movant, this court will have no basis to order the public prosecutor to amend or change the crime charged in the information. Besides, this Court recognizes and respects the prerogative of the fiscal to determine whether or not a prima facie

case exists in a given case against the accused. This power vested in the fiscal cannot be interfered with even by the courts. But since the case has already been filed with this Court, jurisdiction therefor now lies with the court. It may not even be bound by the ruling of the Secretary of Justice Private respondents twice moved for reconsideration and twice were rebuffed. They then filed a petition for certiorari with this Court to set aside the orders dated September 29, October 24, and November 3, 1995 of the trial court. They impleaded the provincial prosecutor of Zamboanga del Norte as co-respondent of Judge Pacifico Garcia of the Regional Trial Court, Branch 8, Dipolog City. Without ruling on the petition, this Court referred the case to the Court of Appeals, which, in decision4 dated July 24, 1996, the subject of this review, found the provincial prosecutor guilty of grave abuse of discretion in charging private respondents with murder with multiple frustrated murder. The Court of Appeals held: The New Peoples Army (NPA) is the armed component of the Communist

Party in this country called the national Democratic Front (NDF). The ultimate objective of the NPA/NDF is to overthrow the constitutional democratic plant it with a government anchored on the communist ideology. It is common practice of the military and police to charge captured or arrested members f the NPA with capital offenses like murder, robbery with homicide, illegal possession of firearms used in the commission of homicide or murder, arson resulting in death rather than on simple rebellion. If an NPA fighter (terrorist, according to the military lexicon) commits homicide, murder, arson, robbery, illegal possession of firearms and ammunition in furtherance or on the occasion of his revolutionary pursuit, the only crime he has committed is rebellion because all those common crimes are absorbed in the latter one pursuant to the ruling in People v. Hernandez, 99 Phil. 515 and several subsequent cases. The reason why instead of charging the NPA fighter with capital offenses mentioned supra and not the proper offense of rebellion is obvious. Rebellion is a bailable offense and given the

resources of the NPA, it is the easiest thing for it to bail out its members facing rebellion charges in court. Once out, the NPA fighter goes back to his mountain lair and continues the fight against the government. If he is accused of a capital offense where the granting of bail is a matter of discretion, his chances of securing provisional liberty during the pendency of the trial are very much lessened. Since, the military and the police carry the brunt of fighting the NPAs and in so doing they put their limbs and lives on the line, it is easy for Us to understand why they usually charge the captured or arrested NPAs with capital offenses instead of the proper offense which is rebellion. The police or military practice is of course wrong, but it is not much of a problem because it is at most recommendatory in nature. It is the prosecutory service that ultimately decides the offense to be charged. No one disputes the well-entrenched principle in criminal procedure that the public prosecutor has the discretion to determine the crime to be charged in a criminal action. But like all discretions, his must be exercised soundly, meaning, reasonably, responsibly, and fairly. As stated by the Supreme Court in Misola v. Panga

cited in respondents Comment (p. 61, Rollo); "The question of instituting a criminal charge is one addressed to the sound discretion of the investigating Fiscal. The information must be supported by the facts brought about by an inquiry made by him." (Underscoring supplied). If then, a public prosecutor deliberately ignores or suppresses an evidence in his hands which palpably indicates the chargeable offense and files an information charging a more serious one, he departs from the precinct of discretion and treads on the forbidden field or arbitrary action. This was what happened in the case at bench. The evidentiary bases of the criminal action against petitioners are the Joint Affidavit and the recorded testimony earlier adverted to. It is not at all disputed that based upon these two documents, the proper offense to charge petitioners with is rebellion. No amount of legalistic sophistry can make those documents support murder for these offenses in the factual milieu in this case were all absorbed by rebellion. We vehemently reject respondents contention that the petitioners do not suffer any prejudice because they can use their theory that the chargeable offense is only rebellion as a defense

in the trial on the merits and if the trial court finds that the evidence establishes only rebellion, then, it can convict them under the Information for just that lesser crime. This argument is not only wrong but betrays insensitivity to violation of human rights. If prosecutory discretion is twisted to charge a person of an unbailable offense and, therefore, keeps him under detention when the truly chargeable offense is a bailable one, the prosecutor transgresses upon the human rights of the accused.5 The appeals court was more kindly disposed toward the trial court. It said: Respecting the respondent court, the situation is different The Joint Affidavit and the recorded testimony mentioned earlier are not part of the records. The trial has not yet been started and, therefore, no evidence has yet been adduced. There is no basis then for the trial court even to call the attention of the prosecutor to a mistake in the crime charged. We hold that respondent court did not commit an error in issuing the assailed orders, much less gravely abused its discretion in issuing them. 6

Accordingly, the Court of Appeals ordered: WHEREFORE, with the foregoing premises, We a) dismiss the petition as against respondent court for lack of merit; and b) order the respondent office of Provincial Prosecutor to file a substitute Information in Criminal Case No. 6472 charging the petitioners with rebellion only. 7 Petitioner contends that the Court of Appeals erred I. IN MAKING DISPARATE AND IRRECONCILABLE RULINGS CONCERNING THE CORRECTNESS OF THE ACTION OF PETITIONER AND THE LOWER COURT. IN HOLDING THAT PETITIONER GRAVELY ABUSED ITS DISCRETION IN CHARGING PRIVATE RESPONDENTS WITH MURDER AND MULTIPLE FRUSTRATED MURDER.8

II.

We find the contentions to be well taken.

First. It was improper for the Court of Appeals to consider the record of the preliminary investigation as basis for finding petitioner provincial prosecutor guilty of grave abuse of discretion when such record was not presented before the trial court and, therefore, was not part of the record of the case. Rule 112, 8 of the Revised Rules of Criminal procedure provide;

SEC. 8. Record of preliminary investigation. The record of the preliminary investigation whether conducted by a judge or a fiscal, shall not form part of the record of the case in the Regional Trial Court. However, the said court, on its own initiative or that of any party, may order the production of the record of any part thereof whenever the same shall be necessary in the resolution of the case or any incident therein, or shall be introduced as evidence by the party requesting for its production. The certiorari proceedings in the Court of Appeals was limited to the record of the trial court and indeed the Court of Appeals recognized this by absolving the trial court of any liability for abuse of its discretion. It is petitioner provincial prosecutor, which it found guilty of

grave abuse of discretion in filing a case for murder with multiple frustrated murder against private respondents because, in its view, the crime committed is rebellion. The Court of Appeals based its ruling on the joint affidavit of five prosecution witnesses and their testimonies relating to such affidavit before the Municipal Trial Court of Katipunan, Zamboanga del Norte, which had conducted the preliminary investigation. But this could not be done because the petition before it was a petition for certiorari to set aside orders of the Regional Trial Court denying private respondents motion to compel petitioner to change the charge against them from murder with frustrated murder to rebellion. To sustain the procedure followed by the Court of Appeals of considering evidence dehors the record of the trial court would be to set a bad precedent whereby the accused in any case can demand, upon the filing of the information, a review of the evidence presented during the preliminary investigation for the purpose of compelling the trial court to change the charge to a lesser offense. Such a ruling would undermine the authority of the prosecutor and impose and intolerable burden on the trial court. As held in Depamaylo v. Brotario.9

The Court in a number of cases has declared that a municipal judge has no legal authority to determine the character of the crime but only to determine whether or not the evidence presented supported prima facie the allegation of facts contained in the complaint. He has no legal authority to determine the character of the crime and his declaration upon that point can only be regarded as an expression of opinion in no wise binding on the court (People vs. Gorospe, 53 Phil. 960; de Guzman vs. Escalona, 97 SCRA 619). This power belongs to the fiscal Bais vs. Tugaoen, 89 SCRA 101). It is to be noted that private respondents did not even attend the preliminary investigation during which they could have shown that the crime committed was rebellion because the killing and wounding of the government troopers was made in furtherance of rebellion and not for some private motive. Second. Indeed, it is not at all clear that the crime as made out by the facts alleged in the Joint Affidavit of witnesses is rebellion and not murder with multiple murder. The affidavit reads: REPUBLIC OF THE PHILIPPINES

PROVINCE OF ZAMBOANGA DEL NORTE) S.S Municipality of Jose Dalman) X--------------------------------------------------------------------------------------------------------------------------------------------x JOINT AFFIDAVIT I..Teofilo D. Sarigan, 31 years old, Manuel A. Cuenca, 28 yrs. Old, Romulo A. Pacaldo, 25 years old, Carmelito Carpe, 36 yrs. Old, all married and Pablo D. Maladia, 20 yrs. old and with postal address of Brgy. Lopero, Brgy. Lumaping, of Jose Dalman, Brgy. Villahermosa, Roxas, all of ZDN, Brgy. Sigamok, Dumingag, ZDS and Brgy. Lipay. Jose Dalman, ZDN after having been duly sworn to an oath in accordance to law do hereby depose and answer questions propounded: QUESTIONS AND ANSWERS: 1. Q Why are you here now in this office?

A To render statement regarding the alleged incident wherein we were previously involved when we were still with the underground movement of CPP/NPA that transpired on or about 011000H May 1988 at vicinity Campo Uno, Femagas, Katipunan, ZDN against the government troops of 321B. 2. Q Since when the five (5) of you entered the underground movement of CPP.NPA? A Since May 16, 1980, August 12, 1980, March 12, 1981, May 7, 1983 and August 27, 2987, sir. 3. Q What is your previous position? A CO, FCOM (Front Command) and second deputy secretary of FC-1 "BBC, the Vice CO, FCOM, the CO, FCOM after @ Bebeth surrender, a Unit Militia (YM) member, GYP element under squad Lion all of FC-1 "BBC" in which we are operating within the Province of ZDN.

4. Q Will you narrate to me what and how the incident you are referring to all about? A Actually sir, last 30 April 1988 our main force of FGU, FC-1 "BBC" had a meeting at vicinity basketball court of vicinity Campo Uno, Femagas, Katipunan ZDN. While on that status our security group left at the high ground portion of the place and engaged the advancing government troops of 321B after which we then decided to postpone the meeting hence, the government troops presence. However, on the following day of 01 May 1988 at about 10:00 oclock in the morning when we assembled again at the aforesaid place, firefight occurred between us and the government troops of 321B which resulted to inflict casualties to the 321B troopers, KIA one (1) Cpl. Alfredo Dela Cruz and wounding four (4) others, Sgt. Rodrigo Alviar, Sgt. Linogaman Piatos, Sgt. Rodrigo Baradi and Sgt. Bellizar while on our side with one wounded @ TOY.

5. Q Can you still recall the names of those other NPAs that participated in that encounter against the government troops? A Yes, sir. ATICO OBORDO @ DONDOY, NACENCIANO PACALIUGA JR., @ ALFIE/IGI, ELEAZAT FLOREDO, NESTOR BASES @ BELOY/BELLY. FLORENCIO CANDIA @ BIMBO, JUDY CATUBIG @ ELBOY/AL, PETER MOLATO @ JOKER, BIENVENIDO CATUBIG @ RASTY, ALBERTO CATUBIG @ BLACKY/RENATO, ALMARIO CATUBIG @ NOEL, ROGER CATUBIG @ JAMSE, JOEL CATUBIG @ NIXON, JIMMY DINGAL @ MACBOY, ENRICO SIMBULAN @ NONSTOP, @ DANDY, @ WAWAY, @ ALBA/JONAS, JIMMY GARIG @ NONOY, NILO CATUNGAN @ GINO, BERNIDO QUENECAS @ DIGOY, @ CRISTINE/LFA @ MARILOU @ ELNA, @

BENIGNO PAULINO CORPUZ @ JR/PAWA, BENJAMIN SANTANDER @ JAKE, @NESTOR, @ JAY, @ ISAGANI, @ RONIE, ESMAEL OBORDO @ ANICIO, @ FREDO, @ RUEL, @ DODONG, JULITA ADJANAN @ GENIE, @ TONY, @ RJ, @ LANNIE @ DEMET, @ RENDON, @JESS, @ SAMSON AND many others, sir. Q Then what transpired next? A Right after the encounter, we withdraw our troops towards vicinity SVR, complex, Sergio Osmea, Sr., ZDN. Q Do you have something more to say? A Nothing more, sir. Q Are you willing to sign you statement without being forced, coerced or intimidated?

A Yes, sir. IN WITNESS WHEREOF, WE hereunto affix our signature this 1st day of June 1993 at Katipunan, ZN Philippines. (SGD.) TEOFILO D. SARIGAN Affiant (SGD,) MANUEL A. CUENCA Affiant (SGD,) ROMULO A. PACALDO Affiant (SGD.) CARMELITO L. CARPE Affiant (SGD.) PABLO G. MALADIA Affiant SUBSCRIBED and SWORN to before me this 1st day of June 1993 at Katipunan, ZN, Philippines.

(SGD.) ADELA S. GANDOLA Municipal Trial Judge Nowhere is the political motivation for the commission of the crime indicated in foregoing affidavit. Merely because it is alleged that private respondents were members of the CCP/NPA who engaged government troops in a firefight resulting in the death of a government trooper and the wounding of four others does not necessarily mean that the killing and wounding of the victims was made in furtherance of a rebellion. The political motivation for the crime must be shown in order to justify finding the crime committed to be rebellion. Otherwise, as in People v. Ompad,10although it was shown that the accused was an NPA commander, he was nonetheless convicted of murder for the killing of a person suspected of being a government informer. At all events, as this Court said in Balosis v. Chanvez:11 Certainly, the public prosecutors should have the option to ascertain which prosecutions should be initiated on the basis of the evidence at hand. That a criminal act may have elements common to more than one offense does not rob the prosecutor of that option (or discretion) and

mandatory require him to charge the lesser offense although the evidence before him may warrant prosecution of the more serious one.12 In Baylosis v. Chavez, the accused, who were NPA members, assailed the constitutionality of P.D. No. 1866 under which they were charged with illegal possession of firearm and ammunition on the ground that it gave prosecutors the discretion to charge an accused either with rebellion or with other crimes committed in furtherance thereof. In rejecting their contention, this Court said: The argument is not tenable. The fact is that the Revised Penal Code trets rebellion or insurrection as a crime distinct from murder, homicide, arson, or other felonies that might conceivably be committed in the course of rebellion. It is the Code, therefore, in relation to the evidence in the hands of the public prosecutor, and not the latters whim or caprice, which gives the choice. The Code allows, for example, separate prosecutions for either murder or rebellion, although not for both where the indictment alleges that the former has been committed in furtherance of or in connection with the latter.13

The burden of proving that the motivation for the crime is political and not private is on the defense. This is the teaching of another case. 14 in which it was held;

In deciding if the crime is rebellion, not murder, it becomes imperative for our courts to ascertain whether or not the act was done in furtherance of a political end. The political motive of the act should be conclusively demonstrated. In such cases the burden of demonstrating political motive falls on the defense, motive, being a state of mind which the accused better than any individual knows. Its not enough that the overt acts of rebellion are duly proven. Both purpose and overt acts are essential components of the crime. With either of these elements wanting, the crime of rebellion legally does not exist. The proceedings in the case at bar is still in the pre-arraignment stage. The parties have yet to present their respective evidence. If during the trial, private respondents are able to show proof which would support their present contention,

then they can avail of the remedy provided under the second paragraph of Rule 110, 1415which provides: If it appears at any time before judgement that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy Until then, however, petitioner provincial prosecutor is under no obligation to change against private respondents. Third. The Court of Appeals says it is a common practice of the military and the police to charge captured members of the NPA with capital offenses like murder, robbery with homicide, or illegal possession of firearms rather than rebellion. The alleged purpose is to deny them bail only if it can be shown that the evidence against them is not strong, whereas if the charge is rebellion, private respondents would have an absolute right to bail.

As already stated, however, given the Joint affidavit of the prosecution witnesses alone, it is not possible to determine at this stage of the criminal proceeding that in engaging the government troops in a "firefight," private respondents were acting in pursuance of rebellion. It could be that the "firefight" was more of an ambush staged by the NPA, as shown by the fact that while the government troop suffered one dead and four wounded, the CPP/NPA suffered only one wounded. The charge that it is "common practice for the military and the police to charge suspected rebels with murder in order to prevent them from going on bail can be laid equally at the door of the accused. As noted in Enrile v. Salazar:16 It may be that in the light of contemporary events, the act of rebellion has lost that quintessentially quixotic quality that justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled by love of country than by lust for power and have become no better than mere terrorists to whom nothing, not even the sancity of human life, is allowed to stand in the way of their ambitions. Nothing so c this aberration as the rash of seemingly senseless killings, bombings,

kidnappings and assorted mayhem so much in the news these days, as often perpetrated against innocent civilians as against the military, but by and large attributable to, or even claimed by so called rebels to be part of, an ongoing rebellion.17 What the real crime is must await the presentation of evidence at the trial or at the hearing on the application for bail. Those accused of common crimes can then show proof that the crime with which they were charged is really rebellion. They are thus not without any remedy. WHEREFORE, the decision of the Court of Appeals, dated July 24, 1996, is REVERSED insofar as it orders petitioner to file a substitute information for rebellion in Criminal Case No. 6427. In other respects, it isAFFIRMED.
1wphi1.nt

CABOCHAN, ENS. ARMAND PONTEJOS, LT. (JG) ARTURO PASCUA, and 1LT. JONNEL SANGGALANG,Petitioners, vs. GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the Armed Forces of the Philippines, and B. GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge Advocate General of the Judge Advocate Generals Office (JAGO), Respondents. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the Petition for Prohibition (with prayer for a temporary restraining order) filed by the above-named members of the Armed Forces of the Philippines (AFP), herein petitioners, against the AFP Chief of Staff and the Judge Advocate General, respondents. The facts are: On July 26, 2003, President Gloria Macapagal Arroyo received intelligence reports that some members of the AFP, with high-powered weapons, had abandoned their designated

G.R. No. 164007 August 10, 2006 LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO TRILLANES IV, CPT. GARY ALEJANO, LT. (SG) JAMES LAYUG, CPT. GERARDO GAMBALA, CPT. NICANOR FAELDON, LT. (SG) MANUEL

places of assignment. Their aim was to destabilize the government. The President then directed the AFP and the Philippine National Police (PNP) to track and arrest them. On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed junior officers and enlisted men of the AFP mostly from the elite units of the Armys Scout Rangers and the Navys Special Warfare Group entered the premises of the Oakwood Premier Luxury Apartments on Ayala Avenue, Makati City. They disarmed the security guards and planted explosive devices around the building. Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red armbands emblazoned with the emblem of the"Magdalo" faction of the Katipunan. 1 The troops then, through broadcast media, announced their grievances against the administration of President Gloria Macapagal Arroyo, such as the graft and corruption in the military, the illegal sale of arms and ammunition to the "enemies" of the State, and the bombings in Davao City intended to acquire more military assistance from the US government. They declared their withdrawal of support from their Commander-in-Chief and demanded that she resign as President of the

Republic. They also called for the resignation of her cabinet members and the top brass of the AFP and PNP. About noontime of the same day, President Arroyo issued Proclamation No. 427 declaring a state of rebellion, followed by General Order No. 4 directing the AFP and PNP to take all necessary measures to suppress the rebellion then taking place in Makati City. She then called the soldiers to surrender their weapons at five oclock in the afternoon of that same day. In order to avoid a bloody confrontation, the government sent negotiators to dialogue with the soldiers. The aim was to persuade them to peacefully return to the fold of the law. After several hours of negotiation, the government panel succeeded in convincing them to lay down their arms and defuse the explosives placed around the premises of the Oakwood Apartments. Eventually, they returned to their barracks. A total of 321 soldiers, including petitioners herein, surrendered to the authorities. The National Bureau of Investigation (NBI) investigated the incident and recommended that

the military personnel involved be charged with coup detat defined and penalized under Article 134-A of the Revised Penal Code, as amended. On July 31, 2003, the Chief State Prosecutor of the Department of Justice (DOJ) recommended the filing of the corresponding Information against them. Meanwhile, on August 2, 2003, pursuant to Article 70 of the Articles of War, respondent General Narciso Abaya, then AFP Chief of Staff, ordered the arrest and detention of the soldiers involved in the Oakwood incident and directed the AFP to conduct its own separate investigation. On August 5, 2003, the DOJ filed with the Regional Trial Court (RTC), Makati City an Information for coup detat 2against those soldiers, docketed as Criminal Case No. 03-2784 and eventually raffled off to Branch 61, presided by Judge Romeo F. Barza. 3 Subsequently, this case was consolidated with Criminal Case No. 03-2678, involving the other accused, pending before Branch 148 of the RTC, Makati City, presided by Judge Oscar B. Pimentel.

On August 13, 2003, the RTC directed the DOJ to conduct a reinvestigation of Criminal Case No. 03-2784. On the same date, respondent Chief of Staff issued Letter Order No. 625 creating a Pre-Trial Investigation Panel tasked to determine the propriety of filing with the military tribunal charges for violations of the Articles of War under Commonwealth Act No. 408, 4 as amended, against the same military personnel. Specifically, the charges are: (a) violation of Article 63 for disrespect toward the President, the Secretary of National Defense, etc., (b) violation of Article 64 for disrespect toward a superior officer, (c) violation of Article 67 for mutiny or sedition, (d) violation of Article 96 for conduct unbecoming an officer and a gentleman, and (e) violation of Article 97 for conduct prejudicial to good order and military discipline. Of the original 321 accused in Criminal Case No. 03-2784, only 243 (including petitioners herein) filed with the RTC, Branch 148 an Omnibus Motion praying that the said trial court assume jurisdiction over all the charges filed with the military tribunal. They invoked Republic Act (R.A.) No. 7055. 5

On September 15, 2003, petitioners filed with the Judge Advocate Generals Office (JAGO) a motion praying for the suspension of its proceedings until after the RTC shall have resolved their motion to assume jurisdiction. On October 29, 2003, the Pre-Trial Investigation Panel submitted its Initial Report to the AFP Chief of Staff recommending that the military personnel involved in the Oakwood incident be charged before a general court martial with violations of Articles 63, 64, 67, 96, and 97 of the Articles of War. Meanwhile, on November 11, 2003, the DOJ, after conducting a reinvestigation, found probable cause against only 31 (petitioners included) of the 321 accused in Criminal Case No. 03-2784. Accordingly, the prosecution filed with the RTC an Amended Information. 6 In an Order dated November 14, 2003, the RTC admitted the Amended Information and dropped the charge ofcoup detat against the 290 accused. Subsequently, or on December 12, 2003, the Pre-Trial Investigation Panel submitted its Final Pre-Trial Investigation Report 7 to the JAGO,

recommending that, following the "doctrine of absorption," those charged withcoup detat before the RTCshould not be charged before the military tribunal for violation of the Articles of War. For its part, the RTC, on February 11, 2004, issued an Order 8 stating that "all charges before the court martial against the accusedare hereby declared not service-connected, but rather absorbed and in furtherance of the alleged crime of coup detat." The trial court then proceeded to hear petitioners applications for bail. In the meantime, Colonel Julius A. Magno, in his capacity as officer-in-charge of the JAGO, reviewed the findings of the Pre-Trial Investigation Panel. He recommended that 29 of the officers involved in the Oakwood incident, including petitioners, be prosecuted before a general court martial for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War. On June 17, 2004, Colonel Magnos recommendation was approved by the AFP top brass. The AFP Judge Advocate General then directed petitioners to submit their answer to the

charge. Instead of complying, they filed with this Court the instant Petition for Prohibition praying that respondents be ordered to desist from charging them with violation of Article 96 of the Articles of War in relation to the Oakwood incident. 9 Petitioners maintain that since the RTC has made a determination in its Order of February 11, 2004 that the offense for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War is not serviceconnected, but is absorbed in the crime of coup detat, the military tribunal cannot compel them to submit to its jurisdiction. The Solicitor General, representing the respondents, counters that R.A. No. 7055 specifies which offenses covered by the Articles of War areservice-connected. These are violations of Articles 54 to 70, 72 to 92, and 95 to 97. The law provides that violations of these Articles are properly cognizable by the court martial. As the charge against petitioners is violation of Article 96 which, under R.A. No. 7055 is a service-connected offense, then it falls under the jurisdiction of the court martial.

Subsequently, petitioners filed with this Court a Supplemental Petition raising the additional issue that the offense charged before the General Court Martial has prescribed. Petitioners alleged therein that during the pendency of their original petition, respondents proceeded with the PreTrial Investigation for purposes of charging them with violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War; that the Pre-Trial Investigation Panel then referred the case to the General Court Martial; that "almost two years since the Oakwood incident on July 27, 2003, only petitioner Lt. (SG) Antonio Trillanes was arraigned, and this was done under questionable circumstances;" 10 that in the hearing of July 26, 2005, herein petitioners moved for the dismissal of the case on the ground that they were not arraigned within the prescribed period of two (2) years from the date of the commission of the alleged offense, in violation of Article 38 of the Articles of War; 11 that "the offense charged prescribed on July 25, 2005;" 12 that the General Court Martial ruled, however, that "the prescriptive period shall end only at 12:00 midnight of July 26, 2005;" 13 that "(a)s midnight of July 26, 2005 was approaching and it was becoming apparent that the accused could not be arraigned, the prosecution suddenly changed its position and asserted that 23 of the

accused have already been arraigned;" 14 and that petitioners moved for a reconsideration but it was denied by the general court martial in its Order dated September 14, 2005. 15 In his Comment, the Solicitor General prays that the Supplemental Petition be denied for lack of merit. He alleges that "contrary to petitioners pretensions, all the accused were duly arraigned on July 13 and 18, 2005." 16 The "(r)ecords show that in the hearing on July 13, 2005, all the 29 accused were present" and, "(o)n that day, Military Prosecutor Captain Karen Ong Jags read the Charges and Specifications from the Charge Sheet in open court (pp. 64, TSN, July 13, 2005)." 17 The sole question for our resolution is whether the petitioners are entitled to the writ of prohibition. There is no dispute that petitioners, being officers of the AFP, are subject to military law. Pursuant to Article 1 (a) of Commonwealth Act No. 408, as amended, otherwise known as the Articles of War, the term "officer" is "construed to refer to a commissioned officer." Article 2 provides:

Art. 2. Persons Subject to Military Law. The following persons are subject to these articles and shall be understood as included in the term "any person subject to military law" or "persons subject to military law," whenever used in these articles: (a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of the Philippine Constabulary, all members of the reserve force, from the dates of their call to active duty and while on such active duty; all trainees undergoing military instructions; and all other persons lawfully called, drafted, or ordered into, or to duty or for training in the said service, from the dates they are required by the terms of the call, draft, or order to obey the same. Upon the other hand, Section 1 of R.A. No. 7055 reads: SEC. 1. Members of the Armed Forces of the Philippines and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code, other special penal laws, or local government ordinances, regardless of whether or

not civilians are co-accused, victims, or offended parties, which may be natural or juridical persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is serviceconnected, in which case, the offense shall be tried by court-martial, Provided, That the President of the Philippines may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts. As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended. In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the penalty prescribed therefor in the Revised Penal Code, other special laws, or local government ordinances. Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it lays down the general rule that members of the AFP and other persons subject to military law, including members of the Citizens Armed Forces

Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code (like coup detat), other special penal laws, or local ordinances shall be tried by the proper civil court. Next, it provides the exception to the general rule, i.e., where the civil court, before arraignment, has determined the offense to be service-connected, then the offending soldier shall be tried by a court martial. Lastly, the law states an exception to the exception, i.e., where the President of the Philippines, in the interest of justice, directs before arraignment that any such crimes or offenses be tried by the proper civil court. The second paragraph of the same provision further identifies the "service-connected crimes or offenses" as "limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97" of the Articles of War. Violations of these specified Articles are triable by court martial. This delineates the jurisdiction between the civil courts and the court martial over crimes or offenses committed by military personnel. Such delineation of jurisdiction by R.A. No. 7055 is necessary to preserve the peculiar nature of military justice system over military personnel charged with service-connected offenses. The

military justice system is disciplinary in nature, aimed at achieving the highest form of discipline in order to ensure the highest degree of military efficiency. 18 Military law is established not merely to enforce discipline in times of war, but also to preserve the tranquility and security of the State in time of peace; for there is nothing more dangerous to the public peace and safety than a licentious and undisciplined military body. 19 The administration of military justice has been universally practiced. Since time immemorial, all the armies in almost all countries of the world look upon the power of military law and its administration as the most effective means of enforcing discipline. For this reason, the court martial has become invariably an indispensable part of any organized armed forces, it being the most potent agency in enforcing discipline both in peace and in war. 20 Here, petitioners are charged for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War before the court martial, thus: All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City, Metro Manila, willfully, unlawfully and feloniously violate their solemn oath as

officers to defend the Constitution, the law and the duly-constituted authorities and abused their constitutional duty to protect the people and the State by, among others, attempting to oust the incumbent duly-elected and legitimate President by force and violence, seriously disturbing the peace and tranquility of the people and the nation they are sworn to protect,thereby causing dishonor and disrespect to the military profession, conduct unbecoming an officer and a gentleman, in violation of AW 96 of the Articles of War. CONTRARY TO LAW. (Underscoring ours) Article 96 of the Articles of War 21 provides: ART. 96. Conduct Unbecoming an Officer and Gentleman. Any officer, member of the Nurse Corps, cadet, flying cadet, or probationary second lieutenant, who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service. (Underscoring ours) We hold that the offense for violation of Article 96 of the Articles of War is service-connected. This is expressly provided in Section 1 (second paragraph) of R.A. No. 7055. It bears stressing

that the charge against the petitioners concerns the alleged violation of their solemn oath as officers to defend the Constitution and the dulyconstituted authorities.Such violation allegedly caused dishonor and disrespect to the military profession. In short, the charge has a bearing on their professional conduct or behavior as military officers. Equally indicative of the "service-connected" nature of the offense is the penalty prescribed for the same dismissal from the service imposable only by the military court.Such penalty is purely disciplinary in character, evidently intended to cleanse the military profession of misfits and to preserve the stringent standard of military discipline. Obviously, there is no merit in petitioners argument that they can no longer be charged before the court martial for violation of Article 96 of the Articles of War because the same has been declared by the RTC in its Order of February 11, 2004 as "not service-connected, but rather absorbed and in furtherance of the alleged crime of coup detat," hence, triable by said court (RTC). The RTC, in making such declaration, practically amended the law which expressly vests in the court martial the

jurisdiction over "service-connected crimes or offenses." What the law has conferred the court should not take away. It is only the Constitution or the law that bestows jurisdiction on the court, tribunal, body or officer over the subject matter or nature of an action which can do so. 22 And it is only through a constitutional amendment or legislative enactment that such act can be done. The first and fundamental duty of the courts is merely to apply the law "as they find it, not as they like it to be." 23 Evidently, such declaration by the RTC constitutes grave abuse of discretion tantamount to lack or excess of jurisdiction and is, therefore, void. In Navales v. Abaya., 24 this Court, through Mr. Justice Romeo J. Callejo, Sr., held: We agree with the respondents that the sweeping declaration made by the RTC (Branch 148) in the dispositive portion of its Order dated February 11, 2004 that all charges before the court-martial against the accused were not service-connected, but absorbed and in furtherance of the crime of coup detat, cannot be given effect. x x x, such declaration was made without or in excess of jurisdiction; hence, a nullity.

The second paragraph of the above provision (referring to Section 1 of R.A. No. 7055) explicitly specifies what are considered "serviceconnected crimes or offenses" under Commonwealth Act No. 408, as amended, also known as the Articles of War, to wit: Further, Section 1 of Rep. Act No. 7055 vests on the military courts the jurisdiction over the foregoing offenses. x x x. It is clear from the foregoing that Rep. Act No. 7055 did not divest the military courts of jurisdiction to try cases involving violations of Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of the Articles of War as these are considered "service-connected crimes or offenses." In fact, it mandates that these shall be tried by the court-martial. Moreover, the observation made by Mr. Justice Antonio T. Carpio during the deliberation of this case is worth quoting, thus: The trial court aggravated its error when it justified its ruling by holding that the charge of Conduct Unbecoming an Officer and a Gentleman is absorbed and in furtherance to the alleged crime of coup detat. Firstly, the doctrine

of absorption of crimes is peculiar to criminal law and generally applies to crimes punished by the same statute,25 unlike here where different statutes are involved. Secondly, the doctrine applies only if the trial court has jurisdiction over both offenses. Here, Section 1 of R.A. 7055 deprives civil courts of jurisdiction over serviceconnected offenses, including Article 96 of the Articles of War. Thus, the doctrine of absorption of crimes is not applicable to this case. Military law is sui generis (Calley v. Callaway, 519 F.2d 184 [1975]), applicable only to military personnel because the military constitutes an armed organization requiring a system of discipline separate from that of civilians (see Orloff v. Willoughby, 345 U.S. 83 [1953]). Military personnel carry high-powered arms and other lethal weapons not allowed to civilians. History, experience, and the nature of a military organization dictate that military personnel must be subjected to a separate disciplinary system not applicable to unarmed civilians or unarmed government personnel. A civilian government employee reassigned to another place by his superior may question his reassignment by asking a temporary restraining order or injunction from a civil court. However, a

soldier cannot go to a civil court and ask for a restraining or injunction if his military commander reassigns him to another area of military operations. If this is allowed, military discipline will collapse. xxx This Court has recognized that courts-martial are instrumentalities of the Executive to enable the President, as Commander-in-Chief, to effectively command, control, and discipline the armed forces (see Ruffy v. Chief of Staff, 75 Phil. 875 [1946], citing Winthrops Military Law and Precedents, 2nd edition, p. 49). In short, courtsmartial form part of the disciplinary system that ensures the Presidents control, and thus civilian supremacy, over the military. At the apex of this disciplinary system is the President who exercises review powers over decisions of courts-martial (citing Article 50 of the Articles of War; quoted provisions omitted). xxx While the Court had intervened before in courtsmartial or similar proceedings, it did so sparingly and only to release a military personnel illegally detained (Ognir v. Director of Prisons, 80 Phil.

401 [1948] or to correct objectionable procedures (Yamashita v. Styer, 75 Phil. 563 [1945]). The Court has never suppressed court-martial proceedings on the ground that the offense charged is absorbed and in furtherance of another criminal charge pending with the civil courts. The Court may now do so only if the offense charged is not one of the serviceconnected offenses specified in Section 1 of RA 7055. Such is not the situation in the present case. With respect to the issue of prescription raised by petitioners in their Supplemental Petition, suffice it to say that we cannot entertain the same. The contending parties are at loggerheads as to (a) who among the petitioners were actually arraigned, and (b) the dates of their arraignment. These are matters involving questions of fact, not within our power of review, as we are not a trier of facts. In a petition for prohibition, such as the one at bar, only legal issues affecting the jurisdiction of the tribunal, board or officer involved may be resolved on the basis of the undisputed facts. 26 Clearly, the instant petition for prohibition must fail. The office of prohibition is to prevent the unlawful and oppressive exercise of authority

and is directed against proceedings that are done without or in excess of jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy, and adequate remedy in the ordinary course of law. 27 Stated differently, prohibition is the remedy to prevent inferior courts, corporations, boards, or persons from usurping or exercising a jurisdiction or power with which they have not been vested by law. 28 In fine, this Court holds that herein respondents have the authority in convening a court martial and in charging petitioners with violation of Article 96 of the Articles of War. WHEREFORE, the instant petition for prohibition is DISMISSED. G.R. No. 88189 July 9, 1996 PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. TIBURCIO ABALOS, accused-appellant.

In this appeal, accused-appellant Tiburcio Abalos seeks absolution from the judgment of conviction rendered by the Regional Trial Court, Branch 27, of Catbalogan, Samar which pronounced him guilty of the complex crime of direct assault with murder in Criminal Case No. 2302. His arguments in the present appeal turn on the central question of unwarranted credence allegedly extended by the trial court to the version of the criminal incident narrated by the sole prosecution witness. The totality of the evidence adduced, however, indubitably confirms appellant's guilt of the offense charged. Accordingly, we affirm. An information filed in the trial court, dated April 21, 1983, imputed the crime of direct assault with murder to herein appellant Tiburcio Abalos, alias "Ewet," with the allegations That on or about the 20th day of March, 1983, at nighttime, in the Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill, with treachery and evident premeditation and knowing fully well that one Sofronio

REGALADO, J.:p

Labine was an agent of a person in authority being a member of the Integrated National Police with station at Catbalogan, Samar, did then and there willfully, unlawfully and feloniously attack, assault and strike said Sofronio Labine with a piece of wood, which said accused ha(d) conveniently provided himself for the purpose while said P/Pfc. Sofronio Labine, a duly appointed and qualified member of the said INP, was engaged in the performance of his official duties or on the occasion of such performance, that is, maintaining peace and order during the barangay fiesta of Canlapwas, of said municipality, thereby inflicting upon him "Lacerated wound 2 inches parietal area right. Blood oozing from both ears and nose" which wound directly caused his death.
That in the commission of the crime, the aggravating circumstance of nocturnity was present. 1

not guilty. 2 The trial conducted thereafter culminated in the decision 3 of the trial court on February 3, 1989 finding appellant guilty as charged and meting out to him the penalty of "life imprisonment, with the accessories of the law." Appellant was likewise ordered to indemnify the heirs of the victim in the sum of P30,000.00; actual and compensatory damages in the amount of P2,633.00, with P15,000.00 as moral damages; and to pay the costs. 4 As recounted by prosecution witness Felipe Basal, a farmer residing in Barangay Pupua, Catbalogan, Samar, appellant assaulted the victim, Pfc. Sofronio Labine, at around 8:00 P.M. of March 20, 1983, which was then the day of the barangay fiesta celebrations in Barangay Canlapwas, Catbalogan, Samar. The incident transpired near the house of appellant at the said barangay. Felipe Basal was then having a drinking session in front of the shanty of one Rodulfo Figueroa, Jr. which was situated just a few meters from the residence of appellant. According to Basal, at about that time he noticed the father of appellant, Police Major Cecilio Abalos, scolding his employees in his transportation business for turning in only two hundred pesos in earnings for that day. While

At his arraignment on June 7, 1983, appellant, with the assistance of counsel, entered a plea of

Major Abalos was thus berating his employees, appellant arrived and asked his father not to scold them and to just let them take part in the barangay festivities. This infuriated the elder Abalos and set off a heated argument between father and son. 5 While the two were thus quarreling, a woman shouted "Justicia, boligue kumi! Adi in mag-aaringasa." meaning, "Police officer, help us! Somebody's making trouble here." The victim, Pfc. Sofronio Labine, then appeared on the scene and asked Major Abalos, "What is it, sir?" The victim saluted Abalos when the latter turned around to face him. As Major Abalos leveled his carbine at Labine, appellant hurriedly left and procured a piece of wood, about two inches thick, three inches wide and three feet long, from a nearby Ford Fiera vehicle. He then swiftly returned and unceremoniously swung with that wooden piece at Labine from behind, hitting the policeman at the back of the right side of his head. Labine collapsed unconscious in a heap, and he later expired from the severe skull fracture he sustained from that blow. Felipe Basal and his wife took flight right after appellant struck the victim, fearful that they

might be hit by possible stray bullets 6 should a gunfight ensue. Appellant's testimony, on the other hand, is of a different tenor. He admits having struck Labine with a piece of wood during the incident in question but claims that he did so in the erroneous belief that his father was being attacked by a member of the New People's Army (NPA). According to appellant, he was then seated inside their family-owned Sarao jeepney parked beside the store of Rodulfo Figueroa, Jr. near their home in Barangay Canlapwas when he noticed a man in fatigue uniform suddenly accost his father. At that time, appellant's father had just arrived from a trip from Wright, Samar and had just alighted from his service vehicle, a Ford Fiera. The man tried to disarm Major Abalos of his firearm but the latter resisted and while the two were grappling for possession of the gun, appellant instinctively went to the rescue of his father. He got a piece of wood from Figueroa's store with which he then clubbed Labine whom he did not recognize at that point. When Labine fell to the ground from the blow, appellant immediately fled to Barangay Mercedes nearby, fearing that the man had companions who might

retaliate. When he came to know of the identity of his victim the following morning, he forthwith surrendered to the authorities. 7 As mentioned at the outset, the foregoing version of the factual antecedents as presented by appellant was roundly rejected by the lower court which found the same unworthy of belief. Appellant ascribes reversible errors to the trial court (a) in not giving credence to the evidence adduced by the defense; (b) in believing the evidence presented by the prosecution; (c) in relying on the prosecution's evidence which falls short of the required quantum of evidence that would warrant a conviction; (d) in finding that treachery attended the commission of the crime and failing to credit in appellant's favor his voluntary surrender; and (e) in finding appellant guilty beyond reasonable doubt of the crime charged. 8 In the main, appellant insists that the trial court should not have given credence to the story of the lone eyewitness for the prosecution. He also contends that since the testimony of that witness bore clear traces of incredibility, particularly the fact that he could not have had a clear view of the incident due to poor visibility, the prosecution should have presented as well the woman who

had called for help at the height of the incident if only to corroborate Basal's narration of the events. Appellant also assails as inherently incredible the fact that it took quite a time for witness Felipe Basal to come forward and divulge what he knew to the authorities. All these, unfortunately, are flawed arguments. From the evidence in the case at bar, the prosecution has convincingly proved, through the clear and positive testimony of Basal, the manner in which the victim was killed by herein appellant. The record is bereft of any showing that said prosecution witness was actuated by any evil motivation or dubious intent in testifying against appellant. Moreover, a doctrine of long standing in this jurisdiction is that the testimony of a lone eyewitness, if credible and positive, is sufficient to convict an accused. 9 There was thus no need, as appellant would want the prosecution to do, to present in court the woman who shouted for assistance since her testimony would only be corroborative in nature. The presentation of such species of evidence in court would only be warranted when there are compelling reasons to suspect that the eyewitness is prevaricating or that his observations were inaccurate. 10 Besides, it is up

to the People to determine who should be presented as prosecution witness on the basis of its own assessment of the necessity for such testimony. 11 Also, no unreasonable delay could even be attributed to Felipe Basal considering that during the wake for Pfc. Labine, Basal came and intimated to the widow of the victim that he was going to testify regarding her husband's slaying. 12 Appellant's contention that the deceased had attacked and attempted to divest his father of his firearm is rather preposterous considering that no reason was advanced as to why the deceased patrolman would assault a police officer of superior rank. Parenthetically, the condition of visibility at the time of the incident was conducive not only to the clear and positive identification of appellant as the victim's assailant but likewise to an actual and unobstructed view of the events that led to the victim's violent death. Basal was seated just a few meters away from the protagonists whom he all knew, he being also a long-time resident of that municipality. There was a twelve-foot high fluorescent lamppost located along the road and which, by appellant's own reckoning, was just seventeen meters away from them. 13 Notwithstanding the fact that a

couple of trees partly obstructed the post, the illumination cast by the fluorescent lamp and the nearby houses provided sufficient brightness for the identification of the combatants. Curiously enough, appellant's assertion that there was poor visibility is ironically contradicted by his testimony which is detailed on facts that one could readily recall after witnessing an event in broad daylight. While appellant considers unbelievable Basal's identification of him supposedly because of inadequate lighting, he himself, under the same conditions, could clearly see his father's assailant wearing a fatigue uniform which was different from that worn by policemen. He even asserts that he saw his father clutching the carbine with his hands holding the butt while his purported assailant held on tightly to the rifle. 14 What these facts establish is that the lights in the area at the time of the incident were enough to afford Basal an excellent view of the incident, contrary to appellant's pretense. Appellant's testimony is thus negated by the rule that evidence, to be believed, must have been given not only by a credible witness, but that the same must also be reasonably acceptable in itself.

Appellant's flight right after he had assaulted the victim is also corrosive of his testimony. For, if it were true that he had merely labored under the wrong notion that his father was being attacked by a member of the NPA, and that it was an innocent case of error in personae, he could have readily surrendered to his father right then and there. After all, Cecilio Abalos was a police major and was the Station Commander of the Integrated National Police (INP) in Wright, Samar. Further, there was no necessity at all for him to flee from the crime scene for fear of retaliation considering that he was in the company of his own father who, aside from his position, was then armed with a carbine. Appellant's explanation is, therefore, absurd and should be considered as self-serving evidence with no weight in law. On the offense committed by appellant, the trial court correctly concluded that he should be held accountable for the complex crime of direct assault with murder. There are two modes of committing atentados contra la autoridad o sus agentes under Article 148 of the Revised Penal Code. The first is not a true atentado as it is tantamount to rebellion or sedition, except that there is no public uprising. On the other hand, the second mode is the more common way of

committing assault and is aggravated when there is a weapon employed in the attack, or the offender is a public officer, or the offender lays hands upon a person in authority. 15 Appellant committed the second form of assault, the elements of which are that there must be an attack, use of force, or serious intimidation or resistance upon a person in authority or his agent; the assault was made when the said person was performing his duties or on the occasion of such performance; and the accused knew that the victim is a person in authority or his agent, that is, that the accused must have the intention to offend, injure or assault the offended party as a person in authority or an agent of a person in authority. 16 Here, Labine was a duly appointed member of the then INP in Catbalogan, Samar and, thus, was an agent of a person in authority pursuant to Article 152 of the Revised Penal Code, as amended. There is also no dispute that he was in the actual performance of his duties when assaulted by appellant, that is, he was maintaining peace and order during the fiesta in Barangay Canlapwas. Appellant himself testified that he personally knew Labine to be a policeman 17 and, in fact, Labine was then

wearing his uniform. These facts should have sufficiently deterred appellant from attacking him, and his defiant conduct clearly demonstrates that he really had the criminal intent to assault and injure an agent of the law. When the assault results in the killing of that agent or of a person in authority for that matter, there arises the complex crime of direct assault with murder or homicide. 18 The killing in the instant case constituted the felony of murder qualified by alevosia through treacherous means deliberately adopted Pfc. Labine was struck from behind while he was being confronted at the same time by appellant's father. The evidence shows that appellant deliberately went behind the victim whom he then hit with a piece of wood which he deliberately got for that purpose. Obviously, appellant resorted to such means to avoid any risk to himself, knowing fully well that his quarry was a policeman who could readily mount a defense. The aggravating circumstances of evident premeditation and nocturnity, however, were not duly proven, as correctly ruled by the court below. On the other hand, appellant's voluntary surrender even if duly taken into account by the trial court would have been inconsequential.

The offense is a complex crime, the penalty for which is that for the graver offense, to be imposed in the maximum period. Considering that the more serious crime of murder then carried the penalty of reclusion temporal in its maximum period to death, the imposable penalty should have been death. The mitigating circumstance, in that context, would have been unavailing and inapplicable since the penalty thus imposed by the law is indivisible. 19 At all events, the punishment of death could not be imposed as it would have to be reduced to reclusion perpetuadue to the then existing proscription against the imposition of the death penalty. 20 However, the designation by the trial court of the imposable penalty as "life imprisonment" is erroneous, as the same should properly be denominated as reclusion perpetua. 21 Also, the death indemnity payable to the heirs of the victim, under the present jurisprudential policy, is P50,000.00. ACCORDINGLY, with the MODIFICATION that the penalty imposed upon accused-appellant Tiburcio Abalos should be reclusion perpetua, and that the death indemnity is hereby increased to P50,000.00, the judgment of the court a quo in

Criminal Case No. 2302 is AFFIRMED in all other respects, with costs against accusedappellant.

reasons. While confined thereat, he was positively identified by the eyewitnesses as the one who murdered the 2 CAPCOM mobile patrols.

UMIL vs. RAMOS Facts: On 1 February 1988, military agents were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was received by their office, about a "sparrow man" (NPA member) who had been admitted to the said hospital with a gunshot wound. That the wounded man in the said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City. The wounded man's name was listed by the hospital management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes, Bian, Laguna however it was disclosed later that the true name of the wounded man was Rolando Dural. In view of this verification, Rolando Dural was transferred to the Regional Medical Servicesof the CAPCOM, for security

Issue: Whether or Not Rolando was lawfully arrested.

Held: Rolando Dural was arrested for being a member of the NPA, an outlawed subversive organization. Subversion being a continuing offense, the arrest without warrant is justified as it can be said that he was committing as offense when arrested. The crimes rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance therefore in connection therewith constitute direct assaults against the state and are in the nature of continuing crimes.

G.R. No. 173150

July 28, 2010

LYDIA C. GELIG, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION DEL CASTILLO, J.: An examination of the entire records of a case may be explored for the purpose of arriving at a correct conclusion, as an appeal in criminal cases throws the whole case open for review, it being the duty of the court to correct such error as may be found in the judgment appealed from. 1 Petitioner Lydia Gelig (Lydia) impugns the Decision2 promulgated on January 10, 2006 by the Court of Appeals (CA) in CA-G.R. CR No. 27488 that vacated and set aside the Decision3 of the Regional Trial Court (RTC), Cebu City, Branch 23, in Criminal Case No. CU10314. The RTC Decision convicted Lydia for committing the complex crime of direct assault with unintentional abortion but the CA found her guilty only of the crime of slight physical injuries. Factual Antecedents On June 6, 1982, an Information4 was filed charging Lydia with Direct Assault with Unintentional Abortion committed as follows:

That on the 17th day of July, 1981 at around 10:00 oclock in the morning, at Barangay Nailon, Municipality of Bogo, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there, willfully, unlawfully, and feloniously assault, attack, employ force and seriously intimidate one Gemma B. Micarsos a public classroom teacher of Nailon Elementary School while in the performance of official duties and functions as such which acts consequently caused the unintentional abortion upon the person of the said Gemma S. Micarsos. CONTRARY TO LAW. Lydia pleaded not guilty during her arraignment. Thereafter, trial ensued. The Prosecutions Version Lydia and private complainant Gemma B. Micarsos (Gemma), were public school teachers at the Nailon Elementary School, in Nailon, Bogo, Cebu. Lydias son, Roseller, was a student of Gemma at the time material to this case. On July 17, 1981, at around 10:00 oclock in the morning, Lydia confronted Gemma after learning

from Roseller that Gemma called him a "sissy" while in class. Lydia slapped Gemma in the cheek and pushed her, thereby causing her to fall and hit a wall divider. As a result of Lydias violent assault, Gemma suffered a contusion in her "maxillary area", as shown by a medical certificate5 issued by a doctor in the Bogo General Hospital. However, Gemma continued to experience abdominal pains and started bleeding two days after the incident. On August 28, 1981, she was admitted in the Southern Islands Hospital and was diagnosed, to her surprise, to have suffered incomplete abortion. Accordingly, a medical certificate6 was issued. The Defenses Version Lydia claimed that she approached Gemma only to tell her to refrain from calling her son names, so that his classmates will not follow suit. However, Gemma proceeded to attack her by holding her hands and kicking her. She was therefore forced to retaliate by pushing Gemma against the wall. Ruling of the Regional Trial Court On October 11, 2002, the trial court rendered a Decision convicting Lydia of the complex crime of

direct assault with unintentional abortion. The dispositive portion reads: WHEREFORE, the court finds the accused LYDIA GELIG, guilty beyond reasonable doubt of the crime of direct assault with unintentional abortion, and she is hereby sentenced to suffer an Indeterminate Penalty of SIX (6) MONTHS OF ARRESTO MAYOR AS MINIMUM TO FOUR (4) YEARS, TWO (2) MONTHS OF PRISION CORRECCIONAL AS MAXIMUM. She is likewise ordered to pay the offended party the amount of Ten Thousand (P10,000.00) Pesos as actual damages and Fifteen Thousand (P15,000.00) Pesos for moral damages. SO ORDERED.7 Thus, Lydia filed an appeal. Ruling of the Court of Appeals The CA vacated the trial courts judgment. It ruled that Lydia cannot be held liable for direct assault since Gemma descended from being a person in authority to a private individual when, instead of pacifying Lydia or informing the principal of the matter, she engaged in a fight with Lydia.8 Likewise, Lydias purpose was not to

defy the authorities but to confront Gemma on the alleged name-calling of her son.9 The appellate court also ruled that Lydia cannot be held liable for unintentional abortion since there was no evidence that she was aware of Gemmas pregnancy at the time of the incident.10 However, it declared that Lydia can be held guilty of slight physical injuries, thus: WHEREFORE, premises considered, the appealed Decision of the Regional Trial CourtBranch 23 of Cebu City, dated October 11, 2002 is hereby VACATED AND SET ASIDE. A new one is entered CONVICTING the accusedappellant for slight physical injuries pursuant to Article 266 (1) of the Revised Penal Code and sentencing her to suffer the penalty of arresto menor minimum of ten (10) days. SO ORDERED.11 Issues Still dissatisfied, Lydia filed this petition raising the following as errors: 1. The Honorable Court of Appeals erred in finding that the petitioner is liable for Slight

Physical Injuries pursuant to Article 266 (1) of the Revised Penal Code and sentencing her to suffer the penalty of arrestomenor minimum of ten days. 2. The Honorable Court of Appeals erred in finding that the petitioner can be convicted of Slight Physical Injuries under the information charging her for Direct Assault with Unintentional Abortion.12 Our Ruling The petition lacks merit. When an accused appeals from the judgment of his conviction, he waives his constitutional guarantee against double jeopardy and throws the entire case open for appellate review. We are then called upon to render such judgment as law and justice dictate in the exercise of our concomitant authority to review and sift through the whole case to correct any error, even if unassigned.13 The Information charged Lydia with committing the complex crime of direct assault with unintentional abortion. Direct assault is defined

and penalized under Article 148 of the Revised Penal Code. The provision reads as follows: Art. 148. Direct assaults. - Any person or persons who, without a public uprising, shall employ force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition, or shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance, shall suffer the penalty of prision correccional in its medium and maximum periods and a fine not exceeding 1,000 pesos, when the assault is committed with a weapon or when the offender is a public officer or employee, or when the offender lays hands upon a person in authority. If none of these circumstances be present, the penalty of prision correccional in its minimum period and a fine not exceeding 500 pesos shall be imposed.
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and second, by any person or persons who, without a public uprising, shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance.14 The case of Lydia falls under the second mode, which is the more common form of assault. Its elements are: 1. That the offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or (d) makes a serious resistance. 2. That the person assaulted is a person in authority or his agent. 3. That at the time of the assault the person in authority or his agent (a) is engaged in the actual performance of official duties, or [b] that he is assaulted by reason of the past performance of official duties. 4. That the offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties.

It is clear from the foregoing provision that direct assault is an offense against public order that may be committed in two ways: first, by any person or persons who, without a public uprising, shall employ force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition;

4. That there is no public uprising.15 On the day of the commission of the assault, Gemma was engaged in the performance of her official duties, that is, she was busy with paperwork while supervising and looking after the needs of pupils who are taking their recess in the classroom to which she was assigned. Lydia was already angry when she entered the classroom and accused Gemma of calling her son a "sissy". Lydia refused to be pacified despite the efforts of Gemma and instead initiated a verbal abuse that enraged the victim. Gemma then proceeded towards the principals office but Lydia followed and resorted to the use of force by slapping and pushing her against a wall divider. The violent act resulted in Gemmas fall to the floor. Gemma being a public school teacher, belongs to the class of persons in authority expressly mentioned in Article 152 of the Revised Penal Code, as amended. The pertinent portion of the provision reads as follows: Art. 152. Persons in Authority and Agents of Persons in Authority Who shall be deemed as such.

xxxx In applying the provisions of articles 148 and 151 of this Code, teachers, professors, and persons charged with the supervision of public or duly recognized private schools, colleges and universities, and lawyers in the actual performance of their professional duties or on the occasion of such performance shall be deemed persons in authority. (As amended by Batas Pambansa Bilang 873, approved June 12, 1985).16 Undoubtedly, the prosecution adduced evidence to establish beyond reasonable doubt the commission of the crime of direct assault. The appellate court must be consequently overruled in setting aside the trial courts verdict. It erred in declaring that Lydia could not be held guilty of direct assault since Gemma was no longer a person in authority at the time of the assault because she allegedly descended to the level of a private person by fighting with Lydia. The fact remains that at the moment Lydia initiated her tirades, Gemma was busy attending to her official functions as a teacher. She tried to pacify Lydia by offering her a seat so that they could talk properly,17 but Lydia refused and instead unleashed a barrage of verbal invectives. When

Lydia continued with her abusive behavior, Gemma merely retaliated in kind as would a similarly situated person. Lydia aggravated the situation by slapping Gemma and violently pushing her against a wall divider while she was going to the principals office. No fault could therefore be attributed to Gemma. The prosecutions success in proving that Lydia committed the crime of direct assault does not necessarily mean that the same physical force she employed on Gemma also resulted in the crime of unintentional abortion. There is no evidence on record to prove that the slapping and pushing of Gemma by Lydia that occurred on July 17, 1981 was the proximate cause of the abortion. While the medical certificate of Gemmas attending physician, Dr. Susan Jaca (Dr. Jaca), was presented to the court to prove that she suffered an abortion, there is no data in the document to prove that her medical condition was a direct consequence of the July 17, 1981 incident.18 It was therefore vital for the prosecution to present Dr. Jaca since she was competent to establish a link, if any, between Lydias assault and Gemmas abortion. Without her testimony, there is no way to ascertain the exact effect of the assault on Gemmas abortion.

It is worth stressing that Gemma was admitted and confined in a hospital for incomplete abortion on August 28, 1981, which was 42 days after the July 17, 1981 incident. This interval of time is too lengthy to prove that the discharge of the fetus from the womb of Gemma was a direct outcome of the assault. Her bleeding and abdominal pain two days after the said incident were not substantiated by proof other than her testimony. Thus, it is not unlikely that the abortion may have been the result of other factors. The Proper Penalty Having established the guilt of the petitioner beyond reasonable doubt for the crime of direct assault, she must suffer the penalty imposed by law. The penalty for this crime is prision correccional in its medium and maximum periods and a fine not exceeding P1,000.00, when the offender is a public officer or employee, or when the offender lays hands upon a person in authority.19 Here, Lydia is a public officer or employee since she is a teacher in a public school. By slapping and pushing Gemma, another teacher, she laid her hands on a person in authority.
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The penalty should be fixed in its medium period in the absence of mitigating or aggravating circumstances.20Applying the Indeterminate Sentence Law,21 the petitioner should be sentenced to an indeterminate term, the minimum of which is within the range of the penalty next lower in degree, i.e., arresto mayor in its maximum period to prision correccional in its minimum period, and the maximum of which is that properly imposable under the Revised Penal Code, i.e., prision correccional in its medium and maximum periods. Thus, the proper and precise prison sentence that should be imposed must be within the indeterminate term of four (4) months and one (1) day to two (2) years and four (4) months of arresto mayor, maximum to prision correccional minimum to three (3) years, six (6) months and twenty-one (21) days to four (4) years, nine (9) months and ten (10) days of prision correccional in its medium and maximum periods. A fine of not more thanP1,000.00 must also be imposed on Lydia in accordance with law. WHEREFORE, the Decision of the Court of Appeals finding petitioner Lydia Gelig guilty beyond reasonable doubt of the crime of slight physical injuries is REVERSED and SET ASIDE.

Judgment is hereby rendered finding Lydia Gelig guilty beyond reasonable doubt of the crime of direct assault and is ordered to suffer an indeterminate prison term of one (1) year and one (1) day to three (3) years, six (6) months and twenty-one (21) days of prision correccional. She is also ordered to pay a fine of P1,000.00.